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Exhibit 4.3 PURCHASE AGREEMENT between NISSAN
MOTOR ACCEPTANCE CORPORATION
as Seller, and NISSAN AUTO RECEIVABLES CORPORATION II,
as Purchaser Dated as of December 11, 2008 (Nissan 2008-C
Purchase Agreement)
PURCHASE AGREEMENT
This
PURCHASE AGREEMENT is made as of December 11, 2008, by and
between NISSAN MOTOR ACCEPTANCE CORPORATION, a California
corporation (the "Seller"), having its principal executive office
at One Nissan Way, Franklin, Tennessee 37067, and NISSAN AUTO
RECEIVABLES CORPORATION II, a Delaware corporation (the
"Purchaser"), having its principal executive office at One Nissan
Way, Franklin, Tennessee 37067.
WHEREAS,
in the regular course of its business, the Seller purchases certain
motor vehicle retail installment sale contracts secured by new,
near-new and used automobiles and light duty trucks from motor
vehicle dealers.
WHEREAS,
the Seller and the Purchaser wish to set forth the terms pursuant
to which the Receivables (as hereinafter defined) and certain other
property are to be sold by the Seller to the Purchaser, which
Receivables will be transferred by the Purchaser pursuant to the
Sale and Servicing Agreement (as hereinafter defined), to the
NISSAN AUTO RECEIVABLES 2008-C OWNER TRUST (the "Trust"), which
will issue notes backed by such Receivables and the other property
of the Trust (the "Notes") and certificates representing fractional
undivided interests in such Receivables and the other property of
the Trust (the "Certificates").
NOW,
THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants
contained herein, the parties hereto agree as follows: ARTICLE
I CERTAIN DEFINITIONS
Terms
not defined in this Agreement shall have the respective meanings
assigned such terms set forth in the Sale and Servicing Agreement,
the Indenture or Trust Agreement, as the case may be. As used in
this Agreement, the following terms shall, unless the context
otherwise requires, have the following meanings (such meanings to
be equally applicable to the singular and plural forms of the terms
defined):
"
Agreement " means this Purchase Agreement and all amendments
hereof and supplements hereto.
"
Assignment " means the document of assignment attached to
this Agreement as Exhibit A .
"
Certificates " shall have the meaning specified in the
introductory paragraphs of this Agreement.
"
Closing " shall have the meaning specified in
Section 2.2.
"
Closing Date " means December 11, 2008. (Nissan 2008-C
Purchase Agreement)
1
"
Damages " shall have the meaning specified in
Section 5.4(a).
"
Indenture " means the Indenture dated as of the Closing
Date, between the Trust and Deutsche Bank Trust Company Americas,
as Indenture Trustee.
"
Initial Interest Rate Swap Agreement " means each interest
rate swap agreement for a Class of Floating Rate Notes, dated as of
the Closing Date, executed between the Issuer and the Initial Swap
Counterparty, consisting of an ISDA Master Agreement, the schedule
thereto, the credit support annex thereto, if applicable, and the
relevant confirmation for such Class of Floating Rate Notes, as the
same may be amended or supplemented from time to time in accordance
with the terms thereof.
"
Initial Swap Counterparty means HSBC Bank USA, National
Association, as the Swap Counterparty under each Initial Interest
Rate Swap Agreement.
"
Interest Rate Swap Agreement(s) " means each Initial
Interest Rate Swap Agreement and Replacement Interest Rate Swap
Agreement, if any.
"
Notes " shall have the meaning specified in the introductory
paragraphs of this Agreement.
"
Prospectus " has the meaning assigned to such term in the
Underwriting Agreement.
"
Purchaser " means Nissan Auto Receivables Corporation II, a
Delaware corporation, and its successors and assigns.
"
Receivable " means any retail installment sale contract that
appears on the Schedule of Receivables.
"
Receivables Purchase Price " means $ 575,974,881.09.
"
Repurchase Event " shall have the meaning specified in
Section 6.2.
"
Sale and Servicing Agreement " means the Sale and Servicing
Agreement by and among Nissan Auto Receivables Corporation II, as
seller, Nissan Motor Acceptance Corporation, as servicer, and the
Trust dated as of the Closing Date, as the same may be amended,
amended and restated, supplemented or modified.
"
Schedule of Receivables " means the list of Receivables
annexed to the Assignment as Schedule A thereto.
"
Securities " means the Notes and the Certificates.
"
Seller " means Nissan Motor Acceptance Corporation, a
California corporation, and its successors and assigns. (Nissan
2008-C Purchase Agreement)
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"
Swap Counterparty " means an unaffiliated third party, as
swap counterparty under each Initial Interest Rate Swap Agreement,
or any successor or replacement swap counterparty (including any
Replacement Swap Counterparty) from time to time.
"
Trust " means the Nissan Auto Receivables 2008-C Owner
Trust, a Delaware statutory trust.
"
Trust Agreement " means the Trust Agreement dated as of
August 1, 2008, as amended by the Amended and Restated Trust
Agreement by and between Nissan Auto Receivables Corporation II, as
seller, and Wilmington Trust Company, as owner trustee, dated as of
the Closing Date, as the same may be amended, amended and restated,
supplemented or modified.
"
UCC " means the Uniform Commercial Code as in effect in the
relevant jurisdiction.
"
Underwriting Agreement " means the Underwriting Agreement by
and among J.P. Morgan Securities Inc., as representative of the
several underwriters, the Purchaser and the Seller dated
December 2, 2008.
With
respect to all terms in this Agreement, the singular includes the
plural and the plural the singular; words importing any gender
include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words
in a visible form; references to agreements and other contractual
instruments include all subsequent amendments, amendments and
restatements, and supplements thereto or changes therein entered
into in accordance with their respective terms and not prohibited
by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments
and supplements, the rules and regulations thereunder and any
successors thereto; the term "including" means "including without
limitation;" and the term "or" is not exclusive. ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1
Purchase and Sale of Receivables.
On the
Closing Date, subject to the terms and conditions of this
Agreement, the Seller agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from the Seller, the Receivables and
the other property relating thereto (as defined below).
(a)
Transfer of Receivables . On the Closing Date and
simultaneously with the transactions pursuant to the Sale and
Servicing Agreement, the Seller shall sell, transfer, assign and
otherwise convey to the Purchaser, without recourse:
(i) all
right, title and interest of the Seller in and to the Receivables
(including all related Receivable Files) and all monies due thereon
or paid thereunder or in respect thereof after the Cutoff Date;
(Nissan 2008-C Purchase Agreement)
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(ii)
the right of the Seller in the security interests in the Financed
Vehicles granted by the Obligors pursuant to the Receivables and
any related property;
(iii)
the right of the Seller in any proceeds from claims on any physical
damage, credit life, credit disability or other insurance policies
covering Financed Vehicles or Obligors;
(iv)
the right of the Seller to receive payments in respect of any
Dealer Recourse with respect to the Receivables;
(v) the
right of the Seller to realize upon any property (including the
right to receive future Net Liquidation Proceeds) that shall have
secured a Receivable;
(vi)
the right of the Seller in rebates of premiums and other amounts
relating to insurance policies and other items financed under the
Receivables in effect as of the Cut-off Date; and
(vii)
all proceeds of the foregoing; provided that the Seller
shall not be required to deliver to the Purchaser on the Closing
Date monies received in respect of the Receivables after the
Cut-off Date and before the Closing Date but shall or shall cause
the Servicer to deposit such monies into the Collection Account no
later than the first Record Date after the Closing Date.
(b)
Receivables Purchase Price . In consideration for the
Receivables and other properties described in Section 2.1(a),
the Purchaser shall, on the Closing Date, pay to the Seller the
Receivables Purchase Price. An amount equal to approximately 96.4%
of the Receivables Purchase Price shall be paid to the Seller,
73.15% to be paid in cash by federal wire transfer (same day) funds
and 23.26% to be paid in Class A-4 Notes. The remaining
approximately 3.59% of the Receivables Purchase Price shall
constitute a capital contribution by the Purchaser to the Seller.
(c)
The Closing . The sale and purchase of the Receivables shall
take place at a closing (the "Closing") at the offices of Mayer
Brown LLP, 350 South Grand Avenue, Los Angeles, CA 90071 on the
Closing Date, simultaneously with the closings under: (a) the
Sale and Servicing Agreement pursuant to which (i) the
Purchaser will assign all of its right, title and interests in and
to the Receivables and other property conveyed pursuant to
Section 2.1(a) to the Trust for the benefit of the
Securityholders and the Swap Counterparty; and (ii) the
Purchaser will deposit the foregoing into the Trust in exchange for
the Securities; and (b) the Underwriting Agreement, pursuant
to which the Purchaser will sell to the underwriters named therein
the Notes. ARTICLE III REPRESENTATIONS AND WARRANTIES
3.1
Warranties of the Purchaser . The Purchaser hereby
represents and warrants to the Seller as of the date hereof and as
of the Closing Date: (Nissan 2008-C Purchase Agreement)
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(a)
Organization, etc. The Purchaser has been duly organized and
is validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and authority
to execute and deliver this Agreement and to perform the terms and
provisions hereof.
(b)
Due Authorization and No Violation . This Agreement has been
duly authorized, executed and delivered by the Purchaser, and
constitutes a legal, valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, subject to the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors’ rights generally and to general
equitable principles. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof do not conflict with, result in a breach of any of the terms
or provisions of, nor constitute (with or without notice or lapse
of time) a default under, or result in the creation or imposition
of any Lien upon any of the property or assets of the Purchaser
pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease financing agreement or similar
agreement or instrument under which the Purchaser is a debtor or
guarantor, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or the By-laws of
the Purchaser; which breach, default, conflict, Lien or violation
in any case would have a material adverse effect on the ability of
the Purchaser to perform its obligations under this Agreement.
(c)
No Litigation . There are no proceedings or investigations
pending to which the Purchaser is a party or of which any property
of the Purchaser is the subject, and, to the best of the
Purchaser’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
other than such proceedings that would not have a material adverse
effect upon the ability of the Purchaser to perform its obligations
under, or the validity and enforceability of, this Agreement.
3.2
Representations and Warranties of the Seller . (a) The
Seller hereby represents and warrants to the Purchaser as of the
date hereof and as of the Closing Date:
(i)
Organization, etc. The Seller has been duly organized and is
validly existing as a corporation in good standing under the laws
of the State of California and is in good standing in each
jurisdiction in the United States of America in which the conduct
of its business or the ownership of its property requires such
qualification and where the failure to so qualify would have a
material adverse effect on the ability of the Seller to perform its
obligations under this Agreement.
(ii)
Power and Authority . The Seller has the corporate power and
authority to sell and assign the property sold and assigned to the
Purchaser hereunder and has duly authorized such sale and
assignment to the Purchaser by all necessary corporate action. This
Agreement has been duly authorized, executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable in accordance with its terms, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors’ rights generally and
by general equitable principles. (Nissan 2008-C Purchase
Agreement)
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(iii)
No Violation . The consummation of the transaction
contemplated by this Agreement, and the fulfillment of the terms
hereof, do not conflict with, or result in a breach of any of the
terms or provisions of, nor constitute (with or without notice or
lapse of time) a default under, or result in the creation or
imposition of any Lien upon any of the property or assets of the
Seller pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement or
similar agreement or instrument under which the Seller is a debtor
or guarantor, nor will such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the
Seller; which breach, default, conflict, Lien or violation in any
case would have a material adverse effect on the ability of the
Seller to perform its obligations under this Agreement.
(iv)
No Proceedings . There are no proceedings or investigations
pending to which the Seller is a party or of which any property of
the Seller is the subject, and, to the best of the Seller’s
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, other than such
proceedings that would not have a material adverse effect upon the
ability of the Seller to perform its obligations under, or the
validity and enforceability of, this Agreement.
(b) The
Seller makes the following representations and warranties as to the
Receivables on which the Purchaser relies in accepting the
Receivables. Such representations and warranties speak as of the
execution and delivery of this Agreement, but shall survive the
sale, transfer, and assignment of the Receivables to the Purchaser
hereunder and the subsequent assignment and transfer pursuant to
the Sale and Servicing Agreement:
(i)
Characteristics of Receivables . Each Receivable
(a) has been originated in the United States of America by a
Dealer for the retail sale of a Financed Vehicle in the ordinary
course of such Dealer’s business, has been fully and properly
executed or authenticated by the parties thereto, has been
purchased by the Seller from such Dealer under an existing dealer
agreement with the Seller, and has been validly assigned by such
Dealer to the Seller, (b) created a valid, subsisting and
enforceable security interest in favor of the Seller in such
Financed Vehicle, (c) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof
are adequate for realization against the collateral of the benefits
of the security, (d) provides for level monthly payments
(provided that the payment in the first or last month in the life
of the Receivable may be minimally different from the level
payment) that fully amortize the Amount Financed over an original
term of no greater than 72 payments, and (e) provides for
interest at the related Annual Percentage Rate.
(ii)
Schedule of Receivables . The information set forth in
Schedule A to this Agreement was true and correct in
all material respects as of the opening of business on the Cut-off
Date; the Receivables were selected from the Seller’s retail
installment sale contracts meeting the criteria of the Trust set
forth in the Sale and Servicing Agreement; and no selection
procedures believed to be adverse to the Securityholders and the
Swap Counterparty were utilized in selecting the Receivables.
(Nissan 2008-C Purchase Agreement)
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(iii)
Compliance with Law . Each Receivable, the origination of
such Receivable, and the sale of the Financed Vehicle complied at
the time it was originated or made and at the execution of this
Agreement complies in all material respects with all requirements
of applicable federal, state and local laws, and regulations
thereunder, including usury laws, the Federal Truth-in-Lending Act,
the Equal Credit Opportunity Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade
Commission Act, the Magnuson-Moss Warranty Act, the Servicemembers
Civil Relief Act, the Federal Reserve Board’s Regulations B
and Z, the Gramm-Leach-Bliley Act and state adaptations of the
National Consumer Credit Protection Act and of the Uniform Consumer
Credit Code, state "Lemon Laws" designed to prevent fraud in the
sale of automobiles and other consumer credit laws and equal credit
opportunity and disclosure laws.
(iv)
Binding Obligation . Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its
terms, subject to (i) the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
creditors’ rights generally, (ii) the effect of general
equitable principles and (iii) the potential unenforceability
of waivers of jury trial in certain states.
(v)
Security Interest in Financed Vehicle . (a) Immediately
prior to the sale, assignment and transfer thereof to the
Purchaser, each Receivable was secured by a validly perfected first
priority security interest in the Financed Vehicle in favor of the
Seller as secured party or all necessary or all appropriate actions
shall have been commenced that would result in the valid perfection
of a first priority security interest in the Financed Vehicle in
favor of the Seller as secured party, and (b) as of the
Cut-off Date, according to the records of the Seller, no Financed
Vehicle has been repossessed and the possession thereof not
reinstated.
(vi)
Receivables in Force . No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been
released from the lien granted by the related Receivable in whole
or in part.
(vii)
No Waiver . No provision of a Receivable has been waived in
such a manner that is prohibited by the provisions of the Sale and
Servicing Agreement or that would cause such Receivable to fail to
meet all of the other requirements and warranties made by the
Seller herein with respect thereto.
(viii)
No Defenses . No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, including the defense
of usury, and the operation of any of the terms of any Receivable,
or the exercise of any right thereunder, will not render such
Receivable unenforceable in whole or in part or subject such
Receivable to any right of rescission, setoff, counterclaim or
defense, including the defense of usury, and no such right of
rescission, setoff, counterclaim or defense has been asserted with
respect thereto.
(ix)
No Liens . To the Seller’s knowledge, no liens have
been filed for work, labor or materials relating to a Financed
Vehicle that shall be liens prior to, or (Nissan 2008-C Purchase
Agreement)
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equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable.
(x)
No Default . Except for payment defaults continuing for a
period of not more than 29 days as of the Cut-off 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 Receivab
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