EXHIBIT 4.5
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this ______ day of
____________, by and between NISSAN MOTOR ACCEPTANCE CORPORATION, a
California corporation (the "Seller"), having its principal executive office
at 000 X. 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, and NISSAN AUTO
RECEIVABLES CORPORATION, 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 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) are to be sold by
the Seller to the Purchaser, which Receivables will be transferred by the
Purchaser pursuant to the [Pooling and Servicing Agreement (as hereinafter
defined)] [Sale and Servicing Agreement (as hereinafter defined)], to the
NISSAN AUTO RECEIVABLES - [GRANTOR] [OWNER] TRUST to be created thereunder,
which Trust 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 [Pooling and Servicing Agreement] [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.
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"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 -.
"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).
"Distribution Date" means, for each Collection Period, the 15th day
of the following month or, if such 15th day is not a Business Day, the next
succeeding Business Day.
["Notes" shall have the meaning specified in the introductory
paragraphs of this Agreement.]
["Pooling and Servicing Agreement" means the Pooling and Servicing
Agreement by and among the Seller, as servicer and in its individual capacity,
the Purchaser, and -, as trustee, dated as of -, as the same may be amended,
amended and restated, supplemented or modified.]
"Prospectus" has the meaning assigned to such term in the Underwriting
Agreement.
"Purchaser" means Nissan Auto Receivables Corporation, a Delaware
corporation, and its successors and assigns.
"Rating Agency" means - or any successors thereto.
"Receivable" means any retail installment sale contract that appears
on the Schedule of Receivables.
"Receivables Purchase Price" means $-.
"Repurchase Event" shall have the meaning specified in Section 6.2.
["SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement
by and among Nissan Auto Receivables Corporation, as seller, Nissan Motor
Acceptance Corporation, as servicer, and the Trust dated as of -, as the same
may be amended, amended and restated, supplemented or modified.]
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"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 - [Grantor] [Owner] Trust.
["Trust Agreement" means the Amended and Restated Trust Agreement by
and between Nissan Auto Receivables Corporation, as seller, and -, as trustee,
dated as of -, as the same may be amended, amended and restated, supplemented
or modified.]
"Underwriting Agreement" means the Underwriting Agreement by and
between - and the Purchaser, dated -.
With respect to all terms in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include
the other genders; references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
subsequent amendments, amendments and restatements and supplements thereto or
changes therein entered into in accordance with their respective terms and
not prohibited by this Agreement; references to Persons include their
permitted successors and assigns; references to laws include their amendments
and supplements, the rules and regulations thereunder and any successors
thereto; and the term "including" means "including without limitation."
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
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 [Pooling and Servicing
Agreement] [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 and all monies due thereon or paid thereunder or in
respect thereof on or after the Cutoff Date;
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(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 in any Dealer Recourse;
(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.
(b) RECEIVABLES PURCHASE PRICE. In consideration for the
Receivables and other properties described in Section 2.1(a), the Purchaser
shall, on the Closing Date, pay to the Seller the Receivables Purchase Price.
An amount equal to approximately -% of the Receivables Purchase Price shall
be paid to the Seller in cash, net of any costs of the Purchaser related to
the establishment of the Trust and the offering of the [Certificates]
[Securities], by federal wire transfer (same day) funds. The remaining
approximately -% of the Receivables Purchase Price shall be deemed paid by
the Purchaser to the Seller and then immediately returned by the Seller to
the Purchaser as a contribution to capital.
2.2 THE CLOSING. The sale and purchase of the Receivables shall
take place at a closing (the "Closing") at the offices of - on the Closing
Date, simultaneously with the closings under: (a) the [Pooling and Servicing
Agreement] [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 Trustee for the
benefit of the [Certificateholders] [Securityholders]; and (ii) the Purchaser
will deposit the foregoing into the Trust in exchange for [the Certificates]
[the Securities]; and (b) the Underwriting Agreement, pursuant to which the
Purchaser will sell to the underwriters named therein [the Class A Certificates
and the Class B Certificates] [the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class B Notes, and the Class C Certificates].
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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 to the
Purchaser upon any of the property or assets of the Purchaser pursuant to the
terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument under which the
Purchaser is a debtor or guarantor, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-laws of the Purchaser; which breach, default, conflict, Lien or violation
in any case would have a material adverse effect on the ability of the Seller
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
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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.
(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
[Pooling and Servicing Agreement] [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,
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(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, and (d)
provides for level monthly payments (provided that the payment in the
first or last month in the life of the Receivable may be minimally
different from the level payment) that fully amortize the Amount
Financed over an original term of no greater than ____ months and
yield 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 at random from the Seller's retail
installment sale contracts (other than contracts originated in
Alabama) meeting the criteria of the Trust set forth in the [Pooling
and Servicing Agreement] [Sale and Servicing Agreement]; and no
selection procedures believed to be adverse to the
[Certificateholders] [Securityholders] were utilized in selecting the
Receivables.
(iii) COMPLIANCE WITH LAW. Each 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.
(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 not reinstated.
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(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
[Pooling and Servicing Agreement] [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 [Pooling and Servicing
Agreement] [Sale and Servicing Agreement]).
(xi) INSURANCE. The Seller, in accordance with its
customary procedures, has determined at the time of origination of
each Receivable that the related Obligor has agreed to obtain physical
damage insurance covering the Financed Vehicle and the Obligor is
required under the terms of related Receivable to maintain such
insurance.
(xii) TITLE. It is the intention of the Seller that the
transfer and assignment herein contemplated constitute a sale of the
Receivables from the Seller to the Purchaser and that the beneficial
interest in and title to the Receivables not be part of the Seller's
estate in the event of the filing of a bankruptcy petition by or
against the Seller under any bankruptcy law. Immediately prior to the
transfer and assignment herein contemplated, the Seller had good and
marketable title to each Receivable free and clear of all Liens and,
immediately upon the transfer thereof, the Purchaser shall have good
and
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marketable title to each Receivable, free and clear of all Liens
and rights of others.
(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 transfers of the Certificates 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 "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 ___%.
(xx) MATURITY. As of the Cutoff Date, each Receivable had
a remaining term to maturity of not less than _____ months and not
greater than _____ months.
(xxi) BALANCE. Each Receivable had an original principal
balance of not more than $____________ and, as of the Cutoff Date, had
a principal balance of not less than $______ and not more than
$_________.
(xxii) DELINQUENCY. No Receivable was more than 29 days
past due as of the Cutoff Date and no Receivable has been extended by
more than two months.
(xxiii) BANKRUPTCY. No Obligor was the subject of a
bankruptcy proceeding (according to the records of the Seller) as of
the Cutoff Date.
(xxiv) TRANSFER. Each Receivable prohibits the sale or
transfer of the Financed Vehicle without the consent of the Seller.
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(xxv) NEW, NEAR-NEW AND USED VEHICLES. Each Financed
Vehicle was a new, near-new or used automobile or light-duty truck at
the time the related Obligor executed the retail installment sale
contract.
(xxvi) ORIGINATION. Each Receivable has an origination date
on or after ____________.
(xxvii) FORCED-PLACED INSURANCE PREMIUMS. No contract
relating to any Receivable has had forced-placed insurance premiums
added to the amount financed.
(xxviii) NO FRAUD OR MISREPRESENTATION. To the knowledge of
the Seller, no Receivable was originated by a Dealer and sold by such
Dealer to the Seller with any conduct constituting fraud or
misrepresentation on the part of such Dealer.
ARTICLE IV
CONDITIONS
4.1 CONDITIONS TO OBLIGATION OF THE PURCHASER. The obligation
of the Purchaser to purchase the Receivables 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 [Trustee][Owner Trustee], as
assignee of the Purchaser, naming the Receivables and the other
property conveyed hereunder as collateral, meeting the requirements of
the laws
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of each such jurisdiction and in such manner as is necessary
to perfect the sale, transfer, assignment and conveyance of such
Receivables 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
[Pooling and Servicing Agreement] [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 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 [Pooling and Servicing Agreement]
[Sale and Servicing Agreement], the [Pooling and Servicing Agreement]
[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 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 Section 9-402(7) of the UCC, and shall
promptly file appropriate amendments to all previously filed financing
statements or continuation statements.
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(c) The Seller shall notify the Purchaser of any relocation of
its principal executive office within 90 days after such relocation, if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment. The Seller shall at all times maintain its principal executive
office within the United States of America.
(d) The Seller shall maintain its computer systems so that,
from and after the time of sale hereunder of the Receivables to the
Purchaser, the Seller's master computer records that refer to a Receivable
shall indicate clearly the interest of the Purchaser in such Receivable and
that such Receivable is owned by the Purchaser.
(e) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the
Seller shall give to such prospective purchaser, lender or other transferee
computer tapes, records or print-outs that, if they shall refer in 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 [Pooling and Servicing Agreement]
[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
[Pooling and Servicing Agreement] [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.
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(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 the 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 [Pooling and Servicing Agreement]
[Sale and Servicing Agreement], except to the extent that such Damages shall
be due to the willful misfeasance, bad faith or negligence (except for errors
in judgment) 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).
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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 [Owner Trustee]
[Trustee]and the holders of the [Securities] [Certificates], 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"), 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] [Certificates],
the [Owner Trustee][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 [Pooling and Servicing Agreement]
[Sale and Servicing Agreement], sell the Receivables to the Trust and assign
its rights under this Agreement to the
[Owner Trustee and the Indenture Trustee] [Trustee] for the benefit of the
holders of the [Securities] [Certificates], and that the representations and
warranties contained in this Agreement and the rights of the Purchaser under
Section 6.2 and the obligations under 6.3 are intended to benefit the Trust
and the holders of the [Securities] [Certificates]. 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 Certificates evidencing a majority of the Voting Interests]
[Holders of Notes representing a majority of the Outstanding Amount of the
Controlling Class of Notes, or, in the case of any amendment that does not
adversely affect the Indenture Trustee or the Noteholders, the Holder of the
Controlling Class of Certificates].
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
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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.
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 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 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 two
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
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purposes) as a sale of the Receivables on all of its relevant books, records,
tax returns, financial statements and other applicable documents. Although
the parties hereto intend that the transfer and assignment contemplated by
this Agreement be a sale, in the event such transfer and assignment is deemed
to be other than a sale, the parties intend that all filings described in
this Agreement shall give the Purchaser a first priority perfected security
interest in, to and under the Receivables and other property conveyed
hereunder and all proceeds of any of the foregoing. This Agreement shall be
deemed to be the grant of a security interest from the Seller to the
Purchaser, and the Purchaser shall have all the rights, powers and privileges
of a secured party under the UCC.
IN WITNESS WHEREOF, the parties hereto hereby have caused this
Agreement to be executed by their respective officers thereunto duly
authorized as of the - day of -.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
--------------------------------
Name:
Title:
NISSAN AUTO RECEIVABLES CORPORATION
By:
--------------------------------
Name:
Title:
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EXHIBIT A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated
as of ____________, between the undersigned (the "Seller") and Nissan Auto
Receivables Corporation (the "Purchaser") (the "Purchase Agreement"), 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 and all monies due
thereon or paid thereunder or in respect thereof on or 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 in any Dealer Recourse;
(v) the right of the Seller to realize upon any property
(including the right to receive future Net Liquidation Proceeds) that
shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums and
other amounts relating to insurance policies and other items financed
under the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing.
The foregoing sale does not constitute and is not intended to result
in any assumption by the Purchaser of any obligation of the undersigned to
the Obligors, insurers or any other person in connection with the
Receivables, Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have
the respective meanings assigned to such terms in the Purchase Agreement.
Exhibit A
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the ___ day of ____________.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By:
--------------------
Name:
Title:
Exhibit B
SCHEDULE A
Schedule of Receivables
See schedule attached to the [Pooling and Servicing Agreement][Sale and
Servicing Agreement].
Annex A
