<PAGE> 1
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: February 2, 2000
(Date of earliest event reported)
NISSAN AUTO RECEIVABLES CORPORATION
ON BEHALF OF NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
--------------------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 333-82763 33-0479655
(State or Other Jurisdiction of (Commission File Number) (I.R.S. Employer
Incorporation) Identification No.)
</TABLE>
990 WEST 190TH STREET
TORRANCE, CALIFORNIA 90502
----------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: (310) 719-8013
ITEM 5. OTHER EVENTS
On January 27, 2000, Nissan Auto Receivables Corporation ("NARC")
and Nissan Motor Acceptance Corporation ("NMAC") entered into that certain
Purchase Agreement, dated as of January 27, 2000 (the "Purchase Agreement"),
pursuant to which NMAC transferred to NARC certain retail installment sales
contracts relating to certain new, near-new and used automobiles and light-duty
trucks (the "Receivables") and related property. On January 27, 2000, Nissan
Auto Receivables 2000-A Owner Trust (the "Trust"), a Delaware business trust
created pursuant to that certain Trust Agreement, dated as of December 21, 1999,
as amended by the Amended and Restated Trust Agreement, dated as of January 27,
2000 (the "Amended and Restated Trust Agreement"), by and between NARC, as
depositor, and Wilmington Trust Company, as owner trustee, entered into that
certain Sale and Servicing Agreement, dated as of January 27, 2000 (the "Sale
and Servicing Agreement"), with NARC, as seller, and NMAC, as servicer, pursuant
to which the Receivables and related property were transferred to the Trust.
Also on January 27, 2000, the Trust caused the issuance, pursuant to an
Indenture, dated as of January 27, 2000 (the "Indenture"), by and between the
Trust, as issuer, and Norwest Bank Minnesota, National Association, as indenture
trustee (the "Indenture Trustee"), of the Notes in the following classes: Class
A-1, Class A-2, Class A-3 and Class A-4 (collectively, the "Notes"). Also on
January 27, 2000, NARC, as seller, NMAC, as servicer, and the Indenture Trustee
entered into that certain Yield Supplement Agreement, dated as of January 27,
2000 (the "Yield Supplement Agreement"), relating to the yield supplement
account to be maintained for the benefit of the holders of the Notes. Also on
January 27, 2000, the Trust, as issuer, NMAC, as administrator, and the
Indenture Trustee entered into that certain Administration Agreement, dated as
of January 27, 2000, relating to the provision by NMAC of certain
<PAGE> 2
services relating to the Notes. The Notes, with an aggregate scheduled principal
balance, as of January 27, 2000, of $758,130,000, were sold to Chase Securities
Inc., J.P. Morgan Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as underwriters (the "Underwriters"), pursuant to an Underwriting
Agreement, dated as of January 19, 2000, by and among NARC, NMAC and Chase
Securities Inc., on behalf of itself and as the representative of the
Underwriters. The Notes have been registered pursuant to the Securities Act of
1933, as amended, under a Registration Statement on Form S-3 (Commission File
No. 333-82763).
Attached as Exhibit 4.1 is the Sale and Servicing Agreement, as
Exhibit 4.2 is the Indenture, as Exhibit 4.3 is the Purchase Agreement, as
Exhibit 4.4 is the Amended and Restated Trust Agreement, as Exhibit 4.5 is the
Administration Agreement and as Exhibit 4.6 is the Yield Supplement Agreement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
The exhibit number corresponds with Item 601(a) of Regulation S-K.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
Exhibit 4.1 Sale and Servicing Agreement, dated as of
January 27, 2000, by and among the Trust, as
issuer, NARC, as seller, and NMAC, as
servicer.
Exhibit 4.2 Indenture, dated as of January 27, 2000, by
and between the Trust, as issuer, and the
Indenture Trustee.
Exhibit 4.3 Purchase Agreement, dated as of January 27,
2000, by and between NARC, as purchaser, and
NMAC, as seller.
Exhibit 4.4 Amended and Restated Trust Agreement, dated
as of January 27, 2000, by and between NARC,
as depositor, and Wilmington Trust Company,
as Owner Trustee.
Exhibit 4.5 Administration Agreement, dated as of January
27, 2000, by and among the Trust, as issuer,
NMAC, as administrator, and the Indenture
Trustee.
Exhibit 4.6 Yield Supplement Agreement, dated as of
January 27, 2000, by and among NARC, as
seller, NMAC, as servicer, and the Indenture
Trustee.
</TABLE>
<PAGE> 3
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on behalf of the
Registrant by the undersigned thereunto duly authorized.
NISSAN AUTO RECEIVABLES CORPORATION
By: /s/ Tomoaki Shimazu
------------------------------------
Name: Tomoaki Shimazu
Title: Treasurer, Assistant
Secretary and Director
February 2, 2000
<PAGE> 4
EXHIBIT INDEX
Item 601(a) of Regulation S-K
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
Exhibit 4.1 Sale and Servicing Agreement, dated as of
January 27, 2000, by and among the Trust, as
issuer, NARC, as seller, and NMAC, as
servicer.
Exhibit 4.2 Indenture, dated as of January 27, 2000, by
and between the Trust, as issuer, and the
Indenture Trustee.
Exhibit 4.3 Purchase Agreement, dated as of January 27,
2000, by and between NARC, as purchaser, and
NMAC, as seller.
Exhibit 4.4 Amended and Restated Trust Agreement, dated
as of January 27, 2000, by and between NARC,
as depositor, and Wilmington Trust Company,
as Owner Trustee.
Exhibit 4.5 Administration Agreement, dated as of January
27, 2000, by and among the Trust, as issuer,
NMAC, as administrator, and the Indenture
Trustee.
Exhibit 4.6 Yield Supplement Agreement, dated as of
January 27, 2000, by and among NARC, as
seller, NMAC, as servicer, and the Indenture
Trustee.
</TABLE>
<PAGE> 1
EXHIBIT 4.1
SALE AND SERVICING AGREEMENT
among
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
as Issuer,
NISSAN AUTO RECEIVABLES CORPORATION,
as Seller,
and
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer
Dated as of January 27, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE I
DEFINITIONS
<S> <C> <C>
SECTION 1.01 Definitions...........................................................................1
SECTION 1.02 Usage of Terms.......................................................................19
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables............................................................19
SECTION 2.02 Custody of Receivables Files.........................................................21
SECTION 2.03 Acceptance by Issuer.................................................................21
ARTICLE III
THE RECEIVABLES
SECTION 3.01 Representations and Warranties of the Seller with Respect to the Receivables.........21
SECTION 3.02 Repurchase upon Breach...............................................................25
SECTION 3.03 Duties of Servicer as Custodian......................................................25
SECTION 3.04 Instructions; Authority To Act.......................................................26
SECTION 3.05 Custodian's Indemnification..........................................................26
SECTION 3.06 Effective Period and Termination.....................................................26
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.01 Duties of Servicer...................................................................27
SECTION 4.02 Collection of Receivable Payments....................................................28
SECTION 4.03 Realization upon Receivables.........................................................29
SECTION 4.04 Maintenance of Security Interests in Financed Vehicles...............................29
SECTION 4.05 Covenants of Servicer................................................................29
SECTION 4.06 Purchase of Receivables upon Breach..................................................29
SECTION 4.07 Servicing Fee and Expenses...........................................................30
SECTION 4.08 Servicer's Certificate...............................................................30
SECTION 4.09 Annual Statement as to Compliance; Notice of Default.................................30
SECTION 4.10 Annual Independent Certified Public Accountants' Report..............................31
SECTION 4.11 Access to Certain Documentation and Information Regarding
Receivables..........................................................................31
SECTION 4.12 Appointment of Subservicer...........................................................32
SECTION 4.13 Amendments to Schedule of Receivables................................................32
SECTION 4.14 Acknowledgement by Servicer of its Obligations under the Indenture...................32
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
ARTICLE V
DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO THE CERTIFICATEHOLDERS AND THE NOTEHOLDERS
<S> <C> <C>
SECTION 5.01 Establishment of Accounts............................................................32
SECTION 5.02 Collections..........................................................................34
SECTION 5.03 Application of Collections...........................................................35
SECTION 5.04 Advances.............................................................................35
SECTION 5.05 Additional Deposits..................................................................36
SECTION 5.06 Payments and Distributions...........................................................37
SECTION 5.07 Reserve Account......................................................................40
SECTION 5.08 Yield Supplement Account.............................................................42
SECTION 5.09 Statements to Certificateholders and Noteholders.....................................43
SECTION 5.10 Net Deposits.........................................................................44
ARTICLE VI
THE SELLER
SECTION 6.01 Representations of Seller............................................................45
SECTION 6.02 Additional Covenants of the Seller...................................................46
SECTION 6.03 Liability of Seller; Indemnities.....................................................48
SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of,
Seller...............................................................................49
SECTION 6.05 Limitation on Liability of Seller and Others.........................................50
SECTION 6.06 Seller May Own Certificates or Notes.................................................50
ARTICLE VII
THE SERVICER
SECTION 7.01 Representations of Servicer..........................................................50
SECTION 7.02 Indemnities of Servicer..............................................................52
SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of,
Servicer.............................................................................53
SECTION 7.04 Limitation on Liability of Servicer and Others.......................................53
SECTION 7.05 NMAC Not To Resign as Servicer.......................................................54
ARTICLE VIII
DEFAULT
SECTION 8.01 Servicer Default.....................................................................54
SECTION 8.02 Appointment of Successor.............................................................56
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 8.03 Repayment of Advances................................................................57
SECTION 8.04 Notification ........................................................................57
SECTION 8.05 Waiver of Past Defaults..............................................................57
ARTICLE IX
TERMINATION; RELEASE OF RECEIVABLES
SECTION 9.01 Optional Purchase of All Receivables.................................................57
SECTION 9.02 Release of Receivables...............................................................58
SECTION 9.03 Termination..........................................................................59
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendment............................................................................59
SECTION 10.02 Protection of Title to Trust.........................................................61
SECTION 10.03 Notices..............................................................................63
SECTION 10.04 Assignment by the Seller or the Servicer.............................................63
SECTION 10.05 Limitations on Rights of Others......................................................63
SECTION 10.06 Severability.........................................................................63
SECTION 10.07 Separate Counterparts................................................................63
SECTION 10.08 Headings.............................................................................64
SECTION 10.09 Governing Law........................................................................64
SECTION 10.10 Assignment by Issuer.................................................................64
SECTION 10.11 Nonpetition Covenants................................................................64
SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee.......................64
SCHEDULE A Schedule of Receivables
SCHEDULE B Location of Receivables
SCHEDULE C Overextended Receivables
</TABLE>
iii
<PAGE> 5
SALE AND SERVICING AGREEMENT, dated as of January 27, 2000, among
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST, a Delaware business trust (the
"Issuer"), NISSAN AUTO RECEIVABLES CORPORATION, a Delaware corporation, and
NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation. Capitalized terms
used herein without definition shall have the respective meanings assigned to
such terms in Article I.
WHEREAS, the Issuer desires to purchase a portfolio of receivables
arising in connection with retail installment sales contracts secured by new,
near-new or used automobiles and light-duty trucks generated by NMAC in the
ordinary course of business and sold to the Seller;
WHEREAS, the Seller is willing to sell such receivables to the Issuer;
and
WHEREAS, the Servicer is willing to service such receivables.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Definitions. Except as otherwise provided in this
Agreement, whenever used herein, the following words and phrases, unless the
context otherwise requires, shall have the following respective meanings:
"Accounts" means the Collection Account, the Yield Supplement Account
and the Reserve Account.
"Administration Agreement" means the Administration Agreement, dated as
of January 27, 2000, among the Administrator, the Issuer and the Indenture
Trustee.
"Administrative Purchase Payment" for any Administrative Receivable as
of the last day of any Collection Period, means the sum of the Principal Balance
thereof as of the beginning of such Collection Period plus interest accrued
thereon through the due date for the Obligor's payment in such Collection Period
at the related APR, after giving effect to the receipt of monies collected (from
whatever source other than the Advances) on such Administrative Receivable, if
any, during such Collection Period.
"Administrative Receivable" means a Receivable purchased as of the
close of business on the last day of a Collection Period by the Servicer
pursuant to Section 4.06 or Section 9.01.
"Administrator" means NMAC, or any successor Administrator under the
Administration Agreement.
"Advance" means the amount, as of the last day of a Collection Period,
that the Servicer is required to advance on the respective Receivable pursuant
to Section 5.04.
<PAGE> 6
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control," when used with respect
to any specified Person, means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the term "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Noteholders' Interest Distributable Amount" means, with
respect to any Distribution Date, the sum of the Noteholders' Interest
Distributable Amount for all Classes of Notes with respect to such Distribution
Date.
"Agreement" means this Sale and Servicing Agreement among Nissan Auto
Receivables 2000-A Owner Trust, as Issuer, NARC, as Seller, and NMAC, as
Servicer.
"AICPA" shall have the meaning assigned to such term in Section 4.10.
"Allocable Principal" means, for any Distribution Date, an amount equal
to the excess, if any, of (i) the sum of the Outstanding Amount of the Notes and
the Certificate Balance as of the close of business on the immediately preceding
Distribution Date over (ii) the Pool Balance as of the end of the related
Collection Period.
"Amount Financed" with respect to any Receivable, means the amount
advanced under the Receivable toward the purchase price of the related Financed
Vehicle and any related costs, including but not limited to accessories,
insurance premiums, service and warranty contracts and other items customarily
financed as part of retail automobile and light-duty truck installment sale
contracts.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate
of finance charges stated in such Receivable.
"Assignment" shall have the meaning assigned to such term in the
Purchase Agreement.
"Annual USAP Report" shall have the meaning specified in Section 4.10.
"Available Amounts" means, with respect to any Distribution Date, the
sum of Available Interest and Available Principal for such Distribution Date.
"Available Interest" means, for any Distribution Date, the sum of the
following amounts received during the related Collection Period: (i) that
portion of all collections on Receivables allocable to interest, (ii) without
duplication of amounts described in clause (i), Net Liquidation Proceeds to the
extent allocable to interest due on a Liquidated Receivable in accordance with
the Servicer's customary servicing procedures, (iii) all Advances made by the
Servicer pursuant to Section 5.04, (iv) without duplication of any amounts
described above in clauses (i) and (ii), the Administrative Purchase Payment of
each Receivable that became an Administrative Receivable during the related
Collection Period to the extent attributable to interest thereon, (v) without
duplication of any amounts described above in clauses (i) and (ii), the Warranty
Purchase Payment of each Receivable that became a Warranty Receivable during the
related Collection Period to the extent attributable to interest thereon, and
(vi) the Yield Supplement
2
<PAGE> 7
Deposit plus reinvestment income on the Yield Supplement Account; provided,
however, that in calculating Available Interest, amounts to be paid to the
Servicer as reimbursement for Advances pursuant to Sections 5.06(c)(i),
5.06(c)(ii), 5.06(d)(i) and 5.06(d)(ii) on such Distribution Date shall be
excluded.
"Available Principal" means, for any Distribution Date, the sum of the
following amounts received during the related Collection Period: (i) that
portion of all collections on Receivables attributable to principal, (ii)
without duplication of amounts described in clause (i), Net Liquidation Proceeds
attributable to principal due on a Liquidated Receivable in accordance with the
Servicer's customary servicing procedures, (iii) without duplication of any
amounts described above in clauses (i) and (ii), the Administrative Purchase
Payment of each Receivable that became an Administrative Receivable during the
related Collection Period to the extent attributable to principal, and (iv)
without duplication of any amounts described above in clauses (i) and (ii), the
Warranty Purchase Payment of each Receivable that became a Warranty Receivable
during the related Collection Period to the extent attributable to principal.
"Base Servicing Fee" means the fee payable to the Servicer on each
Distribution Date, calculated pursuant to Section 4.07, for services rendered
during the related Collection Period, which shall be equal to one-twelfth of the
Servicing Rate multiplied by the Pool Balance as of the close of business on the
last day of the immediately preceding Collection Period or, with respect to the
first Distribution Date, the Original Pool Balance.
"Basic Documents" means the Purchase Agreement, the Trust Agreement,
the Certificate of Trust, this Agreement, the Indenture, the Administration
Agreement, the Securities Account Control Agreement, the Yield Supplement
Agreement, the Note Depository Agreement and the other documents and
certificates delivered in connection herewith and therewith.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which banking institutions in New York, New York, Los Angeles, California,
Wilmington, Delaware or Minneapolis, Minnesota are authorized or obligated by
law, regulation, executive order or governmental decree to remain closed.
"Certificate Balance" means, as of any Distribution Date, the Original
Certificate Balance, reduced by all amounts distributed to the
Certificateholders pursuant to Section 5.06(c) and/or (d) hereof (but in no
event less than zero). For the purposes of determining whether the vote of the
requisite percentage of Certificateholders necessary to effect any consent,
waiver, request or demand shall have been obtained, the Certificate Balance
shall be deemed to be reduced by the amount equal to the balance (without giving
effect to this provision) evidenced by any Certificate registered in the name of
the Seller, the Servicer or any Person actually known to a Trust Officer of the
Owner Trustee or the Indenture Trustee, as the case may be, to be the Seller or
the Servicer or any of their Affiliates.
"Certificate Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure obtained by dividing the Certificate Balance as of
the close of business on the last day of the related Collection Period by the
Original Certificate Balance.
3
<PAGE> 8
"Certificate of Trust" shall have the meaning assigned to such term in
the Trust Agreement.
"Certificate Pool Factor" means, with respect to any Distribution Date,
a seven-digit decimal figure obtained by dividing the Certificate Balance as of
the close of business on the last day of the related Collection Period by the
Original Pool Balance.
"Certificate Register" means the register maintained by the Certificate
Registrar pursuant to the Trust Agreement recording the names of the
Certificateholders.
"Certificateholder" shall have the meaning assigned to such term in the
Trust Agreement.
"Certificateholders' Distributable Amount" means, with respect to any
Distribution Date, the Certificateholders' Principal Distributable Amount, if
any, for such Distribution Date.
"Certificateholders' Monthly Principal Distributable Amount" means,
with respect to any Distribution Date, the Certificateholders' Percentage of the
Allocable Principal for such Distribution Date.
"Certificateholders' Percentage" means the following: (i) for each
Distribution Date until the Distribution Date on which the principal amount of
all of the Notes has been paid in full, 0%; (ii) for the Distribution Date on
which the principal amount of all the Notes has been paid in full, the
percentage of Allocable Principal remaining after the Notes have been paid in
full; and (iii) for each Distribution Date after the Distribution Date on which
the principal amount of all of the Notes is reduced to zero, 100%.
"Certificateholders' Principal Carryover Shortfall" means, with respect
to any Distribution Date, the excess, if any, of the Certificateholders' Monthly
Principal Distributable Amount over the amount in respect of principal that is
actually distributed to the Certificateholders on such current Distribution
Date.
"Certificateholders' Principal Distributable Amount" means, with
respect to any Distribution Date, the sum of (i) the Certificateholders' Monthly
Principal Distributable Amount for such Distribution Date and (ii) on the Final
Scheduled Distribution Date for the Certificates, if any, or upon the
termination of the Trust, the amount necessary to reduce the outstanding
principal amount of the Certificates to zero; provided, however, that the
Certificateholders' Principal Distributable Amount shall not exceed the
Certificate Balance.
"Certificates" shall have the meaning assigned to such term in the
Trust Agreement.
"Class" means any one of the classes of Notes or Certificates, as the
case may be.
"Class A-1 Interest Rate" means 6.125% per annum.
"Class A-1 Note" means any of the 6.125% Asset Backed Notes, Class A-1,
issued under the Indenture.
4
<PAGE> 9
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note
is registered in the Note Register.
"Class A-2 Interest Rate" means 6.730% per annum.
"Class A-2 Note" means any of the 6.730% Asset Backed Notes, Class A-2,
issued under the Indenture.
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note
is registered in the Note Register.
"Class A-3 Interest Rate" means 7.010% per annum.
"Class A-3 Note" means any of the 7.010% Asset Backed Notes, Class A-3,
issued under the Indenture.
"Class A-3 Noteholder" means the Person in whose name a Class A-3 Note
is registered in the Note Register.
"Class A-4 Interest Rate" means 7.170% per annum.
"Class A-4 Note" means any of the 7.170% Asset Backed Notes, Class A-4,
issued under the Indenture.
"Class A-4 Noteholder" means the Person in whose name a Class A-4 Note
is registered in the Note Register.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Closing Date" means January 27, 2000.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.01.
"Collection Period" means, with respect to any Distribution Date, the
preceding calendar month. Any amount stated "as of the close of business of the
last day of a Collection Period" shall give effect to the following calculations
as determined as of the end of the day on such last day: (i) all applications of
collections, (ii) all Advances and reductions of Outstanding Advances and (iii)
all distributions.
"Corporate Trust Office" shall have the meaning assigned to such term
in the Indenture.
"Cutoff Date" means December 31, 1999.
"Damages" shall have the meaning assigned to such term in Section 7.02.
"Dealer" means the dealer who sold a Financed Vehicle and who
originated and assigned the related Receivable to NMAC under an existing
agreement between such dealer and NMAC.
5
<PAGE> 10
"Dealer Recourse" means, with respect to a Receivable, all recourse
rights against the Dealer which originated the Receivable, and any successor
Dealer.
"Default" or "Event of Default" shall have the meaning assigned to such
term in the Indenture.
"Defaulted Receivable" means a Receivable (other than an Administrative
Receivable or a Warranty Receivable as to which a Warranty Purchase Payment or
an Administrative Purchase Payment has been made), which, by its terms, is
delinquent more than 120 days or, with respect to Receivables that are
delinquent less than 120 days, the Servicer has (i) determined, in accordance
with its customary servicing procedures, that eventual payment in full is
unlikely or (ii) repossessed the Financed Vehicle.
"Definitive Notes" shall have the meaning ascribed thereto in the
Indenture.
"Determination Date" means the tenth calendar day of each calendar
month, or if such tenth day is not a Business Day, the next succeeding Business
Day.
"Distribution Date" means, for each Collection Period, the 15th
calendar day of the following calendar month, or if the 15th day is not a
Business Day, the next following Business Day, commencing February 15, 2000.
"DTC" means The Depository Trust Company.
"Eligible Deposit Account" means an account maintained (i) with the
Indenture Trustee or the Owner Trustee so long as the Indenture Trustee's or the
Owner Trustee's short-term unsecured debt obligations have a rating of "P-1" by
Moody's and a rating of "A-1+" by Standard & Poor's, and for any account in
which deposits in excess of 30 days are to be made, so long as the Indenture
Trustee or the Owner Trustee's long-term unsecured debt obligations have a
rating of at least "AA-" by Standard & Poor's (such short-term and long-term (if
applicable) ratings being the "Required Deposit Rating"), or (ii) in a
segregated trust account in the trust department of the Indenture Trustee or the
Owner Trustee, as the case may be. Notwithstanding anything to the contrary, as
of the Closing Date, the Indenture Trustee shall be deemed to have met the
requirements in clause (i).
"Eligible Investments" means, at any time, any one or more of the
following obligations and securities:
(i) direct obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States of
America;
(ii) demand deposits, time deposits or certificates of deposit
of any depository institution or trust company incorporated under the
laws of the United States of America or any state thereof (or any
domestic branch of a foreign bank) and subject to supervision and
examination by Federal or State banking or depository institution
authorities; provided, however, that at the time of the investment or
contractual commitment to invest therein, the commercial paper or other
short-term unsecured debt obligations (other than such obligations the
rating of which is based on the credit of a Person other than such
6
<PAGE> 11
depository institution or trust company) thereof shall have a credit
rating from each of the Rating Agencies in the highest investment
category granted thereby;
(iii) commercial paper having, at the time of the investment
or contractual commitment to invest therein, a rating from each of the
Rating Agencies in the highest investment category granted thereby;
(iv) investments in money market funds having a rating from
each of the Rating Agencies in the highest investment category granted
thereby (including funds for which the Owner Trustee, the Indenture
Trustee or any of their respective Affiliates is investment manager or
advisor);
(v) bankers' acceptances issued by any depository institution
or trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that
is a direct obligation of, or fully guaranteed by, the United States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United States of
America, in either case entered into with a depository institution or
trust company (acting as principal) described in clause (ii);
(vii) repurchase obligations with respect to any security or
whole loan, entered into with (a) a depository institution or trust
company (acting as principal) described in clause (ii) above (except
that the rating referred to in the proviso in such clause (ii) shall be
"A-1" or higher in the case of Standard & Poor's) (such depository
institution or trust company being referred to in this definition as a
"financial institution"), (b) a broker/dealer (acting as principal)
registered as a broker or dealer under Section 15 of the Exchange Act
(a "broker/dealer"), the unsecured short-term debt obligations of which
are rated "P-1" by Moody's and at least "A-1" by Standard & Poor's at
the time of entering into such repurchase obligation (a "rated
broker/dealer"), (c) an unrated broker/dealer (an "unrated
broker/dealer"), acting as principal that is a wholly-owned subsidiary
of a non-bank holding company the unsecured short-term debt obligations
of which are rated "P-1" by Moody's and at least "A-1" by Standard &
Poor's at the time of entering into such repurchase obligation (a
"Rated Holding Company"), or (d) an unrated wholly-owned subsidiary of
a direct or indirect parent Rated Holding Company, which guarantees
such subsidiary's obligations under such repurchase agreement (a
"Guaranteed Counterparty"); provided that the following conditions are
satisfied:
(A) the aggregate amount of funds invested in
repurchase obligations of a financial institution, a rated
broker/dealer, an unrated broker/dealer or a Guaranteed
Counterparty in respect of which the unsecured short-term
ratings of Standard & Poor's are "A-1" (in the case of an
unrated broker/dealer or Guaranteed Counterparty, such rating
being that of the related Rated Holding Company) shall not
exceed 20% of the outstanding Pool Balance (there being no
limit on the amount of funds that may be invested in
repurchase obligations in respect of which such Standard &
Poor's rating is "A-1+" (in the case of an
7
<PAGE> 12
unrated broker/dealer or Guaranteed Counterparty, such rating
being that of the related Rated Holding Company));
(B) in the case of the Reserve Account and the Yield
Supplement Account, the rating from Standard & Poor's in
respect of the unsecured short term debt obligations of the
financial institution, rated broker/dealer, unrated
broker/dealer or Guaranteed Counterparty (in the case of an
unrated broker/dealer or Guaranteed Counterparty, such rating
being that of the related Rated Holding Company) shall be
"A-1+";
(C) the repurchase obligation must mature within 30
days of the date on which the Indenture Trustee or the Owner
Trustee, as applicable, enters into such repurchase
obligation;
(D) the repurchase obligation shall not be
subordinated to any other obligation of the related financial
institution, rated broker/dealer, unrated broker/dealer or
Guaranteed Counterparty;
(E) the collateral subject to the repurchase
obligation is held, in the appropriate form, by a custodial
bank on behalf of the Indenture Trustee or the Owner Trustee,
as applicable;
(F) the repurchase obligation shall require that the
collateral subject thereto shall be marked to market daily;
(G) in the case of a repurchase obligation of a
Guaranteed Counterparty, the following conditions shall also
be satisfied:
(1) the Indenture Trustee or the Owner
Trustee, as applicable, shall have received an
Opinion of Counsel to the effect that the guarantee
of the related Rated Holding Company is a legal,
valid and binding agreement of the Rated Holding
Company, enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency,
reorganization and moratorium or other similar laws
affecting creditors' rights generally and to general
equitable principles;
(2) the Indenture Trustee or the Owner
Trustee, as applicable, shall have received (x) an
incumbency certificate for the signer of such
guarantee, certified by an officer of such Rated
Holding Company, and (y) a resolution, certified by
an officer of the Rated Holding Company, of the board
of directors (or applicable committee thereof) of the
Rated Holding Company authorizing the execution,
delivery and performance of such guarantee by the
Rated Holding Company;
(3) the only conditions to the obligation of
such Rated Holding Company to pay on behalf of the
Guaranteed Counterparty shall be that the Guaranteed
Counterparty shall not have paid under such
repurchase obligation when required (it being
understood that no notice to, demand on
8
<PAGE> 13
or other action in respect of the Guaranteed
Counterparty is necessary) and that the Indenture
Trustee or the Owner Trustee, as applicable, shall
make a demand on the Rated Holding Company to make
the payment due under such guarantee;
(4) the guarantee of the Rated Holding
Company shall be irrevocable with respect to such
repurchase obligation and shall not be subordinated
to any other obligation of the Rated Holding Company;
and
(5) each of the Rating Agencies has
confirmed in writing to the Indenture Trustee or the
Owner Trustee, as applicable, that it has reviewed
the form of the guarantee of the Rated Holding
Company and has determined that the issuance of such
guarantee will not result in the downgrade or
withdrawal of the ratings assigned to the Notes; and
(H) the repurchase obligation shall require that the
repurchase obligation be overcollateralized and shall provide
that, upon any failure to maintain such overcollateralization,
the repurchase obligation shall become due and payable, and
unless the repurchase obligation is satisfied immediately, the
collateral subject to the repurchase agreement shall be
liquidated and the proceeds applied to satisfy the unsatisfied
portion of the repurchase obligation; and
(viii) any other investment with respect to which the Servicer
has received written notification from the Rating Agencies that the
acquisition of such investment as an Eligible Investment will not
result in a withdrawal or downgrading of the ratings on the Notes;
provided that, unless otherwise expressly stated herein, each of the foregoing
investments shall be denominated in U.S. dollars, shall not be purchased at a
premium, shall mature no later than the Business Day prior to the Distribution
Date immediately following the date of purchase, and shall be required to be
held to such maturity.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating), or
such lower credit rating (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the rating then
assigned by such Rating Agency to any of the Notes.
"Event of Default" shall have the meaning assigned to such term in the
Indenture.
"Excess Proceeds" shall have the meaning assigned to such term in
Section 6.02(b).
"Exchange Act" means the Securities Exchange Act of 1934.
"Final Scheduled Distribution Date" means, with respect to the Class
A-1 Notes, the Distribution Date in February, 2001; with respect to the Class
A-2 Notes, the Distribution Date in May, 2002; with respect to the Class A-3
Notes, the Distribution Date in September, 2003; and with respect to the Class
A-4 Notes, the Distribution Date in August, 2004.
9
<PAGE> 14
"Financed Vehicle" means a new, near-new or used automobile or
light-duty truck, together with all accessions thereto, securing an Obligor's
indebtedness under the related Receivable.
"Holder" or "Securityholder" means the registered holder of any
Certificate or Note as evidenced by the Certificate Register (as defined in the
Trust Agreement) or Note Register (as defined in the Indenture) except that,
solely for the purposes of giving certain consents, waivers, requests or demands
pursuant to the Trust Agreement or the Indenture, the interest evidenced by any
Certificate or Note registered in the name of NARC or NMAC, or any Person
actually known to a Trust Officer to be an Affiliate of NARC or NMAC, shall not
be taken into account in determining whether the requisite percentage necessary
to effect any such consent, waiver, request or demand shall have been obtained
unless NARC or NMAC are the only holders.
"Indenture" means the Indenture dated as of January 27, 2000, between
the Issuer and the Indenture Trustee.
"Indenture Trustee" means the Person acting as Indenture Trustee under
the Indenture, its successors in interest and any successor trustee under the
Indenture.
"Initial Yield Supplement Amount" means $27,173,860.31.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or all or substantially all of its property
in an involuntary case under any applicable federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for all or substantially all of its property, or
ordering the winding-up or liquidation of such Person's affairs, and such decree
or order shall remain unstayed and in effect for a period of 90 consecutive
days; or (b) the commencement by such Person of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by such Person to the entry of an order for
relief in an involuntary case under any such law, or the consent by such Person
to the appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for all
or substantially all of its property, or the making by such Person of any
general assignment for the benefit of creditors.
"Interest Period" with respect to any Distribution Date and (i) the
Class A-1 Notes, means the period from, and including, the preceding
Distribution Date (or, in the case of the initial Interest Period, from and
including the Closing Date) to, but excluding, such Distribution Date; and (ii)
in the case of each other Class of Notes, means the period from, and including,
the 15th day of the preceding calendar month (or, in the case of the initial
Interest Period, from and including the Closing Date) to, but excluding, the
15th day of the month in which such Distribution Date occurs.
"Interest Rate" means the Class A-1 Interest Rate, the Class A-2
Interest Rate, the Class A-3 Interest Rate or the Class A-4 Interest Rate.
"Issuer" means Nissan Auto Receivables 2000-A Owner Trust.
10
<PAGE> 15
"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than, in the case of a Financed Vehicle, tax
liens, mechanics' liens and any liens that attach to such Financed Vehicle by
operation of law.
"Liquidated Receivable" means a Defaulted Receivable as to which the
related Financed Vehicle has been liquidated by the Servicer.
"Monthly Remittance Conditions" shall have the meaning assigned to such
term in Section 5.02.
"Moody's" means Moody's Investors Service, Inc.
"NARC" means Nissan Auto Receivables Corporation, a Delaware
corporation.
"Net Liquidation Proceeds" means the monies collected from whatever
source on a Liquidated Receivable, net of the sum of any amounts expended by the
Servicer for the account of the Obligor, plus any amounts required by law to be
remitted to the Obligor.
"Nissan" means Nissan Motor Co., Ltd.
"NMAC" means Nissan Motor Acceptance Corporation, in its individual
capacity and not as Servicer.
"Nonrecoverable Advance" means any Outstanding Advance with respect to
(i) any Defaulted Receivable or (ii) any Receivable as to which the Servicer
determines that any recovery from payments made on or with respect to such
Receivable is unlikely.
"Note" means any one of the notes issued under the Indenture.
"Note Depository Agreement" shall have the meaning assigned to such
term in the Indenture.
"Note Factor" means, with respect to any Class of Notes and any
Distribution Date, a seven-digit decimal figure obtained by dividing the
Outstanding Amount of such Class of Notes, as of the close of business on the
last day of the related Collection Period, by the initial Outstanding Amount of
that Class of Notes.
"Noteholder" shall have the meaning assigned to such term in the
Indenture.
"Noteholders' Distributable Amount" means, with respect to any
Distribution Date, the Aggregate Noteholders' Interest Distributable Amount with
respect to such Distribution Date plus the Noteholders' Principal Distributable
Amount with respect to such Distribution Date.
"Noteholders' Interest Carryover Shortfall" means, with respect to any
Distribution Date and a Class of Notes, the excess, if any, of the sum of the
Noteholders' Monthly Interest Distributable Amount for such Class for the
preceding Distribution Date plus any outstanding Noteholders' Interest Carryover
Shortfall for such Class on such preceding Distribution Date, over the amount in
respect of interest that is actually paid on the Notes of such Class on such
11
<PAGE> 16
preceding Distribution Date, plus, to the extent permitted by applicable law,
interest on the Noteholders' Interest Carryover Shortfall at the related
Interest Rate for the related Interest Period (calculated on the same basis as
interest on that Class of Notes for the same period).
"Noteholders' Interest Distributable Amount" means, with respect to any
Distribution Date and a Class of Notes, the sum of the Noteholders' Monthly
Interest Distributable Amount for such Class plus any outstanding Noteholders'
Interest Carryover Shortfall for such Class as of the close of the immediately
preceding Distribution Date.
"Noteholders' Monthly Interest Distributable Amount" means, with
respect to any Distribution Date and a Class of Notes, interest accrued for the
related Interest Period (calculated on the basis of, in the case of Class A-1
Notes, the actual number of days in such Interest Period and a year assumed to
consist of 360 days, and in the case of all other Classes of Notes, such
Interest Period being assumed to consist of 30 days and a year assumed to
consist of 360 days) at the related Interest Rate for such Class of Notes on the
outstanding amount of the Notes of such Class on the immediately preceding
Distribution Date, after giving effect to all payments of principal to
Noteholders of such Class on or prior to such Distribution Date (or, in the case
of the first Distribution Date, on the original principal amount of such Class
of Notes).
"Noteholders' Monthly Principal Distributable Amount" means, with
respect to any Distribution Date, the Noteholders' Percentage of the Allocable
Principal for such Distribution Date.
"Noteholders' Percentage" means (i) for each Distribution Date until
the Distribution Date on which the aggregate principal amount of all of the
Notes has been paid in full, 100%; (ii) for the Distribution Date on which the
principal amount of all of the Notes has been paid in full, the percentage
required to pay all of the Notes in full; and (iii) thereafter, 0%.
"Noteholders' Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of the Noteholders' Monthly Principal
Distributable Amount for the preceding Distribution Date over the amount in
respect of principal that is actually paid as principal on the Notes on such
current Distribution Date. Noteholders' Principal Carryover Shortfall is not
used to determine the amount of principal due on the Notes on any Distribution
Date, but is used solely for reporting purposes.
"Noteholders' Principal Distributable Amount" means, with respect to
any Distribution Date, the sum of (i) the Noteholders' Monthly Principal
Distributable Amount for such Distribution Date, and (ii) on the Final Scheduled
Distribution Date for any Class of Notes, the amount necessary to reduce the
outstanding principal amount of such Class of Notes to zero; provided, however,
that the Noteholders' Principal Distributable Amount shall not exceed the
Outstanding Amount of the Notes.
"Note Owner" shall have the meaning assigned to such term in the
Indenture.
"Note Pool Factor" means, with respect to any Class of Notes and any
Distribution Date, a seven-digit decimal figure obtained by dividing the
Outstanding Amount of such Class of Notes as of the close of business on the
last day of the related Collection Period by the Original Pool Balance.
12
<PAGE> 17
"Note Register" means the register maintained by the Indenture Trustee
pursuant to the Indenture recording the name of each Noteholder.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle or any other Person who owes payments under the Receivable (but
excluding any Dealer in respect of Dealer Recourse).
"Officer's Certificate" means a certificate signed by the chairman of
the board, the president, any executive vice president, any vice president, the
treasurer, any assistant treasurer or the controller of the Seller or the
Servicer, as the case may be.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise provided herein, be an employee of or counsel to the
Issuer, the Seller or the Servicer, which counsel shall be reasonably acceptable
to the Indenture Trustee, the Owner Trustee or the Rating Agencies, as the case
may be.
"Optional Purchase Percentage" means 10.00%.
"Optional Purchase Price" means, with respect to any Distribution Date,
the sum of (i) the Outstanding Amount of all Classes of Notes, (ii) the
Noteholders' Interest Distributable Amount for all Classes of Notes for such
Distribution Date, and (iii) the Certificate Balance.
"Original Certificate Balance" means $79,591,182.12.
"Original Pool Balance" means the aggregate Principal Balance of the
Receivables on the Cutoff Date.
"Original Principal Amount " means $184,000,000 for the Class A-1
Notes, $229,000,000 for the Class A-2 Notes, $250,000,000 for the Class A-3
Notes and $95,130,000 for the Class A-4 Notes.
"Outstanding" shall have the meaning assigned to that term in the
Indenture.
"Outstanding Advances" means, with respect to a Receivable and the last
day of a Collection Period, the sum of all Advances made as of or prior to such
date, minus all payments or collections as of or prior to such date that are
specified in Sections 5.04(b) and 5.04(d) as applied to reimburse all unpaid
Advances with respect to such Receivable.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or, if indicated by the context, all Notes of any Class, Outstanding at the date
of determination.
"Overextended Receivables" means the Receivables set forth on Schedule
C to this Agreement.
13
<PAGE> 18
"Owner Trust Estate" means all right, title and interest of the Trust
in and to the Receivables (other than the Warranty Receivables for which the
Seller has paid the Warranty Purchase Payment in accordance with Section 3.02
and Administrative Receivables for which the Servicer has paid the
Administrative Purchase Payment in accordance with Section 4.06), and all monies
paid thereon, and all monies accrued thereon, after the Cutoff Date; security
interests in the Financed Vehicles and any accessions thereto; funds deposited
in the Collection Account; all property (including the right to receive Net
Liquidation Proceeds) that shall have secured a Receivable and that shall have
been acquired by or on behalf of the Owner Trustee; proceeds from claims on any
physical damage, credit life or disability insurance policies covering the
Financed Vehicles or the Obligors; all right to receive payments in respect of
any Dealer Recourse with respect to the Receivables; all right, title and
interest of the Seller in and to the Purchase Agreement and the Yield Supplement
Agreement; all right, title and interest of the Owner Trustee and the Trust
pursuant to this Agreement and the Administration Agreement; certain rebates of
premiums and other amounts relating to certain insurance policies and other
items financed under the Receivables in effect as of the Cutoff Date; and the
proceeds of any and all of the foregoing.
"Owner Trustee" means the Person acting as Owner Trustee under the
Trust Agreement, its successors in interest and any successor owner trustee
under the Trust Agreement.
"Paying Agent" shall have the meaning assigned to such term in the
Indenture.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pool Balance" as of the close of business on the last day of a
Collection Period means the aggregate Principal Balance of the Receivables
(excluding Administrative Receivables, Warranty Receivables and Defaulted
Receivables) as of the close of business on such day; provided, however, that
where the Pool Balance is relevant in determining whether the requisite
percentage of Certificateholders or Noteholders (or relevant Class or Classes of
Certificates or Notes, as the case may be) necessary to effect any consent,
waiver, request or demand shall have been obtained, the Pool Balance shall be
deemed to be reduced by the amount equal to the portion of the Pool Balance
(before giving effect to this provision) represented by the interests evidenced
by any applicable Certificate or Note registered in the name of the Seller, the
Servicer or any Person actually known to a Trust Officer of the Owner Trustee or
the Indenture Trustee, as the case may be, to be an Affiliate of the Seller or
the Servicer, unless all of the Certificates or Notes, as the case may be, are
held or beneficially owned by NMAC, NARC or any of their Affiliates.
"Pool Factor" for a particular Class of Notes or Certificates on any
Distribution Date means a seven-digit decimal figure indicating the principal
amount of such Class of Notes or the Certificate Balance, as the case may be, as
of the close of business on the last day of the related Collection Period as a
fraction of the Original Pool Balance.
"Prepayment" means, with respect to any Receivable, any prepayment,
whether in part or in full, in respect of such Receivable.
14
<PAGE> 19
"Principal Balance" of a Receivable, as of any date of determination,
means the Amount Financed minus the sum of (i) all payments on such Receivable
allocable to principal, (ii) any refunded portion of extended warranty
protection plan or service contract costs, or of physical damage, credit life or
disability insurance premiums included in the Amount Financed, (iii) any payment
of the Administrative Purchase Payment or the Warranty Purchase Payment with
respect to the Receivable allocable to principal and (iv) any Net Liquidation
Proceeds allocable to principal.
"Purchase Agreement" means that certain agreement, dated as of January
27, 2000, between NMAC and the Seller, relating to the purchase by the Seller
from NMAC of the Receivables.
"Rating Agency" means, as of any date, any of the nationally recognized
statistical rating organizations that has been requested by the Seller or one of
its Affiliates to rate any Class of Notes and that is rating such Class of Notes
on such date.
"Receivable" means any retail installment sale contract that appears on
Schedule A to this Agreement (which Schedule A may be in the form of microfiche,
CD, datatape or paper) and that has not been released by the Owner Trustee from
the Trust.
"Receivable File" means the documents specified in Section 2.02
pertaining to a particular Receivable.
"Record Date" means, with respect to the Notes of any Class and each
Distribution Date, the 14th day of the calendar month in which such Distribution
Date occurs, and, with respect to the Certificates or if Definitive Notes,
representing any Class of Notes, have been issued, the last day of the
Collection Period preceding the related Distribution Date. Any amount stated "as
of a Record Date" or "on a Record Date" shall give effect to (i) all
applications of collections, and (ii) all distributions to any party under this
Agreement, the Indenture and the Trust Agreement or to the related Obligor, as
the case may be, in each case as determined as of the opening of business on the
related Record Date.
"Relevant Trustee" means (i) with respect to the control over or
appropriate designation denoting ownership or control over any property
comprising a portion of the Owner Trust Estate that either is not conveyed or
pledged to the Indenture Trustee for the benefit of the Noteholders pursuant to
the Granting Clause of the Indenture or that has been released from the lien of
the Indenture, the Owner Trustee, and (ii) with respect to any property
comprising a portion of the Trust Estate (as defined in the Indenture) that has
not been released from the lien of the Indenture, the Indenture Trustee;
provided, however, that with respect to any property that is under the joint or
separate control of a co-trustee or separate trustee under the Trust Agreement
or the Indenture, respectively, "Relevant Trustee" shall refer to either or both
of the Owner Trustee and such co-trustee or separate trustee or to either or
both of the Indenture Trustee and such co-trustee or separate trustee, as the
case may be.
"Required Deposit Rating" shall have the meaning assigned to such term
in the definition of "Eligible Deposit Account."
15
<PAGE> 20
"Required Rate" means, with respect to each Collection Period, the sum
of (i) the Servicing Rate plus (ii) the Class A-4 Interest Rate.
"Required Yield Supplement Amount" means, with respect to every
Distribution Date, an amount equal to the lesser of (i) the aggregate amount of
Yield Supplement Deposits that would become due for all future Distribution
Dates under the Yield Supplement Agreement, assuming that payments on the
Receivables are made on their scheduled due dates, no Receivable becomes a
prepaid Receivable and a discount rate of 2.5%, and (ii) the Initial Yield
Supplement Amount.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.07.
"Reserve Account Initial Deposit" means $6,282,908.87.
"Schedule of Receivables" means the schedule of receivables attached as
Schedule A to this Agreement, as it may be amended from time to time.
"Scheduled Payment" on a Receivable means the payment required to be
made by the Obligor during each Collection Period that is sufficient to amortize
the related Principal Balance under the Simple Interest Method over the term of
the Receivable and to provide interest at the related APR.
"Securities Account Control Agreement" means the Securities Account
Control Agreement dated as of January 27, 2000, among the Seller, Norwest Bank
Minnesota, National Association, as Securities Intermediary thereunder and
Norwest Bank Minnesota, National Association, as Indenture Trustee pursuant to
which the Reserve Account and the Yield Supplement Account will be established
and maintained.
"Securityholders" has the meaning set forth in this Section 1.01 under
the definition of "Holder."
"Seller" means NARC, as the seller of the Receivables under this
Agreement, and each successor to NARC (in the same capacity) pursuant to Section
6.04.
"Servicer" means NMAC, as the servicer of the Receivables, and each
successor to NMAC (in the same capacity) pursuant to Section 7.03 or 8.02.
"Servicer Default" means an event specified in Section 8.01.
"Servicer's Certificate" means a certificate completed and executed on
behalf of the Servicer by the president, any executive vice president, any vice
president, the treasurer, any assistant treasurer, the controller or any
assistant controller of the Servicer pursuant to Section 4.08.
"Servicing Rate" means 1.00% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment to principal and interest pursuant to which the portion of such payment
that is allocated to interest is
16
<PAGE> 21
equal to the product of the fixed rate of interest multiplied by the unpaid
principal balance multiplied by the quotient obtained by calculating the period
of time elapsed since the preceding payment of interest was made and dividing
such period of time by 365 or 366, as appropriate.
"Simple Interest Receivable" means any Receivable under which the
portion of a payment allocable to interest and the portion allocable to
principal is determined in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" means with respect to any
Distribution Date, an amount equal to $6,282,908.87, provided, however, that in
the event that on any Distribution Date (i) the annualized average for the
preceding three Collection Periods (or such smaller number of Collection Periods
as have elapsed since the Cutoff Date) of the percentage equivalents of the
ratios of net losses (i.e., the net balances of all Liquidated Receivables, less
any Net Liquidation Proceeds with respect to such Liquidated Receivables from
that or prior Collection Periods) to the Pool Balance as of the first day of
each such Collection Period exceeds 3.25% or (ii) the average for the preceding
three Collection Periods (or such smaller number of Collection Periods as have
elapsed since the Cutoff Date) of the percentage equivalents of the ratios of
the number of Receivables that are delinquent 60 days or more to the outstanding
number of Receivables exceeds 2.0%, then the Specified Reserve Account Balance
for such Distribution Date (and for each succeeding Distribution Date until the
relevant averages have not exceeded the specified percentages in clauses (i) and
(ii) above for three successive Distribution Dates) shall be a dollar amount
equal to the greater of (i) $6,282,908.87 and (ii) 5% of the Outstanding Amount
of the Notes and the Certificate Balance as of the preceding Distribution Date
(after giving effect to payments of principal made on such Distribution Date).
"Standard & Poor's" means Standard & Poor's Ratings Services, a
Division of the McGraw-Hill Companies.
"Successor Servicer" means any entity appointed as a successor to the
Servicer pursuant to Section 8.02.
"Supplemental Servicing Fee" means, with respect to any Distribution
Date, all late fees, prepayment charges and other administrative fees and
expenses or similar charges allowed by applicable law with respect to the
Receivables received by the Servicer during the related Collection Period and
any interest earned from the investment of monies in the Accounts (other than
the Yield Supplement Account and the Reserve Account) during the related
Collection Period.
"Total Servicing Fee" means the sum of the Base Servicing Fee and the
Supplemental Servicing Fee.
"Trust" means the Issuer.
"Trust Agreement" means Trust Agreement, dated December 21, 1999, as
amended by the Amended and Restated Trust Agreement, dated as of January 27,
2000, between the Seller and the Owner Trustee.
17
<PAGE> 22
"Trust Collection Account" shall have the meaning assigned to such term
in Section 5.01(c).
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
the Indenture for the benefit of the Noteholders (including, without limitation,
all property and interests granted to the Indenture Trustee pursuant to the
Granting Clause of the Indenture), including all proceeds thereof.
"Trust Officer" means, in the case of the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Secretary, Assistant Secretary or
any other officer of the Indenture Trustee customarily performing functions
similar to those performed by any of the above designated officers and also,
with respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject and, with respect to the Owner Trustee, any officer in the
Corporate Trust Administration Department of the Owner Trustee with direct
responsibility for the administration of the Trust Agreement and the Basic
Documents on behalf of the Owner Trustee.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"USAP" shall have the meaning assigned to such term in Section 4.10.
"Warranty Purchase Payment," for any Warranty Receivable as of the last
day of any Collection Period, means the sum of the Principal Balance thereof as
of the beginning of such Collection Period plus interest accrued thereon through
the due date for the Obligor's payment in such Collection Period, at the related
APR, after giving effect to the receipt of monies collected (from whatever
source other than Advances) on such Warranty Receivable, if any, during such
Collection Period.
"Warranty Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Seller pursuant to
Section 3.02.
"Yield Supplement Account" means the segregated trust account
established and maintained for the benefit of the Noteholders pursuant to
Section 5.08(a).
"Yield Supplement Agreement" means the agreement, dated as of the date
of this Agreement, among the Seller, NMAC and Norwest Bank Minnesota, National
Association, as Indenture Trustee, substantially in the form attached hereto as
Exhibit A.
"Yield Supplement Amount" means, with respect to any Distribution Date,
the aggregate amount on deposit in the Yield Supplement Account after giving
effect to the withdrawal therefrom of the related Yield Supplement Deposit and
without regard to any amounts on deposit therein in respect of interest or
investment earnings earned on the investment of amounts on deposit therein in
Eligible Investments for any period.
"Yield Supplement Deposit" means, with respect to any Distribution
Date, the amount by which (a) the aggregate amount of interest that would have
been due during the related Collection Period on all Yield Supplemented
Receivables if such Yield Supplemented
18
<PAGE> 23
Receivables bore interest at the Required Rate exceeds (b) the amount of
interest accrued on such Yield Supplemented Receivables at their respective APRs
and due during such Collection Period.
"Yield Supplemented Receivable" means any Receivable that has an APR
less than the Required Rate.
SECTION 1.02 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments, amendments and restatements and supplements thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables.
(a) In consideration of the premises and the agreements, provisions and
covenants herein contained and other good and valuable consideration to be
delivered to the Seller hereunder, on behalf of the Issuer, the Seller does
hereby sell, transfer, assign and otherwise convey to the Issuer, without
recourse (but subject to the Seller's obligations in this Agreement):
(i) all right, title and interest of the Seller in and to the
Receivables (including all related Receivable Files) listed in Schedule
A hereto and all monies due thereon or paid thereunder or in respect
thereof (including proceeds of the repurchase of Receivables by the
Seller pursuant to Section 3.02 or the purchase of Receivables by the
Servicer pursuant to Section 4.06 or 9.01) after the Cutoff Date;
(ii) the right of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the Receivables
and any related property;
(iii) the right of the Seller in any proceeds from claims on
any physical damage, credit life, credit disability or other insurance
policies covering the Financed Vehicles or the Obligors;
(iv) the right of the Seller through NMAC to receive payments
in respect of any Dealer Recourse with respect to the Receivables;
19
<PAGE> 24
(v) the right of the Seller under the Purchase Agreement, the
Assignment and the Yield Supplement Agreement;
(vi) 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;
(vii) the right of the Seller in rebates of premiums and other
amounts relating to insurance policies and other items financed under
the Receivables in effect as of the Cutoff Date;
(viii) all other assets comprising the Owner Trust Estate; and
(ix) all proceeds of the foregoing.
On the Closing Date, the Seller shall deliver to, or to the order of,
the Issuer all property conveyed pursuant to this Section 2.01(a), except for
monies received in respect of the Receivables after the Cutoff Date and before
the Closing Date which shall be deposited by NMAC (in its individual capacity or
as the Servicer) into the Collection Account no later than the first Record Date
after the Closing Date. Concurrently therewith and in exchange therefor, the
Issuer shall deliver to, or to the order of, the Seller the Notes and the
Certificates.
(b) It is the intention of the Seller that the transfer and assignment
contemplated by this Agreement shall constitute a sale of the Receivables from
the Seller to the Issuer and the beneficial interest in and title to the
Receivables shall not be part of the Seller's estate in the event of the filing
of a bankruptcy petition by or against the Seller under any bankruptcy law. The
Seller agrees to execute and file all filings (including filings under the UCC)
necessary in any jurisdiction to provide third parties with notice of the sale
of the Receivables pursuant to this Agreement and to perfect such sale under the
UCC.
(c) Although the parties hereto intend that the transfer and assignment
contemplated by this Agreement be a sale, if such transfer and assignment is
deemed to be other than a sale, the parties intend that all filings described in
the foregoing paragraph shall give the Issuer a first priority perfected
security interest in, to and under the Receivables, and other property conveyed
hereunder and all proceeds of any of the foregoing. This Agreement shall be
deemed to be the grant of a security interest from the Seller to the Issuer, and
the Issuer shall have all the rights, powers and privileges of a secured party
under the UCC.
(d) In connection with the foregoing conveyance, the Servicer shall
maintain its computer system so that, from and after the time of sale of the
Receivables to the Issuer under this Agreement, the Servicer's master computer
records that refer to any Receivable indicate clearly the interest of the Issuer
in such Receivables and that such Receivable is owned by the Issuer and
controlled by the Issuer. Indication of the Issuer's ownership of a Receivable
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the Receivable has been paid in full, repurchased or assigned
pursuant to this Agreement.
(e) Ownership and control of the Receivables, as among the Issuer and
the Indenture Trustee (on behalf of the Noteholders and the Certificateholders)
shall be governed by the Indenture.
20
<PAGE> 25
SECTION 2.02 Custody of Receivables Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer, upon
the execution and delivery of this Agreement, appoints the Servicer, and the
Servicer accepts such appointment, to act as the agent of the Issuer as
custodian of the following documents or instruments that are hereby
constructively delivered to the Issuer with respect to each Receivable:
(a) the original of such Receivable (or a photocopy or other
image thereof that the Servicer shall keep on file in accordance with
its customary procedures) fully executed by the Obligor;
(b) the original credit application fully executed by the
related Obligor (or a photocopy or other image thereof that the
Servicer shall keep on file in accordance with its customary
procedures);
(c) the original certificate of title (or a photocopy or other
image thereof or such documents that the Servicer shall keep on file in
accordance with its customary procedures), evidencing the security
interest of the Servicer in the related Financed Vehicle; and
(d) any and all other documents that the Servicer shall keep
on file, in accordance with its customary procedures, relating to such
Receivable, the related Obligor or Financed Vehicle.
SECTION 2.03 Acceptance by Issuer. The Issuer acknowledges its
acceptance pursuant to this Agreement, of all right, title and interest in and
to the Receivables conveyed by the Seller pursuant to this Agreement and
declares and shall declare from and after the date hereof that the Issuer holds
and shall hold such right, title and interest, upon the terms and conditions set
forth in this Agreement.
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties of the Seller with Respect
to the Receivables. The Seller makes the following representations and
warranties as to the Receivables on which the Issuer is deemed to have relied in
acquiring the Receivables. Such representations and warranties speak as of the
execution and delivery of this Agreement and as of the Closing Date, but shall
survive the sale, transfer and assignment of the Receivables to the Issuer and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. Each Receivable (i) has been
originated in the United States of America by a Dealer for the retail sale of a
Financed Vehicle in the ordinary course of such Dealer's business, has been
fully and properly executed by the parties thereto, has been purchased by the
Seller from NMAC pursuant to the Purchase Agreement, which in turn has purchased
such Receivables from such Dealer under an existing dealer agreement with NMAC,
and has been validly assigned by such Dealer to NMAC, which in turn has been
validly assigned pursuant to the Purchase Agreement by NMAC to the Seller in
accordance with its
21
<PAGE> 26
terms, (ii) created a valid, subsisting and enforceable security interest in
favor of NMAC in such Financed Vehicle, which security interest has been validly
assigned pursuant to the Purchase Agreement by NMAC to the Seller, which in turn
has been validly assigned by the Seller to the Issuer in accordance with the
terms hereof, (iii) 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, (iv) other than the Overextended
Receivables, 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 60 months, and (v) provides for yield interest at the
related APR.
(b) Schedule of Receivables. The information set forth in Schedule A to
this Agreement was true and correct in all material respects as of the opening
of business on the Cutoff Date; the Receivables were selected at random from
NMAC's retail installment sale contracts (other than contracts originated in
Alabama, Hawaii or Maryland) meeting the criteria of the Trust set forth in this
Agreement; and no selection procedures believed to be adverse to the
Securityholders were utilized in selecting the Receivables.
(c) Compliance with Law. Each Receivable and the sale of the Financed
Vehicle complied at the time it was originated or made and at the execution of
this Agreement complies in all material respects with all requirements of
applicable federal, state and local laws, and regulations thereunder, including
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 Soldiers and
Sailors Civil Relief Act of 1940, the Federal Reserve Board's Regulations B and
Z, and state adaptations of the National Consumer Credit Protection Act and of
the Uniform Consumer Credit Code, state "Lemon Laws" designed to prevent fraud
in the sale of automobiles and other consumer credit laws and equal credit
opportunity and disclosure laws.
(d) Binding Obligation. Each Receivable represents the genuine, legal,
valid and binding payment obligation in writing of the Obligor, enforceable by
the holder thereof in accordance with its terms subject to the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equitable principles.
(e) Security Interest in Financed Vehicle. (i) Immediately prior to the
sale, assignment and transfer thereof to the Issuer, each Receivable was secured
by a validly perfected first priority security interest in the Financed Vehicle
in favor of NMAC as secured party or all necessary and appropriate actions shall
have been commenced that would result in the valid perfection of a first
priority security interest in the Financed Vehicle in favor of NMAC as secured
party, and (ii) as of the Cutoff Date, according to the records of NMAC, no
Financed Vehicle has been repossessed.
(f) 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.
22
<PAGE> 27
(g) No Waiver. No provision of a Receivable has been waived in a manner
that is prohibited by the provisions of Section 4.01 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.
(h) 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.
(i) No Liens. To the Seller's knowledge, no liens have been filed for
work, labor or materials relating to a Financed Vehicle that shall be liens
prior to, or equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable.
(j) No Default. Except for payment defaults continuing for a period of
not more than 29 days as of the Cutoff Date, no default, breach, violation or
event permitting acceleration under the terms of any Receivable has occurred;
and no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation or event permitting acceleration under
the terms of any Receivable has arisen (other than deferrals and waivers of late
payment charges or fees permitted hereunder).
(k) Insurance. NMAC, in accordance with its customary procedures, has
determined at the time of origination of each Receivable that the related
Obligor has agreed to obtain physical damage insurance covering the Financed
Vehicle and the Obligor is required under the terms of the related Receivable to
maintain such insurance.
(l) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from the
Seller to the Trust and that the beneficial interest in and title to the
Receivables not be part of the Seller's estate in the event of the filing of a
bankruptcy petition by or against the Seller under any bankruptcy law.
Immediately prior to the transfer and assignment herein contemplated, the Seller
had good and marketable title to each Receivable free and clear of all Liens,
and immediately upon the transfer thereof, the Issuer, for the benefit of the
Noteholders and the Certificateholders, shall have good and marketable title to
each Receivable, free and clear of all Liens and rights of others. Each
Receivable File contains the original certificate of title (or a photocopy or
image thereof) or evidence that an application for a certificate of title has
been filed.
(m) Lawful Assignment. No Receivable has been originated in, or shall
be subject to the laws of, any jurisdiction under which the sale, transfer and
assignment of such Receivable under this Agreement are unlawful, void or
voidable.
(n) All Filings Made. All filings (including, without limitation, UCC
filings) necessary in any jurisdiction to give the Relevant Trustee a first
priority perfected ownership interest in the Receivables have been made or have
been delivered in form suitable for filing to the Relevant Trustee.
23
<PAGE> 28
(o) Chattel Paper. Each Receivable constitutes "chattel paper," as such
term is defined in the UCC.
(p) Simple Interest Receivables. All of the Receivables are Simple
Interest Receivables.
(q) One Original. There is only one original executed copy of each
Receivable.
(r) No Amendments. No Receivable has been amended such that the amount
of the Obligor's Scheduled Payments has been increased.
(s) APR. The APR of each Receivable equals or exceeds 5.25%.
(t) Maturity. As of the Cutoff Date, each Receivable had a remaining
term to maturity of not less than 5 months and not greater than 59 months.
(u) Balance. Each Receivable had an original Principal Balance of not
more than $49,090.33 and, as of the Cutoff Date, had a principal balance of not
less than $2,000.36 and not more than $44,807.66.
(v) Delinquency. No Receivable was more than 29 days past due as of the
Cutoff Date, and no Receivable has been extended by more than two months.
(w) Bankruptcy. No Obligor was the subject of a bankruptcy proceeding
(according to the records of NMAC) as of the Cutoff Date.
(x) Transfer. Each Receivable prohibits the sale or transfer of the
Financed Vehicle without the consent of NMAC.
(y) New, Near-New and Used Vehicles. Each Financed Vehicle was a new,
near-new or used automobile or light-duty truck at the time the related Obligor
executed the retail installment sale contract.
(z) Origination. Each Receivable has an origination date on or after
July 3, 1995.
(aa) Location of Receivable Files. The Receivable Files shall be kept
at one or more of the locations listed in Schedule B hereto.
(bb) Forced-Placed Insurance Premiums. No contract relating to any
Receivable has had forced-placed insurance premiums added to the amount
financed.
(cc) No Fraud or Misrepresentation. To the knowledge of the
Seller, no Receivable was originated by a Dealer and sold by such Dealer to the
Seller with any conduct constituting fraud or misrepresentation on the part of
such Dealer.
(dd) No Further Amounts Owed on the Receivables. No further amounts are
owed by the Seller to any Obligor under the Receivables.
24
<PAGE> 29
SECTION 3.02 Repurchase upon Breach. The Seller, the Servicer or the
Issuer, as the case may be, shall inform the other parties to this Agreement and
the Indenture Trustee promptly, in writing, upon the discovery of any breach of
the Seller's representations and warranties pursuant to Section 3.01 that
materially and adversely affects the interests of the Securityholders in any
Receivable. Unless the breach shall have been cured by the last day of the
second Collection Period following such discovery (or, at the Seller's election,
the last day of the first Collection Period following such discovery), the
Seller shall be obligated (whether or not such breach was known to the Seller on
the Closing Date), and the Issuer shall enforce the obligation of the Seller
under this Agreement and, if necessary, the Seller shall enforce the obligation
of NMAC under the Purchase Agreement, to repurchase any Receivable the
Securityholders' interest in which was materially and adversely affected by the
breach as of such last day. A breach of the representation in Section
3.01(a)(iv), (t) or (u) shall be deemed to affect materially and adversely the
related Receivable. In consideration of the purchase of the Receivables, the
Seller shall remit the Warranty Purchase Payment in the manner specified in
Section 5.05. For purposes of this Section 3.02, the Warranty Purchase Payment
of a Receivable that is not consistent with the Seller's warranty pursuant to
Section 3.01(a)(iv) shall include such additional amount as shall be necessary
to provide the full amount of interest as contemplated therein to the date of
repurchase. The sole remedy of the Trust, the Indenture Trustee (by operation of
the assignment of the Issuer's rights hereunder pursuant to the Indenture) or
any Securityholder with respect to a breach of the Seller's representations and
warranties pursuant to Section 3.01 shall be to require the Seller to repurchase
Receivables pursuant to this Section and to enforce the obligation of NMAC to
the Seller to repurchase such Receivables pursuant to the Purchase Agreement.
In addition, the Seller, the Servicer and the Issuer hereby agree to
treat the Overextended Receivables as if a breach had occurred with respect to
such Overextended Receivables. The Seller hereby agrees to repurchase the
Overextended Receivables pursuant to the provisions of the foregoing paragraph
and to (i) enforce the obligation of NMAC under the Purchase Agreement to
repurchase the Overextended Receivables and (ii) remit the Warranty Purchase
Payment with respect to such Overextended Receivables pursuant to Section 5.05
no later than the Business Day immediately preceding the first Distribution Date
after the Closing Date.
SECTION 3.03 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files as
custodian for the benefit of the Issuer and maintain such accurate and complete
accounts, records and computer systems pertaining to each Receivable File as
shall enable the Issuer to comply with this Agreement. In performing its duties
as custodian, the Servicer shall act with reasonable care, using that degree of
skill and attention that the Servicer exercises with respect to the receivable
files relating to all comparable automotive receivables that the Servicer
services for itself or others. In accordance with its customary practices with
respect to its retail installment sale contracts, the Servicer shall conduct, or
cause to be conducted, periodic audits of the Receivable Files held by it under
this Agreement and of the related accounts, records and computer systems, in
such a manner as shall enable the Issuer, the Owner Trustee or the Indenture
Trustee to verify the accuracy of the Servicer's record keeping. The Servicer
shall promptly report to the Issuer and the Indenture Trustee any material
failure on its part to hold the Receivable Files and
25
<PAGE> 30
maintain its accounts, records and computer systems as herein provided in all
material respects and shall promptly take appropriate action to remedy any such
material failure. Nothing herein shall be deemed to require an initial review or
any periodic review by the Issuer, the Owner Trustee or the Indenture Trustee of
the Receivable Files.
(b) Maintenance of and Access to Records. The Servicer shall maintain
each Receivable File at one of its offices specified in Schedule B or at such
other office as shall be specified to the Owner Trustee and the Indenture
Trustee by written notice from the Servicer not later than 90 days after any
change in location. The Servicer shall make available to the Owner Trustee and
the Indenture Trustee or their respective duly authorized representatives,
attorneys or auditors the Receivable Files and the related accounts, records and
computer systems maintained by the Servicer at such times during normal business
hours as the Owner Trustee or the Indenture Trustee shall instruct. The Servicer
shall permit the Owner Trustee, the Indenture Trustee and their respective
agents at any time during normal business hours upon reasonable prior notice to
inspect, audit and make copies of and abstracts from the Servicer's records
regarding any Receivable.
(c) Release of Documents. Upon the occurrence and during the
continuation of a Servicer Default or to the extent necessary for the Indenture
Trustee to comply with its obligations under this Agreement, the Servicer shall,
upon instruction from the Indenture Trustee, release any Receivable File to the
Indenture Trustee, the Indenture Trustee's agent or the Indenture Trustee's
designee, as the case may be, at such place or places as the Indenture Trustee
may designate, as soon as practicable.
SECTION 3.04 Instructions; Authority To Act. The Servicer shall be
deemed to have received proper instructions with respect to the Receivable Files
upon its receipt of written instructions signed by a Trust Officer of the Owner
Trustee or the Indenture Trustee.
SECTION 3.05 Custodian's Indemnification. The Servicer, as custodian,
shall indemnify the Issuer, the Owner Trustee and the Indenture Trustee for any
and all liabilities, obligations, losses, compensatory damages, payments, costs
or expenses of any kind whatsoever that may be imposed on, incurred by or
asserted against any of them as the result of any improper act or omission in
any way relating to the maintenance and custody by the Servicer as custodian of
the Receivable Files; provided, however, that the Servicer shall not be liable
to the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Owner Trustee, and the
Servicer shall not be liable to the Indenture Trustee for any portion of any
such amount resulting from the willful misfeasance, bad faith or negligence of
the Indenture Trustee.
SECTION 3.06 Effective Period and Termination. The Servicer's
appointment as custodian shall become effective as of the Cutoff Date, and shall
continue in full force and effect until terminated pursuant to this Section. If
NMAC shall resign as Servicer in accordance with the provisions of this
Agreement or if all of the rights and obligations of any Servicer shall have
been terminated under Section 8.01, the appointment of NMAC as custodian may be
terminated by the Indenture Trustee or by the Holders of Notes evidencing not
less than 25% of the Outstanding Amount of the Notes (but excluding for purposes
of such calculation and action all Notes held or beneficially owned by NMAC,
NARC or any of their Affiliates unless all of the
26
<PAGE> 31
Notes are held or beneficially owned by NMAC, NARC or any of their Affiliates)
or, with the consent of Holders of the Notes evidencing not less than 25% of the
Outstanding Amount of the Notes, by the Owner Trustee or by the
Certificateholders evidencing not less than 25% of the Certificate Balance (but
excluding for purposes of such calculation and action all Certificates held or
beneficially owned by NMAC, NARC or any of their Affiliates unless all of the
Certificates are held or beneficially owned by NMAC, NARC or any of their
Affiliates), in the same manner as the Indenture Trustee or such Holders may
terminate the rights and obligations of the Servicer under Section 8.01. The
Indenture Trustee or, with the consent of the Indenture Trustee, the Issuer may
terminate the Servicer's appointment as custodian, with cause, at any time upon
written notification to the Servicer, and without cause upon 30 days' prior
written notification to the Servicer. As soon as practicable after any
termination of such appointment, the Servicer shall deliver the Receivable Files
and the related accounts and records maintained by the Servicer to the Relevant
Trustee or the agent thereof at such place or places as the Relevant Trustee may
reasonably designate.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer.
(a) The Servicer shall manage, service, administer and make collections
on the Receivables with reasonable care, using that degree of skill and
attention that the Servicer exercises with respect to all comparable receivables
that it services for itself or others. Except with respect to Defaulted
Receivables, Administrative Receivables or Warranty Receivables, the Servicer
shall not change the amount of or reschedule the due date of any Scheduled
Payment, change the APR of, or extend any Receivable except as provided herein
or change any material term of a Receivable; provided, however, that:
(1) if a default, breach, violation, delinquency or
event permitting acceleration under the terms of any
Receivable shall have occurred or, in the judgment of the
Servicer, is imminent, the Servicer may (A) extend such
Receivable for credit related reasons that would be acceptable
to the Servicer with respect to comparable new, near-new or
used automobile or light-duty truck receivables that it
services for itself, but only if (i) the final scheduled
payment date of such Receivable as extended would not be later
than the last day of the Collection Period preceding the Final
Scheduled Distribution Date for the Class A-4 Notes, and (ii)
the rescheduling or extension would not modify the terms of
such Receivable in a manner which would constitute a
cancellation of such Receivable and the creation of a new
receivable for federal income tax purposes; or (B) reduce an
Obligor's monthly payment amount in the event of a prepayment
resulting from refunds of credit life and disability insurance
premiums and service contracts and make similar adjustments in
an Obligor's payment terms to the extent required by law;
(2) if at the end of the scheduled term of any
Receivable, the outstanding principal amount thereof is such
that the final payment to be made by the related Obligor is
larger than the regularly scheduled payment of principal and
interest made by such
27
<PAGE> 32
Obligor, the Servicer may permit such Obligor to pay
such remaining principal amount in more than one payment of
principal and interest, provided that the last such payment
shall be due on or prior to the last day of the Collection
Period preceding the Final Scheduled Distribution Date for the
Class A-4 Notes; and
(3) the Servicer may in its discretion waive any late
payment charge or any other fees that may be collected in the
ordinary course of servicing a Receivable.
(b) The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of Obligors on the Receivables, investigating
delinquencies, sending remittance advises to Obligors, reporting tax information
to Obligors, accounting for collections, furnishing monthly and annual
statements to the Owner Trustee and the Indenture Trustee with respect to
distributions and making Advances pursuant to Section 5.04.
(c) Without limiting the generality of the foregoing, the Servicer is
authorized and empowered to execute and deliver, on behalf of itself, the Trust,
the Owner Trustee, the Indenture Trustee and the Securityholders or any of them,
any and all instruments of satisfaction or cancellation, or partial or full
release or discharge, and all other comparable instruments, with respect to the
Receivables or to the Financed Vehicles securing the Receivables. If the
Servicer shall commence a legal proceeding to enforce a Receivable, the Issuer
(in the case of a Receivable other than an Administrative Receivable or a
Warranty Receivable) shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Receivable to the Servicer. If in any
enforcement suit or legal proceeding it shall be held that the Servicer may not
enforce a Receivable on the ground that it shall not be a real party in interest
or a holder entitled to enforce such Receivable, the Issuer shall, at the
Servicer's expense and direction, take steps to enforce the Receivable,
including bringing suit in its name or the name of the Indenture Trustee or the
Securityholders. The Issuer shall furnish the Servicer with any powers of
attorney and other documents reasonably necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder.
(d) The Servicer, at its expense, shall obtain on behalf of the Trust
all licenses, including those required under the Pennsylvania Motor Vehicle
Sales Finance Act, required by the laws of any jurisdiction to be held by the
Trust in connection with ownership of the Receivables, and shall make all
filings and pay all fees as may be required in connection therewith during the
term hereof. Nothing in the foregoing or in any other section of this Agreement
shall be construed to prevent the Servicer from implementing new programs,
whether on an intermediate, pilot or permanent basis, or on a regional or
nationwide basis, or from modifying its standards, policies and procedures as
long as, in each case, the Servicer does or would implement such programs or
modify its standards, policies and procedures in respect of comparable assets
serviced for itself in the ordinary course of business.
SECTION 4.02 Collection of Receivable Payments. The Servicer shall make
reasonable efforts to collect all payments called for under the terms and
provisions of the Receivables as and when the same shall become due and shall
follow such collection procedures as it follows with respect to all comparable
receivables that it services for itself or others.
28
<PAGE> 33
SECTION 4.03 Realization upon Receivables. On behalf of the Trust, the
Servicer shall use commercially reasonable efforts, consistent with its
customary servicing procedures, to repossess or otherwise convert the ownership
of the Financed Vehicle securing any Receivable as to which the Servicer shall
have determined eventual payment in full is unlikely. The Servicer shall follow
such customary and usual practices and procedures as it shall deem necessary or
advisable in its servicing of comparable receivables, which may include
reasonable efforts to realize upon any Dealer Recourse and selling the related
Financed Vehicle at public or private sale. The foregoing shall be subject to
the provision that, in any case in which the Financed Vehicle shall have
suffered damage, the Servicer shall not expend funds in connection with the
repair or the repossession of such Financed Vehicle unless it shall determine in
its discretion that such repair and/or repossession will increase the Net
Liquidation Proceeds.
SECTION 4.04 Maintenance of Security Interests in Financed Vehicles.
The Servicer shall, in accordance with its customary servicing procedures, take
such steps as are necessary to maintain perfection of the security interest
created by each Receivable in the related Financed Vehicle. The Servicer is
hereby authorized to take such steps as are necessary to re-perfect such
security interest on behalf of the Issuer and the Indenture Trustee in the event
of the relocation of a Financed Vehicle or for any other reason. If the
assignment of a Receivable to the Trust is insufficient, without a notation on
the related Financed Vehicle's certificate of title, to grant to the Trust a
first priority perfected security interest in the related Financed Vehicle, the
Servicer hereby agrees to serve as the agent of the Trust for the purpose of
perfecting the security interest of the Trust in such Financed Vehicle and
agrees that the Servicer's listing as the secured party on the certificate of
title is in this capacity as agent of the Trust.
SECTION 4.05 Covenants of Servicer.
(a) The Servicer shall not release the Financed Vehicle securing any
Receivable from the security interest granted by such Receivable in whole or in
part except in the event of payment in full by or on behalf of the Obligor
thereunder or repossession.
(b) The Servicer shall not do anything to impair the rights of the
Securityholders in the Receivables.
(c) If the Servicer shall determine not to make an Advance related to
delinquency or non-payment of any Receivable pursuant to Section 5.04 because it
determines that such Advance would not be recoverable from subsequent
collections on such Receivable, such Receivable shall be designated by the
Servicer to be a Defaulted Receivable, provided that such Receivable otherwise
meets the definition of a Defaulted Receivable.
SECTION 4.06 Purchase of Receivables upon Breach. The Servicer or the
Issuer shall inform the other party and the Indenture Trustee promptly, in
writing, upon the discovery of any breach by the Servicer of its obligations
under the second sentence of Section 4.01 or under Section 4.02, 4.04 or 4.05
that would materially and adversely affect any Receivable. Unless the breach
shall have been cured by the last day of the second Collection Period following
such discovery (or, at the Servicer's election, the last day of the first
Collection Period following discovery), the Servicer shall (whether or not such
breach was known to the Servicer on the Closing Date) purchase any Receivable
materially and adversely affected by such breach as of
29
<PAGE> 34
such last day. In consideration of such Receivable, the Servicer shall remit the
Administrative Purchase Payment (as reduced by any Outstanding Advances with
respect to such Receivable) in the manner specified in Section 5.05. For the
purposes of this Section 4.06, the Administrative Purchase Payment shall consist
in part of a release by the Servicer of all rights of reimbursement with respect
to Outstanding Advances with respect to the purchased Receivable. The sole
remedy of the Indenture Trustee, the Owner Trustee, the Trust or the
Securityholders against the Servicer with respect to a breach by the Servicer of
its obligations under the second sentence of Section 4.01 or under Section 4.02,
4.04 or 4.05 shall be to require the Servicer to purchase Receivables pursuant
to this Section 4.06.
SECTION 4.07 Servicing Fee and Expenses. As compensation for the
performance of its obligations hereunder, the Servicer shall be entitled to
receive on each Distribution Date the Total Servicing Fee. Except to the extent
otherwise provided herein, the Servicer shall be required to pay all expenses
incurred by it in connection with its activities under this Agreement (including
fees and disbursements of the Indenture Trustee and independent accountants,
taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports to Securityholders and all other fees and expenses not
expressly stated under this Agreement to be for the account of the
Securityholders).
SECTION 4.08 Servicer's Certificate.
(a) On or before the tenth day of each month (or, if such tenth day is
not a Business Day, then on the next succeeding Business Day), the Servicer
shall deliver to the Owner Trustee, each Paying Agent, and the Indenture
Trustee, with a copy to each Rating Agency, a Servicer's Certificate containing
all information necessary to make the distributions pursuant to Sections 5.06,
5.07 and 5.08 (including the amount of the aggregate collections on the
Receivables, the aggregate Advances to be made by the Servicer, if any, the
aggregate Administrative Purchase Payments for any Administrative Receivables to
be purchased by the Servicer, and the aggregate Warranty Purchase Payments for
any Warranty Receivables to be purchased by the Seller) for the Collection
Period preceding the date of such Servicer's Certificate, all information
necessary for the Owner Trustee to send statements to the Certificateholders and
the Indenture Trustee to send statements to the Noteholders pursuant to the
Trust Agreement or Indenture, as the case may be. Each of the Owner Trustee and
the Indenture Trustee may conclusively rely on the information in any Servicer's
Certificate and shall have no duty to confirm or verify the contents thereof.
(b) Concurrently with delivery of the Servicer's Certificate in each
month, the Servicer shall deliver to the underwriters of the Notes the Note
Factor for each Class of Notes, the Certificate Factor, and the Pool Factor for
each Class of Notes and for the Certificates, in each case as of the close of
business on the Distribution Date occurring in such month.
SECTION 4.09 Annual Statement as to Compliance; Notice of Default. (a)
The Servicer shall deliver to the Owner Trustee, the Indenture Trustee and each
of the Rating Agencies, on or before June 30 of each year, beginning June 30,
2000, an Officers' Certificate with respect to the prior twelve months ended on
March 31 of such calendar year (or with respect to the initial Officer's
Certificate, the period from the date of the initial issuance of the Securities
to March 31, 2000), stating that that 1. a review of the activities of the
Servicer during the
30
<PAGE> 35
preceding 12-month (or shorter) period and of its performance under this
Agreement has been made under such officer's supervision and 1. to the best of
such officer's knowledge, based on such review, the Servicer has fulfilled all
its obligations under this Agreement throughout such twelve-month (or shorter)
period, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to such officer and the nature
and status thereof. A copy of such Officer's Certificate may be obtained by any
Certificateholder or Noteholder by a request in writing to the Owner Trustee or
the Indenture Trustee addressed as set forth in Section 10.03 hereof.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
notice in an Officer's Certificate of any event that with the giving of notice
or lapse of time, or both, would become a Servicer Default under Section 8.01.
The Seller shall deliver to the Owner Trustee, the Indenture Trustee and to each
such Rating Agency, promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an Officer's
Certificate of any event that with the giving of notice or lapse of time, or
both, would become an Event of Default under Section 8.01(a)(ii) or would result
in any lowering of the ratings described in Section 5.02(a)(ii)(A).
SECTION 4.10 Annual Independent Certified Public Accountants' Report.
The Servicer shall cause a firm of independent certified public accountants, who
may also render other services to the Servicer, the Seller or their Affiliates,
to deliver to the Owner Trustee, the Indenture Trustee and each of the Rating
Agencies, on or before June 30 of each year, beginning June 30, 2000 with
respect to the prior 12 months ended on March 31 of such year (or with respect
to the initial reports, the period from the date of the initial issuance of the
Securities to March 31, 2000) the following reports: (a) a report that such firm
has audited the consolidated financial statements of the Servicer in accordance
with generally accepted auditing standards, that such firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the American
Institute of Certified Public Accountants ("AICPA"), and expressing such firm's
opinion thereon; and (b) a report indicating that such firm has examined, in
accordance with standards established by AICPA, management's assertion about the
Servicer's compliance with the minimum servicing standards identified in the
Mortgage Bankers Association of America's Uniform Single Attestation Program for
Mortgage Bankers ("USAP") as such standards relate to automobile and light-duty
truck loans serviced for others, and expressing such firm's opinion on such
management assertion (the "Annual USAP Report"). Upon the request of any
Certificateholder or Note Owner, the Owner Trustee or the Indenture Trustee, as
the case may be, shall promptly provide such Certificateholder or Note Owner
with a copy of such Annual USAP Report. For all purposes of this Agreement, the
Owner Trustee and the Indenture Trustee may rely on the representation of any
Person that it is a Certificateholder or a Note Owner, as the case may be.
SECTION 4.11 Access to Certain Documentation and Information Regarding
Receivables. The Servicer shall provide to the Owner Trustee and the Indenture
Trustee access to the Receivable Files in such cases where the Securityholders
shall be required by applicable statutes or regulations to review such
documentation. In each case, such access shall be afforded without charge, but
only upon reasonable request and during the normal business hours at the
respective offices of the Servicer. Nothing in this Section shall affect the
obligation of the
31
<PAGE> 36
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors and the failure of the Servicer to provide access to
information as a result of such obligation shall not constitute a breach of this
Section.
SECTION 4.12 Appointment of Subservicer. So long as NMAC acts as the
Servicer, the Servicer may at any time without notice or consent subcontract
substantially all its duties under this Agreement to any corporation more than
50% of the voting stock of which is owned, directly or indirectly, by Nissan.
The Servicer may at any time perform specific duties as servicer under this
Agreement through other subcontractors; provided, however, that no such
delegation or subcontracting shall relieve the Servicer of its responsibilities
with respect to such duties as to which the Servicer shall remain primarily
responsible with respect thereto.
SECTION 4.13 Amendments to Schedule of Receivables. If the Servicer,
during any Collection Period, assigns to a Receivable an account number that
differs from the original account number identifying such Receivable on the
Schedule of Receivables, the Servicer shall deliver to the Owner Trustee and the
Indenture Trustee, on or before the Distribution Date relating to such
Collection Period, an amendment to the Schedule of Receivables reporting the
newly assigned account number, together with the old account number of each such
Receivable. The first such delivery of amendments to the Schedule of Receivables
shall include monthly amendments reporting account numbers appearing on the
Schedule of Receivables with the new account numbers assigned to such
Receivables during any prior Collection Period.
SECTION 4.14 Acknowledgement by Servicer of its Obligations under the
Indenture. The Servicer hereby agrees and consents to the provisions of the
Indenture applicable to it (including, without limitation, Sections 8.03(a) and
8.03(b) thereof) and agrees to be bound by such provisions.
ARTICLE V
Distributions; Reserve Account;
Statements to the Certificateholders and the Noteholders
SECTION 5.01 Establishment of Accounts.
(a) The Servicer, on behalf of the Owner Trustee and the Indenture
Trustee, shall establish the Collection Account in the name of the Indenture
Trustee for the benefit of the Securityholders. The Collection Account shall be
a segregated trust account initially established with the Indenture Trustee and
maintained with the Indenture Trustee as long as (i) the deposits of the
Indenture Trustee have the Required Deposit Rating or (ii) the Collection
Account is maintained in a segregated trust account in the trust department of
the Indenture Trustee; provided, however, that all amounts held in the
Collection Account shall, to the extent permitted by applicable laws, rules and
regulations and as directed by the Servicer, be invested by the Indenture
Trustee in Eligible Investments; otherwise, such amounts shall be maintained in
cash; provided that if (x) the Servicer shall have failed to give investment
directions for any funds on deposit in the Collection Account to the Indenture
Trustee by 5:00 p.m. Eastern Time (or such other time as may be agreed by the
Servicer and the Indenture Trustee) on any Business Day, or (y) a Default or
Event of Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to the
Indenture, or (z) if the
32
<PAGE> 37
Notes shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Trust Estate are being applied in
accordance with Section 5.05 of the Indenture as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Collection Account in one or more
Eligible Investments specified in clauses (i), (iv) or (vi) of the definition of
Eligible Investments. All such Eligible Investments shall mature not later than
the Business Day preceding the next Distribution Date, in such manner that such
amounts invested shall be available to make the required distributions on the
Distribution Date. The Servicer will not direct the Indenture Trustee, and the
Issuer shall cause the Servicer not, to make any investment of any funds or to
sell any investment held in the Collection Account unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect. Should the
short-term unsecured debt obligations of the Indenture Trustee no longer have
the Required Deposit Rating then, unless the Collection Account is maintained in
segregated trust accounts in the trust department of the Indenture Trustee, the
Servicer shall, with the Indenture Trustee's assistance as necessary and within
ten Business Days of receipt of notice from the Indenture Trustee that the
Indenture Trustee no longer has the Required Deposit Rating, cause the
Collection Account (i) to be moved to segregated trust accounts in a bank or
trust company, the short-term unsecured debt obligations of which shall have the
Required Deposit Rating, or (ii) to be moved to the trust department of the
Indenture Trustee.
(b) Earnings on investment of funds in the Collection Account shall be
paid to the Servicer on each Distribution Date as servicing compensation, and
any losses and investment expenses shall be charged against the funds on deposit
in the Collection Account.
(c) Subject to the foregoing, the Servicer, on behalf of the Owner
Trustee and the Indenture Trustee, shall establish and maintain the Collection
Account as an Eligible Deposit Account in the name of and under the exclusive
control of the Indenture Trustee, bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Securityholders. The
Indenture Trustee will be obligated to transfer all amounts remaining on deposit
in the Collection Account on the Distribution Date on which the Notes of all
Classes have been paid in full (or substantially all of the Trust Estate is
otherwise released from the lien of the Indenture) to another Eligible Deposit
Account established pursuant to the Trust Agreement for the benefit of the
Certificateholders (the "Trust Collection Account"), and to take all necessary
or appropriate actions to transfer all of its right, title and interest in the
Collection Account, all funds or investments held therein and all proceeds
thereof, whether or not on behalf of the Securityholders, to the Owner Trustee
for the benefit of the Certificateholders, subject to the limitations set forth
in the Indenture with respect to amounts held for payment to Noteholders that do
not promptly deliver a Note for payment on such Distribution Date. After the
transfer to the Trust Collection Account described in the immediately preceding
sentence, references in this Agreement to "Collection Account" shall be deemed
to be references to the "Trust Collection Account."
33
<PAGE> 38
(d) With respect to the Collection Account and all property held
therein, the Owner Trustee agrees, by its acceptance hereof that, on the terms
and conditions set forth in the Indenture, for so long as Notes of any Class
remain outstanding, the Indenture Trustee shall possess all right, title and
interest therein (excluding interest or investment income thereon payable to the
Servicer or the Seller, as the case may be), and the Accounts shall be under the
sole dominion and control of the Indenture Trustee for the benefit of the
Noteholders and the Certificateholders, as the case may be, as set forth in the
Indenture. The parties hereto agree that the Issuer, the Owner Trustee and the
Holders of the Certificates have no right, title or interest in the Reserve
Account or any amounts on deposit therein at any time. The parties hereto agree
that the Servicer shall have the power, revocable by the Indenture Trustee or by
the Owner Trustee with the consent of the Indenture Trustee, to instruct the
Indenture Trustee to make withdrawals and payments from the Collection Account
for the purpose of permitting the Servicer, Indenture Trustee or the Owner
Trustee to carry out its respective duties hereunder or under the Indenture or
the Trust Agreement, as the case may be.
Notwithstanding the foregoing, the Servicer shall be entitled
to withhold, or to be reimbursed from amounts otherwise payable into or on
deposit in the Collection Account, as the case may be, amounts previously
deposited in the Collection Account but later determined to have resulted from
mistaken deposits or posting.
SECTION 5.02 Collections. (a) Except as otherwise provided in this
Agreement, the Servicer shall remit daily to the Collection Account all payments
received by or on behalf of the Obligors on or in respect of the Receivables
(excluding payments on the Warranty Receivables or the Administrative
Receivables) and all Net Liquidation Proceeds not later than the first Business
Day after receipt thereof. Notwithstanding the foregoing, for so long as (i)
NMAC is the Servicer, (ii) (A) NMAC's short-term unsecured debt obligations are
rated at least "P-1" by Moody's and NMAC's short-term unsecured debt obligations
(or, if NMAC is the Servicer and the Servicer then has no short-term rating from
Standard & Poor's, Nissan Capital of America, Inc.'s short-term unsecured debt
obligations) are rated "A-1" by Standard & Poor's (so long as Moody's and
Standard & Poor's are Rating Agencies), or (B) certain arrangements are made
that are acceptable to the Rating Agencies, and (iii) no Event of Default or
Servicer Default shall have occurred and be continuing (unless waived by the
appropriate Securityholders) (collectively, the "Monthly Remittance
Conditions"); the Servicer shall not be required to remit such collections to
the Collection Account on the foregoing daily basis but shall be entitled to
retain such collections, without segregation from its other funds, until the
Business Day before each Distribution Date at which time the Servicer shall
remit all such collections in respect of the related Collection Period to the
Collection Account in immediately available funds. Commencing with the first day
of the first Collection Period that begins at least two Business Days after the
day on which any Monthly Remittance Condition ceases to be satisfied and for so
long as any Monthly Remittance Condition is not satisfied, all collections then
held by the Servicer shall be immediately deposited into the Collection Account
and all future collections on or in respect of the Receivables (other than
payments on Warranty Receivables and the Administrative Receivables) and all Net
Liquidation Proceeds shall be remitted by the Servicer to the Collection Account
on a daily basis not later than the first Business Day after receipt thereof.
For purposes of this Article V, the phrase "payments received by or on behalf of
the Obligors" shall mean payments made by Persons other than the Servicer.
34
<PAGE> 39
(b) The Indenture Trustee or the Owner Trustee shall not be deemed to
have knowledge of any event or circumstances under clause (iii) of the
definition of the Monthly Remittance Condition unless the Indenture Trustee or
the Owner Trustee has received notice of such event or circumstance from the
Seller or the Servicer in an Officer's Certificate or from the Holders of Notes
evidencing not less than 25% in principal amount of the Outstanding Amount of
the Notes, or a Trust Officer of the Indenture Trustee or the Owner Trustee with
knowledge hereof or familiarity herewith has actual knowledge of such event or
circumstances..
(c) The Servicer shall give the Owner Trustee, the Indenture Trustee
and each Rating Agency written notice of the failure of any Monthly Remittance
Condition (and any subsequent curing of a failed Monthly Remittance Condition)
as soon as practical after the occurrence thereof but in no event later than 10
Business Days after obtaining knowledge thereof (it being understood that if the
Monthly Remittance Condition is not satisfied as of the Closing Date, no such
notice shall be required in connection therewith).
(d) Notwithstanding the foregoing, if a Monthly Remittance Condition is
not satisfied, the Servicer may utilize an alternative remittance schedule
(which may include the remittance schedule utilized by the Servicer before the
Monthly Remittance Condition became unsatisfied), if the Servicer provides to
the Owner Trustee and the Indenture Trustee written confirmation from each
Rating Agency that such alternative remittance schedule will not result in the
downgrading or withdrawal by such Rating Agency of the ratings then assigned to
any Class of Notes.
SECTION 5.03 Application of Collections. As of the Business Day
immediately preceding the related Distribution Date, all collections for the
related Collection Period with respect to each Receivable shall be applied by
the Servicer as follows:
(a) First, to interest accrued to date on such Receivable;
(b) Second, to principal until the Principal Balance of such Receivable
is brought current;
(c) Third, to reduce the unpaid late charges (if any) as provided in
such Receivable; and
(d) Fourth, to prepay principal on such Receivable.
SECTION 5.04 Advances.
(a) The Servicer shall make a payment with respect to each Receivable
(other than an Administrative Receivable, a Warranty Receivable or a Liquidated
Receivable) (each, an "Advance") equal to the excess if any, of (x) the product
of the Principal Balance of such Receivable as of the first day of the related
Collection Period and one-twelfth of its APR (calculated on the basis of a
360-day year comprised of twelve 30-day months), over (y) the interest actually
received by the Servicer with respect to such Receivable from the Obligor or
from payments of the Administrative Purchase Payment or the Warranty Purchase
Payment, as the case may be, during such Collection Period. The Servicer will
not be obligated to make an Advance in respect of a Receivable (other than an
Advance in respect of an interest shortfall
35
<PAGE> 40
arising from the Prepayment of a Receivable) to the extent that the Servicer, in
its sole discretion, shall determine that the Advance constitutes a
Nonrecoverable Advance. With respect to each Receivable, the Advance shall
increase the Outstanding Advances. No Advances will be made with respect to the
Principal Balance of the Receivables. The Servicer shall deposit all such
Advances into the Collection Account in immediately available funds no later
than 5:00 p.m., New York City time, on the Business Day immediately preceding
the related Distribution Date. To the extent that the amount set forth in clause
(y) above with respect to a Receivable is greater than the amount set forth in
clause (x) above with respect thereto, such amount shall be distributed to the
Servicer pursuant to Section 5.06; provided, however, that, notwithstanding
anything else herein, the Servicer shall not be reimbursed for any amounts
representing an Advance, or any portion thereof, made in respect of an interest
shortfall arising from the Prepayment of a Receivable.
(b) The Servicer shall be entitled to reimbursement for Outstanding
Advances, without interest, with respect to a Receivable from the following
sources with respect to such Receivable pursuant to Section 5.06(c)(i) or
Section 5.06(d)(i): (i) subsequent payments made by or on behalf of the related
Obligor, (ii) Net Liquidation Proceeds, and (iii) the Warranty Purchase
Payments.
(c) To the extent that the Servicer has determined that any Outstanding
Advance is a Nonrecoverable Advance, the Servicer may provide to the Owner
Trustee and the Indenture Trustee an Officer's Certificate setting forth the
amount of such Nonrecoverable Advance, and on the related Distribution Date, the
Relevant Trustee shall remit to the Servicer from funds on deposit in the
Collection Account an amount equal to the amount of such Nonrecoverable Advance
pursuant to Section 5.06(c)(ii) or Section 5.06(d)(ii).
(d) For so long as the Monthly Remittance Conditions are satisfied, in
lieu of causing the Servicer first to deposit and then the Relevant Trustee to
remit to the Servicer the amounts described in clauses (i) through (iii) in
Section 5.04(b) reimbursable in respect on Outstanding Advances, or the amounts
described in Section 5.04(c) applicable in respect of Nonrecoverable Advances,
the Servicer may deduct such amounts from deposits otherwise to be made into the
Collection Account.
(e) Notwithstanding the provisions of Section 5.04(a), no Successor
Servicer, including the Indenture Trustee, shall be obligated to make Advances
unless it has expressly agreed to do so in writing.
SECTION 5.05 Additional Deposits. (a) The following additional deposits
shall be made to the Collection Account: (i) the Seller shall remit the
aggregate Warranty Purchase Payments with respect to Warranty Receivables
pursuant to Section 3.02; (ii) the Servicer shall remit (A) the aggregate
Advances pursuant to Section 5.04(a), (B) the aggregate Administrative Purchase
Payments with respect to Administrative Receivables pursuant to Section 4.06,
and (C) the amount required upon any optional purchase of the Receivables by the
Servicer, or any Successor Servicer, pursuant to Section 9.01; and (iii) the
Indenture Trustee shall transfer (A) the Yield Supplement Deposit from the Yield
Supplement Account to the Collection Account pursuant to Section 5.08, plus
reinvestment income on the Yield Supplement Account (in assuring the
availability therein of the related Available Interest) and (B) the amounts
described
36
<PAGE> 41
in Sections 5.06 and 5.07 from the Reserve Account to the Collection
Account pursuant to Section 5.07.
(b) All deposits required to be made pursuant to this Section 5.05 by
the Seller or the Servicer, as the case may be, may be made in the form of a
single deposit and shall be made in immediately available funds, no later than
5:00 P.M., New York City time, on the Business Day immediately preceding the
related Distribution Date. At the direction of the Servicer, the Relevant
Trustee shall invest such amounts in Eligible Investments maturing not later
than 3:00 P.M. New York City Time, on the related Distribution Date.
SECTION 5.06 Payments and Distributions.
(a) The rights of the Certificateholders to receive distributions in
respect of the Certificates shall be and hereby are subordinated to the rights
of the Noteholders to receive distributions in respect of the Notes to the
extent provided in this Section 5.06.
(b) On each Determination Date, the Servicer shall calculate the
Available Interest, the Available Principal, the Allocable Principal, the Yield
Supplement Deposit, the Noteholders' Distributable Amount, the
Certificateholders' Distributable Amount, the amount to be distributed to
Noteholders of each Class and to Certificateholders pursuant to Section 5.06(c)
or (d), and all other distributions, deposits and withdrawals to be made on the
related Distribution Date.
(c) Subject to Section 5.06(d), on each Distribution Date, the Relevant
Trustee shall make the following payments and distributions from the Collection
Account (after payment of the Supplemental Servicing Fee to the extent not
previously retained by the Servicer) in the following order of priority and in
the amounts set forth in the Servicer's Certificate for such Distribution Date;
provided, however, that such payments and distributions shall be made only from
those funds deposited in the Collection Account for the related Collection
Period:
(i) to the Servicer, from amounts on deposit in the Collection
Account, any payments in respect of Advances required to be reimbursed
and to the extent set forth in Section 5.04(b);
(ii) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Nonrecoverable Advances
required to be reimbursed and to the extent set forth in Section
5.04(c);
(iii) to the Servicer, from Available Amounts, the Base
Servicing Fee (including any unpaid Base Servicing Fees from one or
more prior Collection Periods);
(iv) on a pro rata basis (based on the amounts distributable
pursuant to this clause to each such Class), to the Class A-1
Noteholders, the Noteholders' Interest Distributable Amount for such
Class, to the Class A-2 Noteholders, the Noteholders' Interest
Distributable Amount for such Class, to the Class A-3 Noteholders, the
Noteholders' Interest Distributable Amount for such Class, and to the
Class A-4 Noteholders, the Noteholders' Interest Distributable Amount
for such Class; such amounts to be paid from Available Amounts (after
giving effect to any reduction in Available Amounts described in clause
(iii) above);
37
<PAGE> 42
(v) to the Class A-1 Noteholders, an amount equal to the
Noteholders' Principal Distributable Amount, such amount to be paid
from Available Amounts (after giving effect to any reduction in
Available Amounts described in clauses (iii) and (iv) above), until the
principal amount of the Class A-1 Notes is reduced to zero;
(vi) on the Distribution Date on which the Class A-1 Notes
have been paid in full and on each Distribution Date thereafter, to the
Class A-2 Noteholders, an amount equal to the Noteholders' Principal
Distributable Amount, such amount to be paid from Available Amounts
(after giving effect to any reduction in Available Amounts described in
clauses (iii) through (v) above), until the principal amount of the
Class A-2 Notes is reduced to zero;
(vii) on the Distribution Date on which the Class A-2 Notes
have been paid in full and on each Distribution Date thereafter, to the
Class A-3 Noteholders, an amount equal to the Noteholders' Principal
Distributable Amount, such amount to be paid from Available Amounts
(after giving effect to any reduction in Available Amounts described in
clauses (iii) through (vi) above), until the principal amount of the
Class A-3 Notes is reduced to zero;
(viii) on the Distribution Date on which the Class A-3 Notes
have been paid in full and on each Distribution Date thereafter, to the
Class A-4 Noteholders, an amount equal to the Noteholders' Principal
Distributable Amount, such amount to be paid from Available Amounts
(after giving effect to any reduction in Available Amounts described in
clauses (iii) through (vii) above), until the principal amount of the
Class A-4 Notes is reduced to zero;
(ix) to the Reserve Account, the amount, if any, necessary to
cause the balance of funds therein to equal the Specified Reserve
Account Balance with respect to such Distribution Date, such amounts to
be paid from Available Amounts (after giving effect to any reduction in
Available Amounts described in clauses (iii) through (viii) above);
(x) on the Distribution Date on which the Notes have been paid
in full and on each Distribution Date thereafter, to the
Certificateholders, an amount equal to the Certificateholders'
Principal Distributable Amount, such amount to be paid from Available
Amounts (after giving effect to the reduction in Available Amounts
described in clauses (iii) through (ix) above); and
(xi) any Available Amounts remaining after giving effect to
the foregoing, to the Seller.
(d) Notwithstanding the provisions of Section 5.06(c), after the
occurrence of an Event of Default that results in the acceleration of any Notes,
on each Distribution Date, the Relevant Trustee shall make the following
payments and distributions from the Collection Account (after payment of the
Supplemental Servicing Fee to the extent not previously retained by the
Servicer) in the following order of priority and in the amounts set forth in the
Servicer's Certificate for such Distribution Date; provided, however, that such
payments and distributions
38
<PAGE> 43
shall be made only from those funds deposited in the Collection Account for the
related Collection Period:
(i) to the Servicer, from amounts on deposit in the Collection
Account, any payments in respect of Advances required to be reimbursed
and to the extent set forth in Section 5.04(b);
(ii) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Nonrecoverable Advances
required to be reimbursed and to the extent set forth in Section
5.04(c);
(iii) to the Servicer, from Available Amounts, the Base
Servicing Fee (including any unpaid Base Servicing Fees from one or
more prior Collection Periods);
(iv) on a pro rata basis (based on the amounts distributable
pursuant to this clause to each such Class), to the Class A-1
Noteholders, the Noteholders' Interest Distributable Amount for such
Class, to the Class A-2 Noteholders, the Noteholders' Interest
Distributable Amount for such Class, to the Class A-3 Noteholders, the
Noteholders' Interest Distributable Amount for such Class, and to the
Class A-4 Noteholders, the Noteholders' Interest Distributable Amount
for such Class; such amounts to be paid from Available Amounts (after
giving effect to any reduction in Available Amounts described in clause
(iii) above);
(v) to the Class A-1 Noteholders, the Class A-2 Noteholders,
the Class A-3 Noteholders and the Class A-4 Noteholders, on a pro rata
basis (based on the Outstanding Amount of each Class), until the total
amount paid to such Noteholders in respect of principal from the
Closing Date is equal to the Original Principal Amount for such Class
of Notes, such amounts to be paid from Available Amounts (after giving
effect to any reduction in Available Amounts described in clauses (iii)
and (iv) above);
(vi) on the Distribution Date on which the Notes have been
paid in full and on each Distribution Date thereafter, to the
Certificateholders, an amount equal to the Certificateholders'
Principal Distributable Amount, such amount to be paid from Available
Amounts (after giving effect to the reduction in Available Amounts
described in clauses (iii) through (v) above); and
(vii) any Available Amounts remaining after giving effect to
the foregoing, to the Seller.
(e) For purposes of determining whether an Event of Default pursuant to
Section 5.01(b) of the Indenture has occurred, the amount of principal required
to be paid to the Holders of any Class of Notes on any Distribution Date is the
amount available to be paid thereto pursuant to Section 5.06(c); provided,
however, that (i) the Class A-1 Notes are required to be paid in full on or
before the Final Scheduled Distribution Date for such Class, meaning that the
Class A-1 Noteholders are entitled to have received on or before such date
payments in respect of principal in an aggregate amount equal to the Original
Principal Amount for such Class, together with all interest accrued thereon
through such date; (ii) the Class A-2 Notes are required to be paid in full on
or before the Final Scheduled Distribution Date for such Class, meaning that
39
<PAGE> 44
the Class A-2 Noteholders are entitled to have received on or before such date
payments in respect of principal in an aggregate amount equal to the Original
Principal Amount for such Class, together with all interest accrued thereon
through such date; (iii) the Class A-3 Notes are required to be paid in full on
or before the Final Scheduled Distribution Date for such Class, meaning that the
Class A-3 Noteholders are entitled to have received on or before such date
payments in respect of principal in an aggregate amount equal to the Original
Principal Amount for such Class, together with all interest accrued thereon
through such date; and (iv) the Class A-4 Notes are required to be paid in full
on or before the Final Scheduled Distribution Date for such Class, meaning that
the Class A-4 Noteholders are entitled to have received on or before such date
payments in respect of principal in an aggregate amount equal to the Original
Principal Amount for such Class, together with all interest accrued thereon
through such date.
(f) Except with respect to the final payment upon retirement of a Note
or Certificate, the Servicer shall on each Distribution Date instruct the
Relevant Trustee to pay or distribute to each Securityholder of record on the
related Record Date by check mailed to such Securityholder at the address of
such Holder appearing in the Certificate Register or Note Register, as the case
may be (or, if DTC, its nominee or a Clearing Agency is the relevant Holder, by
wire transfer of immediately available funds or pursuant to other arrangements),
the amount to be paid or distributed to such Securityholder pursuant to such
Holder's Note or Certificate. With respect to the final payment upon retirement
of a Note or Certificate, the Servicer shall on the relevant final Distribution
Date instruct the Relevant Trustee to pay or distribute the amounts due thereon
only upon delivery for cancellation of the certificate representing such Note or
Certificate in accordance with the Indenture or the Trust Agreement, as the case
may be.
SECTION 5.07 Reserve Account.
(a) In order to assure that certain amounts will be available to make
required payments to Noteholders, the Seller will, pursuant to the Securities
Account Control Agreement, establish and maintain with the Securities
Intermediary a segregated trust account (the "Reserve Account") in the name of
the Indenture Trustee which will include the money and other property deposited
and held therein pursuant to Sections 5.06(c), 5.06(d) and this Section 5.07. On
or prior to the Closing Date, the Seller shall deposit an amount equal to the
Reserve Account Initial Deposit into the Reserve Account. As and to the extent
set forth in Section 5.06(c) or (d), the Relevant Trustee will deposit Available
Amounts into the Reserve Account on each Distribution Date as provided in the
Servicer's Certificate, until the amount on deposit therein equals the Specified
Reserve Account Balance. On each Distribution Date, to the extent that amounts
in the Collection Account and/or Available Amounts, as the case may be, are
insufficient to fully fund the payments and distributions described in clauses
(i) through (viii) of Section 5.06(c) or clauses (i) through (v) of Section
5.06(d), the Relevant Trustee will withdraw amounts then on deposit in the
Reserve Account, up to the amounts of any such deficiencies, and deposit such
amounts into the Collection Account for application pursuant to such clauses. On
each Distribution Date, as provided in the Servicer's Certificate, the Relevant
Trustee will release to the Seller any amounts remaining on deposit in the
Reserve Account in excess of the Specified Reserve Account Balance. Upon the
payment in full of the Notes under the Indenture, as directed in writing by the
Servicer, the Relevant Trustee will release to the Seller any amounts remaining
on deposit in the Reserve Account, and all rights to the Reserve Account and all
other collateral registered or held therein shall revert to the Seller in
accordance with the Securities Account Control Agreement.
40
<PAGE> 45
Upon any such distribution to the Seller, the Issuer, Owner Trustee,
Certificateholders, Indenture Trustee and Noteholders will have no further
rights in, or claims to, such amounts.
(b) All amounts held in the Reserve Account shall be invested by the
Relevant Trustee, as directed in writing by the Servicer, in Eligible
Investments; provided that if (x) the Servicer shall have failed to give
investment directions for any funds on deposit in the Reserve Account to the
Indenture Trustee by 5:00 p.m. Eastern Time (or such other time as may be agreed
by the Servicer and the Indenture Trustee) on any Business Day, or (y) a Default
or Event of Default shall have occurred and be continuing with respect to the
Notes but the Notes shall not have been declared due and payable pursuant to the
Indenture, or (z) if the Notes shall have been declared due and payable
following an Event of Default, amounts collected or receivable from the Trust
Estate are being applied in accordance with Section 5.05 of the Indenture as if
there had not been such a declaration, then the Indenture Trustee shall, to the
fullest extent practicable, invest and reinvest funds in the Reserve Account in
one or more Eligible Investments specified in clauses (i), (iv) or (vi) of the
definition of Eligible Investments. All such Eligible Investments shall mature
not later than the Business Day preceding the next Distribution Date, in such
manner that such amounts invested shall be available to make the required
deposits on the Distribution Date; provided that if permitted by the Rating
Agencies, monies on deposit therein may be invested in Eligible Investments that
mature later than the Business Day preceding the next Distribution Date. The
Servicer will not direct the Relevant Trustee to make any investment of any
funds or to sell any investment held in the Reserve Account unless the security
interest granted and perfected in such account will continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Relevant
Trustee to make any such investment or sale, if requested by the Relevant
Trustee, the Servicer shall deliver to the Relevant Trustee an Opinion of
Counsel, acceptable to the Relevant Trustee, to such effect. Earnings, if any,
on investment of funds in the Reserve Account shall be paid to the Seller on
each Distribution Date, and losses and any investment expenses shall be charged
against the funds on deposit therein. The Relevant Trustee shall incur no
liability for the selection of investments or for losses thereon absent its own
negligence or willful misfeasance. The Relevant Trustee shall have no liability
in respect of losses incurred as a result of the liquidation of any investment
prior to its stated maturity date or the failure of the Servicer to provide
timely written investment directions.
(c) Subject to the right of the Relevant Trustee to make withdrawals
therefrom, as directed by the Servicer, for the purposes and in the amounts set
forth in Section 5.06, the Reserve Account and all funds held therein shall be
the property of the Seller and not the property of the Issuer, the Owner Trustee
or the Indenture Trustee. The Issuer, the Owner Trustee, the Seller and the
Indenture Trustee will treat the Reserve Account, all funds therein and all net
investment income with respect thereto as assets of the Seller for federal
income tax and all other purposes.
(d) The Seller hereby grants to the Relevant Trustee for the benefit of
the Noteholders a security interest in all funds (including Eligible
Investments) in the Reserve Account (including the Reserve Account Initial
Deposit) and the proceeds thereof to secure the payment of interest on and
principal of the Notes, and the Relevant Trustee shall have all of the rights of
a secured party under the UCC with respect thereto; provided that all income
from the investment of funds in the Reserve Account, and the right to receive
such income are retained by the Seller and are
41
<PAGE> 46
not transferred, assigned or otherwise conveyed hereunder. If for any reason the
Reserve Account is no longer an Eligible Deposit Account, the Relevant Trustee
shall promptly cause the Reserve Account to be moved to another institution or
otherwise changed so that the Reserve Account becomes an Eligible Deposit
Account.
(e) Neither the Owner Trustee nor the Indenture Trustee shall enter
into any subordination or intercreditor agreement with respect to the Reserve
Account.
SECTION 5.08 Yield Supplement Account.
(a) In order to assure that sufficient amounts to make required
distributions of interest to Noteholders will be available, the Seller will,
pursuant to the Securities Account Control Agreement and the Yield Supplement
Agreement, establish and maintain with the Securities Intermediary a segregated
trust account (the "Yield Supplement Account") in the name of the Indenture
Trustee which will include the money and other property deposited and held
therein pursuant to the Yield Supplement Agreement and this Section 5.08.
(b) On or prior to the Closing Date, the Seller shall deposit an amount
equal to the Initial Yield Supplement Amount into the Yield Supplement Account
pursuant to the Yield Supplement Agreement. On each Distribution Date, to the
extent amounts on deposit in the Yield Supplement Account are sufficient
therefor, the Relevant Trustee will withdraw amounts then on deposit in the
Yield Supplement Account in an amount equal to the Yield Supplement Deposit with
respect to such Distribution Date and deposit such amounts into the Collection
Account for application pursuant to Section 5.06. On each Distribution Date, if
the amount on deposit in the Yield Supplement Account (after giving effect to
all deposits thereto or withdrawals therefrom on such Distribution Date) is
greater than the Required Yield Supplement Amount, the Relevant Trustee will
distribute such excess to the Seller. Upon payment in full of the Notes under
the Indenture, as directed in writing by the Servicer, the Relevant Trustee will
release to the Seller any amounts remaining on deposit in the Yield Supplement
Account and all rights to the Yield Supplement Account, and all other Collateral
registered or held therein shall revert to the Seller in accordance with the
Securities Account Control Agreement. Upon any such distribution to the Seller,
the Issuer, Owner Trustee, Indenture Trustee and Certificateholders will have no
further rights in, or claims to, such amounts.
(c) All amounts held in the Yield Supplement Account shall be invested
by the Relevant Trustee, as directed in writing by the Servicer, in Eligible
Investments; provided that if (x) the Servicer shall have failed to give
investment directions for any funds on deposit in the Yield Supplement Account
to the Indenture Trustee by 5:00 p.m. Eastern Time (or such other time as may be
agreed by the Servicer and the Indenture Trustee) on any Business Day, or (y) a
Default or Event of Default shall have occurred and be continuing with respect
to the Notes but the Notes shall not have been declared due and payable pursuant
to the Indenture, or (z) if the Notes shall have been declared due and payable
following an Event of Default, amounts collected or receivable from the Trust
Estate are being applied in accordance with Section 5.05 of the Indenture as if
there had not been such a declaration, then the Indenture Trustee shall, to the
fullest extent practicable, invest and reinvest funds in the Yield Supplement
Account in one or more Eligible Investments specified in clauses (i), (iv) or
(vi) of the definition of Eligible Investments. All such Eligible Investments
shall mature not later than the Business Day
42
<PAGE> 47
preceding the next Distribution Date, in such manner that such amounts invested
shall be available to make the required deposits on the Distribution Date;
provided that if permitted by the Rating Agencies, monies on deposit therein may
be invested in Eligible Investments that mature later than the Business Day
preceding the next Distribution Date. The Servicer will not direct the Relevant
Trustee to make any investment of any funds or to sell any investment held in
the Yield Supplement Account unless the security interest granted and perfected
in such account will continue to be perfected in such investment or the proceeds
of such sale, in either case without any further action by any Person, and, in
connection with any direction to the Relevant Trustee to make any such
investment or sale, if requested by the Relevant Trustee, the Servicer shall
deliver to the Relevant Trustee an Opinion of Counsel, acceptable to the
Relevant Trustee, to such effect. Earnings, if any, on investment of funds in
the Yield Supplement Account shall be deposited in the Collection Account on
each Distribution Date, and losses and any investment expenses shall be charged
against the funds on deposit therein. The Relevant Trustee shall incur no
liability for the selection of investments or for losses thereon absent its own
negligence or willful misfeasance. The Relevant Trustee shall have no liability
in respect of losses incurred as a result of the liquidation of any investment
prior to its stated maturity date or the failure of the Servicer to provide
timely written investment directions.
(d) Subject to the right of the Relevant Trustee to make withdrawals
therefrom, as directed by the Servicer, for the purposes and in the amounts set
forth in Section 5.06, the Yield Supplement Account and all funds held therein
shall be the property of the Seller and not the property of the Issuer, the
Owner Trustee or the Indenture Trustee. The Issuer, the Owner Trustee, the
Seller and the Indenture Trustee will treat the Yield Supplement Account, all
funds therein and all net investment income with respect thereto as assets of
the Seller for federal income tax and all other purposes.
(e) Pursuant to the Yield Supplement Agreement, the Seller will grant
to the Relevant Trustee, for the benefit of the Noteholders, a security interest
in all funds (including Eligible Investments) in the Yield Supplement Account
(including the Initial Yield Supplement Amount) and the proceeds thereof to
secure the payment of interest on the Notes, and the Relevant Trustee shall have
all of the rights of a secured party under the UCC with respect thereto. If for
any reason the Yield Supplement Account is no longer an Eligible Deposit
Account, the Relevant Trustee shall promptly cause the Yield Supplement Account
to be moved to another institution or otherwise changed so that the Yield
Supplement Account becomes an Eligible Deposit Account.
(f) Neither the Owner Trustee nor the Indenture Trustee shall enter
into any subordination or intercreditor agreement with respect to the Yield
Supplement Account.
SECTION 5.09 Statements to Certificateholders and Noteholders.
(a) On each Distribution Date, the Indenture Trustee shall include with
each distribution to each Noteholder and the Owner Trustee shall include with
each distribution to each Certificateholder a statement (which statement shall
also be provided to each Rating Agency) based on information in the Servicer's
Certificate furnished pursuant to Section 4.08, setting forth for the Collection
Period relating to such Distribution Date the following information:
43
<PAGE> 48
(i) the amount of the payment allocable to the principal
amount of each Class of Notes and to the Certificate Balance;
(ii) the amount of the payment allocable to interest on or
with respect to each Class of Notes;
(iii) the amount of the distribution allocable to the Yield
Supplement Deposit, if any, plus reinvestment income, if any, on the
Yield Supplement Account;
(iv) the Pool Balance as of the close of business on the last
day of the related Collection Period;
(v) the amount of the Base Servicing Fee paid to the Servicer
with respect to the related Collection Period, the amount of any unpaid
Base Servicing Fees and the change in such amount from that of the
prior Distribution Date;
(vi) the Noteholders' Interest Carryover Shortfall, the
Noteholders' Principal Carryover Shortfall, and the Certificateholders'
Principal Carryover Shortfall, if any, with respect to each Class of
Notes and the Certificates, and the change in such amounts from the
preceding Distribution Date;
(vii) the Outstanding Amount, the Note Factor and the Note
Pool Factor with respect to each Class of Notes, and the Certificate
Balance, the Certificate Factor and the Certificate Pool Factor with
respect to the Certificates, in each case after giving effect to all
payments in respect of principal on such Distribution Date;
(viii) the amount of Advances made in respect of the
Receivables during the related Collection Period and the amount of
unreimbursed Advances on such Distribution Date;
(ix) the balance of the Reserve Account and the Yield
Supplement Account on such Distribution Date, after giving effect to
changes thereto on such Distribution Date and the amount of such
changes;
(x) the amount of defaults and net losses on the Receivables
for the related Collection Period; and
(xi) the number of delinquencies on the Receivables as a
percentage of the number of Receivables.
(b) Copies of such statements may be obtained by the Certificateholders
or the Note Owners from the Owner Trustee or the Indenture Trustee, as the case
may be, by a request in writing. The Owner Trustee or the Indenture Trustee, as
the case may be, shall provide such copies promptly after such requests.
SECTION 5.10 Net Deposits. For so long as each Monthly Remittance
Condition is satisfied (or the rating agency confirmation described in Section
5.02(d) has been obtained), the Servicer (in whatever capacity) may make the
remittances pursuant to Sections 5.02 and 5.05
44
<PAGE> 49
above net of amounts to be distributed to the Servicer (in whatever capacity)
pursuant to Section 5.06. Accounts between the Seller and the Servicer will be
adjusted accordingly. Nonetheless, the Servicer shall account for all of the
above described remittances and distributions (except for the Supplemental
Servicing Fee to the extent that the Servicer is entitled to retain such
amounts) in the Servicer's Certificate as if the amounts were deposited and/or
transferred separately.
ARTICLE VI
The Seller
SECTION 6.01 Representations of Seller. The Seller makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of this
Agreement and as of the Closing Date, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Seller 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 own its properties and
to conduct its business as such properties are currently owned and such business
is presently conducted, and had at all relevant times, and has, corporate power,
authority and legal right to acquire and own the Receivables. The location of
the Seller's chief executive office and principal place of business is Torrance,
California.
(b) Due Qualification. The Seller is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications 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.
(c) Power and Authority. The Seller has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms. The
Seller has full power and authority to sell and assign the property to be sold
and assigned to and deposited as part of the Owner Trust Estate, and has duly
authorized such sale and assignment to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement has been
duly authorized by the Seller by all necessary corporate action.
(d) Valid Sale; Binding Obligations. This Agreement evidences a valid
sale, transfer and assignment of the Receivables, enforceable against creditors
of and purchasers from the Seller (other than a good faith purchaser for value
in the ordinary course of business who takes actual possession of one or more
Receivables); and this Agreement is 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.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time) a
45
<PAGE> 50
default under, the certificate of incorporation or by-laws of the Seller, or any
indenture, agreement or other instrument to which the Seller is a party or by
which it shall be bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than the Basic Documents); nor violate any
law or, to the best of the Seller's knowledge, any order, rule or regulation
applicable to the Seller of any court or of any federal or state regulatory
body, administrative agency or other governmental instrumentality having
jurisdiction over the Seller or its properties; 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.
(f) No Proceedings. There are no proceedings or investigations pending,
or, to the best of the Seller's knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties: (i) asserting the
invalidity of this Agreement, the Trust Agreement, the Indenture, the Securities
Account Control Agreement, the Yield Supplement Agreement, the Certificates or
the Notes; (ii) seeking to prevent the issuance of the Certificates or the Notes
or the consummation of any of the transactions contemplated by this Agreement,
the Trust Agreement, the Indenture, the Securities Account Control Agreement or
the Yield Supplement Agreement; (iii) seeking any determination or ruling that
would materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement, the
Trust Agreement, the Indenture, the Securities Account Control Agreement, the
Yield Supplement Agreement, the Certificates or the Notes; or (iv) relating to
the Seller and that would adversely affect the federal or any state income tax
attributes of the Issuer, the Certificates or the Notes.
SECTION 6.02 Additional Covenants of the Seller.
(a) The Seller agrees with the Certificateholders, the Note Owners and
each Rating Agency that the Seller shall not issue any securities or deposit
assets into a trust that issues any securities, the issuance of which could
reasonably be expected to materially and adversely affect the rating of any
Class of Notes unless it shall have first obtained the written consent of each
Rating Agency to the effect that such issuance will not materially adversely
affect such rating; provided that, the issuance of another series of
certificates or notes pursuant to agreements with terms substantially similar to
the terms of the Basic Documents shall not be deemed to materially and adversely
affect the ratings on the Notes. The Seller shall provide a copy of any such
consent to the Owner Trustee and the Indenture Trustee.
(b) The Seller shall not do any of the following (without the prior
written consent of each Rating Agency (other than Moody's) (which consent shall
be to the effect that the acts set forth below shall not affect materially
adversely the rating on any Class of Notes) and, upon the Seller's receipt of
such written consent from each Rating Agency (other than Moody's), the Owner
Trustee and the Indenture Trustee shall, without any exercise of its own
discretion, also provide its written consent to the Seller (promptly after the
occurrence of any of the following, the Seller shall provide notice of such
occurrence to Moody's, so long as Moody's is then rating any outstanding
Notes)):
(1) engage in any business or activity other than those set
forth in Article Three of the Seller's Certificate of Incorporation, as
amended;
46
<PAGE> 51
(2) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (A) any indebtedness
incurred in connection with the issuance of any certificates or notes
(as defined in the Seller's Certificate of Incorporation), provided
that any such future indebtedness incurred in connection with the
issuance of any certificates or notes must be rated at least with the
same ratings given the outstanding certificates or notes secured or
supported by assets acquired by the Seller from NMAC by each nationally
recognized statistical rating organization that has rated such
outstanding certificates or notes or, prior to the issuing of such
future indebtedness incurred in connection with such certificates or
notes, the Seller shall have received confirmation from each nationally
recognized statistical rating organization that has rated such
outstanding certificates or notes that the ratings of such outstanding
certificates or notes will not be adversely affected by the issuance of
such future indebtedness and (B) any indebtedness to NMAC or any of its
Affiliates incurred in connection with the acquisition of receivables,
which indebtedness shall be subordinated to all other obligations of
the Seller and shall be nonrecourse debt of the Seller, except with
respect to proceeds of the receivables in excess of such proceeds
necessary to pay all obligations in relation to the certificates or the
notes ("Excess Proceeds"), and shall not constitute a claim against the
Seller to the extent that Excess Proceeds are insufficient to pay such
indebtedness;
(3) dissolve or liquidate, in whole or in part, consolidate or
merge with or into any other entity or convey or transfer its
properties and assets substantially as an entirety to any entity,
unless:
(i) the entity (if other than the Seller) formed or
surviving the consolidation or merger or which acquires the
properties and assets of the Seller is organized and existing
under the laws of the State of Delaware, expressly assumes the
due and punctual payment of all obligations of the Seller,
including those obligations of the Seller under this Agreement
and the Basic Documents, and has a Certificate of
Incorporation containing provisions identical to the
provisions of Article Three, Article Four and Article Fifteen
of the Seller's Certificate of Incorporation, as amended; and
(ii) immediately after giving effect to the
transaction, no default or event of default has occurred and
is continuing under any indebtedness of the Seller or any
agreements relating to such indebtedness; and
(iii) the entity (if other than the Seller) formed or
surviving the consolidation or merger or which acquires the
properties and assets of the Seller agrees that (i) it shall
maintain its funds or assets as identifiable and not commingle
its funds or assets with those of any direct or ultimate
parent of such entity and pay from its assets all obligations
and indebtedness of any kind incurred by it, (ii) it shall
maintain bank accounts, corporate records and books of account
separate from those of any direct or ultimate parent of such
entity and (iii) the business affairs of such entity will be
managed by or under the direction of its board of directors
and it will conduct its business from an office space separate
from any direct or ultimate parent of such entity; and
47
<PAGE> 52
(iv) each nationally recognized statistical rating
organization that has rated any issue of certificates or notes
secured or supported by assets acquired by the Seller from
NMAC shall confirm in writing that the rating of such
certificates or notes shall not be adversely affected by such
consolidation or merger;
(4) without the affirmative vote of 100% of the members of the
board of directors of the Seller, institute proceedings to be
adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it, or file a petition
seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the corporation or all or substantially
all of its property, or make any assignment for the benefit of
creditors;
(5) cease to have an "Independent Director," as defined in the
Seller's charter;
(6) without the affirmative vote of at least one "Independent
Director," as defined in the Seller's charter, enter into any
transactions with the Servicer not in the ordinary course of business;
or
(7) modify any provision of Article Three, Article Four or
Article Fifteen of the Seller's Certificate of Incorporation, as
amended, in any material respect.
SECTION 6.03 Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Trust, the
Owner Trustee, the Indenture Trustee from and against any taxes that may at any
time be asserted against any such Person with respect to, as of the date hereof,
the sale of the Receivables to the Trust or the issuance and original sale of
the Notes and the Certificates, including any sales, gross receipts, general
corporation, tangible personal property, privilege or license taxes (but, in the
case of the Trust, not including any taxes asserted with respect to ownership of
the Receivables or federal or other income taxes arising out of the transactions
contemplated by this Agreement and the Basic Documents) and costs and expenses
in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Owner
Trustee and the Indenture Trustee, the Trust, the Certificateholders and the
Noteholders from and against any loss, liability or expense incurred by reason
of (i) the Seller's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement, or by reason of reckless
disregard of its obligations and duties under this Agreement, and (ii) the
Seller's or the Issuer's violation of federal or state securities laws in
connection with the registration or the sale of the Certificates and the Notes.
Indemnification under this Section 6.03 shall survive the
termination of this Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Seller shall have made any indemnity
payment to any Person entitled thereto pursuant to this Section 6.03 and such
Person thereafter shall collect any of such amounts from others, such
48
<PAGE> 53
Person shall promptly repay such amounts to the Seller, without interest (except
to the extent the recipient collects interest from others).
Promptly after receipt by a party indemnified under this
Section 6.03 (for purposes of this paragraph, an "Indemnified Party") of notice
of the commencement of any action, such Indemnified Party will, if a claim is to
be made in respect thereof against the Seller under this Section 6.03, notify
the Seller of the commencement thereof. If any such action is brought against
any Indemnified Party under this Section 6.03 and it notifies the Seller of the
commencement thereof, the Seller will assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party (who may, unless there is, as
evidenced by an Opinion of Counsel to the Indemnified Party stating that there
is, a conflict of interest, be counsel to the Seller), and the Seller will not
be liable to such Indemnified Party under this Section 6.03 for any legal or
other expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof, other than reasonable costs of investigation. The
obligations set forth in this Section 6.03 shall survive the termination of this
Agreement or the resignation or removal of the Owner Trustee or the Indenture
Trustee and shall include reasonable fees and expenses of counsel and expenses
of litigation. If the Seller shall have made any indemnity payments pursuant to
this Section 6.03 and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall promptly
repay such amounts to the Seller, without interest (except to the extent
received by such Person).
SECTION 6.04 Merger or Consolidation of, or Assumption of the
Obligations of, Seller. Subject to Section 6.02, any Person (i) into which the
Seller may be merged or consolidated, (ii) resulting from any merger, conversion
or consolidation to which the Seller shall be a party, (iii) succeeding to the
business of the Seller or (iv) that is a corporation more than 50% of the voting
stock of which is owned directly or indirectly by Nissan, which Person in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of the Seller under this Agreement, will be the successor to the
Seller under this Agreement without the execution or filing of any document or
any further act on the part of any of the parties to this Agreement; provided,
however, that (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 6.01 shall have been
breached and no Servicer Default, and no event that, after notice or lapse of
time, or both, would become a Servicer Default, shall have occurred and be
continuing, (y) the Seller shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate stating that such consolidation,
merger or succession and such agreement or assumption comply with this Section
6.04 and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with and (z) the Seller shall
have delivered to the Owner Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, based on
customary qualifications and assumptions, all financing statements and
continuation statements and amendments thereto have been executed and filed that
are necessary fully to perfect the interest of the Issuer and the Indenture
Trustee, respectively, in the Receivables, and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest. The Seller shall
provide notice of any merger, consolidation or succession pursuant to this
Section 6.04 to each Rating Agency. Notwithstanding anything herein to the
contrary, the execution of the foregoing agreement of assumption and compliance
with clauses (x), (y) and (z) above shall be conditions to the consummation of
the transactions referred to in clauses (i), (ii), (iii) or (iv) above.
49
<PAGE> 54
SECTION 6.05 Limitation on Liability of Seller and Others.
(a) Neither the Seller nor any of the directors, officers, employees or
agents of the Seller shall be under any liability to the Trust, the
Certificateholders or the Noteholders, except as provided under this Agreement,
for any action taken or for refraining from the taking of any action pursuant to
this Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Seller or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties under this Agreement. The Seller and any director, officer, employee
or agent of the Seller may rely in good faith on the advice of counsel or on any
document of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising under this Agreement.
(b) The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may cause it to incur
any expense or liability; provided, however, that the Servicer may undertake any
reasonable action that it may deem necessary or desirable in respect of this
Agreement and the rights and duties of the parties to this Agreement and the
interests of the Certificateholders and the Noteholders under this Agreement. In
such event, the legal expenses and costs of such action and any liability
resulting therefrom shall be expenses, costs and liabilities of the Servicer,
and the Servicer will not be entitled to be reimbursed therefor.
SECTION 6.06 Seller May Own Certificates or Notes. The Seller and any
Affiliate of the Seller may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights as it would have
if it were not the Seller or an Affiliate thereof, except as otherwise provided
in the Basic Documents. Certificates or Notes so owned by or pledged to the
Seller or such controlling or commonly controlled Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or distinction as among all of the Certificates or the
Notes, as the case may be, except as otherwise expressly provided in the Basic
Documents.
ARTICLE VII
The Servicer
SECTION 7.01 Representations of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring the Receivables. The representations speak as of the execution and
delivery of this Agreement and as of the Closing Date and shall survive the sale
of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly organized and
is validly existing as a corporation in good standing under the laws of the
state of its incorporation, with corporate power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, corporate power, authority and legal right to acquire, own, sell and
service the Receivables
50
<PAGE> 55
and to hold the Receivable Files as custodian on behalf of the Trust and the
Indenture Trustee. The location of the Servicer's chief executive office and
principal place of business is Torrance, California.
(b) Due Qualification. The Servicer is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business relating to the servicing of the Receivables as
required by this Agreement shall require such qualifications and where the
failure to so qualify would have a material adverse effect on the ability of the
Servicer to perform its obligations under this Agreement.
(c) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly authorized
by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Servicer 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.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time) a default under, the articles of
incorporation or by-laws of the Servicer, or any indenture, agreement or other
instrument to which the Servicer is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than the Basic Documents); nor violate any law or any order, rule or
regulation applicable to the Servicer of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties; 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.
(f) No Proceedings. There are no proceedings or investigations pending,
or, to the best of the Servicer's knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Servicer or its properties: (i) asserting the
invalidity of this Agreement, the Trust Agreement, the Indenture, the
Certificates or the Notes; (ii) seeking to prevent the issuance of the
Certificates or the Notes or the consummation of any of the transactions
contemplated by this Agreement, the Trust Agreement or the Indenture; (iii)
seeking any determination or ruling that would materially and adversely affect
the performance by the Servicer of its obligations under, or the validity or
enforceability of, this Agreement, the Trust Agreement, the Indenture, the
Certificates or the Notes ; or (iv) relating to the Servicer and that would
adversely affect the federal or any state income tax attributes of the
Certificates or the Notes.
51
<PAGE> 56
SECTION 7.02 Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement:
(a) The Servicer shall defend, indemnify and hold harmless the
Owner Trustee, the Indenture Trustee, the Trust, the Certificateholders and the
Noteholders from and against any and all costs, expenses, losses, damages,
claims and liabilities (collectively, "Damages") arising out of or resulting
from the use, ownership or operation by the Servicer or any of its Affiliates
(other than the Trust) of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless the
Owner Trustee, the Indenture Trustee, the Trust, the Certificateholders and the
Noteholders from and against any and all Damages to the extent that such Damage
arose out of, or was imposed upon, the Owner Trustee, the Indenture Trustee, the
Trust, the Certificateholders or the Noteholders through the negligence, willful
misfeasance or bad faith of the Servicer in the performance of its duties under
this Agreement or by reason of reckless disregard of its obligations and duties
under this Agreement.
(c) The Servicer shall indemnify, defend and hold harmless the
Owner Trustee and the Indenture Trustee from and against all Damages arising out
of or incurred in connection with the acceptance or performance of the trusts
and duties herein contained, except to the extent that such Damage: (i) shall be
due to the willful misfeasance, bad faith, or negligence (except for errors in
judgment) of the Owner Trustee or the Indenture Trustee, as the case may be;
(ii) relates to any tax other than the taxes with respect to which the Seller
shall be required to indemnify the Owner Trustee or the Indenture Trustee; (iii)
shall arise from the breach by the Owner Trustee or the Indenture Trustee of any
of their respective representations or warranties set forth in the Basic
Documents; (iv) shall be one as to which the Seller is required to indemnify the
Owner Trustee or the Indenture Trustee and as to which such Person has received
payment of indemnity from the Seller; or (v) shall arise out of or be incurred
in connection with the performance by the Indenture Trustee of the duties of
Successor Servicer hereunder.
Promptly after receipt by a party indemnified under this
Section 7.02 (for purposes of this paragraph, an "Indemnified Party") of notice
of the commencement of any action, such Indemnified Party will, if a claim in
respect thereof is to be made against the Servicer under this Section 7.02,
notify the Servicer of the commencement thereof. If any such action is brought
against any Indemnified Party under this Section 7.02 and it notifies the
Servicer of the commencement thereof, the Servicer will assume the defense
thereof, with counsel reasonably satisfactory to such Indemnified Party (who
may, unless there is, as evidenced by an Opinion of Counsel to the Indemnified
Party stating that there is, a conflict of interest, be counsel to the
Servicer), and the Servicer will not be liable to such Indemnified Party under
this Section 7.02 for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof, other than reasonable
costs of investigation. The obligations set forth in this Section 7.02 shall
survive the termination of this Agreement or the resignation or removal of the
Servicer, the Owner Trustee or the Indenture Trustee and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Servicer shall have made any indemnity payments pursuant to this Section 7.02
and the
52
<PAGE> 57
Person to or on behalf of whom such payments are made thereafter collects any of
such amounts from others, such Person shall promptly repay such amounts to the
Servicer, without interest (except to the extent received by such Person).
Indemnification under this Section 7.02 by NMAC (or any
successor thereto pursuant to Section 7.03) as Servicer, with respect to the
period such Person was the Servicer, shall survive the termination of such
Person as Servicer or a resignation by such Person as Servicer as well as the
termination of this Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Servicer shall have made any
indemnity payments pursuant to this Section 7.02 and the recipient thereafter
collects any of such amounts from others, the recipient shall promptly repay
such amounts to the Servicer, without interest (except to the extent the
recipient collects interest from others).
SECTION 7.03 Merger or Consolidation of, or Assumption of the
Obligations of, Servicer. Any Person (i) into which the Servicer may be merged
or consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Servicer shall be a party, (iii) succeeding to the business of the
Servicer, or (iv) so long as NMAC acts as Servicer, that is a corporation more
than 50% of the voting stock of which is owned directly or indirectly by Nissan,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Servicer under this Agreement, will be the
successor to the Servicer under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement; provided, however, that (x) immediately after giving effect to such
transaction, no Servicer Default, and no event which, after notice or lapse of
time, or both, would become a Servicer Default, shall have occurred and be
continuing, (y) the Servicer shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
7.03 and that all conditions precedent provided for in this Agreement relating
to such transaction have been complied with and (z) the Servicer shall have
delivered to the Owner Trustee and the Indenture Trustee an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, based on customary
qualifications and assumptions, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Issuer and the
Indenture Trustee in the Receivables, and reciting the details of such filings,
or (B) stating that, in the opinion of such counsel, no such action shall be
necessary to prefect such interest. The Servicer shall provide notice of any
merger, consolidation or succession pursuant to this Section 7.03 to each Rating
Agency. Notwithstanding anything herein to the contrary, the execution of the
foregoing agreement of assumption and compliance with clauses (x), (y) and (z)
above shall be conditions to the consummation of the transactions referred to in
clauses (i), (ii), (iii) or (iv) above.
SECTION 7.04 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors, officers, employees
or agents of the Servicer shall be under any liability to the Trust, the
Certificateholders or the Noteholders, except as provided under this Agreement,
for any action taken or for refraining from the taking of any action pursuant to
this Agreement or for errors in judgment; provided, however, that this provision
shall not protect the Servicer or any such person against any liability that
would
53
<PAGE> 58
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of duties or by reason of reckless disregard of obligations
and duties under this Agreement. The Servicer and any director, officer,
employee or agent of the Servicer may rely in good faith on the advice of
counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action that
shall not be incidental to its duties to service the Receivables in accordance
with this Agreement, and that in its opinion may cause it to incur any expense
or liability; provided, however, that the Servicer may undertake any reasonable
action that it may deem necessary or desirable in respect of the Basic Documents
and the rights and duties of the parties to the Basic Documents and the
interests of the Certificateholders under this Agreement and the Noteholders
under the Indenture. In such event, the legal expenses and costs of such action
and any liability resulting therefrom shall be expenses, costs and liabilities
of the Servicer, and the Servicer will not be entitled to be reimbursed
therefor.
SECTION 7.05 NMAC Not To Resign as Servicer. Subject to the provisions
of Section 7.03, NMAC shall not resign from the obligations and duties hereby
imposed on it as Servicer under this Agreement except upon determination that
the performance of its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such determination permitting
the resignation of NMAC shall be communicated to the Owner Trustee and the
Indenture Trustee at the earliest practicable time (and, if such communication
is not in writing, shall be confirmed in writing at the earliest practicable
time), and any such determination shall be evidenced by an Opinion of Counsel to
such effect delivered to the Owner Trustee and the Indenture Trustee
concurrently with or promptly after such notice. No such resignation shall
become effective until the Indenture Trustee or a Successor Servicer shall (i)
have taken the actions required by Section 8.01 of this Agreement to effect the
termination of the responsibilities and rights of the predecessor Servicer under
this Agreement, including the transfer to the Successor Servicer for
administration by it of all cash amounts that shall at the time be held by the
predecessor Servicer for deposit, or shall thereafter be received with respect
to a Receivable and the delivery of the Receivable Files, and the related
accounts and records maintained by the Servicer, (ii) have assumed the
responsibilities and obligations of NMAC as Servicer under this Agreement in
accordance with Section 8.02 of this Agreement (other than the initial
Servicer's obligation to make Advances), and (iii) become the Administrator
under the Administration Agreement in accordance with Section 8 of such
Agreement.
ARTICLE VIII
Default
SECTION 8.01 Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
54
<PAGE> 59
(a) any failure by the Servicer (or the Seller, so long as NMAC is the
Servicer) to deliver to the Relevant Trustee for deposit in any of the Accounts
any required payment or to direct the Relevant Trustee to make any required
distributions therefrom, which failure continues unremedied for a period of
three Business Days after (i) receipt by the Servicer (or the Seller, so long as
NMAC is the Servicer) of written notice of such failure given by the Owner
Trustee or the Indenture Trustee, (ii) receipt by the Servicer (or the Seller,
so long as NMAC is the Servicer), the Owner Trustee or the Indenture Trustee of
written notice of such failure given by Holders of Notes evidencing not less
than 25% of the Outstanding Amount, or (iii) discovery of such failure by any
officer of the Servicer;
(b) any failure by the Servicer (or the Seller, as long as NMAC is the
Servicer) to duly observe or perform in any material respect any other covenants
or agreements of the Servicer (or the Seller, as long as NMAC is the Servicer)
set forth in this Agreement (including its obligation to purchase Receivables
pursuant to Section 4.06), which failure shall materially and adversely affect
the rights of the Certificateholders or the Noteholders and shall continue
unremedied for a period of 90 days after giving of written notice of the failure
to (i) the Servicer (or the Seller, as long as NMAC is the Servicer) by the
Owner Trustee or the Indenture Trustee, or (ii) the Servicer (or the Seller, as
long as NMAC is the Servicer) and the Owner Trustee or the Indenture Trustee by
Holders of Notes evidencing not less than 25% of the Outstanding Amount or
Holders of Certificates evidencing not less than 25% of the Certificate Balance;
or
(c) the occurrence of an Insolvency Event with respect to the Servicer;
then, and in each and every case, so long as the Servicer Default shall not have
been remedied, either the Indenture Trustee or the Holders of Notes evidencing a
majority of the Outstanding Amount of the Notes (but excluding for purposes of
such calculation and action all Notes held or beneficially owned by NMAC, NARC
or any of their Affiliates unless all of the Notes are held or beneficially
owned by NMAC, NARC or any of their Affiliates), by notice then given in writing
to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by
the Noteholders) may terminate all of the rights and obligations (other than the
obligations set forth in Section 7.02 hereof) of the Servicer under this
Agreement. On or after the receipt by the Servicer of such written notice, all
authority and power of the Servicer under this Agreement, whether with respect
to the Notes, the Certificates or the Receivables or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee or such Successor
Servicer as may be appointed under Section 8.02; and, without limitation, the
Indenture Trustee and the Owner Trustee are hereby authorized and empowered to
execute and deliver, for the benefit of the predecessor Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments, and
to do or accomplish all other acts or things necessary or appropriate to effect
the purposes of such notice of termination, whether to complete the transfer and
endorsement of the Receivables and related documents, or otherwise. The
predecessor Servicer shall cooperate with the Successor Servicer and the Owner
Trustee in effecting the termination of the responsibilities and rights of the
predecessor Servicer under this Agreement, including, without limitation, the
transfer to the Successor Servicer for administration by it of all cash amounts
that shall at the time be held by the predecessor Servicer for deposit, or have
been deposited by the predecessor Servicer, in the Accounts or thereafter
received with respect to the Receivables that shall at that time be held by the
predecessor Servicer and the delivery of the Receivables Files and the related
accounts and records maintained by the predecessor Servicer. All reasonable
costs and expenses
55
<PAGE> 60
(including attorneys' fees) incurred in connection with transferring the
Receivable Files to the Successor Servicer and amending this Agreement to
reflect such succession as Servicer pursuant to this Section 8.01 shall be paid
by the predecessor Servicer upon presentation of reasonable documentation of
such costs and expenses. Notwithstanding the foregoing, in the event the
predecessor Servicer is the Indenture Trustee, the original Servicer hereunder
shall reimburse the Indenture Trustee for all reasonable costs and expenses as
described in the immediately preceding sentence. Upon receipt of notice of the
occurrence of a Servicer Default, the Indenture Trustee shall give notice
thereof to the Rating Agencies.
SECTION 8.02 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of termination pursuant to
Section 8.01 or the Servicer's resignation in accordance with the terms of this
Agreement, the predecessor Servicer shall continue to perform its functions as
Servicer under this Agreement, in the case of termination, only until the date
specified in such termination notice or, if no such date is specified in a
notice of termination, until receipt of such notice and, in the case of
resignation, until the earlier of (i) the date 45 days from the delivery to the
Owner Trustee and the Indenture Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with the terms of this
Agreement and (ii) the date upon which the predecessor Servicer shall become
unable to act as Servicer, as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the Servicer's resignation or
termination hereunder, the Indenture Trustee shall appoint a Successor Servicer,
and the Successor Servicer shall accept its appointment (including its
appointment as Administrator under the Administration Agreement as set forth in
Section 8.02(b)) by a written assumption in form acceptable to the Owner Trustee
and the Indenture Trustee. If a Successor Servicer has not been appointed at the
time when the predecessor Servicer has ceased to act as Servicer in accordance
with this Section 8.02, the Indenture Trustee without further action shall
automatically be appointed the Successor Servicer and the Indenture Trustee
shall be entitled to the Total Servicing Fee. Notwithstanding the above, the
Indenture Trustee shall, if it shall be legally unable so to act, appoint or
petition a court of competent jurisdiction to appoint, and the predecessor
Servicer, if no successor Servicer has been appointed at the time the
predecessor Servicer has ceased to act, may petition a court of competent
jurisdiction to appoint any established institution having a net worth of not
less than $100,000,000 and whose regular business shall include the servicing of
automobile and/or light-duty truck receivables, as the successor to the Servicer
under this Agreement.
(b) Upon appointment, the Successor Servicer (including the Indenture
Trustee acting as Successor Servicer) shall (i) be the successor in all respects
to the predecessor Servicer and shall be subject to all the responsibilities,
duties and liabilities arising thereafter relating thereto placed on the
predecessor Servicer (except the initial Servicer's obligation to make Advances)
and shall be entitled, subject to the arrangements referred to in paragraph (c)
below, to the servicing fee and all the rights granted to the predecessor
Servicer by the terms and provisions of this Agreement and (ii) become the
Administrator under the Administration Agreement in accordance with Section 8 of
such Agreement.
(c) In connection with such appointment, the Issuer may make such
arrangements for the compensation of such Successor Servicer out of payments on
Receivables as it and such
56
<PAGE> 61
Successor Servicer shall agree; provided, however, that no such compensation
shall be in excess of that permitted the predecessor Servicer under this
Agreement. The Issuer, the Indenture Trustee and such Successor Servicer shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 8.03 Repayment of Advances. If the Servicer shall resign or be
terminated, the Servicer shall continue to be entitled to receive, to the extent
of available funds, reimbursement for Outstanding Advances pursuant to Sections
5.03 and 5.04 with respect to all Advances previously made thereby.
SECTION 8.04 Notification. Upon any termination of, or appointment of
a successor to, the Servicer pursuant to this Article VIII, the Owner Trustee
shall give prompt written notice thereof to the Certificateholders, and the
Indenture Trustee shall give prompt written notice thereof to Noteholders and
the Rating Agencies.
SECTION 8.05 Waiver of Past Defaults. The Holders of Notes evidencing a
majority of the Outstanding Amount of the Notes, or, in the case of any Servicer
Default which does not adversely affect the Indenture Trustee or the
Noteholders, the Holders of Certificates evidencing a majority of the
Certificate Balance, in each case excluding for purposes of such calculation and
action all Securities held or beneficially owned by NMAC, NARC or any of their
Affiliates (unless all of the Notes or the Certificates, as the case may be, are
held by NMAC, NARC and their Affiliates), may, on behalf of all the Noteholders
and the Certificateholders, waive in writing any default by the Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits to or payments from the Collection Account in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereto.
ARTICLE IX
Termination; Release of Receivables
SECTION 9.01 Optional Purchase of All Receivables.
(a) On each Distribution Date following the last day of a Collection
Period as of which the Pool Balance shall be less than or equal to the Optional
Purchase Percentage multiplied by the Original Pool Balance, the Servicer or any
successor to the Servicer shall have the option to purchase the corpus of the
Owner Trust Estate (whether or not such assets then comprise all or a portion of
the Trust Estate) for an amount equal to the Optional Purchase Price. To
exercise such option, the Servicer or any successor to the Servicer shall notify
the Owner Trustee and the Indenture Trustee of its intention to do so in
writing, no later than the tenth day of the month preceding the month in which
the Distribution Date as of which such purchase is to be effected and shall, on
or before the Distribution Date on which such purchase is to occur, deposit
pursuant to Section 5.05 in the Collection Account an amount equal to the
Optional Purchase Price, and shall succeed to all interests in and to the Trust
Estate and the Owner Trust Estate; provided, however, that the Servicer shall
not effect any such purchase so long as the
57
<PAGE> 62
rating of NMAC by Moody's, or if NMAC shall then be unrated by Moody's, then the
rating of Nissan Capital of America, Inc., is less then "Ba1" by Moody's, unless
the Owner Trustee and the Indenture Trustee shall have received an Opinion of
Counsel to the effect that such purchase shall not constitute a fraudulent
conveyance, subject to such assumptions as to factual matters as may be
contained therein. Amounts so deposited will be paid and distributed as set
forth in Section 5.06 of this Agreement. Upon such deposit of the amount
necessary to purchase the corpus of the Owner Trust Estate, the Servicer shall
for all purposes of this Agreement be deemed to have released all claims for
reimbursement of Outstanding Advances made in respect of the Receivables.
(b) Notice of any such purchase of the Owner Trust Estate shall be
given by the Owner Trustee and the Indenture Trustee to each Securityholder as
soon as practicable after their receipt of notice thereof from the Servicer.
(c) Following the satisfaction and discharge of the Indenture and the
payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder other
than under Section 5.06 and the Issuer will succeed to the rights of the
Indenture Trustee provided for in this Agreement.
SECTION 9.02 Release of Receivables.
(a) Upon repurchase of any Receivable by the Seller pursuant to Section
3.02 or by the Servicer pursuant to Section 4.06 or Section 9.01, the Issuer and
the Indenture Trustee on behalf of the Noteholders, shall, without further
action, be deemed to transfer, assign, set-over and otherwise convey to the
Seller or the Servicer, as the case may be, all right, title and interest of the
Issuer in, to and under such repurchased Receivable, all monies due or to become
due with respect thereto and all proceeds thereof and the other property
conveyed to the Issuer hereunder pursuant to Section 2.01 with respect to such
Receivable, and all security and any documents relating thereto, such assignment
being an assignment outright and not for security; and the Seller or the
Servicer, as applicable, shall thereupon own each such Receivable, and all such
related security and documents, free of any further obligation to the Issuer,
the Owner Trustee, the Certificateholders, the Indenture Trustee or the
Noteholders with respect thereto.
(b) The Issuer and Indenture Trustee shall execute such documents and
instruments of transfer and assignment and take such other actions as shall be
reasonably requested by the Seller or the Servicer, as the case may be, to
effect the conveyance of such Receivable pursuant to Sections 3.02, 4.06 and
9.02.
58
<PAGE> 63
If in any enforcement suit or legal proceeding it is held that the
Seller or the Servicer may not enforce a repurchased Receivable on the ground
that it is not a real party in interest or a holder entitled to enforce the
Receivable, the Issuer, and the Indenture Trustee on behalf of the Noteholders,
shall, at the written direction and expense of the Seller or Servicer, as the
case may be, take such reasonable steps as the Seller or the Servicer deems
necessary to enforce the Receivable, including bringing suit in the name or
names of the Issuer, the Certificateholders or the Noteholders.
SECTION 9.03 Termination.
(a) The respective obligations of the Seller, the Servicer, NMAC (so
long as NMAC has rights or obligations hereunder), the Owner Trustee, and the
Indenture Trustee, as the case may be, pursuant to this Agreement shall
terminate upon the earliest of (i) the maturity or other liquidation of the last
Receivable and the final disposition of all amounts received upon liquidation of
any remaining Receivables, or (ii) the election by the Servicer to purchase the
corpus of the Trust as described in Section 9.01 and the payment or distribution
to Securityholders of all amounts required to be paid to them under the
Indenture or the Trust Agreement, as the case may be.
(b) Notice of any such termination under this Section 9.03 shall be
given by the Indenture Trustee or the Owner Trustee to each Securityholder of
record as specified in the Indenture or the Trust Agreement, as appropriate.
ARTICLE X
Miscellaneous
SECTION 10.01 Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and the
Issuer, with the consent of the Indenture Trustee, but without the consent of
any of the Noteholders or the Certificateholders,
(1) to cure any ambiguity, correct or supplement any provision
herein that may be inconsistent with any other provision herein, or
make any other provisions with respect to matters or questions arising
hereunder that are not inconsistent with the provisions herein;
provided that (i) the amendment will not materially and adversely
affect the interest of any Noteholder or Certificateholder and (ii) the
Servicer shall have delivered an Officer's Certificate to the Indenture
Trustee and the Owner Trustee stating that such amendment will not
materially and adversely affect the interest of any Noteholder or
Certificateholder; and
(2) to change the formula for determining the required amount
for the Specified Reserve Account Balance upon (i) confirmation from
each Rating Agency that such amendment will not result in the
qualification, reduction or withdrawal of any rating it currently
assigns to any Class of Notes, and (ii) delivery by the Servicer to the
Indenture Trustee and the Owner Trustee of an
59
<PAGE> 64
Officer's Certificate stating that such amendment will not materially
and adversely affect the interest of any Securityholder.
An amendment will be deemed not to materially and adversely affect the
interests of any Noteholder or Certificateholder of any Class if (x) the
amendment does not adversely affect the Trust's status as a partnership (or, for
any period during which there is not more than one beneficial owner of a
Certificate, the Trust's status as an entity that is disregarded as an entity
separate from the Certificateholder) for federal income tax purposes, (y) each
Rating Agency confirms that that amendment will not result in a reduction or
withdrawal of its rating on the Notes of that Class, and (z) the Servicer has
delivered the Officer's Certificate described in this Section 10.01(a).
(b) This Agreement may also be amended from time to time by
the Seller, the Servicer and the Issuer, with the consent of the
Indenture Trustee and the consent of:
(1) the Holders of Notes evidencing a majority of the
Outstanding Amount of the Notes; or
(2) in the case of any amendment that does not
adversely affect the Indenture Trustee or the Noteholders, the
Holders of the Certificates evidencing a majority of the
outstanding Certificate Balance (but excluding for purposes of
calculation and action all Certificates held by the Seller,
the Servicer or any of their Affiliates, unless all of the
Certificates are held by the Seller, the Servicer or any of
their Affiliates)
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 those Noteholders or Certificateholders; provided, however,
that no amendment shall:
(x) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on
the Receivables or distributions that are required to be made
for the benefit of those Noteholders or Certificateholders or
change the Interest Rate or the Specified Reserve Account
Balance (except as described above under clause (2) of
subsection (a) above) without the consent of each "adversely
affected" Noteholder or Certificateholder; or
(y) reduce the aforesaid percentage of the Outstanding Amount
of the Notes or Certificate Balance of the Certificates which
is required to consent to any amendment, without the consent
of the Holders of all the then outstanding Notes or
Certificates.
An amendment referred to in clause (x) above will be deemed not to
"adversely affect" a Noteholder of any Class only if each Rating Agency confirms
that that amendment will not result in a reduction or withdrawal of its rating
on the Notes of that Class. In connection with any amendment referred to in
clause (x) above, the Servicer shall deliver an Officer's Certificate to the
Indenture Trustee and the Owner Trustee stating that those Noteholders and
Certificateholders whose consents were not obtained were not adversely affected
by such amendment.
60
<PAGE> 65
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
It shall not be necessary for the consent of the Certificateholders or
Noteholders pursuant to this Section 10.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Indenture Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in Section
10.02. The Owner Trustee and the Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's or
the Indenture Trustee's, as applicable, own rights, duties or immunities under
this Agreement or otherwise.
SECTION 10.02 Protection of Title to Trust.
(a) The Seller shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such manner
and in such places as may be required by law fully to preserve, maintain and
protect the interest of the Issuer and of the Indenture Trustee in the
Receivables and in the proceeds thereof. The Seller shall deliver (or cause to
be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies
of, or filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) The Seller and the Servicer shall notify the Owner Trustee and the
Indenture Trustee within 30 days after any change of its name, identity or
corporate structure in any manner that would, could or might make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-402(7) of the UCC, and
shall promptly file appropriate amendments to all previously filed financing
statements or continuation statements.
(c) Each of the Seller and the Servicer shall notify the Owner Trustee
and the Indenture Trustee of any relocation of its principal executive office
within 30 days after such relocation, if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and shall promptly file any such amendment or new financing statement.
The Servicer shall at all times maintain each office from which it shall service
Receivables, and its principal executive office, within the United States of
America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader thereof
to know at any time the status of such Receivable, including payments and
recoveries made and payments owing (and the nature of each), and (ii)
reconciliation between payments or recoveries on (or with respect to) each
Receivable and the amounts from time to time deposited in the Collection Account
in respect of such Receivable.
61
<PAGE> 66
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale under this Agreement of the Receivables to the Trust, the
Servicer's master computer records that refer to any Receivable shall indicate
clearly the interest of the Issuer and the Indenture Trustee in such Receivable
and that such Receivable is owned by the Issuer and has been pledged to the
Indenture Trustee. Indication of these respective interests in a Receivable
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the related Receivable shall have become a Liquidated Receivable or
been repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in automotive
receivables to, any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts that, if they shall refer in any manner
whatsoever to any Receivable, shall indicate clearly that such Receivable has
been sold and is owned by the Issuer and has been pledged to the Indenture
Trustee.
(g) Upon receipt of a written request from the Owner Trustee or the
Indenture Trustee, which request shall be made no more frequently than annually,
the Servicer shall furnish to the Owner Trustee or the Indenture Trustee, as the
case may be, within 20 Business Days after receipt of such request, a list of
all Receivables (by contract number and name of Obligor) then held as part of
the Trust, together with a reconciliation of the list of Receivables attached
hereto as Schedule A and to each of the Servicer's Certificates furnished before
such request indicating removal of Receivables from the Trust. The Servicer
shall permit the Indenture Trustee and its agents at any time during normal
business hours upon reasonable prior notice to inspect, audit and make copies of
and abstracts from the Servicer's records regarding any Receivable.
(h) The Servicer shall deliver to the Owner Trustee and the Indenture
Trustee:
(A) upon the execution and delivery of this Agreement and of
each amendment hereto, an Opinion of Counsel, based on customary
assumptions and qualifications, stating that, in the opinion of such
counsel, either (A) all financing statements and continuation
statements have been executed and filed that are necessary to perfect
the interest of the Trust and the Indenture Trustee in the Receivables,
and reciting the details of such filings or referring to prior Opinions
of Counsel in which such details are given, or (B) no such action shall
be necessary to preserve and protect such interest; and
(B) if requested by the Indenture Trustee or the Owner
Trustee, not more frequently than annually, an Opinion of Counsel,
dated as of a date during such 90-day period, either (A) stating that,
in the opinion of such counsel, based on customary assumptions and
qualifications, all financing statements and continuation statements
have been executed and filed that are necessary to perfect the interest
of the Trust and the Indenture Trustee in the Receivables, and reciting
the details of such filings or referring to prior Opinions of Counsel
in which such details are given, or (B) no such action shall be
necessary to preserve and protect such interest.
62
<PAGE> 67
(i) Each Opinion of Counsel referred to in clause (h)(A) or (h)(B)
above shall specify any action necessary (as of the date of such Opinion of
Counsel) to be taken in the following year to preserve and protect such
interest.
SECTION 10.03 Notices. All demands, notices, communications and
instructions upon or to the Seller, the Servicer, the Owner Trustee, the
Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Seller, to Nissan Auto Receivables Corporation, 990 West 190th
Street, Torrance, California 90502, Attention of Secretary ((310) 719-8013), (b)
in the case of the Servicer, to Nissan Motor Acceptance Corporation, 990 West
190th Street, Torrance, California 90502, Attention of Secretary ((310)
719-8000), (c) in the case of the Issuer or the Owner Trustee, to Nissan Auto
Receivables 2000-A Owner Trust, c/o Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Nissan
Auto Receivables 2000-A Owner Trust, (d) in the case of the Indenture Trustee,
at the Corporate Trust Office, (e) in the case of Moody's, to Moody's Investors
Service, Inc., ABS Monitoring Department, 99 Church Street, New York, New York
10007, and (f) in the case of Standard & Poor's, to Standard & Poor's Ratings
Services, 55 Water Street, New York, New York 10041-0003, Attention: Asset
Backed Surveillance Department; or, as to each of the foregoing, at such other
address as shall be designated by written notice to the other parties.
SECTION 10.04 Assignment by the Seller or the Servicer. Notwithstanding
anything to the contrary contained herein, except as provided in Sections 6.04
and 7.03 of this Agreement and as provided in the provisions of this Agreement
concerning the resignation or termination of the Servicer, this Agreement may
not be assigned by the Seller or the Servicer without the prior written consent
of the Indenture Trustee, the Owner Trustee, the Holders of Notes evidencing not
less than 66 2/3% of the Outstanding Amount and the Holders of Certificates
evidencing not less than 66 2/3% of the Certificate Balance.
SECTION 10.05 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Seller, the Servicer, the Issuer,
the Owner Trustee, the Certificateholders, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.06 Severability. 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 10.07 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
63
<PAGE> 68
SECTION 10.08 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 10.09 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.
SECTION 10.10 Assignment by Issuer. The Seller hereby acknowledges and
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of
the Noteholders of all right, title and interest of the Issuer in, to and under
the Receivables and the related property acquired hereunder and/or the
assignment of any or all of the Issuer's rights and obligations hereunder to the
Indenture Trustee.
SECTION 10.11 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the
Servicer and the Seller shall not, prior to the date which is one year and one
day after the termination of this Agreement with respect to the Issuer,
acquiesce, petition or otherwise invoke or cause the Issuer to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Issuer under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Issuer or any
substantial part of its property, or ordering the winding up or liquidation of
the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the
Servicer shall not, prior to the date which is one year and one day after the
termination of this Agreement with respect to the Seller, acquiesce, petition or
otherwise invoke or cause the Seller to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Seller under any federal or state bankruptcy, insolvency or similar law,
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture
Trustee. Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Wilmington Trust Company, not in its
individual capacity, but solely in its capacity as Owner Trustee of the Issuer,
and by Norwest Bank Minnesota, National Association, not in its individual
capacity, but solely in its capacity as Indenture Trustee under the Indenture.
In no event shall Wilmington Trust Company or Norwest Bank Minnesota, National
Association have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder or in any of the
certificates, notices or agreements delivered by the Seller or the Servicer, or
prepared by the Seller or the Servicer for delivery by the Owner Trustee on
behalf of the Issuer, pursuant hereto, as to all of which recourse shall be had
solely to the assets
64
<PAGE> 69
of the Issuer. For all purposes of this Agreement, in the performance of its
duties or obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
65
<PAGE> 70
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner
Trustee on behalf of the Trust
By: /s/ James P. Lawler
----------------------------------------
Name: James P. Lawler
Title: Vice President
NISSAN AUTO RECEIVABLES CORPORATION, as Seller
By: /s/ Tomoaki Shimazu
----------------------------------------
Name: Tomoaki Shimazu
Title: Treasurer, Assistant Secretary and Director
NISSAN MOTOR ACCEPTANCE CORPORATION, as Servicer
By:/s/ Yoichiro Nagashima
----------------------------------------
Name: Yoichiro Nagashima
Title: President and Chairman of the
Board of Directors
ACKNOWLEDGED AND ACCEPTED AS OF
THE DAY AND YEAR FIRST ABOVE WRITTEN:
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture Trustee
By: /s/ Marianna C. Stershic
--------------------------------
Name: Marianna C. Stershic
Title: Assistant Vice President
S-1
<PAGE> 71
SCHEDULE A
Schedule of Receivables
(Delivered to the Trust on the Closing Date and kept on a CD ROM)
A-1
<PAGE> 72
SCHEDULE B
LOCATION OF THE RECEIVABLES
1. NISSAN MOTOR ACCEPTANCE CORPORATION
2901 Kinwest Parkway
Irving, Texas 75063
2. NISSAN MOTOR ACCEPTANCE CORPORATION
990 W. 190th Street
Torrance, California 90502
3. PIERCE LEAHY INC.
1235 N. Union Bower
Irving, Texas 75061
4. PIERCE LEAHY INC.
5911 Fresca Drive
La Palma, CA 90623
B-1
<PAGE> 73
SCHEDULE C
OVEREXTENDED RECEIVABLES
<TABLE>
<CAPTION>
Outstanding
Balance
Loan Number as of 12/31/99
----------- --------------
<S> <C>
24-5820619 $3,607.69
24-4997418 $7,942.82
24-4143300 $10,861.68
24-4203551 $12,151.40
24-4768524 $10,458.70
24-6207220 $18,657.82
---------- ----------
Total $63,680.11
</TABLE>
C-1
<PAGE> 1
EXHIBIT 4.2
INDENTURE
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
as Issuer
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of January 27, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions................................................................2
SECTION 1.02 Usage of Terms.............................................................7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act..........................8
ARTICLE II
THE NOTES
SECTION 2.01 Form.......................................................................8
SECTION 2.02 Execution, Authentication and Delivery.....................................9
SECTION 2.03 Temporary Notes............................................................9
SECTION 2.04 Registration; Registration of Transfer and Exchange........................9
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes................................10
SECTION 2.06 Persons Deemed Owners.....................................................11
SECTION 2.07 Payments of Principal and Interest........................................11
SECTION 2.08 Cancellation..............................................................12
SECTION 2.09 Release of Collateral.....................................................12
SECTION 2.10 Book-Entry Notes..........................................................12
SECTION 2.11 Notices to Clearing Agency................................................13
SECTION 2.12 Definitive Notes..........................................................13
SECTION 2.13 Tax Treatment.............................................................14
ARTICLE III
COVENANTS
SECTION 3.01 Payment of Principal and Interest.........................................14
SECTION 3.02 Maintenance of Office or Agency...........................................15
SECTION 3.03 Money for Payments To Be Held in Trust....................................15
SECTION 3.04 Existence.................................................................16
SECTION 3.05 Protection of Trust Estate................................................17
SECTION 3.06 Opinions as to Trust Estate...............................................17
SECTION 3.07 Performance of Obligations; Servicing of Receivables......................18
SECTION 3.08 Negative Covenants........................................................20
SECTION 3.09 Annual Statement as to Compliance.........................................20
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.......................20
SECTION 3.11 Successor or Transferee...................................................22
SECTION 3.12 No Other Business.........................................................22
SECTION 3.13 No Borrowing..............................................................23
SECTION 3.14 Servicer's Notice Obligations.............................................23
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.........................23
</TABLE>
-i-
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 3.16 Capital Expenditures......................................................23
SECTION 3.17 Removal of Administrator..................................................23
SECTION 3.18 Restricted Payments.......................................................23
SECTION 3.19 Notice of Events of Default...............................................24
SECTION 3.20 Further Instruments and Actions...........................................24
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture...................................24
SECTION 4.02 Application of Trust Money................................................25
SECTION 4.03 Repayment of Moneys Held by Paying Agent..................................25
ARTICLE V
REMEDIES
SECTION 5.01 Events of Default.........................................................25
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment........................26
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.........................................................27
SECTION 5.04 Remedies; Priorities......................................................29
SECTION 5.05 Optional Preservation of the Receivables..................................30
SECTION 5.06 Limitation of Suits.......................................................31
SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal and Interest.....31
SECTION 5.08 Restoration of Rights and Remedies........................................31
SECTION 5.09 Rights and Remedies Cumulative............................................32
SECTION 5.10 Delay or Omission Not a Waiver............................................32
SECTION 5.11 Control by Noteholders....................................................32
SECTION 5.12 Waiver of Past Defaults...................................................32
SECTION 5.13 Undertaking for Costs.....................................................33
SECTION 5.14 Waiver of Stay or Extension Laws..........................................33
SECTION 5.15 Action on Notes...........................................................33
SECTION 5.16 Performance and Enforcement of Certain Obligations........................34
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.01 Duties of Indenture Trustee...............................................34
SECTION 6.02 Rights of Indenture Trustee...............................................36
SECTION 6.03 Individual Rights of Indenture Trustee....................................37
SECTION 6.04 Indenture Trustee's Disclaimer............................................37
</TABLE>
-ii-
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 6.05 Notice of Defaults........................................................38
SECTION 6.06 Reports by Indenture Trustee to Holders...................................38
SECTION 6.07 Compensation and Indemnity................................................38
SECTION 6.08 Replacement of Indenture Trustee..........................................38
SECTION 6.09 Successor Indenture Trustee by Merger.....................................39
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.........40
SECTION 6.11 Eligibility; Disqualification.............................................41
SECTION 6.12 Preferential Collection of Claims Against Issuer..........................41
SECTION 6.13 Acknowledgement by Indenture Trustee of its Obligations
Under the Sale and Servicing Agreement....................................41
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01 Note Registrar To Furnish Names and Addresses of Noteholders..............41
SECTION 7.02 Preservation of Information; Communications to Noteholders................42
SECTION 7.03 Reports by Issuer.........................................................42
SECTION 7.04 Reports by Indenture Trustee..............................................43
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01 Collection of Money.......................................................43
SECTION 8.02 Accounts..................................................................43
SECTION 8.03 General Provisions Regarding Accounts.....................................44
SECTION 8.04 Release of Trust Estate...................................................45
SECTION 8.05 Release of Receivables Upon Purchase by the Seller or the Servicer........46
SECTION 8.06 Opinion of Counsel........................................................46
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders....................47
SECTION 9.02 Supplemental Indentures with Consent of Noteholders.......................48
SECTION 9.03 Execution of Supplemental Indentures......................................49
SECTION 9.04 Effect of Supplemental Indenture..........................................49
SECTION 9.05 Conformity with Trust Indenture Act.......................................49
SECTION 9.06 Reference in Notes to Supplemental Indentures.............................49
</TABLE>
-iii-
<PAGE> 5
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE X
RELEASE
SECTION 10.01 Optional Purchase of All Receivables......................................50
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Compliance Certificates and Opinions, etc.................................50
SECTION 11.02 Form of Documents Delivered to Indenture Trustee..........................52
SECTION 11.03 Acts of Noteholders.......................................................53
SECTION 11.04 Notices to Indenture Trustee, Issuer and Rating Agencies..................53
SECTION 11.05 Notices to Noteholders; Waiver............................................54
SECTION 11.06 Alternate Payment and Notice Provisions...................................54
SECTION 11.07 Conflict with Trust Indenture Act.........................................54
SECTION 11.08 Effect of Headings and Table of Contents..................................55
SECTION 11.09 Successors and Assigns....................................................55
SECTION 11.10 Severability..............................................................55
SECTION 11.11 Benefits of Indenture.....................................................55
SECTION 11.12 Governing Law.............................................................55
SECTION 11.13 Counterparts..............................................................55
SECTION 11.14 Recording of Indenture....................................................55
SECTION 11.15 Trust Obligation..........................................................55
SECTION 11.16 No Petition...............................................................56
SECTION 11.17 Inspection................................................................56
EXHIBIT A FORM OF CLASS A-1 NOTE, CLASS A-2 NOTE, CLASS A-3 NOTE AND CLASS A-4 NOTE
</TABLE>
-iv-
<PAGE> 6
CROSS-REFERENCE TABLE
(not a part of this Indenture)
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- -------
<S> <C>
(Section)310(a) (1)......................................................................6.11
(a) (2)............................................................................6.11
(a) (3)......................................................................6.10(b)(i)
(a) (4)............................................................................N.A.
(a) (5)............................................................................6.11
(b) ...............................................................................5.04
6.08
6.11
11.04
(c) ...............................................................................N.A.
(Section)311(a) .........................................................................6.12
(b) ...............................................................................6.12
(c) ...............................................................................N.A.
(Section)312(a) .........................................................................7.01
(b) ...............................................................................7.01
7.02(b)
(c) ............................................................................7.02(c)
(Section)313(a) .........................................................................7.04
(b) (1)............................................................................N.A.
(b) (2)............................................................................7.04
(c) ...............................................................................7.04
11.04
(d) ...............................................................................7.04
(Section)314(a) .........................................................................7.03
3.09
11.04
7.04
(b) ...............................................................................3.06
11.14
7.04
(c) (1) ..........................................................................11.01
6.02
8.05(b)
6.02
11.01
(c) (2)...........................................................................11.01
3.06
3.10
6.02
8.05(b)
</TABLE>
v
<PAGE> 7
<TABLE>
<CAPTION>
TIA Indenture
Section Section
- ------- -------
<S> <C>
8.06
(c) (3)...........................................................................11.01
(d) ...........................................................................11.01(c)
(e) ..............................................................................11.01
(f) ...............................................................................N.A.
(Section)315(a) .........................................................................6.01
(b) ...............................................................................6.05
(c) ...............................................................................N.A.
(d) ............................................................................6.01(c)
(e) ...............................................................................5.13
(Section)316(a)(1) (A)...................................................................5.11
6.01(c)
(a) (1) (B)........................................................................5.12
(a) (2)............................................................................N.A.
(b) ...............................................................................5.07
9.02
5.13(c)
(c) ...............................................................................N.A.
(Section)317(a) (1) .....................................................................5.04
(a) (2) ........................................................................5.03(c)
5.03(d)
5.04
(b) ...............................................................................3.03
(Section)318(a) ........................................................................11.07
</TABLE>
- ---------
N.A. means not applicable
vi
<PAGE> 8
INDENTURE, dated as of January 27, 2000, between NISSAN AUTO
RECEIVABLES 2000-A OWNER TRUST, a Delaware business trust (the "Issuer"), and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as
trustee and not in its individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of (i) the Holders of the Issuer's 6.125% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), 6.730% Asset Backed Notes,
Class A-2 (the "Class A-2 Notes"), 7.010% Asset Backed Notes, Class A-3 (the
"Class A-3 Notes"), and 7.170% Asset Backed Notes, Class A-4 (the "Class A-4
Notes" and, together with the Class A-1, Class A-2 and the Class A-3 Notes, the
"Notes") and (ii) for the purposes of the Granting Clause below, the
Certificateholders:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date,
as Indenture Trustee for the benefit of the Holders of the Notes and
Certificates, the following:
(i) all right, title and interest of the Issuer in and to the
Receivables (including all related Receivable Files) and all monies due thereon
or paid thereunder or in respect thereof (including proceeds of the repurchase
of Receivables by the Seller pursuant to Section 3.02 of the Sale and Servicing
Agreement or the purchase of Receivables by the Servicer pursuant to Section
4.06 or 9.01 of the Sale and Servicing Agreement) after the Cutoff Date;
(ii) amounts on deposit in the Collection Account;
(iii) the right of the Issuer in the security interests in the Financed
Vehicles granted by the Obligors pursuant to the Receivables and any related
property;
(iv) the right of the Issuer in any proceeds from claims on any
physical damage, credit life, credit disability or other insurance policies
covering the Financed Vehicles or the Obligors;
(v) the right of the Issuer (through the Seller and NMAC) to receive
payments in respect of any Dealer Recourse with respect to the Receivables;
(vi) the right of the Issuer under the Sale and Servicing Agreement
and, through the Seller, the Purchase Agreement, the Assignment, and the Yield
Supplement Agreement;
(vii) the right of the Issuer to realize upon any property (including
the right to receive future Net Liquidation Proceeds) that shall have secured a
Receivable;
(viii) the right of the Issuer in rebates of premiums and other amounts
relating to insurance policies and other items financed under the Receivables in
effect as of the Cutoff Date;
(ix) all other assets comprising the Owner Trust Estate; and
(x) all proceeds of the foregoing.
1
<PAGE> 9
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, and subject to the subordinate
claims thereon of the Holder of the Certificates, all as provided in this
Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of
the Notes and for the benefit of the Certificateholders, acknowledges such
Grant, accepts the trusts under this Indenture in accordance with the provisions
of this Indenture and agrees to perform its duties required in this Indenture to
the best of its ability to the end that the interests of the Holders of the
Notes may be adequately and effectively protected and the rights of the
Certificateholders secured.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01 Definitions. Except as otherwise specified herein or if
the context may otherwise require, capitalized terms used but not otherwise
defined herein have the meanings ascribed thereto in the Trust Agreement, the
Sale and Servicing Agreement and the Securities Account Control Agreement, as
the case may be, for all purposes of this Indenture. Except as otherwise
provided in this Indenture, whenever used herein the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
"Action" has the meaning specified in Section 11.03(a).
"Administration Agreement" means the Administration Agreement, dated as
of January 27, 2000, among the Administrator, the Issuer and the Indenture
Trustee.
"Administrator" means NMAC or any successor Administrator under the
Administration Agreement.
"Applicant" has the meaning specified in Section 7.01.
"Authorized Officer" means with respect to the Issuer, any officer of
the Owner Trustee who is authorized to act for the Owner Trustee in matters
relating to the Issuer identified as such on any list of Authorized Officers
delivered by the Owner Trustee to the Indenture Trustee.
"Book-Entry Notes" means a beneficial interest in the Class A-1 Notes,
the Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10.
"Business Day" means any day except a Saturday, a Sunday or a day on
which banks in New York, New York, Los Angeles, California, Wilmington, Delaware
or Minneapolis, Minnesota are authorized or obligated by law, regulation,
executive order or governmental decree to be closed.
"Certificates" means the Certificates of the Issuer issued under the
Trust Agreement.
2
<PAGE> 10
"Class" means any one of the classes of the Notes.
"Class A-1 Rate" means 6.125% per annum (computed on the basis of
actual number of days in the related Interest Period and a 360-day year).
"Class A-1 Notes" means the 6.125% Asset Backed Notes, Class A-1,
substantially in the form attached hereto as Exhibit A.
"Class A-2 Rate" means 6.730% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"Class A-2 Notes" means the 6.730% Asset Backed Notes, Class A-2,
substantially in the form attached hereto as Exhibit A.
"Class A-3 Rate" means 7.010% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"Class A-3 Notes" means the 7.010% Asset Backed Notes, Class A-3,
substantially in the form attached hereto as Exhibit A.
"Class A-4 Rate" means 7.170% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"Class A-4 Notes" means the 7.170% Asset Backed Notes, Class A-4,
substantially in the form attached hereto as Exhibit A.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means January 27, 2000.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Collateral" means the property of the Issuer subject to the Granting
Clause hereof, the Reserve Account, the Yield Supplement Account, and all
amounts held from time to time in the Reserve Account and Yield Supplement
Account and all investments therein.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at Norwest Center, 6th Street and Marquette Avenue, MAC N9311-161, Minneapolis,
Minnesota 55479-0070; Attention: Nissan Auto Receivables 2000-A Owner Trust, or
at such other address as the Indenture Trustee may designate from time to time
by notice to the Noteholders, the Issuer and the Administrator, or the principal
corporate
3
<PAGE> 11
trust office of any successor Indenture Trustee at the address designated by
such successor Indenture Trustee by notice to the Noteholders, the Issuer and
the Administrator.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
thereof.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate,
remise, release, convey, assign, transfer, create, and grant a lien upon and a
security interest in and right of set-off against, deposit, set over and confirm
pursuant to this Indenture. A Grant of the Collateral or of any other agreement
or instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise, and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Indenture Trustee" means Norwest Bank Minnesota, National Association,
a national banking association, as Indenture Trustee under this Indenture, or
any successor Indenture Trustee under this Indenture.
"Independent" means, when used with respect to any specified Person,
that the Person is in fact independent of the Seller, the Servicer, the
Administrator, the Issuer or any other obligor on the Notes or any Affiliate of
any of the foregoing Persons because, among other things, such Person (a) is not
an employee, officer or director or otherwise controlled thereby or under common
control therewith, (b) does not have any direct financial interest or any
material indirect financial interest therein (whether as holder of securities
thereof or party to contract therewith or otherwise), and (c) is not and has not
within the preceding twelve months been a promoter, underwriter, trustee,
partner, director or person performing similar functions therefor or otherwise
had legal, contractual or fiduciary or other duties to act on behalf of or for
the benefit thereof.
4
<PAGE> 12
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee, made by an Independent appraiser or other
expert appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate shall state that
the signer has read the definition of "Independent" in this Indenture and that
the signer is Independent within the meaning thereof.
"Interest Period" means, with respect to any Distribution Date and the
Class A-1 Notes, the period from (and including) the preceding Distribution Date
to (but excluding) such Distribution Date, except that the initial Interest
Period will be from (and including) the Closing Date to (but excluding) February
15, 2000, and, with respect to any Distribution Date and the Class A-2 Notes,
the Class A-3 Notes, and the Class A-4 Notes, the period from (and including)
the 15th day of the preceding calendar month to (but excluding) the 15th day of
the month in which such Distribution Date occurs, except that the initial
Interest Period will be from (and including) the Closing Date to (but excluding)
February 15, 2000.
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate, the Class
A-3 Rate, or the Class A-4 Rate, as indicated by the context.
"Issuer" means Nissan Auto Receivables 2000-A Owner Trust unless and
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the Notes.
"Issuer Order" and "Issuer Request" mean a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or a
Class A-4 Note.
"Note Depository Agreement" means the agreement entitled "Letter of
Representations" dated on or before the Closing Date among the Clearing Agency,
the Issuer and the Indenture Trustee with respect to certain matters relating to
the duties thereof with respect to the Book-Entry Notes.
"Note Owner" means, with respect to a Book-Entry Note, any Person who
is the beneficial owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Note Register" means the Register of Noteholders' information
maintained by the Note Registrar pursuant to Section 2.04.
"Note Registrar" means the Indenture Trustee unless and until a
successor Note Registrar shall have been appointed pursuant to Section 2.04.
"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to
the Indenture Trustee.
5
<PAGE> 13
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be an employee of
or counsel to the Issuer, the Seller or the Servicer and which counsel shall be
reasonably satisfactory to the Owner Trustee, the Indenture Trustee or the
Rating Agencies, as the case may be.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the Holders of such Notes; and
(c) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory
to the Indenture Trustee is presented that any such Notes are held by a
protected purchaser;
provided, that in determining whether the Holders of the requisite percentage of
the Outstanding Amount of the Notes, or any Class of Notes, have given any
request, demand, authorization, direction, notice, consent, or waiver hereunder
or under any Basic Document, Notes owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes that the Indenture Trustee knows to be so owned shall be so disregarded.
Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or, if indicated by the context, all Notes of any Class, Outstanding at the date
of determination.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, or any successor
Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 that has been authorized by the Issuer to make payments to and
distributions from the Collection Account, including payment of principal of or
interest on the Notes on behalf of the Issuer.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 in lieu of
6
<PAGE> 14
a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Registered Holder" means the Person in whose name a Note is registered
on the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of January 27, 2000, among the Issuer, Nissan Auto Receivables
Corporation, as Seller, and Nissan Motor Acceptance Corporation, as Servicer,
and as to which the Indenture Trustee is a third party beneficiary of certain
provisions.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Account Control Agreement" shall have the meaning assigned
to such term in the Sale and Servicing Agreement.
"Seller" shall mean Nissan Auto Receivables Corporation, in its
capacity as seller under the Sale and Servicing Agreement, and its successor in
interest.
"Servicer" shall mean Nissan Motor Acceptance Corporation, in its
capacity as servicer under the Sale and Servicing Agreement, and any Successor
Servicer thereunder.
"Successor Servicer" has the meaning specified in Section 3.07.
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
this Indenture for the benefit of the Noteholders (including, without
limitation, all property and interests Granted to the Indenture Trustee pursuant
to the Granting Clause), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction at the relevant time.
SECTION 1.02 Usage of Terms. With respect to all terms in this Indenture, 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
7
<PAGE> 15
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 Indenture;
references to Persons include their permitted successors and assigns; references
to laws include their amendments and supplements, the rules and regulations
thereunder and any successors thereto; and the term "including" means "including
without limitation."
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings so assigned to them.
ARTICLE II
The Notes
SECTION 2.01 Form. The Class A-1 Notes, the Class A-2 Notes, the Class
A-3 Notes and the Class A-4 Notes, in each case together with the Indenture
Trustee's certificate of authentication, shall be in substantially the form set
forth in Exhibit A, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution thereof. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibit A are part of the terms of this Indenture.
8
<PAGE> 16
SECTION 2.02 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes. The Indenture Trustee shall upon Issuer
Order authenticate and deliver the Class A-1 Notes for original issue in an
aggregate principal amount of $184,000,000, the Class A-2 Notes for original
issue in an aggregate principal amount of $229,000,000, the Class A-3 Notes for
original issue in an aggregate principal amount of $250,000,000, and the Class
A-4 Notes for original issue in an aggregate principal amount of $95,130,000.
The aggregate principal amount of the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes outstanding at any time may not exceed
such respective amounts except as provided in Section 2.05. The Notes shall be
issuable as registered Notes in the minimum denomination $1,000. Each Note shall
be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form included in Exhibit A,
executed by the Indenture Trustee by the manual or facsimile signature of one of
its authorized signatories, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder.
SECTION 2.03 Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes. If temporary
Notes are issued, the Issuer will cause Definitive Notes to be prepared without
unreasonable delay. After the preparation of Definitive Notes, the temporary
Notes shall be exchangeable for Definitive Notes upon surrender of the temporary
Notes at the office or agency of the Issuer to be maintained as provided in
Section 3.02, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Notes of any Class, the Issuer shall execute, and the
Indenture Trustee shall authenticate and deliver in exchange therefor, a like
principal amount of Definitive Notes of such Class of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Definitive Notes.
SECTION 2.04 Registration; Registration of Transfer and Exchange.
(a) The Note Registrar shall maintain a Note Register in which, subject
to such reasonable regulations as it may prescribe, the Note Registrar shall
provide for the registration of Notes and transfers and exchanges of Notes as
provided in this Indenture. The Indenture Trustee is hereby initially appointed
Note Registrar for the purpose of registering Notes and transfers and exchanges
of Notes as provided in this Indenture. In the event that, subsequent to the
Closing Date, the Indenture Trustee notifies the Issuer that it is unable to act
as Note Registrar, the Issuer
9
<PAGE> 17
shall appoint another bank or trust company, having an office or agency located
in the Borough of Manhattan, The City of New York, agreeing to act in accordance
with the provisions of this Indenture applicable to it, and otherwise acceptable
to the Indenture Trustee, to act as successor Note Registrar under this
Indenture.
If a Person other than the Indenture Trustee is appointed by
the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and number of such Notes.
(b) Upon the proper surrender for registration of transfer of any Note
at the office or agency of the Issuer to be maintained as provided in Section
3.02, the Issuer shall execute, and the Indenture Trustee shall authenticate in
the name of the designated transferee or transferees, one or more new Notes of
the same Class in authorized denominations of a like aggregate principal amount.
(c) At the option of the Holder, Notes may be exchanged for other Notes
of the same Class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, the Notes which the Noteholder making the exchange
is entitled to receive. Every Note presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Indenture Trustee and the Note Registrar duly executed
by the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of transfer or
exchange of Notes, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Notes.
(e) All Notes surrendered for registration of transfer or exchange
shall be canceled and subsequently destroyed by the Indenture Trustee.
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Note Registrar or
the Indenture Trustee that such Note has been acquired by a protected purchaser,
the Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same Class. In
connection with the issuance of any new Note under this Section 2.05, the Issuer
may require payment by the Holder of such Note of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto.
10
<PAGE> 18
If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note, a protected purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a
protected purchaser, and shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuer or the Indenture Trustee in connection therewith.
Every replacement Note issued pursuant to this Section 2.05 in
replacement of any mutilated, destroyed, lost or stolen Note shall constitute an
original additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Note shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes of the same Class duly issued
hereunder.
The provisions of this Section 2.05 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.06 Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, and none of the Issuer, the
Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.07 Payments of Principal and Interest.
(a) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes shall accrue interest during each Interest Period at the
Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, and the Class A-4 Rate,
respectively, and such interest shall be payable on each related Distribution
Date as specified in the applicable Note by applying amounts available pursuant
to Section 5.06 of the Sale and Servicing Agreement and to Section 3.01 of this
Indenture. Any installment of interest or principal payable on any Note that is
punctually paid or duly provided for by the Issuer on the applicable
Distribution Date shall be paid to the Person in whose name such Note (or one or
more Predecessor Notes) is registered on the Record Date. With respect to Notes
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), payment will be made by wire
transfer in immediately available funds to the account designated by such
nominee, except for the final installment of principal payable with respect to
such Note on a Distribution Date or on the applicable Final Scheduled
Distribution Date, which shall be payable as provided below. Such payment will
be made by check mailed first-class postage prepaid to such Person's address as
it appears on the Note Register on such Record Date or by wire transfer to the
account specified by the registered holder of any Note with a face amount of at
least $10,000,000. The funds
11
<PAGE> 19
represented by any such checks returned undelivered shall be held in accordance
with Section 3.03.
(b) The principal of each Note shall be payable in installments on each
Distribution Date by applying amounts available pursuant to Section 5.06 of the
Sale and Servicing Agreement. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
from and after the date on which the Indenture Trustee or the Holders of a
majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purpose the outstanding principal amount of any Notes held
of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless
at such time all of the Notes are held of record or beneficially owned by NARC,
NMAC or any of their Affiliates), have declared the Notes to be immediately due
and payable in the manner provided in Section 5.02 in connection with an Event
of Default. All principal payments on each Class of Notes shall be made pro rata
to the Noteholders of such Class entitled thereto. The Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Distribution Date on which the final installment
of principal of and interest on such Note will be paid. Such notice shall be
mailed or transmitted by facsimile not less than 15 nor more than 30 days prior
to such final Distribution Date, shall specify that such final installment will
be payable only upon presentation and surrender of such Note and shall specify
the place where such Note may be presented and surrendered for payment of such
installment.
SECTION 2.08 Cancellation. All Notes surrendered for payment,
registration of transfer or exchange shall, if surrendered to any Person other
than the Indenture Trustee, be delivered to the Indenture Trustee and shall be
promptly canceled by the Indenture Trustee. The Issuer may at any time deliver
to the Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section, except as expressly permitted by this Indenture.
All canceled Notes may be held or disposed of by the Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time unless the Issuer shall direct by an Issuer Order that they be destroyed or
returned to it; provided, that such Issuer Order is timely and the Notes have
not been previously disposed of by the Indenture Trustee.
SECTION 2.09 Release of Collateral. Subject to Sections 8.05 and 11.01
and the terms of the Basic Documents, the Indenture Trustee shall release
property from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the initial Clearing Agency, or a
custodian therefor, by, or on behalf of, the Issuer. The Book-Entry Notes shall
be registered initially on the Note Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Note Owner thereof will receive a
Definitive Note representing such Note Owner's interest in such Note, except as
12
<PAGE> 20
provided in Section 2.12. Unless and until definitive, fully registered Notes
(the "Definitive Notes") have been issued to such Note Owners pursuant to
Section 2.12:
(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to
deal with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on the Notes and the giving of instructions
or directions hereunder) as the authorized representative of the Note Owners;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and agreements
between such Note Owners and the Clearing Agency and/or the Clearing Agency
Participants pursuant to the Note Depository Agreement. Unless and until
Definitive Notes are issued pursuant to Section 2.12, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency Participants and
receive and transmit payments of principal of and interest on the Notes to such
Clearing Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes or of the Notes of any Class,
the Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and has delivered such
instructions to the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency and shall be deemed to have been given as of the date of
delivery to the Clearing Agency.
SECTION 2.12 Definitive Notes. If (i) the Seller, the Owner Trustee or
the Administrator advises the Indenture Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Book-Entry Notes and the Seller, the Owner Trustee and the
Administrator are unable to locate a qualified successor (and if the
Administrator has made such determination, the Administrator has given written
notice thereof to the Indenture Trustee), (ii) the Seller, the Indenture Trustee
or the Administrator at its option advises each other such party in writing that
it elects to terminate the book-entry system through the Clearing Agency, or
(iii) after the occurrence of an Event of Default or a Servicer Default, Note
Owners representing beneficial interests aggregating a majority of the
Outstanding Amount of the Notes of all Classes advise the Indenture Trustee and
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency or a
13
<PAGE> 21
successor thereto is no longer in the best interests of the Note Owners acting
together as a single Class, then the Clearing Agency shall notify all Note
Owners and the Indenture Trustee of the occurrence of such event and of the
availability of Definitive Notes to Note Owners requesting the same. Upon
surrender to the Indenture Trustee of the typewritten Notes representing the
Book-Entry Notes by the Clearing Agency, accompanied by registration
instructions, the Issuer shall execute and the Indenture Trustee shall
authenticate the Definitive Notes in accordance with the instructions of the
Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders. The Indenture Trustee, Issuer
and Administrator shall not be liable for any inability to locate a qualified
successor Clearing Agency. From and after the date of issuance of Definitive
Notes, all notices to be given to Noteholders will be mailed thereto at their
addresses of record in the Note Register as of the relevant Record Date. Such
notices will be deemed to have been given as of the date of mailing.
SECTION 2.13 Tax Treatment. The Issuer has entered into this Indenture, and the
Notes will be issued, with the intention that, for federal, state and local
income, single business and franchise tax purposes, the Notes will qualify as
indebtedness of the Issuer secured by the Trust Estate. The Issuer, by entering
into this Indenture, and each Noteholder, by its acceptance of a Note (and each
Note Owner by its acceptance of an interest in the applicable Book-Entry Note),
agree to treat the Notes for federal, state and local income, single business
and franchise tax purposes as indebtedness of the Issuer.
ARTICLE III
Covenants
SECTION 3.01 Payment of Principal and Interest. In accordance with the
terms of this Indenture, the Issuer will duly and punctually (i) pay the
principal of and interest, if any, on the Notes in accordance with the terms of
the Notes and (ii) cause the Servicer to direct the Indenture Trustee to release
from the Collection Account all other amounts distributable or payable from the
Owner Trust Estate under the Trust Agreement, the Sale and Servicing Agreement
and the Administration Agreement. Without limiting the foregoing and in order to
fulfill such obligations, pursuant to Sections 8.02 and 8.03 hereof, the Issuer
will cause the Servicer to direct the Indenture Trustee to apply all amounts on
deposit in the Collection Account, the Reserve Account and the Yield Supplement
Account on a Distribution Date deposited therein pursuant to the Sale and
Servicing Agreement (i) (a) for the benefit of the Class A-1 Notes, to the Class
A-1 Noteholders, (b) for the benefit of the Class A-2 Notes, to the Class A-2
Noteholders, (c) for the benefit of the Class A-3 Notes, to the Class A-3
Noteholders, and (d) for the benefit of the Class A-4 Notes, to the Class A-4
Noteholders, and (ii) for the benefit of the Certificateholders, to or as
directed by the Owner Trustee or the Administrator, as set forth in Section
5.06, 5.07 and 5.08 of the Sale and Servicing Agreement. Amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal shall be considered as having been paid by the Issuer
to such Noteholder for all purposes of this Indenture.
14
<PAGE> 22
SECTION 3.02 Maintenance of Office or Agency. The Issuer will maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer will give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.03 Money for Payments To Be Held in Trust. As provided in
Sections 8.02 and 8.03, all payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection
Account, the Reserve Account or the Yield Supplement Account pursuant to
Sections 8.02 and 8.03 shall be made on behalf of the Issuer by the Indenture
Trustee or by the Paying Agent, and no amounts so withdrawn from such accounts
for payments of Notes shall be paid over to the Issuer, the Owner Trustee or the
Administrator except as provided in this Section.
On or before each Distribution Date, the Issuer shall deposit in the
Collection Account or, in accordance with the Sale and Servicing Agreement,
cause to be deposited (including the provision of instructions to the Indenture
Trustee to make any required withdrawals from the Reserve Account or the Yield
Supplement Account and to deposit such amounts in the Collection Account), an
aggregate sum sufficient to pay the amounts then becoming due under the Notes
and the Certificates, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless the Paying Agent is the Indenture Trustee)
shall promptly notify the Indenture Trustee of its action or failure so to act.
The Indenture Trustee, as Paying Agent, hereby agrees with the Issuer
that it will, and the Issuer will cause each Paying Agent other than the
Indenture Trustee, as a condition to its acceptance of its appointment as Paying
Agent, to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of amounts due with
respect to the Notes or Certificates or for release to the Issuer for payment on
the Certificates in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and pay or release such sums to such Persons as herein provided;
(b) give the Indenture Trustee notice of any default by the Issuer (or
any other obligor upon the Notes) of which it has actual knowledge in the making
of any payment required to be made with respect to the Notes or the release of
any amounts to the Issuer to be paid to the Certificateholders;
15
<PAGE> 23
(c) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture Trustee
all sums so held in trust by such Paying Agent;
(d) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes (or for
release to the Issuer) if at any time it ceases to meet the standards required
to be met by a Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes or Certificates (or
assisting the Issuer to withhold from payment to the Certificateholders) of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed after such
amount has become due and payable and after the Indenture Trustee has taken the
steps described in this paragraph shall be discharged from such trust and be
paid to Children's Hospital Los Angeles upon presentation thereto of an Issuer
Request; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money shall
thereupon cease. In the event that any Noteholder shall not surrender its Notes
for retirement within six months after the date specified in the written notice
of final payment described in Section 2.07, the Indenture Trustee will give a
second written notice to the registered Noteholders that have not surrendered
their Notes for final payment and retirement. If within one year after such
second notice any Notes have not been surrendered, the Indenture Trustee shall,
at the expense and direction of the Issuer, cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be paid to Children's Hospital Los
Angeles. The Indenture Trustee shall also adopt and employ, at the expense and
direction of the Issuer, any other reasonable means of notification of such
repayment specified by the Issuer or the Administrator.
SECTION 3.04 Existence. The Issuer will keep in full effect its
existence, rights and franchises as a business trust under the laws of the State
of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its
16
<PAGE> 24
qualification to do business in each jurisdiction in which such qualification is
or shall be necessary to protect the validity and enforceability of this
Indenture, the Notes, the Collateral and each other instrument or agreement
included in the Trust Estate or the Owner Trust Estate.
SECTION 3.05 Protection of Trust Estate. The Issuer will from time to
time execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
(a) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the purposes
hereof;
(b) perfect, publish notice of or protect the validity of any Grant
made or to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the rights of the
Indenture Trustee and the Noteholders in such Trust Estate against the claims of
all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.05.
SECTION 3.06 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the execution, recording and
filing of this Indenture, any indentures supplemental hereto, any requisite
financing statements and continuation statements and any other requisite
documents necessary to perfect and make effective the lien and security interest
of this Indenture or stating that, in the opinion of such counsel, no such
action is necessary to make such lien and security interest effective.
(b) As and when specified in Section 10.02(h) of the Sale and Servicing
Agreement, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the execution, recording, filing or re-recording and
refiling of this Indenture, any indentures supplemental hereto, any financing
statements and continuation statements and any other requisite documents
necessary to maintain the lien and security interest created by this Indenture
or stating that in the opinion of such counsel no such action is necessary to
maintain such lien and security interest. Such Opinion of Counsel shall also
describe the execution, recording, filing or re-recording and refiling of this
Indenture, any indentures supplemental hereto, any financing statements and
continuation statements and any other documents that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until the date in the following calendar year on which such Opinion of
Counsel must again be delivered.
17
<PAGE> 25
SECTION 3.07 Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will use its best efforts
not to permit any action to be taken by others that would release any Person
from any of such Person's material covenants or obligations under any instrument
or agreement included in the Trust Estate or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
validity or effectiveness of, any such instrument or agreement, except as
expressly provided in the Basic Documents.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officer's Certificate of
the Issuer shall be deemed to be action taken by the Issuer. Initially, the
Issuer has contracted with the Servicer and the Administrator to assist the
Issuer in performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its
obligations and agreements contained in the Basic Documents and in the
instruments and agreements included in the Trust Estate, including but not
limited to filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of the Trust
Agreement, this Indenture and the Sale and Servicing Agreement in accordance
with and within the time periods provided for herein and therein.
(d) If an Authorized Officer of the Issuer shall have knowledge of the
occurrence of a Servicer Default under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Issuer is
taking with respect of such default. If a Servicer Default shall arise from the
failure of the Servicer to perform any of its duties or obligations under the
Sale and Servicing Agreement with respect to the Receivables, the Issuer shall
take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination
to the Servicer of the Servicer's rights and powers pursuant to Section 8.01 of
the Sale and Servicing Agreement, the Indenture Trustee shall appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to the
Indenture Trustee. In the event that a Successor Servicer has not been appointed
and accepted its appointment as set forth in Section 8.02 of the Sale and
Servicing Agreement, the Indenture Trustee without further action shall
automatically be appointed the Successor Servicer and shall thereafter be
entitled to the Total Servicing Fee. Notwithstanding the above, the Indenture
Trustee shall, if it shall be legally unable so to act, appoint or petition a
court of competent jurisdiction to appoint, and the predecessor Servicer, if no
successor Servicer has been appointed at the time the predecessor Servicer has
ceased to act, may petition a court of competent jurisdiction to appoint any
established institution having a net worth of not less than $100,000,000 and
whose regular business shall include the servicing of automobile and/or
light-duty truck receivables, as the successor to the Servicer under the Sale
and Servicing Agreement. Upon such appointment, the Indenture Trustee will be
released from the duties and obligations of acting as Successor Servicer, such
release effective upon the effective date of the servicing agreement entered
into between the Successor Servicer and the Issuer.
18
<PAGE> 26
In connection with any such appointment, the Indenture Trustee may make
such arrangements for the compensation of such successor as it and such
Successor Servicer shall agree, subject to the limitations set forth below and
in the Sale and Servicing Agreement, and in accordance with Section 8.02 of the
Sale and Servicing Agreement, the Issuer shall enter into an agreement with such
Successor Servicer for the servicing of the Receivables (such agreement to be in
form and substance satisfactory to the Indenture Trustee). If the Indenture
Trustee shall succeed to the Servicer's duties as servicer of the Receivables as
provided herein, it shall do so in its individual capacity and not in its
capacity as Indenture Trustee and, accordingly, the provisions of Article VI
hereof shall be inapplicable to the Indenture Trustee in its duties as Successor
Servicer and the servicing of the Receivables. In case the Indenture Trustee
shall become the Successor Servicer, the Indenture Trustee shall be entitled to
appoint as a subservicer any one of its affiliates, provided that the Indenture
Trustee, in its capacity as Successor Servicer, shall remain fully liable for
the actions and omissions of such Affiliate.
(f) Upon any termination of the Servicer's rights and powers pursuant
to the Sale and Servicing Agreement, the Issuer shall promptly notify the
Indenture Trustee. As soon as a Successor Servicer is appointed, the Issuer
shall notify the Indenture Trustee of such appointment, specifying in such
notice the name and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the
prior written consent of the Indenture Trustee and the Holders of a majority in
Outstanding Amount of the Notes, voting as a single class (excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by NMAC, NARC or any of their Affiliates, unless at such time
all of the Notes are held of record or beneficially owned by NARC, NMAC or any
of their Affiliates), amend, modify, waive, supplement, terminate or surrender,
or agree to any amendment, modification, waiver, supplement, termination or
surrender of, the terms of any Collateral (except to the extent otherwise
provided in the Sale and Servicing Agreement) or the Basic Documents, or waive
timely performance or observance by the Servicer or the Seller under the Sale
and Servicing Agreement; and (ii) that any such amendment shall not (A) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Receivables or distributions that are required to
be made for the benefit of the Noteholders or change the Interest Rate or the
Specified Reserve Account Balance (except as otherwise provided in the Basic
Documents), in each case without the consent of each of the "adversely affected"
Noteholders, or (B) reduce the aforesaid percentage of the Notes that is
required to consent to any such amendment, without the consent of the Holders of
all the outstanding Notes. If any such amendment, modification, supplement or
waiver shall be so consented to by the Indenture Trustee or such Holders, the
Issuer agrees, promptly following a request by the Indenture Trustee to agree to
such amendment and to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate in the circumstances to
implement such amendment and to cause the relevant Basic Documents, as amended,
to be enforceable against the Issuer. For the purposes of clause (ii) above, an
amendment will be deemed not to "adversely affect" a Noteholder of any Class
only if each Rating Agency confirms that such amendment will not result in a
reduction or withdrawal of its rating on such Class of Notes.
19
<PAGE> 27
SECTION 3.08 Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(a) except as expressly permitted by Basic Documents, sell, transfer,
exchange or otherwise dispose of any of the properties or assets of the Issuer,
including those included in the Trust Estate, unless directed to do so by the
Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Trust Estate;
(c) except as may be expressly permitted hereby, (A) permit the
validity or effectiveness of this Indenture to be impaired, or permit the lien
of this Indenture to be amended, hypothecated, subordinated, terminated or
discharged, or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance (other
than the lien of this Indenture) to be created on or extend to or otherwise
arise upon or burden the Trust Estate or any part thereof or any interest
therein or the proceeds thereof (other than tax liens, mechanics' liens and
other liens that arise by operation of law, in each case on any of the Financed
Vehicles and arising solely as a result of an action or omission of the related
Obligor), (C) permit the lien of this Indenture not to constitute a valid first
priority (other than with respect to any such tax, mechanics' or other lien)
security interest in the Trust Estate, or (D) dissolve or liquidate in whole or
in part; or
(d) assume or incur any indebtedness other than the Notes or as
expressly contemplated by this Indenture (in connection with the obligation to
reimburse Advances from the Trust Estate, or to pay expenses from the Trust
Estate) or by the Basic Documents as in effect on the date hereof.
SECTION 3.09 Annual Statement as to Compliance. The Issuer will cause
the Servicer to deliver to the Indenture Trustee concurrently with its delivery
thereof to the Issuer the annual statement of compliance described in Section
4.09 of the Sale and Servicing Agreement. In addition, on the same date annually
upon which such annual statement of compliance is to be delivered by the
Servicer, the Issuer shall deliver to the Indenture Trustee an Officer's
Certificate stating, as to the Authorized Officer signing such Officer's
Certificate, that:
(a) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under such Authorized
Officer's supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in its
compliance with any such condition or covenant, specifying each such default
known to such Authorized Officer and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
20
<PAGE> 28
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the duty to make due and punctual payment of the principal of
and interest on all Notes and the performance or observance of every agreement
and covenant of this Indenture on the part of the Issuer to be performed or
observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) no Rating Agency shall have notified the Indenture
Trustee and the Owner Trustee that such transaction might or would result in the
removal or reduction of the rating then assigned thereby to any Class of Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain each lien and
security interest created by the Trust Agreement, the Sale and Servicing
Agreement or this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and any related supplemental indenture complies with
this Article III and that all conditions precedent provided in this Indenture
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer such
properties and assets of the Issuer shall (A) be a United States citizen or a
Person organized and existing under the laws of the United States of America or
any state or the District of Columbia, (B) expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the duty to make due and punctual payment
of the principal of and interest on all Notes and the performance or observance
of every agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agrees by means
of such supplemental indenture that all right, title and interest so conveyed or
transferred shall be subject and subordinate to the rights of Holders of the
Notes, (D) unless otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer, the Owner Trustee and
the Indenture Trustee against and from any loss, liability or expense arising
under or related to this Indenture and the Notes, and (E)
21
<PAGE> 29
expressly agrees by means of such supplemental indenture that such
Person (or if a group of Persons, then one specified Person) shall make
all filings that counsel satisfactory to such purchaser or transferee
and the Indenture Trustee determines must be made with (1) the
Commission (and any other appropriate Person) required by the Exchange
Act or the appropriate authorities in any state in which the Notes have
been sold pursuant to any qualification or exemption under the
securities or "blue sky" laws of such state, in connection with the
Notes or (2) the Internal Revenue Service or the relevant state or
local taxing authorities of any jurisdiction;
(ii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iii) no Rating Agency shall have notified the Indenture
Trustee and the Owner Trustee that such transaction might or would
result in the removal or reduction of the rating then assigned thereby
to any Class of Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the
effect that such transaction will not have any material adverse tax
consequence to the Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain each lien and
security interest created by the Trust Agreement, the Sale and
Servicing Agreement or this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply with
this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any
filing required by the Exchange Act).
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of
the Issuer pursuant to Section 3.10(b), Nissan Auto Receivables 2000-A Owner
Trust will be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes and
the Certificates immediately upon the delivery of written notice to the
Indenture Trustee stating that Nissan Auto Receivables 2000-A Owner Trust is to
be so released.
SECTION 3.12 No Other Business. Unless and until the Issuer shall have
been released from its duties and obligations hereunder, the Issuer shall not
engage in any business
22
<PAGE> 30
other than financing, purchasing, owning, selling and managing the Receivables
in the manner contemplated by the Basic Documents and activities incidental
thereto.
SECTION 3.13 No Borrowing. Unless and until the Issuer shall have been
released from its duties and obligations hereunder, the Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes or other obligations permitted hereunder
(including the obligation to reimburse Advances or certain expenses of the
Servicer) or under another Basic Document (including indemnification expenses of
the Issuer and certain fees and expenses of the Administrator).
SECTION 3.14 Servicer's Notice Obligations. The Issuer shall cause the
Servicer to comply with all of its duties and obligations with respect to the
preparation of reports, the delivery of Officer's Certificates and Opinions of
Counsel and the giving of instructions and notices under the Sale and Servicing
Agreement (including, but not limited to, under Sections 4.08, 4.09, 4.11, 4.13,
5.09 and Article IX thereof).
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Unless
and until the Issuer shall have been released from its duties and obligations
hereunder, except as contemplated by the Sale and Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. Unless and until the Issuer shall
have been released from its duties and obligations hereunder, the Issuer shall
not make any expenditure (by long-term or operating lease or otherwise) for
capital assets (either realty or personalty).
SECTION 3.17 Removal of Administrator. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
so instructed by the Owner Trustee or the Indenture Trustee and unless each
Rating Agency shall have received 10 days' written notice thereof and shall not
have notified the Indenture Trustee, the Administrator or the Owner Trustee that
such removal might or would result in the removal or reduction of the rating, if
any, then assigned thereby to any Class of Notes or the Certificates.
SECTION 3.18 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Servicer, the Owner Trustee or any Certificateholder or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer, (ii) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; provided, however, that the Issuer
may make, or cause to be made, (x) distributions to the Servicer, the Owner
Trustee and the Certificateholders as contemplated by, and to the extent funds
are available for such purpose under, the Sale and Servicing Agreement or the
Trust Agreement, and (y) payments to the Owner Trustee or the Indenture Trustee
pursuant to the
23
<PAGE> 31
Administration Agreement. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in accordance
with the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer shall give the
Indenture Trustee and each Rating Agency prompt written notice of each Event of
Default hereunder, each default on the part of the Servicer or the Seller of its
obligations under the Sale and Servicing Agreement (including any Servicer
Defaults) and each default on the part of NMAC of its obligations under the
Purchase Agreement. The Indenture Trustee shall notify each Noteholder of record
in writing of any Event of Default promptly upon a Responsible Officer obtaining
actual knowledge thereof. Such notices will be provided in accordance with
Section 2.11.
SECTION 3.20 Further Instruments and Actions. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01 Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.05, 3.08,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.07 and the obligations of the Indenture Trustee under Sections 3.03 and 4.02),
and (vi) the rights of Noteholders and the Certificateholders as beneficiaries
hereof with respect to the property so deposited with the Indenture Trustee
payable to all or any of them, and the Indenture Trustee, on demand of and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to the Notes, when:
(a) either (1) all Notes theretofore authenticated and delivered (other
than Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.05 and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Indenture Trustee for
cancellation or (2) all Notes not theretofore delivered to the Indenture Trustee
for cancellation have become due and payable or will become due and payable
within one year (either because the Final Scheduled Distribution Date for the
Class A-4 Notes is within one year or because the Indenture Trustee has received
notice of the exercise of the option granted pursuant to Section 9.01 of the
Sale and Servicing Agreement) and the Issuer has irrevocably deposited or caused
to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Indenture Trustee for cancellation
when due;
24
<PAGE> 32
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.01 and, subject to
Section 11.02, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.02 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and (a)
applied by it in accordance with the provisions of the Notes and this Indenture
to the payment, either directly or through any Paying Agent, as the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment of
which such moneys have been deposited with the Indenture Trustee, of all sums
due and to become due thereon for principal and interest or (b) released to the
Owner Trustee for application pursuant to the Trust Agreement or the Sale and
Servicing Agreement; but such moneys need not be segregated from other funds
except to the extent required herein or in the Sale and Servicing Agreement or
required by law.
SECTION 4.03 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.03 or 4.02 and thereupon such Paying Agent shall be released from
all further liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.01 Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of five
days;
(b) default in the payment of the principal of or any installment of
the principal of any Note when the same becomes due and payable;
(c) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section specifically dealt with) which shall continue or not be cured for a
period of 90 days after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture
Trustee by the Holders of at least 25% of the Outstanding Amount of the Notes,
acting together as a single
25
<PAGE> 33
class, a written notice specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such notice is a
notice of Default hereunder;
(d) any representation or warranty of the Issuer made in this Indenture
or in any certificate or other writing delivered pursuant hereto or in
connection herewith shall prove to have been incorrect in any material respect
as of the time when the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition in respect of which
such misrepresentation or warranty was incorrect shall not have been eliminated
or otherwise cured, for a period of 30 days after there shall have been given,
by registered or certified mail, to the Issuer by the Indenture Trustee or to
the Issuer and the Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Notes, acting together as a single Class, a written
notice specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a notice of Default
hereunder;
(e) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Trust Estate in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or
similar official of the Issuer or for any substantial part of the Trust Estate,
or ordering the winding-up or liquidation of the Issuer's affairs, and such
decree or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five Business
Days after the occurrence thereof, written notice in the form of an Officer's
Certificate of any Default which with the giving of notice or the lapse of time
would become an Event of Default under clause (d), the status of such Default
and any action the Issuer is taking or proposes to take with respect thereto.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Holders of a majority of the Outstanding Amount of the
Notes, voting as a single class (excluding for such purposes the outstanding
principal amount of any Notes held of record or beneficially owned by NMAC, NARC
or any of their Affiliates, unless at such time all of the Notes are held of
record or beneficially owned by NARC, NMAC or any of their Affiliates) may
declare all the Notes to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if given by Noteholders), and upon
any such declaration the unpaid principal amount of such Notes, together with
accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
26
<PAGE> 34
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Holders of a majority of the Outstanding Amount of the Notes, voting as a single
class (excluding for such purposes the outstanding principal amount of any Notes
held of record or beneficially owned by NMAC, NARC or any of their Affiliates,
unless at such time all of the Notes are held of record or beneficially owned by
NARC, NMAC or any of their Affiliates), by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(a) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(i) all payments of principal of and interest on the Notes and
all other amounts that would then be due hereunder or upon such Notes
if the Event of Default giving rise to such acceleration had not
occurred; and
(ii) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the principal
of the Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if (i) default is made in the payment of
any interest on any Note, so long as any amounts remain unpaid with respect to
the Notes, when the same becomes due and payable, and such default continues for
a period of five days, or (ii) default is made in the payment of the principal
of or any installment of the principal of any Note when the same becomes due and
payable, the Issuer will, upon demand of the Indenture Trustee, pay to the
Indenture Trustee, for the benefit of the Holders of the Notes, the whole amount
then due and payable on the Notes for principal and interest, with interest upon
the overdue principal and, to the extent payment at such rate of interest shall
be legally enforceable, upon overdue installments of interest at the rate borne
by the Notes and in addition thereto such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
27
<PAGE> 35
(c) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.04, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders and,
incidentally thereto, the Certificateholders, by such appropriate Proceedings as
the Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, then, irrespective of whether the principal of any Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, the Indenture Trustee shall
be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes, and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Holders of Notes in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Holders of Notes allowed in any
judicial proceedings relative to the Issuer, its creditors and its
property.
Any trustee, receiver, liquidator, custodian or other similar official
in any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments
28
<PAGE> 36
directly to such Noteholders, to pay to the Indenture Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Indenture Trustee,
each predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.04 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing and
result in the acceleration of the Notes, the Indenture Trustee shall make
payments on the Notes and to the Owner Trustee as set forth in Section 5.06(d)
of the Sale and Servicing Agreement, rather than pursuant to Section 5.06(c)
thereof.
(b) If the Indenture Trustee, in compliance with Section 5.04(a), is
deemed to have a conflict of interest under the TIA and is required to resign as
Indenture Trustee hereunder, the Issuer shall, pursuant to Section 6.08, cause
the Servicer to appoint a successor Indenture Trustee.
(c) In accordance with Section 5.04(b), if an Event of Default shall
have occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
29
<PAGE> 37
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture with respect to the Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC
and take any other appropriate action to protect and enforce the rights
and remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; provided, however, that the
Indenture Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default, other than an Event of Default described
in Section 5.01(a) or (b), unless (A) the Holders of 100% of the
Outstanding Amount of the Notes, voting as a single class, consent
thereto (but excluding for purposes of such vote all Notes held or
beneficially owned by NMAC, NARC or any of their Affiliates, unless at
such time all of the Notes are held or beneficially owned by NMAC, NARC
and their Affiliates), or (B) the proceeds of such sale or liquidation
distributable to the Noteholders are sufficient to discharge in full
all amounts then due and unpaid upon the Notes for principal and
interest, or (C) the Indenture Trustee determines that the Trust Estate
may not continue to provide sufficient funds on an ongoing basis to
make all payments of principal of and interest on the Notes as they
would have become due if the Notes had not been declared due and
payable, and the Indenture Trustee obtains the consent of Holders of a
66 2/3% of the Outstanding Amount of the Notes, voting as a single
class (but excluding for purposes of such vote all Notes held or
beneficially owned by NMAC, NARC or any of their Affiliates, unless at
such time all of the Notes are held or beneficially owned by NMAC, NARC
and their Affiliates). In determining such sufficiency or insufficiency
with respect to clause (B) and (C), the Indenture Trustee may, but need
not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility
of such proposed action and as to the sufficiency of the Trust Estate
for such purpose.
(d) The Indenture Trustee may fix a record date and payment date for
any payment to Noteholders pursuant to this Section. At least 15 days before
such record date, the Issuer shall mail to each Noteholder and the Indenture
Trustee a notice that states the related record date, payment date and amount to
be paid.
SECTION 5.05 Optional Preservation of the Receivables. If the Notes
have been declared to be due and payable under Section 5.02 following an Event
of Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, unless otherwise directed by the Holders of
at least a majority of the Outstanding Amount of the Notes, voting as a single
class (excluding from such action and calculation any Notes held by NMAC, NARC
or any of their Affiliates, unless at such time all of the Notes are held of
record or beneficially owned by NARC, NMAC or any of their Affiliates), but need
not, elect to maintain possession of the Trust Estate and direct the Issuer,
Servicer and Administrator not to take steps to liquidate the Receivables. It is
the desire of the parties hereto and the Noteholders that there be at all times
sufficient funds for the payment of principal of and interest on the Notes, and
the Indenture Trustee shall take such desire into account when determining
whether or not to maintain possession of the Trust Estate. In determining
whether to maintain possession
30
<PAGE> 38
of the Trust Estate, the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
SECTION 5.06 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder unless such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default, and:
(a) the Event of Default arises from the Servicer's failure to remit
payments when due; or
(b) the Holders of not less than 25% of the Outstanding Amount of the
Notes, voting as a single class (excluding for such purpose the outstanding
principal amount of any Notes held of record or beneficially owned by NARC, NMAC
or any of their Affiliates, unless at such time all of the Notes are held of
record or beneficially owned by NARC, NMAC or any of their Affiliates) have made
written request to the Indenture Trustee to institute such Proceeding in respect
of such Event of Default in its own name as Indenture Trustee hereunder and have
offered to the Indenture Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in complying with such request and the
Indenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute such Proceedings.
It is understood and intended that no one or more Holders of Notes
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note and in this
Indenture (in each case with reference to the calculations to be made pursuant
to the Sale and Servicing Agreement) and to institute suit for the enforcement
of any such payment, and such right shall not be impaired without the consent of
such Holder.
SECTION 5.08 Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding,
31
<PAGE> 39
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
SECTION 5.09 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
Outstanding Amount of the Notes, voting as a single class (excluding for such
purpose the outstanding principal amount of any Notes held of record or
beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time
all of the Notes are held of record or beneficially owned by NARC, NMAC or any
of their Affiliates), shall have the right to direct the time, method and place
of conducting any Proceeding for any remedy available to the Indenture Trustee
with respect to the Notes or exercising any trust or power conferred on the
Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(b) any direction to the Indenture Trustee to sell or liquidate the
Trust Estate shall be by Holders of Notes representing not less than the
applicable percentage of the Outstanding Amount of the Notes set forth in
Section 5.04(c)(iv); and
(c) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.01, the Indenture Trustee need not take any action that it
determines might involve it in liability or might materially adversely affect
the rights of any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02 or the
liquidation or sale of the Trust Estate pursuant to Section 5.04, the Holders of
a majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purposes the outstanding principal amount of any Notes held
of record or beneficially owned by NMAC, NARC or any of their
32
<PAGE> 40
Affiliates, unless at such time all of the Notes are held of record or
beneficially owned by NARC, NMAC or any of their Affiliates) may waive any past
Default or Event of Default and its consequences except a Default or Event of
Default in (a) the deposit of collections or other required amounts, (b) any
required payment from amounts held in Accounts in respect of amounts due on the
Notes, (c) payment of principal or interest on the Notes, or (d) an Event of
Default in respect of a covenant or provision hereof that cannot be modified or
amended without the consent of the Holder of each Note. In the case of any such
waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall be
restored to their former positions and rights hereunder, respectively.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note or Note Owner by such Holder's acceptance of
such Note or beneficial interest therein, as the case may be, shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or a group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes, (c) any suit instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture.
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Trust Estate or upon any
33
<PAGE> 41
of the assets of the Issuer. Any money or property collected by the Indenture
Trustee shall be applied in accordance with Section 5.04(a).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer or to each other under or in connection with the Sale
and Servicing Agreement or by the Seller of its remedies under or in connection
with the Purchase Agreement, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement or the Purchase Agreement to the extent
and in the manner directed by the Indenture Trustee, including the transmission
of notices of default on the part of the Seller or the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Servicer of each of their respective
obligations under the Sale and Servicing Agreement or the Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in writing
or by telephone, confirmed in writing promptly thereafter) of the Holders of a
majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purposes the outstanding principal amount of any Notes held
of record or beneficially owned by NMAC, NARC or any of their Affiliates, unless
at such time all of the Notes are held of record or beneficially owned by NARC,
NMAC or any of their Affiliates), shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Seller or the Servicer under or
in connection with the Sale and Servicing Agreement or the Purchase Agreement,
or against the Administrator under the Administration Agreement, including the
right or power to take any action to compel or secure performance or observance
by the Seller, the Servicer or the Administrator, of each of their obligations
to the Issuer thereunder and to give any consent, request, notice, direction,
approval, extension, or waiver thereunder and any right of the Issuer to take
such action shall be suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.01 Duties of Indenture Trustee. The Indenture Trustee, both
prior to and after the occurrence of a Servicer Default under the Sale and
Servicing Agreement, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture.
(a) The Indenture Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Indenture Trustee that shall be specifically
required to be furnished pursuant to any provision of this Indenture, shall
examine them to determine whether they conform on their face to the requirements
of this Indenture.
34
<PAGE> 42
(b) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misfeasance; provided,
however, that:
(i) the duties and obligations of the Indenture Trustee shall
be determined solely by the express provisions of this Indenture, the
Indenture Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, no implied covenants or obligations shall be read into this
Indenture against the Indenture Trustee, the permissive right of the
Indenture Trustee to do things enumerated in this Indenture shall not
be construed as a duty and, in the absence of bad faith on the part of
the Indenture Trustee, the Indenture Trustee may conclusively rely, as
to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Indenture Trustee and conforming on their face to the requirements of
this Indenture;
(ii) the Indenture Trustee shall not be personally liable for
an error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Indenture Trustee was negligent in
performing its duties in accordance with the terms of this Indenture;
and
(iii) the Indenture Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be taken in
good faith in accordance with the direction of (i) the Holders of at
least a majority of the Outstanding Amount of the Notes, voting as a
single class (excluding for such purposes the outstanding principal
amount of any Notes held of record or beneficially owned by NARC, NMAC
or any of their Affiliates, unless at such time all of the Notes are
held of record or beneficially owned by NARC, NMAC or any of their
Affiliates), relating to the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee
under this Indenture.
(c) The Indenture Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties under this Indenture, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) All information obtained by the Indenture Trustee regarding the
Obligors and the Receivables contained in the Trust, whether upon the exercise
of its rights under this Indenture or otherwise, shall be maintained by the
Indenture Trustee in confidence and shall not be disclosed to any other Person,
unless such disclosure is required by any applicable law or regulation or
pursuant to subpoena.
(e) If (i) pursuant to Section 3.02 of the Sale and Servicing
Agreement, a Responsible Officer of the Indenture Trustee discovers that a
representation or warranty with respect to a Receivable was incorrect as of the
time specified with respect to such representation and warranty and such
incorrectness materially and adversely affects such Receivable, or (ii) pursuant
to Section 4.06 of the Sale and Servicing Agreement, a Responsible Officer of
the
35
<PAGE> 43
Indenture Trustee discovers that a covenant of the Servicer has been breached
with respect to a Receivable that would materially and adversely affect such
Receivable, the Indenture Trustee shall give prompt written notice to the
Servicer and the Owner Trustee of such incorrectness.
SECTION 6.02 Rights of Indenture Trustee.
(a) Except as otherwise provided in Section 6.01:
(i) the Indenture Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of an authorized signatory, certificate of
auditors or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, appraisal, bond or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(ii) the Indenture Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it
under this Indenture in good faith and in accordance with such Opinion
of Counsel;
(iii) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture or
the Sale and Servicing Agreement, or to institute, conduct or defend
any litigation under this Indenture, or in relation to this Indenture
or the Sale and Servicing Agreement, at the request, order or direction
of any of the Noteholders pursuant to the provisions of this Indenture
or the Sale and Servicing Agreement, unless such Noteholders shall have
offered to the Indenture Trustee reasonable security or indemnity
against the costs, expenses and liabilities that may be incurred
therein or thereby;
(iv) the Indenture Trustee shall not be personally liable for
any action taken, suffered or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(v) the Indenture Trustee shall not be bound to recalculate,
reverify, or make any investigation into the facts of matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Notes
evidencing not less than 25% of the aggregate Outstanding Amount of the
Notes; provided, however, that if the payment within a reasonable time
to the Indenture Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the
opinion of the Indenture Trustee, not reasonably assured to the
Indenture Trustee by the security afforded to it by the terms of this
Indenture, the Indenture Trustee may require reasonable indemnity
against such cost, expense or liability as a condition to so
proceeding; the reasonable expense of every such examination shall be
paid by the Administrator or, if paid by the Indenture Trustee, shall
be reimbursed by the Administrator upon demand; and nothing in this
clause shall derogate from the obligation of the Servicer to observe
any applicable law prohibiting disclosure of information regarding the
Obligors; and
36
<PAGE> 44
(vi) the Indenture Trustee may execute any of the trusts or
powers under this Indenture or perform any duties under this Indenture
either directly or by or through agents or attorneys or a custodian.
(b) No Noteholder will have any right to institute any proceeding with
respect to this Indenture except upon satisfying the conditions set forth in
Section 5.06.
SECTION 6.03 Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the Holder,
beneficial owner or pledgee of Notes and may otherwise deal with the Issuer or
its Affiliates with the same rights it would have if it were not Indenture
Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may
do the same with like rights. However, in so doing the Indenture Trustee must
comply with Sections 6.11 and 6.12.
SECTION 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes (other than the execution by the Indenture Trustee on behalf of the
Trust of, and the certificate of authentication on, the Notes), or of the
Certificates. The Indenture Trustee shall have no obligation to perform any of
the duties of the Servicer or the Administrator unless explicitly set forth in
this Indenture. The Indenture Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability of
the Notes or any Receivable, any ownership interest in any Financed Vehicle, or
the maintenance of any such ownership interest, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Noteholders under this Indenture, including without limitation the validity
of the assignment of the Receivables to the Trust or of any intervening
assignment; the existence, condition, location and ownership of any Receivable
or Financed Vehicle; the existence and enforceability of any physical damage or
credit life or credit disability insurance; the existence and contents of any
retail installment sales contract or any computer or other record thereof; the
completeness of any retail installment sales contract; the performance or
enforcement of any retail installment sales contract; the compliance by the
Issuer with any covenant or the breach by the Issuer, Seller or Servicer of any
warranty or representation made under this Indenture or in any Basic Document or
other related document and the accuracy of any such warranty or representation
prior to the Indenture Trustee's receipt of notice or other discovery of any
noncompliance therewith or any breach thereof; the acts or omissions of the
Issuer, Seller or the Servicer; or any action by the Indenture Trustee taken at
the instruction of the Servicer, provided, however, that the foregoing shall not
relieve the Indenture Trustee of its obligation to perform its duties under this
Indenture. Except with respect to a claim based on the failure of the Indenture
Trustee to perform its duties under this Indenture or based on the Indenture
Trustee's willful misconduct, bad faith or negligence, no recourse shall be had
for any claim based on any provision of this Indenture, the Notes or
Certificates or assignment thereof against the institution serving as the
Indenture Trustee in its individual capacity. The Indenture Trustee shall not
have any personal obligation, liability or duty whatsoever to any Noteholder or
any other Person with respect to any such claim, and any such claim shall be
asserted solely against the Trust or any indemnitor who shall furnish indemnity
as provided in this Indenture. The Indenture Trustee shall not be accountable
for the use or application by the Issuer of any of the Notes or of the proceeds
of such Notes, or for the use or application of any funds paid to the Servicer
in respect of the Notes.
37
<PAGE> 45
SECTION 6.05 Notice of Defaults. If a Responsible Officer of the
Indenture Trustee knows that a Default has occurred and is continuing, the
Indenture Trustee shall mail to each Noteholder notice of such Default within 10
days of the occurrence thereof. Except in the case of a Default in payment of
principal of or interest on any Note, the Indenture Trustee may withhold such
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Noteholders.
SECTION 6.06 Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver or cause to be delivered annually to each Noteholder of
record such information as may be required to enable such holder to prepare its
federal and state income tax returns. The Indenture Trustee shall also deliver
or cause to be delivered annually to each Noteholder of record a report relating
to its eligibility and qualification to continue as Indenture Trustee under this
Indenture, any amounts advanced by it under this Indenture, the amount, interest
rate and maturity date of certain indebtedness owed by the Trust to such
Indenture Trustee, in its individual capacity, the property and funds physically
held by such Indenture Trustee in its capacity as such, and any action taken by
it that materially affects the Notes and that has not been previously reported.
SECTION 6.07 Compensation and Indemnity. The Issuer shall pay or shall
cause the Servicer to pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall reimburse or shall cause the Servicer to reimburse the Indenture Trustee
for all reasonable out-of-pocket expenses incurred or made by it, including
costs of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Indenture Trustee's agents, counsel, accountants and
experts. The Administrator shall indemnify or shall cause the Servicer to
indemnify the Indenture Trustee against any and all loss, liability or expense
(including reasonable attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder. The
Indenture Trustee shall notify the Administrator and the Servicer promptly of
any claim for which it may seek indemnity. Failure by the Indenture Trustee to
so notify the Administrator and the Servicer shall not relieve the Administrator
or the Servicer of its obligations hereunder. The Administrator shall defend or
shall cause the Servicer to defend any such claim, and the Indenture Trustee may
have separate counsel and the Administrator shall pay or shall cause the
Servicer to pay the fees and expenses of such counsel. Neither the Administrator
nor the Servicer need reimburse any expense or indemnify against any loss,
liability or expense incurred by the Indenture Trustee through the Indenture
Trustee's own willful misconduct, negligence or bad faith.
The Administrator's payment obligations to the Indenture Trustee
pursuant to this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.01(f) or (g) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
SECTION 6.08 Replacement of Indenture Trustee. The Indenture Trustee
may resign at any time by providing written notice of its resignation to the
Issuer. The Administrator may remove the Indenture Trustee if:
38
<PAGE> 46
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes legally or practically
incapable of fulfilling its duties hereunder.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Servicer
shall promptly appoint a successor Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.08.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, to the Servicer and to the
Administrator. Thereupon the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under this Indenture.
The successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 30 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Administrator or the Holders of a majority in Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may at any time thereafter petition any court of competent
jurisdiction for the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under Section
6.07 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.09 Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another Person, the
resulting, surviving or transferee corporation without any further act shall be
the successor Indenture Trustee if such surviving Person or transferee
corporation or banking shall be otherwise qualified and eligible under Section
6.11. The Indenture Trustee shall provide the Issuer, the Servicer and the
Rating Agencies reasonable prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall
39
<PAGE> 47
have been authenticated but not delivered, any such successor to the Indenture
Trustee may adopt the certificate of authentication of any predecessor trustee,
and deliver such Notes so authenticated; and in case at that time any of the
Notes shall not have been authenticated, any successor to the Indenture Trustee
may authenticate such Notes either in the name of any predecessor hereunder or
in the name of the successor to the Indenture Trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Indenture Trustee shall
have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders,
such title to the Trust Estate, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a trustee under Section 6.11 and no notice to Noteholders of the appointment of
any co-trustee or separate trustee shall be required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon such separate trustee or co-trustee shall be conferred or
imposed upon and exercised or performed by the Indenture Trustee and
such separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act separately
without the Indenture Trustee joining in and/or directing such act),
except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Indenture Trustee
shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall
40
<PAGE> 48
refer to this Agreement and the conditions of this Article VI. Each separate
trustee and co-trustee, upon its acceptance of the trusts thereupon conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Indenture Trustee or separately, as may be
provided therein, subject to all the provisions of this Indenture, including
every provision of this Indenture relating to the conduct of, affecting the
liability of, or affording protection to, the Indenture Trustee. Every such
instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall
at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it or its
parent shall have a long-term debt rating of "Baa3" or better by Moody's or
shall otherwise be acceptable to Moody's. The Indenture Trustee shall comply
with TIA Section 310(b), including the optional provision permitted by the
second sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 Acknowledgement by Indenture Trustee of its Obligations
Under the Sale and Servicing Agreement. The Indenture Trustee hereby agrees and
consents to the provisions of the Sale and Servicing Agreement applicable to it
(including, without limitation, Sections 5.06, 5.07, 5.09 thereof) and agrees to
be bound by such provisions.
ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.01 Note Registrar To Furnish Names and Addresses of
Noteholders. The Note Registrar shall furnish or cause to be furnished to the
Indenture Trustee, the Owner Trustee, the Servicer or the Administrator, within
15 days after receipt by the Note Registrar of a written request therefrom, a
list of the names and addresses of the Noteholders of any Class as of the most
recent Record Date. If three or more Noteholders, or one or more Holders
evidencing not less than 25% of the Outstanding Amount of the Notes (hereinafter
referred to as "Applicants"), apply in writing to the Indenture Trustee, and
such application states that the
41
<PAGE> 49
Applicants desire to communicate with other Noteholders with respect to their
rights under this Indenture or under the Notes and such application is
accompanied by a copy of the communication that such Applicants propose to
transmit, then the Indenture Trustee shall, within five Business Days after the
receipt of such application, afford such Applicants access, during normal
business hours, to the current list of Noteholders. Such Indenture Trustee may
elect not to afford the requesting Noteholders access to the list of Noteholders
if it agrees to mail the desired communication by proxy, on behalf of and at the
expense of the requesting Noteholders, to all Noteholders. Every Noteholder, by
receiving and holding a Note, agrees with the Indenture Trustee and the Issuer
that none of the Indenture Trustee, the Owner Trustee, the Issuer, the Servicer
or the Administrator shall be held accountable by reason of the disclosure of
any such information as to the names and addresses of the Noteholders under this
Indenture, regardless of the source from which such information was derived.
If the Indenture Trustee shall cease to be the Note Registrar, then
thereafter the Administrator will furnish or cause to be furnished to the
Indenture Trustee not more than five days after the most recent Record Date or
at such other times as the Indenture Trustee reasonably may request in writing,
a list, in such form as the Indenture Trustee reasonably may require, of the
names and addresses of the Holders of Notes as of such Record Date.
SECTION 7.02 Preservation of Information; Communications to
Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 3.12(c).
SECTION 7.03 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) that the Issuer
may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time
by the Commission such additional information, documents and reports
with respect to compliance by the Issuer with the
42
<PAGE> 50
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses (i) and
(ii) of this Section 7.03(a) and by rules and regulations prescribed
from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on March 31 of each year.
SECTION 7.04 Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after each anniversary of the Closing Date beginning with
January 27, 2001, the Indenture Trustee shall mail to each Noteholder as
required by TIA Section 313(c) a brief report dated as of such date that
complies with TIA Section 313(a). The Indenture Trustee also shall comply with
TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall
be filed by the Indenture Trustee with the Commission and each stock exchange,
if any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.01 Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.02 Accounts.
(a) On or prior to the Closing Date, the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee, for
the benefit of the Noteholders and, to the extent set forth herein, the
Certificateholders, the Collection Account as provided in Section 5.01 of the
Sale and Servicing Agreement.
(b) On or prior to the Closing Date, the Issuer will cause the Seller
to, pursuant to the Securities Account Control Agreement, establish and maintain
with the Indenture Trustee, for the
43
<PAGE> 51
benefit of the Noteholders, the Reserve Account and the Yield Supplement Account
as provided in Section 5.07 and Section 5.08, respectively, of the Sale and
Servicing Agreement.
(c) The Indenture Trustee shall transfer all amounts remaining on
deposit in the Collection Account on the Distribution Date on which the Notes of
all Classes have been paid in full (or substantially all of the Trust Estate is
otherwise released from the lien of this Indenture) to the Trust Collection
Account and shall take all necessary or appropriate actions to transfer all of
its right, title and interest in the Collection Account, all funds or
investments held therein and all proceeds thereof, whether or not on behalf of
the Securityholders, to the Owner Trustee for the benefit of the
Certificateholders, subject to the limitations set forth herein with respect to
amounts held for payment to Noteholders that do not promptly deliver a Note for
payment on such Distribution Date.
SECTION 8.03 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Collection Account shall be
invested in Eligible Investments and reinvested by the Indenture Trustee at the
written direction of the Servicer, subject to the provisions of Section 5.01 of
the Sale and Servicing Agreement. All income or other gain from investments of
moneys deposited in the Collection Account shall be deposited by the Indenture
Trustee in the Collection Account and paid to the Servicer as servicing
compensation on each Distribution Date, and any loss resulting from such
investments shall be charged to such account. The Servicer will not direct the
Indenture Trustee, and the Issuer shall cause the Servicer not, to make any
investment of any funds or to sell any investment held in the Collection Account
unless the security interest Granted and perfected in such account will continue
to be perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to the Indenture Trustee to make any such investment or sale, if requested by
the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an
Opinion of Counsel, acceptable to the Indenture Trustee, to such effect.
(b) So long as no Default or Event of Default shall have occurred and
be continuing, all or a portion of the funds in the Reserve Account and the
Yield Supplement Account shall be invested in Eligible Investments and
reinvested by the Indenture Trustee at the written direction of the Servicer,
subject to the provisions of Section 5.07 and Section 5.08, respectively, of the
Sale and Servicing Agreement and the provisions of the Securities Account
Control Agreement. All income or other gain from investments of moneys deposited
in the Reserve Account shall be paid by the Indenture Trustee to the Seller on
each Distribution Date. All income or other gain from investments of moneys
deposited in the Yield Supplement Account shall be deposited into the Collection
Account on each Distribution Date. Subject to the right of the Indenture Trustee
to make withdrawals therefrom, as directed by the Servicer, for the purposes and
in the amounts set forth in Section 5.06 of the Sale and Servicing Agreement,
the Reserve Account and the Yield Supplement Account and all funds held therein
shall be the property of the Seller and not the property of the Trust, the Owner
Trustee or the Indenture Trustee. The Seller will grant to the Indenture
Trustee, for the benefit of the Noteholders, a security interest in all funds
(including Eligible Investments) in the Reserve Account and the Yield Supplement
Account (including the Reserve Account Initial Deposit and the Initial Yield
Supplement Amount) and the proceeds thereof, and the Indenture Trustee shall
have all of the rights of a secured party
44
<PAGE> 52
under the UCC with respect thereto; provided that all income from the investment
of funds in the Reserve Account, and the right to receive such income are
retained by the Seller and are not transferred, assigned or otherwise conveyed
hereunder. The Servicer will not direct the Indenture Trustee to make any
investment of any funds or to sell any investment held in the Reserve Account or
the Yield Supplement Account unless the security interest granted and perfected
in such account will continue to be perfected in such investment or the proceeds
of such sale, in either case without any further action by any Person, and, in
connection with any direction to the Indenture Trustee to make any such
investment or sale, if requested by the Indenture Trustee, the Servicer shall
deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the
Indenture Trustee, to such effect.
(c) Subject to Section 6.01(c), the Indenture Trustee shall not in any
way be held liable by reason of any insufficiency in the Collection Account, the
Reserve Account or the Yield Supplement Account resulting from any loss on any
Eligible Investment included therein at the direction of the Servicer, except
for losses attributable to the Indenture Trustee's failure to make payments on
such Eligible Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with the terms
thereof.
(d) If (i) the Servicer shall have failed to give investment directions
for any funds on deposit in the Collection Account, the Reserve Account or the
Yield Supplement Account, to the Indenture Trustee by 5:00 p.m. Eastern Time (or
such other time as may be agreed by the Servicer and Indenture Trustee) on any
Business Day or (ii) a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been declared
due and payable pursuant to Section 5.02 or (iii) if such Notes shall have been
declared due and payable following an Event of Default, amounts collected or
receivable from the Trust Estate are being applied in accordance with Section
5.05 as if there had not been such a declaration, then the Indenture Trustee
shall, to the fullest extent practicable, invest and reinvest funds in the
Accounts in one or more Eligible Investments specified in clauses (i), (iv) or
(vi) of the definition of Eligible Investments provided in the Sale and
Servicing Agreement. If the Indenture Trustee invests and reinvests funds in the
Reserve Account or the Yield Supplement Account pursuant to clause (ii) or
clause (iii) above, the Indenture Trustee shall issue a prohibition notice to
the securities intermediary as provided in the Securities Account Control
Agreement. If the Default or Event of Default that caused the Indenture Trustee
to assume control over the investment of funds in the Reserve Account and Yield
Supplement Account has been waived and the acceleration, if any, of the Notes
has been rescinded, the Indenture Trustee shall issue a rescission of
prohibition notice to the securities intermediary as provided in the Securities
Account Control Agreement.
SECTION 8.04 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's
45
<PAGE> 53
authority, inquire into the satisfaction of any conditions precedent or see to
the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Trust Estate that secured the
Notes from the lien of this Indenture and release to or to the order of the
Issuer, or, in the case of the Reserve Account or the Yield Supplement Account,
to the Seller, any funds entitled thereto then on deposit in the Collection
Account, the Reserve Account and the Yield Supplement Account, as the case may
be. The Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.04(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate and (if required by the TIA) Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) meeting the
applicable requirements of Section 11.01.
SECTION 8.05 Release of Receivables Upon Purchase by the Seller or the
Servicer. (a) Upon repurchase of any Receivable by the Seller pursuant to
Section 3.02 of the Sale and Servicing Agreement or any purchase of any
Receivable by the Servicer pursuant to Section 4.06 or Section 9.01 of the Sale
and Servicing Agreement, the Indenture Trustee, on behalf of the Noteholders,
shall, without further action, be deemed to release from the Lien of this
Indenture such repurchased Receivable, all monies due or to become due with
respect thereto and all proceeds thereof and the other property with respect to
such Receivable, and all security and any documents relating thereto, and the
Seller or the Servicer, as applicable, shall thereupon own each such Receivable,
and all such related security and documents, free of any further obligation to
the Issuer, the Indenture Trustee or the Noteholders with respect thereto.
(b) The Indenture Trustee shall execute such documents and instruments
and take such other actions as shall be reasonably requested by the Seller or
the Servicer, as the case may be, to effect the release of such Receivable
pursuant hereto and the assignment of such Receivable by the Issuer pursuant to
Section 9.02 of the Sale and Servicing Agreement.
SECTION 8.06 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days notice when requested by the Issuer to take any action pursuant
to Section 8.04(a), accompanied by copies of any instruments involved, and the
Indenture Trustee shall also require, except in connection with any action
contemplated by Section 8.04(b), as a condition to such action, an Opinion of
Counsel, in form and substance satisfactory to the Indenture Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Trust Estate. Counsel rendering any such opinion may rely, without
independent investigation, on the accuracy and validity of any certificate or
other instrument delivered to the Indenture Trustee in connection with any such
action.
46
<PAGE> 54
ARTICLE IX
Supplemental Indentures
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior
notice to the Rating Agencies, the Issuer and the Indenture Trustee, when
authorized by an Issuer Order, at any time and from time to time, may enter into
one or more indentures supplemental hereto (which shall conform to the
provisions of the TIA as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or to better assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject
to the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer
contained herein and in the Notes;
(iii) to add to the covenants of the Issuer, for the benefit
of the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture that may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental indenture
to the extent such action shall not adversely affect the interests of
the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as
shall be necessary to facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of
Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes, enter
into an indenture or indentures
47
<PAGE> 55
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that such action shall not materially and
adversely affect the interests of any Noteholder.
SECTION 9.02 Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Holders of
a majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purpose the outstanding principal amount of any Notes held
of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless
at such time all of the Notes are held of record or beneficially owned by NARC,
NMAC or any of their Affiliates), by Action of such Holders delivered to the
Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Note affected thereby:
(a) change the due date of any installment of principal of or interest
on any Note, or reduce the principal amount thereof, the Interest Rate thereon
or redemption price therefor, or change any place of payment where, or the coin
or currency in which, any Note or the interest thereon is payable;
(b) impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof;
(c) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(d) modify or alter the provisions of the proviso to the definition of
the term "Outstanding";
(e) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to sell or liquidate the Trust Estate
if the proceeds of that sale would be insufficient to pay the principal amount
of and accrued but unpaid interest on the Notes pursuant to Section 5.04(c)(iv);
(f) reduce any percentage required to amend the sections of the
Indenture that specify the applicable percentage of Outstanding Amount of the
Notes necessary to amend the Indenture; or
(g) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Trust Estate or,
except as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Holder of
any Note of the security provided by the lien of this Indenture.
48
<PAGE> 56
The Indenture Trustee may in its discretion determine whether or not
any Notes would be adversely affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
It shall not be necessary for any Action of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Action shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel from external counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and shall be deemed to be modified and amended in accordance therewith
with respect to the Notes affected thereby, and the respective rights,
limitations of rights, obligations, duties, liabilities and immunities under
this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 9.05 Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.06 Reference in Notes to Supplemental Indentures. Notes authenticated
and delivered after the execution of any supplemental indenture pursuant to this
Article IX may, and if required by the Indenture Trustee shall, bear a notation
in form approved by the Indenture Trustee as to any matter provided for in such
supplemental indenture. If the Issuer or the Indenture Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Indenture
Trustee and the Issuer, to any such supplemental indenture may be prepared
49
<PAGE> 57
and executed by the Issuer and authenticated and delivered by the Indenture
Trustee in exchange for Outstanding Notes.
ARTICLE X
Release
SECTION 10.01 Optional Purchase of All Receivables. If the Servicer or
any successor to the Servicer shall notify the Owner Trustee and the Indenture
Trustee of its intention to exercise the option granted to it in the Sale and
Servicing Agreement to repurchase the outstanding Receivables primarily
comprising the Owner Trust Estate, then the Owner Trustee and the Indenture
Trustee shall give written notice thereof to each Securityholder and the Rating
Agencies as soon as practicable after their receipt of notice from the Servicer.
Upon deposit by the Servicer or any successor to the Servicer of the amount
necessary to effect such purchase of the corpus of the Owner Trust Estate, the
Indenture Trustee shall make the final distributions to the Noteholders and
Certificateholders as set forth in Section 5.06 of the Sale and Servicing
Agreement and shall promptly transfer all of its right, title and interest in
and to any amounts or investments remaining on deposit in the Collection Account
to the Owner Trustee, and in the Reserve Account and the Yield Supplement
Account to the Seller (in any event excluding any portion thereof necessary to
make distributions to Noteholders described in Section 3.03), and release from
the lien of this Indenture all of the remaining Collateral. The Indenture
Trustee shall execute, deliver and file all agreements, certificates,
instruments or other documents necessary or reasonably requested by the Issuer
in order to effect such release and the transfer to the Issuer of the
Collateral.
ARTICLE XI
Miscellaneous
SECTION 11.01 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture
Trustee to take any action under any provision of this Indenture, the Issuer
shall, upon written request therefor from the Indenture Trustee, furnish to the
Indenture Trustee (i) an Officer's Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with, (ii) an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, and (iii) (if required by the TIA) an Independent Certificate
from a firm of certified public accountants meeting the applicable requirements
of this Section, except that, in the case of any such application or request as
to which the furnishing of such documents is specifically required by any
provision of this Indenture, no such written request from the Indenture Trustee
need be furnished (and only such expressly required documents need be delivered
in connection therewith).
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition
and the definitions herein relating thereto;
50
<PAGE> 58
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(c) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for
the release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such deposit) to the Issuer of the Collateral or
other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signatory thereof as to the matters described in clause
(i) above, the Issuer shall also deliver to the Indenture Trustee an
Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such
securities made the basis of any such withdrawal or release since the
commencement of the then-current calendar year of the Issuer, as set
forth in the certificates delivered pursuant to clause (i) above and
this clause (ii), is 10% or more of the Outstanding Amount of the
Notes, but such a certificate need not be furnished with respect to any
securities so deposited, if the fair value thereof to the Issuer as set
forth in the related Officer's Certificate is less than $25,000 or less
than one percent of the Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of each person signing such certificate as to the fair value
(within 90 days of such release) of the property or securities proposed
to be released and stating that in the opinion of such person the
proposed release will not impair the security under this Indenture in
contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officer's Certificate certifying or stating the
opinion of any signatory thereof as to the matters described in clause
(iii) above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property, other than property
as contemplated by clause (v) below or securities released from the
lien of this Indenture since the commencement of the then-current
calendar year, as set forth in the certificates required by clause
(iii) above and this clause (iv), equals 10% or more of the Outstanding
Amount of the Notes, but
51
<PAGE> 59
such certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officer's Certificate is less than $25,000 or less than one
percent of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.09 or any other provision of
this Section, the Issuer may, without compliance with the requirements
of the other provisions of this Section, (A) collect, liquidate, sell
or otherwise dispose of Receivables and Financed Vehicles as and to the
extent permitted or required by the Basic Documents and (B) make cash
payments out of the Accounts as and to the extent permitted or required
by the Basic Documents so long as the Issuer shall deliver to the
Indenture Trustee every six months, commencing July 30, 2000, an
Officer's Certificate of the Issuer stating that all such dispositions
of Collateral that occurred during the preceding six calendar months
were in the ordinary course of the Issuer's business and that the
proceeds thereof were applied in accordance with the Basic Documents.
SECTION 11.02 Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate of an
Authorized Officer or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Servicer, the Seller, the Issuer or the
Administrator, stating that the information with respect to such factual matters
is in the possession of the Servicer, the Seller, the Issuer or the
Administrator, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not,
52
<PAGE> 60
however, be construed to affect the Indenture Trustee's right to rely upon the
truth and accuracy of any statement or opinion contained in any such document as
provided in Article VI.
SECTION 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Noteholders in person or by agents
duly appointed in writing; and except as herein otherwise expressly provided
such action shall become effective when such instrument or instruments are
delivered to the Indenture Trustee, and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Action" of the
Noteholders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Indenture Trustee and the Issuer, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Notes shall bind the Holder of every
Note issued upon the registration thereof or in exchange therefor or in lieu
thereof, in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Issuer in reliance thereon, whether or not notation of
such action is made upon such Note.
SECTION 11.04 Notices to Indenture Trustee, Issuer and Rating Agencies.
Any request, demand, authorization, direction, notice, consent, waiver or Action
of Noteholders or other documents provided or permitted by this Indenture shall
be in writing and if such request, demand, authorization, direction, notice,
consent, waiver or Action of Noteholders is to be made upon, given or furnished
to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, it shall
be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder, it shall
be sufficient for every purpose hereunder if in writing and mailed first-class,
postage prepaid to the Issuer addressed to: Nissan Auto Receivables 2000-A Owner
Trust, c/o Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Nissan Auto Receivables 2000-A
Owner Trust, with a copy to Nissan Motor Acceptance Corporation, 990 West 190th
Street, Torrance, California 90502, Attention: Secretary, or at any other
address previously furnished in writing to the Indenture Trustee by the Issuer
or the Administrator. The Issuer shall promptly transmit any notice received by
it from the Noteholders to the Indenture Trustee.
53
<PAGE> 61
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
Moody's, at the following address: Moody's Investors Service, Inc., ABS
Monitoring Department, 99 Church Street, New York, New York 10007, and (ii) in
the case of Standard & Poor's, at the following address: Standard & Poor's
Ratings Services, 55 Water Street, New York, New York 10041-0003, Attention:
Asset Backed Surveillance Department, or as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
SECTION 11.05 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default or
Event of Default.
SECTION 11.06 Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Holder of a Note providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such Holder,
that is different from the methods provided for in this Indenture for such
payments or notices. The Issuer will furnish to the Indenture Trustee a copy of
each such agreement and the Indenture Trustee will cause payments to be made and
notices to be given in accordance with such agreements.
SECTION 11.07 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
54
<PAGE> 62
The provisions of TIA Sections 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.08 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.09 Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Indenture Trustee in
this Indenture shall bind its successors, co-trustees and agents.
SECTION 11.10 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Indenture shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Indenture and shall
in no way affect the validity or enforceability of the other provisions of this
Indenture or of the Notes or the Certificates or the rights of the Holders
thereof.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Governing Law. This Indenture shall be governed by and
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.
SECTION 11.13 Counterparts. This Indenture may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original, and all of which shall constitute but one and the same
instrument.
SECTION 11.14 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.15 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or Certificates or under this Indenture or
any certificate or other writing delivered in
55
<PAGE> 63
connection herewith or therewith, against (i) the Indenture Trustee or the Owner
Trustee in its individual capacity, (ii) any Certificateholder or other owner of
a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director, employee or agent of the Indenture Trustee or the
Owner Trustee in its individual capacity, any Certificateholder or other owner
of a beneficial interest in the Issuer, the Owner Trustee or the Indenture
Trustee or of any successor or assign of the Indenture Trustee or the Owner
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Owner Trustee
have no such obligations in their individual capacity) and except that any such
partner, owner or beneficiary shall be fully liable, to the extent provided by
applicable law, for any unpaid consideration for stock, unpaid capital
contribution or failure to pay any installment or call owing to such entity. For
all purposes of this Indenture, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Article VI, VII and VIII of the
Trust Agreement.
SECTION 11.16 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time institute against the Seller or the Issuer, or
join in any institution against the Seller or the Issuer of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law,
in connection with any obligations relating to the Notes, the Certificates or
any of the Basic Documents.
SECTION 11.17 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause (at the expense of the requesting party) such books to be audited by
Independent certified public accountants, and to discuss the Issuer's affairs,
finances and accounts with the Issuer's officers, employees, and Independent
certified public accountants, all at such reasonable times and as often as may
be reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
56
<PAGE> 64
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ James P. Lawler
---------------------------
Name: James P. Lawler
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Marianna C. Stershic
---------------------------
Name: Marianna C. Stershic
Title: Assistant Vice President
S-1
<PAGE> 65
EXHIBIT A
(Form of Class A-1 Note, Class A-2 Note, Class A-3 Note, and Class A-4 Note)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR
GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO RECEIVABLES CORPORATION,
NISSAN MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR
CO., LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON
THIS NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON
DEPOSIT IN THE RESERVE ACCOUNT AND THE YIELD SUPPLEMENT ACCOUNT.
A-1
<PAGE> 66
No._____ $__________
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
CLASS [A-1][A-2][A-3][A-4] ___% ASSET BACKED NOTES
Nissan Auto Receivables 2000-A Owner Trust, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to ____________________,
or registered assigns, the principal sum of _______________ DOLLARS
($__________) payable on each Distribution Date in an aggregate amount, if any,
payable from the Collection Account in respect of the principal on the Class
[A-1][A-2][A-3][A-4] Notes pursuant to Section 3.01 of the Indenture dated as of
January 27, 2000 (the "Indenture"), between the Issuer and Norwest Bank
Minnesota, National Association, as Indenture Trustee (the "Indenture Trustee")
and Sections 5.06(c) and (d) of the Sale and Servicing Agreement dated as of
January 27, 2000 among the Issuer, NARC, as Seller, and NMAC, as Servicer (which
amounts shall be limited to the portion of Available Amounts specified in such
sections); provided, however, that the entire unpaid principal amount of this
Note shall be due and payable on the Distribution Date occurring in [________]
(the "Class [A-1][A-2][A-3][A-4] Final Scheduled Distribution Date").
Capitalized terms used but not defined herein have the meanings ascribed thereto
in the Indenture and the Sale and Servicing Agreement, as the case may be.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain limitations
contained in Section 3.01 of the Indenture. Interest on this Note will accrue
for each Distribution Date [from the Distribution Date during the calendar month
preceding such Distribution Date (or in the case of the first Distribution Date,
from the Closing Date)][during the period from, and including, the 15th day of
the preceding calendar month (or, in the case of the initial period, from and
including the Closing Date) to, but excluding, the 15th day of the month in
which such Distribution Date occurs]. Interest will be computed on the basis
specified in the Indenture for each Interest Period. Such principal of and
interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note is payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
A-2
<PAGE> 67
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by
the Indenture Trustee whose name appears below by manual signature, this Note
shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date:
-------------------
NISSAN AUTO RECEIVABLES 2000-A
OWNER TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee under the
Trust Agreement
By:
-----------------------------------
Authorized Signatory
A-3
<PAGE> 68
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date:
---------------------
NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION,
not in its individual capacity but
solely as Indenture Trustee
By:
------------------------------------
Authorized Signatory
A-4
<PAGE> 69
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as [____]% Asset Backed Notes, Class [A-1][A-2][A-3][A-4] (herein
called the "Class [A-1][A-2][A-3][A-4] Notes"), all issued under the Indenture,
to which Indentures and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Class
[A-1][A-2][A-3][A-4] Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture.
Principal of the Class [A-1][A-2][A-3][A-4] Notes will be payable on
each Distribution Date in an amount described in the Indenture. "Distribution
Date" means the fifteenth day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing February 15, 2000.
Notwithstanding the foregoing, the entire unpaid principal amount of
the Notes shall be due and payable on the date on which an Event of Default
shall have occurred and be continuing and the Indenture Trustee or the Holders
of a majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purpose the outstanding principal amount of any Notes held
of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless
at such time all of the Notes are held of record or beneficially owned by NARC,
NMAC or any of their Affiliates), have declared the Notes to be immediately due
and payable in the manner provided in Section 5.02 of the Indenture or following
the exercise by the Servicer of its option to purchase the Receivables pursuant
to Section 9.01 of the Sale and Servicing Agreement and Section 10.01 of the
Indenture. All principal payments on the Class [A-1][A-2][A-3][A-4] Notes shall
be made pro rata to the Class [A-1][A-2][A-3][A-4] Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be paid to the Person in whose name of such
Note (or one or more Predecessor Notes) is registered on the Record Date. With
respect to Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payments will be
made by wire transfer in immediately available funds to the account designated
by such nominee, except for the final installment of principal payable with
respect to such Note on a Distribution Date or on the applicable Final Scheduled
Distribution Date, which shall be payable as provided below. Such payment will
be made by check mailed first-class postage prepaid to such Person's address as
it appears on the Note Register on such Record Date or by wire transfer to the
account specified by the registered holder of any Note with a face amount of at
least $10,000,000. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) effected by any payments made on any Distribution
Date shall be binding upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, will notify the Person who
was the Registered Holder hereof as of the Record Date preceding such
Distribution Date by notice mailed or transmitted by
A-5
<PAGE> 70
facsimile prior to such Distribution Date, and the amount then due and payable
shall be payable only upon presentation and surrender of this Note at the
Indenture Trustee's principal Corporate Trust Office or at the office of the
Indenture Trustee's agent appointed for such purposes located in The City of New
York.
The Issuer shall pay interest on overdue installments of interest at
the Class [A-1][A-2][A-3][A-4] Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee as set forth in Section 2.04 of the Indenture, and thereupon
one or more new Notes of authorized denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any owner of a beneficial interest in the Issuer or
(iii) any partner, owner, beneficiary, agent, officer, director or employee of
the Indenture Trustee or the Owner Trustee in its individual capacity, any
holder of a beneficial interest in the Issuer, the Owner Trustee or the
Indenture Trustee or of any successor or assign of the Indenture Trustee or the
Owner Trustee in its individual capacity, except as any such Person may have
expressly agreed (it being understood that the Indenture Trustee and the Owner
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
The Holder of this Note by its acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees by
accepting the benefits of the Indenture that such Noteholder or Note Owner will
not at any time institute against the Seller or the Issuer, or join in any
institution against the Seller or the Issuer of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under any United States
A-6
<PAGE> 71
federal or state bankruptcy or similar law in connection with any obligations
relating to the Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with
the intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and each
Note Owner by acceptance of a beneficial interest in a Note), agrees to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, with prior notice to the Rating Agencies and with the consent of the
Holders of a majority of the Outstanding Amount of the Notes, voting as a single
class (excluding for such purpose the outstanding principal amount of any Notes
held of record or beneficially owned by NARC, NMAC or any of their Affiliates,
unless at such time all of the Notes are held of record or beneficially owned by
NARC, NMAC or any of their Affiliates). Section 5.12 of the Indenture also
contains provisions permitting the Holders of a majority of the Outstanding
Amount of the Notes, voting as a single class (excluding for such purpose the
outstanding principal amount of any Notes held of record or beneficially owned
by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes
are held of record or beneficially owned by NARC, NMAC or any of their
Affiliates), on behalf of the Holders of all the Notes, to waive compliance by
the Issuer with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note (or any one or more Predecessor Notes) shall be conclusive
and binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof whether or not notation of such consent or waiver is made upon this
Note. The Indenture also permits the Indenture Trustee to amend or waive certain
terms and conditions set forth in the Indenture without the consent of Holders
of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
A-7
<PAGE> 72
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture 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 and thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
A-8
<PAGE> 73
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:_______
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
- --------------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated: */
---------------------
Signature Guaranteed:
*/
---------------------
*/ NOTICE: The signature to this assignment must correspond with the
name of the registered owner as it appears on the face of the within Note in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
<PAGE> 1
EXHIBIT 4.3
PURCHASE AGREEMENT
This PURCHASE AGREEMENT is made as of this 27th day of
January, 2000, by and between NISSAN MOTOR ACCEPTANCE CORPORATION, a California
corporation (the "Seller"), having its principal executive office at 990 W.
190th Street, Torrance, California 90502, and NISSAN AUTO RECEIVABLES
CORPORATION, a Delaware corporation (the "Purchaser"), having its principal
executive office at 990 W. 190th Street, Torrance, California 90502.
WHEREAS, in the regular course of its business, the Seller
purchases certain motor vehicle retail installment sale contracts secured by new
and used automobiles and light duty trucks from motor vehicle dealers.
WHEREAS, the Seller and the Purchaser wish to set forth the
terms pursuant to which the Receivables (as hereinafter defined) are to be sold
by the Seller to the Purchaser, which Receivables will be transferred by the
Purchaser pursuant to the Sale and Servicing Agreement (as hereinafter defined),
to the NISSAN AUTO RECEIVABLES 2000-A OWNER 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 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.
<PAGE> 2
"Closing" shall have the meaning specified in Section 2.2.
"Closing Date" means January 27, 2000.
"Collections" means all amounts collected by the Servicer
(from whatever source) on or with respect to the Receivables.
"Damages" shall have the meaning specified in Section 5.4(a).
"Distribution Date" means, for each Collection Period, the
15th day of the following month or, if such 15th day is not a Business Day, the
next succeeding Business Day.
"Notes" shall have the meaning specified in the introductory
paragraphs of this Agreement.
"Overextended Receivables" means the Receivables set forth on
Schedule B to this Agreement.
"Prospectus" has the meaning assigned to such term in the
Underwriting Agreement.
"Purchaser" means Nissan Auto Receivables Corporation, a
Delaware corporation, and its successors and assigns.
"Rating Agency" means Standard & Poor's Ratings Services, a
Division of the McGraw-Hill Companies or Moody's Investors Service, Inc. or any
successors thereto.
"Receivable" means any retail installment sale contract that
appears on the Schedule of Receivables.
"Receivables Purchase Price" means $837,721,182.12.
"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, as seller, Nissan
Motor Acceptance Corporation, as servicer, and the Trust dated as of January 27,
2000, 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.
"Trust" means the Nissan Auto Receivables 2000-A Owner Trust.
2
<PAGE> 3
"Trust Agreement" means the Trust Agreement dated as of
December 21, 1999, as amended by the Amended and Restated Trust Agreement by and
between Nissan Auto Receivables Corporation, as seller, and Wilmington Trust
Company, as owner trustee, dated as of January 27, 2000, as the same may be
amended, amended and restated, supplemented or modified.
"Underwriting Agreement" means the Underwriting Agreement by
and between Chase Securities Inc. and the Purchaser, dated January 19, 2000.
With respect to all terms in this Agreement, the singular
includes the plural and the plural the singular; words importing any gender
include the other genders; references to "writing" include printing, typing,
lithography and other means of reproducing words in a visible form; references
to agreements and other contractual instruments include all subsequent
amendments, amendments and restatements and supplements thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1 Purchase and Sale of Receivables.
On the Closing Date, subject to the terms and conditions of
this Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser
agrees to purchase from the Seller, the Receivables and the other property
relating thereto (as defined below).
(a) Transfer of Receivables. On the Closing Date and
simultaneously with the transactions pursuant to the 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;
(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;
3
<PAGE> 4
(v) the right of the Seller to realize upon any
property (including the right to receive future Net Liquidation
Proceeds) that shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums
and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing;
provided that the Seller shall not be required to deliver to the
Purchaser on the Closing Date monies received in respect of the
Receivables after the Cutoff Date and before the Closing Date but shall
or shall cause the Servicer to deposit such monies into the Collection
Account no later than the first Record Date after the Closing Date.
(b) Receivables Purchase Price. In consideration for the
Receivables and other properties described in Section 2.1(a), the Purchaser
shall, on the Closing Date, pay to the Seller the Receivables Purchase Price. An
amount equal to approximately 90.314% of the Receivables Purchase Price shall be
paid to the Seller in cash, net of any costs of the Purchaser related to the
establishment of the Trust and the offering of the Securities, by federal wire
transfer (same day) funds. The remaining approximately 9.686% of the Receivables
Purchase Price shall be deemed paid by the Purchaser to the Seller and then
immediately returned by the Seller to the Purchaser as a contribution to
capital.
2.2 The Closing. The sale and purchase of the Receivables
shall take place at a closing (the "Closing") at the offices of O'Melveny &
Myers LLP, 400 South Hope Street, 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 (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 Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the Class A-4 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:
(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
4
<PAGE> 5
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and to general equitable principles. The
consummation of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in a breach of any
of the terms or provisions of, nor constitute (with or without notice or lapse
of time) a default under, or result in the creation or imposition of any Lien to
the Purchaser upon any of the property or assets of the Purchaser pursuant to
the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee,
lease financing agreement or similar agreement or instrument under which the
Purchaser is a debtor or guarantor, nor will such action result in any violation
of the provisions of the Certificate of Incorporation or the By-laws of the
Purchaser; which breach, default, conflict, Lien or violation in any case would
have a material adverse effect on the ability of the Seller to perform its
obligations under this Agreement.
(c) No Litigation. There are no proceedings or investigations
pending to which the Purchaser is a party or of which any property of the
Purchaser is the subject, and, to the best of the Purchaser's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others; other than such proceedings that would not have a material
adverse effect upon the ability of the Purchaser to perform its obligations
under, or the validity and enforceability of, this Agreement.
3.2 Representations and Warranties of the Seller. (a) The
Seller hereby represents and warrants to the Purchaser as of the date hereof and
as of the Closing Date:
(i) Organization, etc. The Seller has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of California and is in good standing in
each jurisdiction in the United States of America in which the conduct
of its business or the ownership of its property requires such
qualification and where the failure to so qualify would have a material
adverse effect on the ability of the Seller to perform its obligations
under this Agreement.
(ii) Power and Authority. The Seller has the
corporate power and authority to sell and assign the property sold and
assigned to the Purchaser hereunder and has duly authorized such sale
and assignment to the Purchaser by all necessary corporate action. This
Agreement has been duly authorized, executed and delivered by the
Seller and constitutes a legal, valid and binding obligation of the
Seller, enforceable in accordance with its terms, subject to the effect
of bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and by general equitable
principles.
(iii) No Violation. The consummation of the
transaction contemplated by this Agreement, and the fulfillment of the
terms hereof, do not conflict with, or result in a breach of any of the
terms or provisions of, nor constitute (with or without notice or lapse
of time) a default under, or result in the creation or imposition of
any Lien upon any of the property or assets of the Seller pursuant to
the terms of, any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement or similar agreement or instrument
under which the Seller is a debtor or guarantor, nor will such action
result in any violation of the provisions of the Articles of
Incorporation or the By-Laws of the Seller; which breach, default,
conflict, Lien or violation in any case would have a
5
<PAGE> 6
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 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) other than the Overextended Receivables, 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 60 months, and (e) provides for yield interest at
the related Annual Percentage Rate.
(ii) Schedule of Receivables. The information set
forth in Schedule A to this Agreement was true and correct in all
material respects as of the opening of business on the Cutoff Date; the
Receivables were selected at random from the Seller's retail
installment sale contracts (other than contracts originated in Alabama,
Hawaii or Maryland) 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 were utilized in selecting the
Receivables.
(iii) Compliance with Law. Each Receivable and the
sale of the Financed Vehicle complied at the time it was originated or
made and at the execution of this Agreement complies in all material
respects with all requirements of applicable federal, state and local
laws, and regulations thereunder, including 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 Soldiers and
Sailors Civil Relief Act of 1940, the Federal Reserve Board's
Regulations B and Z, and state adaptations of the
6
<PAGE> 7
National Consumer Credit Protection Act and of the Uniform Consumer
Credit Code, state "Lemon Laws" designed to prevent fraud in the sale
of automobiles and other consumer credit laws and equal credit
opportunity and disclosure laws.
(iv) Binding Obligation. Each Receivable represents
the genuine, legal, valid and binding payment obligation in writing of
the Obligor, enforceable by the holder thereof in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by general equitable principles.
(v) Security Interest in Financed Vehicle. (a)
Immediately prior to the sale, assignment and transfer thereof to the
Purchaser, each Receivable was secured by a validly perfected first
priority security interest in the Financed Vehicle in favor of the
Seller as secured party or all necessary or all appropriate actions
shall have been commenced that would result in the valid perfection of
a first priority security interest in the Financed Vehicle in favor of
the Seller as secured party, and (b) as of the Cutoff Date, according
to the records of the Seller, no Financed Vehicle has been repossessed.
(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 equal or coordinate with, the
security interest in the Financed Vehicle granted by the Receivable.
(x) No Default. Except for payment defaults
continuing for a period of not more than 29 days as of the Cutoff Date,
no default, breach, violation or event permitting acceleration under
the terms of any Receivable has occurred; and no continuing condition
that with notice or the lapse of time would constitute a default,
breach, violation or event permitting acceleration under the terms of
any Receivable has arisen (other than deferrals and waivers of late
payment charges or fees permitted under the Sale and Servicing
Agreement).
7
<PAGE> 8
(xi) Insurance. The Seller, in accordance with its
customary procedures, has determined at the time of origination of each
Receivable that the related Obligor has agreed to obtain physical
damage insurance covering the Financed Vehicle and the Obligor is
required under the terms of related Receivable to maintain such
insurance.
(xii) Title. It is the intention of the Seller that
the transfer and assignment herein contemplated constitute a sale of
the Receivables from the Seller to the Purchaser and that the
beneficial interest in and title to the Receivables not be part of the
Seller's estate in the event of the filing of a bankruptcy petition by
or against the Seller under any bankruptcy law. Immediately prior to
the transfer and assignment herein contemplated, the Seller had good
and marketable title to each Receivable free and clear of all Liens
and, immediately upon the transfer thereof, the Purchaser shall have
good and marketable title to each Receivable, free and clear of all
Liens and rights of others. Each Receivable File contains the original
certificate of title (or a photocopy or image thereof) or evidence that
an application for a certificate of title has been filed.
(xiii) Lawful Assignment. No Receivable has been
originated in, or shall be subject to the laws of, any jurisdiction
under which the sale, transfer and assignment of such Receivable under
this Agreement or pursuant to the Sale and Servicing Agreement are
unlawful, void or voidable.
(xiv) All Filings Made. All filings (including,
without limitation, UCC filings) necessary in any jurisdiction to give
the Purchaser a first priority perfected ownership interest in the
Receivables have been made or have been delivered in form suitable for
filing to the Purchaser.
(xv) Chattel Paper. Each Receivable constitutes
"chattel paper", as such term is defined in the UCC.
(xvi) Simple Interest Receivables. All of the
Receivables are Simple Interest Receivables.
(xvii) One Original. There is only one original
executed copy of each Receivable.
(xviii) No Amendments. No Receivable has been amended
such that the amount of the Obligor's Scheduled Payments has been
increased.
(xix) APR. The Annual Percentage Rate of each
Receivable equals or exceeds 5.25%.
(xx) Maturity. As of the Cutoff Date, each Receivable
had a remaining term to maturity of not less than 5 months and not
greater than 59 months.
(xxi) Balance. Each Receivable had an original
principal balance of not more than $49,090.33 and, as of the Cutoff
Date, had a principal balance of not less than $2,000.36 and not more
than $44,807.66.
8
<PAGE> 9
(xxii) Delinquency. No Receivable was more than 29
days past due as of the Cutoff Date and no Receivable has been extended
by more than two months.
(xxiii) Bankruptcy. No Obligor was the subject of a
bankruptcy proceeding (according to the records of the Seller) as of
the Cutoff Date.
(xxiv) Transfer. Each Receivable prohibits the sale
or transfer of the Financed Vehicle without the consent of the Seller.
(xxv) New, Near-New and Used Vehicles. Each Financed
Vehicle was a new, near-new or used automobile or light-duty truck at
the time the related Obligor executed the retail installment sale
contract.
(xxvi) Origination. Each Receivable has an
origination date on or after July 3, 1995.
(xxvii) Forced-Placed Insurance Premiums. No contract
relating to any Receivable has had forced-placed insurance premiums
added to the amount financed.
(xxviii) No Fraud or Misrepresentation. To the
knowledge of the Seller, no Receivable was originated by a Dealer and
sold by such Dealer to the Seller with any conduct constituting fraud
or misrepresentation on the part of such Dealer.
(xxix) No Further Amounts Owed on the Receivables. No
further amounts are owed by the Seller to any Obligor under the
Receivables.
ARTICLE IV
CONDITIONS
4.1 Conditions to Obligation of the Purchaser. The obligation
of the Purchaser to purchase the Receivables and the related property described
in Section 2.1(a) is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Seller hereunder shall be true and correct in all material
respects on the Closing Date with the same effect as if then made, and the
Seller shall have performed in all material respects all obligations to be
performed by it hereunder on or prior to the Closing Date.
(b) Computer Files Marked. The Seller shall, at its own
expense, on or prior to the Closing Date, indicate in its computer files that
the Receivables have been sold to the Purchaser pursuant to this Agreement and
shall deliver to the Purchaser the Schedule of Receivables certified by an
officer of the Seller to be true, correct and complete in all material respects.
9
<PAGE> 10
(c) Documents to be delivered by the Seller at the Closing.
(i) The Assignment. At the Closing, the Seller shall
execute and deliver the Assignment.
(ii) Evidence of UCC Filing. On or prior to the
Closing Date, the Seller shall record and file, or deliver in
a form suitable for filing to the Purchaser, at its own
expense, a UCC-1 financing statement in each jurisdiction in
which required by applicable law, executed by the Seller, as
seller or debtor, and naming the Purchaser, as purchaser or
secured party, and the Trust, as assignee of the Purchaser,
naming the Receivables and the other property conveyed
hereunder as collateral, meeting the requirements of the laws
of each such jurisdiction and in such manner as is necessary
to perfect the sale, transfer, assignment and conveyance of
such Receivables and other property conveyed hereunder to the
Purchaser.
(iii) Other Documents. At the Closing, the Seller
shall deliver such other documents as the Purchaser may
reasonably request.
(d) Other Transactions. The transactions contemplated by the
Sale and Servicing Agreement shall be consummated on the Closing Date.
4.2 Conditions to Obligation of the Seller. The obligation of
the Seller to sell the Receivables and other property conveyed hereunder to the
Purchaser is subject to the satisfaction of the following conditions:
(a) Representations and Warranties True. The representations
and warranties of the Purchaser hereunder shall be true and correct in all
material respects on the Closing Date with the same effect as if then made, and
the Purchaser shall have performed in all material respects all obligations to
be performed by it hereunder on or prior to the Closing Date.
(b) Receivables Purchase Price. On the Closing Date, the
Purchaser shall deliver to the Seller the Receivables Purchase Price, as
provided in Section 2.1(b).
ARTICLE V
COVENANTS OF THE SELLER
The Seller agrees with the Purchaser as follows; provided,
however, that, to the extent that any provision of this ARTICLE V conflicts with
any provision of the Sale and Servicing Agreement, the Sale and Servicing
Agreement shall govern:
5.1 Protection of Right, Title and Interest.
(a) The Seller shall execute and file such financing
statements and cause to be executed and filed such continuation statements, all
in such manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Purchaser in the Receivables, the other
property conveyed hereunder and the proceeds thereof. The Seller shall
10
<PAGE> 11
deliver (or cause to be delivered) to the Purchaser file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as available
following such filing.
(b) The Seller shall notify the Purchaser within 30 days after
any change of its name, identity or corporate structure in any manner that
would, could or might make any financing statement or continuation statement
filed by the Seller in accordance with paragraph (a) above seriously misleading
within the meaning of Section 9-402(7) of the UCC, and shall promptly file
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Seller shall notify the Purchaser of any relocation of
its principal executive office within 30 days after such relocation, if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment. The Seller shall at all times maintain its principal executive office
within the United States of America.
(d) The Seller shall maintain its computer systems so that,
from and after the time of sale hereunder of the Receivables to the Purchaser,
the Seller's master computer records that refer to a Receivable shall indicate
clearly the interest of the Purchaser in such Receivable and that such
Receivable is owned by the Purchaser.
(e) If at any time the Seller shall propose to sell, grant a
security interest in, or otherwise transfer any interest in automotive
receivables to any prospective purchaser, lender or other transferee, the Seller
shall give to such prospective purchaser, lender or other transferee computer
tapes, records or print-outs that, if they shall refer in any manner whatsoever
to any Receivable, shall indicate clearly that such Receivable has been sold and
is owned by the Purchaser.
(f) The Seller shall permit the Purchaser and its agents at
any time during normal business hours upon reasonable advance notice to inspect,
audit and make copies of and abstracts from the Seller's records regarding any
Receivable.
5.2 Other Liens or Interests. Except for the conveyances
hereunder and contemplated pursuant to the Sale and Servicing Agreement, the
Seller shall not sell, pledge, assign or transfer to any other Person, or grant,
create, incur, assume or suffer to exist any Lien on any interest therein, and
the Seller shall defend the right, title and interest of the Purchaser in, to
and under such Receivables against all claims of third parties claiming through
or under the Seller; provided, however, that the Seller's obligations under this
Section 5.2 shall terminate upon the termination of the Trust pursuant to the
Sale and Servicing Agreement.
5.3 Costs and Expenses. The Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Purchaser's right, title and interest in and to the
Receivables.
11
<PAGE> 12
5.4 Indemnification.
(a) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all costs, expenses, losses, damages, claims
and liabilities (collectively, "Damages"), arising out of or resulting from the
failure of a Receivable to be originated in compliance with all requirements of
law and for any breach of any of the Seller's representations and warranties
contained herein.
(b) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all Damages arising out of or resulting from
the use, ownership or operation by the Seller or any affiliate thereof of a
Financed Vehicle.
(c) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all taxes that may at any time be asserted
against the Purchaser with respect to the transactions contemplated herein,
including, without limitation, any sales, gross receipts, general corporation,
tangible personal property, privilege, or license taxes (but not including any
taxes asserted with respect to ownership of the Receivables or federal or other
taxes arising out of the transactions contemplated by this Agreement and any
related documents) and costs and expenses in defending against the same.
(d) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against any and all Damages to the extent that such Damage
arose out of, or was imposed upon the Purchaser through, the negligence, willful
misfeasance or bad faith of the Seller in the performance of its duties under
this Agreement or by reason of reckless disregard of the Seller's obligations
and duties under this Agreement.
(e) The Seller shall defend, indemnify and hold harmless the
Purchaser from and against all Damages arising out of or incurred in connection
with the acceptance or performance of the Seller's trusts and duties as Servicer
under the Sale and Servicing Agreement, except to the extent that such Damages
shall be due to the willful misfeasance, bad faith or negligence of the
Purchaser.
These indemnity obligations shall be in addition to any
obligation that the Seller may otherwise have.
(f) Promptly after receipt by a party indemnified under this
Section 5.4 (an "Indemnified Party") of notice of the commencement of any
action, such Indemnified Party will, if a claim in respect thereof is to be made
against the Seller under this Section 5.4, notify the Seller of the commencement
thereof. If any such action is brought against any Indemnified Party under this
Section 5.4 and it notifies the Seller of the commencement thereof, the Seller
will assume the defense thereof, with counsel reasonably satisfactory to such
Indemnified Party (who may, unless there is, as evidenced by an opinion of
counsel to the Indemnified Party stating that there is an unwaivable conflict of
interest, be counsel to the Indemnifying Party), and the Seller will not be
liable to such Indemnified Party under this Section 5.4 for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof, other than reasonable costs of investigation. The obligations
set forth in this Section 5.4 shall survive the termination of this Agreement
and shall include reasonable fees and expenses of counsel and
12
<PAGE> 13
expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section 5.4 and the Person to or on behalf of whom such
payments are made thereafter collects any of such amounts from others, such
Person shall promptly repay such amounts to the Seller, without interest (except
to the extent received by such Person).
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1 Obligations of Seller. The obligations of the Seller under
this Agreement shall not be affected by reason of any invalidity, illegality or
irregularity of any Receivable.
6.2 Repurchase Events. The Seller hereby covenants and agrees
with the Purchaser for the benefit of the Purchaser, the Trust, the Indenture
Trustee and the holders of the Securities, that the occurrence of a breach of
any of the Seller's representations and warranties contained in Section 3.2(b)
shall constitute events obligating the Seller to repurchase Receivables
hereunder ("Repurchase Events") and pursuant to Section 3.02 of the Sale and
Servicing Agreement, at the amount of the Warranty Purchase Payment from the
Purchaser or, as described in Section 6.4 below, from the Trust. The repurchase
obligation of the Seller shall constitute the sole remedy of the holders of the
Securities, the Trust, the Indenture Trustee and the Purchaser against the
Seller with respect to any Repurchase Event.
In addition, the Seller hereby covenants and agrees with the
Purchaser for the benefit of the Purchaser, the Trust, the Indenture Trustee and
the holders of the Securities to (i) treat the Overextended Receivables as if a
breach had occurred with respect to such Overextended Receivables which would
give rise to the obligation of the Seller to repurchase such Overextended
Receivables from the Purchaser pursuant to the provisions of the foregoing
paragraph and pursuant to Section 3.02 of the Sale and Servicing Agreement and
(ii) repurchase such Overextended Receivables at the amount of the Warranty
Purchase Payment in accordance with such Section 3.02 no later than the first
Distribution Date after the Closing Date.
6.3 Seller's Assignment of Purchased Receivables. With respect
to all Receivables repurchased by the Seller pursuant to this Agreement, the
Purchaser (without the need of any further written assignment) shall assign
hereby, without recourse, representation or warranty (other than that it has
good and marketable title to such Receivables), to the Seller all the
Purchaser's right, title and interest in and to such Receivables, and all
security and documents relating thereto.
6.4 Trust. The Seller acknowledges that the Purchaser will,
pursuant to the Sale and Servicing Agreement, sell the Receivables to the Trust
and assign its rights under this Agreement to the Trust and that the Trust will
assign such rights to the Indenture Trustee for the benefit of the holders of
the Notes, and that the representations and warranties contained in this
Agreement and the rights of the Purchaser under Section 6.2 and the obligations
under 6.3 are intended to benefit the Trust and the holders of the Securities.
The Seller hereby consents to such sales and assignments.
13
<PAGE> 14
6.5 Amendment. This Agreement may be amended from time to time
by a written amendment duly executed and delivered by the Seller and the
Purchaser; provided, however, that any such amendment must be consented to by
the Holders of Notes representing a majority of the Outstanding Amount of the
Notes, voting as a single class, or, in the case of any amendment that does not
adversely affect the Indenture Trustee or the Noteholders (as evidenced by an
Officer's Certificate of the Servicer and an external Opinion of Counsel
indicating that such amendment will not adversely affect the Indenture Trustee
or the Noteholder), the Holders of a majority of the Certificate Balance.
6.6 Accountants' Letters.
(a) The Seller will cause Deloitte & Touche LLP to review the
characteristics of the Receivables described in the Schedule of Receivables and
to compare those characteristics to the information with respect to the
Receivables contained in the Prospectus.
(b) The Seller will cooperate with the Purchaser and Deloitte
& Touche LLP in making available all information and taking all steps reasonably
necessary to permit such accountants to complete the review set forth in Section
6.6(a) and to deliver the letters required of them under the Underwriting
Agreement.
6.7 Waivers. No failure or delay on the part of the Purchaser
in exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver hereof or thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise hereof or thereof or the exercise of any other power, right or remedy.
6.8 Notices. All communications and notices pursuant hereto to
either party shall be in writing (including via telecopy) and addressed or
delivered to it at its address (or in the case of telecopy, at its telecopy
number at such address) shown in the opening portion of this Agreement or at
such other address as may be designated by it by notice to the other party and,
if mailed or delivered, shall be deemed given when mailed or delivered, or
transmitted by telecopy.
6.9 Costs and Expenses. The Seller agrees to pay all expenses
incident to the performance of its obligations under this Agreement and the
Seller agrees to pay all reasonable out-of-pocket costs and expenses of the
Purchaser, excluding fees and expenses of counsel, in connection with the
perfection as against third parties of the Purchaser's right, title and interest
in and to the Receivables and the enforcement of any obligation of the Seller
hereunder.
6.10 Survival. The respective agreements, representations,
warranties and other statements by the Seller and the Purchaser set forth in or
made pursuant to this Agreement shall remain in full force and effect and will
survive the Closing.
6.11 Headings and Cross-References. The various headings in
this Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Agreement. References in this
Agreement to Section names or numbers are to such Sections of this Agreement.
14
<PAGE> 15
6.12 Governing Law. This Agreement and the Assignment shall be
governed by and construed in accordance with the internal laws of the State of
New York, without reference to its conflict of law provisions (other than
Section 5-1401 of the General Obligations Law of the State of New York), and the
obligations, rights and remedies of the parties under this Agreement shall be
determined in accordance with such laws.
6.13 Counterparts. This Agreement may be executed in two
counterparts and by different parties on separate counterparts, each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
6.14 Sale. Each party hereto agrees to treat the conveyance
under this Agreement for all purposes (including, without limitation, tax and
financial accounting purposes) as a sale of the Receivables on all of its
relevant books, records, tax returns, financial statements and other applicable
documents. Although the parties hereto intend that the transfer and assignment
contemplated by this Agreement be a sale, in the event such transfer and
assignment is deemed to be other than a sale, the parties intend that all
filings described in this Agreement shall give the Purchaser a first priority
perfected security interest in, to and under the Receivables and other property
conveyed hereunder and all proceeds of any of the foregoing. This Agreement
shall be deemed to be the grant of a security interest from the Seller to the
Purchaser, and the Purchaser shall have all the rights, powers and privileges of
a secured party under the UCC.
15
<PAGE> 16
IN WITNESS WHEREOF, the parties hereto hereby have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the 27th day of January, 2000.
NISSAN MOTOR ACCEPTANCE CORPORATION
By: /s/ Yoichiro Nagashima
-------------------------------------------------------
Name: Yoichiro Nagashima
Title: President and Chairman of the Board of Directors
NISSAN AUTO RECEIVABLES CORPORATION
By: /s/ Tomoaki Shimazu
-------------------------------------------------------
Name: Tomoaki Shimazu
Title: Treasurer, Assistant Secretary and Director
S-1
<PAGE> 17
Exhibit A
ASSIGNMENT
For value received, in accordance with the Purchase Agreement,
dated as of January 27, 2000 (the "Purchase Agreement"), between the undersigned
(the "Seller") and Nissan Auto Receivables Corporation (the "Purchaser"), the
undersigned does hereby sell, assign, transfer and otherwise convey unto the
Purchaser, without recourse, the following:
(i) all right, title and interest of the Seller in
and to the Receivables listed on Schedule A hereto (including all
related Receivable Files) and all monies due thereon or paid thereunder
or in respect thereof after the Cutoff Date;
(ii) the right of the Seller in the security
interests in the Financed Vehicles granted by the Obligors pursuant to
the Receivables and any related property;
(iii) the right of the Seller in any proceeds from
claims on any physical damage, credit life, credit disability or other
insurance policies covering Financed Vehicles or Obligors;
(iv) the right of the Seller to receive payments in
respect any Dealer Recourse with respect to the Receivables;
(v) the right of the Seller to realize upon any
property (including the right to receive future Net Liquidation
Proceeds) that shall have secured a Receivable;
(vi) the right of the Seller in rebates of premiums
and other amounts relating to insurance policies and other items
financed under the Receivables in effect as of the Cutoff Date; and
(vii) all proceeds of the foregoing.
The foregoing sale does not constitute and is not intended to
result in any assumption by the Purchaser of any obligation of the undersigned
to the Obligors, insurers or any other person in connection with the
Receivables, Receivable Files, any insurance policies or any agreement or
instrument relating to any of them.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Purchase Agreement and is to be governed by the Purchase
Agreement.
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to such terms in the Purchase Agreement.
A-1
<PAGE> 18
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed as of the 27th day of January, 2000.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By:
------------------------------------
Name:
Title:
A-2
<PAGE> 19
SCHEDULE A
Schedule of Receivables
(Delivered on the Closing Date and kept on a CD ROM)
Schedule A
<PAGE> 20
SCHEDULE B
Schedule of Overextended Receivables
<TABLE>
<CAPTION>
Outstanding
Balance
Loan Number as of 12/31/99
----------- --------------
<S> <C>
24-5820619 $ 3,607.69
24-4997418 $ 7,942.82
24-4143300 $10,861.68
24-4203551 $12,151.40
24-4768524 $10,458.70
24-6207220 $18,657.82
---------- ----------
Total $63,680.11
</TABLE>
Schedule B
<PAGE> 1
EXHIBIT 4.4
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
(a Delaware Business Trust)
AMENDED AND RESTATED TRUST AGREEMENT
between
NISSAN AUTO RECEIVABLES CORPORATION,
as Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of January 27, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I Definitions................................................................................1
SECTION 1.01 Definitions......................................................................1
SECTION 1.02 Usage of Terms...................................................................4
ARTICLE II Creation of Trust..........................................................................4
SECTION 2.01 Creation of Trust................................................................4
SECTION 2.02 Office...........................................................................4
SECTION 2.03 Purposes and Powers..............................................................5
SECTION 2.04 Power of Attorney................................................................5
SECTION 2.05 Declaration of Trust.............................................................5
SECTION 2.06 Liability of the Certificateholders..............................................6
SECTION 2.07 Title to Trust Property..........................................................6
SECTION 2.08 Situs of Trust...................................................................6
SECTION 2.09 Representations and Warranties of the Depositor..................................6
SECTION 2.10 Federal Income Tax Allocations...................................................7
ARTICLE III Certificates and Transfer of Interests.....................................................8
SECTION 3.01 The Certificates.................................................................8
SECTION 3.02 Authentication of Certificates...................................................8
SECTION 3.03 Registration of Transfer and Exchange of Certificates............................9
SECTION 3.04 Mutilated, Destroyed, Lost or Stolen Certificates...............................10
SECTION 3.05 Persons Deemed Certificateholders...............................................11
SECTION 3.06 Access to List of Certificateholders' Names and Addresses.......................11
SECTION 3.07 Maintenance of Office or Agency.................................................11
SECTION 3.08 Appointment of Paying Agent.....................................................11
SECTION 3.09 Ownership by the Depositor of Certificates......................................12
ARTICLE IV Actions By Owner Trustee or Certificateholders............................................12
SECTION 4.01 Prior Notice to Certificateholders with Respect to Certain Matters..............12
SECTION 4.02 Action by Certificateholders with Respect to Certain Matters....................13
SECTION 4.03 Action with Respect to Bankruptcy...............................................13
SECTION 4.04 Restrictions on Certificateholders' Power.......................................13
SECTION 4.05 Majority of the Certificates Control............................................13
ARTICLE V Application of Trust Funds; Certain Duties................................................14
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C> <C>
SECTION 5.01 Establishment of the Trust Collection Account...................................14
SECTION 5.02 Application of Amounts in Trust Accounts........................................15
SECTION 5.03 Method of Payment...............................................................15
SECTION 5.04 Accounting and Reports to the Noteholders, Certificateholders, the
Internal Revenue Service and Others.............................................15
SECTION 5.05 Signature on Returns; Tax Matter Partner........................................16
ARTICLE VI Authority and Duties of Owner Trustee.....................................................16
SECTION 6.01 General Authority...............................................................16
SECTION 6.02 General Duties..................................................................17
SECTION 6.03 Duties of the Owner Trustee.....................................................17
SECTION 6.04 No Duties Except as Specified in this Agreement or in Instructions..............18
SECTION 6.05 No Action Except Under Specified Documents or Instructions......................19
SECTION 6.06 Restrictions....................................................................19
ARTICLE VII Concerning the Owner Trustee..............................................................19
SECTION 7.01 Rights of the Owner Trustee.....................................................19
SECTION 7.02 Furnishing of Documents.........................................................20
SECTION 7.03 Representations and Warranties..................................................20
SECTION 7.04 Reliance; Advice of Counsel.....................................................21
SECTION 7.05 Not Acting in Individual Capacity...............................................21
SECTION 7.06 Owner Trustee Not Liable for Certificates or Receivables........................22
SECTION 7.07 Owner Trustee May Own Certificates and Notes....................................22
SECTION 7.08 Sales Finance Licenses..........................................................22
ARTICLE VIII Compensation of Owner Trustee.............................................................23
SECTION 8.01 Owner Trustee's Fees and Expenses...............................................23
SECTION 8.02 Indemnification.................................................................23
SECTION 8.03 Payments to the Owner Trustee...................................................23
ARTICLE IX Termination of Trust Agreement............................................................24
SECTION 9.01 Termination of Trust Agreement..................................................24
ARTICLE X Successor Owner Trustees and Additional Owner Trustees....................................25
SECTION 10.01 Eligibility Requirements for Owner Trustee......................................25
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C> <C>
SECTION 10.02 Resignation or Removal of Owner Trustee.........................................25
SECTION 10.03 Successor Owner Trustee.........................................................26
SECTION 10.04 Merger or Consolidation of Owner Trustee........................................26
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee...................................27
ARTICLE XI Miscellaneous.............................................................................28
SECTION 11.01 Supplements and Amendments......................................................28
SECTION 11.02 No Legal Title to Owner Trust Estate in Certificateholders......................29
SECTION 11.03 Limitations on Rights of Others.................................................29
SECTION 11.04 Notices.........................................................................29
SECTION 11.05 Severability....................................................................30
SECTION 11.06 Counterparts....................................................................30
SECTION 11.07 Successors and Assigns..........................................................30
SECTION 11.08 No Petition.....................................................................30
SECTION 11.09 No Recourse.....................................................................30
SECTION 11.10 Headings........................................................................30
SECTION 11.11 GOVERNING LAW...................................................................31
SECTION 11.12 NMAC Payment Obligation.........................................................31
</TABLE>
iii
<PAGE> 5
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<S> <C>
Exhibit A Form of Certificate
Exhibit B Form of Transferee Representation Letter
Exhibit C Form of Transferor Representation Letter
</TABLE>
iv
<PAGE> 6
AMENDED AND RESTATED TRUST AGREEMENT, dated as of January 27,
2000, between NISSAN AUTO RECEIVABLES Corporation, a Delaware corporation, as
depositor, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as
Owner Trustee, amending and restating in its entirety the Trust Agreement, dated
as of December 21, 2000 (the "Original Trust Agreement"), between the same
parties, and herein referred to as the "Trust Agreement" or this "Agreement."
IN CONSIDERATION of the mutual agreements herein contained,
and of other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Definitions. Except as otherwise specified herein or if
the context may otherwise require, capitalized terms used but not otherwise
defined herein have the meanings assigned to such terms in the Sale and
Servicing Agreement and the Indenture for all purposes of this Agreement. Except
as otherwise provided in this Agreement, whenever used herein the following
words and phrases, unless the context otherwise requires, shall have the
following meanings:
"Administration Agreement" means the Administration Agreement dated as
of January 27, 2000 by and between the Trust, as issuer, NMAC, as Administrator
and the Indenture Trustee pursuant to which NMAC undertakes to perform certain
of the duties and obligations of the Trust hereunder, under the Sale and
Servicing Agreement and under the Indenture.
"Administrator" means NMAC acting in its capacity as Administrator
under the Administration Agreement.
"Agreement" means this Amended and Restated Trust Agreement, which
amends and restates the Original Trust Agreement.
"Basic Documents" means the Purchase Agreement, this Agreement, the
Certificate of Trust, the Sale and Servicing Agreement, the Indenture, the Yield
Supplement Agreement, the Administration Agreement, the Note Depository
Agreement, the Securities Account Control Agreement and the other documents and
certificates delivered in connection herewith and therewith.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss. 3801 et seq.
"Certificate" means any of the Certificates executed by the Trust and
authenticated by the Owner Trustee, evidencing a beneficial ownership interest
in the Trust, substantially in the form set forth in Exhibit A hereto.
1
<PAGE> 7
"Certificate of Trust" means the Certificate of Trust filed with
respect to the formation of the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"Certificate Register" means the register maintained pursuant to
Section 3.03.
"Certificateholder" or "Holder" means a Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving certain consents, waivers, requests or demands pursuant
to this Agreement, the interest evidenced by any Certificate registered in the
name of NARC or NMAC, or any Person actually known to a Trust Officer of the
Owner Trustee to be controlling, controlled by or under common control with NARC
or NMAC, shall not be taken into account in determining whether the requisite
percentage necessary to effect any such consent, waiver, request or demand shall
have been obtained unless at such time all Certificates are then owned by NARC,
NMAC and their Affiliates.
"Certificate Registrar" means Harris Trust Company of New York unless
and until a successor thereto is appointed pursuant to Section 3.03. The
Certificate Registrar initially designates its offices at 88 Pine Street, 19th
Floor, Wall Street Plaza, New York, New York 10005, as its offices for purposes
of Section 3.03.
"Code" means the Internal Revenue Code of 1986.
"Corporate Trust Office" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890; or at such other
address as the Owner Trustee may designate by notice to the Certificateholders,
or the principal corporate trust office of any successor Owner Trustee (the
address of which the successor Owner Trustee will notify the
Certificateholders).
"Depositor" means NARC in its capacity as depositor hereunder.
"ERISA" shall have the meaning assigned to such term in Section
3.03(c).
"Expenses" shall have the meaning assigned to such term in Section
8.01.
"Indenture" means the Indenture dated as of January 27, 2000 entered
into between the Trust and the Indenture Trustee named therein pursuant to which
a series of Notes are issued.
"NMAC" means Nissan Motor Acceptance Corporation, a California
corporation.
"NARC" means Nissan Auto Receivables Corporation, a Delaware
corporation.
"Non-U.S. Person" means any Person who is not (i) a citizen or resident
of the United States who is a natural person, (ii) a corporation or partnership
(or an entity treated as a corporation or partnership) organized in or under the
laws of the United States or any state thereof, including the District of
Columbia (unless, in the case of a partnership, Treasury Regulations are adopted
that provide otherwise), (iii) an estate, the income of which is subject to
2
<PAGE> 8
United States Federal income taxation, regardless of its source, or (iv) a
trust, if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons (as such term is defined in the Code and Treasury Regulations) have the
authority to control all substantial decisions of the trust; except that, to the
extent provided in Treasury Regulations, certain trusts in existence prior to
August 20, 1996 which elected to be treated as United States Persons prior to
such date also shall be United States Persons.
"Notes" means the notes issued by the Trust pursuant to the Indenture,
having the payment and other terms set forth in the Indenture.
"Original Certificate Balance" means $79,591,182.12.
"Original Trust Agreement" shall have the meaning assigned to such term
in the introductory paragraph to this Agreement.
"Owner Trust Estate" means all right, title and interest of the Trust
in and to the property and rights assigned to the Trust pursuant to Article II
of the Sale and Servicing Agreement, all funds on deposit from time to time in
the accounts created pursuant to Section 5.01 of the Sale and Servicing
Agreement (excluding any net investment income with respect to amounts held in
such accounts) and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement, and as assignee of the rights and
interests of the Depositor under the Purchase Agreement.
"Owner Trustee" means Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.08, and shall initially be Wilmington Trust Company.
"Plan" shall have the meaning assigned to such term in Section
3.03(c)(1)(ii).
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of the date hereof, among the Trust, NARC, as seller, and NMAC, as
servicer.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Securities Account Control Agreement" shall have the meaning assigned
to such term in the Sale and Servicing Agreement.
"Securityholders" means the Certificateholders and the Noteholders.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary
3
<PAGE> 9
regulations shall include analogous provisions of final Treasury Regulations or
other successor Treasury Regulations.
"Trust" means the Nissan Auto Receivables 2000-A Owner Trust, formed as
a Delaware business trust pursuant to this Agreement and the filing of the
Certificate of Trust.
"Trust Collection Account" shall have the meaning assigned to such term
in Section 5.01(a).
"Yield Supplement Agreement" means the Yield Supplement Agreement dated
as of the date hereof among NMAC, the Depositor and the Trust.
SECTION 1.02 Usage of Terms. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments, amendments and restatements and supplements thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
ARTICLE II
Creation of Trust
SECTION 2.01 Creation of Trust. A Delaware business trust known as
"Nissan Auto Receivables 2000-A Owner Trust" was formed in accordance with the
provisions of the Business Trust Statute pursuant to the Original Trust
Agreement. Under the Original Trust Agreement, the Owner Trustee was authorized
and vested with the power and authority to make and execute contracts,
instruments, certificates, agreements and other writings on behalf of the Trust
as set forth herein and to sue and be sued on behalf of the Trust.
The Owner Trustee accepted under the Original Trust Agreement,
and does hereby confirm its acceptance and agreement to hold in trust, for the
benefit of the Certificateholders and such other Persons as may become
beneficiaries hereunder from time to time, all of the Owner Trust Estate
conveyed or to be conveyed to the Trust, and all monies and proceeds that may be
received with respect thereto, subject to the terms of this Agreement.
SECTION 2.02 Office. The principal place of business of the Trust for
purposes of Delaware law shall be in care of the Owner Trustee at the Corporate
Trust Office or at such other address in Delaware as the Owner Trustee may
designate by written notice to the Certificateholders and the Servicer. The
Trust may establish additional offices located at such place or places inside or
outside of the State of Delaware as the Owner Trustee may designate by written
notice to the Certificateholders and the Servicer.
4
<PAGE> 10
SECTION 2.03 Purposes and Powers.
(a) The purpose of the Trust is, and the Trust shall have the power and
authority and is authorized, to engage in the following activities:
(i) to issue Notes pursuant to the Indenture and Certificates
pursuant to this Agreement;
(ii) to acquire the Owner Trust Estate (including the
Receivables and related property) from the Depositor in exchange for
the Notes and Certificates pursuant to the Sale and Servicing
Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Owner Trust Estate pursuant to, and on the terms and conditions set
forth in, the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Owner Trust Estate released from the Lien
of, and remitted to the Trust pursuant to, the Indenture as set forth
therein and in the Sale and Servicing Agreement;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders and in respect of amounts
to be released to the Depositor, the Servicer, the Administrator and
third parties, if any.
The Trust shall not engage in any activity other than in connection
with the foregoing and as required or authorized by the terms of the Basic
Documents.
SECTION 2.04 Power of Attorney. Pursuant to the Administration
Agreement, the Owner Trustee has authorized the Administrator to perform certain
of its administrative duties hereunder, including duties with respect to the
management of the Owner Trust Estate, and in connection therewith hereby grants
the Administrator its revocable power of attorney. Each Certificateholder by
such Holder's acceptance of any Certificate or beneficial interest therein, as
the case may be, shall be deemed to have granted power of attorney to the
Administrator for purposes of actions taken or to be taken with respect to the
Certificates.
SECTION 2.05 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the Basic
5
<PAGE> 11
Documents. It is the intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. It is the intention
of the parties hereto that, solely for income and franchise tax purposes, the
Trust shall be treated as a division or branch of the Person holding the
beneficial ownership interests in the Trust for any period during which the
beneficial ownership interests in the Trust are held by one Person, and shall be
treated as a partnership for any period during which the beneficial ownership
interests in the Trust are held by more than one Person, with the assets of the
partnership being the Receivables and other assets held by the Trust, and the
Notes being debt of the partnership. The parties agree that for any such period,
unless otherwise required by appropriate tax authorities, the Trust will file or
cause to be filed annual or other necessary returns, reports and other forms
consistent with the characterization of the Trust as a partnership for such tax
purposes. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust. At the direction of the
Depositor, the Owner Trustee caused to be filed the Certificate of Trust
pursuant to the Business Trust Statute, and the Owner Trustee shall file or
cause to be filed such amendments thereto as shall be necessary or appropriate
to satisfy the purposes of this Agreement and as shall be consistent with the
provisions hereof.
SECTION 2.06 Liability of the Certificateholders . No Certificateholder
shall have any personal liability for any liability or obligation of the Trust,
solely by reason of it being a Certificateholder.
SECTION 2.07 Title to Trust Property. Legal title to all of the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.08 Situs of Trust. The Trust will be located in Delaware and
administered in the states of Delaware, New York or Minnesota. All bank accounts
maintained by the Owner Trustee on behalf of the Trust shall be located in the
State of Delaware or the State of New York. The Trust shall not have any
employees in any state other than Delaware; provided, however, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees within
or without the State of Delaware. Payments will be received by the Trust only in
Delaware or New York, and payments will be made by the Trust only from Delaware
or New York. The principal office of the Trust will be at the Corporate Trust
Office in Delaware.
SECTION 2.09 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee that as of the
Closing Date:
(a) Organization and Good Standing. The Depositor 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 own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, corporate power, authority and legal right to acquire and own the
Receivables.
6
<PAGE> 12
(b) Due Qualification. The Depositor is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or lease of
property or the conduct of its business shall require such qualifications, and
where the failure to so qualify would have a material adverse effect on the
ability of the Depositor to perform its obligations under this Agreement.
(c) Power and Authority. The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms. The
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited as part of the Owner Trust Estate and has
duly authorized such sale and assignment to the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement has been
duly authorized by the Depositor by all necessary corporate action.
(d) Binding Obligations. This Agreement is a legal, valid and binding
obligation of the Depositor 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.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, nor constitute (with
or without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor or
its properties; which breach, default, conflict, Lien or violation in any case
would have a material adverse effect on the ability of the Depositor to perform
its obligations under this Agreement.
(f) No Proceedings. There are no proceedings or investigations pending,
or, to the best of the Depositor's knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement; (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement; (iii) seeking any determination
or ruling that would materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, this
Agreement; or (iv) relating to the Depositor and that would adversely affect the
federal or any state income tax attributes of the Trust, the Certificates or the
Notes.
SECTION 2.10 Federal Income Tax Allocations. Net income of the Trust
for any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) during
which the beneficial ownership interests in the Trust are held by one more than
one Person shall be allocated:
7
<PAGE> 13
(a) in an amount equal to any amount distributed to the
Certificateholders pursuant to the Sale and Servicing Agreement (to the extent
not previously allocated pursuant to this clause); and
(b) to the Depositor, to the extent of any remaining net income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in the preceding
sentence. Net losses of the Trust, if any, for any month as determined for
federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated to the Depositor to
the extent the Depositor has agreed hereunder and under the Sale and Servicing
Agreement and the Indenture to bear the economic burden of such net losses, and
any remaining net losses shall be allocated among the Certificateholders as of
the first Distribution Date following the end of such month in proportion to
their ownership of principal amount of Certificates as of the close of business
on such Distribution Date. The Depositor is authorized to modify the allocations
in this paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Depositor
or to the Certificateholders, or as otherwise required by the Code.
ARTICLE III
Certificates and Transfer of Interests
SECTION 3.01 The Certificates. The Certificates shall be issued in
minimum denominations of $1,000.00 and in integral multiples of $0.01 in excess
thereof. The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of a Trust Officer of the Owner Trustee and authenticated on
behalf of the Owner Trustee by the manual or facsimile signature of a Trust
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures shall have been affixed, authorized
to sign on behalf of the Trust, shall be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of authentication
and delivery of such Certificates.
The Certificates may be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination in the form
of Exhibit A hereto.
A transferee of a Certificate shall become a Certificateholder, and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon such transferee's acceptance of a Certificate
duly registered in such transferee's name pursuant to Section 3.03.
SECTION 3.02 Authentication of Certificates. Concurrently with the
initial transfer of the Receivables to the Trust pursuant to the Sale and
Servicing Agreement, the Owner Trustee shall cause to be executed, authenticated
and delivered on behalf of the Trust to the Depositor,
8
<PAGE> 14
Certificates in an aggregate principal amount equal to the Original Certificate
Balance and evidencing the entire ownership of the Trust. No Certificate shall
entitle its holder to any benefit under this Agreement or be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit A, executed by the
Owner Trustee or the Owner Trustee's authenticating agent, by manual or
facsimile signature of a Trust Officer, and such authentication shall constitute
conclusive evidence, and the only evidence, that such Certificate shall have
been duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication. The Wilmington Trust Company shall be the
initial authenticating agent of the Owner Trustee hereunder, and all references
herein to authentication by the Owner Trustee shall be deemed to include the
authenticating agent.
SECTION 3.03 Registration of Transfer and Exchange of Certificates.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.07, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Owner
Trustee shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. Harris Trust Company of New York
shall be the initial Certificate Registrar. In the event that the Certificate
Registrar shall for any reason become unable to act as Certificate Registrar,
the Certificate Registrar shall promptly give written notice to such effect to
the Depositor, the Owner Trustee and the Servicer. Upon receipt of such notice,
the Servicer shall appoint another bank or trust company, having an office or
agency located in the Borough of Manhattan, The City of New York, and that shall
agree to act in accordance with the provisions of this Agreement applicable to
it, and otherwise acceptable to the Owner Trustee, to act as successor
Certificate Registrar under this Agreement.
(b) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.07, the Owner Trustee
shall execute, authenticate and deliver (or shall cause its authenticating agent
to authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Holder, Certificates may be exchanged
for other Certificates of authorized denominations of a like aggregate amount
upon surrender of the Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.07. The preceding provisions of this Section
notwithstanding, the Owner Trustee shall not make and the Certificate Registrar
shall not register transfer or exchanges of Certificates for a period of 15 days
preceding the due date for any payment with respect to the Certificates.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and disposed of by the Owner Trustee in accordance with its customary
practice.
No transfer of a Certificate shall be made unless the Owner Trustee
shall have received:
9
<PAGE> 15
(1) a representation from the transferee of such Certificate
substantially in the form of Exhibit B to the effect that:
(i) such transferee is not a Non-U.S. Person; and
(ii) such transferee is not an employee benefit plan or
arrangement subject to Section 406 of Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan subject to Section 4975 of the
Code (a "Plan"), nor a person acting on behalf of a
Plan nor using the assets of a Plan to effect such
transfer;
(2) a representation from the transferor of such Certificate
substantially in the form of Exhibit C; and
(3) an opinion of counsel to the Owner Trustee that the transfer of
such Certificate is being made pursuant to an effective registration under the
Securities Act or is exempt from the registration requirements of the Securities
Act.
Notwithstanding anything else to the contrary herein, any purported
transfer of a Certificate to or on behalf of a Plan or utilizing the assets of a
Plan shall be void and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Owner Trustee shall be under no liability to any Person
for any registration of transfer of any Certificate that is in fact not
permitted by this Section 3.03(c) or for making any payments due on such
Certificate to the Certificateholder thereof or taking any other action with
respect to such Holder under the provisions of this Trust Agreement or the Sale
and Servicing Agreement so long as the transfer was registered by the
Certificate Registrar or the Owner Trustee in accordance with the foregoing
requirements. (d) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
SECTION 3.04 Mutilated, Destroyed, Lost or Stolen Certificates. If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar, or
if the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity as
may be required by them to save each of them harmless, then in the absence of
notice that such Certificate shall have been acquired by a protected purchaser,
the Owner Trustee on behalf of the Trust shall execute and the Owner Trustee, or
the Owner Trustee's authenticating agent, shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and denomination. In connection
with the issuance of any new Certificate under this Section, the Owner Trustee
or the Certificate Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this
10
<PAGE> 16
Section shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 3.05 Persons Deemed Certificateholders. Prior to due
presentation of a Certificate for registration of transfer, the Owner Trustee or
the Certificate Registrar may treat the Person in whose name any Certificate
shall be registered in the Certificate Register as the owner of such Certificate
for the purpose of receiving distributions pursuant to Section 5.02 and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.06 Access to List of Certificateholders' Names and Addresses.
The Certificate Registrar shall furnish or cause to be furnished to the Owner
Trustee, the Servicer or the Depositor, as the case may be, within 15 days after
its receipt of a request therefor from the Owner Trustee, the Servicer or the
Depositor in writing, a list, in such form as the Owner Trustee, the Servicer or
the Depositor may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Holders of Certificates evidencing, in the
aggregate, not less than 25% of the Certificate Balance apply in writing to the
Owner Trustee, and such application states that the applicants desire to
communicate with other Certificateholders with respect to their rights under
this Agreement or under the Certificates and such application is accompanied by
a copy of the communication that such applicants propose to transmit, then the
Owner Trustee shall, within five Business Days after the receipt of such
application, afford such applicants access during normal business hours to the
current list of Certificateholders. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Depositor,
the Servicer, the Certificate Registrar or the Owner Trustee accountable by
reason of the disclosure of its name and address, regardless of the source from
which such information was derived.
SECTION 3.07 Maintenance of Office or Agency. The Owner Trustee shall
maintain an office or offices or agency or agencies where Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Owner Trustee in respect of the Certificates and the
Basic Documents may be served. The Owner Trustee initially designates Harris
Trust Company of New York, 88 Pine Street, 19th Floor, Wall Street Plaza, New
York, New York 10005, as its principal corporate trust office for such purposes.
The Owner Trustee shall give prompt written notice to the Depositor and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 3.08 Appointment of Paying Agent. Except during any period when
the Indenture Trustee is authorized and directed to do so under the Indenture
(i.e. prior to the termination of the Indenture), the Paying Agent shall make
distributions to Certificateholders from the Collection Account pursuant to
Section 5.02 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Collection Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be Wilmington Trust Company, and any
co-paying agent chosen by the Owner Trustee,
11
<PAGE> 17
and acceptable to the Owner Trustee. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days' written notice to the Indenture Trustee
and, if the Paying Agent is not the Owner Trustee, to the Owner Trustee. In the
event that Wilmington Trust Company shall no longer be the Paying Agent, the
Owner Trustee shall appoint a successor to act as Paying Agent (which shall be a
bank or trust company). The Owner Trustee shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Owner Trustee to execute
and deliver to the Owner Trustee an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Owner Trustee that as
Paying Agent, such successor Paying Agent or additional Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust for
the benefit of the Certificateholders entitled thereto until such sums shall be
paid to such Certificateholders. The Paying Agent shall return all unclaimed
funds to the Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Owner Trustee. The
provisions of Sections 7.01, 7.03, 7.04, 8.01 and 8.02 shall apply to the Owner
Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other Paying Agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.
SECTION 3.09 Ownership by the Depositor of Certificates. The Depositor
shall on the Closing Date receive in accordance with Section 3.02, and shall
thereafter retain beneficial and record ownership of, Certificates representing
100% of the Certificate Balance. Any attempted transfer of any Certificate that
would reduce such interest of the Depositor below 100% of the Certificate
Balance shall be void. The Owner Trustee shall cause one Certificate issued to
the Depositor (representing 100% of the Certificate Balance) to bear a legend
stating "THIS CERTIFICATE IS NON-TRANSFERABLE."
ARTICLE IV
Actions By Owner Trustee or Certificateholders
SECTION 4.01 Prior Notice to Certificateholders with Respect to Certain
Matters. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action (or such shorter
period as shall be agreed to in writing by all Certificateholders), the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and none of the Certificateholders shall have notified the Owner Trustee
in writing prior to the 30th day (or such agreed upon shorter period) after such
notice is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims
or lawsuits brought in connection with the collection of the Receivables) and
the compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Receivables);
(b) the election by the Trust to file an amendment to the Certificate
of Trust (unless such amendment is required to be filed under the Business Trust
Statute);
12
<PAGE> 18
(c) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is not required
but such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Administration
Agreement, other than to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially adversely
affect the interests of the Certificateholders;
(f) the appointment (i) pursuant to the Indenture of a successor Note
Registrar or Paying Agent, (ii) pursuant to this Agreement of a successor
Certificate Registrar or (iii) any consent by the Note Registrar, Paying Agent
or Indenture Trustee or Certificate Registrar to the assignment of its
respective obligations under the Indenture or this Agreement, as applicable; or
(g) the amendment of the Sale and Servicing Agreement in circumstances
where the consent of any Noteholder is required.
SECTION 4.02 Action by Certificateholders with Respect to Certain
Matters. The Owner Trustee shall not have the power, except upon the direction
of the Certificateholders, to (a) remove the Administrator pursuant to Section 8
of the Administration Agreement, (b) appoint a successor Administrator pursuant
to Section 8 of the Administration Agreement, (c) remove the Servicer pursuant
to Section 8.01 of the Sale and Servicing Agreement or (d) except as expressly
provided in the Basic Documents, sell the Receivables after the termination of
the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the authorized
representative of 100% of the Certificateholders.
SECTION 4.03 Action with Respect to Bankruptcy. The Owner Trustee shall
not have the power to commence a voluntary proceeding in bankruptcy relating to
the Trust without the unanimous prior approval of all Certificateholders
(including the Board of Directors (including the Independent Directors, as such
term is defined in the Depositor's Certificate of Incorporation) of the
Depositor) and the delivery to the Owner Trustee of a written certification by
each Certificateholder that such Certificateholder reasonably believes that the
Trust is insolvent.
SECTION 4.04 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligations of the Trust or of the Owner Trustee under any of the Basic
Documents or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.05 Majority of the Certificates Control. Except as otherwise
expressly provided herein, any action that may be taken by the
Certificateholders under this Agreement may be taken by the Holders of the
Certificates evidencing not less than a majority of the Certificate Balance.
Except as expressly provided herein, any written notice of the
13
<PAGE> 19
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of the Certificates evidencing not less than a majority of the
Certificate Balance at the time of the delivery of such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01 Establishment of the Trust Collection Account.
(a) On or prior to the Distribution Date on which the Notes of all
Classes have been paid in full (or substantially all of the Trust Estate is
otherwise released from the lien of the Indenture), the Owner Trustee, for the
benefit of the Certificateholders, shall establish and maintain, or shall cause
to be established and maintained, in the name of the Trust (or in such other
name as shall be specified in the Sale and Servicing Agreement), the trust
collection account (the "Trust Collection Account"). The Trust Collection
Account shall be established and maintained as an Eligible Deposit Account, and,
subject to provisions of the Sale and Servicing Agreement, bearing a designation
clearly indicating that, subject to Section 5.01(b), the funds deposited therein
are held by the Trust for the benefit of the Certificateholders, in each case in
accordance with Section 5.01 of the Sale and Servicing Agreement.
Subject to Section 5.01(b), the Owner Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Trust
Collection Account and in all proceeds thereof (other than any net investment
earnings on Eligible Investments held therein). Except as otherwise expressly
provided herein, the Trust Collection Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the Certificateholders. If,
at any time, the Trust Collection Account ceases to be an Eligible Deposit
Account, the Owner Trustee (or the Administrator on behalf of the Owner Trustee,
if the Trust Collection Account is not then held by the Owner Trustee or an
affiliate thereof) shall within 10 Business Days establish a new equivalent
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new account.
(b) Concurrently with the execution and delivery of the Indenture, the
Servicer will establish and maintain, or shall cause to be established and
maintained, at the direction of the Depositor, the Collection Account in the
name of and under the control of the Indenture Trustee for the benefit of the
Securityholders in accordance with Section 5.01 of the Sale and Servicing
Agreement. The Indenture Trustee will be obligated to transfer back to the Trust
Collection Account all funds or investments held in the Collection Account
established pursuant to the Sale and Servicing Agreement on the Distribution
Date on which the Notes of all Classes have been paid in full or the Indenture
is otherwise terminated (excluding any amounts to be retained for distribution
in respect of Notes that are not promptly delivered for payment on such
Distribution Date), and to take all necessary or appropriate actions to transfer
all right, title and interest of the Indenture Trustee in such funds or
investments and all proceeds thereof to the Owner Trustee for the benefit of the
Certificateholders.
14
<PAGE> 20
SECTION 5.02 Application of Amounts in Trust Accounts.
(a) For so long as any Notes are outstanding, on each Distribution
Date, the Indenture Trustee will distribute to Certificateholders, on a pro rata
basis, the amounts distributable thereto pursuant to Section 5.06 of the Sale
and Servicing Agreement and Section 3.01 of the Indenture. From and after the
date on which the Notes of all Classes have been paid in full, on each
Distribution Date, the Owner Trustee shall distribute to the Certificateholders
amounts on deposit in the Collection Account that are distributable to the
Certificateholders in accordance with the instructions of the Servicer pursuant
to Section 5.06 of the Sale and Servicing Agreement. Upon the release from the
Lien of the Indenture of amounts on deposit in the Collection Account or any
other portion of the Owner Trust Estate, the Owner Trustee will cause such
property to be properly deposited into the Trust Collection Account under the
control of the Owner Trustee pursuant to Section 5.01(a) or distributed to the
Certificateholders in accordance with the provisions of this Agreement, as the
case may be.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.09 of the Sale and Servicing Agreement with respect to
such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Owner Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to any distribution (such as any distribution to a Non-U.S.
Person), the Owner Trustee may in its sole discretion withhold such amounts in
accordance with this paragraph (c). In the event that a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
SECTION 5.03 Method of Payment. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the related Record Date
either by check mailed to such Certificateholder at the address of such holder
appearing in the Certificate Register or by wire transfer, in immediately
available funds, to the account of any Certificateholder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions at
least five Business Days prior to such Distribution Date.
SECTION 5.04 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Administrator
on behalf of the Trust shall (a)
15
<PAGE> 21
maintain (or cause to be maintained) the books of the Trust on a fiscal year
basis (with a March 31 year end) or a calendar basis on the accrual method of
accounting, (b) deliver to each Certificateholder, as may be required by the
Code and applicable Treasury Regulations, such information as may be required
(excluding Schedule K-1) to enable each Certificateholder to prepare its federal
and state income tax returns, (c) file any tax and information returns, and
fulfill any other reporting requirements, relating to the Trust, as may be
required by the Code and applicable Treasury Regulations (including Treasury
Regulation Section 1.6049-7), (d) for any period during which the beneficial
ownership interests in the Trust are held by more than one Person, make such
elections as may from time to time be required or appropriate under any
applicable state or federal statute or rule or regulation thereunder so as to
maintain the Trust's characterization as a partnership for federal income tax
purposes, (e) cause such tax returns to be signed in the manner required by law,
and (f) collect or cause to be collected any withholding tax as described in and
in accordance with Section 5.02(c) with respect to income or distributions to
Certificateholders. The Administrator on behalf of the Trust shall elect under
Section 1278 of the Code to include in income currently any market discount that
accrues with respect to the Receivables. The Administrator on behalf of the
Trust shall not make the election provided under Section 754 of the Code.
Notwithstanding anything to the contrary stated herein, the Owner Trustee shall
be exclusively responsible for the mailing of the Schedule K-1's necessary to
enable each Certificate Owner to prepare its federal and state income returns.
SECTION 5.05 Signature on Returns; Tax Matter Partner.
(a) The Administrator on behalf of the Trust shall sign on behalf of
the Trust the tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall be
signed by the Administrator, pursuant to the power-of-attorney granted thereto
pursuant to Section 2.04.
(b) For any period during which the beneficial ownership interests of
the Trust are held by more than one Person, the Certificateholder holding
Certificates evidencing the largest portion of the Original Certificate Balance
shall be designated the "tax matters partner" of the Trust pursuant to Section
6231(a)(7)(A) of the Code and applicable Treasury Regulations, but hereby
delegates its powers and duties as such to the Administrator pursuant to the
power-of-attorney granted thereto pursuant to Section 2.04.
ARTICLE VI
Authority and Duties of Owner Trustee
SECTION 6.01 General Authority. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment thereto, and, on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$184,000,000, Class A-2 Notes in the aggregate principal amount of $229,000,000,
Class A-3 Notes in the aggregate principal amount of $250,000,000 and Class A-4
Notes in the aggregate
16
<PAGE> 22
principal amount of $95,130,000. In addition to the foregoing, the Owner Trustee
is authorized, but shall not be obligated, to take all actions required of the
Trust, pursuant to the Basic Documents.
SECTION 6.02 General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in accordance with the provisions hereof and
of the Basic Documents and in the interest of the Certificateholders.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator to carry out such
obligations or fulfill such duties under the Administration Agreement.
SECTION 6.03 Duties of the Owner Trustee.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to Article IV.
The Owner Trustee, accepts the trusts hereby created and agrees to perform its
duties hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Owner Trustee that shall be specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform on their face to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Owner Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misfeasance; provided,
however, that:
(i) the duties and obligations of the Owner Trustee shall be
determined solely by the express provisions of this Agreement, the
Owner Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement,
no implied covenants or obligations shall be read into this Agreement
against the Owner Trustee, the permissive right of the Owner Trustee to
do things enumerated in this Agreement shall not be construed as a duty
and, in the absence of bad faith on the part of the Owner Trustee, the
Owner Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Owner Trustee and conforming
on their face to the requirements of this Agreement;
(ii) the Owner Trustee shall not be personally liable for an
error of judgment made in good faith by a Trust Officer, unless it
shall be proved that the Owner Trustee
17
<PAGE> 23
was negligent in performing its duties in accordance with the terms of
this Agreement; and
(iii) the Owner Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in good
faith in accordance with the direction of the Holders of the
Certificates representing at least a majority of the Certificate
Balance (or such larger or smaller percentage of the Certificate
Balance as may be required by any other provision of this Agreement or
the other Basic Documents), the Servicer, the Administrator or the
Indenture Trustee.
(c) The Owner Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties under this Agreement, or in the exercise of any of its rights or powers,
if there shall be reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) All information obtained by the Owner Trustee regarding the
Obligors and the Receivables contained in the Trust, whether upon the exercise
of its rights under this Agreement or otherwise, shall be maintained by the
Owner Trustee in confidence and shall not be disclosed to any other Person,
unless such disclosure is required by any applicable law or regulation or
pursuant to subpoena or is required to be made to regulators, auditors or other
governmental authorities.
(e) Pursuant to Section 3.02 of the Sale and Servicing Agreement, in
the event that the Owner Trustee discovers that a representation or warranty
made by the Seller pursuant to Section 3.01 or 6.01 of the Sale and Servicing
Agreement with respect to a Receivable was incorrect as of the time specified
with respect to such representation and warranty and such incorrectness
materially and adversely affects the interests of any Securityholder in such
Receivable, the Owner Trustee shall give prompt written notice to the Servicer,
the Depositor and the Indenture Trustee of such incorrectness. Pursuant to
Section 4.06 of the Sale and Servicing Agreement, in the event that the Owner
Trustee discovers that any covenant of the Servicer set forth in the second
sentence of Section 4.01 or Section 4.02 or 4.05 of the Sale and Servicing
Agreement has been breached by the Servicer, the Owner Trustee shall give prompt
written notice to the Servicer, the Depositor and the Indenture Trustee of such
breach.
SECTION 6.04 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any Basic Document to which the
Owner Trustee is a party or otherwise contemplated hereby, except as expressly
provided by the terms of this Agreement, any Basic Document to which the Trust
is a party or in any document or written instruction received by the Owner
Trustee pursuant to Section 6.03. No implied duties or obligations shall be read
into this Agreement or any Basic Document against the Owner Trustee. The Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or otherwise to perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
prepare or file
18
<PAGE> 24
any Securities and Exchange Commission filing for the Trust or to record this
Agreement or any Basic Document. The Owner Trustee nevertheless agrees that it
will, at its own cost and expense, promptly take all action as may be necessary
to discharge any liens on any part of the Owner Trust Estate that result from
actions by, or claims against, the Owner Trustee that are not related to the
ownership or the administration of the Owner Trust Estate.
SECTION 6.05 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03.
SECTION 6.06 Restrictions. The Owner Trustee shall not take any action
(a) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (b) that, to the actual knowledge of a Trust Officer of the Owner
Trustee, would result in the Trust's becoming taxable as a corporation for
federal income tax purposes. The Certificateholders shall not have the authority
to and, by acceptance of an ownership interest in any Certificate shall thereby
be deemed to have covenanted not to, direct the Owner Trustee to take action
that would violate the provisions of this Section.
ARTICLE VII
Concerning the Owner Trustee
SECTION 7.01 Rights of the Owner Trustee . Except as otherwise provided
in Article VI:
(a) in accordance with Section 7.04, the Owner Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of an authorized signatory, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator, as provided in the Administration Agreement, the Servicer or the
Indenture Trustee, or the Certificateholders, as provided herein;
(c) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or the Sale and Servicing
Agreement, or to institute, conduct or defend any litigation under this
Agreement, or in relation to this Agreement or the Sale and Servicing Agreement,
at the request, order or direction of any of the Securityholders pursuant to the
provisions of this Agreement or the Sale and Servicing Agreement, unless such
19
<PAGE> 25
Securityholders shall have offered to the Owner Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be bound to recalculate, reverify, or
make any investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates representing not less than 25% of the
Certificate Balance; provided, however, that if the payment within a reasonable
time to the Owner Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Owner Trustee, not reasonably assured to the Owner Trustee by the security
afforded to it by the terms of this Agreement, the Owner Trustee may require
reasonable indemnity against such cost, expense or liability as a condition to
so proceeding; the reasonable expense of every such examination shall be paid by
the Administrator or, if paid by the Owner Trustee, shall be reimbursed by the
Administrator upon demand; and nothing in this clause shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors; and
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Administrator, the Servicer, the Depositor or the Indenture Trustee under
any of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust or any other
Person (including the Owner Trustee) under the Basic Documents that are required
to be performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement. SECTION 7.02 Furnishing of Documents. The Owner Trustee
shall furnish to the Certificateholders promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Owner Trustee under the Basic Documents.
SECTION 7.03 Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Depositor and for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of Delaware. It has full power, right and authority
to execute, deliver and perform its obligations under this Agreement and each
other Basic Document.
(b) It has taken all corporate action necessary to authorize the
execution and delivery of this Agreement and each other Basic Document, and this
Agreement and each other Basic Document has been executed and delivered by one
of its officers duly authorized to execute and deliver this Agreement and each
other Basic Document on its behalf.
20
<PAGE> 26
(c) This Agreement constitutes the legal, valid and binding obligation
of the Owner Trustee, enforceable against it in accordance with its terms except
as the enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity.
(d) It is authorized to exercise trust powers in the State of Delaware
as and to the extent contemplated herein or has appointed a Delaware trustee
that is so authorized and it has a principal place of business in the State of
Delaware or has appointed a Delaware trustee that has such a principal place of
business.
(e) Neither the execution nor the delivery by it of this Agreement nor
the consummation by the Owner Trustee of the transactions contemplated hereby or
thereby nor compliance by it with any of the terms or provisions hereof or
thereof will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
SECTION 7.04 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond, or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Owner Trustee may for all
purposes hereof rely on a certificate, signed by the president or any vice
president or by the treasurer or other authorized officers or agents of the
relevant party, as to such fact or matter and such certificate shall constitute
full protection to the Owner Trustee for any action taken or omitted to be taken
by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under the Basic Documents, the
Owner Trustee (i) may act directly or through its agents or attorneys pursuant
to agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the opinion or advice of any such counsel, accountants or other such
persons and not, to the actual knowledge of the Owner Trustee, contrary to this
Agreement or any Basic Document.
SECTION 7.05 Not Acting in Individual Capacity. In accepting the trusts
hereby created, Wilmington Trust Company acts solely as Owner Trustee hereunder
and not in its individual capacity. Except with respect to a claim based on the
Owner Trustee's willful
21
<PAGE> 27
misconduct, bad faith or negligence, no recourse shall be had for any claim
based on any provision of this Agreement, the Notes or Certificates, or based on
rights obtained through the assignment of any of the foregoing, against the
institution serving as the Owner Trustee in its individual capacity. The Owner
Trustee shall not have any personal obligation, liability or duty whatsoever to
any Securityholder or any other Person with respect to any such claim, and any
such claim shall be asserted solely against the Trust or any indemnitor who
shall furnish indemnity as provided in this Indenture.
SECTION 7.06 Owner Trustee Not Liable for Certificates or Receivables.
The Owner Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates or of the Notes (other than the execution
by the Owner Trustee on behalf of the Trust of, and the certificate of
authentication on, the Certificates). The Owner Trustee shall have no obligation
to perform any of the duties of the Servicer or Administrator.
The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
the Certificates, the Notes or any Receivable, any ownership interest in any
Financed Vehicle, or the maintenance of any such ownership interest, or for or
with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Securityholders under this Agreement and the
Indenture, including without limitation the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the existence,
condition, location and ownership of any Receivable or Financed Vehicle; the
existence and enforceability of any physical damage or credit life or credit
disability insurance; the existence and contents of any retail installment sales
contract or any computer or other record thereof; the completeness of any retail
installment sales contract; the performance or enforcement of any retail
installment sales contract; the compliance by the Trust with any covenant or the
breach by the Trust of any warranty or representation made under this Agreement
or in any related document and the accuracy of any such warranty or
representation prior to the Owner Trustee's receipt of notice or other discovery
of any noncompliance therewith or any breach thereof; the acts or omissions of
the Trust or the Servicer; or any action by the Owner Trustee taken at the
instruction of the Certificateholders, provided, however, that the foregoing
shall not relieve the Owner Trustee of its obligation to perform its duties
under this Agreement.
The Owner Trustee shall not be accountable for the use or
application by the Issuer of any of the Certificates or of the proceeds of such
Certificates, of any of the Notes or of the proceeds of such Notes, or for the
use or application of any funds paid to the Servicer in respect of the
Certificates.
SECTION 7.07 Owner Trustee May Own Certificates and Notes. The Owner
Trustee in its individual or any other capacity may become the owner or pledgee
of Certificates or Notes and may deal with the Depositor, the Administrator, the
Indenture Trustee and the Servicer in banking or other transactions with the
same rights as it would have if it were not Owner Trustee.
SECTION 7.08 Sales Finance Licenses. The Owner Trustee shall cause the
Trust to use its best efforts to maintain the effectiveness of all licenses
required under the Pennsylvania Motor Vehicle Sales Finance Act and all other
similar applicable state laws (other than those of Alabama, Hawaii and Maryland)
in connection with this Agreement and the Basic Documents
22
<PAGE> 28
and the transactions contemplated hereby and thereby until such time as the
Trust shall terminate in accordance with the terms hereof.
ARTICLE VIII
Compensation of Owner Trustee
SECTION 8.01 Owner Trustee's Fees and Expenses. The Depositor shall pay
or shall cause the Servicer to pay to the Owner Trustee from time to time
compensation for its services as have been separately agreed upon before the
date hereof. The Depositor shall reimburse the Owner Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the Owner
Trustee's agents, counsel, accountants and experts directly related to its
services hereunder ("Expenses").
SECTION 8.02 Indemnification. The Depositor shall indemnify or shall
cause the Servicer or the Administrator to indemnify the Owner Trustee against
any and all loss, liability, claim, tort, penalty or Expense (including
reasonable attorneys' fees) of any kind or nature whatsoever incurred by it in
connection with the administration of the Trust and the performance of its
duties hereunder. The Owner Trustee shall notify the Administrator and the
Servicer promptly of any claim for which it may seek indemnity. Failure by the
Owner Trustee to so notify the Administrator and the Servicer shall not relieve
the Depositor or the Administrator or the Servicer of its obligations hereunder,
except to the extent such failure shall adversely affect the Depositor's or the
Administrator's or the Servicer's defenses in respect thereof. In case any such
action is brought against the Owner Trustee under this Section 8.02 and it
notifies the Administrator of the commencement thereof, the Administrator will
assume the defense thereof, with counsel reasonably satisfactory to the Owner
Trustee (who may, unless there is, as evidenced by an opinion of counsel to the
Owner Trustee stating that there is a conflict of interest, be counsel to the
Administrator), and the Administrator will not be liable to the Owner Trustee
under this Section for any legal or other expenses subsequently incurred by the
Owner Trustee in connection with the defense thereof, other than reasonable
costs of investigation. Neither the Depositor nor the Administrator nor the
Servicer need reimburse any expense or indemnify against any loss, liability or
expense incurred by the Owner Trustee through the Owner Trustee's own willful
misconduct, negligence or bad faith. The Owner Trustee's rights under this
Article VIII shall survive the termination of this Agreement or the resignation
or removal of the Owner Trustee.
SECTION 8.03 Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee pursuant to this Article VIII from assets in the Owner Trust
Estate shall be deemed not to be a part of the Owner Trust Estate immediately
after such payment.
23
<PAGE> 29
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) shall terminate and the
Trust shall dissolve and be wound up in accordance with Section 3808 of the
Business Trust Statute, upon the earliest of (i) the maturity or other
liquidation of the last Receivable (or other asset) in the Owner Trust Estate
and the final distribution of all moneys or other property or proceeds of the
Owner Trust Estate in accordance with the terms of this Agreement, the Indenture
and the Sale and Servicing Agreement (including, but not limited to, any
property and proceeds to be deposited in the Collection Account pursuant to the
terms of the Sale and Servicing Agreement or to be released by the Indenture
Trustee from the Lien of the Indenture pursuant to the terms of the Indenture),
or (ii) the election by the Servicer to purchase the corpus of the Trust
pursuant to Section 9.01 of the Sale and Servicing Agreement and the payment or
distribution to all Securityholders of all amounts required to be paid to them
under the Indenture or this Agreement. The bankruptcy, liquidation, dissolution,
death or incapacity of any Certificateholder shall not (x) operate to terminate
this Agreement or the Trust, nor (y) entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Owner Trust Estate, nor (z) otherwise affect the rights, obligations
and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates to the
Paying Agent for payment of the final distributions and cancellation, shall be
given by the Owner Trustee to the Certificateholders mailed within five Business
Days of receipt of notice of such termination from the Servicer given pursuant
to Section 10.03 of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the Certificates
at the office of the Paying Agent therein designated, (ii) the amount of any
such final payment and (iii) that payment to be made on such Distribution Date
will be made only upon presentation and surrender of the Certificates at the
office of the Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent (if other than the Owner Trustee) at the time such notice is given
to Certificateholders. Upon presentation and surrender of the Certificates, the
Paying Agent shall cause to be distributed to Certificateholders amounts
distributable on such Distribution Date pursuant to Section 5.02.
In the event that one or more of the Certificateholders shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned written notice, the Owner Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution
24
<PAGE> 30
with respect thereto. If within one year after the second notice all the
Certificates shall not have been surrendered for cancellation, the Owner Trustee
may take appropriate steps, or may appoint an agent to take appropriate steps,
to contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies shall be distributed by the Owner
Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE X
Successor Owner Trustees and Additional Owner Trustees
SECTION 10.01 Eligibility Requirements for Owner Trustee. The Owner
Trustee shall at all times be an entity having a combined capital and surplus of
at least $50,000,000 and subject to supervision or examination by federal or
state authorities. If such entity shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section 10.01, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Owner Trustee shall resign
immediately in the manner and with the effect specified in Section 10.02.
SECTION 10.02 Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Depositor, the Servicer and the
Indenture Trustee. If, for any reason, Wilmington Trust Company or any of its
Affiliates should assume the duties of the Indenture Trustee, then from that
time forward Wilmington Trust Company, in its capacity as Owner Trustee, shall
resign as Owner Trustee hereunder if any Event of Default under the Indenture
occurs and is necessary to eliminate any conflict of interest under the TIA with
the Indenture Trustee or any other trustee under the Indenture. Upon receiving
such notice of resignation, the Servicer shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which shall be
delivered to each of the resigning Owner Trustee and the successor Owner
Trustee. If no successor Owner Trustee shall have been so appointed or shall not
have accepted such appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
promptly, or if at any time the Owner Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or
of its property shall be appointed, or any public officer shall take charge or
25
<PAGE> 31
control of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may remove
the Owner Trustee by written instrument to such effect delivered to the Owner
Trustee, the Depositor and the Indenture Trustee. If the Administrator shall
remove the Owner Trustee under the authority of the immediately preceding
sentence, the Servicer shall promptly appoint a successor Owner Trustee by
written instrument in duplicate, one copy of which instrument shall be delivered
to each of the outgoing Owner Trustee so removed and the successor Owner
Trustee, and pay all fees, expenses and other compensation owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating Agencies.
SECTION 10.03 Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties, and obligations of its predecessor under
this Agreement, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall upon payment of its fees and expenses deliver to
the successor Owner Trustee all documents and statements and monies held by it
under this Agreement; and the Administrator and the predecessor Owner Trustee
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
meet the criteria for eligibility set forth in Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of the Owner
Trustee to all Certificateholders, the Indenture Trustee, all Noteholders and
the Rating Agencies. If the Administrator fails to mail such notice within 10
days after acceptance of appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
SECTION 10.04 Merger or Consolidation of Owner Trustee. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, provided
such corporation shall be eligible pursuant to Section 10.01, without the
execution or
26
<PAGE> 32
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, further, that
the Owner Trustee shall mail notice of such merger or consolidation to the
Rating Agencies.
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate or any Financed Vehicle may at the time be located,
the Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Owner Trustee to act as co-trustee, jointly with the Owner
Trustee, or separate trustee or separate trustees, of all or any part of the
Owner Trust Estate, and to vest in such Person, in such capacity, such title to
the Trust, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 25 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a trustee
pursuant to Section 10.01 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provision and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Owner Trustee shall be conferred upon and exercised or
performed by the Owner Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Owner Trustee joining
in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Owner Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as if given to each of them. Each separate trustee and co-trustee,
upon its acceptance of the powers and duties conferred thereto under this
Agreement, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this
27
<PAGE> 33
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with the
Owner Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect, of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01 Supplements and Amendments. This Agreement may be amended
by the Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel, adversely affect in any material respect the interests
of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Holders of the Notes evidencing not less than a majority of
the Outstanding Amount of the Notes (excluding for such purpose Notes owned by
NARC, NMAC or any of their Affiliates unless at such time all Notes are then
owned by NARC, NMAC and their Affiliates) or if all of the Notes have been paid
in full, the Holders of the Certificates evidencing not less than a majority of
the Certificate Balance (excluding for such purpose Certificates owned by NARC,
NMAC or any of their Affiliates unless at such time all Certificates are then
owned by NARC, NMAC and their Affiliates) 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 Noteholders or
the Certificateholders; provided, however, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall be
required to be made for the benefit of the Noteholders or the Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
and the Certificate Balance required to consent to any such amendment, without
the consent of the Holders of all the affected Notes and Certificates.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and each
of the Rating Agencies.
28
<PAGE> 34
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Owner Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment which affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02 No Legal Title to Owner Trust Estate in
Certificateholders. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
SECTION 11.03 Limitations on Rights of Others. Except for Section 2.06,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, the Certificateholders, the Administrator and, to the
extent expressly provided herein the Indenture Trustee and the Noteholders, and
nothing in this Agreement (other than Section 2.06), whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Owner Trust Estate or under or in respect of this
Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.04 Notices.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon receipt
by the intended recipient or three Business Days after mailing if mailed by
certified mail, postage prepaid (except that notice to the Owner Trustee shall
be deemed given only upon actual receipt by the Owner Trustee), if to the Owner
Trustee, addressed to the Corporate Trust Office; if to the Depositor, addressed
to Nissan Auto Receivables Corporation, 990 West 190th Street, Torrance,
California 90502, Attention of Secretary; if, to the Trust, addressed to Nissan
Auto Receivables 2000-A Owner Trust, c/o Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Nissan
Auto Receivables 2000-A Owner Trust, with a copy to Nissan Motor Acceptance
Corporation, 990 West 190th Street, Torrance, California 90502,
29
<PAGE> 35
Attention: Secretary; or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 11.05 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.06 Counterparts. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original, and all of which shall constitute but one and the same
instrument.
SECTION 11.07 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificateholder and
its successors and permitted assigns, all as herein provided. Any request,
notice, direction, consent, waiver or other instrument or action by a
Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.08 No Petition. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement, hereby
covenants and agrees, and each Certificateholder, by accepting a Certificate,
and the Indenture Trustee and any Noteholder by accepting the benefits of this
Agreement, are thereby deemed to covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law. This Section 11.08 shall survive
the termination of this Agreement or the termination of the Owner Trustee under
this Agreement.
SECTION 11.09 No Recourse. Each Certificateholder by accepting an
interest in a Certificate acknowledges that such Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, NMAC (in any capacity), the Administrator, the
Owner Trustee, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly set
forth or contemplated in the Certificates or the Basic Documents.
SECTION 11.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
30
<PAGE> 36
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 11.12 NMAC Payment Obligation. The parties hereto acknowledge
and agree that, pursuant to the Sale and Servicing Agreement, the Servicer shall
be responsible for payment of the Administrator's fees under the Administration
Agreement and shall reimburse the Administrator for all expenses and liabilities
of the Administrator incurred thereunder. In addition, the parties hereto
acknowledge and agree that, pursuant to the Sale and Servicing Agreement, the
Servicer shall be responsible for the payment of all fees and expenses of the
Trust, the Owner Trustee (to the extent not paid by the Depositor or the
Administrator) and the Indenture Trustee paid by any of them in connection with
any of their obligations under the Basic Documents to obtain or maintain any
required license under the Pennsylvania Motor Vehicle Sales Finance Act and all
other similar applicable state laws other than those of Alabama, Hawaii and
Maryland.
31
<PAGE> 37
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
NISSAN AUTO RECEIVABLES CORPORATION,
as Depositor
By: /s/ Tomoaki Shimazu
-------------------------------------
Name: Tomoaki Shimazu
Title: Treaurer, Assistant Secretary
and Director
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ James P. Lawler
-------------------------------------
Name: James P. Lawler
Title: Vice President
S-1
<PAGE> 38
EXHIBIT A
(FORM OF CERTIFICATE)
THIS CERTIFICATE IS NON-TRANSFERABLE.
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER, THE ADMINISTRATOR, NMAC, NARC,
NISSAN NORTH AMERICA, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT
BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
A-1
<PAGE> 39
NUMBER $____________
R-_____ CUSIP NO. _________
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new, near-new and used automobiles and light-duty trucks and sold to the
Trust by Nissan Auto Receivables Corporation ("NARC").
(This Certificate does not represent an interest in or obligation of NARC,
Nissan Motor Acceptance Corporation ("NMAC"), Nissan North America, Inc. or any
of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT ________________________________________ is the
registered owner of _________________________ DOLLARS nonassessable, fully-paid,
fractional undivided interest in Nissan Auto Receivables 2000-A Owner Trust (the
"Trust") formed by NARC.
The Trust was created pursuant to a Trust Agreement, dated as of
December 21, 1999 (as amended and supplemented from time to time, including the
Amended and Restated Trust Agreement, dated as of January 27, 2000, the "Trust
Agreement"), between NARC, as depositor (the "Depositor"), and Wilmington Trust
Company, as owner trustee (the "Owner Trustee"), a summary of certain of the
pertinent provisions of which is set forth below. Capitalized terms used herein
and not otherwise defined have the meanings assigned to such terms in the Trust
Agreement, the Indenture, dated as of January 27, 2000 (the "Indenture"),
between the Trust and Norwest Bank Minnesota, National Association, as indenture
trustee (the "Indenture Trustee"), or in the Sale and Servicing Agreement, dated
as of January 27, 2000 (the "Sale and Servicing Agreement"), among the Trust,
the Depositor and NMAC, as servicer (the "Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates designated
as "Asset Backed Certificates" (the "Certificates") issued pursuant to the Trust
Agreement. Certain debt instruments evidencing obligations of the Trust have
been issued under the Indenture, consisting of four classes of Notes designated
as "Class A-1 6.125% Asset Backed Notes", "Class A-2 6.730% Asset Backed
Notes,", "Class A-3 7.010% Asset Backed Notes" and "Class A-4 7.170% Asset
Backed Notes" (collectively, the "Notes"). This Certificate is issued under and
is subject to the terms, provisions and conditions of the Trust Agreement to
which Trust Agreement the holder of this Certificate by virtue of the acceptance
hereof assents and by which such holder is bound. The property of the Trust
includes a pool of retail installment sale contracts secured by new, near-new
and used automobiles and light-duty trucks (the "Receivables"), all monies
received after the Cutoff Date, security interests in the vehicles financed
thereby, certain bank accounts and the proceeds thereof, proceeds from claims on
certain insurance policies and certain
A-2
<PAGE> 40
other rights under the Trust Agreement and the Sale and Servicing Agreement and
all proceeds of the foregoing.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day,
(each, a "Distribution Date"), commencing on February 15, 2000, to the person in
whose name this Certificate is registered at the close of business on the
related Record Date, such Certificateholder's pro rata portion of the amounts to
be distributed to Holders of the Certificates on such Distribution Date in
respect of amounts distributable to the Certificateholders of the Certificates
pursuant to Section 5.06 of the Sale and Servicing Agreement.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement and
the Indenture.
It is the intent of the Depositor, NMAC and the Certificateholders
that, for purposes of federal income tax, state and local income tax, any state
single business tax and any other income taxes, the Trust will be treated as a
division or branch of the Person holding the beneficial ownership interests in
the Trust for any period during which the beneficial ownership interests in the
Trust are held by one person, and will be treated as a partnership, and the
Certificateholders will be treated as partners in that partnership, for any
period during which the beneficial ownership interests in the Trust are held by
more than one person. For any such period during which the beneficial ownership
interests in the Trust are held by more than one person, each Certificateholder,
by acceptance of a Certificate or any beneficial interest on a Certificate,
agrees to treat, and to take no action inconsistent with the treatment of, the
Certificates as partnership interests in the Trust for such tax purposes.
Each Certificateholder, by its acceptance of a Certificate or any
beneficial interest in a Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States, federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Paying Agent by wire transfer or check mailed to each
Certificateholder of record without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency of the Paying Agent maintained for the
purpose by the Owner Trustee in the Borough of Manhattan, The City of New York.
A-3
<PAGE> 41
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee or an authenticating
agent, by manual signature, this Certificate shall not entitle the holder hereof
to any benefit under the Trust Agreement or the Sale and Servicing Agreement or
be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
<PAGE> 42
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not
in its individual capacity, has caused this Certificate to be duly executed.
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
Dated: By:
--------------------------------------
Authorized Signatory
A-5
<PAGE> 43
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By:
--------------------------------------
Authorized Signatory
A-6
<PAGE> 44
(REVERSE OF CERTIFICATE)
The Certificates do not represent an obligation of, or an interest in,
the Owner Trustee, NMAC, NARC, Nissan North America, Inc. or any of their
Affiliates and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated herein or in the Trust
Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Receivables (and certain
other amounts), all as more specifically set forth in the Trust Agreement and in
the Sale and Servicing Agreement. A copy of each of the Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business hours
at the principal office of the Depositor, and at such other places, if any,
designated by the Depositor, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee, with the consent of the Holders
of the Notes representing a majority of the Outstanding Amount of the Notes, or,
if all of the Notes have been paid in full, with the consent of the Holders of
the Certificates representing a majority of the Certificate Balance (excluding,
in each case, Securities held by NARC, NMAC or any of their Affiliates unless at
such time all Notes or Certificates, as the case may be, are then owned by NARC,
NMAC and their Affiliates). Any such consent by the holder of this Certificate
shall be conclusive and binding on such holder and on all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate or such replacement certificate. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of the Certificates or the Notes.
As provided in the Trust Agreement, and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the Borough of Manhattan in The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of authorized denominations evidencing the same aggregate
interest in the Trust will be issued to the designated transferee or
transferees. The initial Certificate Registrar appointed under the Trust
Agreement is Harris Trust Company of New York, at 88 Pine Street, 19th Floor,
Wall Street Plaza, New York, New York 10005.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000.00 and in integral multiples of $0.01 in
excess thereof. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but the
Owner Trustee or the Certificate
A-7
<PAGE> 45
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes and none of the
Owner Trustee, the Certificate Registrar or any such agent shall be affected by
any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Certificateholders
of all amounts required to be paid to them pursuant to the Trust Agreement and
the Sale and Servicing Agreement and the disposition of all property held as
part of the Owner Trust Estate. NMAC, as servicer of the Receivables under the
Sale and Servicing Agreement, or any successor servicer, may at its option
purchase the corpus of the Trust at a price specified in the Sale and Servicing
Agreement, and any such purchase of the Receivables and other property of the
Trust will effect early retirement of the Certificates; however, such right of
purchase is exercisable only after the last day of the Collection Period as of
which the Pool Balance is less than or equal to 10% of the Original Pool
Balance.
A-8
<PAGE> 46
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
____________________________________________________________________ Attorney to
transfer said Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated: ___________________
_______________________________________*/
Signature Guaranteed:
_______________________________________*/
- --------------
*/ NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-9
<PAGE> 47
EXHIBIT B
FORM OF TRANSFEREE REPRESENTATION LETTER
Nissan Auto Receivables 2000-A Owner Trust
c/o WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Nissan Auto Receivables 2000-A Owner Trust
HARRIS TRUST COMPANY OF NEW YORK,
as Certificate Registrar
88 Pine Street, 19th Floor
Wall Street Plaza
New York, New York 10005
Attention: Nissan Auto Receivables 2000-A Owner Trust
Attention: Corporate Trust Services -- Nissan Auto Receivables
2000-A Owner Trust
Re: Transfer of Nissan Auto Receivables 2000-A Owner
Trust Certificates, (the "Certificates")
Ladies and Gentlemen:
This letter is delivered pursuant to Section 3.03 of the
Amended and Restated Trust Agreement, dated as of January 27, 2000 (the "Trust
Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and
Wilmington Trust Company, as Owner Trustee (the "Owner Trustee"), in connection
with the transfer by ______________________________ (the "Seller") to the
undersigned (the "Purchaser") of $__________________________ balance of the
Certificates. Capitalized terms used and not otherwise defined herein have the
meanings assigned to such terms in the Trust Agreement.
In connection with such transfer, the undersigned hereby
represents and warrants to you and the addressees hereof as follows:
[ ] I am not a Non-U.S. Person as defined in the Trust
Agreement; and
[ ] I am not (i) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code
of 1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar
B-1
<PAGE> 48
Law") which is, to a material extent, similar to the foregoing provisions of
ERISA or the Code (each a "Plan") or (ii) a person acting on behalf of or using
the assets of any such Plan (including an entity whose underlying assets include
Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulation ss. 2510.3-101).
[Signature appears on next page]
IN WITNESS WHEREOF, the Purchaser hereby executes this
Transferee Representation Letter on the ___ day of _______________.
Very truly yours,
______________________________________,
The Purchaser
By: ___________________________________
Name:
Title:
B-2
<PAGE> 49
EXHIBIT C
FORM OF TRANSFEROR REPRESENTATION LETTER
Nissan Auto Receivables 2000-A Owner Trust
c/o WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as Owner Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Nissan Auto Receivables 2000-A Owner Trust
HARRIS TRUST COMPANY OF NEW YORK,
as Certificate Registrar
88 Pine Street, 19th Floor
Wall Street Plaza
New York, New York 10005
Attention: Nissan Auto Receivables 2000-A Owner Trust
Attention: Corporate Trust Services -- Nissan Auto Receivables
2000-A Owner Trust
Re: Transfer of Nissan Auto Receivables 2000-A Owner
Trust Certificates, (the "Certificates")
Ladies and Gentlemen:
This letter is delivered pursuant to Section 3.03 of the
Amended and Restated Trust Agreement, dated as of January 27, 2000 (the "Trust
Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and
Wilmington Trust Company, as Owner Trustee (the "Owner Trustee"), in connection
with the transfer by _______________________________ (the "Purchaser") to the
undersigned (the "Seller") of $__________________________ balance of the
Certificates. Capitalized terms used and not otherwise defined herein have the
meanings ascribed thereto in the Trust Agreement. The Transferor hereby
certifies, represents and warrants to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited
any offer to buy or accept a transfer, pledge or other disposition of
C-1
<PAGE> 50
any Transferred Certificate, any interest in any Transferred
Certificate or any other similar security from any person in any
manner, (c) otherwise approached or negotiated with respect to any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security with any person in any manner, (d) made any
general solicitation by means of general advertising or in any other
manner, or (e) taken any other action, which (in the case of any of the
acts described in clauses (a) through (e) hereof) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the
disposition of any Transferred Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Transferred Certificate pursuant
to the Securities Act or any state securities laws.
Very truly yours,
_________________________________________
(Transferor)
By: _____________________________________
Name: ___________________________________
Title: __________________________________
C-2
<PAGE> 1
EXHIBIT 4.5
ADMINISTRATION AGREEMENT
among
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST,
as Issuer
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of January 27, 2000
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
1. DUTIES OF THE ADMINISTRATOR.........................................................2
2. RECORDS.............................................................................7
3. COMPENSATION........................................................................7
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER................................7
5. INDEPENDENCE OF THE ADMINISTRATOR...................................................7
6. NO JOINT VENTURE....................................................................7
7. OTHER ACTIVITIES OF ADMINISTRATOR...................................................8
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.........................8
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.....................................9
10. NOTICES.............................................................................9
11. AMENDMENTS.........................................................................10
12. SUCCESSOR AND ASSIGNS..............................................................11
13. GOVERNING LAW......................................................................11
14. NO PETITION........................................................................11
15. HEADINGS...........................................................................11
16. COUNTERPARTS.......................................................................11
17. SEVERABILITY OF PROVISIONS.........................................................11
18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES.........................................11
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.....................12
</TABLE>
<PAGE> 3
ADMINISTRATION AGREEMENT, dated as of January 27, 2000, among NISSAN
AUTO RECEIVABLES 2000-A OWNER TRUST, a Delaware business trust (the "Issuer"),
NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation, as administrator
(the "Administrator"), and Norwest Bank Minnesota, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity but solely as
Indenture Trustee (as defined below).
W I T N E S S E T H:
WHEREAS, beneficial ownership interests in the Issuer represented by the
Nissan Auto Receivables 2000-A Owner Trust Asset Backed Certificates (the
"Certificates") have been issued in connection with the formation of the Issuer
pursuant to the Amended and Restated Trust Agreement, dated as of January 27,
2000 (the "Trust Agreement"), between Nissan Auto Receivables Corporation
("NARC"), a Delaware corporation, as depositor, and Wilmington Trust Company, as
owner trustee (the "Owner Trustee") to the owners thereof (the "Owners");
WHEREAS, the Issuer is issuing the Nissan Auto Receivables 2000-A Owner
Trust 6.125% Asset Backed Notes Class A-1, the Nissan Auto Receivables 2000-A
Owner Trust 6.730% Asset Backed Notes Class A-2, the Nissan Auto Receivables
2000-A Owner Trust 7.010% Asset Backed Notes Class A-3, and the Nissan Auto
Receivables 2000-A Owner Trust 7.170% Asset Backed Notes Class A-4
(collectively, the "Notes") pursuant to the Indenture, dated as of January 27,
2000 (as amended and supplemented from time to time, the "Indenture"), between
the Issuer and Norwest Bank Minnesota, National Association, as indenture
trustee (the "Indenture Trustee"; capitalized terms used herein and not defined
herein shall have the meanings ascribed thereto in the Indenture, the Trust
Agreement or the Sale and Servicing Agreement, dated as of January 27, 2000,
among the Issuer, Nissan Motor Acceptance Corporation ("NMAC"), as servicer, and
NARC, as seller (the "Sale and Servicing Agreement"), as the case may be);
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Certificates and the Notes, including the Purchase
Agreement, dated as of January 27, 2000 (the "Purchase Agreement"), between
NMAC, as seller, and NARC, as purchaser, the Trust Agreement, the Indenture,
this Agreement, the Securities Account Control Agreement, the Yield Supplement
Agreement, the Note Depository Agreement, and the Sale and Servicing Agreement
(collectively, the "Basic Documents");
WHEREAS, pursuant to the Basic Documents, the Issuer is required to
perform certain duties in connection with the Certificates, the Notes and the
Collateral;
WHEREAS, the Issuer desires to appoint NMAC as administrator to perform
certain of the duties of the Issuer under the Basic Documents and to provide
such additional services consistent with the terms of this Agreement and the
Basic Documents as the Issuer may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer on the
terms set forth herein;
<PAGE> 4
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. DUTIES OF THE ADMINISTRATOR.
(a) Duties with respect to the Note Depository Agreement and the
Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator under the Basic Documents and the duties of the
Issuer under the Note Depository Agreement and the Indenture. In
addition, the Administrator shall consult with the Owner Trustee
regarding the duties of the Issuer under the Indenture and the
Note Depository Agreement. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee when
action by the Issuer or the Owner Trustee is necessary to comply
with the Issuer's duties under the Indenture and the Note
Depository Agreement. The Administrator shall prepare for
execution by the Issuer or shall cause the preparation by other
appropriate persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of
the Issuer to prepare, file or deliver pursuant to the Indenture
and the Note Depository Agreement. In furtherance of the
foregoing, the Administrator shall take all appropriate action
that is the duty of the Issuer to take pursuant to the Indenture
including, without limitation, such of the foregoing as are
required with respect to the following matters under the
Indenture (references are to sections of the Indenture):
(A) preparing or obtaining the documents and
instruments required for the proper authentication of
Notes and delivering the same to the Indenture Trustee
(Section 2.02);
(B) appointing the Note Registrar and giving the
Indenture Trustee notice of any appointment of a new Note
Registrar and the location, or change in location, of the
Note Register (Section 2.04);
(C) preparing the notification to Noteholders of
the final principal payment on their Notes (Section
2.07(b));
(D) preparing, obtaining and/or filing of all
instruments, opinions and certificates and other documents
required for the release of Collateral (Section 2.09) ;
(E) maintaining an office in the Borough of
Manhattan, City of New York, for the registration of
transfer or exchange of Notes (Section 3.02);
(F) causing newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument
specified in the Indenture regarding funds held in trust
(Section 3.03);
2
<PAGE> 5
(G) directing the Indenture Trustee to deposit
moneys with Paying Agents, if any, other than the
Indenture Trustee (Section 3.03);
(H) obtaining and preserving or causing the Owner
Trustee to obtain and preserve the Issuer's qualification
to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the
validity and enforceability of the Indenture, the Notes,
the Collateral and each other instrument and agreement
included in the Trust Estate (Section 3.04);
(I) preparing all supplements, amendments,
financing statements, continuation statements, instruments
of further assurance and other instruments, in accordance
with Section 3.05 of the Indenture, necessary to protect
the Trust Estate (Sections 3.05 and 3.07(c));
(J) furnishing the required Opinions of Counsel on
the Closing Date and at such other times, in accordance
with Sections 3.06 and 8.06 of the Indenture, and
delivering the annual Officer's Certificates and certain
other statements as to compliance with the Indenture, in
accordance with Section 3.09 of the Indenture (Sections
3.06, 3.09 and 8.06);
(K) identifying to the Indenture Trustee in an
Officer's Certificate any Person with whom the Issuer has
contracted to perform its duties under the Indenture
(Section 3.07);
(L) notifying the Indenture Trustee and the Rating
Agencies of any Servicer Default pursuant to the Sale and
Servicing Agreement and, if such Servicer Default arises
from the failure of the Servicer to perform any of its
duties under the Sale and Servicing Agreement, taking all
reasonable steps available to remedy such failure (Section
3.07(d));
(M) preparing and obtaining documents and
instruments required in connection with the consolidation,
merger or transfer of assets of the Issuer (Section 3.10);
(N) delivering notice to the Indenture Trustee of
each Event of Default and each other default by the
Servicer or the Seller under the Sale and Servicing
Agreement (Section 3.19);
(O) monitoring the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the
preparation of an Officer's Certificate and obtaining the
Opinion of Counsel and the Independent Certificate (as
defined in the Indenture) related thereto (Section 4.01);
(P) preparing and mailing the notification of the
Indenture Trustee and Noteholders with respect to special
payment dates, if any (Section 5.04(d));
3
<PAGE> 6
(Q) preparing and, after execution by the Issuer
and the Indenture Trustee, filing with the Commission and
any applicable state agencies of documents required to be
filed on a periodic basis with the Commission and any
applicable state agencies (including any summaries thereof
required by rules and regulations prescribed thereby), and
transmitting of such summaries to the Noteholders (Section
7.03);
(R) preparing any Issuer Request and Officer's
Certificates and obtaining any Opinions of Counsel and
Independent Certificates necessary for the release of the
Trust Estate (Section 8.04);
(S) preparing Issuer Orders and obtaining Opinions
of Counsel with respect to the execution of any
supplemental indentures, and mailing notices to the
Noteholders with respect thereto (Sections 9.01, 9.02 and
9.03);
(T) executing and delivering new Notes conforming
to the provisions of any supplemental indenture, as
appropriate (Section 9.06);
(U) preparing all Officer's Certificates, Opinions
of Counsel and Independent Certificates with respect to
any requests by the Issuer to the Indenture Trustee to
take any action under the Indenture (Section 11.01(a));
(V) preparing and delivering Officer's Certificates
and obtaining Independent Certificates, if necessary, for
the release of property from the lien of the Indenture
(Section 11.01(b));
(W) notifying the Rating Agencies, upon any failure
of the Indenture Trustee to give such notification, of the
information required pursuant to Section 11.04 of the
Indenture (Section 11.04);
(X) preparing and delivering to the Noteholders and
the Indenture Trustee any agreements with respect to
alternate payment and notice provisions (Section 11.06);
and
(Y) recording the Indenture, if applicable (Section
11.14).
(ii) The Administrator shall also:
(A) pay the Indenture Trustee from time to time the
reasonable compensation provided for in the Indenture with
respect to services rendered by the Indenture Trustee
under the Indenture (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(B) reimburse the Indenture Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the
4
<PAGE> 7
Indenture Trustee in accordance with any provision of the
Indenture (including the reasonable compensation, expenses
and disbursements of its agents and counsel) to the extent
the Indenture Trustee is entitled to such reimbursement by
the Issuer under the Indenture;
(C) indemnify the Indenture Trustee for, and hold
it harmless against, any losses, liability or expense
incurred without negligence or bad faith on the part of
the Indenture Trustee, arising out of or in connection
with the acceptance or administration of the trusts and
duties contemplated by the Indenture, including the
reasonable costs and expenses of defending themselves
against any claim or liability in connection therewith to
the extent the Indenture Trustee is entitled to such
indemnification from the Issuer under the Indenture;
(D) indemnify and hold harmless the Owner Trustee,
any co-trustee and the Indenture Trustee for any loss,
liability, claim, action, suit, cost or expense of the
Trust to the extent that the Administrator would be liable
if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which the Administrator
were a general partner; provided, however, that the
Administrator shall not be liable for any losses incurred
by a Certificateholder in the capacity of an investor in
the Certificates or a Noteholder in the capacity of an
investor in the Notes and will not and shall not be deemed
hereby to have indemnified the Owner Trustee, any
co-trustee or the Indenture Trustee against any loss
liability or expense resulting from such trustee's own
willful misfeasance, bad faith or negligence or by reason
of a breach of representation or warranty thereof
contained in the Trust Agreement or the Indenture, as the
case may be. In addition, any third party creditors of the
Trust (other than in connection with the obligations
described in the provisions in the preceding sentence for
which the Administrator shall not be liable) shall be
deemed to be third party beneficiaries of this paragraph;
and
(E) pay the reasonable expense of any examination
or investigation by the Owner Trustee undertaken pursuant
to Section 7.01(e) of the Trust Agreement, and if such
expense is paid by the Owner Trustee, then such expense
shall be reimbursed by the Administrator upon demand.
(b) Additional Duties.
(i) In addition to the duties of the Administrator set
forth above, the Administrator shall perform such calculations,
and shall prepare for execution by the Issuer or the Owner
Trustee or shall cause the preparation by other appropriate
persons of all such documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Issuer
or the Owner Trustee to prepare, file or deliver pursuant to the
Basic Documents, and at the request of the Owner Trustee shall
take all appropriate action that it is the duty of the Issuer or
the Owner Trustee to take pursuant to the Basic Documents.
Subject to Section 5 of
5
<PAGE> 8
this Agreement, and in accordance with the reasonable written
directions of the Owner Trustee, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Basic
Documents) as are not covered by any of the foregoing provisions
and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Basic Documents to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event
that any withholding tax is imposed on the Issuer's payments (or
allocations of income) to a Certificateholder as contemplated in
Section 5.02(c) of the Trust Agreement. Any such notice shall
specify the amount of any withholding tax required to be withheld
by the Owner Trustee pursuant to such provision.
(iii) The Administrator shall satisfy its obligations with
respect to clause (ii) above and under the Trust Agreement by
retaining, at the expense of Administrator, a firm of independent
public accountants (the "Accountants") which shall perform the
obligations of the Administrator thereunder.
(iv) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement
required to be performed in connection with the removal of the
Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(v) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may
enter into transactions with or otherwise deal with any of its
Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a
reasonable time before the taking of such action the
Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction, and all approvals
required under the Basic Documents shall have been obtained. For
the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of the Indenture or execution of
any supplement to the Indenture;
6
<PAGE> 9
(B) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or lawsuit
brought by or against the Issuer (other than in connection
with the collection of the Receivables);
(C) the amendment, change or modification of any of
the Basic Documents;
(D) the appointment of successor Note Registrars or
successor Paying Agents pursuant to the Indenture or the
appointment of successor Administrators, or the consent to
the assignment by the Note Registrar, Paying Agent or
Indenture Trustee of its obligations, in each case under
the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not (x) make any payments to the Noteholders under the Basic
Documents, (y) sell the Trust Estate pursuant to Section 5.04 of
the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Owner
Trustee and the Indenture Trustee at any time during normal business hours upon
reasonable advance written notice.
3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a fee of
$200.00 per month which shall be solely an obligation of the Servicer.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Owner Trustee or the Indenture
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Issuer hereunder
or otherwise, the Administrator shall have no authority to act for or represent
the Issuer, the Owner Trustee or the Indenture Trustee, and shall not otherwise
be or be deemed an agent of the Issuer, the Owner Trustee or the Indenture
Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement shall (i)
constitute the Administrator and any of the Issuer, the Owner Trustee or the
Indenture Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) be construed
to impose any liability as such on any of them or (iii) be deemed
7
<PAGE> 10
to confer on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its or
their sole discretion, from acting as an administrator for any other person or
entity, or in a similar capacity therefor, even though such person or entity may
engage in business activities similar to those of the Issuer, the Owner Trustee
or the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the termination
of the Issuer, upon which event this Agreement shall automatically
terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may
resign by providing the Issuer with at least 30 days' prior written
notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove the
Administrator without cause by providing the Administrator at least 30
days' prior written notice.
(d) Subject to Sections 8(e) and 8(f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice
of termination from the Issuer to the Administrator if any of the
following events shall occur:
(i) the Administrator shall fail to perform in any
material respect any of its duties under this Agreement and,
after notice of such default, shall not cure such default within
10 days (or, if such default cannot be cured in such time, shall
not give within such 10 days such assurance of timely and
complete cure as shall be reasonably satisfactory to the Issuer);
(ii) the entry of a decree or order by a court or agency
or supervisory authority having jurisdiction in the premises for
the appointment of a trustee in bankruptcy, conservator, receiver
or liquidator for the Administrator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding up or
liquidation of their respective affairs, and the continuance of
any such decree or order unstayed and in effect for a period of
90 consecutive days; or
(iii) the consent by the Administrator to the appointment
of a trustee in bankruptcy, conservator or receiver or liquidator
in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating
to the Administrator of or relating to substantially all of their
property, or the Administrator shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
8
<PAGE> 11
The Administrator agrees that if any of the events
specified in clauses (ii) or (iii) of this Section shall occur, it shall
give written notice thereof to the Issuer, the Owner Trustee and the
Indenture Trustee within seven days after the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator
shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of
this Agreement on substantially the same terms as the Administrator is
bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after each Rating Agency (other than Moody's) has
provided to the Owner Trustee and the Indenture Trustee notice that the
proposed appointment will not result in the reduction or withdrawal of
any rating, if any, then assigned by such Rating Agency to any Class of
Notes or the Certificates. Promptly after the appointment of any
successor Administrator, the Owner Trustee will provide notice of such
appointment to Moody's (so long as Moody's is then rating any
outstanding Notes).
(g) Subject to Section 8(e) and 8(f), the Administrator
acknowledges that upon the appointment of a Successor Servicer pursuant
to the Sale and Servicing Agreement, the Administrator shall immediately
resign and such Successor Servicer shall automatically succeed to the
rights, duties and obligations of the Administrator under this
Agreement.
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon the
effective date of termination of this Agreement pursuant to Section 8(a) or the
resignation or removal of the Administrator pursuant to Section 8(b) or (c) or
(d), the Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to the date of such termination, resignation or removal.
The Administrator shall forthwith upon such termination pursuant to Section 8(a)
deliver to or to the order of the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or (c) or (d), the Administrator shall cooperate with the Issuer and take
all reasonable steps requested to assist the Issuer in making an orderly
transfer of the duties of the Administrator.
10. NOTICES. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Issuer or the Owner Trustee, to:
Nissan Auto Receivables 2000-A Owner Trust
In care of: Wilmington Trust Company
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890
Attention: Nissan Auto Receivables 2000-A Owner Trust
9
<PAGE> 12
with a copy to
Nissan Auto Receivables 2000-A Owner Trust
In care of: Nissan Motor Acceptance Corporation
990 West 190th Street
Torrance, California 90502
Attention: Joy Crose, General Counsel
(b) if to the Administrator, to:
Nissan Motor Acceptance Corporation
990 West 190th Street
Torrance, California 90502
Attention: Joy Crose, General Counsel
(c) if to the Indenture Trustee, to:
Norwest Bank Minnesota, National Association
Corporate Trust Department
Norwest Center
6th Street and Marquette Avenue
MAC N9311-161
Minneapolis, Minnesota 55479-0070
Attention: Nissan Auto Receivables 2000-A Owner Trust
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, or hand delivered
to the address of such party as provided above.
11. AMENDMENTS. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the Administrator,
and the Indenture Trustee, with the consent of the Owner Trustee but without the
consent of any Noteholders or the Certificateholders, for the purpose of adding
any provisions to or modifying or changing in any manner or eliminating any of
the provisions of this Agreement, provided that such amendment does not and will
not, in the Opinion of Counsel satisfactory to the Indenture Trustee, materially
and adversely affect the interest of any Noteholder or Certificateholder. This
Agreement may also be amended from time to time by the Issuer, the
Administrator, and the Indenture Trustee with the consent of the Owner Trustee
and (i) the holders of Notes evidencing a majority of the Outstanding Amount of
the Notes, voting as a single class; or (ii) in the case of any amendment that
does not adversely affect the Indenture Trustee or the Noteholders (as evidenced
by an Officer's Certificate of the Servicer and an outside Opinion of Counsel
indicating that such amendment will not adversely affect the Indenture Trustee
or the Noteholders), the holders of the Certificates evidencing a majority of
the outstanding Certificate Balance of the Certificates (but excluding for
purposes of calculation and action all Certificates held by the Seller, the
Servicer or any of their Affiliates unless at such time all Certificates are
then owned by the Seller, the Servicer and their Affiliates), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement
10
<PAGE> 13
or of modifying in any manner the rights of those Noteholders or
Certificateholders which are not covered by the immediately preceding sentence.
12. SUCCESSOR AND ASSIGNS. This Agreement may not be assigned by the
Administrator unless such assignment is consented to in writing by the Issuer,
the Owner Trustee and the Indenture Trustee, and the conditions precedent to
appointment of a successor Administrator set forth in Section 8 are satisfied.
An assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer, the Owner Trustee and
the Indenture Trustee to a corporation or other organization that is a successor
(by merger, consolidation or purchase of assets) to the Administrator, provided
that such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
13. GOVERNING LAW. This Agreement shall be governed by and 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.
14. NO PETITION. The Administrator, by entering into this Administration
Agreement, hereby covenants and agrees that it will not at any time institute
against the Issuer, or join in any institution against the Issuer of any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law, in connection with any obligations relating to the Notes, the
Certificates or any of the Basic Documents.
15. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
17. SEVERABILITY OF PROVISIONS. If any one or more of the agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid or unenforceable in any jurisdiction, then such agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the other rights of
the parties hereto.
18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any obligation, right or benefit NMAC may have in any
other capacity or under any Basic Document.
11
<PAGE> 14
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by Wilmington Trust Company, not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer, and Norwest Bank
Minnesota, National Association, not in its individual capacity but solely in
its capacity as Indenture Trustee under the Indenture and in no event shall
Wilmington Trust Company in its individual capacity, Norwest Bank Minnesota,
National Association, in its individual capacity, or any Certificateholder have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered pursuant hereto, as to all of which recourse shall be
had solely to the assets of the Issuer.
12
<PAGE> 15
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST
By: WILMINGTON TRUST COMPANY
not in its individual capacity but solely as
Owner Trustee
By: /s/ James P. Lawler
----------------------------------------
Name: James P. Lawler
Title: Vice President
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ Marianna C. Stershic
----------------------------------------
Name: Marianna C. Stershic
Title: Assistant Vice President
NISSAN MOTOR ACCEPTANCE CORPORATION, as
Administrator
By: /s/ Yoichiro Nagashima
----------------------------------------
Name: Yoichiro Nagashima
Title: President and Chairman of the Board
of Directors
S-1
<PAGE> 1
EXHIBIT 4.6
Nissan Auto Receivables Corporation
990 West 190th Street
Torrance, California 90502
Dated as of January 27, 2000
YIELD SUPPLEMENT AGREEMENT
Norwest Bank Minnesota, National Association
Norwest Center
6th Street and Marquette Avenue
MAC N9311-161
Minneapolis, Minnesota 55479-0070
Attention: Nissan Auto Receivables 2000-A Owner Trust
Ladies and Gentlemen:
Nissan Auto Receivables Corporation (the "Company") hereby
confirms arrangements made as of the date hereof with you, as Indenture Trustee
for the benefit of the Noteholders, to be effective upon (i) receipt by the
Company of the enclosed copy of this letter agreement (the "Yield Supplement
Agreement"), executed by the Indenture Trustee, (ii) execution of the Purchase
Agreement, dated as of the date hereof (the "Purchase Agreement"), between the
Company and Nissan Motor Acceptance Corporation ("NMAC"), (iii) receipt by NMAC
of the payment by the Company of the purchase price under the Purchase
Agreement, and (iv) the receipt by the Company of the capital contribution of
NMAC in connection with the payment of the purchase price under the Purchase
Agreement. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings given to them in the Sale and Servicing Agreement,
dated as of the date hereof, among NMAC, as Servicer, the Company, and Nissan
Auto Receivables 2000-A Owner Trust, as Issuer (the "Sale and Servicing
Agreement").
1. On or prior to each Determination Date, the Servicer shall notify the
Company of the "Yield Supplement Deposit" (as defined below) for the related
Distribution Date, the amount on deposit in the Yield Supplement Account (as
defined below) and the amount of reinvestment income during the related
Collection Period on the Yield Supplement Account. The "Yield Supplement
Deposit" means, with respect to any Distribution Date, the amount by which (i)
the aggregate amount of interest that would have been due during the related
Collection Period on all Yield Supplemented Receivables (as defined below) if
such Yield Supplemented Receivables bore interest at the Required Rate (as
defined below) exceeds (ii) the amount of interest accrued on such Yield
Supplemented Receivables at their respective APRs and due during such Collection
Period. "Required Rate" means, with respect to each Collection Period, the sum
of (i) the Servicing Rate plus (ii) the Class A-4 Interest Rate. "Yield
Supplemented Receivable" means any Receivable that has an APR less than the
Required Rate.
<PAGE> 2
2. On or before the date hereof, the Company shall establish and
maintain with the Securities Intermediary and pledge to the Indenture Trustee
for the benefit of the Noteholders a segregated trust account in the name of the
Indenture Trustee (the "Yield Supplement Account") in accordance with the
Securities Account Control Agreement to secure the payment of interest on the
Notes, or such other account as may be acceptable to the Rating Agencies, and
the Company hereby grants to the Indenture Trustee for the benefit of the
Noteholders a first priority security interest in the monies on deposit and the
other property that from time to time comprise the Yield Supplement Account
(including the Initial Yield Supplement Amount), and any and all proceeds
thereof (collectively, the "Yield Supplement Account Property"). The Relevant
Trustee shall possess all of the rights of a secured party under the UCC with
respect thereto. The Yield Supplement Account Property and the Yield Supplement
Account shall be under the sole dominion and control of the Relevant Trustee.
Neither the Company nor any Person claiming by, through or under the Company
shall have any right, title or interest in, any control over the use of, or any
right to withdraw from amounts from, the Yield Supplement Account Property or
the Yield Supplement Account. All Yield Supplement Account Property in the Yield
Supplement Account shall be applied by the Relevant Trustee as specified in this
Yield Supplement Agreement and the Sale and Servicing Agreement. The Relevant
Trustee shall, not later than 5:00 P.M., New York City time on the Business Day
preceding each Distribution Date, withdraw from the Yield Supplement Account and
deposit in the Collection Account an amount equal to the Yield Supplement
Deposit plus the amount of reinvestment income on the Yield Supplement Account
for such Distribution Date.
On or prior to the date hereof, the Company shall deposit
$27,173,860.31 (the "Initial Yield Supplement Amount") into the Yield Supplement
Account. The amount required to be on deposit in the Yield Supplement Account on
the date of issuance of the Notes and for any Distribution Date (the "Required
Yield Supplement Amount"), as determined by the Servicer and notified to the
Relevant Trustee, means an amount equal to the lesser of (i) the aggregate
amount of each Yield Supplement Deposit that will become due on each future
Distribution Date, assuming that payments on the Receivables are made on their
scheduled due dates, no Receivable becomes a prepaid Receivable and a discount
rate of 2.5%, and (ii) the Initial Yield Supplement Amount. The Required Yield
Supplement Amount may decline as a result of prepayments or repayments in full
of the Receivables. The Relevant Trustee shall have no duty or liability to
determine the Required Yield Supplement Amount and may fully rely on the
determination thereof by the Servicer. If, on any Distribution Date, the funds
in the Yield Supplement Account are in excess of the Required Yield Supplement
Amount for such Distribution Date after giving effect to all distributions to be
made on such Distribution Date, the Relevant Trustee shall pay the Company the
amount of such excess. The Yield Supplement Account shall not be part of the
Trust. It is the intent of the parties that the Yield Supplement Account
Property be treated as property of the Company for all federal, state and local
income and franchise tax purposes. The provisions of this Yield Supplement
Agreement should be interpreted accordingly. Further, the Company shall include
in its gross income all income earned on the Yield Supplement Account Property
and the Yield Supplement Account.
3. All or a portion of the Yield Supplement Account may be invested and
reinvested in the manner specified in Section 5.08 of the Sale and Servicing
Agreement in accordance with written instructions from the Servicer. All such
investments shall be made in the name of the Relevant Trustee. Earnings on
investment of funds in the Yield Supplement Account shall be
2
<PAGE> 3
deposited in the Collection Account on each Distribution Date, and losses and
any investment expenses shall be charged against the funds on deposit therein.
Upon payment in full of the Notes under the Indenture, as directed in writing by
the Servicer, the Relevant Trustee will release to the Company any amounts
remaining on deposit in the Yield Supplement Account. If for any reason the
Yield Supplement Account is no longer an Eligible Deposit Account, the Relevant
Trustee shall promptly cause the Yield Supplement Account to be moved to another
institution or otherwise changed so that the Yield Supplement Account becomes an
Eligible Deposit Account.
4. All payments to the Company pursuant hereto shall be made by federal
wire transfer (same day funds) or immediately available funds, to such account
as the Company, or any assignee of the Company referred to in Section 6 hereof,
may designate in writing to the Relevant Trustee, prior to the relevant
Distribution Date.
5. Our agreements set forth in this Yield Supplement Agreement are our
primary obligations and such obligations are irrevocable, absolute and
unconditional, shall not be subject to any counterclaim, setoff or defense
(other than full and strict compliance by us with our obligations hereunder) and
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way affected by, any circumstances or condition
whatsoever.
6. In order to more fully protect the interests of the Noteholders, the
Company will transfer, assign and convey its interest in this Yield Supplement
Agreement to the Nissan Auto Receivables 2000-A Owner Trust established under
the Trust Agreement (the "Trust"). Following such transfer, assignment and
conveyance, this Yield Supplement Agreement shall not be amended, modified or
terminated except in accordance with the provisions for amendments,
modifications and terminations of the Sale and Servicing Agreement as set forth
in Section 10.01 of the Sale and Servicing Agreement.
7. THIS YIELD SUPPLEMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
8. Except as otherwise provided herein, all notices pursuant to this
Yield Supplement Agreement shall be in writing, personally delivered, sent by
telecopier, sent by courier or mailed by certified mail, return receipt
requested, and shall be effective upon receipt thereof. All notices shall be
directed as set forth below, or to such other address or telecopy number or to
the attention of such other person as the relevant party shall have designated
for such purpose in a written notice.
3
<PAGE> 4
The Company:
Nissan Auto Receivables Corporation
990 West 190th Street
Torrance, California 90502
Attention: Treasurer
Facsimile No.: 310-324-2542
Indenture Trustee:
Norwest Center
6th Street and Marquette Avenue
MAC N9311 - 161
Minneapolis, Minnesota 55479-0070
Attention: Nissan Auto Receivables 2000-A Owner Trust
Facsimile No.: 612-667-3464
9. This Yield Supplement Agreement may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, all
of which shall be deemed to be one and the same document.
If the foregoing satisfactorily sets forth the terms and
conditions of our agreement, please indicate your acceptance thereof by signing
in the space provided below and returning to us the enclosed duplicate original
of this letter.
4
<PAGE> 5
Very truly yours,
NISSAN AUTO RECEIVABLES CORPORATION
By: /s/ Tomoaki Shimazu
-----------------------------------------
Name: Tomoaki Shimazu
Title: Treasurer, Assistant Secretary and
Director
Agreed and accepted as of January 27, 2000
NISSAN MOTOR ACCEPTANCE CORPORATION
By: /s/ Yoichiro Nagashima
-----------------------------------------
Name: Yoichiro Nagashima
Title: President and Chairman of the
Board of Directors
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS INDENTURE TRUSTEE
By: /s/ Marianna C. Stershic
-----------------------------------------
Name: Marianna C. Stershic
Title: Assistant Vice President
S-1
