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EXHIBIT 4.5
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this ______ day of
____________, by and between NISSAN MOTOR ACCEPTANCE CORPORATION, a California
corporation (the "Seller"), having its principal executive office at 000 X.
000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and [NISSAN AUTO RECEIVABLES
CORPORATION][NISSAN AUTO RECEIVABLES CORPORATION II], a Delaware corporation
(the "Purchaser"), having its principal executive office at 000 X. 000xx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, in the regular course of its business, the Seller purchases
certain motor vehicle retail installment sale contracts secured by new and used
automobiles and light duty trucks from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the terms
pursuant to which the Receivables (as hereinafter defined) and certain other
property 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)] [Sale and Servicing Agreement (as hereinafter
defined)], to the NISSAN AUTO RECEIVABLES [GRANTOR] [OWNER] TRUST, which will
issue [notes backed by such Receivables and the other property of the Trust (the
"Notes") and] 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:
ARTICLE I
CERTAIN DEFINITIONS
Terms not defined in this Agreement shall have the respective
meanings assigned such terms set forth in the [Pooling and Servicing Agreement]
[Sale and Servicing Agreement or Trust Agreement, as the case may be]. As used
in this 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):
"Agreement" means this Purchase Agreement and all amendments hereof
and supplements hereto.
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"Assignment" means the document of assignment attached to this
Agreement as Exhibit A.
"Certificates" shall have the meaning specified in the introductory
paragraphs of this Agreement.
"Closing" shall have the meaning specified in Section 2.2.
"Closing Date" means [ ].
"Collections" means all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Damages" shall have the meaning specified in Section 5.4(a).
"Distribution Date" means, for each Collection Period, the 15th day
of the following month or, if such 15th day is not a Business Day, the next
succeeding Business Day.
["Notes" shall have the meaning specified in the introductory
paragraphs of this Agreement.]
["Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement by and among the Seller, as servicer and in its individual capacity,
the Purchaser, and [ ], as trustee (the "Trustee"), dated as of [ ], as
the same may be amended, amended and restated, supplemented or modified.]
"Prospectus" has the meaning assigned to such term in the
Underwriting Agreement.
"Purchaser" means [Nissan Auto Receivables Corporation][Nissan Auto
Receivables Corporation II], a Delaware corporation, and its successors and
assigns.
"Rating Agency" means [ ] or any successors thereto.
"Receivable" means any retail installment sale contract that appears
on the Schedule of Receivables.
"Receivables Purchase Price" means $[ ].
"Repurchase Event" shall have the meaning specified in Section 6.2.
["Sale and Servicing Agreement" means the Sale and Servicing
Agreement by and among [Nissan Auto Receivables Corporation][Nissan Auto
Receivables Corporation II], as seller, Nissan Motor Acceptance Corporation, as
servicer, and the Trust dated as of [ ], as the same may be amended, amended
and restated, supplemented or modified.]
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"Schedule of Receivables" means the list of Receivables annexed to
the Assignment as Schedule A thereto.
["Securities" means the Notes and the Certificates.]
"Seller" means Nissan Motor Acceptance Corporation, a California
corporation, and its successors and assigns.
"Trust" means the Nissan Auto Receivables [ - ][Grantor] [Owner]
Trust.
["Trust Agreement" means the Amended and Restated Trust Agreement by
and between [Nissan Auto Receivables Corporation][Nissan Auto Receivables
Corporation II], as seller, and [ ], as trustee (the "Trustee"), dated as of
[ ], as the same may be amended, amended and restated, supplemented or
modified.]
"Underwriting Agreement" means the Underwriting Agreement by and
between [ ] and the Purchaser, dated [ ].
"Yield Supplement Agreement" means the agreement, dated as of the
date of this Agreement, among the Purchaser, the Seller, [ ], as Indenture
Trustee, and the Trust.
With respect to all terms in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include the
other genders; references to "writing" include printing, typing, lithography and
other means of reproducing words in a visible form; references to agreements and
other contractual instruments include all subsequent amendments, amendments and
restatements and supplements thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; references
to laws include their amendments and supplements, the rules and regulations
thereunder and any successors thereto; and the term "including" means "including
without limitation."
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
Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser agrees
to purchase from the Seller, the Receivables and the other property relating
thereto (as defined below).
(a) Transfer of Receivables. On the Closing Date and simultaneously
with the transactions pursuant to the [Pooling and Servicing Agreement] [Sale
and
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Servicing Agreement], the Seller shall sell, transfer, assign and otherwise
convey to the Purchaser, without recourse,
(i) all right, title and interest of the Seller in and to
the Receivables (including all related Receivable Files) and all monies
due thereon or paid thereunder or in respect thereof after the Cutoff
Date;
(ii) the right of the Seller in the security interests in
the Financed Vehicles granted by the Obligors pursuant to the
Receivables and any related property;
(iii) the right of the Seller in any proceeds from claims
on any physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles or Obligors;
(iv) the right of the Seller to receive payments in
respect of any Dealer Recourse with respect to the Receivables;
(v) the right of the Seller to realize upon any property
(including the right to receive future Net Liquidation Proceeds) that
shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums and
other amounts relating to insurance policies and other items financed
under the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing;
provided, that the Seller shall not be required to deliver to the Purchaser on
the Closing Date monies received in respect of the Receivables after the Cutoff
Date and before the Closing Date but shall or shall cause the Servicer to
deposit such monies into the Collection Account no later than the first Record
Date after the Closing Date.
(b) Receivables Purchase Price. In consideration for the Receivables
and other properties described in Section 2.1(a), the Purchaser shall, on the
Closing Date, pay to the Seller the Receivables Purchase Price. An amount equal
to approximately [ ]% of the Receivables Purchase Price shall be paid to the
Seller in cash by federal wire transfer (same day) funds. The remaining
approximately [ ]% of the Receivables Purchase Price shall be deemed paid by the
Purchaser to the Seller and then immediately returned by the Seller to the
Purchaser as a contribution to capital.
2.2 The Closing. The sale and purchase of the Receivables shall take
place at a closing (the "Closing") at the offices of [ ] on the Closing Date,
simultaneously with the closings under: (a) the [Pooling and Servicing
Agreement] [Sale and Servicing Agreement] pursuant to which (i) the Purchaser
will assign all of its right, title and interests in and to the Receivables and
other property conveyed pursuant to Section 2.1(a) to the Trust for the benefit
of the [Certificateholders] [Securityholders]; and (ii) the Purchaser will
deposit the foregoing into the Trust in exchange for [the
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Certificates][the Securities]; and (b) the Underwriting Agreement, pursuant to
which the Purchaser will sell to the underwriters named therein [the Class A
Certificates and the Class B Certificates] [the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes, the Class B Notes and the Class C Certificates].
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, etc. The Purchaser has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to execute and deliver this
Agreement and to perform the terms and provisions hereof.
(b) Due Authorization and No Violation. This Agreement has been duly
authorized, executed and delivered by the Purchaser, and constitutes a legal,
valid and binding obligation of the Purchaser, enforceable in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and to
general equitable principles. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict with,
result in a breach of any of the terms or provisions of, nor constitute (with or
without notice or lapse of time) a default under, or result in the creation or
imposition of any Lien to the Purchaser upon any of the property or assets of
the Purchaser pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease financing agreement or similar agreement or
instrument under which the Purchaser is a debtor or guarantor, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or the By-laws of the Purchaser; which breach, default, conflict,
Lien or violation in any case would have a material adverse effect on the
ability of the Seller to perform its obligations under this Agreement.
(c) No Litigation. There are no proceedings or investigations
pending to which the Purchaser is a party or of which any property of the
Purchaser is the subject, and, to the best of the Purchaser's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; other than such proceedings that would not have a material
adverse effect upon the ability of the Purchaser to perform its obligations
under, or the validity and enforceability of, this Agreement.
3.2 Representations and Warranties of the Seller. (a) The Seller
hereby represents and warrants to the Purchaser as of the date hereof and as of
the Closing Date:
(i) Organization, etc. The Seller has been duly organized
and is validly existing as a corporation in good standing under the laws
of the State of
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California and is in good standing in each jurisdiction in the United
States of America in which the conduct of its business or the ownership
of its property requires such qualification and where the failure to so
qualify would have a material adverse effect on the ability of the
Seller to perform its obligations under this Agreement.
(ii) Power and Authority. The Seller has the corporate
power and authority to sell and assign the property sold and assigned to
the Purchaser hereunder and has duly authorized such sale and assignment
to the Purchaser by all necessary corporate action. This Agreement has
been duly authorized, executed and delivered by the Seller and
constitutes a legal, valid and binding obligation of the Seller,
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equitable
principles.
(iii) No Violation. The consummation of the transaction
contemplated by this Agreement, and the fulfillment of the terms hereof,
do not conflict with, or result in a breach of any of the terms or
provisions of, nor constitute (with or without notice or lapse of time)
a default under, or result in the creation or imposition of any Lien
upon any of the property or assets of the Seller pursuant to the terms
of, any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument under which
the Seller is a debtor or guarantor, nor will such action result in any
violation of the provisions of the Articles of Incorporation or the
By-Laws of the Seller; which breach, default, conflict, Lien or
violation in any case would have a material adverse effect on the
ability of the Seller to perform its obligations under this Agreement.
(iv) No Proceedings. There are no proceedings or
investigations pending to which the Seller is a party or of which any
property of the Seller is the subject, and, to the best of the Seller's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings that would not have a material adverse effect upon the
ability of the Seller to perform its obligations under, or the validity
and enforceability of, this Agreement.
(b) The Seller makes the following representations and warranties
as to the Receivables on which the Purchaser relies in accepting the
Receivables. Such representations and warranties speak as of the execution and
delivery of this Agreement, but shall survive the sale, transfer, and assignment
of the Receivables to the Purchaser hereunder and the subsequent assignment and
transfer pursuant to the [Pooling and Servicing Agreement] [Sale and Servicing
Agreement]:
(i) Characteristics of Receivables. Each Receivable (a)
has been originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, has been fully and properly executed by the parties
thereto, has been purchased by the Seller
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from such Dealer under an existing dealer agreement with the Seller, and
has been validly assigned by such Dealer to the Seller, (b) created a
valid, subsisting and enforceable security interest in favor of the
Seller in such Financed Vehicle, (c) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are
adequate for realization against the collateral of the benefits of the
security, (d) provides 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 over an original term of no greater than ____ months,
and (e) provides for interest at the related Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in
Schedule A to this Agreement was true and correct in all material
respects as of the opening of business on the Cutoff Date; the
Receivables were selected at random from the Seller's retail installment
sale contracts (other than contracts originated in Alabama [or Hawaii])
meeting the criteria of the Trust set forth in the [Pooling and
Servicing Agreement] [Sale and Servicing Agreement]; and no selection
procedures believed to be adverse to the [Certificateholders]
[Securityholders] were utilized in selecting the Receivables.
(iii) Compliance with Law. Each Receivable, the
origination of such Receivable, and the sale of the Financed Vehicle
complied at the time it was originated or made and at the execution of
this Agreement complies in all material respects with all requirements
of applicable federal, state and local laws, and regulations thereunder,
including usury laws, the Federal Truth-in-Lending Act, the Equal Credit
Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection
Practices Act, the Federal Trade Commission Act, the Xxxxxxxx-Xxxx
Warranty Act, the Soldiers and Sailors Civil Relief Act of 1940, the
Federal Reserve Board's Regulations B and Z, and state adaptations of
the National Consumer Credit Protection Act and of the Uniform Consumer
Credit Code, state "Lemon Laws" designed to prevent fraud in the sale of
automobiles and other consumer credit laws and equal credit opportunity
and disclosure laws.
(iv) Binding Obligation. Each Receivable represents 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 the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by general equitable principles.
(v) Security Interest in Financed Vehicle. (a) Immediately
prior to the sale, assignment and transfer thereof to the Purchaser,
each Receivable was secured by a validly perfected first priority
security interest in the Financed Vehicle in favor of the Seller as
secured party or all necessary or all appropriate actions shall have
been commenced that would result in the valid perfection of a first
priority security interest in the Financed Vehicle in favor of the
Seller as secured party, and (b) as of the Cutoff Date, according to the
records of the Seller, no Financed Vehicle has been repossessed and not
reinstated.
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(vi) Receivables in Force. No Receivable has been
satisfied, subordinated or rescinded, nor has any Financed Vehicle been
released from the lien granted by the related Receivable in whole or in
part.
(vii) No Waiver. No provision of a Receivable has been
waived in such a manner that is prohibited by the provisions of the
[Pooling and Servicing Agreement] [Sale and Servicing Agreement] or that
would cause such Receivable to fail to meet all of the other
requirements and warranties made by the Seller herein with respect
thereto.
(viii) No Defenses. No Receivable is subject to any right
of rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of any Receivable, or the
exercise of any right thereunder, will not render such Receivable
unenforceable in whole or in part or subject such Receivable to any
right of rescission, setoff, counterclaim or defense, including the
defense of usury, and no such right of rescission, setoff, counterclaim
or defense has been asserted with respect thereto.
(ix) No Liens. To the Seller's knowledge, no liens have
been filed for work, labor or materials relating to a Financed Vehicle
that shall be liens prior to, or equal or coordinate with, the security
interest in the Financed Vehicle granted by the Receivable.
(x) No Default. Except for payment defaults continuing for
a period of not more than 29 days as of the Cutoff Date, no default,
breach, violation or event permitting acceleration under the terms of
any Receivable has occurred; and no continuing condition that with
notice or the lapse of time would constitute a default, breach,
violation or event permitting acceleration under the terms of any
Receivable has arisen (other than deferrals and waivers of late payment
charges or fees permitted under the [Pooling and Servicing Agreement]
[Sale and Servicing Agreement]).
(xi) Insurance. The Seller, in accordance with its
customary procedures, has determined at the time of origination of each
Receivable that the related Obligor has agreed to obtain physical damage
insurance covering the Financed Vehicle and the Obligor is required
under the terms of related Receivable to maintain such insurance.
(xii) Title. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Purchaser and that the beneficial
interest in and title to the Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or against
the Seller under any bankruptcy law. Immediately prior to the transfer
and assignment herein contemplated, the Seller had good and marketable
title to each Receivable free and clear of all Liens and, immediately
upon the transfer thereof, the Purchaser shall have good and marketable
title to each Receivable, free and clear of all Liens and rights of
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others. Each Receivable File contains the original certificate of title
(or a photocopy or image thereof) or evidence that an application for a
certificate of title has been filed.
(xiii) Lawful Assignment. No Receivable has been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to the [Pooling and Servicing Agreement][Sale
and Servicing Agreement] are unlawful, void or voidable.
(xiv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Purchaser a first priority perfected ownership interest in the
Receivables have been made or have been delivered in form suitable for
filing to the Purchaser .
(xv) Chattel Paper. Each Receivable constitutes "chattel
paper", as such term is defined in the UCC.
(xvi) Simple Interest Receivables. All of the Receivables
are Simple Interest Receivables.
(xvii) One Original. There is only one original executed
copy of each Receivable.
(xviii)No Amendments. No Receivable has been amended such
that the amount of the Obligor's Scheduled Payments has been increased.
(xix) APR. The Annual Percentage Rate of each Receivable
equals or exceeds ___%.
(xx) Maturity. As of the Cutoff Date, each Receivable had
a remaining term to maturity of not less than _____ months and not
greater than _____ months.
(xxi) Balance. Each Receivable had an original principal
balance of not more than $____________ and, as of the Cutoff Date, had a
principal balance of not less than $______ and not more than $_________.
(xxii) Delinquency. No Receivable was more than 29 days
past due as of the Cutoff Date and no Receivable has been extended by
more than two months.
(xxiii) Bankruptcy. No Obligor was the subject of a
bankruptcy proceeding (according to the records of the Seller) as of the
Cutoff Date.
(xxiv) Transfer. Each Receivable prohibits the sale or
transfer of the Financed Vehicle without the consent of the Seller.
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(xxv) New, Near-New and Used Vehicles. Each Financed
Vehicle was a new, near-new or used automobile or light-duty truck at
the time the related Obligor executed the retail installment sale
contract.
(xxvi) Origination. Each Receivable has an origination
date on or after _____________.
(xxvii)Forced-Placed Insurance Premiums. No contract
relating to any Receivable has had forced-placed insurance premiums
added to the amount financed.
(xxviii) No Fraud or Misrepresentation. To the knowledge
of the Seller, no Receivable was originated by a Dealer and sold by such
Dealer to the Seller with any conduct constituting fraud or
misrepresentation on the part of such Dealer.
(xxix) No Further Amounts Owed on the Receivables. No
further amounts are owed by the Seller to any Obligor under the
Receivables.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The obligation of the
Purchaser to purchase the Receivables and the related property described in
Section 2.1(a) is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own expense, on
or prior to the Closing Date, indicate in its computer files that the
Receivables have been sold to the Purchaser pursuant to this Agreement and shall
deliver to the Purchaser the Schedule of Receivables certified by an officer of
the Seller to be true, correct and complete in all material respects.
(c) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller shall
execute and deliver the Assignment.
(ii) Evidence of UCC Filing. On or prior to the Closing
Date, the Seller shall record and file, or deliver in a form suitable
for filing to the Purchaser, 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
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naming the Purchaser, as purchaser or secured party, and the Trust, as
assignee of the Purchaser, naming the Receivables and the other property
conveyed hereunder 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 such Receivables and
other property conveyed hereunder to the Purchaser.
(iii) Other Documents. At the Closing, the Seller shall
deliver such other documents as the Purchaser may reasonably request.
(d) Other Transactions. The transactions contemplated by the
[Pooling and Servicing Agreement] [Sale 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 and other property conveyed hereunder 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 in all material
respects on the Closing Date with the same effect as if then made, and the
Purchaser shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser
shall deliver to the Seller the Receivables Purchase Price, as provided in
Section 2.1(b).
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] [Sale and Servicing
Agreement], the [Pooling and Servicing Agreement] [Sale and Servicing Agreement]
shall govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Purchaser in the Receivables, the other property
conveyed hereunder and the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Purchaser file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) The Seller shall notify the Purchaser within 30 days after any
change of its name, identity or corporate structure in any manner that would,
could or
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might make any financing statement or continuation statement filed by the Seller
in accordance with paragraph (a) above seriously misleading within the meaning
of Section 9-402(7) of the UCC, and shall promptly file appropriate amendments
to all previously filed financing statements or continuation statements.
(c) The Seller shall notify the Purchaser of any relocation of its
principal executive office within 30 days after such relocation, if, as a result
of such relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment. The Seller shall at all times maintain its principal executive office
within the United States of America.
(d) The Seller shall maintain its computer systems so that, from and
after the time of sale hereunder of the Receivables to the Purchaser, the
Seller's master computer records that refer to a Receivable shall indicate
clearly the interest of the Purchaser in such Receivable and that such
Receivable is owned by the Purchaser.
(e) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the Seller
shall give to such prospective purchaser, lender or other transferee computer
tapes, records or print-outs that, if they shall refer in any manner whatsoever
to any Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Purchaser.
(f) The Seller shall permit the Purchaser and its agents at any time
during normal business hours upon reasonable advance notice to inspect, audit
and make copies of and abstracts from the Seller's records regarding any
Receivable.
5.2 Other Liens or Interests. Except for the conveyances hereunder
and contemplated pursuant to the [Pooling and Servicing Agreement] [Sale and
Servicing Agreement], the Seller shall not sell, pledge, assign or transfer to
any other Person, or grant, create, incur, assume or suffer to exist any Lien on
any interest therein, and the Seller shall defend the right, title and interest
of the Purchaser in, to and under such 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] [Sale and
Servicing Agreement].
5.3 Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in and to the Receivables.
5.4 Indemnification.
(a) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims
and liabilities (collectively, "Damages"), arising out of or resulting from the
failure of a
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Receivable to be originated in compliance with all requirements of law and for
any breach of any of the Seller's representations and warranties contained
herein.
(b) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all Damages arising out of or resulting from
the use, ownership or operation by the Seller or any affiliate thereof of a
Financed Vehicle.
(c) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all taxes that may at any time be asserted
against the Purchaser with respect to the transactions contemplated herein,
including, without limitation, any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes (but not including any
taxes asserted with respect to ownership of the Receivables or federal or other
taxes arising out of the transactions contemplated by this Agreement and any
related documents) and costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all Damages to the extent that such Damage
arose out of, or was imposed upon the Purchaser through, the negligence, willful
misfeasance or bad faith of the Seller in the performance of its duties under
this Agreement or by reason of reckless disregard of the Seller's obligations
and duties under this Agreement.
(e) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against all Damages arising out of or incurred in connection
with the acceptance or performance of the Seller's trusts and duties as Servicer
under the [Pooling and Servicing Agreement] [Sale and Servicing Agreement],
except to the extent that such Damages shall be due to the willful misfeasance,
bad faith or negligence of the Purchaser.
These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
(f) Promptly after receipt by a party indemnified under this Section
5.4 (an "Indemnified Party") of notice of the commencement of any action, such
Indemnified Party will, if a claim in respect thereof is to be made against the
Seller under this Section 5.4, notify the Seller of the commencement thereof. If
any such action is brought against any Indemnified Party under this Section 5.4
and it notifies the Seller of the commencement thereof, the Seller will assume
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Party (who may, unless there is, as evidenced by an opinion of counsel to the
Indemnified Party stating that there is an unwaivable conflict of interest, be
counsel to the Indemnifying Party), and the Seller will not be liable to such
Indemnified Party under this Section 5.4 for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the defense
thereof, other than reasonable costs of investigation. The obligations set forth
in this Section 5.4 shall survive the termination of this Agreement and shall
include reasonable fees and expenses of counsel and expenses of litigation. If
the Seller shall have made any indemnity payments pursuant to this Section 5.4
and the Person to or on behalf of whom such payments are made thereafter
collects any of such amounts from others, such Person
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shall promptly repay such amounts to the Seller, without interest (except to the
extent received by such Person).
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller under this
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 Trust[, the Indenture
Trustee] and the holders of the [Securities] [Certificates], that the occurrence
of a breach of any of the Seller's representations and warranties contained in
Section 3.2(b) shall constitute events obligating the Seller to repurchase
Receivables hereunder ("Repurchase Events") [and pursuant to Section 3.02 of the
Sale and Servicing Agreement], at the amount of the Warranty Purchase Payment
from the Purchaser or, as described in Section 6.4 below, from the Trust. The
repurchase obligation of the Seller shall constitute the sole remedy of the
holders of the [Securities] [Certificates], the Trust[, the Indenture Trustee]
and 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 Agreement, the
Purchaser (without the need of any further written assignment) shall assign
hereby, without recourse, representation or warranty (other than that it has
good and marketable title to such Receivables), to the Seller all the
Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
6.4 Trust. The Seller acknowledges that the Purchaser will, pursuant
to the [Pooling and Servicing Agreement] [Sale and Servicing Agreement], sell
the Receivables to the Trust and assign its rights under this Agreement to the
Trust [and that the Trust will assign such rights to the Indenture Trustee] for
the benefit of the holders of the [Securities] [Certificates], and that the
representations and warranties contained in this Agreement and the rights of the
Purchaser under Section 6.2 and the obligations under 6.3 are intended to
benefit the Trust and the holders of the [Securities] [Certificates]. The Seller
hereby consents to such sales and assignments.
6.5 Amendment. This 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 must be consented to by the [Holders
of Certificates evidencing a majority of the Voting Interests] [Holders of Notes
representing a majority of the Outstanding Amount of the Controlling Class of
Notes, or, in the case of any amendment that does not adversely affect the
Indenture Trustee or the Noteholders, the Holder of the Controlling Class of
Certificates (as evidenced by an Officer's Certificate of the Servicer and an
external Opinion of Counsel indicating that such amendment will not adversely
affect the Indenture Trustee or the Noteholders)].
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6.6 Accountants' Letters.
(a) The Seller will cause Deloitte & Touche LLP to review the
characteristics of the Receivables described in the Schedule of Receivables and
to compare those characteristics to the information with respect to the
Receivables contained in the Prospectus.
(b) The Seller will cooperate with the Purchaser and Deloitte &
Touche LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the review set forth in Section
6.6(a) and to deliver the letters required of them under the Underwriting
Agreement.
6.7 Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver hereof or thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise hereof or thereof or the exercise of any other power, right or remedy.
6.8 Notices. All communications and notices pursuant hereto to
either party shall be in writing (including via telecopy) and addressed or
delivered to it at its address (or in the case of telecopy, at its telecopy
number at such address) shown in the opening portion of this Agreement or at
such other address as may be designated by it by notice to the other party and,
if mailed or delivered, shall be deemed given when mailed or delivered, or
transmitted by telecopy.
6.9 Costs and Expenses. The Seller agrees to pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding 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.
6.10 Survival. The respective agreements, representations,
warranties and other statements by the Seller and the Purchaser set forth in or
made pursuant to this Agreement shall remain in full force and effect and will
survive the Closing.
6.11 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.12 Governing Law. This Agreement and the Assignment shall be
governed by and construed in accordance with the internal laws of the State of
New York, without reference to its conflict of law provisions (other than
Section 5-1401 of the General Obligations Law of the State of New York), and the
obligations, rights and remedies of the parties under this Agreement shall be
determined in accordance with such laws.
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6.13 Counterparts. This Agreement may be executed in two
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 Sale. Each party hereto agrees to treat the conveyance under
this Agreement for all purposes (including, without limitation, tax and
financial accounting purposes) as a sale of the Receivables on all of its
relevant books, records, tax returns, financial statements and other applicable
documents. Although the parties hereto intend that the transfer and assignment
contemplated by this Agreement be a sale, in the event such transfer and
assignment is deemed to be other than a sale, the parties intend that all
filings described in this Agreement shall give the Purchaser a first priority
perfected security interest in, to and under the Receivables and other property
conveyed hereunder and all proceeds of any of the foregoing. This Agreement
shall be deemed to be the grant of a security interest from the Seller to the
Purchaser, and the Purchaser shall have all the rights, powers and privileges of
a secured party under the UCC.
IN WITNESS WHEREOF, the parties hereto hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the ___day of ________.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
-----------------------------------------------
Name:
Title:
[NISSAN AUTO RECEIVABLES CORPORATION]
[NISSAN AUTO RECEIVABLES CORPORATION II]
By:
-----------------------------------------------
Name:
Title:
ACCEPTED:
----------------------------------,
not in its individual capacity but
solely as Trustee
By:
-----------------------------------------------
Name:
Title:
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Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of ___________________________, (the "Purchase Agreement"), between the
undersigned (the "Seller") and [Nissan Auto Receivables Corporation][Nissan Auto
Receivables Corporation II] (the "Purchaser"), the undersigned does hereby sell,
assign, transfer and otherwise convey unto the Purchaser, without recourse, the
following:
(i) all right, title and interest of the Seller in and to
the Receivables listed on Schedule A hereto (including all related
Receivable Files) and all monies due thereon or paid thereunder or in
respect thereof after the Cutoff Date;
(ii) the right of the Seller in the security interests in
the Financed Vehicles granted by the Obligors pursuant to the
Receivables and any related property;
(iii) the right of the Seller in any proceeds from claims
on any physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles or Obligors;
(iv) the right of the Seller to receive payments in
respect of any Dealer Recourse with respect to the Receivables;
(v) the right of the Seller to realize upon any property
(including the right to receive future Net Liquidation Proceeds) that
shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums and
other amounts relating to insurance policies and other items financed
under the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds 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.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to such terms in the Purchase Agreement.
Exhibit A
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IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of the ___ day of ____________.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
-----------------------------------------------
Name:
Title:
Exhibit B
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SCHEDULE A
Schedule of Receivables
See schedule attached to the [Pooling and Servicing Agreement][Sale and
Servicing Agreement].
Annex A
