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 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 [Pooling and Servicing Agreement
(as hereinafter defined)] [Sale and Servicing Agreement (as hereinafter
defined)], to the NISSAN AUTO RECEIVABLES [GRANTOR] [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 [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 (the "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 II, 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 II, as seller, Nissan Motor
Acceptance Corporation, as servicer, and the Trust dated as of [ ], as the same
may be amended, amended and restated, supplemented or modified.]
"Schedule of Receivables" means the list of Receivables annexed to the
Assignment as Schedule A thereto.
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["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 II, as seller, and [ ], as trustee
(the "Trustee"), dated as of [ ], 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
[______] and the Purchaser, dated [____________, ____].
["Yield Supplement Agreement" means the agreement, dated as of the date
of this Agreement, among the Purchaser, the Seller, [__________], 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 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
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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 Cutoff Date; and
(vii) all proceeds of the foregoing;
provided, that the Seller shall not be required to deliver to the Purchaser on
the Closing Date monies received in respect of the Receivables after the Cutoff
Date and before the Closing Date but shall or shall cause the Servicer to
deposit such monies into the Collection Account no later than the first Record
Date after the Closing Date.
(b) Receivables Purchase Price. In consideration for the Receivables and
other properties described in Section 2.1(a), the Purchaser shall, on the
Closing Date, pay to the Seller the Receivables Purchase Price. An amount equal
to approximately [ ]% of the Receivables Purchase Price shall be paid to the
Seller in cash by federal wire transfer (same day) funds. The remaining
approximately [ ]% of the Receivables Purchase Price shall be deemed paid by the
Purchaser to the Seller and then immediately returned by the Seller to the
Purchaser as a contribution to capital.
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 Trust for the benefit
of the [Certificateholders] [Securityholders]; and (ii) the Purchaser will
deposit the foregoing into the Trust in exchange for [the
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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].
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
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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.
(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
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from such Dealer under an existing dealer agreement with the Seller, and
has been validly assigned by such Dealer to the Seller, (b) created a
valid, subsisting and enforceable security interest in favor of the
Seller in such Financed Vehicle, (c) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are
adequate for realization against the collateral of the benefits of the
security, (d) provides for level monthly payments (provided that the
payment in the first or last month in the life of the Receivable may be
minimally different from the level payment) that fully amortize the
Amount Financed over an original term of no greater than [____] months,
and (e) provides for interest at the related Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in Schedule
A to this Agreement was true and correct in all material respects as of
the opening of business on the Cutoff Date; the Receivables were
selected at random from the Seller's retail installment sale contracts
(other than contracts originated in Alabama [or Hawaii]) 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, 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.
(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
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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 [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
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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 filing 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 [Pooling and Servicing Agreement][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 [___]%.
(xx) Maturity. As of the Cutoff Date, each Receivable had a
remaining term to maturity of not less than [_____] payments and not
greater than [_____] payments.
(xxi) Balance. Each Receivable had an original principal balance of
not more than $[____________] and, as of the Cutoff Date, had a
principal balance of not less than $[______] and not more than
$[_________].
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(xxii) Delinquency. No Receivable was more than 29 days past due as
of the Cutoff Date and no Receivable has been extended by more than two
months.
(xxiii) Bankruptcy. No Obligor was the subject of a bankruptcy
proceeding (according to the records of the Seller) as of the Cutoff
Date.
(xxiv) Transfer. Each Receivable prohibits the sale or transfer of
the Financed Vehicle without the consent of the Seller.
(xxv) New, Near-New and Used Vehicles. Each Financed Vehicle was a
new, near-new or used automobile or light-duty truck at the time the
related Obligor executed the retail installment sale contract.
(xxvi) Origination. Each Receivable has an origination date on or
after [_____________].
(xxvii) Forced-Placed Insurance Premiums. No contract relating to
any Receivable has had forced-placed insurance premiums added to the
amount financed.
(xxviii) No Fraud or Misrepresentation. To the knowledge of the
Seller, no Receivable was originated by a Dealer and sold by such Dealer
to the 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, 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
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possession all such original copies that constitute or evidence the
Receivables. The Receivable Files that constitute or evidence the
Receivables do not have any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed by the Seller to any Person
other than the Purchaser. All financing statements filed or to be filed
against the Seller in favor of the Purchaser in connection herewith
describing the Receivables contain a statement to the following effect:
"A purchase of or security interest in any collateral described in this
financing statement, except as provided in the Purchase Agreement, will
violate the rights of the Purchaser."
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.
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(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 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 [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, 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 Section 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
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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.
(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
13
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.
(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 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.
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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] [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") [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] [Certificates], 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 [Pooling and Servicing Agreement] [Sale and Servicing Agreement], sell the
Receivables to the Trust and assign its rights under this Agreement to the Trust
[and that the Trust will assign such rights to the Indenture Trustee] for the
benefit of the holders of the [Securities] [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 (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)].
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
15
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 Section 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 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,
16
financial statements and other applicable documents. Although the parties hereto
intend that the transfer and assignment contemplated by this Agreement be a
sale, in the event such transfer and assignment is deemed to be other than a
sale, the parties intend that all filings described in this Agreement shall give
the Purchaser a first priority perfected security interest in, to and under the
Receivables and other property conveyed hereunder and all proceeds of any of the
foregoing. This Agreement shall be deemed to be the grant of a security interest
from the Seller to the Purchaser, and the Purchaser shall have all the rights,
powers and privileges of a secured party under the UCC.
IN WITNESS WHEREOF, the parties hereto hereby have caused this Agreement
to be executed by their respective officers thereunto duly authorized as of the
[___] day of [___________].
NISSAN MOTOR ACCEPTANCE CORPORATION
By: _______________________________
Name:
Title:
NISSAN AUTO RECEIVABLES
CORPORATION II
By: _______________________________
Name:
Title:
ACCEPTED:
___________________________________
not in its individual capacity but
solely as Trustee
By: _______________________________
Name:
Title:
17
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement dated as
of ___________________________, (the "Purchase Agreement"), between the
undersigned (the "Seller") and Nissan Auto Receivables Corporation II (the
"Purchaser"), the undersigned does hereby sell, assign, transfer and otherwise
convey unto the Purchaser, without recourse, the following:
(i) all right, title and interest of the Seller in and to the
Receivables listed on Schedule A hereto (including all related
Receivable Files) and all monies due thereon or paid thereunder or in
respect thereof after the Cutoff Date;
(ii) the right of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables
and any related property;
(iii) the right of the Seller in any proceeds from claims on any
physical damage, credit life, credit disability or other insurance
policies covering Financed Vehicles or Obligors;
(iv) the right of the Seller to receive payments in respect of any
Dealer Recourse with respect to the Receivables;
(v) the right of the Seller to realize upon any property (including
the right to receive future Net Liquidation Proceeds) that shall have
secured a Receivable;
(vi) the right of the Seller in rebates of premiums and other
amounts relating to insurance policies and other items financed under
the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing.
The foregoing sale does not constitute and is not intended to result in
any assumption by the Purchaser of any obligation of the undersigned to the
Obligors, insurers or any other person in connection with the Receivables,
Receivable Files, any insurance policies or any agreement or instrument relating
to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to such terms in the Purchase Agreement.
Exhibit A
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
