EXHIBIT 4.3
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 13th day of January,
2005, 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 2005-A 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 January 13, 2005.
(Nissan 2005-A Purchase Agreement)
"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 $1,451,722,475.62.
"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 January 13,
2005, 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 2005-A Owner Trust, a
Delaware statutory trust.
"Trust Agreement" means the Trust Agreement dated as of December 1,
2004, 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 January 13, 2005, 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.
"Underwriting Agreement" means the Underwriting Agreement by and
between Citigroup Global Markets Inc., as representative of the several
underwriters, and the Purchaser, dated January 5, 2005.
(Nissan 2005-A Purchase Agreement)
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With respect to all terms in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include the
other genders; references to "writing" include printing, typing, lithography and
other means of reproducing words in a visible form; references to agreements and
other contractual instruments include all subsequent amendments, amendments and
restatements, and supplements thereto or changes therein entered into in
accordance with their respective terms and not prohibited by this Agreement;
references to Persons include their permitted successors and assigns; references
to laws include their amendments and supplements, the rules and regulations
thereunder and any successors thereto; and the term "including" means "including
without limitation."
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
On the Closing Date, subject to the terms and conditions of this
Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser agrees
to purchase from the Seller, the Receivables and the other property relating
thereto (as defined below).
(a) Transfer of Receivables. On the Closing Date and
simultaneously with the transactions pursuant to the 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;
(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 Cut-off Date; and
(vii) all proceeds of the foregoing;
(Nissan 2005-A Purchase Agreement)
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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 Cut-off 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 94.843% of the Receivables Purchase Price shall be
paid to the Seller in cash by federal wire transfer (same day) funds. The
remaining approximately 5.157% 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 and the Class A-4 Notes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Warranties of the Purchaser. The Purchaser hereby represents
and warrants to the Seller as of the date hereof and as of the Closing Date:
(a) Organization, etc. The Purchaser has been duly organized and
is validly existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to execute and deliver
this Agreement and to perform the terms and provisions hereof.
(b) Due Authorization and No Violation. This Agreement has been
duly authorized, executed and delivered by the Purchaser, and constitutes a
legal, valid and binding obligation of the Purchaser, enforceable in accordance
with its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and to
general equitable principles. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict with,
result in a breach of any of the terms or provisions of, nor constitute (with or
without notice or 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,
(Nissan 2005-A Purchase Agreement)
4
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, 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.
(Nissan 2005-A Purchase Agreement)
5
(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 Cut-off Date; the Receivables were
selected from the Seller's retail installment sale contracts (other than
contracts originated in Alabama, Maine, Maryland or Pennsylvania) 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
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.
(Nissan 2005-A Purchase Agreement)
6
(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 Cut-off 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 Cut-off 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
(Nissan 2005-A Purchase Agreement)
7
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.
(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 Cut-off Date, each Receivable had a
remaining term to maturity of not less than 4 payments and not greater
than 60 payments.
(xxi) Balance. Each Receivable had an original principal
balance of not more than $50,000 and, as of the Cut-off Date, had a
principal balance of not less than $2,000.50 and not more than $47,205.14.
(xxii) Delinquency. No Receivable was more than 29 days past
due as of the Cut-off Date and no Receivable has been extended by more
than two months.
(Nissan 2005-A Purchase Agreement)
8
(xxiii) Bankruptcy. No Obligor was the subject of a bankruptcy
proceeding (according to the records of the Seller) as of the Cut-off
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 March 29, 2000.
(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 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
(Nissan 2005-A Purchase Agreement)
9
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.
(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.
(Nissan 2005-A Purchase Agreement)
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4.2 Conditions to Obligation of the Seller. The obligation of the
Seller to sell the Receivables and other property conveyed hereunder to the
Purchaser is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Purchaser hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Purchaser shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the Purchaser
shall deliver to the Seller the Receivables Purchase Price, as provided in
Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided, however,
that, to the extent that any provision of this ARTICLE V conflicts with any
provision of the Sale and Servicing Agreement, the Sale and Servicing Agreement
shall govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing statements
and cause to be executed and filed such continuation statements, all in such
manner and in such places as may be required by law fully to preserve, maintain
and protect the interest of the Purchaser in the Receivables, the other property
conveyed hereunder and the proceeds thereof. The Seller shall deliver (or cause
to be delivered) to the Purchaser file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) The Seller shall notify the Purchaser within 30 days after any
change of its name, identity or corporate structure in any manner that would,
could or might make any financing statement or continuation statement filed by
the Seller in accordance with paragraph (a) above seriously misleading within
the meaning of Sections 9-506 and 9-507 of the UCC, and shall promptly file
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller shall notify the Purchaser of any relocation of its
principal executive office or state of incorporation within 30 days after such
relocation, if, as a result of such relocation, the applicable provisions of the
UCC would require the filing of any amendment of any previously filed financing
or continuation statement or of any new financing statement and shall promptly
file any such amendment. The Seller shall at all times maintain its principal
executive office within the United States of America.
(d) The Seller shall maintain its computer systems so that, from
and after the time of sale hereunder of the Receivables to the Purchaser, the
Seller's master computer records that refer to a Receivable shall indicate
clearly the interest of the Purchaser in such Receivable and that such
Receivable is owned by the Purchaser.
(Nissan 2005-A Purchase Agreement)
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(e) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the Seller
shall give to such prospective purchaser, lender or other transferee computer
tapes, records or print-outs that, if they shall refer in any manner whatsoever
to any Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Purchaser.
(f) The Seller shall permit the Purchaser and its agents at any
time during normal business hours upon reasonable advance notice to inspect,
audit and make copies of and abstracts from the Seller's records regarding any
Receivable.
5.2 Other Liens or Interests. Except for the conveyances hereunder
and contemplated pursuant to the Sale and Servicing Agreement, the Seller shall
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any interest therein, and the
Seller shall defend the right, title and interest of the Purchaser in, to and
under such Receivables against all claims of third parties claiming through or
under the Seller; provided, however, that the Seller's obligations under this
Section 5.2 shall terminate upon the termination of the Trust pursuant to the
Sale and Servicing Agreement.
5.3 Costs and Expenses. The Seller agrees to pay all reasonable
costs and disbursements in connection with the perfection, as against all third
parties, of the Purchaser's right, title and interest in and to the Receivables.
5.4 Indemnification.
(a) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims
and liabilities (collectively, "Damages"), arising out of or resulting from the
failure of a Receivable to be originated in compliance with all requirements of
law and for any breach of any of the Seller's representations and warranties
contained herein.
(b) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all Damages arising out of or resulting from
the use, ownership or operation by the Seller or any affiliate thereof of a
Financed Vehicle.
(c) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all taxes that may at any time be asserted
against the Purchaser with respect to the transactions contemplated herein,
including, without limitation, any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes (but not including any
taxes asserted with respect to ownership of the Receivables or federal or other
taxes arising out of the transactions contemplated by this Agreement and any
related documents) and costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all Damages to the extent that such Damage
arose out of, or was imposed upon the Purchaser through, the negligence, willful
misfeasance or bad faith of the Seller in the performance of its duties under
this Agreement or by reason of reckless disregard of the Seller's obligations
and duties under this Agreement.
(Nissan 2005-A Purchase Agreement)
12
(e) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against all Damages arising out of or incurred in connection
with the acceptance or performance of the Seller's trusts and duties as Servicer
under the Sale and Servicing Agreement, except to the extent that such Damages
shall be due to the willful misfeasance, bad faith or negligence of the
Purchaser.
These indemnity obligations shall be in addition to any obligation
that the Seller may otherwise have.
(f) Promptly after receipt by a party indemnified under this
Section 5.4 (an "Indemnified Party") of notice of the commencement of any
action, such Indemnified Party will, if a claim in respect thereof is to be made
against the Seller under this Section 5.4, notify the Seller of the commencement
thereof. If any such action is brought against any Indemnified Party under this
Section 5.4 and it notifies the Seller of the commencement thereof, the Seller
will assume the defense thereof, with counsel reasonably satisfactory to such
Indemnified Party (who may, unless there is, as evidenced by an opinion of
counsel to the Indemnified Party stating that there is an unwaivable conflict of
interest, be counsel to the Indemnifying Party), and the Seller will not be
liable to such Indemnified Party under this Section 5.4 for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, other than reasonable costs of investigation. The obligations
set forth in this Section 5.4 shall survive the termination of this Agreement
and shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Seller shall have made any indemnity payments pursuant to
this Section 5.4 and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall promptly
repay such amounts to the Seller, without interest (except to the extent
received by such Person).
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2 Repurchase Events. The Seller hereby covenants and agrees with
the Purchaser for the benefit of the Purchaser, the Trust, the Indenture Trustee
and the holders of the Securities, that the occurrence of a breach of any of the
Seller's representations and warranties contained in Section 3.2(b) shall
constitute events obligating the Seller to repurchase Receivables hereunder
("Repurchase Events") and pursuant to Section 3.02 of the Sale and Servicing
Agreement, at the amount of the Warranty Purchase Payment from the Purchaser or,
as described in Section 6.4 below, from the Trust. The repurchase obligation of
the Seller shall constitute the sole remedy of the holders of the Securities,
the Trust, the Indenture Trustee and the Purchaser against the Seller with
respect to any Repurchase Event.
6.3 Seller's Assignment of Purchased Receivables. With respect to
all Receivables repurchased by the Seller pursuant to this Agreement, the
Purchaser (without the need of any further written assignment) shall assign
hereby, without recourse, representation or warranty (other than that it has
good and marketable title to such Receivables), to the Seller all
(Nissan 2005-A Purchase Agreement)
13
the Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
6.4 Trust. The Seller acknowledges that the Purchaser will,
pursuant to the Sale and Servicing Agreement, sell the Receivables to the Trust
and assign its rights under this Agreement to the Trust and that the Trust will
assign such rights to the Indenture Trustee for the benefit of the holders of
the Notes, and that the representations and warranties contained in this
Agreement and the rights of the Purchaser under Section 6.2 and the obligations
under Section 6.3 are intended to benefit the Trust and the holders of the
Securities. The Seller hereby consents to such sales and assignments.
6.5 Amendment. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the Seller and the Purchaser;
provided, however, that any such amendment must be consented to by the Holders
of Notes representing a majority of the Outstanding Amount of the Notes, voting
as a single class, or, in the case of any amendment that does not adversely
affect the Indenture Trustee or the Noteholders (as evidenced by an Officer's
Certificate of the Servicer and an external Opinion of Counsel indicating that
such amendment will not adversely affect the Indenture Trustee or the
Noteholders), the Holders of a majority of the Certificate Balance.
6.6 Accountants' Letters.
(a) The Seller will cause Deloitte & Touche LLP to review the
characteristics of the Receivables described in the Schedule of Receivables and
to compare those characteristics to the information with respect to the
Receivables contained in the Prospectus.
(b) The Seller will cooperate with the Purchaser and Deloitte &
Touche LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the review set forth in Section
6.6(a) and to deliver the letters required of them under the Underwriting
Agreement.
6.7 Waivers. No failure or delay on the part of the Purchaser in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver hereof or thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise hereof or thereof or the exercise of any other power, right or remedy.
Notwithstanding anything to the contrary, the Purchaser shall not waive any
breach of representations and warranties set forth in Sections 3.2(b)(v),(xii),
(xiv), (xv), (xxx) or (xxxi).
6.8 Notices. All communications and notices pursuant hereto to
either party shall be in writing (including via telecopy) and addressed or
delivered to it at its address (or in the case of telecopy, at its telecopy
number at such address) shown in the opening portion of this Agreement or at
such other address as may be designated by it by notice to the other party and,
if mailed or delivered, shall be deemed given when mailed or delivered, or
transmitted by telecopy.
6.9 Costs and Expenses. The Seller agrees to pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in
(Nissan 2005-A Purchase Agreement)
14
connection with the perfection as against third parties of the Purchaser's
right, title and interest in and to the Receivables and the enforcement of any
obligation of the Seller hereunder.
6.10 Survival. The respective agreements, representations,
warranties and other statements by the Seller and the Purchaser set forth in or
made pursuant to this Agreement shall remain in full force and effect and will
survive the Closing.
6.11 Headings and Cross-References. The various headings in this
Agreement are included for convenience only and shall not affect the meaning or
interpretation of any provision of this Agreement. References in this Agreement
to Section names or numbers are to such Sections of this Agreement.
6.12 Governing Law. This Agreement and the Assignment shall be
governed by and construed in accordance with the internal laws of the State of
New York, without reference to its conflict of law provisions (other than
Section 5-1401 of the General Obligations Law of the State of New York), and the
obligations, rights and remedies of the parties under this Agreement shall be
determined in accordance with such laws.
6.13 Counterparts. This Agreement may be executed in multiple
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
6.14 Sale. Each party hereto agrees to treat the conveyance under
this Agreement for all purposes (including, without limitation, tax and
financial accounting purposes) as a sale of the Receivables on all of its
relevant books, records, tax returns, financial statements and other applicable
documents. Although the parties hereto intend that the transfer and assignment
contemplated by this Agreement be a sale, in the event such transfer and
assignment is deemed to be other than a sale, the parties intend that all
filings described in this Agreement shall give the Purchaser a first priority
perfected security interest in, to and under the Receivables and other property
conveyed hereunder and all proceeds of any of the foregoing. This Agreement
shall be deemed to be the grant of a security interest from the Seller to the
Purchaser, and the Purchaser shall have all the rights, powers and privileges of
a secured party under the UCC.
(Nissan 2005-A Purchase Agreement)
15
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 January, 2005.
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
(Nissan 2005-A Purchase Agreement)
S-1
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated
as of January 13, 2005 (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 Cut-off 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 Cut-off 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.
(Nissan 2005-A Purchase Agreement)
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the 13th day of January, 2005.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By:___________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
(Nissan 2005-A Purchase Agreement)
A-2
SCHEDULE A
Schedule of Receivables
See schedule attached to the Sale and Servicing Agreement.
(Nissan 2005-A Purchase Agreement)
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
(Nissan 2005-A Purchase Agreement)
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TABLE OF CONTENTS
(CONTINUED)
PAGE
6.6 Accountants' Letters...................................................... 14
6.7 Waivers................................................................... 14
6.8 Notices................................................................... 14
6.9 Costs and Expenses........................................................ 15
6.10 Survival.................................................................. 15
6.11 Headings and Cross-References............................................. 15
6.12 Governing Law............................................................. 15
6.13 Counterparts.............................................................. 15
6.14 Sale...................................................................... 15
EXHIBIT A....................................................................... A-1
SCHEDULE A...................................................................... Schedule A
(Nissan 2005-A Purchase Agreement)
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