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EXHIBIT 4.2
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of April 30, 1997, by and
between NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA, a North Carolina
corporation (the "Seller"), having its principal executive office at 0000
Xxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 and NATIONSCREDIT
SECURITIZATION CORPORATION, a Delaware corporation (the "Purchaser"), having its
principal executive office at 000 X. Xxxx Xxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxx
00000-0000.
WHEREAS, in the regular course of its business the Seller has
purchased the Receivables (as hereinafter defined) and the security interests
therein from the Dealer and in turn desires to sell the Receivables and the
security interests therein to the Purchaser pursuant to this Purchase Agreement.
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Receivables are to be sold by the Seller to the
Purchaser, which Receivables will be transferred by the Purchaser, pursuant to
the Pooling and Servicing Agreement (as hereinafter defined) to the
NationsCredit Grantor Trust 1997-1 to be created thereunder, which Trust will
issue certificates representing fractional undivided interests in such
Receivables and the other property of the Trust (the "Certificates").
NOW, THEREFORE, in consideration of the foregoing, other good
and valuable consideration, and the mutual terms and covenants contained herein,
the parties hereto agree as follows:
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ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Purchase Agreement shall have the
meaning set forth in Article VI and XI of the Pooling and Servicing Agreement.
As used in this Purchase Agreement, the following terms shall, unless the
context otherwise requires, have the following meanings (such meanings to be
equally applicable to the singular and plural forms of the terms defined):
"Assignment" shall mean the document of assignment attached to
this Purchase Agreement as Exhibit A.
"Capital Contribution" shall mean $5,453,433.77 which will be
contributed to the capital of the Purchaser by the Seller on the Closing Date.
"Closing Date" shall mean May 22, 1997.
"Cutoff Date" shall mean April 30, 1997.
"Pooling and Servicing Agreement" shall mean the Pooling and
Servicing Agreement (including the Standard Terms and Conditions of Agreement
attached thereto) dated as of April 30, 1997 by and among NationsCredit
Commercial Corporation of America as Servicer, the Purchaser as Depositor, and
Bankers Trust Company as Trustee and Collateral Agent.
"Property" shall mean collectively, the Receivables, and all
payments received thereunder, in the case of Simple Interest Receivables, and
all payments due thereunder, in the case of the Precomputed Receivables, in each
case, after the Cutoff Date; the interest of the Seller in the security interest
in the Boats granted by Obligors pursuant to the Receivables; the
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interest of the Seller in any proceeds from claims on any physical damage,
credit life or disability insurance policies covering Boats or Obligors; the
interest of the Seller in any proceeds from recourse to Dealers on Receivables;
and any proceeds of all of the foregoing.
"Prospectus" shall mean the Prospectus, dated May 15, 1997,
relating to the Certificates.
"Purchase Agreement" shall mean this Purchase Agreement and
all amendments hereof and supplements hereto.
"Purchaser" shall mean NationsCredit Securitization
Corporation, a Delaware corporation, its successors and assigns.
"Receivable" shall mean any marine installment sale contract
which shall appear on Exhibit B hereto.
"Receivables Purchase Price" shall mean $26,575,342.66.
"Repurchase Event" shall have the meaning specified in
Section 6.2 hereof.
"Schedule of Receivables" shall mean the list of Receivables
annexed hereto as Exhibit B.
"Seller" shall mean NationsCredit Commercial Corporation of
America, a North Carolina corporation, its successors and assigns.
"Trust" shall mean the NationsCredit Grantor Trust 1997-1.
"UCC" shall mean the Uniform Commercial Code, as in effect
from time to time in the relevant jurisdictions.
"Underwriting Agreement" shall mean the Underwriting
Agreement, dated May 15, 1997 between NationsBanc Capital
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Markets, Inc. as representative of the several underwriters and the Purchaser.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
On the Closing Date, subject to the terms and conditions of
this Purchase Agreement, the Seller agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from the Seller, the Property.
(a) Transfer of Receivables. On the Closing Date and
simultaneously with the transactions pursuant to the Pooling and Servicing
Agreement, the Seller shall sell, transfer, assign and otherwise convey to the
Purchaser, without recourse, all of its right, title and interest in and to the
Property.
The Seller intends that the assignment and transfer herein
contemplated constitute a sale of the Receivables, conveying good title thereto
free and clear of any liens and encumbrances, from the Seller to the Purchaser
and that such property not be part of the Seller's estate or property of the
Seller in the event of any insolvency by the Seller, and the Purchaser
acquiesces in such characterization. In the event that such conveyance is deemed
to be, or to be made as security for, a loan, the Seller hereby grants to the
Purchaser a first priority perfected security interest in all of the Seller's
right, title and interest in and to the Receivables, and this Purchase Agreement
shall constitute a security agreement under applicable law.
(b) Receivables Purchase Price. In consideration for the
Property, the Purchaser shall, on the Closing Date, pay
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to the Seller the Receivables Purchase Price. The amount paid to the Seller
shall be in immediately available funds but shall be reduced by the Capital
Contribution.
2.2 The Closing. The sale and purchase of the Receivables
shall take place at a closing (the "Closing") at the offices of Stroock &
Stroock & Xxxxx LLP, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing
Date, simultaneously with the closing under the Pooling and Servicing Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Warranties of The Purchaser. The Purchaser hereby
represents and warrants to the Seller as of the date hereof and as of the
Closing Date:
(a) Organization and Good Standing. The Purchaser shall
have been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority to
own its properties and to conduct its business as such properties shall be
currently owned and such business is presently conducted, and has at all
relevant times, and shall have, power, authority and legal right to acquire, own
and sell the Receivables.
(b) Due Qualification. The Purchaser shall be duly
qualified to do business as a foreign corporation in good standing, and shall
have obtained all necessary licenses and approvals, in all jurisdictions in
which the ownership or lease of property or the conduct of its business shall
require such qualifications.
(c) Power and Authority. The Purchaser shall have the
power and authority to execute and deliver this Purchase
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Agreement and to carry out its terms; the Purchaser has full power and authority
to sell and assign the Property to be sold and assigned to the Trustee as part
of the Trust and shall have authorized such sale and assignment to the Trustee
by all necessary corporate action and the execution, delivery and performance of
this Purchase Agreement shall have been duly authorized by the Purchaser by all
necessary corporate action.
(d) Valid Sale; Binding Obligations. This Purchase
Agreement shall evidence (A) a valid sale, transfer and assignment of the
Receivables, enforceable against creditors of and purchasers from the Purchaser,
and (B) a legal, valid and binding obligation of the Purchaser enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(e) No Violation. The consummation of the transactions
contemplated by this Purchase Agreement and the fulfillment of the terms hereof
shall not conflict with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time or both) a default
under, the articles of incorporation or by-laws of the Purchaser, or any
indenture, agreement or other instrument to which the Purchaser is a party or by
which it shall be bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than the Pooling and Servicing Agreement),
nor violate any law, any order, rule or regulation applicable to the Purchaser
of any court or of any Federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Purchaser or
its properties.
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(f) No Proceedings. There are no proceedings or
investigations pending, or threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Purchaser or its properties: (A) asserting the invalidity of this
Purchase Agreement; (B) seeking to prevent the consummation of any of the
transactions contemplated by this Purchase Agreement; or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by the Purchaser of its obligations under, or the validity or
enforceability of, this Purchase Agreement.
(g) All Consents Required. All approvals, authorizations,
consents, orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery by the Purchaser
of this Purchase Agreement, the performance by the Purchaser of the transactions
contemplated by this Purchase Agreement, and the fulfillment by the Purchaser of
the terms hereof, have been obtained.
3.2 Representations and Warranties of the Seller. (a) The
Seller hereto represents and warrants to the Purchaser as of the date hereof and
as of the Closing Date:
(i) Organization and Good Standing. The Seller has
been duly organized and is validly existing as a corporation
in good standing under the laws of the State of North
Carolina, with power and authority to own its properties and
to conduct its business as such properties are currently owned
and such business is presently conducted, and has at all
relevant times, and shall have, power, authority and legal
right to acquire, own and sell the Receivables. The Seller's
principal place of business as of the Closing Date is in
Georgia.
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(ii) Due Qualification. The Seller is duly qualified
to do business as a foreign corporation in good standing, and
has obtained all necessary licenses and approvals, in all
jurisdictions in which the ownership or lease of property or
the conduct of its business requires such qualifications.
(iii) Power and Authority. The Seller has the power
and authority to execute and deliver this Purchase Agreement
and to carry out its terms; the Seller has full power and
authority to sell and assign the Property to the Purchaser and
shall have duly authorized such sale and assignment to the
Purchaser by all necessary corporate action and the execution,
delivery, and performance of this Purchase Agreement has been
duly authorized by the Seller by all necessary corporate
action.
(iv) Valid Sale; Binding Obligations. The sale of the
Receivables by the Seller to the Purchaser constitutes a valid
sale, transfer and assignment of the Receivables, enforceable
against creditors of and purchasers from the Seller, and this
Purchase Agreement shall constitute a legal, valid and binding
obligation of the Seller enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance and similar laws
relating to creditors' rights generally and subject to general
principles of equity.
(v) No violation. The consummation of the
transactions contemplated by this Purchase Agreement and the
fulfillment of the terms hereof does not and will not conflict
with, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time or
both) a default under, the articles of
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incorporation or by-laws of the Seller, or any indenture,
agreement, or other instrument to which the Seller is a party
or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement, or other
instrument (other than the Pooling and Servicing Agreement);
nor violate any law or any order, rule, or regulation
applicable to the Seller of any court or of any Federal or
state regulatory body, administrative agency, or other
governmental instrumentality having jurisdiction over the
Seller or its properties.
(vi) No Proceedings. There are no proceedings or
investigations pending or threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over the Seller or its
properties: (A) asserting the invalidity of this Purchase
Agreement; (B) seeking to prevent the consummation of any of
the transactions contemplated by this Purchase Agreement, or
(C) seeking any determination or ruling that might materially
and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of this
Purchase Agreement.
(vii) All Consents Required. All approvals,
authorizations, consents, orders or other actions of any
Person or of any governmental body or official required in
connection with the execution and delivery by the Seller of
this Purchase Agreement, the performance by the Seller of the
transactions contemplated by this Purchase Agreement, and the
fulfillment by the Seller of the terms hereof, have been
obtained;
(b) The Seller makes the following representations and
warranties as to the Receivables on which the
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Purchaser relies in accepting the Receivables. Such representations and
warranties speak as of the Closing Date, but shall survive the sale, transfer,
and assignment of the Receivables to the Purchaser and the subsequent assignment
and transfer pursuant to the Pooling and Servicing Agreement:
(i) Characteristics of Receivables. Each Receivable
(a) shall have been originated in the United States by a
Dealer for the retail sale of a Boat in the ordinary course of
such Dealer's business, shall have been fully and properly
executed by the parties thereto, shall be denominated in U.S.
dollars, (b) shall have created or shall create a valid,
subsisting and enforceable first priority perfected security
interest in favor of the Seller in the related Boat, which
security interest shall be validly assignable to the
Purchaser, (c) shall contain customary and enforceable
provisions such that the rights and remedies of the holder
thereof shall be adequate for realization against the
collateral of the benefits of the security, (d) shall provide
for level monthly payments (provided that the payment in the
first or last month in the life of the Receivable may be
minimally different from the level payment) that fully
amortize the Amount Financed by maturity and yield interest at
the Annual Percentage Rate, and (e) shall provide for, in the
event that such contract is prepaid, a prepayment that fully
pays the Principal Balance and includes accrued but unpaid
interest due through the date of the prepayment in an amount
at least equal to the Annual Percentage Rate.
(ii) Schedule of Receivables. The information set
forth in Exhibit B to this Purchase Agreement shall be true
and correct in all material respects as of the close of
business on the Cutoff Date, and no
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selection procedures believed to be adverse to the Purchaser
shall have been utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable and the
sale of the related Boat shall have complied at the time it
was originated or made, and at the Closing Date shall comply
in all material respects with all requirements of applicable
Federal, State, and local laws, and regulations thereunder,
including, without limitation, usury laws, the Federal
Truth-in-Lending Act, the Equal Credit Opportunity Act, the
Federal Trade Commission Act, the Fair Credit Billing Act, the
Fair Credit Reporting Act, the Fair Debt Collection Practices
Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Trade
Commission Credit Practices Rule, State unfair and deceptive
trade practice laws and the State adaptations of the National
Consumer Act and of the Uniform Consumer Credit Code, and any
other applicable consumer credit laws and equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable shall
represent the genuine, legal, valid, and binding payment
obligation in writing of the Obligor, enforceable by the
holder thereof in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance and similar laws relating to creditors' rights
generally and subject to general principles of equity.
(v) No Government Obligor. None of the Receivables
shall be due from the United States of America or any State or
local government or from any agency, department, or
instrumentality of the United States of America, any State or
local government.
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(vi) Receivables in Force. No Receivable shall have
been satisfied, subordinated or rescinded, nor shall any Boat
have been released from the security interest granted by the
related Receivable in whole or in part.
(vii) No Waiver. No provision of a Receivable shall
have been waived.
(viii) No Defenses. The Receivables are free and
clear of all security interests, liens, charges, and
encumbrances and to the best knowledge of the Seller, no right
of rescission, setoff, counterclaim, or defense shall have
been asserted or threatened with respect to any Receivable.
(ix) No Liens. No liens or claims shall have been
filed for work, labor, or materials relating to a Boat that
shall be liens prior to, or equal or coordinate with, the
security interest in the Boat granted by the Receivable.
(x) No Default. Except for payment defaults
continuing for a period of less than 60 days as of the Cutoff
Date, no default, breach, violation, or event permitting
acceleration under the terms of any Receivable shall have
occurred and the Seller has not waived and shall not waive any
of the foregoing.
(xi) Insurance. The Obligor has obtained physical
damage insurance covering the Boat and the Obligor is required
under the terms of the Receivable to maintain such insurance.
(xii) Title. It is the intention of the Seller that
the sale and assignment herein contemplated constitute a sale
of the Receivables from the Seller to the
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Purchaser and that the beneficial interest in and title to the
Receivables not be part of the debtor's estate in the event of
the filing of a bankruptcy petition by or against the Seller
under any bankruptcy law. No Receivable has been sold,
transferred, assigned, or pledged by the Seller to any Person
other than the Purchaser. Immediately prior to the sale and
assignment herein contemplated, the Seller had good and
marketable title to each Receivable free and clear of all
Liens, encumbrances, security interests and rights of others
and, immediately upon the sale and assignment contemplated
hereby, the Purchaser shall have good and marketable title to
each Receivable, free and clear of all Liens, encumbrances,
security interests, and rights of others and the sale and
assignment has been perfected under the UCC.
(xiii) Lawful Assignment. No Receivable shall have
been originated in, or shall be subject to the laws of, any
jurisdiction under which the sale, transfer, and assignment of
such Receivable under the Agreement shall be unlawful, void,
or voidable.
(xiv) Security Interest. Upon the Receivables being
conveyed to the Trust pursuant to Section 2.1 of the
Agreement, the Trust shall have a perfected security interest
under the UCC in the Receivables.
(xv) One Original. There shall be in existence one,
and only one, original executed copy of each Receivable.
(xvi) UCC Characterization. Each Receivable
constitutes "chattel paper" under the UCC.
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(xvii) Maximum Balance. No Receivable has a Principal
Balance of greater than $50,000.
(xviii) Original Maturity of Receivables. Each
Receivable shall have an original maturity of not more than
180 months.
(xix) Remaining Maturity of Receivables. As of the
Cutoff Date, each Receivable shall have a remaining maturity
of not more than 180 months.
(xx) Annual Percentage Rate. Each Receivable shall
have a fixed Annual Percentage Rate of not less than 8.246%
and not greater than 21.902%.
(xxi) Ship Mortgage Act. No Boat securing any
Receivable meets the requirements for documentation under the
Ship Mortgage Act.
(xxii) No Default. Except for payment defaults
continuing for a period of less than 60 days as of the Cutoff
Date, no default, breach, violation or event permitting
acceleration under the terms of any Receivable shall have
occurred and neither NationsCredit Commercial nor the
Purchaser shall have waived any of the foregoing.
(xxiii) Location of Receivable Files. The Receivable
Files shall be kept at the offices of NationsCredit Commercial
Corporation at 0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx
00000 and at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxxxx 00000.
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(xxiv) No Repossessions. As of the Cutoff Date, no
boat securing any Receivable is in repossession status.
(xxv) No Bankruptcies. As of the Cutoff Date, no
Obligor on a Receivable was noted in the Receivable File as
the subject of any bankruptcy proceeding.
(xxvi) Delinquencies. As of the Cutoff Date, no
Receivable shall have a payment that is 60 or more days
delinquent.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The obligation
of the Purchaser to purchase the Receivables is subject to the satisfaction of
the following conditions:
(a) Computer Files Marked. The Seller shall have, at its
own expense, on or prior to the Closing Date, indicated in its computer files
that the Receivables have been sold to the Purchaser pursuant to this Purchase
Agreement and delivered to the Purchaser the Schedule of Receivables certified
by the Chairman, the President, any Vice President, the Treasurer or the
Assistant Treasurer to be true, correct and complete.
(b) Documents to be delivered by the Seller at the
Closing.
(i) The Assignment. At the Closing, the Seller will
execute and deliver to the Purchaser the Assignment. The
Assignment shall be substantially in the form of Exhibit A
hereto.
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(ii) Evidence of UCC Filing. On or prior to the
Closing Date, the Seller shall record and file, at its own
expense, a UCC-1 financing statement in each jurisdiction in
which required by applicable law, executed by the Seller, as
seller or debtor, and naming the Purchaser, as purchaser or
secured party, naming the Receivables and the other Property
as collateral, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to
perfect the sale, transfer, assignment and conveyance of the
Receivables and the Property to the Purchaser. The Seller
shall deliver a file-stamped copy, or other evidence
satisfactory to the Purchaser of such filing, to the Purchaser
on or prior to the Closing Date.
(iii) Other Documents. Such other documents as the
Purchaser may reasonably request.
(c) Other Transactions. The transactions contemplated by
the Pooling and Servicing Agreement shall be consummated on the Closing Date.
4.2 Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Receivables to the Purchaser is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The
representations and warranties of the Purchaser hereunder shall be true and
correct on the Closing Date with the same effect as if then made, and the
Purchaser shall have performed all obligations to be performed by it hereunder
on or prior to the Closing Date.
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(b) Receivables Purchase Price. At the Closing Date, the
Purchaser will deliver to the Seller the Receivables Purchase Price as
provided in Section 2.1(b) hereof.
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows, provided,
however, that to the extent that any provision of this ARTICLE V conflicts with
any provision of the Pooling and Servicing Agreement, the Pooling and Servicing
Agreement shall govern:
5.1 Protection of Right, Title and Interest.
(a) Filings. The Seller shall cause all financing
statements and continuation statements and any other necessary documents
covering the right, title and interest of the Purchaser in and to the
Receivables and the other Property to be promptly filed, and at all times to be
kept recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Purchaser hereunder to the Receivables and the other Property.
The Seller shall deliver to the Purchaser file-stamped copies of, or filing
receipts for any document recorded, registered or filed as provided above, as
soon as available following such recordation, registration or filing. The
Purchaser shall cooperate fully with the Seller in connection with the
obligations set forth above and will execute any and all documents reasonably
requested to fulfill the intent of this Section 5.01(a).
(b) Name Change. Within fifteen days after the Seller
makes any change in its name, identity, principal place of business, chief
executive office or corporate structure which
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would make any financing statement or continuation statement filed in accordance
with paragraph (a) above seriously misleading within the applicable provisions
of the UCC or any title statute, the Seller shall give the Purchaser notice of
any such change and no later than five days after the effective date thereof
shall file such financing statements or amendments as may be necessary to
continue the perfection of the Purchaser's security interest in the Receivables
and the other Property.
(c) Other Actions. The Seller shall cause such additional
actions to be taken as may be required by law to fully preserve and protect the
right, title and interest of the Purchaser hereunder to the Property.
5.2 Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the Pooling and Servicing Agreement, the Seller will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on the Property or any interest
therein, and the Seller shall defend the right, title, and interest of the
Purchaser in, to and under the Property (other than the Purchased Receivables)
against all claims of third parties claiming through or under the Seller;
provided, however, that the Seller's obligations under this Section 5.2 shall
terminate upon the termination of the Trust pursuant to the Pooling and
Servicing Agreement.
5.3 Chief Executive Office. During the term of the
Receivables, the Seller will maintain its chief executive office in the United
States, except for Colorado, Kansas, Louisiana, New Mexico, Oklahoma, Utah,
Vermont or Wyoming.
5.4 Costs and Expenses. The Seller agrees to pay all costs and
disbursements in connection with the perfection, as
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against all third parties, of the Purchaser's right, title and interest in and
to the Receivables.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller under
this Purchase Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Receivable.
6.2 Repurchase Events. The Seller hereby covenants and agrees
with the Purchaser for the benefit of the Purchaser, the Trustee, the
Certificateholders and the Surety Bond Issuer, that a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) hereof,
which as a result of such breach would materially and adversely affect the
interests of the Purchaser, the Certificateholders, the Surety Bond Issuer,
unless such breach shall have been cured by the second Record Date following the
discovery thereof (or at the Seller's option the first Record Date following
discovery), shall constitute an event obligating the Seller to repurchase
Receivables hereunder (a "Repurchase Event"), at the Purchase Amount from the
Purchaser or from the Trust. The Purchase Amount shall be paid in the manner
specified in Section 14.4(a) of the Pooling and Servicing Agreement on the
Deposit Date. The repurchase obligation of the Seller shall constitute the sole
remedy to the Certificateholders, the Trustee, the Surety Bond Issuer, or the
Purchaser against the Seller with respect to any Repurchase Event.
6.3 Seller's Assignment of Purchased Receivables. With respect
to all Receivables repurchased by the Seller pursuant to this Purchase
Agreement, the Purchaser shall assign,
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without recourse, representation or warranty, to the Seller all the Purchaser's
right, title and interest in and to such Receivables, and all Property and
documents relating thereto.
6.4 Trust. The Seller acknowledges that the Purchaser will,
pursuant to the Pooling and Servicing Agreement, sell the Property to the Trust
on the Closing Date and assign its rights under this Purchase Agreement to the
Trustee for the benefit of the Certificateholders and the Surety Bond Issuer and
that the representations and warranties contained in this Purchase Agreement and
the rights of the Purchaser under Sections 6.2 and 6.3 hereof are intended to
benefit such Trust, the Certificateholder and the Surety Bond Issuer. The Seller
hereby consents to such sale and assignment and the right of the Trustee to
enforce directly the obligations of the Seller hereunder.
6.5 Amendment. This Purchase Agreement may be amended from
time to time by a written amendment duly executed and delivered by the Seller
and the Purchaser; provided, however, that any such amendment that materially
adversely affects the rights of the Certificateholders or the Surety Bond Issuer
under the Pooling and Servicing Agreement must be consented to by the Surety
Bond Issuer and the Holders of Certificates evidencing not less than 51% of the
Pool Balance.
6.6 Waivers. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Purchase Agreement or the
Assignment shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
6.7 Notices. All communications and notices pursuant hereto to
either party shall be in writing and addressed or delivered to it at its address
shown in the opening paragraph of
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this Purchase Agreement or at such other address as may be designated by it by
notice to the other party and, if mailed, shall be deemed given when mailed.
6.8 Costs and Expenses. The Seller will pay all expenses
incident to the performance of its obligations under this Purchase Agreement and
the Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, including reasonable fees and expenses of counsel, in connection with
the perfection as against third parties of the Purchaser's right, title and
interest in and to the Receivables and the enforcement of any obligation of the
Seller hereunder.
6.9 Representations to the Seller. The respective agreements,
representations, warranties and other statements by the Seller and the Purchaser
set forth in or made pursuant to this Purchase Agreement shall remain in full
force and effect and will survive the Closing under Section 2.02 hereof.
6.10 Confidential Information. The Purchaser agrees that it
will neither use nor disclose to any person the names and addresses of the
Obligors, except in connection with the enforcement of the Purchaser's rights
hereunder, under the Receivables, under any Pooling and Servicing Agreement or
as required by law.
6.11 Headings and Cross-References. The various headings in
this Purchase Agreement are included for convenience only and shall not affect
the meaning or interpretation of any provision of this Purchase Agreement.
References in this Purchase Agreement to Section names or numbers are to such
Sections of this Purchase Agreement.
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6.12 Governing Law. THIS PURCHASE AGREEMENT AND THE ASSIGNMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF THE STATE OF NEW YORK.
6.13 Counterparts. This Purchase Agreement may be executed in
two or more counterparts and by different parties on separate counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
6.14 No Petition. The Seller will not institute against, or
join any other person in instituting against, the Purchaser, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, until August
16, 2014.
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IN WITNESS WHEREOF, the parties hereby have caused this
Purchase Agreement to be executed by their respective officers thereunto duly
authorized as of the date and year first above written.
NATIONSCREDIT SECURITIZATION CORPORATION
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
NATIONSCREDIT COMMERCIAL CORPORATION OF AMERICA
By: /s/ Xxxxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxxxx Xxxxxxxxx
Title: Vice President
and Treasurer
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EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of April 30, 1997 (the "Purchase Agreement"), between the undersigned
and NationsCredit Securitization Corporation (the "Purchaser"), the undersigned
does hereby sell, assign, transfer and otherwise convey unto the Purchaser,
without recourse (except as provided in the Purchase Agreement) all right, title
and interest of the undersigned in and to the Receivables and all payments
received thereunder, in the case of Receivables which are Simple Interest
Receivables and all payments due thereunder in the case of Receivables which are
Precomputed Receivables, in each case, after the Cutoff Date; the interest of
the Seller in the security interest in the Boats granted by Obligors pursuant to
the Receivables; the interest of the Seller in any proceeds from claims on any
physical damage, credit life or disability insurance policies covering Boats or
Obligors; the interest of the Seller in any proceeds from recourse to Dealers on
Receivables; and any proceeds of all of the foregoing. The foregoing sale does
not constitute and is not intended to result in any assumption by the Purchaser
of any obligation of the undersigned to the Obligors, insurers or any other
person in connection with the Receivables, Receivable Files, any insurance
policies or any agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties, and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
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Capitalized terms used herein and not otherwise defined shall
have the meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of April 30, 1997.
NATIONSCREDIT COMMERCIAL
CORPORATION OF AMERICA
By:
---------------------------
Title:
--------------------
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Exhibit B
Schedule of Receivables
delivered to Trustee
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Schedule A
Location of Receivable Files
NationsCredit Commercial Corporation
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
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