EXHIBIT 4.5
EXECUTION VERSION
NISSAN MOTOR ACCEPTANCE CORPORATION
Seller
NISSAN WHOLESALE RECEIVABLES CORPORATION II
Buyer
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AMENDED AND RESTATED RECEIVABLES PURCHASE AGREEMENT
Dated as of October 15, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS............................................................................ 1
Section 1.01 Definitions....................................................................... 1
Section 1.02 Other Definitional Provisions..................................................... 2
ARTICLE II SALE OF RECEIVABLES.................................................................... 2
Section 2.01 Sale of Receivables............................................................... 2
Section 2.02 Representations and Warranties of Seller Relating to Itself and This Agreement.... 5
Section 2.03 Representations and Warranties of Seller Relating to Receivables and Accounts..... 8
Section 2.04 Covenants of Seller............................................................... 9
Section 2.05 Designation of Additional Accounts................................................ 10
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES............................................ 12
Section 3.01 Acceptance of Appointment and Other Matters Relating to Servicer.................. 12
Section 3.02 Servicing Compensation............................................................ 12
ARTICLE IV OTHER MATTERS RELATING TO SELLER....................................................... 12
Section 4.01 Merger or Consolidation of, or Assumption, of Obligations of Seller............... 12
Section 4.02 Seller Indemnification of Buyer................................................... 13
ARTICLE V TERMINATION............................................................................ 13
Section 5.01 Termination of Agreement.......................................................... 13
ARTICLE VI INTERCREDITOR PROVISIONS............................................................... 14
Section 6.01 Nonfloorplan Agreements Between Seller and Dealer................................. 14
ARTICLE VII MISCELLANEOUS PROVISIONS............................................................... 15
Section 7.01 Amendment......................................................................... 15
Section 7.02 Protection of Right, Title and Interest to Receivables............................ 16
Section 7.03 Limited Recourse.................................................................. 17
Section 7.04 No Petition....................................................................... 17
Section 7.05 Governing Law..................................................................... 17
Section 7.06 Notices........................................................................... 18
Section 7.07 Severability of Provisions........................................................ 18
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TABLE OF CONTENTS
PAGE
Section 7.08 Assignment........................................................................ 18
Section 7.09 Further Assurances................................................................ 18
Section 7.10 No Waiver; Cumulative Remedies.................................................... 18
Section 7.11 Counterparts...................................................................... 19
Section 7.12 Third-Party Beneficiaries......................................................... 19
Section 7.13 Merger and Integration............................................................ 19
Section 7.14 Headings.......................................................................... 19
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AMENDED AND RESTATED RECEIVABLE PURCHASE AGREEMENT, dated as of October
15, 2003 (as modified, supplemented, amended or restated from time to time, this
"Agreement"), by and between NISSAN MOTOR ACCEPTANCE CORPORATION ("NMAC"), a
California corporation, as Seller, and NISSAN WHOLESALE RECEIVABLES CORPORATION
II ("NWRC II"), a Delaware corporation, as Buyer.
RECITALS
A. The Seller and the Buyer are party to the Receivables Purchase
Agreement (the "Original Agreement"), dated July 24, 2003 (the "Initial Closing
Date").
B. The Seller and the Buyer desire to amend certain provisions of
the Original Agreement and for ease of convenience and reference desire to amend
and restate the Original Agreement in its entirety.
C. It is the intent of the parties that this Agreement shall not
cause a novation of the rights and obligations of the parties under the Original
Agreement and that this Agreement shall not release, limit or impair in any way
the priority of any security interests granted under the Original Agreement.
D. The Seller desires to sell to the Buyer, and the Buyer desires
to purchase from the Seller, the Receivables arising from time to time in
connection with the Accounts designated hereunder.
E. Pursuant to the Transfer and Servicing Agreement, the Buyer
has agreed to transfer to the Issuer all such Receivables purchased by the Buyer
hereunder.
F. Pursuant to the Indenture and the Indenture Supplements, the
Issuer will issue from time to time Notes secured by the Receivables.
In consideration of the mutual covenants and agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows.
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.
All terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Annex of Definitions. Whenever used in this
Agreement, such terms are applicable to the singular as well as the plural forms
of such terms and to the masculine as well as to the feminine and neuter genders
of such terms.
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) All terms used herein and not otherwise defined herein have the
meanings ascribed to them in the Transfer and Servicing Agreement, the Trust
Agreement, the Indenture or, with respect to any Series, the related Indenture
Supplement, as applicable.
(b) All terms defined in this Agreement have the defined meanings when
used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, have the respective meanings given to them
under generally accepted accounting principles or regulatory accounting
principles, as applicable and as in effect on the date of this Agreement. To the
extent that the definitions of accounting terms in this Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles or regulatory accounting
principles in the United States, the definitions contained in this Agreement or
in any such certificate or other document will control.
(d) Any reference to each Rating Agency only applies to any specific
rating agency if such rating agency is then rating any outstanding Series.
(e) Unless otherwise specified, references to any dollar amount on any
particular date mean such amount at the close of business on such day.
(f) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement. References to any subsection,
Section, Schedule or Exhibit are references to subsections, Sections, Schedules
and Exhibits in or to this Agreement, unless otherwise specified. The term
"including" means "including without limitation."
ARTICLE II
SALE OF RECEIVABLES
Section 2.01 SALE OF RECEIVABLES.
(a) By execution of this Agreement, the Seller does hereby acknowledge
and confirm that, pursuant to the Original Agreement on the Initial Closing
Date, it did, and hereby does continue to:
(i) on the first Series Issuance Date, sell, transfer,
assign, set over and otherwise convey, without recourse, to the Buyer
(A) all of its right, title and interest in, to and under each
Receivable arising in connection with each Initial Account and all
Related Security, including Seller's interest in the security interests
granted by the Dealers in the related Vehicles and any subordinated
security interests in other Collateral, (B) Seller's rights under the
related Sales and Service Agreement, (C) Seller's rights
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under intercreditor agreements with third-party creditors of Dealers
with respect to the designated Accounts, (D) Seller's rights under the
related Repurchase Agreements, (E) Seller's rights under each related
Floorplan Financing Agreement, (F) the proceeds of the foregoing, with
respect thereto owned by the Seller at the close of business on the
Cut-Off Date and (G) all monies due or to become due and all amounts
received with respect thereto (including all amounts on deposit in the
Cash Management Account as applied to reduce the principal amount of
any Receivable) and all proceeds thereof (including "proceeds," as
defined in the UCC as in effect in the applicable jurisdiction) and
Recoveries with respect thereto.
(ii) on the applicable Addition Date, sell, transfer,
assign, set over and otherwise convey, without recourse, to the Buyer
(A) all of its right, title and interest in, to and under each
Receivable arising in connection with each Additional Account and all
Related Security, including Seller's interest in the security interests
granted by the Dealers in the related Vehicles and any subordinated
security interests in other Collateral, with respect thereto owned by
the Seller at the close of business on the applicable Additional
Cut-Off Date and not previously sold to the Buyer pursuant hereto (B)
Seller's rights under the related Sales and Service Agreement, (C)
Seller's rights under intercreditor agreements with third-party
creditors of Dealers with respect to the Additional Accounts, (D)
Seller's rights under the related Repurchase Agreements, (E) Seller's
rights under each related Floorplan Financing Agreement, (F) the
proceeds of the foregoing, with respect thereto owned by the Seller at
the close of business on the applicable Additional Cut-Off Date and (G)
all monies due or to become due and all amounts received with respect
thereto (including all amounts on deposit in the Cash Management
Account as applied to reduce the principal amount of any Receivable)
and all proceeds thereof (including "proceeds," as defined in the UCC
as in effect in the applicable jurisdiction) and Recoveries with
respect thereto; and
(iii) on each Business Day occurring before the earlier of
(x) the occurrence of an Early Amortization Event specified in clause
(2) of the definition thereof or (y) the Trust Termination Date, on
which day a new Receivable is created in connection with the Accounts
(each such Business Day being a "Transfer Date"), sell, transfer,
assign, set over and otherwise convey, without recourse, to the Buyer
(A) all of its right, title and interest in, to and under such
Receivable and all Related Security, including Seller's interest in the
security interests granted by the Dealers in the related Vehicles and
any subordinated security interests in other Collateral, with respect
thereto owned by the Seller at the close of business on the applicable
Transfer Date and not previously sold to the Buyer pursuant hereto (B)
Seller's rights under the related Sales and Service Agreement, (C)
Seller's rights under intercreditor agreements with third-party
creditors of Dealers with respect to the related Accounts, (D) Seller's
rights under the related Repurchase Agreements, (E) Seller's rights
under each related Floorplan Financing Agreement, (F) the proceeds of
the foregoing, with respect thereto owned by the Seller at the close of
business on the Transfer Date and (G) all monies due or to become due
and all amounts received with respect thereto (including all amounts on
deposit in the Cash Management Account as applied to reduce the
principal amount of any Receivable) and
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all proceeds thereof (including "proceeds," as defined in the UCC as in
effect in the applicable jurisdiction) and Recoveries with respect
thereto.
(b) The foregoing sale, transfer, assignment, set-over and conveyance,
and any subsequent sales, transfers, assignments, set-overs and conveyances of
additional assets, do not constitute, and are not intended to result in, the
creation, or an assumption by the Buyer, of any obligation of the Servicer, the
Seller, NML, NNA or any other Person in connection with the Accounts, the
related Receivables or under any agreement or instrument relating thereto,
including any obligation to any Dealers, NML or NNA. The foregoing sales,
transfers, assignments, set-overs and conveyances are not sales, transfers,
assignments, set-overs and conveyances of the Accounts; they are sales,
transfers, assignments, set-overs and conveyances of the Receivables arising in
connection therewith and Related Security.
(c) In connection with such sales, the Seller will record and file, to
the extent it has not done so, at its own expense, a financing statement on form
UCC-1 or any other applicable form (and continuation statements when applicable)
naming the Seller as "seller" and the Buyer as "buyer" thereon with respect to
the Receivables now existing and hereafter created for the sale of chattel paper
or accounts (as defined in the UCC as in effect in the applicable jurisdiction)
meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment of the
Receivables and the Related Security to the Buyer, and to deliver a file-stamped
copy of such financing statements or other evidence of such filing to the Buyer
on or before the first Series Issuance Date, in the case of the Initial
Accounts, and (if any additional filing is necessary) the applicable Addition
Date, in the case of Additional Accounts. The Buyer is under no obligation
whatsoever to file such financing statement, or a continuation statement to such
financing statement, or to make any other filing under applicable law in
connection with such sales.
(d) The Seller and the Buyer intend that all transfers of Receivables
under this Agreement constitute sales of the Receivables and not transfers for
security for a loan. However, if the transfers of the Receivables hereunder were
to be characterized as transfers for security and not as sales, then (i) the
Seller will have granted, and hereby grants, to the Buyer a security interest in
each Receivable, the Related Security, all other personal property described
from time to time in Section 2.01(a) and all monies due or to become due and all
amounts received with respect thereto and all proceeds (including "proceeds," as
defined in the UCC as in effect in the applicable jurisdiction) and Recoveries
thereof and (ii) this Agreement constitutes a security agreement.
(e) In connection with such sales, at its own expense, on or before the
first Series Issuance Date, in the case of the Initial Accounts, and on or
before the applicable Addition Date, in the case of Additional Accounts, the
Seller has (in the case of the Initial Accounts) or will (to the extent it has
not done so):
(i) indicate in its computer files that the Receivables
arising in connection with the Accounts and the Related Security: (A)
have been sold or assigned, as the case may be, to the Buyer pursuant
to this Agreement, then (B) transferred by the Buyer to the Issuer
pursuant to the Transfer and Servicing Agreement and then (C) pledged
by the
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Issuer to the Indenture Trustee for the benefit of the Noteholders and
any Series Enhancers pursuant to the Indenture;
(ii) in the case of the Initial Accounts, delivered to the
Buyer a computer file or written list of such Initial Accounts
specifying the identity of such Initial Accounts and the Principal
Receivables arising in connection therewith as of the Cut-Off Date
(such file or list, the "Initial Account Schedule"); and
(iii) in the case of Additional Accounts, deliver to the
Buyer a computer file or written list of such Additional Accounts
specifying the identity of such Additional Accounts and the Principal
Receivables arising in connection therewith as of the applicable
Additional Cut-Off Date (such file or list, an "Additional Account
Schedule").
The Account Schedule as amended, supplemented or otherwise modified
from time to time will be marked as Schedule 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement.
(f) In consideration for the sale of Receivables indicated on Schedule
1 hereto on the first Series Issuance Date and the Related Security, the Buyer
has paid to the Seller an amount equal to $1,316,539,846.26 in the form of cash,
a subordinated note and other valuable consideration having value reasonably
equivalent to the value of the assets so conveyed on such date. The purchase
prices for the Receivables sold pursuant to this Agreement on subsequent Series
Issuance Dates and on any other date on which Receivables are sold to the Buyer
by the Seller, will be agreed by the Buyer and the Seller at the time of such
sales, and will be paid in the form of cash, a subordinated note and other
valuable consideration having value reasonably equivalent to the value of the
assets so conveyed on such date. In each case, the purchase price will not be
materially less favorable than prices for transactions of a generally similar
character at the time of the acquisition, taking into account the quality of
such Receivables, the Seller's cost of originating such Receivables and a
reasonable return on such costs, and other pertinent factors; provided that such
consideration will in any event not be less than reasonably equivalent value
therefor.
(g) If the Issuer enters into a currency Swap Agreement pursuant to
Section 5.08 of the Transfer and Servicing Agreement, the Seller hereby agrees
to accept any amounts owed to it by the Buyer under Section 2.01(f) in Japanese
yen and the Seller further agrees that the amount equal to the expenses of the
Issuer associated with the negotiation, execution and delivery of such currency
Swap Agreement will be deducted from any amounts owed to it by the Buyer under
Section 2.01(f).
Section 2.02 REPRESENTATIONS AND WARRANTIES OF SELLER RELATING TO
ITSELF AND THIS AGREEMENT.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Buyer as of each Series Issuance Date (unless another date is
specified below) that:
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(i) Organization and Good Standing. The Seller is a
corporation duly organized and validly existing and in good standing
under the laws of the State of California and has, in all material
respects, full power, authority and legal right to own its properties
and conduct its business as such properties are currently owned and
such business is currently conducted, and to execute, deliver and
perform its obligations under this Agreement.
(ii) Due Qualification. The Seller is duly qualified to do
business and, where necessary, is in good standing as a foreign
corporation (or is exempt from such requirement) and has obtained all
necessary licenses and approvals in each jurisdiction where the conduct
of its business requires such qualification, except where the failure
to so qualify or obtain licenses or approvals would not have a material
adverse effect on its ability to perform its obligations hereunder.
(iii) Due Authorization. The Seller has duly authorized by
all necessary action on its part the execution and delivery of this
Agreement and the consummation of the transactions provided for or
contemplated by this Agreement.
(iv) No Conflict. The Seller's execution and delivery of
this Agreement, its performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof applicable to
it, will not conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any material indenture,
contract, agreement, mortgage, deed of trust or other instrument to
which the Seller is a party or by which it or its properties are bound.
(v) No Violation. The Seller's execution and delivery of
this Agreement, its performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof applicable to
it, will not conflict with or violate any material Requirements of Law
applicable to it.
(vi) No Proceedings. There are no proceedings pending or,
to the best of its knowledge, no proceedings threatened or
investigations pending or threatened against the Seller before or by
any Governmental Authority (A) asserting the invalidity of this
Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, (C) seeking any
determination or ruling that, in its reasonable judgment, would
materially and adversely affect the performance of its obligations
under this Agreement, (D) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of
this Agreement or (E) seeking to affect adversely the income tax
characterization of the Issuer under the United States federal or any
other applicable state or local jurisdiction's income, single business
or franchise tax systems.
(vii) All Consents Required. All material authorizations,
consents, orders, approvals or other actions of any Governmental
Authority required to be obtained or effected by the Seller in
connection with its execution and delivery of this Agreement, its
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performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof applicable to it, have been obtained or
effected.
(viii) Enforceability. This Agreement constitutes a legal,
valid and binding obligation of the Seller, enforceable against it in
accordance with the terms hereof, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity).
(ix) Account Schedule. As of the Cut-Off Date, the Initial
Account Schedule is an accurate and complete listing in all material
respects of all the Initial Accounts and the information contained
therein with respect to the identity of such Initial Accounts and the
Principal Receivables arising in connection therewith is true and
correct in all material respects. As of the applicable Additional
Cut-Off Date, the Additional Account Schedule is an accurate and
complete listing in all material respects of all the related Additional
Accounts and the information contained therein with respect to the
identity of such Additional Accounts and the Principal Receivables
arising in connection therewith is true and correct in all material
respects.
(x) Valid Sale. This Agreement or, in the case of
Additional Accounts, the related Assignment constitutes a valid sale,
transfer and assignment to the Buyer of all right, title and interest
of the Seller in the Receivables and the Related Security and the
proceeds thereof and, upon the filing of the financing statements
described in Section 2.01 and, in the case of the Receivables and the
Related Security hereafter created and the proceeds thereof, upon the
creation thereof, the Buyer will have a first priority perfected
ownership interest in the Receivables and a perfected security interest
in the Related Security. Except as otherwise provided in the Transfer
and Servicing Agreement or the Indenture, neither the Seller nor any
Person claiming through or under it has any claim to or interest in the
Trust Assets.
(b) Notice of Breach. The representations and warranties set forth in
Section 2.02(a) will survive the sale and assignment of the Receivables and
Related Security to the Buyer. Upon discovery by the Seller or the Buyer of a
material breach of any of the foregoing representations and warranties, the
party discovering such breach will give prompt written notice to the other
party.
(c) Repurchase upon Breach. If a breach of any of the representations
and warranties set forth in Section 2.02(a) results in the Buyer's obligation to
accept reassignment pursuant to Section 2.03(c) of the Transfer and Servicing
Agreement of all the Receivables that it transferred to the Issuer, then the
Seller will repurchase all such Receivables. In such event, the Seller will
repurchase such Receivables on the Business Day immediately preceding the date
on which the Buyer is required to accept reassignment of such Receivables
pursuant to the Transfer and Servicing Agreement. The Seller will repurchase
such Receivables by making a payment to the Buyer, in immediately available
funds, an amount not less than the purchase price for such Receivables as
specified in the Transfer and Servicing Agreement. Upon payment of such
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purchase price and reassignment of such Receivables to the Buyer in accordance
with the Transfer and Servicing Agreement, the Buyer will automatically and
without further action be deemed to sell, transfer, assign, set over and
otherwise convey to the Seller, without recourse, representation or warranty,
all the right, title and interest of the Buyer in and to such Receivables, all
Related Security and all monies due or to become due with respect thereto and
all proceeds thereof. The Buyer will execute such documents and instruments of
sale or assignment mutually agreed to by the Buyer and the Seller. The Buyer
will also take such other actions as are reasonably requested by the Seller to
effect the conveyance of such Receivables. The Seller's obligation to repurchase
the Receivables pursuant to this Section 2.02(c) constitutes the sole remedy
with respect to the event of the type specified in the first sentence of this
Section 2.02(c) available to the Buyer and to the Noteholders (or the Owner
Trustee, any Series Enhancer or the Indenture Trustee on behalf of the
Noteholders).
Section 2.03 REPRESENTATIONS AND WARRANTIES OF SELLER RELATING TO
RECEIVABLES AND ACCOUNTS.
(a) Representations and Warranties. The Seller hereby represents and
warrants to the Buyer that:
(i) As of the first Series Cut-Off Date, each Additional
Cut-Off Date or the Transfer Date, as the case may be, each Receivable
and its Related Security sold by it to the Buyer on such date, are
being sold free and clear of any Lien (other than Permitted Liens), and
all consents, licenses, approvals or authorizations of or registrations
or declarations with any Governmental Authority required to be
obtained, effected or given by the Seller in connection with the sale
of such Receivable and Related Security on such date have been duly
obtained, effected or given and are in full force and effect.
(ii) (A) Each Initial Account is an Eligible Account as of
the Cut-Off Date, (B) each Additional Account is an Eligible Account as
of the applicable Additional Cut-Off Date and (C) each Account is an
Eligible Account as of each Series Cut-Off Date.
(iii) As of the first Series Cut-Off Date, each Additional
Cut-Off Date, or the Transfer Date, as the case may be, each Receivable
sold by the Seller to the Buyer on such date, is an Eligible
Receivable.
(iv) As of any date, the principal balance of each
Receivable has not been reduced by any Dealer rebate, billing error,
returned merchandise, or other similar noncash item.
(b) Notice of Breach. The representations and warranties set forth in
Section 2.03(a) survive the sale and assignment of the Receivables and the
Related Security to the Buyer. Upon discovery by the Seller or the Buyer of a
material breach of any of the foregoing representations and warranties, the
party discovering such breach will give prompt written notice to the other
party.
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(c) Repurchase upon Breach. If any of the representations and
warranties set forth in Section 2.03(a) is not true and correct as of the date
specified therein with respect to a Receivable and, in connection therewith, the
Buyer is obligated to accept reassignment of such Receivable pursuant to Section
2.04(c) of the Transfer and Servicing Agreement, then the Seller will repurchase
such Receivable. In such event, the Seller will pay an amount not less than the
Repurchase Price for the repurchase of such Receivable on the Business Day
immediately preceding the Determination Date on which the Buyer is required to
accept reassignment pursuant to the Transfer and Servicing Agreement. The Seller
will repurchase such Receivable by making a payment to the Buyer, in immediately
available funds, in an amount equal to the Repurchase Price for such Receivable.
Upon payment of such purchase price and reassignment of such Receivables to the
Buyer in accordance with the Transfer and Servicing Agreement, the Buyer will
automatically and without further action be deemed to sell, transfer, assign,
set over and otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Buyer in and to such
Receivable, all Related Security and all monies due or to become due with
respect thereto and all proceeds thereof. The Buyer will execute such documents
and instruments of sale or assignment mutually agreed to by the Buyer and the
Seller. The Buyer will also take such other actions as are reasonably requested
by the Seller to effect the conveyance of such Receivable. The Seller's
obligation to repurchase a Receivable or all the Receivables with respect to an
Account pursuant to this Section 2.03(c) constitutes the sole remedy with
respect to the event of the type specified in the first sentence of this Section
2.03(c) available to the Buyer and to the Noteholders (or the Owner Trustee, any
Series Enhancer or the Indenture Trustee on behalf of the Noteholders).
Section 2.04 COVENANTS OF SELLER. The Seller hereby covenants that:
(i) No Liens. Except for the conveyances hereunder or as
provided in the Transaction Documents, the Seller will not sell,
pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien (other than Permitted Liens)
on, any Receivable or any Related Security, whether now existing or
hereafter created, or any interest therein, and the Seller will defend
the right, title and interests of the Buyer, the Issuer and the
Indenture Trustee in, to and under such Receivables and the Related
Security, whether now existing or hereafter created, and such rights,
remedies, powers and privileges, against all claims of third parties
claiming through or under the Seller.
(ii) Floorplan Financing Agreements and Guidelines. The
Seller will comply with and perform its servicing obligations with
respect to the Accounts and the Receivables in conformity with its
then-current policies and procedures and in accordance with the
applicable Floorplan Financing Agreements relating to the Accounts and
the applicable Floorplan Financing Guidelines, except insofar as any
failure to so comply or perform would not materially and adversely
affect the rights of the Buyer, the Issuer, the Noteholders or any
Series Enhancers. Subject to compliance with all Requirements of Law,
the Seller, in its capacity of Servicer, may change the terms and
provisions of the Floorplan Financing Agreement or the Floorplan
Financing Guidelines in any respect (including the calculation of the
amount or the timing of charge-offs and
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the rate of the finance charge assessed thereon) only if such change
would be permitted pursuant to Section 3.01(d) of the Transfer and
Servicing Agreement.
(iii) Account Allocations. If the Seller is unable for any
reason to sell Receivables to the Buyer, then the Seller will allocate,
after the occurrence of such event, payments on each related Account in
accordance with the terms of the Transfer and Servicing Agreement.
(iv) Delivery of Collections. If the Seller or any
Affiliate thereof receives payments in respect of the Receivables, the
Seller will pay or cause to be paid to the Servicer or any Successor
Servicer all such payments as soon as practicable after receipt, but in
no event later than two Business Days after receipt.
(v) Notice of Liens. The Seller will notify the Buyer,
the Owner Trustee and the Indenture Trustee promptly after becoming
aware of any Lien on any Receivable sold by the Seller other than
Permitted Liens and the Liens permitted under the Transaction
Documents.
(vi) Compliance with Law. The Seller will comply in all
material respects with all Requirements of Law applicable to it.
(vii) Cash Management Account. If the Seller applies any
amounts with respect to amounts on deposit in the Cash Management
Account to reduce the principal amount of any Receivable, the Seller
shall sell, transfer, assign, set over and otherwise convey such
amounts to the Buyer in the form of cash on the date so applied.
(viii) Enforcement of Agreements. The Seller will enforce,
on behalf of the Transferor (and its successors and assigns), the
Receivables and all rights sold to the Transferor under the Floorplan
Financing Agreements, the related Sales and Service Agreement,
intercreditor agreements with third-party creditors of Dealers with
respect to the Accounts and the related Repurchase Agreements.
(ix) Amounts Related to Adjustments. The Seller shall
sell, transfer, assign, set over and otherwise convey to the Buyer all
amounts received by the Seller from NNA or non-Nissan Manufacturers in
connection with any Dealer termination, on the date such amount is
received by the Seller.
Section 2.05 DESIGNATION OF ADDITIONAL ACCOUNTS.
(a) The Seller may from time to time offer to designate additional
Eligible Accounts as Accounts, subject to the conditions specified in paragraph
(b) below. If any such offer is accepted by the Buyer, Receivables and the
Related Security arising in connection with such Additional Accounts will be
sold to the Buyer effective on a date (the "Addition Date") specified in a
written notice provided by the Seller (or the Servicer on its behalf) to the
Buyer and any Series Enhancers specifying the Additional Cut-Off Date and the
Addition Date for such Additional Accounts (the "Addition Notice") on or before
the second Business Day but not more than the 30th day before the related
Addition Date (the "Notice Date").
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(b) The Seller will be permitted to sell to the Buyer the Receivables
and all Related Security in any Additional Accounts designated by the Seller as
such pursuant to Section 2.05(a) only upon satisfaction of each of the following
conditions on or before the related Addition Date:
(i) the Seller has provided the Buyer with a timely
Addition Notice;
(ii) the Seller has delivered to the Buyer a duly executed
written assignment (including an acceptance by the Buyer) in
substantially the form of Exhibit A (the "Assignment"), along with the
applicable Additional Account Schedule in accordance with Section
2.01(e)(iii);
(iii) the Seller has delivered to the Servicer all
Collections with respect to such Additional Accounts since the
Additional Cut-Off Date;
(iv) the Seller has represented and warranted that:
(A) each such Additional Account is an Eligible
Account as of the Additional Cut-Off Date;
(B) no selection procedures reasonably believed
by the Seller to be adverse to the interests of the Buyer, the
Noteholders or any Series Enhancers were used in selecting
such Additional Accounts;
(C) the Additional Account Schedule delivered
pursuant to clause (ii) above is true and correct in all
material respects as of the Additional Cut-Off Date;
(D) as of each of the Notice Date and the
Addition Date, the Seller is not insolvent nor will be made
insolvent by such sale and it is not aware of any events or
circumstances that could reasonably be expected to lead to its
insolvency; and
(E) the addition of the Receivables arising in
connection with such Additional Accounts will not, in the
reasonable belief of the Seller, cause an Early Amortization
Event to occur; and
(v) the Seller has delivered to the Buyer an Officer's
Certificate confirming, to the best of such officer's knowledge, the
satisfaction of each of the conditions set forth in clauses (i) through
(iv) above. The Buyer may conclusively rely on such Officer's
Certificate and has no duty to make inquiries with regard to the
matters set forth therein and will incur no liability in so relying.
(c) The Seller hereby represents and warrants on each applicable
Addition Date as to the matters set forth in clause (iv) of Section 2.05(b).
These representations and warranties will survive the sale and assignment of the
respective Receivables and the Related Security to the Buyer. Upon discovery by
the Seller or the Buyer of a breach of any of the foregoing representations and
warranties, the party discovering the breach will give prompt written notice
11
to the other party and to any Series Enhancers. If any such breach has a
material adverse effect on the related Receivable, the provisions of Section
2.03(c) will apply.
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO
SERVICER.
The Seller agrees to act as the Servicer under the Transfer and
Servicing Agreement and to fulfill duties specified as being duties of the
Servicer in this Agreement, and the Buyer consents to the Seller acting as the
Servicer. The Seller will have ultimate responsibility for servicing, managing
and making collections on the Receivables and will have the authority to make
any management decisions relating to such Receivables, to the extent such
authority is granted to the Servicer under this Agreement and the Transfer and
Servicing Agreement.
Section 3.02 SERVICING COMPENSATION.
The Servicer is entitled to receive the Servicing Fee on each Payment
Date, and payment thereof will constitute full compensation for its servicing
activities hereunder as well as under the Transfer and Servicing Agreement. The
Servicing Fee will be paid in accordance with the terms of the Transfer and
Servicing Agreement, the Indenture and Indenture Supplements.
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.01 MERGER OR CONSOLIDATION OF, OR ASSUMPTION, OF OBLIGATIONS
OF SELLER.
The Seller may not dissolve, liquidate, consolidate with or merge into
any other Person or convey, transfer or sell its properties and assets
substantially as an entirety to any Person unless:
(i) the Person (if other than the Seller) formed by or
surviving such consolidation or merger or that acquires by conveyance,
transfer or sale the properties and assets of the Seller substantially
as an entirety, as the case may be, will be organized and existing
under the laws of the United States of America or any state thereof or
the District of Columbia, and expressly assumes, by a supplemental
agreement executed and delivered to the Buyer, the Owner Trustee and
the Indenture Trustee, in form reasonably satisfactory to the Buyer and
the Indenture Trustee, the performance of every covenant and obligation
of the Seller hereunder;
(ii) the Person (if other than the Seller) formed by or
surviving such consolidation or merger or that acquires by conveyance,
transfer or sale the properties and assets of the Seller substantially
as an entirety, as the case may be, has delivered to the Buyer, the
Owner Trustee and the Indenture Trustee (with a copy to each Rating
Agency) an Officer's Certificate and an Opinion of Counsel each stating
that (A) such consolidation, merger, conveyance, transfer or sale and
such supplemental agreement provided in clause (i) above comply with
this Section, (B) such supplemental agreement is a valid and binding
obligation of such Person enforceable against such Person in
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accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally from time to
time in effect or general principles of equity, and (C) all conditions
precedent herein provided for relating to such transaction have been
complied with; and
(iii) the Rating Agency Condition has been satisfied with
respect to such consolidation, merger, conveyance, transfer or sale.
Section 4.02 SELLER INDEMNIFICATION OF BUYER.
The Seller will indemnify and hold harmless the Buyer, from and against
any loss, liability, expense, claim, damage or injury suffered or sustained by
the Buyer by reason of any acts, omissions or alleged acts or omissions arising
out of activities of the Seller pursuant to this Agreement or arising out of or
based on the arrangement created by this Agreement and the activities of the
Seller taken pursuant hereto, including any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Seller is not required to indemnify the Buyer for
any loss, liability, expense, claim, damage or injury of the Buyer resulting
from acts, omissions or alleged acts or omissions that constitute fraud, gross
negligence or willful misconduct by the Buyer; and, provided, further, that the
Seller is not required to indemnify the Buyer for any loss, liability, expense,
claim, damage or injury with respect to any United States federal, state or
local income or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by the Buyer in connection herewith to any taxing
authority. Any indemnification under this Article IV will survive the
termination of this Agreement.
ARTICLE V
TERMINATION
Section 5.01 TERMINATION OF AGREEMENT.
This Agreement will terminate immediately after the legal existence of
the Issuer terminates pursuant to the Trust Agreement. In addition, the Buyer
will immediately cease purchasing Receivables and the Seller will immediately
cease selling Receivables and will designate no Additional Accounts following
the occurrence of an Insolvency Event with respect to the Seller. The Seller
will give prompt written notice to each of the Buyer, the Owner Trustee, the
Indenture Trustee and each Rating Agency immediately following the occurrence of
an Insolvency Event. Notwithstanding any cessation of the sale of Receivables to
the Buyer following an Insolvency Event, Receivables sold to the Buyer before
the occurrence of an Insolvency Event and Collections in respect of such
Receivables will continue to be property of the Buyer available for transfer by
the Buyer to the Issuer pursuant to the Transfer and Servicing Agreement.
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ARTICLE VI
INTERCREDITOR PROVISIONS
Section 6.01 NONFLOORPLAN AGREEMENTS BETWEEN SELLER AND DEALER.
(a) With respect to any Dealer that is the obligor under Receivables
that have been or will be sold to the Buyer hereunder, the Seller may be or
become a lender to such Dealer under a Nonfloorplan Agreement pursuant to which
the Seller (either directly, or as assignee of the originator of the Account)
has been or may be granted a security interest in Common Collateral, which
Common Collateral may include the same Vehicle, accounts, chattel paper,
promissory notes, money and other proceeds (including insurance proceeds)
thereof, security deposits and other restricted or cash management account
balances in connection with the related Floorplan Financing Agreement, such
Dealer's rights under the related Sales and Service Agreement and personal
guarantees (collectively, the "Common Vehicle Collateral") in which such
Floorplan Financing Agreement creates a security interest. The Common Collateral
other than the related Common Vehicle Collateral is referred to herein as the
"Common Non-Vehicle Collateral."
(b) The Seller hereby agrees that (i) any security interest it now has
or may hereafter acquire from time to time in, to or under any and all Common
Vehicle Collateral (whether now existing or hereafter arising) shall, without
further action by the Seller, the Buyer or any other Person, at all times be
subordinate and junior in priority to any security interest in the Common
Vehicle Collateral created from time to time pursuant to the related Floorplan
Financing Agreements (and the Seller hereby agrees to take such further actions
as the Buyer, the Issuer or the Indenture Trustee may reasonably request to more
fully effectuate such subordination), (ii) it shall not foreclose or otherwise
realize upon any Common Vehicle Collateral (except in its capacity as Servicer,
acting for the benefit of the Noteholders and any Series Enhancers) or exercise
its rights under any Nonfloorplan Agreement (or otherwise) with respect to any
Common Vehicle Collateral (including, without limitation, by way of setoff
against any deposit or other amount at any time owing by Seller to the related
Dealer), in each case, in any manner that is materially adverse to the Buyer,
the Issuer or the Noteholders, until all scheduled or required payments in
respect of the Receivables under the related Floorplan Financing Agreement(s)
have been paid in full and (iii) in realizing upon such Common Vehicle
Collateral, neither the Buyer, the Issuer nor the Indenture Trustee has any
obligation to notify the Seller or to protect or preserve the rights of the
Seller in such Common Vehicle Collateral (and, without limiting the generality
of the foregoing, the Buyer, the Issuer and the Indenture Trustee may liquidate
or otherwise deal with the Common Vehicle Collateral as it or they deem
appropriate). Buyer agrees that if another creditor of a Dealer has a security
interest in any Common Non-Vehicle Collateral, such security interest may be
senior to the interest therein of the Buyer and Seller has no obligation
whatsoever to attempt to remove or challenge or satisfy such other security
interest in any manner or to limit in any way the exercise of remedies by such
other creditor with respect thereto, and is not responsible for replacing any
such Common Non-Vehicle Collateral or for any shortfalls or loss, claims or
damages relating to or resulting therefrom whatsoever.
(c) The Buyer hereby agrees that (i) any security interest it now has
or may hereinafter acquire from time to time in, to or under any and all Common
Non-Vehicle Collateral (whether
14
now existing or hereafter arising) shall, without further action by the Seller,
the Buyer or any other Person, at all times be subordinate and junior in
priority to any security interest in the Common Non-Vehicle Collateral created
from time to time pursuant to the related Nonfloorplan Agreements (and the Buyer
hereby agrees to take such further actions as the Seller may reasonably request
to more fully effectuate such subordination), (ii) it shall not foreclose or
otherwise realize upon any Common Non-Vehicle Collateral or exercise its rights
under any Floorplan Financing Agreement (or otherwise) with respect to any
Common Non-Vehicle Collateral, in each case, in any manner that is materially
adverse to the Seller, until all scheduled or required payments in respect of
the obligations created or secured by the Nonfloorplan Agreement(s) have been
paid in full and (iii) in realizing on such Common Non-Vehicle Collateral, the
Seller has no obligation to notify the Buyer, the Issuer or the Indenture
Trustee or to protect or preserve the rights of the Buyer, the Issuer or the
Indenture Trustee in such Common Non-Vehicle Collateral (and, without limiting
the generality of the foregoing, the Seller may liquidate or otherwise deal with
the Common Vehicle Collateral as it deems appropriate). The Transfer and
Servicing Agreement will provide that the Issuer is subject to the preceding
sentence.
(d) If the Seller in any manner assigns or transfers any rights under,
or any obligation evidenced or secured by, a Nonfloorplan Agreement, the Seller
will make such assignment or transfer subject to the provisions of this Article
VI and require such assignee or transferee to acknowledge that it takes such
assignment or transfer subject to the provisions of this Article VI and to agree
that it will require the same acknowledgment from any subsequent assignee or
transferee.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the Seller and
the Buyer without the consent of any Noteholder and with notice to each Rating
Agency; provided, however, that such amendment does not adversely affect in any
material respect the interests of any Noteholder. The absence of any material
adverse effect may be evidenced by (i) satisfaction of the Rating Agency
Condition and (ii) an Opinion of Counsel for the Seller, addressed and delivered
to the Owner Trustee and the Indenture Trustee, confirming that such amendment
does not adversely affect in any material respect the interests of any
Noteholder.
(b) This Agreement may also be amended from time to time by the Buyer
and the Seller with the consent of the Holders of Notes evidencing not less than
66-2/3% of the Outstanding Principal Amount of the Notes of all materially
adversely affected Series, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Seller; provided, however, that the
Rating Agency Condition is satisfied with respect to such amendment and no such
amendment may (i) reduce in any manner the amount of or delay the timing of any
distributions to be made to Noteholders or deposits of amounts to be so
distributed or the amount available under any Series Enhancement without the
consent of each affected Noteholder; provided that changes in
15
Early Amortization Events that decrease the likelihood of the occurrence of
those events will not be considered delays in the timing of distributions for
purposes of this clause, (ii) change the definition of or the manner of
calculating the interest of any Noteholders without the consent of each affected
Noteholder, (iii) reduce the aforesaid percentage required to consent to any
such amendment without the consent of each Noteholder or (iv) adversely affect
the rating of any Series or Class by any Rating Agency without the consent of
the Holders of Notes of such Series or Class evidencing at least 66-2/3% of the
Outstanding Principal Amount of the Notes of such Series or Class. Any amendment
to be effected pursuant to this paragraph will be deemed to materially adversely
affect all outstanding Series, other than any Series with respect to which such
action will not, as evidenced by an Opinion of Counsel for the Seller, addressed
and delivered to the Owner Trustee and the Indenture Trustee, adversely affect
in any material respect the interests of any Noteholder of such Series.
(c) Promptly after the execution of any such amendment or consent
(other than an amendment pursuant to paragraph (a)), the Seller will furnish
notification of the substance of such amendment to each Noteholder and each
Series Enhancer.
(d) If the Noteholders are required to consent to any proposed
amendments pursuant to this Section, such Noteholders need not consent to or
approve the particular form of such amendment. The manner of obtaining such
consents and of evidencing the authorization of the execution thereof by
Noteholders is subject to such reasonable requirements as the Indenture Trustee
prescribes.
(e) Notwithstanding anything in this Section to the contrary, no
amendment may be made to this Agreement that would adversely affect in any
material respect the interests of any Series Enhancer without the consent of
such Series Enhancer.
Section 7.02 PROTECTION OF RIGHT, TITLE AND INTEREST TO RECEIVABLES.
(a) The Seller will cause this Agreement, all amendments hereto and/or
all financing statements and continuation statements and any other necessary
documents covering the Buyer's right, title and interest to the Receivables and
Related Security to be promptly recorded, registered and filed, and at all times
to be kept recorded, registered and filed, all in such manner and in such places
as may be required by law fully to preserve and protect the right, title and
interest of the Buyer hereunder. The Seller will deliver to the Buyer
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Buyer will cooperate fully with the
Seller in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this Section.
(b) Within 30 days after the Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with Section 7.02(a) seriously
misleading within the meaning of the UCC as in effect in the applicable
jurisdiction, the Seller will give the Buyer notice of any such change and file
such financing statements or amendments as may be necessary to continue the
perfection of the Buyer's security interest in the Receivables and the proceeds
thereof.
16
(c) The Seller will give the Buyer prompt written notice of any (i)
relocation of any office at which it keeps records concerning the Receivables or
of its principal executive office and (ii) change in the Seller's jurisdiction
of incorporation and whether, 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 will file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Buyer's security
interest in the Receivables and the proceeds thereof. The Seller will at all
times maintain its principal executive office and jurisdiction of incorporation
within the United States of America.
(d) The Seller will deliver to the Buyer, upon the execution and
delivery of each amendment of this Agreement, an Opinion of Counsel to the
effect that any such amendment of this Agreement:
(i) has been entered into in accordance with the terms of
this Agreement; and
(ii) has been duly authorized, executed and delivered by
the Seller and constitutes the legal, valid and binding agreement of
the Seller, enforceable in accordance with its terms.
Section 7.03 LIMITED RECOURSE.
Notwithstanding anything to the contrary contained herein, the
obligations of the Buyer hereunder will not be recourse to the Buyer (or any
person or organization acting on behalf of the Buyer or any Affiliate, officer
or director of the Buyer), other than to (a) the amount by which the Adjusted
Pool Balance on any date of determination exceeds the Required Pool Balance and
(b) any other assets of the Buyer not pledged to third parties or otherwise
encumbered in a manner permitted by the Buyer's organizational documents;
provided, however, that any payment by the Buyer made in accordance with this
Section will be made only after payment in full of any amounts that the Seller
is obligated to deposit into the Collection Account and any Series Accounts
pursuant to this Agreement; and, provided, further, that the Noteholders will be
entitled to the benefits of the subordination of the Collections allocable to
the Transferor Interest to the extent provided in the Indenture Supplements.
Section 7.04 NO PETITION.
The Seller hereby covenants and agrees that it will not at any time
institute against the Buyer or the Issuer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law.
Section 7.05 GOVERNING LAW.
This Agreement shall be construed in accordance with the 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 hereunder shall be
determined in accordance with such laws.
17
Section 7.06 NOTICES.
All notices, demands, instructions and other communications required or
permitted under this Agreement must be in writing and will be deemed to have
duly given if personally delivered or sent by first class or express mail
(postage prepaid), national overnight courier service or by facsimile
transmission or other electronic communication device capable of transmitting or
creating a written record and followed by first class mail. Unless otherwise
specified in a notice sent in accordance with the provisions of this Section,
notices, demands, instructions and other communications in writing will be given
to the respective parties at their respective addresses indicated in the
Transfer and Servicing Agreement. All notices are effective on receipt.
Section 7.07 SEVERABILITY OF PROVISIONS.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 7.08 ASSIGNMENT.
Notwithstanding anything to the contrary contained herein, this
Agreement may not be assigned by the Seller without the prior consent of the
Buyer and the Indenture Trustee, and satisfaction of the Rating Agency
Condition. The Buyer may (and will) assign its rights, remedies, powers and
privileges under this Agreement to the Issuer pursuant to the Transfer and
Servicing Agreement and the Issuer may (and will) pledge its assigned rights,
remedies, powers and privileges under this Agreement to the Indenture Trustee
pursuant to the Indenture.
Section 7.09 FURTHER ASSURANCES.
The Seller agrees to do and perform, from time to time, any and all
acts and to execute any and all further instruments required or reasonably
requested by the Buyer more fully to effect the purposes of this Agreement,
including the execution of any financing statements or continuation statements
relating to the Receivables for filing under the provisions of the UCC of any
applicable jurisdiction.
Section 7.10 NO WAIVER; CUMULATIVE REMEDIES.
No failure to exercise and no delay in exercising, on the part of the
Buyer, any right, remedy, power or privilege under this Agreement will operate
as a waiver thereof; nor will any single or partial exercise of any right,
remedy, power or privilege under this Agreement preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
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Section 7.11 COUNTERPARTS.
This Agreement may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which will be an original,
but all of which together will constitute one and the same instrument.
Section 7.12 THIRD-PARTY BENEFICIARIES.
This Agreement will be binding upon and inure to the benefit of the
parties hereto, the Indenture Trustee, the Issuer, the Noteholders, the holders
of the Transferor Interest and any Series Enhancers and their respective
successors and permitted assigns. Except as otherwise provided in this
Agreement, no other Person will have any right or obligation hereunder.
Section 7.13 MERGER AND INTEGRATION.
Except as specifically stated otherwise herein, this Agreement sets
forth the entire understanding of the parties relating to the subject matter
hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived, or supplemented
except as provided herein.
Section 7.14 HEADINGS.
The headings herein are for purposes of reference only and are not
intended to otherwise affect the meaning or interpretation of any provision
hereof.
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IN WITNESS WHEREOF, the Seller and the Buyer have caused this
Receivables Purchase Agreement to be duly executed by their respective duly
authorized officers as of the day and year first above written.
NISSAN MOTOR ACCEPTANCE
CORPORATION, as Seller
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
NISSAN WHOLESALE RECEIVABLES
CORPORATION II, as Buyer
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
[A/R Receivables Purchase Agmt]
S-1
Exhibit A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Section 2.05
of the Receivables Purchase Agreement)
This ASSIGNMENT NO. ___ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as
of [________ __, 200_], is by and between NISSAN MOTOR ACCEPTANCE CORPORATION,
as Seller, and NISSAN WHOLESALE RECEIVABLES CORPORATION II, as Buyer, pursuant
to the Receivables Purchase Agreement referred to below.
RECITALS
A. The Seller and the Buyer are parties to a Receivables Purchase
Agreement, dated as of [_______], 2003 (as amended, supplemented or otherwise
modified from time to time, the "Receivables Purchase Agreement").
B. Pursuant to the Receivables Purchase Agreement, the Seller
wishes to designate Additional Accounts as Accounts and to sell the Receivables
and Related Security arising in connection with such Additional Accounts,
whether now existing or hereafter created, to the Buyer, to be further
transferred to the Issuer and pledged to the Indenture Trustee.
C. The Buyer is willing to accept such designation and sale
subject to the terms and conditions hereof.
The Seller and the Buyer hereby agree as follows:
STATEMENT OF AGREEMENT
1. Defined Terms. All capitalized terms used herein have the
meanings ascribed to them in the Annex of Definitions or the Receivables
Purchase Agreement unless otherwise defined herein:
"Addition Date" means, with respect to the Additional Accounts
designated hereby, __________, 20__.
"Additional Cut-Off Date" means, with respect to the Additional
Accounts designated hereby, __________, 20__.
2. Designation of Additional Accounts. The Seller hereby delivers
herewith an Additional Account Schedule specifying for each such Additional
Account, as of the Additional Cut-Off Date, its account number and the aggregate
amount of Principal Receivables of such Account.
3. Sale of Receivables. The Seller does hereby sell, transfer,
assign, set over and otherwise convey, without recourse (except as expressly
provided in the Receivables Purchase Agreement), to the Buyer, on the Addition
Date all of its right, title and interest in, to and under
A-1
the Receivables arising in connection with such Additional Accounts and all
Related Security with respect thereto, owned by the Seller and existing at the
close of business on the Additional Cut-Off Date and thereafter created from
time to time, all monies due or to become due and all amounts received with
respect thereto (including all amounts on deposit in the Cash Management Account
as applied to reduce the principal amount of any Receivable) and all proceeds
(including "proceeds" as defined in the UCC as in effect in the applicable
jurisdiction) and Recoveries thereof. The foregoing sale, transfer, assignment,
set-over and conveyance does not constitute and is not intended to result in the
creation, or an assumption by the Buyer, of any obligation of the Servicer, the
Seller, Nissan Motor Company Ltd., Nissan North America Inc. or any other Person
in connection with the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any Dealers or Nissan
North America Inc.
In connection with such sale, the Seller agrees to record and file, at
its own expense, a financing statement on form UCC-1 (and continuation
statements when applicable) with respect to the Receivables now existing and
hereafter created for the sale of chattel paper or accounts (as defined in the
UCC as in effect in the applicable jurisdiction) meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect the sale and assignment of the Receivables and the Related Security
to the Buyer, and to deliver a file-stamped copy of such financing statements or
other evidence of such filing to the Buyer on or before the Addition Date. The
Buyer is under no obligation whatsoever to file such financing statement, or a
continuation statement to such financing statement, or to make any other filing
under the UCC in connection with such sale. The parties hereto intend that the
sales of Receivables effected by this Assignment be sales.
In connection with such sale, the Seller further agrees, at its own
expense, on or before the Addition Date, to indicate in its computer files that
the Receivables and the Related Security: (A) have been sold or assigned, as the
case may be, to the Buyer pursuant to this Assignment, then (B) transferred by
the Buyer to the Issuer pursuant to the Transfer and Servicing Agreement and
then (C) pledged by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders and any Series Enhancers.
4. Acceptance by Buyer. Subject to the satisfaction of the
conditions set forth in Section 2.05(b) of the Receivables Purchase Agreement,
the Buyer hereby acknowledges its acceptance of all right, title and interest to
the property, now existing and hereafter created, sold to the Buyer pursuant to
Section 3 of this Assignment. The Buyer further acknowledges that, before or
simultaneously with the execution and delivery of this Assignment, the Seller
delivered to the Buyer the Additional Account Schedule described in Section 2 of
this Assignment.
5. Representations and Warranties of Seller. The Seller hereby
represents and warrants to the Buyer, on behalf of the Issuer, as of the date of
this Assignment and as of the Addition Date that:
(i) Organization and Good Standing. The Seller is a corporation
duly organized and validly existing and in good standing under the laws of the
State of California and has, in all material respects, full power, authority and
legal right to own its properties and conduct its
A-2
business as such properties are currently owned and such business is currently
conducted, and to execute, deliver and perform its obligations under this
Assignment.
(ii) Due Qualification. The Seller is duly qualified to do business
and, where necessary, is in good standing as a foreign corporation (or is exempt
from such requirement) and has obtained all necessary licenses and approvals in
each jurisdiction where the conduct of its business requires such qualification
except where the failure to so qualify or obtain licenses or approvals would not
have a material adverse effect on its ability to perform its obligations
hereunder.
(iii) Due Authorization. The Seller has duly authorized by all
necessary action on its part the execution and delivery of this Assignment and
the consummation of the transactions provided for or contemplated by this
Assignment.
(iv) No Conflict. The Seller's execution and delivery of this
Assignment, its performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof applicable to it, will not conflict
with, result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material default
under, any material indenture, contract, agreement, mortgage, deed of trust or
other instrument to which the Seller is a party or by which it or its properties
are bound.
(v) No Violation. The Seller's execution and delivery of this
Assignment, its performance of the transactions contemplated by this Assignment
and the fulfillment of the terms hereof applicable to it, will not conflict with
or violate any material Requirements of Law applicable to it.
(vi) No Proceedings. There are no proceedings pending or, to the
best of its knowledge, no proceedings threatened or investigations pending or
threatened against the Seller before or by any Governmental Authority (A)
asserting the invalidity of this Assignment, (B) seeking to prevent the
consummation of any of the transactions contemplated by this Assignment, (C)
seeking any determination or ruling that, in its reasonable judgment, would
materially and adversely affect the performance of its obligations under this
Assignment, (D) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Assignment or (E)
seeking to affect adversely the income tax characterization of the Issuer under
the United States federal or any other applicable state or local jurisdiction's
income, single business or franchise tax systems.
(vii) All Consents Required. All material authorizations, consents,
orders, approvals or other actions of any Governmental Authority required to be
obtained or effected by the Seller in connection with its execution and delivery
of this Assignment, its performance of the transactions contemplated by this
Assignment and the fulfillment of the terms hereof applicable to it, have been
obtained or effected.
(viii) Enforceability. This Assignment constitutes a legal, valid and
binding obligation of the Seller, enforceable against it in accordance with the
terms hereof, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium
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or other similar laws now or hereafter in effect affecting creditors' rights in
general and except as such enforceability may be limited by general principles
of equity (whether considered in a suit at law or in equity).
(ix) Valid Sale. This Assignment constitutes a valid sale, transfer
and assignment to the Buyer of all right, title and interest of the Seller in
the Receivables and the Related Security and the proceeds thereof and upon the
filing of the financing statements described in Section 3 of this Assignment
and, in the case of the Receivables and the Related Security hereafter created
and the proceeds thereof, upon the creation thereof, the Buyer will have a first
priority perfected ownership interest in the Receivables and the related
Vehicles, and a subordinated security interest in any parts inventory,
equipment, fixtures, service accounts, realty or personal guarantees with
respect to a related Dealer.
7. Ratification of Agreement. As supplemented by this Assignment,
the Receivables Purchase Agreement is in all respects ratified and confirmed and
the Receivables Purchase Agreement as so supplemented by this Assignment is to
be read, taken and construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or more
counterparts (and by different parties in separate counterparts), each of which
will be an original but all of which together will constitute one and the same
instrument.
9. Governing Law. THIS ASSIGNMENT IS TO BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER ARE TO BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Buyer and the Seller have caused this
Assignment to be duly executed by their respective duly authorized officers as
of the day and year first above written.
NISSAN MOTOR ACCEPTANCE
CORPORATION,
as Seller
By ________________________________
Name:
Title:
NISSAN WHOLESALE RECEIVABLES
CORPORATION II,
as Buyer
By ________________________________
Name:
Title:
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Schedule 1
ACCOUNT SCHEDULE
Schedule 1-1
