Exhibit 10.1
FORM OF PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this [____] day of
[ ], 1998, 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 1998-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.
"Certificates" shall have the meaning specified in
the introductory paragraphs of this Agreement.
"Closing" shall have the meaning specified in
Section 2.02.
"Closing Date" shall mean December [__], 1998.
"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 Norwest Bank Minnesota, N.A., as trustee, dated as
of [_______], 1998, 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
2
$999,494,983.89.
"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.
"Seller" shall mean Nissan Motor Acceptance Corporation, a
California corporation, and its successors and assigns.
"Trust" shall mean the Nissan Auto Receivables
1998-A Grantor Trust.
"Underwriting Agreement" shall mean the
Underwriting Agreement by and among Chase Securities Inc.,
X.X. Xxxxxx Securities Inc. and the Purchaser, dated
[_______], 1998.
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
3
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 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,
4
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 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 the Seller and is the legal, valid and binding obligation of the
Seller except as the same may be limited by insolvency, bankruptcy,
reorganization
5
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 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
6
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
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,
7
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 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.
8
(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 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.
9
(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 has been increased.
(xix) APR. The Annual Percentage Rate
of each Receivable equals or exceeds 3.0%.
(xx) Maturity. As of the Cutoff Date,
each Receivable has a remaining maturity of not less than three months
and not greater than 59 months.
(xxi) Balance. Each Receivable had an
original principal balance of not more than $49,977.65 and, as of the
Cutoff Date, has a principal balance of not less than $258.66 and not
more than $49,299.21.
(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 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.
10
(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 October 6, 1993.
(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
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
11
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.
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
Purchaser 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 shall deliver to the Seller the Receivables Purchase
Price, as provided in Section 2.01(b).
12
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
ss. 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
13
any time the 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.
14
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 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.
15
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 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.
16
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 (includ ing 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 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
17
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.
18
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 ___________ 1998.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
---------------------------------
Name:
Title:
NISSAN AUTO RECEIVABLES CORPORATION
By:
---------------------------------
Name:
Title:
19
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of [_________], 1998, 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 _______ 1998.
NISSAN MOTOR ACCEPTANCE CORPORATION
By:
---------------------------------
Name:
Title:
Annex A
Schedule of Receivables
