EXHIBIT 4.4
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 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 [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 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.
1 (Purchase Agreement)
"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 [ ].
"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.
"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 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.
"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 [ - ] Owner
Trust, a Delaware statutory 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.]
2 (Purchase Agreement)
"UCC" means the Uniform Commercial Code as in effect in the
relevant jurisdiction.
"Underwriting Agreement" means the Underwriting Agreement by
and between [ ] and the Purchaser, dated [ ____, ____].
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
SECTION 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 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;
3 (Purchase Agreement)
(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][evidenced by an advance under a
subordinated non-recourse promissory note].
SECTION 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 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, the Class B Notes and the Class C
Certificates].
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 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
4 (Purchase Agreement)
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 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.
SECTION 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
5 (Purchase Agreement)
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 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 [____] 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
Maine]) 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.
6 (Purchase Agreement)
(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 Servicemembers Civil Relief Act, the
Federal Reserve Board's Regulations B and Z, the Xxxxx-Xxxxx-Xxxxxx
Act, 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 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.
7 (Purchase Agreement)
(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 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 actions have been taken,
and all filings (including, without limitation, UCC filings) necessary
in any jurisdiction have been made or have been delivered in form
suitable for filing to the Purchaser to give the Purchaser a first
priority perfected ownership interest in the Receivables.
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(xv) Chattel Paper. Each Receivable constitutes
"tangible chattel paper" [or "electronic chattel paper"], as such
term[s] [is] [are] 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 [_____] payments and
not greater than [_____] payments.
(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.
(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
9 (Purchase Agreement)
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 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."
(xxxii) [No Government Obligors. None of the
Receivables shall be due from the United States or any state, or from
any agency, department, subdivision or instrumentality thereof.]
10 (Purchase Agreement)
ARTICLE IV
CONDITIONS
SECTION 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.
SECTION 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
11 (Purchase Agreement)
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:
SECTION 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.
(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
12 (Purchase Agreement)
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.
SECTION 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.
SECTION 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.
SECTION 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.
13 (Purchase 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 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
SECTION 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.
SECTION 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.
14 (Purchase Agreement)
SECTION 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.
SECTION 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 Securities, 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.
SECTION 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
Controlling Class of Notes, 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 the controlling Class of Certificates].
SECTION 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.
SECTION 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).
15 (Purchase Agreement)
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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.
SECTION 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.
16 (Purchase Agreement)
SECTION 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 II
By:
----------------------------------
Name:
Title:
ACCEPTED:
----------------------------------,
not in its individual capacity but
solely as Trustee
By:
----------------------------------
Name:
Title:
17 (Purchase Agreement)
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 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 (Purchase Agreement)
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 A (Purchase Agreement)
SCHEDULE A
Schedule of Receivables
See schedule attached to the Sale and Servicing Agreement.
Annex A (Purchase Agreement)
TABLE OF CONTENTS
PAGE
ARTICLE I CERTAIN DEFINITIONS ................................... 1
ARTICLE II PURCHASE AND SALE OF RECEIVABLES ...................... 3
SECTION 2.1 Purchase and Sale of Receivables .................. 3
SECTION 2.2 The Closing ....................................... 4
ARTICLE III REPRESENTATIONS AND WARRANTIES ........................ 4
SECTION 3.1 Warranties of the Purchaser ....................... 4
SECTION 3.2 Representations and Warranties of the Seller ...... 5
ARTICLE IV CONDITIONS ............................................ 11
SECTION 4.1 Conditions to Obligation of the Purchaser ......... 11
SECTION 4.2 Conditions to Obligation of the Seller ............ 11
ARTICLE V COVENANTS OF THE SELLER ............................... 12
SECTION 5.1 Protection of Right, Title and Interest ........... 12
SECTION 5.2 Other Liens or Interests .......................... 13
SECTION 5.3 Costs and Expenses ................................ 13
SECTION 5.4 Indemnification ................................... 13
ARTICLE VI MISCELLANEOUS PROVISIONS .............................. 14
SECTION 6.1 Obligations of Seller ............................. 14
SECTION 6.2 Repurchase Events ................................. 14
SECTION 6.3 Seller's Assignment of Purchased Receivables ...... 15
SECTION 6.4 Trust ............................................. 15
SECTION 6.5 Amendment ......................................... 15
SECTION 6.6 Accountants' Letters .............................. 15
SECTION 6.7 Waivers ........................................... 15
SECTION 6.8 Notices ........................................... 16
SECTION 6.9 Costs and Expenses ................................ 16
SECTION 6.10 Survival ......................................... 16
SECTION 6.11 Headings and Cross-References .................... 16
SECTION 6.12 Governing Law .................................... 16
SECTION 6.13 Counterparts ..................................... 16
SECTION 6.14 Sale ............................................. 17
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TABLE OF CONTENTS
(continued)
PAGE
Exhibit A .......................................................... A
Schedule A ......................................................... A
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