Exhibit 4.3
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 24th day of June, 2004, 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 2004-B 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 June 24, 2004.
(Nissan 2004-B Purchase Agreement)
"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 $1,457,167,926.40.
"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 June 24, 2004, 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 2004-B Owner Trust, a Delaware
statutory trust.
"Trust Agreement" means the Trust Agreement dated as of January 23, 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 June 24, 2004, 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.
2 (Nissan 2004-B Purchase Agreement)
"Underwriting Agreement" means the Underwriting Agreement by and between
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as representative of the
several underwriters, and the Purchaser, dated June 18, 2004.
"Yield Supplement Agreement" means the agreement, dated as of the date of
this Agreement, among the Purchaser, the Seller, Xxxxx Fargo Bank, 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;
3 (Nissan 2004-B Purchase Agreement)
(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 94.763% of the Receivables Purchase Price shall be paid to the
Seller in cash by federal wire transfer (same day) funds. The remaining
approximately 5.237% 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
4 (Nissan 2004-B Purchase Agreement)
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,
5 (Nissan 2004-B Purchase Agreement)
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, Arizona, 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.
6 (Nissan 2004-B Purchase Agreement)
(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
7 (Nissan 2004-B Purchase Agreement)
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 60 payments.
8 (Nissan 2004-B Purchase Agreement)
(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 $47,500.
(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 September 30, 1999.
(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
9 (Nissan 2004-B Purchase Agreement)
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.
10 (Nissan 2004-B Purchase Agreement)
(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.
11 (Nissan 2004-B Purchase Agreement)
(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.
12 (Nissan 2004-B Purchase Agreement)
(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 (Nissan 2004-B Purchase Agreement)
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 (Nissan 2004-B Purchase Agreement)
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.
15 (Nissan 2004-B Purchase Agreement)
IN WITNESS WHEREOF, the parties hereto hereby have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
24th day of June, 2004.
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 (Nissan 2004-B Purchase Agreement)
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement, dated as of
June 24, 2004 (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 (Nissan 2004-B Purchase Agreement)
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed as of the [__]th day of June, 2004.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By: ___________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
A-2 (Nissan 2004-B Purchase Agreement)
SCHEDULE A
Schedule of Receivables
See schedule attached to the Sale and Servicing Agreement.
Schedule A
(Nissan 2004-B 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......................................................... 00
-x- (Xxxxxx 0000-X Xxxxxxxx Agreement)
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
-ii- (Nissan 2004-B Purchase Agreement)
