EXHIBIT 4.3
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 13th day of
November, 2003, 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 2003-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 November 13, 2003.
"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, a division of The
XxXxxx-Xxxx Companies, Inc., or Xxxxx'x Investors Service or any successors
thereto.
"Receivable" means any retail installment sale contract that
appears on the Schedule of Receivables.
"Receivables Purchase Price" means $1,962,517,760.59.
"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 November
13, 2003, 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 2003-C Owner Trust,
a Delaware statutory trust.
"Trust Agreement" means the Trust Agreement dated as of
October 4, 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 November 13, 2003, 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 Xxxxxx Xxxxxxx & Co. Incorporated, as representative of the several
underwriters, and the Purchaser, dated November 5, 2003.
"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 91.103% of the Receivables Purchase Price shall be
paid to the Seller in cash by federal wire transfer (same day) funds. The
remaining approximately 8.897% of the Receivables Purchase Price shall be
evidenced by an advance under a subordinated non-recourse promissory note.
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, the Class A-4 Notes and the Class A-5 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 lapse of time) a
default under, or result in the creation or imposition of any Lien upon any of
the
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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.
(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,
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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 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.
(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 3 payments
and not greater than 57 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 December 30, 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."
(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.
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.
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(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.
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.
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(d) The Seller shall maintain its computer systems so
that, from and after the time of sale hereunder of the Receivables to the
Purchaser, the Seller's master computer records that refer to a Receivable shall
indicate clearly the interest of the Purchaser in such Receivable and that such
Receivable is owned by the Purchaser.
(e) If at any time the Seller shall propose to sell,
grant a security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the Seller
shall give to such prospective purchaser, lender or other transferee computer
tapes, records or print-outs that, if they shall refer in any manner whatsoever
to any Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Purchaser.
(f) The Seller shall permit the Purchaser and its agents
at any time during normal business hours upon reasonable advance notice to
inspect, audit and make copies of and abstracts from the Seller's records
regarding any Receivable.
5.2 Other Liens or Interests. Except for the conveyances
hereunder and contemplated pursuant to the 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.
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(d) The Seller shall defend, indemnify and hold harmless
the Purchaser from and against any and all Damages to the extent that such
Damage arose out of, or was imposed upon the Purchaser through, the negligence,
willful misfeasance or bad faith of the Seller in the performance of its duties
under this Agreement or by reason of reckless disregard of the Seller's
obligations and duties under this Agreement.
(e) The Seller shall defend, indemnify and hold harmless
the Purchaser from and against all Damages arising out of or incurred in
connection with the acceptance or performance of the Seller's trusts and duties
as Servicer under the 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
13
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 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
14
Agreement or at such other address as may be designated by it by notice to the
other party and, if mailed or delivered, shall be deemed given when mailed or
delivered, or transmitted by telecopy.
6.9 Costs and Expenses. The Seller agrees to pay all
expenses incident to the performance of its obligations under this Agreement and
the Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the Receivables and the enforcement of any obligation of the Seller
hereunder.
6.10 Survival. The respective agreements, representations,
warranties and other statements by the Seller and the Purchaser set forth in or
made pursuant to this Agreement shall remain in full force and effect and will
survive the Closing.
6.11 Headings and Cross-References. The various headings
in this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such Sections of this Agreement.
6.12 Governing Law. This Agreement and the Assignment
shall be governed by and construed in accordance with the internal laws of the
State of New York, without reference to its conflict of law provisions (other
than Section 5-1401 of the General Obligations Law of the State of New York),
and the obligations, rights and remedies of the parties under this Agreement
shall be determined in accordance with such laws.
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 13th day of November, 2003.
NISSAN MOTOR ACCEPTANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
NISSAN AUTO RECEIVABLES CORPORATION II
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
S-1
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement,
dated as of November 13, 2003 (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 13th day of November, 2003.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By:
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
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
-i-
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
Exhibit A - Assignment
Schedule A - Schedule of Receivables
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