EXHIBIT 4.3
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 19th day of August,
2002, 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 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, near-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 Sale and Servicing
Agreement (as hereinafter defined), to the NISSAN AUTO RECEIVABLES 2002-C OWNER
TRUST (the "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 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.
"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 August 19, 2002.
"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).
"Notes" shall have the meaning specified in the introductory
paragraphs of this Agreement.
"Prospectus" has the meaning assigned to such term in the
Underwriting Agreement.
"Purchaser" means Nissan Auto Receivables Corporation II, a
Delaware corporation, and its successors and assigns.
"Rating Agency" means Standard & Poor's Rating Services, a
division of The XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service, Inc.
or any successors thereto.
"Receivable" means any retail installment sale contract that
appears on the Schedule of Receivables.
"Receivables Purchase Price" means $1,171,514,841.76.
"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 II, as seller, Nissan
Motor Acceptance Corporation, as servicer, and the Trust dated as of August 19,
2002, as the same may be amended, amended and restated, supplemented or
modified.
"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 2002-C Owner Trust, a
Delaware business trust.
"Trust Agreement" means the Trust Agreement dated as of April
26, 2002, as amended by the Amended and Restated Trust Agreement by and between
Nissan Auto Receivables Corporation II, as seller, and Wilmington Trust Company,
as owner trustee, dated as of August 19, 2002, as the same may be amended,
amended and restated, supplemented or modified.
"UCC" means the Uniform Commercial Code as in effect in the
relevant jurisdiction.
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"Underwriting Agreement" means the Underwriting Agreement by and
between X.X. Xxxxxx Securities Inc., as representative of the several
underwriters, and the Purchaser, dated August 8, 2002.
"Yield Supplement Agreement" means the agreement, dated as of
the date of this Agreement, among the Purchaser, the Seller, Xxxxx Fargo Bank
Minnesota, National Association, 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 hereby sells to the Purchaser, and the Purchaser hereby
purchases 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 Sale and 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;
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(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 92.750% of the Receivables Purchase Price shall be
paid to the Seller in cash by federal wire transfer (same day) funds. The
remaining approximately 7.250% 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 O'Melveny & Xxxxx LLP,
000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx, XX 00000 on the Closing Date, simultaneously
with the closings under: (a) the 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 Securityholders; and (ii) the Purchaser will
deposit the foregoing into the Trust in exchange for the Securities; and (b) the
Underwriting Agreement, pursuant to which the Purchaser will sell to the
underwriters named therein the Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes, and the Class A-4 Notes.
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
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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 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 Purchaser 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 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.
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(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 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 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 63 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 from the Seller's retail installment sale
contracts (other than contracts originated in Alabama, Hawaii or
Vermont) meeting the criteria of the Trust set forth in the Sale and
Servicing Agreement; and no selection procedures believed to be adverse
to the 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.
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(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 the possession
thereof not reinstated.
(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 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 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
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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 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. To the extent that the transfer and
assignment contemplated by this Agreement is deemed to be other than a
sale, this Agreement and all filings described under this Agreement
creates a valid and continuing security interest (as defined in the
applicable UCC) in the Receivables in favor of the Purchaser, which
security interest is prior to all other Liens, and is enforceable as
such against creditors of and purchasers from the Seller
(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 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 "tangible
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 0.00%.
(xx) Maturity. As of the Cutoff Date, each Receivable had a
remaining term to maturity of not less than 5 payments and not greater
than 58 payments.
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(xxi) Balance. Each Receivable had an original principal balance
of not more than $50,000 and, as of the Cutoff Date, had a principal
balance of not less than $2,000 and not more than $47,000.
(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.
(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 February 21, 1998.
(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.
(xxx) No Pledge. Other than the security interest granted to the
Purchaser pursuant to this Agreement, the Seller has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed
any of the Receivables (except that certain Receivables were conveyed to
Nissan Warehouse LLC and reconveyed by Nissan Warehouse LLC to the
Seller in connection with the transactions contemplated under the Note
Purchase, Security and Administration Agreement (Retail Installment
Receivables), dated as of August 9, 2001, as amended, by and among
Nissan Warehouse LLC, NMAC, Xxxxxx Guaranty Trust Company of New York
and certain purchasers and funding agents specified therein). The Seller
has not authorized the filing of and is not aware of any financing
statements against the Seller that include a description of collateral
covering the Receivables other than any financing statement relating to
the security interest granted to the Purchaser hereunder or a financing
statement as to which the security interest covering the Receivables has
been released. The Seller is not aware of any judgment or tax lien
filings against the Seller.
(xxxi) Receivable Files. There is no more than one original copy
of each of the documents or instruments constituting the Receivable
Files, and to the extent that an original copy has been maintained, the
Seller has in its possession all such original
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copies that constitute or evidence the Receivables. The Receivable Files
that constitute or evidence the Receivables do not have any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed by the Seller to any Person other than the Purchaser. All
financing statements filed or to be filed against the Seller in favor of
the Purchaser in connection herewith describing the Receivables contain
a statement to the following effect: "A purchase of or security interest
in any collateral described in this financing statement, except as
provided in the Purchase Agreement, will violate the rights of the
Purchaser."
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 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
Sale and Servicing Agreement shall be consummated on the Closing Date.
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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 Sale and Servicing Agreement, the 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 might make any financing statement or continuation statement
filed by the Seller in accordance with paragraph (a) above seriously misleading
within the meaning of Sections 9-506 and 9-507 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 or state of incorporation 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.
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(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 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
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 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.
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(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 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 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, 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, 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
13
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 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 Notes, and that the representations and warranties contained in this
Agreement and the rights of the Purchaser under Section 6.2 and the obligations
under Section 6.3 are intended to benefit the Trust and the holders of the
Securities. 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 Notes representing a majority of the Outstanding Amount of the
Notes, voting as a single class, or, in the case of any amendment that does not
adversely affect the Indenture Trustee or the Noteholders (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), the Holders of a majority of the Certificate Balance.
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.
Notwithstanding anything to the contrary, the Purchaser shall not waive any
breach of representations and warranties set forth in Sections 3.2(b)(v),(xii),
(xiv), (xv), (xxx) or (xxxi).
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
14
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.
6.13 Counterparts. This Agreement may be executed in multiple
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.
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IN WITNESS WHEREOF, the parties hereto hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the 19th day of August, 2002.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
NISSAN AUTO RECEIVABLES CORPORATION II
By:
-------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
S-1
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement,
dated as of August 19, 2002 (the "Purchase Agreement"), between the undersigned
(the "Seller") and 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.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of the 19th day of August, 2002.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By:
-------------------------------------
Name:
Title:
A-2
SCHEDULE A
Schedule of Receivables
See schedule attached to the Sale and Servicing Agreement.
Schedule A
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN DEFINITIONS
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables....................................................3
2.2 The Closing.........................................................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Warranties of the Purchaser.........................................................4
3.2 Representations and Warranties of the Seller........................................5
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser..........................................10
4.2 Conditions to Obligation of the Seller.............................................11
ARTICLE V
COVENANTS OF THE SELLER
5.1 Protection of Right, Title and Interest............................................11
5.2 Other Liens or Interests...........................................................12
5.3 Costs and Expenses.................................................................12
5.4 Indemnification....................................................................12
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller..............................................................13
6.2 Repurchase Events..................................................................13
6.3 Seller's Assignment of Purchased Receivables.......................................14
6.4 Trust..............................................................................14
6.5 Amendment..........................................................................14
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TABLE OF CONTENTS
CONTINUED
PAGE
6.6 Accountants' Letters...............................................................14
6.7 Waivers............................................................................14
6.8 Notices............................................................................14
6.9 Costs and Expenses.................................................................15
6.10 Survival...........................................................................15
6.11 Headings and Cross-References......................................................15
6.12 Governing Law......................................................................15
6.13 Counterparts.......................................................................15
6.14 Sale...............................................................................15
-ii-
