EXHIBIT 10.1
[Draft - 10/17/97]
FORM OF PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 1st day of October, 1997,
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 install ment 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), to the
NISSAN AUTO RECEIVABLES 1997-A GRANTOR TRUST to be created thereunder, which
Trust will issue 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 meaning set forth
in the Pooling and Servicing Agreement. 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" shall mean this Purchase Agreement and all amendments
hereof and supplements hereto.
"Assignment" shall mean the document of assignment attached to this
Agreement as Exhibit A.
"Closing" shall have the meaning specified in Section 2.02.
"Closing Date" shall mean October [__], 1997.
"Collections" shall mean all amounts collected by the Servicer (from
whatever source) on or with respect to the Receivables.
"Damages" shall have the meaning specified in Section 5.04(a).
"Distribution Date" shall mean, 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.
"Pooling and Servicing Agreement" shall mean the Pooling and Servicing
Agreement by and among the Seller, as servicer and in its individual capacity,
the Purchaser, and The Fuji Bank and Trust Company, as trustee, dated as of
October 1, 1997, as the same may be amended, amended and restated, supplemented
or modified.
"Prospectus" shall have the meaning assigned to such term in the
Underwriting Agreement.
"Purchaser" shall mean Nissan Auto Receivables Corporation, a Delaware
corporation, and its successors and assigns.
"Rating Agency" shall mean each of Xxxxx'x Investors Service, Inc. and
Standard & Poor's Ratings Services or any successors thereto.
"Receivable" shall mean any retail installment sale contract which
appears on Annex A to the Assignment.
"Receivables Purchase Price" shall mean $868,465,033.86.
"Repurchase Event" shall have the meaning specified in Section 6.02.
"Schedule of Receivables" shall mean the list of Receivables annexed
to the Assignment as Annex A thereto.
2
"Seller" shall mean Nissan Motor Acceptance Corporation, a California
corporation, and its successors and assigns.
"Trust" shall mean the Nissan Auto Receivables 1997-A Grantor Trust.
"Underwriting Agreement" shall mean the Underwriting Agreement by and
between X.X. Xxxxxx Securities Inc. and the Purchaser, dated October __, 1997.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.01. 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, 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 paid thereon, on or after the Cutoff Date; (ii) the
interest of the Seller in the security interests in the Financed Vehicles
granted by Obligors pursuant to the Receivables and any accessions thereto;
(iii) the interest 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 interest of the Seller in Dealer
Recourse; (v) the interest of the Seller in certain 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 (vi) the proceeds of any and
all of the foregoing.
(b) Receivables Purchase Price. In con sideration for the
--------------------------
Receivables and other properties described in Section 2.01(a), the Purchaser
shall, on the Closing Date, pay to the Seller the Receivables Purchase
3
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 Class A
Certificates, 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.
2.02. The Closing. The sale and purchase of the Receivables shall
-----------
take place at a closing (the "Closing") at the offices of Weil, Gotshal & Xxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date,
simultaneously with the closings under: (a) the Pooling 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 2.01(a) hereof to the Trustee for the benefit of the Certificateholders;
and (ii) the Purchaser will deposit the foregoing into the Trust in exchange for
the Class A Certificates and Class B Certificates; and (b) the Underwriting
Agreement, pursuant to which the Purchaser will sell to the underwriters named
therein the Class A Certificates.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. 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 incorporated and
------------------
is validly existing as a corpora tion in good standing under the laws of the
State of Delaware, and has full 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 is the valid, binding
and enforceable obligation of the Purchaser except as the same may be limited by
insolvency, bankruptcy, reorganization or other laws relating to or affecting
the enforcement of
4
creditors' rights or by general equity principles. The consummation of the
transactions contemplated by this Agreement, and the fulfillment of the terms
thereof, will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under (in each case material to the
Purchaser), or result in the creation or imposition of any Lien material 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.
(c) No Litigation. No legal or governmental proceedings are pending
-------------
to which the Purchaser is a party or of which any property of the Purchaser is
the subject, and no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; other than such proceedings
which will not have a material adverse effect upon the general affairs,
financial position, net worth or results of operations (on an annual basis) of
the Purchaser and will not materially and adversely affect the performance by
the Purchaser of its obligations under, or the validity and enforceability of,
this Agreement.
3.02. 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 incorporated
------------------
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.
(ii) Power and Authority. The Seller has full 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
5
the Seller and is the legal, valid and binding obligation of the Seller
except as the same may be limited by insolvency, bankruptcy, reorganization
or other laws relating to or affecting the enforcement of creditors' rights
or by general equity principles.
(iii) No Violation. The consummation of the transaction
------------
contemplated by this Agreement, and the fulfillment of the terms hereof,
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under (in each case material to the
Seller and its subsidiaries considered as a whole), or result in the
creation or imposition of any Lien material to the Seller and its
subsidiaries considered as a whole 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.
(iv) No Proceedings. No legal or governmental proceedings are
--------------
pending to which the Seller is a party or of which any property of the
Seller is the subject, and no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, other
than such proceedings which will not have a material adverse effect upon
the general affairs, financial position, net worth or results of operations
(on an annual basis) of the Seller and its subsidiaries considered as a
whole and will not materially and adversely affect the performance by the
Seller of 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
6
Purchaser hereunder and the subsequent assignment and transfer pursuant to the
Pooling 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 first priority
security interest in favor of the Seller in the 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, 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 that 60 months and yield interest at the Annual Percentage Rate.
(ii) Schedule of Receivables. The information set forth in
Annex A to the Assignment 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
meeting the criteria of the Trust; and no selection procedures believed to
be adverse to the Certificateholders 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, without limitation, usury laws, the Federal Truth-
in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting
Act, the Fair Debt
7
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, State "Lemon Laws" designed to
prevent fraud in the sale of automobiles and State adaptations of the
National Consumer Credit Protection Act and of the Uniform Consumer Credit
Code, 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 or other
similar laws affecting the enforcement of creditors' rights generally.
(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 and 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.
(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.
(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
8
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 best of 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 pay ment 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; and
the Seller shall not waive any of the foregoing except as otherwise
permitted hereunder.
(xi) Insurance. The Seller, in accordance with its customary
procedures, has determined that the Obligor has obtained or agreed to
obtain physical damage insurance covering the Financed Vehicle and the
Obligor is required under the terms of its 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. No Receivable has been sold, transferred,
assigned or pledged by the Seller to any Person other than the Purchaser.
Immediately prior to the transfer and assignment herein contemplated, the
Seller had
9
good and marketable title to each Receivable free and clear of all Liens
and rights of others (including, without limitation, Liens or other rights
of any creditor of any Dealer) and no offsets, defenses or counterclaims
against it had been asserted or threatened 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 and no
offsets, defenses or counterclaims against it have been asserted or
threatened. Such transfer has been perfected under the UCC.
(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.
(xv) Chattel Paper. Each Receivable constitutes "chattel paper"
as 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 shall has been increased.
(xix) APR. The Annual Percentage Rate of each Receivable equals
or exceeds 5.0%.
(xx) Maturity. As of the Cutoff Date, each Receivable has a
remaining maturity of not less than three months and not greater than 57
months.
10
(xxi) Balance. Each Receivable had an original principal
balance of not more than $50,000.00 and, as of the Cutoff Date, has a
principal balance of not less than $298.74 and not more than $47,421.00.
(xxii) Delinquency. No Receivable is more than 29 days past due
as of the Cutoff Date and no Receivable has been extended by more than 2
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 and Used Vehicles. Each Financed Vehicle was a new or
used automobile or light 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 12, 1992.
(xxvii) Maturity of Receivables. Each Receivable provides for
level monthly payments which provide interest at the APR and fully amortize
the amount financed over an original term no greater than 60 months.
(xxviii) Forced-Placed Insurance Premiums. No contract relating
to any Receivable has had forced-placed insurance premiums added to the
amount financed.]
(xxix) No Fraud or Misrepresentation. To the best 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
11
4.03. 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 on the Closing Date
with the same effect as if then made, and the Seller shall have performed 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.
(c) Documents to be delivered by the Seller at the Closing.
------------------------------------------------------
(i) The Assignment. At the Closing, the Seller will execute and
--------------
deliver the Assignment.
(ii) Evidence of UCC Filing. On or prior to the Closing Date,
----------------------
the Seller shall record and file, 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, the Trustee, 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 to the Purchaser. The Seller
shall deliver a file-stamped copy, or other evidence satisfactory to the
Purchaser of such filing, to the Purchaser on or prior to the Closing Date.
(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 shall be consummated on the Closing Date.
12
4.04. 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 on the Closing
Date with the same effect as if then made, and the Seller shall have performed
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
--------------------------
will deliver to the Seller the Receivables Purchase Price, as provided in
Section 2.01(b).
13
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, the Pooling and Servicing
Agreement shall govern:
5.01. 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 in 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 not change 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 (S) 9-402(7) of the UCC, unless
it shall have given the Purchaser at least five days' prior written notice
thereof and shall have promptly filed appropriate amendments to all previously
filed financing statements or continuation statements.
(c) The Seller shall give the Purchaser at least 60 days' prior
written notice of any relocation of its principal executive office 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 each office from which it
shall service Receivables, and its principal executive office, within the United
States of America.
(d) The Seller shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit the reader thereof to
know at any time the
14
status of such Receivable, including payments and recoveries made and payments
owing (and the nature of each).
(e) 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 (including any back-up archives) 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. Indication of
the Purchaser's ownership of a Receivable shall be deleted from or modified on
the Seller's computer systems when, and only when, the Receivable shall have
been paid in full or repurchased.
(f) 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 (including any restored from back-up archives) 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.
(g) The Seller shall permit the Purchaser and its agents at any time
during normal business hours to inspect, audit and make copies of and abstracts
from the Seller's records regarding any Receivable.
(h) Upon request, the Seller shall furnish to the Purchaser, within
20 Business Days, a list of all Receivables (by contract number and name of
Obligor) then owned by the Purchaser, together with a reconciliation of such
list to the Schedule of Receivables.
5.02. Other Liens or Interests. Except for the conveyances hereunder
------------------------
and contemplated pursuant to the Pooling and Servicing Agreement, the Seller
will 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 5.02 shall terminate upon the termination of the Trust pursuant to the
Pooling and Servicing Agreement.
15
5.03 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.
5.04 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 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, except to the extent that such
Damages shall be due to the willful
16
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.
5.05 Sale. The Seller 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 relevant books,
records, tax returns, financial statements and other applicable documents.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.01 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.
6.02 Repurchase Events. The Seller hereby cove nants and agrees with
-----------------
the Purchaser for the benefit of the Purchaser, the Trustee and the
Certificateholders, that the occurrence of a breach of any of the Seller's
representa tions and warranties contained in Section 3.02(b) hereof shall
constitute events obligating the Seller to repurchase Receivables hereunder
("Repurchase Events"), at the Repurchase Amount from the Purchaser or, as
described in Section 6.04 below, from the Trust. The repurchase obligation of
the Seller shall constitute the sole remedy of the Certificateholders, the
Trustee and the Purchaser against the Seller with respect to any Repurchase
Event.
6.03 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, to the Seller all the
Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
6.04 Trust. The Seller acknowledges that the Purchaser will,
-----
pursuant to the Pooling and Servicing Agreement, sell the Receivables to the
Trust and assign its
17
rights under this Agreement to the Trustee for the benefit of the
Certificateholders, and that the representations and warranties contained in
this Agreement and the rights of the Purchaser under Section 6.02 and the
obligations under 6.03 hereof are intended to benefit the Trust and the
Certificateholders. The Seller hereby consents to such sales and assignments.
6.05 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 51% of the Class A Certificate Balance and 51% of the Class B Certificate
Balance.
6.06 Accountants' Letters. (a) Deloitte & Touche LLP will review
--------------------
the characteristics of the Receivables described in the Schedule of Receivables
and will 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
6.06(a) above and to deliver the letters required of them under the Underwriting
Agreement.
6.07 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.
6.08 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.
6.09 Costs and Expenses. The Seller will pay all expenses incident
------------------
to the performance of its obligations
18
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 Representations to the Seller. 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. The Purchaser 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 relevant books,
records, tax returns, financial statements and other applicable documents.
19
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the ___
day of ___________ 1997.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
---------------------------------
Name:
Title:
NISSAN AUTO RECEIVABLES CORPORATION
By:
---------------------------------
Name:
Title:
20
Exhibit A
---------
ASSIGNMENT
----------
For value received, in accordance with the Purchase Agreement dated as
of October 1, 1997, between the undersigned 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, (i) all right, title and interest of the undersigned in and to the
Receivables listed on Annex A hereto, and all monies paid thereon, and due
thereon, on or after the Cutoff Date; (ii) the interest of the undersigned in
the security interests in the Financed Vehicles granted by Obligors pursuant to
the Receivables and any accessions thereto; (iii) the interest of the
undersigned in any proceeds from claims on any physical damage, credit life,
credit disability or other insurance policies covering Financed Vehicles or
Obligors; (iv) the interest of the undersigned in Dealer Recourse; (v) the
interest of the undersigned in certain 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 (vi) the proceeds of any and all 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,
Receivables 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
meaning assigned to them in the Purchase Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of the ___ day of _______ 1997.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
-----------------------------
Name:
Title:
Annex A
Schedule of Receivables
[Delivered to the Purchaser at Closing]
