EXHIBIT 4.4
-------------------------------------------------------------------------------
NISSAN AUTO RECEIVABLES ______ GRANTOR TRUST
_____% ASSET BACKED CERTIFICATES
NISSAN AUTO RECEIVABLES CORPORATION
Seller
NISSAN MOTOR ACCEPTANCE CORPORATION
Servicer and in its individual capacity
-------------------------------------------------------
Trustee
POOLING AND SERVICING AGREEMENT
Dated as of ______________
ARTICLE I
INTRODUCTION
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Usage of Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 1.03. Cutoff Date and Record Date. . . . . . . . . . . . . . . . . . . . . . . . 19
Section 1.04. Section References . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE II
THE TRUST
Section 2.01. Creation of Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.02. Conveyance of Receivables. . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.03. Acceptance by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.04. Characterization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE III
THE RECEIVABLES
Section 3.01. Representations and Warranties of Seller . . . . . . . . . . . . . . . . . 20
Section 3.02. Repurchase Upon Breach . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 3.03. Custody of Receivable Files. . . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.04. Duties of Servicer as Custodian. . . . . . . . . . . . . . . . . . . . . . 24
Section 3.05. Instructions; Authority to Act . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.06. Custodian's Indemnification. . . . . . . . . . . . . . . . . . . . . . . . 25
Section 3.07. Effective Period and Termination . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 4.01. Duties of Servicer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 4.02. Collection of Receivable Payments. . . . . . . . . . . . . . . . . . . . . 27
Section 4.03. Realization Upon Receivables . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.04. [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 4.05. Maintenance of Security Interests in Financed Vehicles . . . . . . . . . . 27
Section 4.06. Covenants of Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.07. Purchase of Receivables Upon Breach. . . . . . . . . . . . . . . . . . . . 28
Section 4.08. Total Servicing Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.09. Servicer's Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 4.10. Annual Statement as to Compliance; Notice of Default . . . . . . . . . . . 29
Section 4.11. Annual Independent Certified Public Accountant's Report. . . . . . . . . . 30
Section 4.12. Access to Certain Documentation and Information Regarding Receivables. . . 30
Section 4.13. Appointment of Subservicer . . . . . . . . . . . . . . . . . . . . . . . . 30
i
Section 4.14. Servicer Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE V
DISTRIBUTIONS; SUBORDINATION SPREAD ACCOUNTS; STATEMENTS TO CERTIFICATEHOLDERS
Section 5.01. Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 5.02. Collections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 5.03. Application of Collections . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.04. Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 5.05. Additional Deposits. . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 5.06. Distributions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.07. Net Deposits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 5.08. Statements to Certificateholders . . . . . . . . . . . . . . . . . . . . . 37
Section 5.09. No Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.01. Yield Supplement Account . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 6.02. Custody and Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . 39
Section 6.03. Limitations on the Trust . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE VII
THE CERTIFICATES
Section 7.01. The Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.02. Authentication of Certificates . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.03. Registration of Transfer and Exchange of Certificates. . . . . . . . . . . 39
Section 7.04. Mutilated, Destroyed, Lost, or Stolen Certificates . . . . . . . . . . . . 42
Section 7.05. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 7.06. Access to List of Certificateholders' Names and Addresses. . . . . . . . . 42
Section 7.07. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . 42
Section 7.08. Book-Entry Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.09. Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.10. Definitive Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VIII
THE SELLER
Section 8.01. Representations of Seller. . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 8.02. Liability of Seller; Indemnities . . . . . . . . . . . . . . . . . . . . . 45
Section 8.03. Merger or Consolidation of, or Assumption of the Obligations of, Seller. . 46
Section 8.04. Limitation on Liability of Seller and Others . . . . . . . . . . . . . . . 47
ii
Section 8.05. Seller May Own Certificates. . . . . . . . . . . . . . . . . . . . . . . . 47
Section 8.06. Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE IX
THE SERVICER
Section 9.01. Representations of Servicer. . . . . . . . . . . . . . . . . . . . . . . . 49
Section 9.02. Indemnities of Servicer. . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 9.03. Merger or Consolidation of, or Assumption of the Obligations of, Servicer. 52
Section 9.04. Limitation on Liability of Servicer and Others . . . . . . . . . . . . . . 52
Section 9.05. Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.06. NMAC Not to Resign as Servicer . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE X
DEFAULT
Section 10.01. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.02. Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 10.03. Repayment of Advances. . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.04. Notification to Certificateholders . . . . . . . . . . . . . . . . . . . . 56
Section 10.05. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE XI
THE TRUSTEE
Section 11.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 11.02. Trustee's Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 11.03. Trustee's Assignment of Administrative Receivables
and Warranty Receivables . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.04. Certain Matters Affecting the Trustee. . . . . . . . . . . . . . . . . . . 59
Section 11.05. Trustee Not Liable for Certificates or Receivables . . . . . . . . . . . . 60
Section 11.06. Trustee May Own Certificates . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.07. Trustee's Fees and Expenses. . . . . . . . . . . . . . . . . . . . . . . . 61
Section 11.08. Indemnity of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.09. Eligibility Requirements for Trustee . . . . . . . . . . . . . . . . . . . 62
Section 11.10. Resignation or Removal of Trustee. . . . . . . . . . . . . . . . . . . . . 62
Section 11.11. Successor Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 11.12. Merger or Consolidation of Trustee . . . . . . . . . . . . . . . . . . . . 63
Section 11.13. Appointment of Co-Trustee or Separate Trustee. . . . . . . . . . . . . . . 63
Section 11.14. Representations and Warranties of Trustee. . . . . . . . . . . . . . . . . 65
Section 11.15. Tax Returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.16. Trustee May Enforce Claims Without Possession of Certificates. . . . . . . 65
Section 11.17. Suits for Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 11.18. Rights of Certificateholders to Direct Trustee . . . . . . . . . . . . . . 65
Section 11.19. Appointment of Custodian . . . . . . . . . . . . . . . . . . . . . . . . . 66
iii
ARTICLE XII
TERMINATION; RELEASE OF RECEIVABLES
Section 12.01. Termination of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 12.02. Optional Purchase of All Receivables . . . . . . . . . . . . . . . . . . . 67
Section 12.03. Release of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 13.02. Protection of Title to Trust . . . . . . . . . . . . . . . . . . . . . . . 70
Section 13.03. Limitation on Rights of Certificateholders . . . . . . . . . . . . . . . . 71
Section 13.04. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 13.05. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 13.06. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 13.07. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 13.08. Certificates Nonassessable and Fully Paid. . . . . . . . . . . . . . . . . 73
Section 13.09. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 13.10. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . 73
Section 13.11. Third-Party Beneficiaries. . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 13.12. Actions by Certificateholders. . . . . . . . . . . . . . . . . . . . . . . 73
Section 13.13. Qualification as Grantor Trust; Separate Assets. . . . . . . . . . . . . . 73
Section 13.14. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
iv
EXHIBITS
Exhibit A Form of Class A Certificate
Exhibit B Form of Class B Certificate
Exhibit C Form of Class C Certificate
Exhibit D Form of Depository Agreement
Exhibit E Form of Custody and Pledge Agreement
Exhibit F-1 Form of Trustee's Certificate to Seller
Exhibit F-2 Form of Trustee's Certificate to Servicer
Exhibit G Form of Yield Supplement Agreement
Exhibit H-1 Form of Representation Letter for the Class A Certificates
Exhibit H-2 Form of Representation Letter for the Class [B] [C] Certificates
SCHEDULES
Schedule A List of Receivables
Schedule B Location of Receivables
v
This Pooling and Servicing Agreement, dated as of _______________,
is made with respect to the formation of the Nissan Auto Receivables _______
Grantor Trust, among NISSAN AUTO RECEIVABLES CORPORATION, a Delaware
corporation, as Seller, NISSAN MOTOR ACCEPTANCE CORPORATION, a California
corporation, as Servicer and in its individual capacity, and
___________________________________, a _____________________________.
WITNESSETH THAT: In consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
ARTICLE I
INTRODUCTION
Section 1.01. DEFINITIONS. Whenever used in this Agreement, the
following words and phrases, unless the context otherwise requires, shall
have the following meanings:
"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 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 4.07 or Section 12.02.
"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(a).
"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.
"AGREEMENT" means this Pooling and Servicing Agreement.
"AICPA" shall have the meaning assigned to such term in Section 4.11.
"AMOUNT FINANCED" with respect to any Receivable, means the amount
advanced under the Receivable toward the purchase price of the 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.
1
"ANNUAL PERCENTAGE RATE" or "APR" of a Receivable means the annual
rate of finance charges stated in such Receivable.
"ANNUAL USAP REPORT" shall have the meaning assigned to such term
in Section 4.11.
"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 other than Defaulted
Receivables allocable to interest, (ii) Net Liquidation Proceeds to the
extent allocable to interest due on a Defaulted 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 Deposit received by the
Trustee; PROVIDED, HOWEVER, that in calculating Available Interest, amounts
to be paid to the Servicer as reimbursement for Advances pursuant to Section
5.06(a)(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 other than Defaulted
Receivables allocable to principal, (ii) Net Liquidation Proceeds
attributable to principal due on a Defaulted Receivable in accordance with
the Servicer's customary servicing procedures, and (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, with respect to a Collection Period,
the fee payable to the Servicer for services rendered during such Collection
Period, which shall be equal to one-twelfth of the Servicing Rate multiplied
by the Pool Balance as of the first day of such Collection Period or, with
respect to the first Distribution Date, the Original Pool Balance.
"BASIC DOCUMENTS" means the Purchase Agreement, this Agreement,
the Depository Agreement, the Custody and Pledge Agreement, the Yield
Supplement Agreement and the other documents and certificates delivered in
connection herewith and therewith.
"BOOK-ENTRY CERTIFICATES" means a beneficial interest in the Class
A Certificates or Class B Certificates, ownership and transfers of which
shall be made through book entries by a Clearing Agency as described in
Section 7.08.
"BUSINESS DAY" means any day other than a Saturday, a Sunday or a
day on which banking institutions or trust companies in New York, New York,
or Los Angeles, California
2
shall be authorized or obligated by law, regulation, executive order or
governmental decree to remain closed.
"CERTIFICATE" means a Class A Certificate, a Class B Certificate or
a Class C Certificate.
"CERTIFICATES" means the Class A Certificates, the Class B
Certificates and the Class C Certificates.
"CERTIFICATE ACCOUNT" means the account designated as such,
established and maintained pursuant to Section 5.01.
"CERTIFICATEHOLDER" or "HOLDER" means the Person in whose name a
Certificate shall be registered in the Certificate Register, except that,
solely for the purposes of giving any consent, waiver, request, or demand
pursuant to this Agreement, the interest evidenced by any Class A Certificate
or Class B Certificate registered in the name of the Seller, the Servicer, or
any Person actually known to a Trustee Officer to be an Affiliate of the
Seller or the Servicer, 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.
"CERTIFICATE OWNER" shall mean, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency) and shall
mean, with respect to a Definitive Certificate, the Certificateholder.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the
register maintained and the registrar appointed pursuant to Section 7.03.
"CLASS A CERTIFICATE" means any one of the Certificates executed by
the Trust and authenticated by the Trustee, in substantially the form set
forth in EXHIBIT A hereto.
"CLASS A CERTIFICATE BALANCE" shall equal, initially, the Original
Class A Certificate Balance and, thereafter, shall equal the Original Class A
Certificate Balance, reduced by all amounts previously distributed to the
Class A Certificateholders and allocable to principal; PROVIDED, HOWEVER,
that on any Distribution Date on or after the Distribution Date on which the
Class B Certificate Balance and the Class C Certificate Balance are reduced
to zero, the Class A Certificate Balance on any Distribution Date will equal
the Pool Balance as of the last day of the related Collection Period after
all required distributions, deposits and withdrawals have been made.
"CLASS A CERTIFICATE FACTOR" means, as of any Distribution Date, a
seven-digit decimal figure equal to the Class A Certificate Balance as of the
close of business on such Distribution Date divided by the Original Class A
Certificate Balance.
"CLASS A DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of the Class A Principal Distributable Amount and
the Class A Interest Distributable Amount.
3
"CLASS A INTEREST CARRYOVER SHORTFALL" means, as of the close of
business on any Distribution Date, the excess, if any, of the Class A
Interest Distributable Amount for such Distribution Date plus any outstanding
unpaid interest owed to holders of Class A Certificates from the preceding
Distribution Date, plus interest on such outstanding unpaid interest amount,
to the extent permitted by law, at the Class A Pass-Through Rate from such
preceding Distribution Date to but not including such current Distribution
Date, over the amount of interest that the holders of the Class A
Certificates actually received on such current Distribution Date.
"CLASS A INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of (i) thirty (30) days of interest or, in the
case of the initial Distribution Date, the number of days in the related
Collection Period, at the Class A Pass-Through Rate on the Class A
Certificate Balance as of the close of business on the last day of the
related Collection Period, calculated on the basis of a 360-day year
consisting of twelve 30-day months, and (ii) the Class A Interest Carryover
Shortfall, if any, for the preceding Distribution Date.
"CLASS A PASS-THROUGH RATE" means ___% per annum.
"CLASS A PERCENTAGE" means ___%.
"CLASS A POOL FACTOR" means, as of the last day of a Collection
Period, a seven-digit decimal figure equal to the Class A Certificate Balance
as of the close of business on such day divided by the Original Pool Balance.
"CLASS A PRINCIPAL CARRYOVER SHORTFALL" means, as of the close of
business on any Distribution Date, the excess, if any, of the Class A
Principal Distributable Amount plus any outstanding unpaid principal owed to
holders of Class A Certificates from preceding Distribution Dates over the
amount of principal that the holders of the Class A Certificates actually
received on such current Distribution Date.
"CLASS A PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the Class A Percentage of the sum of: (i) the principal
portion of all payments on Receivables, including prepayments of principal,
received during the related Collection Period, (ii) the aggregate outstanding
principal balance as of the beginning of the related Collection Period of all
Receivables that became Administrative Receivables or Warranty Receivables
under obligations that arose during the related Collection Period (without
duplication of amounts referred to in clause (i) above), and (iii) the
aggregate outstanding principal balance as of the beginning of the related
Collection Period of all Receivables that became Defaulted Receivables during
the related Collection Period (without duplication of amounts referred to in
clauses (i) or (ii) above).
"CLASS B CERTIFICATE" means any one of the Certificates executed by
the Trust and authenticated by the Trustee, in substantially the form set
forth in EXHIBIT B hereto.
"CLASS B CERTIFICATE BALANCE" shall equal, initially, the Original
Class B Certificate Balance and, thereafter, shall equal the Original Class B
Certificate Balance, reduced by all amounts previously distributed to the
Class B Certificateholders and allocable to principal; PROVIDED, HOWEVER,
that on any Distribution Date on or after the Distribution Date on which the
Class C Certificate Balance is reduced to zero, the Class B Certificate
Balance on any
4
Distribution Date will equal the excess of the Pool Balance as of the last
day of the related Collection Period over the Class A Certificate Balance as
of such Distribution Date after all required distributions, deposits and
withdrawals have been made.
"CLASS B CERTIFICATE FACTOR" means, as of any Distribution Date, a
seven-digit decimal figure equal to the Class B Certificate Balance as of the
close of business on such Distribution Date divided by the Original Class B
Certificate Balance.
"CLASS B DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of the Class B Principal Distributable Amount and
the Class B Interest Distributable Amount.
"CLASS B INTEREST CARRYOVER SHORTFALL" means, as of the close of
business on any Distribution Date, the excess, if any, of the Class B
Interest Distributable Amount for such Distribution Date plus any outstanding
unpaid interest owed to holders of Class B Certificates from the preceding
Distribution Date plus interest on such outstanding unpaid interest amount,
to the extent permitted by law, at the Class B Pass-Through Rate from such
preceding Distribution Date to but not including such Distribution Date, over
the amount of interest that the holders of the Class B Certificates actually
received on such current Distribution Date.
"CLASS B INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of (i) thirty (30) days of interest or, in the
case of the initial Distribution Date, the number of days in the related
Collection Period, at the Class B Pass-Through Rate on the Class B
Certificate Balance as of the close of business on the last day of the
related Collection Period, calculated on the basis of a 360-day year
consisting of twelve 30-day months, and (ii) the Class B Interest Carryover
Shortfall, if any, for the preceding Distribution Date.
"CLASS B PASS-THROUGH RATE" means ___% per annum.
"CLASS B PERCENTAGE" means ___%.
"CLASS B POOL FACTOR" means, as of the last day of a Collection
Period, a seven-digit decimal figure equal to the Class B Certificate Balance
as of the close of business on such day divided by the Original Pool Balance.
"CLASS B PRINCIPAL CARRYOVER SHORTFALL" means, as of the close of
any Distribution Date, the excess, if any, of the Class B Principal
Distributable Amount plus any outstanding unpaid principal owed to holders of
Class B Certificates from the preceding Distribution Date over the amount of
principal that the holders of the Class B Certificates actually received on
such current Distribution Date.
"CLASS B PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the Class B Percentage of the sum of: (i) the principal
portion of all payments on Receivables, including prepayments of principal,
received during the related Collection Period, (ii) the aggregate outstanding
principal balance as of the beginning of the related Collection Period of all
Receivables that became Administrative Receivables or Warranty Receivables
under an obligation that arose during the related Collection Period (without
duplication of amounts included in clause (i) above), and (iii) the aggregate
outstanding principal balance as of
5
the beginning of the related Collection Period of all Receivables that become
Defaulted Receivables during the related Collection Period (without
duplication of amounts included in clauses (i) or (ii) above).
"CLASS C CERTIFICATE" means any one of the Certificates executed by
the Trust and authenticated by the Trustee, in substantially the form set
forth in EXHIBIT C hereto.
"CLASS C CERTIFICATE BALANCE" shall equal, initially, the Original
Class C Certificate Balance and, thereafter, shall equal the amount by which
the Pool Balance as of the last day of the related Collection Period exceeds
the sum of the Class A Certificate Balance and the Class B Certificate
Balance as of such Distribution Date after all required distributions,
deposits and withdrawals have been made.
"CLASS C DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of the Class C Principal Distributable Amount and
the Class C Interest Distributable Amount.
"CLASS C INTEREST CARRYOVER SHORTFALL" means, as of the close of
business on any Distribution Date, the excess, if any, of the Class C
Interest Distributable Amount for such Distribution Date plus any outstanding
unpaid interest owed to holders of Class C Certificates from the preceding
Distribution Date plus interest on such outstanding unpaid interest amount,
to the extent permitted by law, at the Class C Pass-Through Rate from such
preceding Distribution Date to but not including such Distribution Date, over
the amount of interest that the holders of the Class C Certificates actually
received on such current Distribution Date.
"CLASS C INTEREST DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the sum of (i) thirty (30) days of interest or, in the
case of the initial Distribution Date, the number of days in the related
Collection Period, at the Class C Pass-Through Rate on the Class C
Certificate Balance as of the close of business on the last day of the
related Collection Period, calculated on the basis of a 360-day year
consisting of twelve 30-day months, and (ii) the Class C Interest Carryover
Shortfall, if any, for the preceding Distribution Date.
"CLASS C PASS-THROUGH RATE" means __% per annum.
"CLASS C PERCENTAGE" means __%.
"CLASS C PRINCIPAL CARRYOVER SHORTFALL" means, as of the close of
any Distribution Date, the excess, if any, of the Class C Principal
Distributable Amount plus any outstanding unpaid principal owed to holders of
Class C Certificates from the preceding Distribution Date over the amount of
principal that the holders of the Class C Certificates actually received on
such current Distribution Date.
"CLASS C PRINCIPAL DISTRIBUTABLE AMOUNT" means, with respect to any
Distribution Date, the Class C Percentage of the sum of: (i) the principal
portion of all payments on Receivables, including prepayments of principal,
received during the related Collection Period, (ii) the aggregate outstanding
principal balance as of the beginning of the related Collection Period of all
Receivables that became Administrative Receivables or Warranty Receivables
under an obligation that arose during the related Collection Period (without
duplication of
6
amounts included in clause (i) above), and (iii) the aggregate outstanding
principal balance as of the beginning of the related Collection Period of all
Receivables that become Defaulted Receivables during the related Collection
Period (without duplication of amounts included in clauses (i) or (ii) above).
"CLEARING AGENCY" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934.
"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.
"CODE" the Internal Revenue Code.
"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, or, in the case of the initial Distribution
Date, the period from the Cutoff Date to _____________. 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: 1) all applications of collections, 2) all Advances
and reductions of Outstanding Advances and 3) all distributions.
"CONTROLLING CLASS OF CERTIFICATES" means, with respect to the
Certificates, (i) first, until the Class A Certificate Balance has been
reduced to zero, the Class A Certificates, (ii) second, until the Class B
Certificate has been reduced to zero, the Class B Certificates, and (iii)
thereafter, the Class C Certificates.
"CORPORATE TRUST OFFICE" means the office of the Trustee, which at
the date hereof is located at _______________________________________________.
"CUSTODIAN" means the party named as such in the Custody and Pledge
Agreement.
"CUSTODY AND PLEDGE AGREEMENT" means the agreement, dated as of the
date of this Agreement, between ________________________, substantially in
the form attached hereto as EXHIBIT E.
"CUTOFF DATE" means ___________________.
"DAMAGES" shall have the meaning specified in Section 9.02.
"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.
7
"DEALER RECOURSE" means, with respect to a Receivable, all recourse
rights against the Dealer which originated the Receivable, and any successor
Dealer.
"DEFAULTED RECEIVABLE" means a Receivable (other than an
Administrative Receivable or a Warranty Receivable) that, 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 CERTIFICATES" shall have the meaning specified in
Section 7.08.
"DELIVERY" when used with respect to Subordination Spread Account
Property means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-105(1)(i) of the UCC and are susceptible of
physical delivery, transfer thereof to the Custodian by physical delivery to
the Custodian indorsed to, or registered in the name of, the Custodian or
indorsed in blank, and, with respect to a certificated security (as defined
in Section 8-102 of the UCC), transfer thereof (i) by delivery of such
certificated security to the Custodian or by delivery of such certificated
security to a securities intermediary (as defined in Section 8-102(a)(14) of
the UCC) indorsed to, or registered in the name of, the Custodian or indorsed
in blank (as defined in Section 8-304 of the UCC) and the making by such
securities intermediary of entries on its books and records identifying such
certificated securities as belonging to the Custodian and the sending by such
securities intermediary of a confirmation of the purchase of such
certificated security by the Custodian, or (ii) by delivery thereof to a
"clearing corporation" (as defined in section 8-102(a)(5) of the UCC) and the
making by such clearing corporation of appropriate entries on its books
reducing the appropriate securities account of the transferor and increasing
the appropriate securities account of a securities intermediary by the amount
of such certificated security, the identification by the clearing corporation
of the certificated securities for the sole and exclusive account of the
securities intermediary, the maintenance of such certificated securities by
such clearing corporation or its nominee subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
securities intermediary of the purchase by the Custodian of such securities
and the making by such securities intermediary of entries on its books and
records identifying such certificated securities as belonging to the
Custodian (all of the foregoing, "Physical Property"), and, in any event, any
such Physical Property in registered form shall be in the name of the
Custodian or its nominee; and such additional or alternative procedures as
may hereafter become appropriate to effect the complete transfer of ownership
of any such Subordination Spread Account Property to the Custodian,
consistent with changes in applicable law or regulations or the
interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the
Federal Home Loan Mortgage Corporation or by the Federal National Mortgage
Association that is a book-entry security held through the Federal Reserve
System pursuant to Federal book-entry regulations, the following procedures,
all in accordance with applicable law, including applicable federal
regulations and Articles 8 and 9 of the UCC: book-entry registration of such
Subordination Spread Account Property to an appropriate book-entry account
maintained with a Federal
8
Reserve Bank by a securities intermediary which is also a "depositary"
pursuant to applicable federal regulations and issuance by such securities
intermediary of a deposit advice or other written confirmation of such
book-entry registration to the Custodian of the purchase by the Custodian of
such book-entry securities; the making by such securities intermediary of
entries in its books and records identifying such book-entry security held
through the Federal Reserve System pursuant to Federal book-entry regulations
as belonging to the Custodian and indicating that such securities
intermediary holds such Subordination Spread Account Property solely as agent
for the Custodian; and such additional or alternative procedures as may
hereafter become appropriate to effect complete transfer of ownership of any
such Subordination Spread Account Property to the Custodian, consistent with
changes in applicable law or regulations or the interpretation thereof; and
(c) with respect to any item of Subordination Spread Account Property
that is an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of the
issuer thereof in the name of the securities intermediary, the sending of a
confirmation by the securities intermediary of the purchase by the Custodian
of such uncertificated security and the making by such securities
intermediary of entries on its books and records identifying such
uncertificated certificates as belonging to the Custodian.
"DEPOSITORY AGREEMENT" means the agreement dated as of the date of
this Agreement, among the Seller, the Custodian and the initial Clearing
Agency, substantially in the form attached hereto as EXHIBIT D.
"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 day
of the following month, or if the 15th day is not a Business Day, the next
following Business Day, commencing with __________________.
"ELIGIBLE INVESTMENTS" mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence:
(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
depository institution or trust company) thereof shall have a credit
rating from each of the Rating Agencies in the highest investment
category granted thereby;
9
(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 Trustee or any of its 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) above;
(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 Securities
Exchange Act of 1934 (a "broker/dealer"), the unsecured short-term debt
obligations of which are rated P-1 by Xxxxx'x 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 Xxxxx'x 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 unrated broker/dealer or
Guaranteed Counterparty, such rating being that of the related
Rated Holding Company));
10
(B) in the case of the Subordination Spread 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 Trustee or the Custodian, 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 Trustee or the Custodian, 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 Trustee or the Custodian, 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, moratorium or other similar
laws affecting creditors' rights generally and to
general equitable principles;
(2) the Trustee or the Custodian, 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 or other action in respect
11
of the Guaranteed Counterparty is necessary) and that
the Trustee or the Custodian, 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 Trustee or the Custodian, 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
Certificates; 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 Certificates;
provided that, unless otherwise expressly stated herein, each of the
foregoing investments shall mature no later than the Business Day prior to
the Distribution Date immediately following the date of purchase of such
investment 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 Certificates.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"EVENT OF DEFAULT" means an event specified in Section 10.01.
"EXCESS AMOUNTS" means, with respect to each Distribution Date, all
interest collections on or in respect of the Receivables on deposit in the
Certificate Account in respect of such Distribution Date, after making the
distributions to the Servicer and the Certificateholders pursuant to Section
5.06(c).
12
"EXCESS PROCEEDS" shall have the meaning assigned to such term in
Section 8.06(b)(ii).
"FINAL SCHEDULED DISTRIBUTION DATE" means _______________.
"FINANCED VEHICLE" means a new, near-new or used automobile or
light-duty truck, together with all accessions thereto, securing an Xxxxxxx's
indebtedness under the respective Receivable.
"LIEN" means a 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 that has been
liquidated by the Servicer.
"MONTHLY REMITTANCE CONDITION" shall have the meaning assigned to
such term in Section 5.02.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"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.
"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.
"NMAC" means Nissan Motor Acceptance Corporation, in its individual
capacity and not as Servicer.
"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 appropriate.
"OPINION OF COUNSEL" means a written opinion of counsel who may but
need not be counsel to the Seller or Servicer, and who shall be reasonably
acceptable to the Trustee.
"OPTIONAL PURCHASE PERCENTAGE" shall be 10.00%.
"ORIGINAL CLASS A CERTIFICATE BALANCE" means $_________________.
13
"ORIGINAL CLASS B CERTIFICATE BALANCE" means $_________________.
"ORIGINAL CLASS C CERTIFICATE BALANCE" mans $__________________.
"ORIGINAL POOL BALANCE" means $_________________, the aggregate
Principal Balance of the Receivables on the Cutoff Date.
"OUTSTANDING ADVANCES" on a Receivable means the sum, as of the
close of business on the last day of a Collection Period, of all Advances as
reduced by payments made as specified in Sections 5.04(a), 5.04(b) and
5.04(c), as applied to reimburse all unpaid Advances with respect to such
Receivable.
"PASS-THROUGH RATE" means the Class A Pass-Through Rate, the Class
B Pass-Through Rate or the Class C Pass-Through Rate.
"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.
"PLAN" shall have the meaning assigned to such term in Section
7.03(b).
"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 Class A Certificateholders or Class B Certificateholders
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 Class A Certificate or Class B
Certificate, as applicable, registered in the name of the Seller, the
Servicer or any Person actually known by a Trust Officer to be an Affiliate
of the Seller or the Servicer.
"POOL FACTOR" for a particular Class of Certificates and any
Distribution Date means a seven-digit decimal figure indicating the principal
amount of the Certificate Balance of such Class of Certificates as of the
close of business on the last day of the related Collection Period as a
fraction of the Original Pool Balance.
"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 the agreement, dated as of the date of
this Agreement, among _________________________, relating to the purchase by
the Seller from NMAC of the Receivables.
14
"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 of the Certificates and that is
rating such Certificates 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
Trustee from the Trust.
"RECEIVABLE FILES" means the documents specified in Section 3.03.
"RECEIVABLES SYSTEMS" shall have the meaning assigned to such term
in Section 9.01(vii).
"RECORD DATE" means, with respect to any Distribution Date, the
fourteenth day of the calendar month in which such Distribution Date occurs
or, if Definitive Certificates 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 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.
"REQUIRED DEPOSIT RATING" for so long as the Certificates shall be
outstanding, shall mean a rating on (i) short-term unsecured debt obligations
of P-1 by Moody's and (ii) short-term unsecured debt obligations of A-1+ by
Standard & Poor's; and any requirement that short-term unsecured debt
obligations have the "Required Deposit Rating" shall mean that such
short-term unsecured debt obligations have the foregoing required ratings
from each of such rating agencies.
"RESIDUAL CERTIFICATE" shall have the meaning assigned to such term
in Section 7.01.
"REQUIRED RATE" means, with respect to each Collection Period, the
sum of the Servicing Rate and [specify rate].
"SECURITIES ACT" means the Securities Act of 1933.
"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 APR.
"SELLER" means Nissan Auto Receivables Corporation, as the seller
of the Receivables under this Agreement, and each successor to Nissan Auto
Receivables Corporation (in the same capacity) pursuant to Section 8.03.
"SERVICER" means NMAC, as the servicer of the Receivables, and each
successor to NMAC (in the same capacity) pursuant to Section 9.03 or Section
10.02.
15
"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 4.09.
"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 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.
"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 SUBORDINATION SPREAD ACCOUNT BALANCE" with respect to
any Distribution Date shall mean $_____________; PROVIDED, HOWEVER, that if
on any Distribution Date (i) the annualized average for the preceding three
Collection Periods (or such shorter 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 Defaulted Receivables, less any Net
Liquidation Proceeds with respect to such Defaulted Receivables from that or
prior Collection Periods) to the Pool Balance as of the first day of each
such Collection Period exceeds ___%, or (ii) the average for the preceding
three Collection Periods (or such shorter 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 ___%, then the Specified
Subordination Spread 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 (x) __% of the Pool
Balance as of the first day of the related Collection Period minus (y) the
excess of the Pool Balance over the Class A Certificate Balance as of the
opening of business of the first day of such Collection Period, but in no
event shall the Specified Subordination Spread Account Balance be more than
$_____________ or less than $_____________; and PROVIDED FURTHER, that on any
Distribution Date on which the aggregate balance of the Class A Certificates
and the Class B Certificates is $______________ or less, after giving effect
to the distributions on such Distribution Date, the Specified Subordination
Spread Account Balance shall be the greater of the balance described above
and $______________.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
Division of the XxXxxx-Xxxx Companies.
"STATE" means any state or commonwealth of the United States of
America or the District of Columbia.
"SUBORDINATION INITIAL DEPOSIT" means $_______________.
16
"SUBORDINATION SPREAD ACCOUNT PROPERTY" shall have the meaning set
forth in the Custody and Pledge Agreement.
"SUBORDINATION SPREAD ACCOUNT" means the account established and
maintained pursuant to the Custody and Pledge Agreement for the benefit of
the Holders of the Class A Certificates and the Class B Certificates.
"SUPPLEMENTAL SERVICING FEE" means the fee payable to the Servicer
for certain services rendered during a Collection Period, determined pursuant
to and defined in Section 4.08.
"TOTAL AVAILABLE AMOUNT" means, for each Distribution Date, the sum
of the Available Interest and the Available Principal.
"TOTAL SERVICING FEE" means the sum of the Base Servicing Fee and
the Supplemental Servicing Fee.
"TRUST" means the Nissan Auto Receivables _______ Grantor Trust
created hereunder, the estate of which shall consist of the Receivables
(other than 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 4.07), and all monies paid thereon, and
all monies accrued thereon, on or after the Cutoff Date; security interests
in the Financed Vehicles and any accessions thereto; funds deposited in the
Collection Account and the Certificate 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 Trustee;
proceeds from claims on any physical damage, credit life or disability
insurance policies covering Financed Vehicles or Obligors; all Dealer
Recourse; all right, title and interest of the Seller in and to the Purchase
Agreement, the Yield Supplement Agreement and the Custody and Pledge
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.
"TRUSTEE" means the Person acting as Trustee under this Agreement
(which initially shall be ______________________________________), its
successor in interest, and any successor trustee appointed pursuant to
Section 11.11.
"TRUSTEE OFFICER" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Division (or any successor thereto),
including any Vice President, Assistant Vice President, Trust Officer, any
Assistant Secretary, or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and having direct responsibility for the administration
of the Trust.
"TRUSTEE'S CERTIFICATE" means a certificate completed and executed
on behalf of the Trustee by a Trustee Officer pursuant to Section 11.02,
substantially in the form of, in the case of assignment to the Seller,
EXHIBIT F-1 and, in the case of an assignment to the Servicer, EXHIBIT F-2.
17
"UCC" means the Uniform Commercial Code as in effect in the
relevant jurisdiction.
"USAP" shall have the meaning assigned to such term in Section 4.11.
"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 APR, after giving effect to the receipt of monies collected
(from whatever source other than Advances) on such Warranty Receivable, if
any, during 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" shall have the meaning assigned to such
term in Section 6.01.
"YIELD SUPPLEMENT AGREEMENT" means the agreement, dated as of the
date of this Agreement, between _________________________, substantially in
the form attached hereto as EXHIBIT G.
"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 (i) the aggregate amount of interest that would
have been due during the related Collection Period on all Yield Supplemented
Receivables if such Yield Supplemented Receivables bore interest at the
Required Rate exceeds (ii) 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."
18
SECTION 1.03. CUTOFF DATE AND RECORD DATE. All references to the Record
Date prior to the first Record Date in the life of the Trust shall be to the
Cutoff Date.
SECTION 1.04. SECTION REFERENCES. All section references shall be to
Sections in this Agreement.
ARTICLE II
THE TRUST
SECTION 2.01. CREATION OF TRUST. Upon the execution of this
Agreement by the parties hereto, there is hereby created the Trust.
SECTION 2.02. CONVEYANCE OF RECEIVABLES. In consideration of the
Trustee's delivery to, or upon the order of, the Seller of Certificates in an
aggregate amount equal to the Original Pool Balance, the Seller does hereby
irrevocably sell, transfer, assign and otherwise convey to the Trustee, in trust
for the benefit of the Certificateholders, without recourse (subject to the
obligations herein):
(i) all right, title, and interest of the Seller in and to the
Receivables 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 4.07 or 12.02) on or after
the Cutoff Date;
(ii) amounts on deposit in the accounts established for the
Trust;
(iii) the right of the Seller in the security interests in the
Financed Vehicles granted by Obligors pursuant to the Receivables and any
related property;
(iv) the right of the Seller in all 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 Seller through NMAC in any Dealer
Recourse;
(vi) the right of the Seller under this Agreement, the Yield
Supplement Agreement, the Purchase Agreement and the Custody and Pledge
Agreement;
(vii) 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;
(viii) 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;
(ix) all other assets comprising the corpus of the Trust; and
19
(x) all proceeds of the foregoing.
Concurrently therewith and in exchange therefor, the Trustee shall
deliver to, or to the order of, the Seller the Certificates.
SECTION 2.03. ACCEPTANCE BY TRUSTEE. The Trustee does hereby accept all
consideration conveyed by the Seller pursuant to Section 2.02, and declares that
the Trustee shall hold such consideration upon the trust herein set forth for
the benefit of all present and future Certificate Owners, subject to the terms
and provisions of this Agreement.
SECTION 2.04. CHARACTERIZATION. 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 this Agreement shall give the Trustee on behalf of
the Trust 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 Trustee on behalf of the Trust, and the Trustee
on behalf of the Trust shall have all the rights, powers and privileges of a
secured party under the UCC.
ARTICLE III
THE RECEIVABLES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller
makes the following representations and warranties as to the Receivables on
which the Trustee relies in accepting the Receivables in trust and executing
and authenticating the Certificates. 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 Trust in
accordance with the terms hereof:
(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 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 terms, (b)
created a valid, subsisting and enforceable security interest in favor of
NMAC in such Financed Vehicle, which security interest has been assigned
pursuant to the Purchase Agreement by NMAC to the Seller, which in turn has
been assigned by the Seller to the Trustee in accordance with the terms
hereof, (c) contains customary and enforceable provisions such that the
rights and remedies of the holder thereof are adequate for realization
against the collateral of the benefits of the security, and (d) provides
for level monthly payments (provided that the payment in the first or last
month in the life of the Receivable may be minimally different from the
level payment) that fully amortize the Amount Financed over an
20
original term of no greater than ____ months and 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 NMAC's retail installment sale contracts (other
than contracts originated in Alabama) meeting the criteria of the Trust set
forth in this Agreement; and no selection procedures believed to be adverse
to the Certificateholders were utilized in selecting the Receivables.
(iii) COMPLIANCE WITH LAW. Each Receivable and the sale of the
Financed Vehicle complied at the time it was originated or made and at the
execution of this Agreement complies in all material respects with all
requirements of applicable federal, state and local laws, and regulations
thereunder, including usury laws, the Federal Truth-in-Lending Act, the
Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt
Collection Practices Act, the Federal Trade Commission Act, the
Xxxxxxxx-Xxxx Warranty Act, the Soldiers and Sailors Civil Relief Act of
1940, the Federal Reserve Board's Regulations B and Z, and state
adaptations of the National Consumer Credit Protection Act and of the
Uniform Consumer Credit Code, state "Lemon Laws" designed to prevent fraud
in the sale of automobiles and other consumer credit laws and equal credit
opportunity and disclosure laws.
(iv) BINDING OBLIGATION. Each Receivable represents the
genuine, legal, valid and binding payment obligation in writing of the
Obligor, enforceable by the holder thereof in accordance with its terms,
subject to 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 Trustee, 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 (b) as of the
Cutoff Date, according to the records of NMAC, no Financed Vehicle has been
repossessed and not reinstated.
(vi) RECEIVABLES IN FORCE. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from
the lien granted by the related Receivable in whole or in part.
(vii) NO WAIVER. No provision of a Receivable has been waived
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.
(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
21
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
hereunder).
(xi) 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.
(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 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 Trustee, for the benefit of the Certificateholders, shall have
good and marketable title to each Receivable, free and clear of all Liens
and rights of others.
(xiii) LAWFUL ASSIGNMENT. No Receivable has been originated
in, or shall be subject to the laws of, any jurisdiction under which the
sale, transfer and assignment of such Receivable under this Agreement or
pursuant to transfers of the Certificates are unlawful, void or voidable.
(xiv) ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the Trustee
a first priority perfected ownership interest in the Receivables have been
made or have been delivered in form suitable for filing to the Trustee.
(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.
22
(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 ___%.
(xx) MATURITY. As of the Cutoff Date, each Receivable had a
remaining term to maturity of not less than _____ months and not greater
than _____ months.
(xxi) BALANCE. Each Receivable had an original Principal
Balance of not more than $____________ and, as of the Cutoff Date, had a
Principal Balance of not less than $______ and not more than $_________.
(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 NMAC) as of the Cutoff Date.
(xxiv) TRANSFER. Each Receivable prohibits the sale or
transfer of the Financed Vehicle without the consent of NMAC.
(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 _____________.
(xxvii) LOCATION OF RECEIVABLE FILES. The Receivable Files
shall be kept at one or more of the locations listed in SCHEDULE B hereto.
(xxviii) FORCED-PLACED INSURANCE PREMIUMS. No contract relating
to any Receivable has had forced-placed insurance premiums added to the
amount financed.
(xxix) NO FRAUD OR MISREPRESENTATION. To the 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.
SECTION 3.02. REPURCHASE UPON BREACH. The Seller, the Servicer or the
Trustee, as the case may be, shall inform the other parties to this Agreement
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 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
23
(whether or not such breach was known to the Seller on the Closing Date (as
defined in the Purchase Agreement)), and the Trustee 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 materially and adversely affected by the breach as
of such last day. A breach of the representation in Section 3.01(i)(d), (xx)
or (xxi) 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(i)(d) 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 Trustee, the Trust, or the
Certificateholders 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 3.02 and to enforce the
obligation of NMAC to the Seller to repurchase such Receivables pursuant to
the Purchase Agreement.
SECTION 3.03. CUSTODY OF RECEIVABLE FILES. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Trustee, upon
the execution and delivery of this Agreement, hereby revocably appoints the
Servicer, and the Servicer hereby accepts such appointment, to act as the agent
of the Trustee as custodian of the following documents or instruments that are
hereby constructively delivered to the Trustee with respect to each Receivable:
(a) The original of the 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 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 NMAC in the
Financed Vehicle; and
(d) Any and all other documents that the Servicer shall keep on file, in
accordance with its customary procedures, relating to a Receivable, the related
Obligor or a Financed Vehicle.
SECTION 3.04. DUTIES OF SERVICER AS CUSTODIAN.
(a) SAFEKEEPING. The Servicer shall hold the Receivable Files on behalf
of the Trustee for the use and benefit of all present and future
Certificateholders, and maintain such accurate and complete accounts, records
and computer systems pertaining to each Receivable File as shall enable the
Trustee 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
24
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 Trustee to verify the accuracy of the Servicer's
record keeping. The Servicer shall promptly report to the Trustee any material
failure on its part to hold the Receivable Files and maintain its accounts,
records and computer systems as herein provided in all material respects and
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 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 to this
Agreement, or at such other office as shall be specified to the Trustee by
written notice from the Servicer not later than 90 days after any change in
location. The Servicer shall make available to the Trustee or its duly
authorized representatives, attorneys or auditors a list of locations of the
Receivable Files and the related accounts, records and computer systems
maintained by the Servicer at such times as the Trustee shall instruct. The
Servicer shall permit the 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.
SECTION 3.05. INSTRUCTIONS; AUTHORITY TO ACT. All instructions from the
Trustee shall be in writing and signed by a Trustee Officer, and the Servicer
shall be deemed to have received proper instructions with respect to the
Receivable Files upon its receipt of such written instructions.
SECTION 3.06. CUSTODIAN'S INDEMNIFICATION. The Servicer, as custodian,
shall indemnify the 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 the Trustee 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 for any portion of any such amount resulting
from the willful misfeasance, bad faith or negligence of the Trustee.
SECTION 3.07. EFFECTIVE PERIOD AND TERMINATION. The Servicer's
appointment as custodian pursuant to Section 3.03 shall become effective as of
the Cutoff Date and shall continue in full force and effect until terminated
pursuant to this Section 3.07. If NMAC shall resign as Servicer in accordance
with the provisions of this Agreement or if all of the rights and obligations of
the Servicer shall have been terminated under Section 10.01, the appointment of
the Servicer as custodian may be terminated by the Trustee, or by the Holders
evidencing not less than 25% of the Controlling Class of Certificates, in the
same manner as the Trustee or such Holders may terminate the rights and
obligations of the Servicer under Section 10.01. 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
Trustee or the Trustee's agent at such place or places as the Trustee may
reasonably designate.
25
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 Annual
Percentage Rate of, or extend any Receivable, except as provided herein, or
change any material term of a Receivable; PROVIDED, HOWEVER, that:
(i) 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, if 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, and the rescheduling or
extension would not modify the terms of such Receivable in such a manner
as to 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 payment terms to the
extent required by law; or
(ii) 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 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; and
(iii) 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 advices to Obligors,
reporting tax information to Obligors, accounting for collections, furnishing
monthly and annual statements to the 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 by the Trustee to execute and deliver, on behalf of
itself, the Trust, the Certificateholders or the Trustee 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
26
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 Trustee (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 Trustee 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 Certificateholders. The Trustee 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, if any, 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.
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. [RESERVED].
SECTION 4.05. 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
Trustee hereby authorizes the Servicer to take such steps as are necessary to
re-perfect such security interest on behalf of the Trust 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,
27
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 4.06. 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) 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 4.07. PURCHASE OF RECEIVABLES UPON BREACH. The Servicer or
the Trustee shall inform the other party promptly, in writing, upon the
discovery of any breach by the Servicer of its obligations under the second
sentence of Section 4.01 or Section 4.02, 4.05 or 4.06 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 such discovery), the Servicer shall (whether or not such breach was
known to the Servicer on the Closing Date (as defined in the Purchase
Agreement)) purchase any Receivable materially and adversely affected by such
breach as of such last day. In consideration of the purchase 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 4.07, 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 Trustee,
the Trust or the Certificateholders with respect to a breach by the Servicer
of its obligations under the second sentence of Section 4.01 or Section 4.02,
4.05 or 4.06 shall be to require the Servicer to purchase Receivables
pursuant to this Section 4.07.
SECTION 4.08. TOTAL SERVICING FEE. The Servicer shall be entitled to
the Base Servicing Fee, as provided herein. As additional servicing
compensation, the Servicer shall be entitled to an amount equal to any
interest earned on the amounts deposited in the Collection Account and the
Certificate Account and earned on funds held by the Servicer pending deposit
therein during such Collection Period, plus an amount that may be retained by
the Servicer consisting of all late fees, prepayment charges and other
administrative fees and expenses or similar charges allowed by applicable law
(and which comply with Prohibited Transaction Exemption 97-34) with respect
to Receivables, collected (from whatever source) on the Receivables during
such Collection Period (collectively, the "Supplemental Servicing Fee").
28
SECTION 4.09. 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 (i) the Trustee (with a copy to each of the Rating
Agencies), (ii) for so long as the Custody and Pledge Agreement is in
existence, the Custodian, and (iii) if any Class C Certificate is held by a
Person other than the Seller or any Affiliate of the Seller, such Class C
Certificateholder, a Servicer's Certificate containing all information
necessary to make the distributions pursuant to Section 5.06 (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 Trustee to send statements to Certificateholders pursuant to Section
5.08 and, for so long as the Custody and Pledge Agreement or a related
agreement is in existence, all information necessary for the Custodian to
determine the amounts necessary to be deposited in the Subordination Spread
Account and the amount that may be released to the Seller. Receivables
purchased or to be purchased by the Servicer or the Seller shall be
identified by the Servicer by the Seller's account number with respect to
such Receivable (as specified in SCHEDULE A of this Agreement). The Trustee
and the Custodian 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 Class A
Certificates and the Class B Certificates and, if any Class C Certificate is
held by a Person other than the Seller or any Affiliate of the Seller, to
such Class C Certificateholder, the Class A Certificate Factor and the Class
B Certificate Factor as of the close of business on the Distribution Date
occurring in such month.
SECTION 4.10. ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF DEFAULT.
(a) The Servicer shall deliver to the Trustee and to each of the Rating
Agencies on or before June 30th of each year, beginning June 30, ______, an
Officer's 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 Certificates
hereunder to March 31, ______), stating that (i) a review of the activities
of the Servicer during the preceding 12-month (or shorter) period and of its
performance under this Agreement has been made under such officer's
supervision and (ii) 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 by a
request in writing to the Trustee addressed to the Corporate Trust Office.
(b) The Servicer shall deliver to the Trustee and to each of the Rating
Agencies 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 of Default or event that with the giving of notice
or lapse of time, or both, would become an Event of Default under Section
10.01. The
29
Seller shall deliver to the 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 10.01(a)(ii) or of any lowering of the
rating described in clause (ii) of the definition of "Monthly Remittance
Condition".
SECTION 4.11. ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT'S REPORT.
The Servicer shall cause a firm of independent certified public accountants,
who may also render other services to the Servicer or to the Seller, to
deliver to the Trustee and each of the Rating Agencies, on or before June 30
of each year, beginning June 30, _______, with respect to the prior twelve
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 Certificates
hereunder to March 31, _______) 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 the
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 a Certificate Owner, the Trustee
shall promptly provide such Certificate Owner with a copy of such Annual USAP
Report. For all purposes of this Agreement, the Trustee may rely on the
representation of any Person that it is a Certificate Owner.
SECTION 4.12. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING RECEIVABLES. The Servicer shall provide to the Certificateholders
access to the Receivable Files in such cases where the Certificateholders
shall be required by applicable statutes or regulations to review such
documentation. 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 Agreement shall affect the
obligation of the 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 4.12.
SECTION 4.13. 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 4.14. SERVICER EXPENSES. The Servicer shall be required to
pay all expenses incurred by it in connection with its activities hereunder,
including fees and disbursements of
30
independent accountants and the Trustee, taxes imposed on the Servicer, data
processing costs and expenses incurred in connection with distributions and
reports to Certificateholders.
ARTICLE V
DISTRIBUTIONS; SUBORDINATION SPREAD ACCOUNTS;
STATEMENTS TO CERTIFICATEHOLDERS
SECTION 5.01. ACCOUNTS. The Servicer shall establish the Collection
Account and the Certificate Account in the name of the Trustee for the benefit
of the Certificateholders. Each of the Collection Account and the Certificate
Account shall be a segregated trust account initially established with the
Trustee and maintained with the Trustee so long as (a) the deposits of the
Trustee have the Required Deposit Rating or (b) the Collection Account or the
Certificate Account, as the case may be, is maintained in a segregated trust
account in the trust department of the Trustee; PROVIDED, HOWEVER, that all
amounts held in the Collection Account and the Certificate Account shall, to the
extent permitted by applicable laws, rules and regulations and as directed by
the Servicer, be invested by the Trustee in Eligible Investments and 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. Should
the short-term unsecured debt obligations of the Trustee no longer have the
Required Deposit Rating then, unless the Collection Account and the Certificate
Account are maintained in segregated trust accounts in the trust department of
the Trustee, the Servicer shall, with the Trustee's assistance as necessary and
within ten Business Days of receipt of notice from the Trustee that the Trustee
no longer has the Required Deposit Rating, cause the Collection Account and the
Certificate Account (a) 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 (b) to be moved to the trust department of the
Trustee. Earnings on investments of funds in the Collection Account and the
Certificate Account shall be paid to the Servicer, and any losses and investment
expenses shall be charged against the funds on deposit in the Collection Account
or the Certificate Account, as the case may be.
SECTION 5.02. COLLECTIONS. The Servicer shall remit to the Collection
Account (a) all payments by or on behalf of the Obligors in respect of the
Receivables (excluding payments on Administrative Receivables or Warranty
Receivables and amounts constituting Supplemental Servicing Fees) and (b) all
Net Liquidation Proceeds, not later than the first Business Day after receipt
thereof. Prior to each Distribution Date, for so long as the Custody and Pledge
Agreement or any similar agreement is in existence, the Servicer shall notify
the Custodian that the Custodian will be required to remit to the Collection
Account from the Subordination Spread Account the lesser of (i) the amount of
the Subordination Spread Account, (ii) the amounts, if any, required to be
distributed to Class A Certificateholders from the Subordination Spread Account
pursuant to Sections 5.06(c)(ii) and 5.06(c)(iii), and (iii) the amounts, if
any, required to be distributed to Class B Certificateholder, from the
Subordination Spread Account pursuant to Sections 5.06(c)(iv) and 5.06(c)(v).
The Servicer shall be entitled to withhold, however, 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 postings. Accordingly,
notwithstanding the provisions of the first sentence of this Section 5.02, the
Servicer shall remit collections received during a
31
Collection Period to the Collection Account in immediately available funds on
the Business Day prior to the related Distribution Date but only for so long
as (i) NMAC is the Servicer, (ii) the rating of the Servicer's short-term
unsecured debt obligations is at least "P-1" by Moody's and the rating of the
Servicer's (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 is at least "A-1" by Standard & Poor's
(so long as Moody's and Standard & Poor's are Rating Agencies), and (iii) no
Event of Default shall have occurred and be continuing (each, a "Monthly
Remittance Condition"); except that the requirement in clause (i) above shall
not apply if the Class A Certificates and the Class B Certificates are not
then outstanding and the Class C Certificates do not have an investment grade
rating. 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 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 such
Certificates. The Servicer shall give the 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). The Trustee shall not be
deemed to have knowledge of any event or circumstance under clause (ii) of
the definition of Monthly Remittance Condition that would require daily
remittance by the Servicer to the Collection Account unless the 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 Certificates evidencing
not less than 25% of the Class A Certificate Balance or the Class B
Certificate Balance, or a Trustee Officer in the Corporate Trust Office with
knowledge hereof or familiarity herewith has actual knowledge of such event
or circumstance. For purposes of this Article V the phrase "payments by or
on behalf of Obligors" shall mean payments made by Persons other than the
Servicer.
SECTION 5.03. APPLICATION OF COLLECTIONS. Collections with respect to a
Receivable made during a Collection Period shall be applied first to interest
accrued to date on such Receivable, second to principal until the Principal
Balance of that Receivable is brought current, third to reduce the unpaid late
charges (if any) as provided in such Receivable and finally 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
Defaulted Receivable) 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 Payments or the
Warranty Purchase Payments, 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
arising from the prepayment
32
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 Outstanding Advances.
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(a)(ii); 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(a)(ii): (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 Trustee an
Officer's Certificate setting forth the amount of such Nonrecoverable Advance,
and on the related Distribution Date, the 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(a)(iii).
(d) For so long as the Monthly Remittance Conditions are satisfied, in
lieu of causing the Servicer first to deposit and then the Trustee to remit to
the Servicer the amounts described in clauses (i) through (iii) of 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 Trustee, shall be obligated to make Advances unless it
has expressly agreed to do so in writing.
SECTION 5.05. ADDITIONAL DEPOSITS.
(a) The Servicer shall deposit into the Collection Account the aggregate
amount of Advances pursuant to Section 5.04(a). The Servicer and the Seller
shall deposit in the Collection Account the aggregate Administrative Purchase
Payments with respect to Administrative Receivables pursuant to Section 4.07 and
the aggregate Warranty Purchase Payments with respect to Warranty Receivables
pursuant to Section 3.02, and the Servicer shall deposit therein all amounts to
be paid under Section 12.02. All such deposits with respect to a Collection
Period shall be made, in immediately available funds, by 5:00 p.m., New York
City time, on the Business Day immediately preceding the Distribution Date
related to such Collection Period.
(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
33
immediately preceding the related Distribution Date. At the direction of the
Servicer, the 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. DISTRIBUTIONS.
(a) On each Distribution Date, the Trustee shall cause to be made the
following transfers and distributions in the amounts set forth in the Servicer's
Certificate for such Distribution Date:
(i) From the Collection Account to the Certificate Account, in
immediately available funds, the entire amount then on deposit in the
Collection Account; PROVIDED, HOWEVER, that if the Servicer is required to
make deposits to the Collection Account on a daily basis pursuant to
Section 5.02, the amount of the funds transferred from the Collection
Account to the Certificate Account will include only those funds that were
deposited in the Collection Account for the Collection Period related to
such Distribution Date.
(ii) From the Certificate Account to the Servicer, in
immediately available funds, from amounts on deposit or amounts received
from Obligors and allocable to interest, the amount payable in respect of
Outstanding Advances pursuant to the last sentence of Section 5.04(a) and
Section 5.04(b).
(iii) From the Certificate Account to the Servicer, in
immediately available funds, any payments in respect of Nonrecoverable
Advances required and to the extent set forth in Section 5.04(c).
(b) The Servicer shall calculate on each Determination Date the Total
Available Amount, the Available Interest, the Available Principal, the Class A
Distributable Amount, the Class B Distributable Amount and the Class C
Distributable Amount and, based on the Total Available Amount and the other
distributions to be made on such Distribution Date, determine the amount
distributable to Certificateholders of each class.
(c) The rights of the Class B Certificateholders and the Class C
Certificateholders to receive distributions in respect of the Class B
Certificates and the Class C Certificates shall be and hereby are subordinated
to the rights of the Class A Certificateholders to receive distributions in
respect of the Class A Certificates as provided below. In addition, the rights
of the Class C Certificateholders to receive distributions in respect of the
Class C Certificates shall be and hereby are subordinated to the rights of the
Class B Certificateholders to receive distributions in respect of the Class B
Certificates as provided below. On each Distribution Date, the Trustee (based
on the information contained in the Servicer's Certificate delivered on the
related Determination Date pursuant to Section 4.09) shall make the following
distributions (after payment of the Supplemental Servicing Fee, to the extent
not previously retained by the Servicer) from the Certificate Account in the
following order of priority:
(i) first, to the Servicer, from Available Interest, the Base
Servicing Fee and all unpaid Base Servicing Fees from prior Collection
Periods, if any;
34
(ii) second, to the Class A Certificateholders, from Available
Interest (as such Available Interest has been reduced as described in
clause (i) above), an amount equal to the sum of the Class A Interest
Distributable Amount and any outstanding Class A Interest Carryover
Shortfall as of the close of business on the preceding Distribution Date;
and if such Available Interest is insufficient, the Class A
Certificateholders will receive such shortfall first, from monies on
deposit in the Subordination Spread Account, and second, if such amounts
are insufficient, from the Class C Percentage of Available Principal, and
third, if such amounts are insufficient, from the Class B Percentage of
Available Principal;
(iii) third, to the Class A Certificateholders, from Available
Principal, an amount equal to the sum of the Class A Principal
Distributable Amount and any outstanding Class A Principal Carryover
Shortfall as of the close of business on the preceding Distribution Date;
and if such Available Principal is insufficient, the Class A
Certificateholders will receive such shortfall first, from monies on
deposit in the Subordination Spread Account, and second, if such amounts
are insufficient, from Available Interest (as such Available Interest has
been reduced as described in clauses (i) and (ii) above);
(iv) fourth, to the Class B Certificateholders, from Available
Interest (as such Available Interest has been reduced by the distributions
described above in clauses (i), (ii) and (iii) above), an amount equal to
the sum of the Class B Interest Distributable Amount and any outstanding
Class B Interest Carryover Shortfall as of the close of business on the
preceding Distribution Date; and if such Available Interest is
insufficient, the Class B Certificateholders will receive such shortfall
first, from monies on deposit in the Subordination Spread Account, and
second, if such amounts are insufficient, from the Class C Percentage of
Available Principal;
(v) fifth, to the Class B Certificateholders, from Available
Principal (as such Available Principal has been reduced as described in
clauses (iii) and (iv) above), an amount equal to the sum of the Class B
Principal Distributable Amount and any outstanding Class B Principal
Carryover Shortfall as of the close of business on the preceding
Distribution Date; and if such Available Principal is insufficient, the
Class B Certificateholders will receive such shortfall first, from monies
on deposit in the Subordination Spread Account, and second, if such amounts
are insufficient, from Available Interest (as such Available Interest has
been reduced as described in clauses (i), (ii), (iii) and (iv) above);
(vi) sixth, to the Class C Certificateholders, from Available
Interest (as such Available Interest has been reduced as described in
clauses (i), (ii), (iii), (iv) and (v) above), an amount equal to the sum
of the Class C Interest Distributable Amount and any outstanding Class C
Interest Carryover Shortfall as of the close of business on the preceding
Distribution Date;
(vii) seventh, to the Class C Certificateholders, from
Available Principal (as such Available Principal has been reduced as
described in clauses (iii), (iv) and (v) above), an amount equal to the sum
of the Class C Principal Distributable Amount
35
and any outstanding Class C Principal Carryover Shortfall as of the close
of business on the preceding Distribution Date; and if such Available
Principal is insufficient, the Class C Certificateholders will receive
such shortfall from Available Interest (as such Available Interest has
been reduced as described in clauses (i), (ii), (iii), (iv), (v) and (vi)
above); and
(viii) eighth, to the Seller, any Excess Amounts, except to the
extent required to be deposited in the Subordination Spread Account
pursuant to the Custody and Pledge Agreement;
PROVIDED, HOWEVER, that amounts otherwise distributable to the holders of Class
C Certificates pursuant to clauses (vi) and (vii) above shall be deposited by
the Trustee on behalf of such holders in the Subordination Spread Account to the
extent of any deficiency in the Specified Subordination Spread Account Balance.
For purposes of all of the provisions of this Agreement, all such amounts
deposited in the Subordination Spread Account shall be deemed to have been
distributed pro rata to the holders of Class C Certificates and contributed by
such holders to the Subordination Spread Account pursuant to the Custody and
Pledge Agreement.
Notwithstanding anything herein to the contrary, no amount shall be
paid to the Certificateholders in respect of any Yield Supplement Deposit with
respect to a Receivable, except to the extent of amounts withdrawn from the
Yield Supplement Account and deposited in the Certificate Account or paid to the
Certificate Account by the Seller pursuant to the Yield Supplement Agreement;
PROVIDED, HOWEVER, that, if an insufficiency of funds in the Yield Supplement
Account would result in a shortfall of interest, the amount of such shortfall
shall be withdrawn from the Subordination Spread Account and deposited in the
Certificate Account prior to such Distribution Date. Other withdrawals and
deposits into the Subordination Spread Account shall be made as provided in the
Custody and Pledge Agreement.
(d) Subject to Section 12.01 respecting the final payment upon retirement
of each Certificate, the Servicer shall on each Distribution Date instruct the
Trustee to distribute to each Certificateholder of any class of record on the
preceding Record Date either by wire transfer, in immediately available funds to
the account of such holder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder is the Seller or a Clearing
Agency and shall have provided to the Trustee appropriate instructions prior to
such Distribution Date, or, if not, by check mailed to such Certificateholder
(such check to be mailed as soon as reasonably practicable on or after such
Distribution Date) at the address of such holder appearing in the Certificate
Register, the amounts to be distributed to such Certificateholder pursuant to
such holder's Certificates.
SECTION 5.07. NET DEPOSITS. For so long as each Monthly Remittance
Condition is satisfied (or the rating agency confirmation described in the fifth
sentence of Section 5.02 has been obtained), the Servicer (in whatever capacity)
may make the remittances pursuant to Sections 5.02 and 5.05 above net of amounts
to be distributed to the Servicer (in whatever capacity) pursuant to Section
5.06(a)(ii), Section 5.06(a)(iii) or Section 5.06(c). In addition, the Seller
agrees that such remittances may be made net of amounts to be distributed to the
Seller hereunder and under the Custody and Pledge Agreement, if any. Accounts
between the Seller and the Servicer will be adjusted accordingly. Nonetheless,
the Servicer shall account for all of
36
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.
SECTION 5.08. STATEMENTS TO CERTIFICATEHOLDERS.
(a) On each Distribution Date, the Trustee shall include with each
distribution to each Class A Certificateholder and Class B Certificateholder,
and, if the Class C Certificateholder is not the Seller or an Affiliate of the
Seller, to the Class C 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 4.09, setting forth for the Collection
Period relating to such Distribution Date the following information:
(i) the amount of such distribution allocable to principal;
(ii) the amount of such distribution allocable to interest;
(iii) the amount of such distribution allocable to the Yield
Supplement Deposit;
(iv) the amount on deposit in the Yield Supplement Account;
(v) the Pool Balance as of the close of business on the last
day of the related Collection Period;
(vi) the amount of the Base Servicing Fee paid to the Servicer
with respect to the related Collection Period, the Class A
Certificateholder's, the Class B Certificateholder's, or the Class C
Certificateholder's Class A Percentage, Class B Percentage, or Class C
Percentage, as the case may be, of the Base Servicing Fees, the amount of
any unpaid Base Servicing Fees and the change in such amount from that of
the prior Distribution Date;
(vii) the amount of the Class A Interest Carryover Shortfall,
the Class A Principal Carryover Shortfall, the Class B Interest Carryover
Shortfall, the Class B Principal Carryover Shortfall, the Class C Interest
Carryover Shortfall and the Class C Principal Carryover Shortfall, if any,
on such Distribution Date and the change in such amounts from the preceding
Distribution Date;
(viii) the Class A Certificate Balance, the Class A Certificate
Factor, the Class A Pool Factor, the Class B Certificate Balance, the
Class B Certificate Factor, the Class B Pool Factor and the Class C
Certificate Balance as of such Distribution Date;
(ix) the amounts otherwise distributable to the Class B
Certificateholders and Class C Certificateholders that are distributed to
Class A Certificateholders on such Distribution Date, and the amount
otherwise distributable to the Class C Certificateholders that is
distributed to the Class B Certificateholders or deposited in the
Subordination Spread Account on such Distribution Date;
37
(x) for so long as the Custody and Pledge Agreement or a
related agreement is in existence, the balance of the Subordination Spread
Account, as the case may be, on such Distribution Date, after giving effect
to distributions made on such Distribution Date, and the change in such
balance from the preceding Distribution Date; and
(xi) the amount of Advances made in respect of the related
Collection Period and the amount of the unreimbursed Advances on such
Distribution Date.
(b) Copies of such statements may be obtained by Certificate Owners from
the Trustee by a request in writing. The Trustee shall provide such copies
promptly after such requests.
(c) Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of this Agreement, but not later
than the latest date permitted by law, the Trustee shall make available with the
Clearing Agency holding Book-Entry Certificates or, if Definitive Certificates
have been issued, mail to each Person who at any time during such calendar year
shall have been a holder of a Definitive Certificate (other than the Seller or
any Affiliate of the Seller) a statement containing the sum of the amounts or
the amount as of the end of such calendar year, as the case may be, set forth in
clauses (i), (ii), (iii), (v), (vi) and (vii) of Section 5.08(a) above and such
other information, if any, as the Servicer determines is necessary to ascertain
the Certificateholder's share of the gross income and deductions of the Trust
(exclusive of the Supplemental Servicing Fee) or is otherwise necessary under
applicable law for the preparation of the federal income tax returns by
Certificateholders for such calendar year or, if such Person shall have been a
holder of a Certificate during a portion of such calendar year, for the
applicable portion of such year, for the purposes of such Certificateholder's
preparation of federal income tax returns.
SECTION 5.09. NO PETITION. The Trustee covenants and agrees that, prior
to the date which is one year and one day after the date upon which the
Certificates are paid in full, the Trustee will not institute against, or join
any other Person in instituting against, the Seller any bankruptcy,
reorganization arrangement, insolvency or liquidation proceeding or other
proceedings under any federal or state bankruptcy or similar law. This
Section 5.09 shall survive the termination of this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. YIELD SUPPLEMENT ACCOUNT. Pursuant to the Yield Supplement
Agreement, the Seller shall establish and maintain with the Trustee for the
benefit of the Class A Certificateholders and the Class B Certificateholders a
separate trust account in the name of the Trustee (the "Yield Supplement
Account"), or such other account as may be acceptable to the Rating Agencies.
The Yield Supplement Account (or such other account acceptable to the Rating
Agencies) shall not be part of the Trust. Subject to the limitations set forth
in the Yield Supplement Agreement, the Seller hereby conveys and transfers to
the Trustee (and its successors and assigns) the Yield Supplement Account, all
funds on deposit therein and all proceeds thereof.
38
SECTION 6.02. CUSTODY AND PLEDGE AGREEMENT. The Seller and the
Trustee, as initial Custodian, shall enter into the Custody and Pledge
Agreement or otherwise provide such partial credit support, if any, as may be
necessary for each Rating Agency to provide those ratings necessary to
satisfy the related condition precedent to the underwriters' obligation to
purchase the Class A Certificates and the Class B Certificates.
SECTION 6.03. LIMITATIONS ON THE TRUST. The Trust shall not (a) incur
any indebtedness or obligations or (b) engage in any business activity other
than acquiring and holding the assets of the Trust, issuing the Certificates
and making payments thereon, each in accordance with the terms of this
Agreement.
ARTICLE VII
THE CERTIFICATES
SECTION 7.01. THE CERTIFICATES. The Class A Certificates and the Class
B Certificates shall be issued in denominations of $1,000 and integral
multiples thereof; the Class C Certificates shall be issued in denominations
of $100,000 or in any amount in excess thereof, in each case in fully
registered form and integral multiples thereof; PROVIDED, HOWEVER, that one
Class A Certificate, one Class B Certificate and one Class C Certificate may
be issued in a denomination equal to the residual amount (the "Residual
Certificate"). The Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of a Trustee Officer of the Trustee.
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 valid and binding obligations of the
Trust, 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 such Certificates.
SECTION 7.02. AUTHENTICATION OF CERTIFICATES. The Trustee shall cause
the Certificates to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Seller, signed by its chairman
of the board, its president or any vice president, without further corporate
action by the Seller, in authorized denominations, pursuant to this
Agreement. No Certificate shall entitle its holder to any benefit under this
Agreement, or shall 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, EXHIBIT B or EXHIBIT C hereto executed by the Trustee
by manual or facsimile signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated
and delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 7.03. 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 7.07, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Trustee shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee shall be the
initial Certificate Registrar.
39
(b) The Class C Certificates shall initially be retained by the Seller.
No transfer of a Class C Certificate shall be made unless (i) the
registration requirements of the Securities Act, and any applicable State
securities laws are complied with, (ii) such transfer is exempt from the
registration requirements under the Securities Act and any applicable State
securities laws or (iii) the prospective transferee of the Class C
Certificate certifies in writing to the Seller and the Trustee, to the
Seller's satisfaction, that such transferee is a Qualified Institutional
Buyer (as defined in Rule 144A under said Act); PROVIDED, HOWEVER, that no
such transfer pursuant to clause (i), (ii) or (iii) shall be made (x) if such
transfer would result in a downgrading or withdrawal of the rating of any
Rating Agency or (y) if such transfer would cause the Trust or any
arrangements identified in the Custody and Pledge Agreement to be
characterized as an association taxable as a corporation or otherwise
adversely affect the federal, state or local income tax status of the Trust
and (z) unless the Custody and Pledge Agreement is amended, in form and
substance satisfactory to the Trustee and the Seller, in order to reflect
such transfer and cause such transferee to be bound by the obligations
thereunder. If a transfer is to be made in reliance upon an exemption from
the Securities Act or any applicable State securities laws to a Person other
than a Qualified Institutional Buyer, the Class C Certificateholder desiring
to effect such transfer and such Certificateholder's prospective transferee
must each certify in writing to the Seller and the Trustee the facts
surrounding such transfer and, at the request of the Seller, provide both the
Seller and the Trustee with an Opinion of Counsel in form and substance
satisfactory to the Seller that such transfer may be made pursuant to an
exemption from the Securities Act or any applicable State securities laws and
such transfer will not result in the Trust or any arrangements identified in
the Custody and Pledge Agreement from being characterized as an association
taxable as a corporation or otherwise adversely affect the federal, state or
local income tax status of the Trust, which Opinion of Counsel shall not be
an expense of the Seller or the Trustee. Neither the Seller nor the Trustee
is under an obligation to register the Class C Certificates under the
Securities Act or any other securities law.
(c) No transfer of a Class A Certificate, or beneficial interest
therein, shall be made unless the Trustee shall have received a
representation from the transferee thereof substantially in the form of
Exhibit H-1 to the effect that:
(i) such transferee is not an employee benefit plan or an
arrangement subject to Section 406 of 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; or
(ii) if such transferee is a Plan, then:
(A) such Plan is an "accredited investor" as defined in Rule
501(a)(1) of Regulation D under the Securities Act;
(B) such Plan's investment in the Class A Certificates does
not exceed 25% of all of the Class A Certificates outstanding at
the time of such transfer; and
(C) immediately after the acquisition, no more than 25% of
the assets of the Plan with respect to which a person has
discretionary authority or renders investment advice are invested
in certificates representing interests in trusts containing assets
sold or serviced by the same entity.
40
(d) Without limiting the generality of Section 7.03(b), no transfer of
a Class B Certificate or Class C Certificate, or beneficial interest therein,
shall be made unless the Trustee shall have received a representation from
the transferee thereof substantially in the form of Exhibit H-2 to the effect
that such transferee (A) is not a Plan nor a person acting on behalf of a
Plan nor using the assets of a Plan to effect such transfer, or (B) is an
insurance company purchasing a Class B Certificate or Class C Certificate
with funds contained in an "insurance company general account" (as defined in
Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60"))
as to which there is a Plan with respect to which the amount of such general
account's reserves and liabilities for the contracts held by or on behalf of
such Plan and all other Plans maintained by the same employer (or affiliate
thereof as defined in Section V(a)(1) of PTCE 95-60) or by the same employee
organization does not exceed 10% of the total of all reserves and liabilities
of such general account (as such amounts are determined under Section I(a) of
PTCE 95-60) at the date of acquisition.
(e) For purposes of Sections 7.03(c) and (d), with respect to any
Certificate that is a Book-Entry Certificate, the representations contained
therein shall be deemed to have been made to the Trustee by the transferee's
(including an initial acquirer's) acceptance of an interest in such
Certificate. Notwithstanding anything else to the contrary herein, any
purported transfer of a Certificate, or a beneficial interest therein, to or
on behalf of a Plan or a person acting on behalf of a Plan or using the
assets of a Plan to effect such transfer not exempt pursuant to PTCE 97-34 or
to an insurance company purchasing with funds from a general account not
exempt pursuant to PTCE 95-60 shall be void and of no effect.
(f) To the extent permitted under applicable law (including, but not
limited to, ERISA), the 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 7.03 or for making any payments due on such Certificate to
the Certificateholder thereof or taking any other action with respect to such
Certificateholder under the provisions of this Agreement so long as the
transfer was registered by the Trustee in accordance with the foregoing
requirements. Upon surrender for registration of transfer of any Certificate
at the Corporate Trust Office, the Trustee shall execute, 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 Trustee. 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 Corporate Trust Office.
(g) 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 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 subsequently disposed of by the Trustee.
(h) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the 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 Certificates.
41
SECTION 7.04. 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 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 bona fide purchaser, the Trustee on behalf of the Trust shall
execute and the Trustee 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 7.04, the Trustee and 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 Section 7.04
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 7.05. PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Trustee or the Certificate
Registrar shall treat the Person in whose name any Certificate shall be
registered as the owner of such Certificate for the purpose of receiving
distributions pursuant to Section 5.06 and for all other purposes whatsoever,
and neither the Trustee nor the Certificate Registrar shall be bound by any
notice to the contrary.
SECTION 7.06. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Trustee shall furnish or cause to be furnished to the
Servicer, within 15 days after receipt by the Trustee of a request therefor
from the Servicer in writing, a list, in such form as the Servicer may
reasonably require, of the names and addresses of all Certificateholders as
of the most recent Record Date. If three or more Certificateholders, or one
or more Holders of Certificates aggregating not less than 25% of the Class A
Certificate Balance or the Class B Certificate Balance, apply in writing to
the Trustee, and such application states that the applicants desire to
communicate with other Certificateholders of their class with respect to
their rights under this Agreement or under the Certificates and such
application shall be accompanied by a copy of the communication that such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, request from the Clearing Agency
and make available to such Certificateholders access during normal business
hours to the current list of Certificateholders of such class. Each Holder,
by receiving and holding a Certificate, shall be deemed to have agreed to
hold neither the Servicer nor the Trustee accountable by reason of the
disclosure of its name and address, regardless of the source from which such
information was derived.
SECTION 7.07. MAINTENANCE OF OFFICE OR AGENCY. The Trustee shall
maintain in the Borough of Manhattan, The City of New York, 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 Trustee in respect of the Certificates and this Agreement may be served.
The Trustee initially designates the Corporate Trust Office as its office for
such purposes. The Trustee shall give prompt written notice to the Servicer
and to the Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
42
SECTION 7.08. BOOK-ENTRY CERTIFICATES. The Class A Certificates and
the Class B Certificates, upon original issuance, will be issued in the form
of typewritten Certificates representing the Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency (or a
custodian therefor), by, or on behalf of, the Seller. The Class A
Certificates and the Class B Certificates delivered to The Depository Trust
Company shall initially be registered on the Certificate Register in the name
of CEDE & Co., the nominee of the initial Clearing Agency, and no Certificate
Owner will receive a definitive certificate representing such Certificate
Owner's interest in the Class A Certificates or the Class B Certificates,
except as provided in Section 7.10. Unless and until definitive, fully
registered Certificates (the "DEFINITIVE CERTIFICATES") have been issued to
Certificate Owners pursuant to Section 7.10:
(i) the provisions of this Section 7.08 shall be in full
force and effect;
(ii) the Seller, the Servicer, the Certificate Registrar
and the Trustee may deal with the Clearing Agency for all purposes
(including the making of distributions on the Class A Certificates and
the Class B Certificates) as the authorized representative of the
Certificate Owners;
(iii) to the extent that the provisions of this Section 7.08
conflict with any other provisions of this Agreement, the provisions of
this Section 7.08 shall control;
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and shall be limited to those
established by law and agreements between such Certificate Owners and
the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Depository Agreement, unless and until Definitive Certificates
are issued pursuant to Section 7.10, the initial Clearing Agency will
make book-entry transfers among the Clearing Agency Participants and
receive and transmit distributions of principal and interest on the
Class A Certificates and the Class B Certificates to such Clearing
Agency Participants; and
(v) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of Holders evidencing a
specified percentage of the Controlling Class of Certificates, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Certificate
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the Controlling Class of
Certificates and has delivered such instructions to the Trustee. The
Trustee shall have no obligation to ascertain whether the Clearing
Agency has in fact received any such instructions.
SECTION 7.09. NOTICES TO CLEARING AGENCY. Whenever notice or other
communication to the Class A Certificateholders or the Class B
Certificateholders are required under this Agreement, unless and until
Definitive Certificates shall have been issued to Certificate Owners pursuant
to Section 7.10, the Trustee and the Servicer shall give all such notices and
communications specified herein to be given to Holders of the Class A
Certificates and the Class B Certificates to the Clearing Agency.
43
SECTION 7.10. DEFINITIVE CERTIFICATES. If (i)(A) the Seller advises
the Trustee in writing that the Clearing Agency is no longer willing or able
properly to discharge its responsibilities under the Depository Agreement,
and (B) the Trustee or the Seller is unable to locate a qualified successor,
(ii) the Seller, at its option, advises the Trustee 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, Certificate Owners representing
beneficial interests aggregating not less than a majority of the Class A
Certificate Balance or Class B Certificate Balance, as applicable, advise the
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interests of the Certificate Owners of such
class, then the Trustee shall notify the Clearing Agency and request that the
Clearing Agency notify all Certificate Owners of such class of the occurrence
of any such event and of the availability of Definitive Certificates to
Certificate Owners of such class requesting the same. Upon surrender to the
Trustee of the Certificates of such class by the Clearing Agency, accompanied
by registration instructions from the Clearing Agency for registration, the
Trustee shall issue the applicable Definitive Certificates of such class and
deliver such Definitive Certificates in accordance with the instructions of
the Clearing Agency. Neither the Seller, the Certificate Registrar nor the
Trustee shall be liable for any delay in delivery of such instructions and
each may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates, the Trustee
shall recognize the Holders of the Definitive Certificates as
Certificateholders hereunder.
ARTICLE VIII
THE SELLER
SECTION 8.01. REPRESENTATIONS OF SELLER. The Seller makes the following
representations on which the Trustee relies in accepting the Receivables in
trust and executing and authenticating the Certificates. The representations
speak as of the execution and delivery of this Agreement and shall survive the
sale of the Receivables to the Trustee:
(i) 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.
(ii) 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.
(iii) 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
44
deposited with the Trustee as part of the Trust and has duly authorized
such sale and assignment to the Trustee 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.
(iv) 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.
(v) 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 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.
(vi) 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: (A) asserting the invalidity of this Agreement, the Yield
Supplement Agreement, the Custody and Pledge Agreement or the Certificates;
(B) seeking to prevent the issuance of the Certificates or the consummation
of any of the transactions contemplated by this Agreement, , the Yield
Supplement Agreement, the Custody and Pledge Agreement; (C) 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 Yield Supplement Agreement, the
Custody and Pledge Agreement or the Certificates; or (D) relating to the
Seller and which would adversely affect the federal or any state income tax
attributes of the Certificates.
SECTION 8.02. 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.
45
(i) The Seller shall indemnify, defend and hold harmless the
Trustee, the Trust and the Certificateholders and the Trust from and
against any taxes that may at any time be asserted against the Trustee or
the Trust with respect to, and as of the date of, the sale of the
Receivables to the Trust or the issuance and original sale of 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 costs and expenses in
defending against the same.
(ii) The Seller shall indemnify, defend and hold harmless the
Trustee from and against any loss, liability or expense incurred by reason
of (A) 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 (B) the
Seller's violation of federal or state securities laws in connection with
the registration or the sale of the Certificates.
Indemnification under this Section 8.02 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 the
Trustee pursuant to this Section 8.02 and the Trustee thereafter shall collect
any of such amounts from others, the Trustee 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 8.02
(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 8.02, notify the
Seller of the commencement thereof. If any such action is brought against any
Indemnified Party under this Section 8.02 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 Seller), and the Seller
will not be liable to such Indemnified Party under this Section 8.02 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 8.02 shall survive the
termination of this Agreement or the resignation or removal of the 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 8.02 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 8.03. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS
OF, SELLER. Subject to Section 8.06, 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
46
than 50% of the voting stock of which is owned directly or indirectly by
Nissan Motor Co., Ltd., 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 3.01 shall have been breached and no Event
of Default, and no event that, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing, (y) the
Seller shall have delivered to the Trustee an Officer's Certificate stating
that such consolidation, merger or succession and such agreement or
assumption comply with this Section 8.03 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 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 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 preserve
and protect such interest. The Seller shall provide notice of any merger,
consolidation or succession pursuant to this Section 8.03 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 8.04. 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 or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement; 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 Seller may undertake any reasonable
action that it may deem necessary or desirable in respect of this Agreement and
its obligations 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 Seller and the Seller will not be entitled to be
reimbursed therefor.
SECTION 8.05. SELLER MAY OWN CERTIFICATES. The Seller and any Affiliate
of the Seller may in its individual or any other capacity become the owner or
pledgee of Certificates with the same rights as it would have if it were not the
Seller or an affiliate thereof, except as otherwise provided in the definition
of "Certificateholder" specified in Section 1.01 and except as
47
otherwise specifically provided herein. Certificates 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,
except as otherwise expressly provided in this Agreement.
SECTION 8.06. ADDITIONAL COVENANTS.
(a) The Seller agrees with the Certificate Owners and each Rating Agency
that the Seller shall not issue any additional securities that could reasonably
be expected to affect materially and adversely the rating of the Certificates
issued pursuant to this Agreement 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 pursuant to an agreement with terms substantially similar
to the terms of this Agreement shall not be deemed to materially and adversely
affect the ratings on the Certificates. The Seller shall provide a copy of any
such consent to the Trustee.
(b) The Seller shall not do any of the following (without the prior
written consent of each Rating Agency (which consent shall be to the effect that
the acts set forth below shall not affect materially adversely such rating) and,
upon the Seller's receipt of such written consent from each such Rating Agency,
the Trustee shall, without any exercise of its own discretion, also provide its
written consent to the Seller):
(i) engage in any business or activity other than those set
forth in Article Three of the Seller's Certificate of Incorporation, as
amended;
(ii) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (A) any indebtedness incurred
in connection with any certificates or notes (as defined in the Seller's
Certificate of Incorporation), provided that any such future indebtedness
incurred in connection with any certificates or notes must be rated at
least with the same ratings given the outstanding certificates or notes by
each nationally recognized statistical rating organization that has rated
the outstanding certificates or notes or, prior to the issuing of such
future indebtedness incurred in connection with any certificates or notes,
the Seller shall have received confirmation from each nationally recognized
statistical rating organization that has rated the outstanding certificates
or notes that the ratings of the outstanding certificates or notes will not
be adversely affected by the issuing 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;
(iii) 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:
48
(A) 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, and all obligations of, the Seller, including those obligations of
the Seller under this Agreement, 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
(B) 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
(C) 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
(D) each nationally recognized statistical rating
organization that has rated any issue of certificates or notes
pursuant to any agreement or any series or class of certificates or
notes shall confirm in writing that the rating of such certificates or
notes shall not be adversely affected by such consolidation or merger;
or
(iv) Without the affirmative vote of 100% of the members of the
Board of Directors of the Seller, the Seller shall not 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 substantially all of its
property, or make any assignment for the benefit of creditors.
ARTICLE IX
THE SERVICER
SECTION 9.01. REPRESENTATIONS OF SERVICER. The Servicer makes the
following representations on which the Trustee relies in accepting the
Receivables in trust and executing and authenticating the Certificates. The
representations speak as of the execution and delivery of this Agreement and
shall survive the sale of the Receivables to the Trust:
49
(i) 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 and to hold
the Receivable Files as custodian on behalf of the Trustee.
(ii) 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.
(iii) 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.
(iv) 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
to general equitable principles.
(v) 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 this Agreement); 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 Servicer to perform its obligations under this Agreement.
(vi) 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: (A) asserting the invalidity of this Agreement or the
Certificates; (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by this Agreement;
(C) seeking any determination or ruling that would materially and adversely
affect the
50
performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement or the Certificates; or
(D) relating to the Servicer and that would adversely affect the federal or
any state income tax attributes of the Certificates.
SECTION 9.02. 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.
(i) The Servicer shall defend, indemnify and hold harmless the
Trustee, the Trust and the Certificateholders 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 thereof (other than the Trust) of
a Financed Vehicle.
(ii) The Servicer shall indemnify, defend and hold harmless the
Trustee, the Trust and the Certificateholders from and against any and all
Damages to the extent that such Damage arose out of, or was imposed upon
the Trustee, the Trust or the Certificateholders 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.
(iii) The Servicer shall indemnify, defend and hold harmless the
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: (A) shall be due
to the willful misfeasance, bad faith, or negligence of the Trustee;
(B) relates to any tax other than the taxes with respect to which the
Seller shall be required to indemnify the Trustee; (C) shall arise from the
Trustee's breach of any of its representations or warranties set forth in
Section 11.14; (D) shall be one as to which the Seller is required to
indemnify the Trustee and as to which the Trustee has received payment of
indemnity from the Seller; or (E) shall arise out of or be incurred in
connection with the performance by the Trustee of the duties of successor
Servicer hereunder.
Promptly after receipt by a party indemnified under this Section 9.02
(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 9.02, notify the
Servicer of the commencement thereof. If any such action is brought against any
Indemnified Party under this Section 9.02 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 an unwaivable conflict of interest, be counsel to the Servicer), and the
Servicer will not be liable to such Indemnified Party under this Section 9.02
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 9.02 shall survive the
termination of this Agreement or the resignation or removal of the Servicer or
the Trustee and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer shall have
51
made any indemnity payments pursuant to this Section 9.02 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
Servicer, without interest (except to the extent received by such Person).
Indemnification under this Section 9.02 by NMAC (or any successor
thereto pursuant to Section 9.03) 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 9.02 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 9.03. 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 Motor Co., Ltd., 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 Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing, (y) the
Servicer shall have delivered to the Trustee an Officer's Certificate stating
that such consolidation, merger or succession and such agreement of
assumption comply with this Section 9.03 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 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 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 preserve
and protect such interest. The Servicer shall provide notice of any merger,
consolidation or succession pursuant to this Section 9.03 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 9.04. 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 or the
Certificateholders, except as provided under this Agreement, for any action
taken or for refraining from the taking of any action pursuant to this
Agreement; PROVIDED, HOWEVER, that this provision shall not protect the Servicer
52
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 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 this Agreement and
the rights and duties of the parties to this Agreement and the interests of the
Certificateholders 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 9.05. DELEGATION OF DUTIES. So long as NMAC acts as 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 Motor Co.,
Ltd. 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 9.06. NMAC NOT TO RESIGN AS SERVICER. Subject to Section 9.03
hereof, 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 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 Trustee concurrently with or promptly after such notice. No
such resignation shall become effective until the Trustee or a successor
Servicer shall (i) have taken the actions required by Section 10.01(b) 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, and (ii) have
assumed the responsibilities and obligations of NMAC as Servicer under this
Agreement in accordance with Section 10.02 of this Agreement (other than the
initial Servicer's obligation to make Advances).
53
ARTICLE X
DEFAULT
SECTION 10.01. EVENTS OF DEFAULT.
(a) If any one of the following events ("Events of Default") shall occur
and be continuing:
(i) Any failure (A) by the Servicer to deliver to the Trustee
for distribution to Certificateholders, or (B) by the Seller to deliver,
for so long as the Custody and Pledge Agreement or similar agreement is in
existence, to the Custodian for deposit in the Subordination Spread Account
any proceeds or payment required to be so delivered under the terms of the
Certificates, this Agreement or the Custody and Pledge Agreement, as the
case may be, that shall continue unremedied for a period of three Business
Days after (1) written notice of such failure is received by the Servicer
or the Seller, as the case may be, from the Trustee or Custodian, as the
case may be, (2) discovery of such failure by an officer of the Servicer or
the Seller, as the case may be, or (3) written notice of such failure is
received by the Servicer or the Seller, as the case may be, from the
Holders of Certificates evidencing not less than a majority of the Class A
Certificate Balance or the Class B Certificate Balance; or
(ii) Failure on the part of the Servicer or, so long as the
Servicer is NMAC, the Seller duly to observe or to perform in any material
respect any other covenant or agreement of the Servicer or the Seller (as
the case may be) set forth in the Certificates or in this Agreement, which
failure shall (A) materially and adversely affect the rights of
Certificateholders and (B) continue unremedied for a period of 90 days
after the date on which written notice of such failure, requiring the same
to be remedied, shall have been given (1) to the Servicer or the Seller (as
the case may be), by the Trustee, or (2) to the Servicer or the Seller (as
the case may be), and to the Trustee by the Holders of Certificates
evidencing not less than a majority of the Class A Certificate Balance or
the Class B Certificate Balance; or
(iii) 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 conservator, receiver or liquidator for the Servicer in
any insolvency, readjustment of debt, marshalling of assets and liabilities
or similar proceedings, or for the winding up or liquidation of its
respective affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days; or
(iv) The consent by the Servicer to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer or relating to substantially all of its property;
or the Servicer 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;
54
then, and in each and every case, so long as an Event of Default shall not
have been remedied, either the Trustee, or the Holders evidencing not less
than a majority of the Controlling Class of Certificates, by notice then
given in writing to the Servicer (and to the Trustee if given by the
Certificateholders) may terminate all of the rights and obligations 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 Certificates or the Receivables or
otherwise, shall, without further action, pass to and be vested in the
Trustee or such successor Servicer as may be appointed under Section 10.02;
and, without limitation, the Trustee is hereby authorized and empowered to
execute and deliver, on behalf 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.
(b) The predecessor Servicer shall cooperate with the successor
Servicer and the Trustee in effecting 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. All reasonable costs and expenses (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 10.01 shall be paid by the
predecessor Servicer upon presentation of reasonable documentation of such
costs and expenses. Upon receipt of notice of an Event of Default, the
Trustee shall give notice thereof to each of the Rating Agencies.
SECTION 10.02. APPOINTMENT OF SUCCESSOR.
(a) Upon the Servicer's receipt of notice of termination pursuant to
Section 10.01 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 (x) the date 45 days from the delivery to the
Trustee of written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (y) 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 Trustee
shall appoint a successor Servicer, and the successor Servicer shall accept its
appointment by a written assumption in form acceptable to the Trustee. If a
successor Xxxxxxxx has not been appointed at the time when the predecessor
Servicer has ceased to act as Servicer in accordance with this Section 10.02,
the Trustee without further action shall automatically be appointed the
successor Servicer. Notwithstanding the above, the Trustee shall, if it shall
be unwilling or 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
55
include the servicing of automotive receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the successor Servicer shall 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 Total Servicing Fees and all of the rights
granted to the predecessor Servicer by the terms and provisions of this
Agreement.
(c) In connection with such appointment, the Trustee may make such
arrangements for the compensation of such successor Servicer out of payments on
Receivables as it and such successor Servicer shall agree; PROVIDED, HOWEVER,
that no such compensation shall be in excess of that permitted the predecessor
Servicer under this Agreement. The Trustee and such successor Servicer shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.
SECTION 10.03. REPAYMENT OF ADVANCES. If the identity of the Servicer
shall change, the predecessor Servicer shall be entitled to receive, to the
extent of available funds, reimbursement for Outstanding Advances pursuant to
Section 5.04 and 5.05, in the manner specified in Section 5.06, with respect to
all Advances made by the predecessor Servicer.
SECTION 10.04. NOTIFICATION TO CERTIFICATEHOLDERS. Upon any termination
of, or appointment of a successor to, the Servicer pursuant to this Article X,
the Trustee shall give prompt written notice thereof to Certificateholders at
their respective addresses appearing in the Certificate Register and to each of
the Rating Agencies.
SECTION 10.05. WAIVER OF PAST DEFAULTS. The Holders of Certificates
evidencing not less than a majority of the Controlling Class of Certificates
may, on behalf of all Holders of Certificates, waive 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 or the Certificate Account in accordance with this Agreement. Upon any
such waiver of a past default, such default shall cease to exist, and any Event
of 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 thereon.
ARTICLE XI
THE TRUSTEE
SECTION 11.01. DUTIES OF TRUSTEE. The Trustee, both prior to the
occurrence of an Event of Default and after an Event of Default shall have been
cured or waived, shall undertake to perform such duties as are specifically set
forth in this Agreement. If an Event of Default shall have occurred and shall
not have been cured or waived and, in the case of an Event of Default described
in clause (i) of Section 10.01(a), the Trustee has received notice of such Event
of Default pursuant to Section 4.10(b), the Trustee shall exercise such of the
rights and powers vested in it by this Agreement, and shall use the same degree
of care and skill in their exercise,
56
as a prudent person would exercise or use under the circumstances in the
conduct of its own affairs; PROVIDED, HOWEVER, that if the Trustee shall
assume the duties of the Servicer pursuant to Section 10.02, the Trustee in
performing such duties shall use the degree of skill and attention
customarily exercised by a servicer with respect to automobile receivables
that it services for itself or others. If the Trustee becomes the successor
servicer, the Trustee shall not be obligated to make Advances pursuant to
Section 5.04.
The Trustee, upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments furnished to the
Trustee that shall be specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
conform to the requirements of this Agreement.
The Trustee shall take and maintain custody of the list of Receivables included
as Schedule A to this Agreement and shall retain all Servicer's Certificates
identifying Receivables that become Administrative Receivables or Warranty
Receivables.
No provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or its
own bad faith; PROVIDED, HOWEVER, that:
(i) Prior to the occurrence of an Event of Default (or, in the
case of an Event of Default described in clause (i) of Section 10.01(a),
before the Trustee has received notice thereof pursuant to Section
4.10(b)), and after the curing or waiving of all such Events of Default
that may have occurred, (A) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this Agreement, (B) the
Trustee shall not be liable except for the performance of such duties and
obligations as shall be specifically set forth in this Agreement, (C) no
implied covenants or obligations shall be read into this Agreement against
the Trustee and (D) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely on the truth of the statements and the
correctness of the opinions expressed upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Agreement;
(ii) The Trustee shall not be liable for an error of judgment
made in good faith by a Trustee Officer, unless it shall be proved that the
Trustee shall have been negligent in ascertaining the pertinent facts;
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken in good faith in accordance with
this Agreement or at the direction of the Holders of Certificates
evidencing not less than a majority of the Controlling Class of
Certificates relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Agreement;
(iv) The Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with the obligations of the Servicer
referred to in Section 10.01, or of any failure by the Seller to comply
with the obligations of the Seller referred to in Section 10.01, unless a
Trustee Officer assigned to the Trustee's Corporate Trust
57
Administration Department obtains actual knowledge of such failure (it
being understood that knowledge of the Servicer or the Servicer as
custodian, in its capacity as agent for the Trustee, is not attributable
to the Trustee) or the Trustee receives written notice of such failure from
the Servicer or the Seller, as the case may be, or the Holders of
Certificates evidencing not less than a majority of the Class A Certificate
Balance or the Class B Certificate Balance; and
(v) Without limiting the generality of this Section 11.01 or
Section 11.04, the Trustee shall have no duty (A) to see to any recording,
filing or depositing of this Agreement, any agreement referred to herein,
or any financing statement or continuation statement evidencing a security
interest in the Receivables or the Financed Vehicles, or to see to the
maintenance of any such recording, filing or depositing or to any
re-recording, refiling or redepositing of any thereof, (B) to see to any
insurance of the Financed Vehicles or Obligors or to effect or maintain any
such insurance, (C) to see to the payment or discharge of any tax,
assessment or other governmental charge or any Lien or encumbrance of any
kind owing with respect to, assessed or levied against, any part of the
Trust, (D) to confirm or verify the contents of any reports or certificates
of the Servicer delivered to the Trustee pursuant to this Agreement
believed by the Trustee to be genuine and to have been signed or presented
by the proper party or parties, or (E) to inspect the Financed Vehicles at
any time or ascertain or inquire as to the performance or observance of any
of the Seller's or the Servicer's representations, warranties or covenants
or the Servicer's duties and obligations as Servicer and as custodian of
the Receivable Files under this Agreement.
The 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 hereunder, or
in the exercise of any of its rights or powers, if there shall be reasonable
ground for believing that the repayment of such funds or adequate indemnity
against such risk or liability shall not be reasonably assured to it, and none
of the provisions contained in this Agreement shall in any event require the
Trustee to perform, or be responsible for the manner of performance of, any of
the obligations of the Servicer under this Agreement except during such time, if
any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement.
SECTION 11.02. TRUSTEE'S CERTIFICATE. Upon request of the Seller or
Servicer, on or as soon as practicable after each Distribution Date on which
Receivables shall be assigned to the Seller or the Servicer, as applicable,
pursuant to Section 11.03, the Trustee shall execute a Trustee's Certificate
based on (i) the information contained in the Servicer's Certificate for the
related Collection Period, (ii) amounts deposited to the Certificate Account and
(iii) notices received pursuant to this Agreement, identifying the Receivables
repurchased by the Seller pursuant to Section 3.02 or purchased by the Servicer
pursuant to Sections 4.07 or 12.02 during such Collection Period, and shall
deliver such Trustee's Certificate, accompanied by a copy of the Servicer's
Certificate for such Collection Period, to the Seller or the Servicer, as the
case may be. The Trustee's Certificate submitted with respect to such
Distribution Date shall operate, as of such Distribution Date, as an assignment,
without recourse, representation or warranty, to the Seller or the Servicer, as
the case may be, of all the Trustee's right, title and interest in (other than
that the Trustee has good and marketable title to such Receivables on behalf of
the Trust)
58
and to such repurchased Receivable, and all security and documents relating
thereto, such assignment being an assignment outright and not for security.
SECTION 11.03. TRUSTEE'S ASSIGNMENT OF ADMINISTRATIVE RECEIVABLES AND
WARRANTY RECEIVABLES. With respect to all Receivables repurchased by the Seller
pursuant to Section 3.02 or purchased by the Servicer pursuant to Sections 4.07
or 12.02, the Trustee shall by a Trustee's Certificate assign, without recourse,
representation or warranty (other than that the Trustee has good and marketable
title to such Receivables on behalf of the Trust), to the Seller or the Servicer
(as the case may be) all the Trustee's right, title and interest in and to such
Receivables, and all security and documents relating thereto. 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 the Receivable, the Trustee shall, at the
Servicer's expense, take such steps as the Trustee deems necessary or the
Servicer may reasonably request to enforce the Receivable, including bringing
suit in its name or in the name of the Certificateholders.
SECTION 11.04. CERTAIN MATTERS AFFECTING THE TRUSTEE. Except as
otherwise provided in Section 11.01:
(i) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
Servicer's Certificate, 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 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 Agreement in
good faith and in accordance with such Opinion of Counsel;
(iii) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or in relation to
this Agreement, at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that may
be incurred therein or thereby; PROVIDED, HOWEVER, that nothing contained
in this Agreement shall relieve the Trustee of the obligations, upon the
occurrence of an Event of Default (that shall not have been cured or
waived), to exercise such of the rights and powers vested in it by this
Agreement, and to use the same degree of care and skill in its exercise as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs;
(iv) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith in accordance with its standard of
care and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement;
59
(v) Prior to the occurrence of an Event of Default (or in the
case of an Event of Default described in clause (i) of Section 10.01(a),
before the Trustee has received notice of such Event of Default pursuant to
Section 4.10(b)) and after the curing or waiving of all Events of Default
that may have occurred, the Trustee shall not be bound to 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 evidencing not less than a
majority of the Class A Certificate Balance or the Class B Certificate
Balance; PROVIDED, HOWEVER, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation shall be, in the reasonable opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Agreement, the 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 Servicer or, if paid by the Trustee, shall be reimbursed by
the Servicer within 30 days after demand. Nothing in this clause (v) shall
affect the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors;
(vi) The Trustee may execute any of the trusts or powers
hereunder or perform any duties under this Agreement either directly or by
or through agents or attorneys or a custodian. The Trustee shall not be
responsible for any misconduct or negligence of any such agent or custodian
appointed with due care by it hereunder or of the Servicer in its capacity
as Servicer or custodian; and
(vii) Subsequent to the sale of the Receivables by the Seller to
the Trustee, the Trustee shall have no duty of independent inquiry, except
as may be required by Section 11.01, and the Trustee may rely upon the
representations and warranties and covenants of the Seller and the Servicer
contained in this Agreement with respect to the Receivables and the
Receivable Files.
SECTION 11.05. TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES. The
recitals contained herein and in the Certificates (other than the certificate of
authentication on the Certificates) shall be taken as the statements of the
Seller or the Servicer, as the case may be, and the Trustee assumes no
responsibility for the correctness thereof. The Trustee shall make no
representations as to the validity or sufficiency of this Agreement or of the
Certificates (other than the certificate of authentication on the Certificates),
or of any Receivable or related document. The Trustee shall at no time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any security interest in any Financed Vehicle or any
Receivable, or the perfection and priority of such security interest or the
maintenance of any such perfection and priority, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Certificateholders under this Agreement, including (i) the existence,
condition, location and ownership of any Financed Vehicle; (ii) the review of
any Receivable File therefor; (iii) the existence and enforceability of any
physical damage insurance thereon; (iv) the existence and contents of any
Receivable or any Receivable File or any computer or other record thereof;
(v) the validity of the assignment of any Receivable to the Trust or of any
intervening assignment; (vi) the completeness of any Receivable or any
60
Receivable File; (vii) the performance or enforcement of any Receivable;
(viii) the compliance by the Seller or the Servicer with 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 Trustee's
receipt of notice or other discovery of any noncompliance therewith or any
breach thereof; (ix) any investment of monies by the Servicer or any loss
resulting therefrom (other than monies invested in obligations of the Trustee
in its individual capacity) (it being understood that the Trustee shall
remain responsible for any Trust property that it may hold); (x) the acts or
omissions of the Seller, the Servicer or any Obligor; (xi) any action of the
Servicer taken in the name of the Trustee; or (xii) any action by the Trustee
taken at the instruction of the Servicer; PROVIDED, HOWEVER, that the
foregoing shall not relieve the Trustee of its obligation to perform its
duties under this Agreement. Except with respect to a claim based on the
failure of the Trustee to perform its duties under this Agreement or based on
the Trustee's bad faith, negligence or willful misconduct, no recourse shall
be had for any claim based on any provision of this Agreement, the
Certificates or any Receivable or assignment thereof against the Trustee in
its individual capacity and the Trustee shall not have any personal
obligation, liability or duty whatsoever to any Certificateholder 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 Agreement. The Trustee shall not be
accountable for the use or application by the Seller of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Servicer in respect of the Receivables.
SECTION 11.06. TRUSTEE MAY OWN CERTIFICATES. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
and may deal with the Seller and the Servicer in banking transactions with the
same rights as it would have if it were not Trustee.
SECTION 11.07. TRUSTEE'S FEES AND EXPENSES. The Servicer shall pay to
the Trustee, and the Trustee shall be entitled to, the compensation separately
agreed upon between the Servicer and the Trustee for all services rendered by it
in the execution of the trusts created by this Agreement and in the exercise and
performance of any of the Trustee's powers and duties under this Agreement, and
the Servicer shall pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) incurred or made by the Trustee in
accordance with any provisions of this Agreement, except any such expense,
disbursement or advance as may be attributable to the Trustee's willful
misfeasance, negligence, or bad faith, and the Servicer shall indemnify the
Trustee for, and hold it harmless against, any loss, liability or expense
incurred without willful misfeasance, negligence or bad faith or breach of
representations and warranties contained in Section 11.14 on the Trustee's part,
arising out of or in connection with the acceptance or administration of the
Trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties under this Agreement. Additionally, the Seller, pursuant to Section
8.02, and the Servicer, pursuant to Section 9.02, respectively, shall indemnify
the Trustee with respect to certain matters, and the Certificateholders,
pursuant to Section 11.04, shall, upon the circumstances therein set forth,
indemnify the Trustee under certain circumstances. The provisions of this
Section 11.07 shall survive the termination of this Agreement.
61
SECTION 11.08. INDEMNITY OF TRUSTEE. The Trustee shall be indemnified by
the Servicer and held harmless against any loss, liability, fee, disbursement or
expense (including any compensation or expense referred to in Section 11.07)
arising out of or incurred in connection with the acceptance or performance of
the trusts and duties contained in this Agreement to the extent that (i) the
Trustee shall not be entitled to indemnity for such loss, liability, fee,
disbursement or expense by the Seller pursuant to Section 8.02, the Servicer
pursuant to Section 9.02, or the Certificateholders pursuant to Section 11.04;
(ii) such loss, liability, fee, disbursement or expense shall not have been
incurred by reason of the Trustee's willful misfeasance, bad faith or
negligence; and (iii) such loss, liability, fee, disbursement or expense shall
not have been incurred by reason of the Trustee's breach of its representations
and warranties contained in Section 11.14.
SECTION 11.09. ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee under
this Agreement shall at all times be a corporation having an office in the same
state as the location of the Corporate Trust Office as specified in this
Agreement, organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers and having a combined capital and surplus of at least $50,000,000 and a
long-term rating from Moody's of at least Baa3 (or having a corporate parent
with at least such rating) and subject to supervision or examination by federal
or state authorities. If such corporation 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 11.09,
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. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 11.09, the Trustee shall resign
immediately in the manner and with the effect specified in Section 11.10.
SECTION 11.10. RESIGNATION OR REMOVAL OF TRUSTEE. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Servicer. Upon receiving such notice of resignation, the
Servicer shall promptly appoint a successor Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor Trustee. If no successor Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Xxxxxxx.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of Section 11.09 and shall fail to resign after written request
therefor by the Servicer, or if at any time the Trustee shall be legally unable
to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, or liquidation, then the Servicer may remove the
Trustee. If it shall remove the Trustee under the authority of the immediately
preceding sentence, the Servicer shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor Trustee and
shall promptly pay all fees owed to the outgoing Trustee.
62
Any resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 11.10 shall not become
effective until acceptance of appointment by the successor Trustee pursuant to
Section 11.11 and payment of all fees and expenses owed and any other amounts
due hereunder to the outgoing Trustee. The Servicer shall provide notice of
such resignation or removal of the Trustee to each of the Rating Agencies.
SECTION 11.11. SUCCESSOR TRUSTEE. Any successor Trustee appointed
pursuant to Section 11.10 shall execute, acknowledge and deliver to the Servicer
and to its predecessor Trustee an instrument accepting such appointment under
this Agreement, and thereupon the resignation or removal of the predecessor
Trustee shall become effective and such successor 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 Trustee. The predecessor Trustee shall upon payment
of its fees and expenses and any other amounts due it hereunder deliver to the
successor Trustee all documents and statements and monies held by it under this
Agreement; and the Servicer and the predecessor 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 Trustee all such
rights, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section 11.11
unless at the time of such acceptance such successor Trustee shall be eligible
pursuant to Section 11.09.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section 11.11, the Servicer shall mail notice of such successor Trustee to all
Certificateholders at their addresses as shown in the Certificate Register and
to the Rating Agencies. If the Servicer shall fail to mail such notice within
10 days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Servicer.
SECTION 11.12. MERGER OR CONSOLIDATION OF TRUSTEE. Any corporation into
which the 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 Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be eligible pursuant to Section 11.09, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto; anything herein to the contrary notwithstanding.
SECTION 11.13. 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 Trust or any Financed Vehicle may at the time be located, the Servicer
and the Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons approved by the Trustee
to act as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person, in such
capacity and for the benefit of the Certificateholders, such title to the Trust,
or any part thereof, and, subject to the other provisions of this Section 11.13,
such powers, duties, obligations, rights and trusts as the Servicer and the
Trustee may consider necessary or desirable. If the Servicer shall not have
joined in such
63
appointment within 15 days after the receipt by it of a request to do so, or
if an Event of Default shall have occurred and be continuing, the 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 successor trustee pursuant to Section 11.09 and no notice of
a successor trustee shall be required pursuant to Section 11.11.
Each 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 the Trustee shall be conferred upon and exercised or performed
by the 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 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 (whether as Trustee under this Agreement or as
successor to the Servicer under this Agreement), the 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 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;
(iii) The Servicer and the Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee; and
(iv) All duties owed hereunder to the Trustee by the Servicer
shall be deemed to be owed to each separate trustee and co-trustee.
Any notice, request or other writing given to the 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 refer to this Agreement and the conditions
of this Article XI. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Servicer.
Any separate trustee or co-trustee may at any time appoint the 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
Trustee, to the extent permitted by law, without the appointment of a new or
successor trustee. Notwithstanding anything to the contrary
64
contained in this Agreement, the appointment of any separate trustee or
co-trustee shall not relieve the Trustee of its obligations and duties
thereunder.
SECTION 11.14. REPRESENTATIONS AND WARRANTIES OF TRUSTEE. The Trustee
hereby makes the following representations and warranties on which the
Seller, the Servicer and the Certificateholders shall rely:
(i) The Trustee is a [_______________] duly organized, and
validly existing, under the laws of the State of __________ and
authorized to conduct and engage in a banking and trust business under
such laws;
(ii) The Trustee has full corporate power, authority and
legal right to execute, deliver and perform this Agreement, and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement; and
(iii) This Agreement has been duly executed and delivered by
the Trustee.
SECTION 11.15. TAX RETURNS. The Servicer shall prepare or shall cause
to be prepared any tax or information returns required to be filed by the
Trust and shall remit or cause to be remitted such returns to the Trustee for
signature at least five days before such returns are due to be filed. The
Trustee, upon request, will furnish the Servicer with all such information
known to the Trustee as may be reasonably required in connection with the
preparation of all tax or information returns of the Trust, and shall, upon
request, execute such returns.
SECTION 11.16. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
CERTIFICATES. All rights of action and claims under this Agreement or the
Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Certificateholders in respect
of which such judgment has been obtained.
SECTION 11.17. SUITS FOR ENFORCEMENT. If an Event of Default shall
occur and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 11.01, proceed to protect and enforce its rights and
the rights of the Certificateholders under this Agreement by a suit, action
or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or in
aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy as the Trustee,
being advised by counsel, shall deem most effectual to protect and enforce
any of the rights of the Trustee or the Certificateholders.
SECTION 11.18. RIGHTS OF CERTIFICATEHOLDERS TO DIRECT TRUSTEE.
Holders of Certificates evidencing not less than a majority of the
Controlling Class of Certificates shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee; PROVIDED,
HOWEVER, that, subject to Section 11.01, the Trustee shall have the right to
decline to follow any such direction if
65
the Trustee being advised by counsel determines that the action so directed
may not lawfully be taken, or if the Trustee in good faith shall, by a
Trustee Officer, determine that the proceedings so directed would be illegal
or subject it to personal liability or be unduly prejudicial to the rights of
Certificateholders not parties to such direction; and PROVIDED FURTHER that
nothing in this Agreement shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Certificateholders.
SECTION 11.19. APPOINTMENT OF CUSTODIAN. For so long as the Custody
and Pledge Agreement or any similar agreement is in existence, the Trustee
shall appoint the Custodian in accordance with the terms hereof, including
that the Custodian must satisfy the requirements for eligibility of the
Trustee pursuant to Section 11.09. The Custodian may, but is not required
to, be the Trustee. If the Trustee is not the Custodian, the Trustee shall
pay any Custodian fees out of the Trustee's fees and not out of assets of the
Trust.
ARTICLE XII
TERMINATION; RELEASE OF RECEIVABLES
SECTION 12.01. TERMINATION OF THE TRUST. The respective obligations
and responsibilities of the Seller, the Servicer and the Trustee (except for
the obligations contained in Sections 5.08(c) and 11.15) created hereby and
the Trust created by this Agreement shall terminate upon (i) the purchase as
of the last day of any Collection Period by the Servicer at its option,
pursuant to Section 12.02, of the corpus of the Trust and the subsequent
distribution to Certificateholders pursuant to Section 5.06 of the amount
required to be deposited pursuant to Section 12.02, (ii) the payment to
Certificateholders of all amounts required to be paid to them pursuant to
this Agreement and the disposition of all property held as part of the Trust
or (iii) the maturity or other liquidation of the last Receivable and the
disposition of any amounts received upon liquidation of any remaining
Receivables; PROVIDED, HOWEVER, that in no event shall the trust created by
this Agreement continue beyond the expiration of 21 years from the death of
the last survivor of the descendants of Xxxx Xxxxxxx, formerly of
Massachusetts, living on the date of this Agreement. The Servicer shall
promptly notify the Trustee of any prospective termination pursuant to this
Section 12.01.
Notice of any termination, specifying the Distribution Date upon
which the Certificateholders may surrender their Certificates to the Trustee
for payment of the final distribution and cancellation, shall be given
promptly by the Trustee by letter to Certificateholders mailed not earlier
than the 15th day and not later than the 25th day of the month next preceding
the specified Distribution Date stating (A) the Distribution Date upon which
final payment of the Certificates shall be made upon presentation and
surrender of the Certificates at the office of the Trustee therein
designated, (B) the amount of any such final payment and (C) if applicable,
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Certificates at the office of the Trustee therein specified. The Trustee
shall give such notice to the Certificate Registrar (if other than the
Trustee) at the time such notice is given to Certificateholders. Upon
presentation and surrender of the Certificates, the Trustee shall cause to be
distributed to Certificateholders amounts distributable on such Distribution
Date pursuant to Section 5.06.
66
If fewer than all of the Certificateholders shall surrender their
Certificates for cancellation within six months after the date specified in
the above-mentioned written notice, the Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates
for cancellation and receive the final distribution with respect thereto. If
within one year after the second notice fewer than all the Certificates have
been surrendered for cancellation, the 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. Subject to any applicable law, any funds
remaining in the Trust after exhaustion of such remedies shall be distributed
by the Trustee to the Children's Hospital Los Angeles.
SECTION 12.02. OPTIONAL PURCHASE OF ALL RECEIVABLES.
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 Trust (whether or not such assets then comprise all or a
portion of the Trust). To exercise such option, the Servicer, or any
successor to the Servicer, as the case may be, shall notify the 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 aggregate Administrative Purchase Payments for
the Receivables, plus the appraised value of any other property held by the
Trust, such value to be determined by an appraiser mutually agreed upon by
the Servicer and the Trustee, and shall succeed to all interests in and to
the Trust; PROVIDED, HOWEVER, that the Servicer shall not effect any such
purchase so long as the 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 than "Bal" by Moody's, and the Seller shall not effect any such purchase
so long as the rating of NARC by Moody's, or if NARC shall then be unrated by
Moody's, then the rating of Nissan Capital of America, Inc., is less than
"Bal" by Moody's, in each case unless the 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 Trust, 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.
Notice of any such purchase of the corpus of the Trust shall be
given by the Trustee to each Certificateholder as soon as practicable after
their receipt of notice thereof from the Servicer.
SECTION 12.03. RELEASE OF RECEIVABLES.
(a) Upon repurchase of any Receivable by the Seller pursuant to Section
3.02 or the Servicer pursuant to Section 4.07 or 12.02, the Trustee on behalf
of the Certificateholders 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 Trustee
in, to and under such
67
repurchased Receivable, all monies due or to become due with respect thereto
and all proceeds thereof and the other property conveyed to the Trustee
hereunder pursuant to Section 2.02 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 Trustee or the
Certificateholders with respect thereto.
(b) The 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, 4.07 and 12.02.
(c) If in any enforcement suit or legal proceeding it is held that the
Seller or 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 Trustee on behalf of the Certificateholders 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
Certificateholders.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. AMENDMENT. This Agreement may be amended from time to
time by the Seller, the Servicer, NMAC (so long as NMAC has any rights or
obligations thereunder) and the Trustee, without the consent of
Certificateholders, (i) to cure any ambiguity, to correct or supplement any
provision in this Agreement that may be inconsistent with any other provision
herein, or to add any other provisions with respect to matters or questions
arising under this Agreement that shall not be inconsistent with the
provisions of this Agreement; PROVIDED, HOWEVER, that (1) such action shall
not materially and adversely affect the interests of any Certificateholder
and (2) the Servicer shall have delivered an Officer's Certificate to the
Trustee stating that such amendment will not materially and adversely affect
the interests of any Certificateholder; and (ii) to change the formula for
determining the Specified Subordination Spread Account Balance, provided that
(1) each Rating Agency delivers a letter to the Trustee to the effect that
the use of such new formulation will not result in a qualification, reduction
or withdrawal of its then-current rating of the Certificates and (2) the
Servicer delivers to the Trustee an Officer's Certificate stating that such
amendment will not materially and adversely affect the interests of any
Certificateholder. An amendment shall be deemed to not materially and
adversely affect the interests of the Class A Certificateholders or the Class
B Certificateholders if (x) such amendment does not adversely affect the
Trust's status as a grantor trust for federal income tax purposes and (y)
each Rating Agency confirms in writing that such amendment will not result in
a qualification, reduction or withdrawal of its then current rating of the
Certificates.
This Agreement may also be amended from time to time by the Seller,
the Servicer, NMAC (so long as NMAC has any rights or obligations hereunder)
and the Trustee with the consent of the Holders of Class A Certificates, the
Class B Certificates and the Class C
68
Certificates, each voting as a separate class (which consent of any Holder of
a Certificate given pursuant to this Section or pursuant to any other
provision of this Agreement shall be conclusive and binding on such Holder
and on all future Holders of such Certificate and of any Certificate issued
upon the transfer thereof or in exchange thereof or in lieu thereof whether
or not notation of such consent is made upon the Certificate), evidencing not
less than a majority of the Class A Certificate Balance, the Class B
Certificate Balance and the Class C Certificates, respectively, 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 Holders of Certificates; 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 on any Certificate or change
the Class A Pass-Through Rate, the Class B Pass-Through Rate or the Class C
Pass-Through Rate or the Specified Subordinated Spread Account Balance
(except as described in clause (ii) above) without the consent of each
adversely affected Certificateholder or (b) reduce the aforesaid percentage
of the Class A Certificate Balance, the Class B Certificate Balance or the
Class C Certificate Balance which is required to consent to any such
amendment, without the consent of the Holders of all Certificates of such
class then outstanding. Notwithstanding the foregoing, no amendment referred
to in clause (a) of the preceding proviso will be made unless each Rating
Agency confirms that such amendment will not result in a reduction or
withdrawal of its rating of the Certificates of such class. In connection
with any amendment referred to in clause (a) above, the Servicer shall
deliver an Officer's Certificate to the Trustee stating that those
Certificateholders whose consents were not obtained were not adversely
affected by such amendment.
Prior to the execution of any such amendment or consent pursuant to
this Section 13.01, the Servicer will provide and the Trustee shall
distribute written notification of the substance of such amendment or consent
to each of the Rating Agencies at least ten Business Days prior to the
execution thereof.
Promptly after the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment
or consent to each Certificateholder.
It shall not be necessary for the consent of Certificateholders
pursuant to this Section 13.01 to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and
any other consents of Certificateholders provided for in this Agreement) and
of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe, including the establishment of record dates pursuant
to paragraph number 2 of the Depository Agreement.
Prior to the execution of any amendment to this Agreement, the
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 13.02(h)(i).
The Trustee may, but shall not be obligated to, enter into any such
amendment that affects the Trustee's own rights, duties or immunities under
this Agreement or otherwise.
69
SECTION 13.02. 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 Certificateholders and the Trustee
in the Receivables and in the proceeds thereof. The Seller shall deliver (or
cause to be delivered) to the 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 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 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 and the Servicer shall notify the 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. 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 Certificate
Account in respect of such Receivable.
(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 a Receivable shall
indicate clearly the interest of the Trust in such Receivable and that such
Receivable is owned by the Trust. Indication of the Trust's ownership of a
Receivable shall be deleted from or modified on the Servicer's computer
systems when, and only when, the Receivable shall have been paid in full or
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 print-outs that, if they shall
refer in any manner whatsoever to any Receivable, shall indicate clearly that
such Receivable has been sold to and is owned by the Trust.
(g) Upon receipt of a written request from the Trustee, which request
shall be made no more frequently than annually, the Servicer shall furnish to
the Trustee, within 20 Business Days after receipt of such request, a list of
all Receivables (by contract number and name of Obligor)
70
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 Trustee and its agents at any
time during normal business hours to inspect, audit and make copies and
abstracts from the Servicer's records regarding any Receivable.
(h) The Servicer shall deliver to the Trustee:
(i) upon the execution and delivery of this Agreement and
of each amendment thereto, an Opinion of Counsel 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 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) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest; and
(ii) if requested by the 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 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) stating that, in the
opinion of such Counsel, no such action shall be necessary to preserve
and protect such interest.
Each Opinion of Counsel referred to in clause (h)(i) or (h)(ii)
above shall specify any action necessary (as of the date of such opinion) to
be taken in the following year to preserve and protect such interest.
SECTION 13.03. LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust, nor entitle such Certificateholder's legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties to this Agreement or any of them.
No Certificateholder shall have any right to vote (except as
specifically provided herein) or in any manner otherwise control the
operation and management of the Trust, or the obligations of the parties to
this Agreement, nor shall anything in this Agreement set forth, or contained
in the terms of the Certificates, be construed so as to constitute the
Certificateholders from time to time as partners or members of an
association; nor shall any Certificateholder be under any liability to any
third person by reason of any action taken pursuant to any provision of this
Agreement.
No Certificateholder shall have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Holder previously shall have given to the
71
Trustee a written notice of default and of the continuance thereof, and
unless also (i) the default arises from the Seller's or the Servicer's
failure to remit payments when due hereunder, or (ii) the Holders of
Certificates evidencing not less than a majority of the Controlling Class of
Certificates shall have made written request upon the Trustee to institute
such action, suit or proceeding in its own name as Trustee under this
Agreement and shall have offered to the Trustee such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Trustee, for 30 days after its receipt of such
notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding and during such 30-day period
no request or waiver inconsistent with such written request has been given to
the Trustee pursuant to this Section 13.03 or Section 10.05; no one or more
Holders of Certificates shall have any right in any manner whatever by virtue
or by availing itself or themselves of any provisions of this Agreement to
affect, disturb or prejudice the rights of the Holders of any of the other
Certificates, or to obtain or seek to obtain priority over or preference to
any other such Holder, or to enforce any right under this Agreement except in
the manner provided in this Agreement and for the equal, ratable and common
benefit of all Certificateholders of that class. For the protection and
enforcement of the provisions of this Section 13.03, each Certificateholder
and the Trustee shall be entitled to such relief as can be given either at
law or in equity.
SECTION 13.04. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 13.05. NOTICES. All demands, notices, and communications upon
or to the Seller, the Servicer, the Trustee or any Rating Agency under this
Agreement shall be (i) in writing, personally delivered or mailed by
certified mail, return receipt requested, or (ii) by facsimile, at its
facsimile number, and shall be deemed to have been duly given upon receipt
(a) in the case of the Seller or the Servicer, to Nissan Motor Acceptance
Corporation, 000 Xxxx 000xx Xxxxxx, Xxxxxxxx, XX 00000, Attention:
Secretary, telephone: (000) 000-0000, facsimile: (000) 000-0000, (b) in the
case of the Trustee, at the Corporate Trust Office, (c) in the case of
Moody's, at the following address: Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (d) in
the case of Standard & Poor's, at the following address: Standard & Poor's
Ratings Services, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Asset Backed Surveillance Department. Any notice required or permitted to be
mailed to 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 shall receive such notice.
SECTION 13.06. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, 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.
72
SECTION 13.07. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 8.03 and 9.03 and as
provided in the provisions of this Agreement concerning the resignation of
the Servicer, this Agreement may not be assigned by the Seller or the
Servicer without the prior written consent of the Trustee and the Holders of
Certificates evidencing not less than 66-2/3% of the Controlling Class of
Certificates.
SECTION 13.08. CERTIFICATES NONASSESSABLE AND FULLY PAID.
Certificateholders shall not be personally liable for obligations of the
Trust. The interests represented by the Certificates shall be nonassessable
for any losses or expenses of the Trust or for any reason whatsoever, and,
upon authentication thereof by the Trustee pursuant to Section 7.02 or
Section 7.03, Certificates shall be deemed fully paid.
SECTION 13.09. FURTHER ASSURANCES. The Seller and the Servicer agree
to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of this Agreement, including the execution of
any financing statements or continuation statements relating to the
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
SECTION 13.10. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Trustee or the
Certificateholders, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided herein are
cumulative and not exhaustive of any rights, remedies, powers and privileges
provided by law.
SECTION 13.11. THIRD-PARTY BENEFICIARIES. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the
Certificateholders and their respective successors and permitted assigns.
Except as otherwise provided in this Article XIII, no other Person will have
any right or obligation hereunder.
SECTION 13.12. ACTIONS BY CERTIFICATEHOLDERS.
(a) Wherever in this Agreement a provision is made that an action may
be taken or a notice, demand or instruction given by Certificateholders, such
action, notice or instruction may be taken or given by any Certificateholder,
unless such provision requires a specific percentage of Certificateholders.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other act by a Certificateholder shall bind such Certificateholder
and every subsequent Holder of such Certificate issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or omitted to be done by the Trustee or the Servicer in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
SECTION 13.13. QUALIFICATION AS GRANTOR TRUST; SEPARATE ASSETS. The
Trust created hereunder is intended to be a separate grantor trust within the
meaning of Subpart E of Part I of Subchapter J of the Internal Revenue Code
of 1986, as amended. Those assets held pursuant to
73
the Custody and Pledge Agreement and pursuant to the Yield Supplement
Agreement shall not be considered to be owned by the Trust but instead, (i)
with respect to the Custody and Pledge Agreement, shall be considered to be
owned by the Seller as set forth in the Custody and Pledge Agreement, and to
be pledged to the Trust and (ii) with respect to the Yield Supplement
Agreement, shall be considered owned by the Seller, as set forth in the Yield
Supplement Agreement, and to be pledged to the Trust. Each agreement should
be interpreted accordingly. No party to this Agreement shall take any action
to cause the Trust to be treated as other than a grantor trust for federal
income tax and state tax purposes.
SECTION 13.14. COUNTERPARTS. For the purpose of facilitating the
execution of this Agreement and for other purposes, this Agreement may be
executed in any number of counterparts, each of which counterparts shall be
deemed to be an original, and all of which counterparts shall constitute but
one and the same instrument.
74
IN WITNESS WHEREOF, the Seller, Servicer, NMAC and the Trustee have
caused this Pooling and Servicing Agreement to be duly executed by their
respective officers as of the ___ day of ___________________________.
NISSAN AUTO RECEIVABLES
CORPORATION, as Seller
By:
----------------------------------
Name:
Title:
NISSAN MOTOR ACCEPTANCE
CORPORATION, as Servicer
By:
----------------------------------
Name:
Title:
NISSAN MOTOR ACCEPTANCE
CORPORATION, in its individual capacity
By:
----------------------------------
Name:
Title:
----------------------------------
,
----------------------------------
as Trustee
By:
----------------------------------
Name:
Title:
S 1
SCHEDULE A
SCHEDULE B
LOCATION OF RECEIVABLES
1. NISSAN MOTOR ACCEPTANCE CORPORATION
0000 Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
2. NISSAN MOTOR ACCEPTANCE CORPORATION
000 X. 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
3. KESTREL RECORDS MANAGEMENT
0000 X. Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
4. DATA LOK DATA STORAGE CENTER
000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
EXHIBIT A: FORM OF CLASS A CERTIFICATE SEE REVERSE FOR
CERTAIN DEFINITIONS
[the following legend to be inserted if this Certificate is issued to CEDE &
Co.:]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE 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.
NISSAN AUTO RECEIVABLES _______ GRANTOR TRUST
[_]% ASSET BACKED CERTIFICATE
CLASS A
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.
(This Certificate does not represent an interest in or obligation of Nissan Auto
Receivables Corporation or Nissan Motor Acceptance Corporation or any of their
respective affiliates thereof, except to the extent described below.)
NUMBER CUSIP ___________
R
US$_____________
THIS CERTIFIES THAT is the registered owner of a
dollars nonassessable, fully-paid, fractional undivided interest in
the Nissan Auto Receivables _______ Grantor Trust (the "Trust") formed by Nissan
Auto Receivables Corporation, a Delaware corporation (the "Seller"). The Trust
was created pursuant to a Pooling and Servicing Agreement dated as of
[_____________], __________ (the "Agreement"), among the Seller, Nissan Motor
Acceptance Corporation ("NMAC"), as Servicer (the "Servicer") and in its
individual capacity, and ______________________________________, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in this Agreement. This
Certificate is one of the duly authorized Certificates designated as "[__]%
Asset Backed Certificates, Class A" (herein called the "Class A Certificates").
Also issued under this Agreement are Certificates designated as
A-1
"[_]% Asset Backed Certificates, Class B" (the "Class B Certificates")
and "[_]% Asset Backed Certificates, Class C" (the "Class C Certificates"). The
Class C Certificates, the Class B Certificates and the Class A Certificates are
hereinafter collectively called the "Certificates." The aggregate undivided
interest in the Trust evidenced by all Class A Certificates is [_]%. This
Class A Certificate is issued under and is subject to the terms, provisions and
conditions of this Agreement, to which Agreement the holder of this Class A
Certificate, by virtue of the acceptance hereof, assents and by which such
holder is bound. The property of the Trust includes (as more fully described in
this Agreement) a pool of retail installment sale contracts of new, near-new and
used automobiles and light-duty trucks (the "Receivables"), certain monies paid
thereon on or after ____________, security interests in the vehicles financed
thereby, certain bank accounts and the proceeds thereof, property (including the
right to receive Net Liquidation Proceeds) securing the Receivables and held by
the Trustee, proceeds from claims on physical damage, credit life and disability
insurance policies covering vehicles financed thereby and the obligors
thereunder, certain interests of the Seller in Dealer Recourse, all right, title
and interest of the Seller in and to the Purchase Agreement, the Yield
Supplement Agreement and the Custody and Pledge Agreement and any and all
proceeds of the foregoing.
Under this 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
(the "Distribution Date"), commencing on _____________________, to the person in
whose name this Class A Certificate is registered at the close of business on
the Record Date (as determined pursuant to this Agreement), such Class A
Certificateholder's fractional undivided interest of the amounts to be
distributed to the Class A Certificateholders as determined pursuant to this
Agreement.
Distributions on this Class A Certificate will be made by the Trustee
by check or money order mailed to the Class A Certificateholder of record in the
Certificate Register without the presentation or surrender of this Class A
Certificate or the making of any notation hereon except that with respect to
Class A Certificates registered in the name of Cede & Co., the nominee for the
Clearing Agency, distributions will be made in the form of immediately available
funds. Except as otherwise provided in this Agreement and notwithstanding the
above, the final distribution on this Class A Certificate will be made after due
notice by the Trustee of the pendency of such distribution and only upon
presentation and surrender of this Class A Certificate at the office or agency
maintained for that purpose by the Trustee in the Borough of Manhattan, The City
of New York. The Record Date otherwise applicable to such distribution shall
not be applicable.
Reference is hereby made to the further provisions of this Class A
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 Trustee, by manual signature, this
Class A Certificate shall not entitle the holder hereof to any benefit under
this Agreement or be valid for any purpose.
A-2
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class A Certificate to be duly executed.
NISSAN AUTO RECEIVABLES
GRANTOR TRUST
BY ,
---------------------------------
as Trustee
By:
---------------------------------
DATED:
[SEAL]
ATTEST:
---------------------------------
Authorized Officer
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
---------------------------------
,
---------------------------------
as Trustee
By:
---------------------------------
Authorized Officer
A-3
[Reverse of Certificate]
The Certificates do not represent an obligation of, or an interest in,
the Seller, Nissan Motor Acceptance Corporation, the Trustee or any affiliate of
any of them. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Receivables, all as more specifically
set forth in this Agreement. A copy of this Agreement may be examined during
normal business hours at the principal office of the Seller, and at such other
places, if any, designated by the Seller, by any Certificate Owner upon request.
This Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under this Agreement at any time
by the Seller, the Servicer, NMAC and the Trustee with the consent of the
Holders of Class A Certificates, Class B Certificates and Class C Certificates,
each voting as a Class, evidencing not less than a majority of the Class A
Certificate Balance, the Class B Certificate Balance and the Class C Certificate
Balance, respectively. 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. This Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in this Agreement and subject to certain limitations set
forth therein, the transfer of this Certificate is registrable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by the Trustee in its capacity as
Certificate Registrar, or by any successor Certificate Registrar, in the Borough
of Manhattan, The City of New York, accompanied by a written instrument of
transfer in form satisfactory to the 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.
The Class A Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 and integral multiples thereof;
however, one Certificate may be issued in a denomination equal to the residual
amount. As provided in this Agreement and subject to certain limitations
therein set forth, Certificates are exchangeable for new Certificates of
authorized denomination 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 Trustee may require payment
of a sum sufficient to cover any tax or governmental charges payable in
connection therewith.
The Trustee, the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar shall treat the person in whose name this Class A
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
The obligations and responsibilities created by this Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to
A-4
be paid to them pursuant to this Agreement and the disposition of all
property held as part of the Trust. The Servicer of the Receivables may at
its option purchase the corpus of the Trust at a price specified in this
Agreement, and 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 as of a Record Date as of which the Pool
Balance is less than or equal to 10% of the original aggregate principal
balance of the Receivables.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Certificate (other than the certificate of
authentication herein), or of any Receivable or related document.
A-5
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 typewrite 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-6
EXHIBIT B: FORM OF CLASS B CERTIFICATE SEE REVERSE FOR
CERTAIN DEFINITIONS
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT
TO THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE TRANSFERRED OR SOLD TO
A PERSON OTHER THAN A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE ACT) THAT CERTIFIES AS SUCH TO THE SATISFACTION OF THE SELLER, UNLESS
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION OF COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED AND THE SATISFACTION OF CERTAIN OTHER
SIGNIFICANT REQUIREMENTS SPECIFIED IN THIS AGREEMENT (AS DEFINED BELOW).
NISSAN AUTO RECEIVABLES _______ GRANTOR TRUST
[_]% ASSET BACKED CERTIFICATE
CLASS B
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.
(This Certificate does not represent an interest in or obligation of Nissan Auto
Receivables Corporation or Nissan Motor Acceptance Corporation or any of their
respective affiliates thereof, except to the extent described below.)
NUMBER CUSIP_________________
R US$___________________
THIS CERTIFIES THAT _______________________ is the registered owner of
a _____________ dollars nonassessable, fully-paid, fractional undivided interest
in the Nissan Auto Receivables _______ Grantor Trust (the "Trust") formed by
Nissan Auto Receivables Corporation, a Delaware corporation (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
[__________], ____ (the "Agreement"), among the Seller, Nissan Motor Acceptance
Corporation ("NMAC"), as Servicer (the "Servicer") and in its individual
capacity, and ______________________________________, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in this Agreement. This
Certificate is one of the duly authorized Certificates designated as "[_]% Asset
Backed Certificates, Class B" (herein called the "Class B Certificates"). Also
issued under this Agreement are Certificates designated as "[__]% Asset Backed
Certificates, Class A" (the "Class A Certificates"). The Class B Certificates
and the Class A Certificates are hereinafter collectively called the
"Certificates." The aggregate undivided interest in the Trust evidenced by all
Class B Certificates is [__]%. This Class B
B-1
Certificate is issued under and is subject to the terms, provisions, and
conditions of this Agreement, to which Agreement the holder of this Class B
Certificate, by virtue of the acceptance hereof, assents and by which such
holder is bound. The property of the Trust includes (as more fully described
in this Agreement) a pool of retail installment sale contracts for new,
near-new and used automobiles and light-duty trucks (the "Receivables"),
certain monies paid thereon on or after ________________, security interests
in the vehicles financed thereby, certain bank accounts and the proceeds
thereof, property (including the right to receive Net Liquidation Proceeds)
securing the Receivables, proceeds from claims on physical damage, credit
life and disability insurance policies covering vehicles financed thereby and
the obligors thereunder, certain interests of the Seller in Dealer Recourse,
all right, title and interest of the Seller in and to the Purchase Agreement,
the Yield Supplement Agreement and the Custody and Pledge Agreement and any
and all proceeds of the foregoing. The rights of the holders of the Class B
Certificates are subordinated to the rights of the holders of the Class A
Certificates, as set forth in this Agreement.
Under this Agreement, there will be distributed on the 15th day of
each or, if such 15th day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on _________________, to the person in whose
name this Class B Certificate is registered at the close of business on the
Record Date (as determined pursuant to this Agreement), such Class B
Certificateholder's fractional undivided interest in the amounts to be
distributed to the Class B Certificateholders as determined pursuant to this
Agreement.
Distributions on this Class B Certificate will be made by the
Trustee by wire transfer, check or money order mailed to the Class B
Certificateholder of record in the Certificate Register without the
presentation or surrender of this Class B Certificate or the making of any
notation hereon. Except as otherwise provided in this Agreement and
notwithstanding the above, the final distribution on this Class B Certificate
will be made after due notice by the Trustee of the pendency of such
distribution and only upon presentation and surrender of this Class B
Certificate at the office or agency maintained for that purpose by the
Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Class B
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 Trustee, by manual signature, this
Class B Certificate shall not entitle the holder hereof to any benefit under
this Agreement or be valid for any purpose.
B-2
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class B Certificate to be duly executed.
NISSAN AUTO RECEIVABLES
GRANTOR TRUST
BY ,
----------------------------------
as Trustee
DATED: BY
----------------- ----------------------
[SEAL]
ATTEST:
----------------------------
Authorized Officer
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
---------------------------------
---------------------------------
as Trustee
By
---------------------------------
Authorized Officer
B-3
[Reverse of Certificate]
The Certificates do not represent an obligation of, or an interest in,
the Seller, Nissan Motor Acceptance Corporation, the Trustee or any affiliate of
any of them. The Certificates are limited in right of payment to certain
collections and recoveries respecting the Receivables, all as more specifically
set forth in this Agreement. A copy of this Agreement may be examined during
normal business hours at the principal office of the Seller, and at such other
places, if any, designated by the Seller, by any Certificate Owner upon request.
This Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Seller and the rights of the Certificateholders under this Agreement at any time
by the Seller, the Servicer, NMAC and the Trustee with the consent of the
Holders of Class A Certificates, Class B Certificates and Class C Certificates,
each voting as a Class, evidencing not less than a majority of the Class A
Certificate Balance, the Class B Certificate Balance and the Class C Certificate
Balance, respectively. 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. This Agreement also permits the amendment thereof,
in certain limited circumstances, without the consent of the Holders of any of
the Certificates.
As provided in this Agreement and subject to certain significant
limitations on transfer therein set forth, the transfer of this Certificate is
registrable in the Certificate Register upon surrender of this Certificate for
registration of transfer at the offices or agencies maintained by the Trustee in
its capacity as Certificate Registrar, or by any successor Certificate
Registrar, in the Borough of Manhattan, The City of New York, accompanied by a
written instrument of transfer in form satisfactory to the 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.
The Class B Certificates are issuable only as registered Certificates
without coupons in denominations of $1,000 or in any amount in excess thereof;
however, one Certificate may be issued in a denomination representing or
including any residual amount. As provided in this 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
Trustee may require payment of a sum sufficient to cover any tax or governmental
charges payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the Trustee or
the Certificate Registrar shall treat the person in whose name this Class B
Certificate is registered as the owner hereof for all purposes, and neither the
Trustee, the Certificate Registrar, nor any such agent shall be affected by any
notice to the contrary.
B-4
The obligations and responsibilities created by this Agreement and the
Trust created thereby shall terminate upon the payment to Certificateholders of
all amounts required to be paid to them pursuant to this Agreement and the
disposition of all property held as part of the Trust. The Servicer of the
Receivables may at its option purchase the corpus of the Trust at a price
specified in this Agreement, and 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 as of a Record Date as of which the
Pool Balance is less than or equal to 10% of the original aggregate principal
balance of the Receivables.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for the
correctness thereof. The Trustee makes no representations as to the validity or
sufficiency of this Certificate (other than the certificate of authentication
herein), or of any Receivable or related document.
B-5
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 typewrite 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.
B-6
EXHIBIT C: FORM OF CLASS C CERTIFICATE SEE REVERSE FOR
CERTAIN DEFINITIONS
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT
TO THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE TRANSFERRED OR SOLD TO
A PERSON OTHER THAN A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE ACT) THAT CERTIFIES AS SUCH TO THE SATISFACTION OF THE SELLER, UNLESS
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION OF COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED AND THE SATISFACTION OF CERTAIN OTHER
SIGNIFICANT REQUIREMENTS SPECIFIED IN THIS AGREEMENT (AS DEFINED BELOW).
NISSAN AUTO RECEIVABLES _______ GRANTOR TRUST
[_]% ASSET BACKED CERTIFICATE
CLASS C
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.
(This Certificate does not represent an interest in or obligation of Nissan Auto
Receivables Corporation or Nissan Motor Acceptance Corporation or any of their
respective affiliates thereof, except to the extent described below.)
NUMBER CUSIP_____________
R US$_______________
THIS CERTIFIES THAT _______________________ is the registered owner of
a _____________ dollars nonassessable, fully-paid, fractional undivided interest
in the Nissan Auto Receivables _______ Grantor Trust (the "Trust") formed by
Nissan Auto Receivables Corporation, a Delaware corporation (the "Seller"). The
Trust was created pursuant to a Pooling and Servicing Agreement dated as of
[__________], _____ (the "Agreement"), among the Seller, Nissan Motor Acceptance
Corporation("NMAC"), as Servicer (the "Servicer") and in its individual
capacity, and ______________________________________, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein have the meanings assigned to them in this Agreement. This
Certificate is one of the duly authorized Certificates designated as "[_]% Asset
Backed Certificates, Class C" (herein called the "Class C Certificates"). Also
issued under this Agreement are Certificates designated as "[__]% Asset Backed
Certificates, Class A" (the "Class A Certificates") and [_]% Asset Backed
Certificates, Class B. The Class C Certificates, the Class B Certificates and
the Class A Certificates are hereinafter collectively called the "Certificates."
The aggregate undivided interest in the Trust
C-1
evidenced by all Class C Certificates is [__]%. This Class C Certificate is
issued under and is subject to the terms, provisions, and conditions of this
Agreement, to which Agreement the holder of this Class C Certificate, by
virtue of the acceptance hereof, assents and by which such holder is bound.
The property of the Trust includes (as more fully described in this
Agreement) a pool of retail installment sale contracts for new, near-new and
used automobiles and light-duty trucks (the "Receivables"), certain monies
paid thereon on or after ______________, security interests in the vehicles
financed thereby, certain bank accounts and the proceeds thereof, property
(including the right to receive Net Liquidation Proceeds) securing the
Receivables, proceeds from claims on physical damage, credit life and
disability insurance policies covering vehicles financed thereby and the
obligors thereunder, certain interests of the Seller in Dealer Recourse, all
right, title and interest of the Seller in and to the Purchase Agreement, the
Yield Supplement Agreement and the Custody and Pledge Agreement and any and
all proceeds of the foregoing. The rights of the holders of the Class C
Certificates are subordinated to the rights of the holders of the Class A
Certificates and the Class B Certificates, as set forth in this Agreement.
Under this Agreement, there will be distributed on the 15th day of
each or, if such 15th day is not a Business Day, the next Business Day (the
"Distribution Date"), commencing on _______________, to the person in whose name
this Class C Certificate is registered at the close of business on the Record
Date (as determined pursuant to this Agreement), such Class C
Certificateholder's fractional undivided interest in the amounts to be
distributed to the Class C Certificateholders as determined pursuant to this
Agreement; PROVIDED, HOWEVER, that under certain circumstances specified in this
Agreement, amounts otherwise distributable to the Class C Certificateholders
will be deposited in the Subordination Spread Account.
Distributions on this Class C Certificate will be made by the Trustee
by wire transfer, check or money order mailed to the Class C Certificateholder
of record in the Certificate Register without the presentation or surrender of
this Class C Certificate or the making of any notation hereon. Except as
otherwise provided in this Agreement and notwithstanding the above, the final
distribution on this Class C Certificate will be made after due notice by the
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Class C Certificate at the office or agency maintained for
that purpose by the Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Class C
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 Trustee, by manual signature, this
Class C Certificate shall not entitle the holder hereof to any benefit under
this Agreement or be valid for any purpose.
C-2
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its
individual capacity has caused this Class C Certificate to be duly executed.
NISSAN AUTO RECEIVABLES
GRANTOR TRUST
BY ,
-------------------------------
as Trustee
DATED: BY
--------------- ------------------
[SEAL]
ATTEST:
----------------------------
Authorized Officer
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
---------------------------------
---------------------------------
as Trustee
By
-------------------------------
Authorized Officer
C-3
[Reverse of Certificate]
The Certificates do not represent an obligation of, or an interest
in, the Seller, Nissan Motor Acceptance Corporation, the Trustee or any
affiliate of any of them. The Certificates are limited in right of payment
to certain collections and recoveries respecting the Receivables, all as more
specifically set forth in this Agreement. A copy of this Agreement may be
examined during normal business hours at the principal office of the Seller,
and at such other places, if any, designated by the Seller, by any
Certificate Owner upon request.
This Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Seller and the rights of the Certificateholders under this Agreement at
any time by the Seller, the Servicer, NMAC and the Trustee with the consent
of the Holders of Class A Certificates, Class B Certificates and Class C
Certificates, each voting as a Class, evidencing not less than a majority of
the Class A Certificate Balance, the Class B Certificate Balance and the
Class C Certificate Balance, respectively. 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. This Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the Holders of any of the Certificates.
As provided in this Agreement and subject to certain significant
limitations on transfer therein set forth, the transfer of this Certificate
is registrable in the Certificate Register upon surrender of this Certificate
for registration of transfer at the offices or agencies maintained by the
Trustee in its capacity as Certificate Registrar, or by any successor
Certificate Registrar, in the Borough of Manhattan, The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
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.
The Class C Certificates are issuable only as registered
Certificates without coupons in denominations of $100,000 or in any amount in
excess thereof; however, one Certificate may be issued in a denomination
representing or including any residual amount. As provided in this 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 Trustee may require payment of a sum sufficient to cover
any tax or governmental charges payable in connection therewith.
The Trustee, the Certificate Registrar and any agent of the Trustee
or the Certificate Registrar shall treat the person in whose name this Class
C Certificate is registered as the owner hereof for all purposes, and neither
the Trustee, the Certificate Registrar, nor any such agent shall be affected
by any notice to the contrary.
C-4
The obligations and responsibilities created by this Agreement and
the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to
this Agreement and the disposition of all property held as part of the Trust.
The Servicer of the Receivables may at its option purchase the corpus of the
Trust at a price specified in this Agreement, and 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 as of a
Record Date as of which the Pool Balance is less than or equal to 10% of the
original aggregate principal balance of the Receivables.
The recitals contained herein (other than the certificate of
authentication herein) shall be taken as the statements of the Seller or the
Servicer, as the case may be, and the Trustee assumes no responsibility for
the correctness thereof. The Trustee makes no representations as to the
validity or sufficiency of this Certificate (other than the certificate of
authentication herein), or of any Receivable or related document.
C-5
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 typewrite 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.
C-6
Exhibit F-1
Trustee's Certificate
pursuant to Section 11.03
of the Pooling and Servicing
Agreement
______________________________________, as trustee (the "Trustee") of
the Nissan Auto Receivables _______ Grantor Trust created pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated as
of
[__________________], ____, among Nissan Auto Receivables Corporation, as
Seller (the "Seller"), Nissan Motor Acceptance Corporation, as Servicer and
in its individual capacity, and the Trustee, does hereby sell, transfer,
assign and otherwise convey to the Seller, without recourse, representation
or warranty, all of the Trustee's right, title and interest in and to all of
the Receivables (as defined in the Pooling and Servicing Agreement)
identified in the attached Servicer's Certificate as "Warranty Receivables,"
which are to be repurchased by the Seller pursuant to Section 3.02, and all
security and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this ____ day of
__________ , ____.
Exhibit F-2
Trustee's Certificate
pursuant to Section 11.03
of the Pooling and Servicing
Agreement
______________________________________, as trustee (the "Trustee") of
the Nissan Auto Receivables _______ Grantor Trust created pursuant to the
Pooling and Servicing Agreement (the "Pooling and Servicing Agreement") dated as
of [__________], ____, among Nissan Auto Receivables Corporation, as Seller,
Nissan Motor Acceptance Corporation, as Servicer (the "Servicer") and in its
individual capacity and the Trustee, does hereby sell, transfer, assign and
otherwise convey to the Servicer, without recourse, representation or warranty,
all of the Trustee's right, title and interest in and to all of the Receivables
(as defined in the Pooling and Servicing Agreement) identified in the attached
Servicer's Certificate as "Administrative Receivables," which are to be
purchased by the Servicer pursuant to Section 4.07 or 12.02, and all security
and documents relating thereto.
IN WITNESS WHEREOF I have hereunto set my hand this ___ day of
_________ , ____.
EXHIBIT H-1
FORM OF
REPRESENTATION LETTER
Nissan Auto Receivables [____-___] Grantor Trust
___% Asset Backed Certificates, Class A
I [Name], hereby represent and warrant to [____________], as trustee
(the "Trustee") of the above-named trust, as follows:
1. I am [an officer of [Name of the Transferee],] the proposed
transferee (the "Transferee") of an ownership interest in the Class A
Certificates (the "Certificates") issued pursuant to the Pooling and
Servicing Agreement (the "Agreement"), dated as of [_________],
relating to the above-referenced securities, among Nissan Auto
Receivables Corporation, as seller, Nissan Motor Acceptance
Corporation, as servicer, and the Trustee. Capitalized terms used but
not defined herein shall have the meanings ascribed thereto in the
Agreement. [The Transferee has authorized me to make the following
representations and warranties on behalf of the Transferee.]
2. The Transferee agrees to require a Representation Letter
substantially in the form of this Representation Letter from any
Person to whom the Transferee attempts to transfer its interest in
the Certificates and in connection with any transfer by a Person for
whom the Transferee is acting as nominee, trustee or agent. The
Transferee will not transfer its interest or cause any interest to
be transferred to any Person that the Transferee knows cannot
truthfully complete such a Representation Letter.
3. CHECK APPROPRIATE BOX:
[ ] The Transferee is not an employee benefit plan or arrangement
subject to Section 406 of the Employee Retirement Income Security
Act of 1974, as amended, or a plan subject to Section 4975 of the
Internal Revenue Code of 1986, as amended (a "Plan"), nor a
person acting on behalf of a Plan nor using the assets of a Plan
to effect such transfer; or
[ ] if such Transferee is a Plan, then
(D) such Plan is an "accredited investor" as defined in Rule
501(a)(1) of Regulation D under the Securities Act;
(E) such Plan's investment in the Certificates does not exceed
25% of all of the Certificates outstanding at the time of such
transfer; and
(F) immediately after the acquisition, no more than 25% of the
assets of the Plan with respect to which a person has
discretionary authority or renders
II-1-1
investment advice are invested in certificates
representing interests in trusts containing assets sold or
serviced by the same entity.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed
this [___] day of [________, __].
------------------------------
Print Name of the Transferee
[By:
-------------------------
Name:
Title:]
II-1-2
EXHIBIT H-2
FORM OF
REPRESENTATION LETTER
Nissan Auto Receivables [_____-__] Grantor Trust
___% Asset Backed Certificates, Class [B][C]
I [Name], hereby represent and warrant to [_____________], as trustee
(the "Trustee") of the above-named trust, as follows:
1. I am [an officer of [Name of Transferee],] the proposed
transferee (the "Transferee") of an ownership interest in the
Class [B][C] Certificates (the "Certificates") issued pursuant to
the Pooling and Servicing Agreement (the "Agreement"), dated as
of [_________], relating to the above-referenced securities,
among Nissan Auto Receivables Corporation, as seller, Nissan
Motor Acceptance Corporation, as servicer, and the Trustee.
Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Agreement. [The Transferee has
authorized me to make the following representations and
warranties on behalf of the Transferee.]
2. The Transferee agrees to require a Representation Letter
substantially in the form of this Representation Letter from any
Person to whom the Transferee attempts to transfer its interest
in the Certificates and in connection with any transfer by a
Person for whom the Transferee is acting as nominee, trustee or
agent. The Transferee will not transfer its interest or cause any
interest to be transferred to any Person that the Transferee
knows cannot truthfully complete such a Representation Letter.
3. CHECK APPROPRIATE BOX:
[ ] The Transferee is not an employee benefit plan or
arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, or a plan subject to
Section 4975 of the Internal Revenue Code of 1986, as amended
(a "Plan"), nor a person acting on behalf of a Plan nor using
the assets of a Plan to effect such transfer; or
[ ] The Transferee is an insurance company purchasing the
Certificates or beneficial interest therein with funds
contained in an "insurance company general account" (as
defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 ("PTCE 95-60")) as to which there is the Plan
with respect to which the amount of such general account's
reserves and liabilities for the contracts held by or on
behalf of such Plan and all other Plans maintained by the same
employer (or affiliate thereof as defined in Section V(a)(1)
of PTCE 95-60) or by the same employee organization does not
exceed 10% of the total of all reserves and liabilities of
such general account (as such amounts are determined under
Section I(a) of PTCE 95-60) at the date of acquisition.
II-2-1
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed
this [___] day of [________, __].
------------------------------
Print Name of the Transferee
[By:
-------------------------
Name:
Title:]
II-1-2
