EXHIBIT 4.1
SALE AND SERVICING AGREEMENT
among
NISSAN AUTO RECEIVABLES 2004-B OWNER TRUST,
as Issuer,
NISSAN AUTO RECEIVABLES CORPORATION II,
as Seller,
and
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer
Dated as of June 24, 2004
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions........................................................ 1
SECTION 1.02 Usage of Terms..................................................... 19
ARTICLE II
CONVEYANCE OF RECEIVABLES
SECTION 2.01 Conveyance of Receivables.......................................... 19
SECTION 2.02 Custody of Receivable Files........................................ 21
SECTION 2.03 Acceptance by Issuer............................................... 21
ARTICLE III
THE RECEIVABLES
SECTION 3.01 Representations and Warranties of the Seller with Respect to the
Receivables........................................................ 22
SECTION 3.02 Repurchase upon Breach............................................. 26
SECTION 3.03 Duties of Servicer as Custodian.................................... 26
SECTION 3.04 Instructions; Authority To Act..................................... 27
SECTION 3.05 Custodian's Indemnification........................................ 27
SECTION 3.06 Effective Period and Termination................................... 27
ARTICLE IV
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 4.01 Duties of Servicer................................................. 28
SECTION 4.02 Collection of Receivable Payments.................................. 29
SECTION 4.03 Realization upon Receivables....................................... 30
SECTION 4.04 Maintenance of Security Interests in Financed Vehicles............. 30
SECTION 4.05 Covenants of Servicer.............................................. 30
SECTION 4.06 Purchase of Receivables upon Breach................................ 31
SECTION 4.07 Servicing Fee and Expenses......................................... 31
SECTION 4.08 Servicer's Certificate............................................. 31
SECTION 4.09 Annual Statement as to Compliance; Notice of Default............... 32
SECTION 4.10 Annual Independent Certified Public Accountants' Report............ 32
SECTION 4.11 Access to Certain Documentation and Information Regarding
Receivables........................................................ 33
SECTION 4.12 Appointment of Subservicer......................................... 33
i (Nissan 2004-B Sale and Servicing Agreement)
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PAGE
SECTION 4.13 Amendments to Schedule of Receivables.............................. 33
SECTION 4.14 Acknowledgement by Servicer of its Obligations under the
Indenture.......................................................... 33
ARTICLE V
DISTRIBUTIONS; ACCOUNTS; STATEMENTS TO THE CERTIFICATEHOLDERS
AND THE NOTEHOLDERS
SECTION 5.01 Establishment of Accounts.......................................... 34
SECTION 5.02 Collections........................................................ 36
SECTION 5.03 Application of Collections......................................... 37
SECTION 5.04 Advances........................................................... 37
SECTION 5.05 Additional Deposits................................................ 38
SECTION 5.06 Payments and Distributions......................................... 39
SECTION 5.07 Reserve Account.................................................... 43
SECTION 5.08 Yield Supplement Account........................................... 45
SECTION 5.09 Statements to Certificateholders and Noteholders................... 47
SECTION 5.10 Net Deposits....................................................... 48
SECTION 5.11 Swap Agreement..................................................... 48
ARTICLE VI
THE SELLER
SECTION 6.01 Representations of Seller.......................................... 49
SECTION 6.02 Additional Covenants of the Seller................................. 50
SECTION 6.03 Liability of Seller; Indemnities................................... 52
SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of,
Seller............................................................. 53
SECTION 6.05 Limitation on Liability of Seller and Others....................... 54
SECTION 6.06 Seller May Own Certificates or Notes............................... 54
ARTICLE VII
THE SERVICER
SECTION 7.01 Representations of Servicer........................................ 55
SECTION 7.02 Indemnities of Servicer............................................ 56
SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of,
Servicer........................................................... 57
SECTION 7.04 Limitation on Liability of Servicer and Others..................... 58
SECTION 7.05 NMAC Not To Resign as Servicer..................................... 58
ii (Nissan 2004-B Sale and Servicing Agreement)
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ARTICLE VIII
DEFAULT
SECTION 8.01 Servicer Default................................................... 59
SECTION 8.02 Appointment of Successor........................................... 60
SECTION 8.03 Repayment of Advances.............................................. 61
SECTION 8.04 Notification....................................................... 61
SECTION 8.05 Waiver of Past Defaults............................................ 61
ARTICLE IX
TERMINATION; RELEASE OF RECEIVABLES
SECTION 9.01 Optional Purchase of All Receivables............................... 62
SECTION 9.02 Release of Receivables............................................. 63
SECTION 9.03 Termination........................................................ 63
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Amendment.......................................................... 64
SECTION 10.02 Protection of Title to Trust....................................... 66
SECTION 10.03 Notices............................................................ 67
SECTION 10.04 Assignment by the Seller or the Servicer........................... 68
SECTION 10.05 Limitations on Rights of Others.................................... 68
SECTION 10.06 Severability....................................................... 68
SECTION 10.07 Separate Counterparts.............................................. 68
SECTION 10.08 Headings........................................................... 68
SECTION 10.09 Governing Law...................................................... 68
SECTION 10.10 Assignment by Issuer............................................... 68
SECTION 10.11 Nonpetition Covenants.............................................. 69
SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee..... 69
SECTION 10.13 Waivers............................................................ 69
SCHEDULE A Schedule of Receivables
SCHEDULE B Location of the Receivable Files
EXHIBIT A Form of Yield Supplement Agreement
iii (Nissan 2004-B Sale and Servicing Agreement)
SALE AND SERVICING AGREEMENT, dated as of June 24, 2004, among NISSAN AUTO
RECEIVABLES 2004-B OWNER TRUST, a Delaware statutory trust (the "Issuer"),
NISSAN AUTO RECEIVABLES CORPORATION II, a Delaware corporation (the "Seller"),
and NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation in its
individual capacity (in such capacity, "NMAC") and as Servicer (in such
capacity, the "Servicer"). Capitalized terms used herein without definition
shall have the respective meanings assigned to such terms in Article I.
WHEREAS, the Issuer desires to purchase a portfolio of receivables arising
in connection with retail installment sales contracts secured by new, near-new
or used automobiles and light-duty trucks generated by NMAC in the ordinary
course of business and sold to the Seller;
WHEREAS, the Seller is willing to sell such receivables to the Issuer;
WHEREAS, the Servicer is willing to service such receivables; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Definitions. Except as otherwise provided in this Agreement,
whenever used herein, the following words and phrases, unless the context
otherwise requires, shall have the following respective meanings:
"Accounts" means the Collection Account, the Yield Supplement Account and
the Reserve Account.
"Administration Agreement" means the Administration Agreement, dated as of
June 24, 2004, among the Administrator, the Issuer, the Indenture Trustee and
the Owner Trustee.
"Administrative Purchase Payment" for any Administrative Receivable as of
the last day of any Collection Period, means the sum of the Principal Balance
thereof as of the beginning of such Collection Period plus interest accrued
thereon through the due date for the Obligor's payment in such Collection Period
at the related APR, after giving effect to the receipt of monies collected (from
whatever source other than the Advances) on such Administrative Receivable, if
any, during such Collection Period.
"Administrative Receivable" means a Receivable purchased as of the close
of business on the last day of a Collection Period by the Servicer pursuant to
Section 4.06 or Section 9.01.
"Administrator" means NMAC, or any successor Administrator under the
Administration Agreement.
"Advance" means the amount, as of the last day of a Collection Period,
that the Servicer is required to advance on the respective Receivable pursuant
to Section 5.04.
(Nissan 2004-B Sale and Servicing Agreement)
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control," when used with respect to any
specified Person, means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the term "controlling" and
"controlled" have meanings correlative to the foregoing.
"Aggregate Noteholders' Interest Distributable Amount" means, with respect
to any Distribution Date, the sum of the Noteholders' Interest Distributable
Amount for all Classes of Notes with respect to such Distribution Date.
"Agreement" means this Sale and Servicing Agreement among Nissan Auto
Receivables 2004-B Owner Trust, as Issuer, NARC II, as Seller, and NMAC, as
Servicer.
"AICPA" shall have the meaning assigned to such term in Section 4.10.
"Amount Financed" with respect to any Receivable, means the amount
advanced under the Receivable toward the purchase price of the related Financed
Vehicle and any related costs, including but not limited to accessories,
insurance premiums, service and warranty contracts and other items customarily
financed as part of retail automobile and light-duty truck installment sale
contracts.
"Annual Percentage Rate" or "APR" of a Receivable means the annual rate of
finance charges stated in such Receivable.
"Annual USAP Report" shall have the meaning specified in Section 4.10.
"Assignment" shall have the meaning assigned to such term in the Purchase
Agreement.
"Available Amounts" means, with respect to any Distribution Date, the sum
of Available Interest and Available Principal for such Distribution Date.
"Available Interest" means, for any Distribution Date, the sum of the
following amounts received during the related Collection Period: (i) that
portion of all collections on Receivables allocable to interest, (ii) without
duplication of amounts described in clause (i), Net Liquidation Proceeds to the
extent allocable to interest due on a Liquidated Receivable in accordance with
the Servicer's customary servicing procedures, (iii) all Advances made by the
Servicer pursuant to Section 5.04, (iv) without duplication of any amounts
described above in clauses (i) and (ii), the Administrative Purchase Payment of
each Receivable that became an Administrative Receivable during the related
Collection Period to the extent attributable to interest thereon, (v) without
duplication of any amounts described above in clauses (i) and (ii), the Warranty
Purchase Payment of each Receivable that became a Warranty Receivable during the
related Collection Period to the extent attributable to interest thereon, and
(vi) the Yield Supplement Deposit plus the sum of (x) reinvestment income on the
Yield Supplement Account and (y) the amount, if any, deposited into the
Collection Account pursuant to the second or third sentence of Section 5.08(b);
provided, however, that in calculating Available Interest, amounts to be paid to
the Servicer as reimbursement for Advances pursuant to Sections 5.06(c)(i),
5.06(c)(ii), 5.06(d)(i), 5.06(d)(ii), 5.06(e)(i) and 5.06(e)(ii) on such
Distribution Date shall be excluded.
2 (Nissan 2004-B Sale and Servicing Agreement)
"Available Principal" means, for any Distribution Date, the sum of the
following amounts received during the related Collection Period: (i) that
portion of all collections on Receivables attributable to principal, (ii)
without duplication of amounts described in clause (i), Net Liquidation Proceeds
attributable to principal due on a Liquidated Receivable in accordance with the
Servicer's customary servicing procedures, (iii) without duplication of any
amounts described above in clauses (i) and (ii), the Administrative Purchase
Payment of each Receivable that became an Administrative Receivable during the
related Collection Period to the extent attributable to principal, and (iv)
without duplication of any amounts described above in clauses (i) and (ii), the
Warranty Purchase Payment of each Receivable that became a Warranty Receivable
during the related Collection Period to the extent attributable to principal.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C.
Section 101 et seq.
"Base Servicing Fee" means the fee payable to the Servicer on each
Distribution Date for services rendered during the related Collection Period,
which shall be equal to one-twelfth of the Servicing Rate multiplied by the Pool
Balance as of the close of business on the last day of the immediately preceding
Collection Period or, with respect to the first Distribution Date, the Original
Pool Balance.
"Basic Documents" means the Purchase Agreement, the Trust Agreement, the
Certificate of Trust, this Agreement, the Indenture, the Administration
Agreement, the Securities Account Control Agreement, the Yield Supplement
Agreement, the Note Depository Agreement and the other documents and
certificates delivered in connection herewith and therewith.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in New York, New York, Los Angeles, California,
Wilmington, Delaware or Minneapolis, Minnesota are authorized or obligated by
law, regulation, executive order or governmental decree to remain closed.
"Certificate Balance" means, as of any Distribution Date, the Original
Certificate Balance, reduced by all amounts distributed to the
Certificateholders pursuant to Section 5.06(c), (d) and/or (e) hereof (but in no
event less than zero). For the purposes of determining whether the vote of the
requisite percentage of Certificateholders necessary to effect any consent,
waiver, request or demand shall have been obtained, the Certificate Balance
shall be deemed to be reduced by the amount equal to the balance (without giving
effect to this provision) evidenced by any Certificate registered in the name of
the Seller, the Servicer or any Person actually known to a Trust Officer of the
Owner Trustee or the Indenture Trustee, as the case may be, to be the Seller or
the Servicer or any of their Affiliates.
"Certificate Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure obtained by dividing the Certificate Balance as of
the close of business on the last day of the related Collection Period by the
Original Certificate Balance.
"Certificate of Trust" shall have the meaning assigned to such term in the
Trust Agreement.
3 (Nissan 2004-B Sale and Servicing Agreement)
"Certificate Pool Factor" means, with respect to any Distribution Date, a
seven-digit decimal figure obtained by dividing the Certificate Balance as of
the close of business on the last day of the related Collection Period by the
Original Pool Balance.
"Certificate Register" means the register maintained by the Certificate
Registrar pursuant to the Trust Agreement recording the names of the
Certificateholders.
"Certificateholder" shall have the meaning assigned to such term in the
Trust Agreement.
"Certificateholders' Percentage" means (a) until the Distribution Date on
which the principal amount of the Class A-1 Notes has been paid in full, zero,
and (b) with respect to any Distribution Date on or after the principal amount
of the Class A-1 Notes has been paid in full, 100% minus the Noteholders'
Percentage.
"Certificateholders' Principal Distributable Amount" means, with respect
to any Distribution Date, an amount sufficient to reduce the outstanding
principal amount of the Certificates to an amount equal to the product of the
Certificateholders' Percentage and the Pool Balance as of the end of the related
Collection Period.
"Certificates" shall have the meaning assigned to such term in the Trust
Agreement.
"Class" means any one of the classes of Notes.
"Class A-1 Final Scheduled Distribution Date" means July 15, 2005.
"Class A-1 Interest Rate" means 1.64000% per annum.
"Class A-1 Note" means any of the 1.64000% Asset Backed Notes, Class A-1,
issued under the Indenture.
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note is
registered in the Note Register.
"Class A-2 Final Scheduled Distribution Date" means August 15, 2006.
"Class A-2 Interest Rate" means 2.50000% per annum.
"Class A-2 Note" means any of the 2.50000% Asset Backed Notes, Class A-2,
issued under the Indenture.
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note is
registered in the Note Register.
"Class A-3 Final Scheduled Distribution Date" means May 15, 2008.
"Class A-3 Interest Rate" means 3.35000% per annum.
"Class A-3 Note" means any of the 3.35000% Asset Backed Notes, Class A-3,
issued under the Indenture.
4 (Nissan 2004-B Sale and Servicing Agreement)
"Class A-3 Noteholder" means the Person in whose name a Class A-3 Note is
registered in the Note Register.
"Class A-4 Final Scheduled Distribution Date" means December 15, 2009.
"Class A-4 Interest Rate" means 4.00000% per annum.
"Class A-4 Note" means any of the 4.00000% Asset Backed Notes, Class A-4,
issued under the Indenture.
"Class A-4 Noteholder" means the Person in whose name a Class A-4 Note is
registered in the Note Register.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Closing Date" means June 24, 2004.
"Code" means the Internal Revenue Code of 1986.
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 5.01.
"Collection Period" means, with respect to any Distribution Date, the
preceding calendar month. Any amount stated "as of the close of business of the
last day of a Collection Period" or "as of the end of a Collection Period" shall
give effect to the following calculations as determined as of the end of the day
on such last day: (i) all applications of collections, (ii) all Advances and
reductions of Outstanding Advances and (iii) all distributions.
"Corporate Trust Office" shall have the meaning assigned to such term in
the Indenture.
"Cutoff Date" means May 31, 2004.
"Damages" shall have the meaning assigned to such term in Section 7.02.
"Dealer" means the dealer who sold a Financed Vehicle and who originated
and assigned the related Receivable to NMAC under an existing agreement between
such dealer and NMAC.
"Dealer Recourse" means, with respect to a Receivable, all recourse rights
against the Dealer which originated the Receivable, and any successor Dealer.
"Default" shall have the meaning assigned to such term in the Indenture.
"Defaulted Receivable" means (a) a Receivable (other than an
Administrative Receivable or a Warranty Receivable), which, by its terms, is
delinquent for 120 or more days, (b) with respect to Receivables that are
delinquent for 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, or (c) a Receivable
with respect to which the Servicer
5 (Nissan 2004-B Sale and Servicing Agreement)
has received notification that the related Obligor is subject to proceedings
under Chapter 13 of the Bankruptcy Code.
"Definitive Notes" shall have the meaning ascribed thereto in the
Indenture.
"Determination Date" means the tenth calendar day of each calendar month,
or if such tenth day is not a Business Day, the next succeeding Business Day.
"Distribution Date" means the 15th calendar day of each calendar month, or
if the 15th day is not a Business Day, the next succeeding Business Day,
commencing July 15, 2004.
"DTC" means The Depository Trust Company.
"Eligible Deposit Account" means an account maintained (i) with the
Indenture Trustee or the Owner Trustee so long as the Indenture Trustee's or the
Owner Trustee's short-term unsecured debt obligations have a rating of "P-1" by
Moody's and a rating of "A-1+" by Standard & Poor's, and for any account in
which deposits in excess of 30 days are to be made, so long as the Indenture
Trustee's or the Owner Trustee's long-term unsecured debt obligations have a
rating of at least "AA-" by Standard & Poor's (such short-term and long-term (if
applicable) ratings being the "Required Deposit Rating"), or (ii) in a
segregated trust account in the trust department of the Indenture Trustee or the
Owner Trustee, as the case may be. Notwithstanding anything to the contrary, as
of the Closing Date, the Indenture Trustee shall be deemed to have met the
requirements in clause (i).
"Eligible Investments" means, at any time, any one or more of the
following obligations and securities:
(i) direct obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States of America;
(ii) demand deposits, time deposits or certificates of deposit of
any depository institution or trust company incorporated under the laws of
the United States of America or any state thereof (or any domestic branch
of a foreign bank) and subject to supervision and examination by Federal
or State banking or depository institution authorities; provided, however,
that at the time of the investment or contractual commitment to invest
therein, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on
the credit of a Person other than such depository institution or trust
company) thereof shall have a credit rating from each of the Rating
Agencies in the highest investment category granted thereby (including
applicable plus signs);
(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
6 (Nissan 2004-B Sale and Servicing Agreement)
which the Owner Trustee, the Indenture Trustee or any of their respective
Affiliates is investment manager or advisor);
(v) bankers' acceptances issued by any depository institution or
trust company referred to in clause (ii) above;
(vi) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the United States of America
or any agency or instrumentality thereof the obligations of which are
backed by the full faith and credit of the United States of America, in
either case entered into with a depository institution or trust company
(acting as principal) described in clause (ii);
(vii) repurchase obligations with respect to any security or whole
loan, entered into with (a) a depository institution or trust company
(acting as principal) described in clause (ii) above (except that the
rating referred to in the proviso in such clause (ii) shall be "A-1" or
higher in the case of Standard & Poor's) (such depository institution or
trust company being referred to in this definition as a "financial
institution"), (b) a broker/dealer (acting as principal) registered as a
broker or dealer under Section 15 of the Exchange Act (a "broker/dealer"),
the unsecured short-term debt obligations of which are rated "P-1" by
Moody's and at least "A-1" by Standard & Poor's at the time of entering
into such repurchase obligation (a "rated broker/dealer"), (c) an unrated
broker/dealer (an "unrated broker/dealer"), acting as principal that is a
wholly-owned subsidiary of a non-bank holding company the unsecured
short-term debt obligations of which are rated "P-1" by Moody's and at
least "A-1" by Standard & Poor's at the time of entering into such
repurchase obligation (a "Rated Holding Company"), or (d) an unrated
wholly-owned subsidiary of a direct or indirect parent Rated Holding
Company, which guarantees such subsidiary's obligations under such
repurchase agreement (a "Guaranteed Counterparty"); provided that the
following conditions are satisfied:
(A) the aggregate amount of funds invested in repurchase
obligations of a financial institution, a rated broker/dealer, an
unrated broker/dealer or a Guaranteed Counterparty in respect of
which the unsecured short-term ratings of Standard & Poor's are
"A-1" (in the case of an unrated broker/dealer or Guaranteed
Counterparty, such rating being that of the related Rated Holding
Company) shall not exceed 20% of the outstanding Pool Balance (there
being no limit on the amount of funds that may be invested in
repurchase obligations in respect of which such Standard & Poor's
rating is "A-1+" (in the case of an unrated broker/dealer or
Guaranteed Counterparty, such rating being that of the related Rated
Holding Company));
(B) in the case of the Reserve Account and the Yield
Supplement Account, the rating from Standard & Poor's in respect of
the unsecured short term debt obligations of the financial
institution, rated broker/dealer, unrated broker/dealer or
Guaranteed Counterparty (in the case of an unrated broker/dealer or
Guaranteed Counterparty, such rating being that of the related Rated
Holding Company) shall be "A-1+";
7 (Nissan 2004-B Sale and Servicing Agreement)
(C) the repurchase obligation must mature within 30 days of
the date on which the Indenture Trustee or the Owner Trustee, as
applicable, enters into such repurchase obligation;
(D) the repurchase obligation shall not be subordinated to
any other obligation of the related financial institution, rated
broker/dealer, unrated broker/dealer or Guaranteed Counterparty;
(E) the collateral subject to the repurchase obligation is
held, in the appropriate form, by a custodial bank on behalf of the
Indenture Trustee or the Owner Trustee, as applicable;
(F) the repurchase obligation shall require that the
collateral subject thereto shall be marked to market daily;
(G) in the case of a repurchase obligation of a Guaranteed
Counterparty, the following conditions shall also be satisfied:
(1) the Indenture Trustee or the Owner Trustee, as
applicable, shall have received an Opinion of Counsel to the
effect that the guarantee of the related Rated Holding Company
is a legal, valid and binding agreement of the Rated Holding
Company, enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization and
moratorium or other similar laws affecting creditors' rights
generally and to general equitable principles;
(2) the Indenture Trustee or the Owner Trustee, as
applicable, shall have received (x) an incumbency certificate
for the signer of such guarantee, certified by an officer of
such Rated Holding Company, and (y) a resolution, certified by
an officer of the Rated Holding Company, of the board of
directors (or applicable committee thereof) of the Rated
Holding Company authorizing the execution, delivery and
performance of such guarantee by the Rated Holding Company;
(3) the only conditions to the obligation of such
Rated Holding Company to pay on behalf of the Guaranteed
Counterparty shall be that the Guaranteed Counterparty shall
not have paid under such repurchase obligation when required
(it being understood that no notice to, demand on or other
action in respect of the Guaranteed Counterparty is necessary)
and that the Indenture Trustee or the Owner Trustee, as
applicable, shall make a demand on the Rated Holding Company
to make the payment due under such guarantee;
(4) the guarantee of the Rated Holding Company shall
be irrevocable with respect to such repurchase obligation and
shall not be subordinated to any other obligation of the Rated
Holding Company; and
8 (Nissan 2004-B Sale and Servicing Agreement)
(5) each of the Rating Agencies has confirmed in
writing to the Indenture Trustee or the Owner Trustee, as
applicable, that it has reviewed the form of the guarantee of
the Rated Holding Company and has determined that the issuance
of such guarantee will not result in the downgrade or
withdrawal of the ratings assigned to the Notes; and
(H) the repurchase obligation shall require that the
repurchase obligation be overcollateralized and shall provide that,
upon any failure to maintain such overcollateralization, the
repurchase obligation shall become due and payable, and unless the
repurchase obligation is satisfied immediately, the collateral
subject to the repurchase agreement shall be liquidated and the
proceeds applied to satisfy the unsatisfied portion of the
repurchase obligation; and
(viii) any other investment with respect to which the Servicer has
received written notification from the Rating Agencies that the
acquisition of such investment as an Eligible Investment will not result
in a withdrawal or downgrading of the ratings on the Notes;
provided that, unless otherwise expressly stated herein, each of the foregoing
investments shall be denominated in U.S. dollars, shall not be purchased at a
premium, shall mature no later than the Business Day prior to the Distribution
Date immediately following the date of purchase, and shall be required to be
held to such maturity; and provided, further, that, notwithstanding clauses (i)
through (viii) above, "Eligible Investments" shall not include any security
having an "r" subscript attached to its Standard & Poor's rating.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating), or
such lower credit rating (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the rating then
assigned by such Rating Agency to any of the Notes.
"Event of Default" shall have the meaning assigned to such term in the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934.
"Final Scheduled Distribution Date" means, the Class A-1 Final Scheduled
Distribution Date, the Class A-2 Final Scheduled Distribution Date, the Class
A-3 Final Scheduled Distribution Date, and the Class A-4 Final Scheduled
Distribution Date.
"Financed Vehicle" means a new, near-new or used automobile or light-duty
truck, together with all accessions thereto, securing an Obligor's indebtedness
under the related Receivable.
"Holder" or "Securityholder" means the registered holder of any
Certificate or Note as evidenced by the Certificate Register (as defined in the
Trust Agreement) or Note Register (as defined in the Indenture) except that,
solely for the purposes of giving certain consents, waivers, requests or demands
pursuant to the Trust Agreement or the Indenture, the interest evidenced by any
Certificate or Note registered in the name of NARC II or NMAC, or any Person
actually
9 (Nissan 2004-B Sale and Servicing Agreement)
known to a Trust Officer to be an Affiliate of NARC II or NMAC, shall not be
taken into account in determining whether the requisite percentage necessary to
effect any such consent, waiver, request or demand shall have been obtained
unless NARC II or NMAC are the only holders.
"Indenture" means the Indenture dated as of June 24, 2004, between the
Issuer and Xxxxx Fargo Bank, National Association, as Indenture Trustee.
"Indenture Trustee" means the Person acting as Indenture Trustee under the
Indenture, its successors in interest and any successor trustee under the
Indenture.
"Initial Yield Supplement Amount" means $82,748,552.58.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a petition seeking entry of a decree or order for relief by a court
having jurisdiction in the premises in respect of such Person or all or
substantially all of its property in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for all or substantially all
of its property, or ordering the winding-up or liquidation of such Person's
affairs, and such petition shall remain unstayed and in effect for a period of
90 consecutive days; or (b) the commencement by such Person of a voluntary case
under any applicable federal or state bankruptcy, insolvency or other similar
law now or hereafter in effect, or the consent by such Person to the entry of an
order for relief in an involuntary case under any such law, or the consent by
such Person to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for all or substantially all of its property, or the making by
such Person of any general assignment for the benefit of creditors.
"Interest Period" means, with respect to any Distribution Date and the
Class A-1 Notes, the period from (and including) the preceding Distribution Date
to (but excluding) such Distribution Date, except that the initial Interest
Period will be from (and including) the Closing Date to (but excluding) July 15,
2004, and, with respect to any Distribution Date and the Class A-2 Notes, the
Class A-3 Notes, and the Class A-4 Notes, the period from (and including) the
15th day of the preceding calendar month to (but excluding) the 15th day of the
month in which such Distribution Date occurs, except that the initial Interest
Period will be from (and including) the Closing Date to (but excluding) July 15,
2004.
"Interest Rate" means the Class A-1 Interest Rate, the Class A-2 Interest
Rate, the Class A-3 Interest Rate, or the Class A-4 Interest Rate, as the case
may be.
"Issuer" means Nissan Auto Receivables 2004-B Owner Trust, a Delaware
statutory trust.
"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than, in the case of a Financed Vehicle, tax
liens, mechanics' liens and any liens that attach to such Financed Vehicle by
operation of law.
10 (Nissan 2004-B Sale and Servicing Agreement)
"Liquidated Receivable" means a Defaulted Receivable as to which the
related Financed Vehicle has been liquidated by the Servicer.
"Monthly Remittance Conditions" shall have the meaning assigned to such
term in Section 5.02.
"Moody's" means Xxxxx'x Investors Service.
"NARC II" means Nissan Auto Receivables Corporation II, a Delaware
corporation.
"Net Liquidation Proceeds" means the monies collected from whatever source
on a Liquidated Receivable, net of the sum of any amounts expended by the
Servicer for the account of the Obligor, plus any amounts required by law to be
remitted to the Obligor.
"Nissan" means Nissan Motor Co., Ltd.
"NMAC" means Nissan Motor Acceptance Corporation, a California
corporation.
"Nonrecoverable Advance" means any Outstanding Advance with respect to (i)
any Defaulted Receivable or (ii) any Receivable as to which the Servicer
determines that any recovery from payments made on or with respect to such
Receivable is unlikely.
"Note" means any one of the notes issued under the Indenture.
"Note Depository Agreement" shall have the meaning assigned to such term
in the Indenture.
"Note Factor" means, with respect to any Class of Notes and any
Distribution Date, a seven-digit decimal figure obtained by dividing the
Outstanding Amount of such Class of Notes, as of the close of business on the
last day of the related Collection Period, by the initial Outstanding Amount of
that Class of Notes.
"Noteholder" shall have the meaning assigned to such term in the
Indenture.
"Noteholders' Interest Carryover Shortfall" means, with respect to any
Distribution Date and a Class of Notes, the excess, if any, of the sum of the
Noteholders' Monthly Interest Distributable Amount for such Class for the
preceding Distribution Date plus any outstanding Noteholders' Interest Carryover
Shortfall for such Class on such preceding Distribution Date, over the amount in
respect of interest that is actually paid on the Notes of such Class on such
preceding Distribution Date, plus, to the extent permitted by applicable law,
interest on the Noteholders' Interest Carryover Shortfall at the related
Interest Rate for the related Interest Period (calculated on the same basis as
interest on that Class of Notes for the same period).
"Noteholders' Interest Distributable Amount" means, with respect to any
Distribution Date and a Class of Notes, the sum of the Noteholders' Monthly
Interest Distributable Amount for such Class plus any outstanding Noteholders'
Interest Carryover Shortfall for such Class as of the close of the immediately
preceding Distribution Date.
11 (Nissan 2004-B Sale and Servicing Agreement)
"Noteholders' Monthly Interest Distributable Amount" means, with respect
to any Distribution Date and a Class of Notes, interest accrued for the related
Interest Period (calculated on the basis of, in the case of Class A-1 Notes, the
actual number of days in such Interest Period and a year assumed to consist of
360 days, and in the case of all other Classes of Notes, such Interest Period
being assumed to consist of 30 days and a year assumed to consist of 360 days)
at the related Interest Rate for such Class of Notes on the Outstanding Amount
of the Notes of such Class on the immediately preceding Distribution Date, after
giving effect to all payments of principal to Noteholders of such Class on or
prior to such Distribution Date (or, in the case of the first Distribution Date,
on the original principal amount of such Class of Notes).
"Noteholders' Percentage" means for any Distribution Date, the percentage
equivalent of a fraction, the numerator of which is the aggregate of the
principal balances of the Class X-0, Xxxxx X-0, and the Class A-4 Notes as of
the Closing Date, and the denominator of which is the aggregate of such
principal balances plus the principal amount of the Certificates as of the
Closing Date.
"Noteholders' Principal Carryover Shortfall" means, with respect to any
Distribution Date, the excess, if any, of the Noteholders' Principal
Distributable Amount for the preceding Distribution Date over the amount in
respect of principal that is actually paid as principal on the Notes on such
previous Distribution Date. Noteholders' Principal Carryover Shortfall is not
used to determine the amount of principal due on the Notes on any Distribution
Date, but is used solely for reporting purposes.
"Noteholders' Principal Distributable Amount" means, (a) with respect to
any Distribution Date until the principal amount of the Class A-1 Notes is
reduced to zero, an amount equal to the excess, if any, of (i) the Pool Balance
as of the end of the Collection Period preceding the related Collection Period,
or as of the Cutoff Date, in the case of the first Collection Period, over (ii)
the Pool Balance as of the end of the related Collection Period, together with
any portion of the Noteholders' Principal Distributable Amount that was to be
distributed as such on any prior Distribution Date but was not because
sufficient funds were not available to make such distribution; and (b) with
respect to any Distribution Date on or after which the principal amount of the
Class A-1 Notes is reduced to zero, an amount sufficient to reduce the aggregate
outstanding principal amount of the Class A Notes to an amount equal to the
product of the Noteholders' Percentage and the Pool Balance as of the end of the
related Collection period provided, however, that (i) the Noteholders' Principal
Distributable Amount on the Class A-1 Final Scheduled Distribution Date shall
not be less than the amount that is necessary to reduce the outstanding
principal amount of the Class A-1 Notes to zero; (ii) the Noteholders' Principal
Distributable Amount on the Class A-2 Final Scheduled Distribution Date shall
not be less than the amount that is necessary to reduce the outstanding
principal amount of the Class A-2 Notes to zero; (iii) the Noteholders'
Principal Distributable Amount on the Class A-3 Final Scheduled Distribution
Date shall not be less than the amount that is necessary to reduce the
outstanding principal amount of the Class A-3 Notes to zero; and (iv) the
Noteholders' Principal Distributable Amount on the Class A-4 Final Scheduled
Distribution Date shall not be less than the amount that is necessary to reduce
the outstanding principal amount of the Class A-4 Notes to zero.
"Note Owner" shall have the meaning assigned to such term in the
Indenture.
12 (Nissan 2004-B Sale and Servicing Agreement)
"Note Pool Factor" means, with respect to any Class of Notes and any
Distribution Date, a seven-digit decimal figure obtained by dividing the
Outstanding Amount of such Class of Notes as of the close of business on the
last day of the related Collection Period by the Original Pool Balance.
"Note Register" means the register maintained by the Indenture Trustee
pursuant to the Indenture recording the name of each Noteholder.
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, and the Class A-4 Notes.
"Obligor" on a Receivable means the purchaser or co-purchasers of the
Financed Vehicle or any other Person who owes payments under the Receivable (but
excluding any Dealer in respect of Dealer Recourse).
"Officer's Certificate" means a certificate signed by the chairman of the
board, the president, any executive vice president, any vice president, the
treasurer, any assistant treasurer or the controller of the Seller or the
Servicer, as the case may be.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise provided herein, be an employee of or counsel to the
Issuer, the Seller or the Servicer, which counsel shall be reasonably acceptable
to the Indenture Trustee, the Owner Trustee or the Rating Agencies, as the case
may be.
"Optional Purchase" shall have the meaning assigned to such term in
Section 9.01(a).
"Optional Purchase Percentage" means 5.00%.
"Optional Purchase Price" means, an amount equal to the aggregate
Administrative Purchase Payments for the Receivables (including Receivables that
became Defaulted Receivables in the Collection Period preceding the Distribution
Date on which a purchase pursuant to Section 9.01 is effected), 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
Indenture Trustee (less liquidation expenses); provided, however, that the
Optional Purchase Price shall be equal to or greater than the sum of (i) the
Outstanding Amount of all Classes of Notes, (ii) the Noteholders' Interest
Distributable Amount for all Classes of Notes for such Distribution Date, and
(iii) the Certificate Balance.
"Original Certificate Balance" means $77,659,984.25.
"Original Pool Balance" means the aggregate Principal Balance of the
Receivables on the Cutoff Date.
"Original Principal Amount" means $354,800,000 for the Class A-1 Notes,
$383,000,000 for the Class A-2 Notes, $512,000,000 for the Class A-3 Notes, and
$225,000,000 for the Class A-4 Notes.
"Outstanding" shall have the meaning assigned to that term in the
Indenture.
13 (Nissan 2004-B Sale and Servicing Agreement)
"Outstanding Advances" means, with respect to a Receivable and the last
day of a Collection Period, the sum of all Advances made as of or prior to such
date, minus all payments or collections as of or prior to such date that are
specified in Sections 5.04(b) and 5.04(d) as applied to reimburse all unpaid
Advances with respect to such Receivable.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or, if indicated by the context, all Notes of any Class, Outstanding at the date
of determination.
"Owner Trust Estate" means all right, title and interest of the Trust in
and to the Receivables (other than the Warranty Receivables for which the Seller
has paid the Warranty Purchase Payment in accordance with Section 3.02 and
Administrative Receivables for which the Servicer has paid the Administrative
Purchase Payment in accordance with Section 4.06), and all monies paid thereon,
and all monies accrued thereon, after the Cutoff Date; security interests in the
Financed Vehicles and any accessions thereto; the Collection Account and all
funds deposited in the Collection Account; the Yield Supplement Account and all
funds deposited in the Yield Supplement Account; all property (including the
right to receive Net Liquidation Proceeds) that shall have secured a Receivable
and that shall have been acquired by or on behalf of the Owner Trustee; proceeds
from claims on any physical damage, credit life or disability insurance policies
covering the Financed Vehicles or the Obligors; all right to receive payments in
respect of any Dealer Recourse with respect to the Receivables; all right, title
and interest of the Seller in and to the Purchase Agreement and the Assignment;
all right, title and interest of the Owner Trustee and the Trust pursuant to
this Agreement, the Yield Supplement Agreement and the Administration Agreement;
certain rebates of premiums and other amounts relating to certain insurance
policies and other items financed under the Receivables in effect as of the
Cutoff Date; and the proceeds of any and all of the foregoing.
"Owner Trustee" means the Person acting as Owner Trustee under the Trust
Agreement, its successors in interest and any successor owner trustee under the
Trust Agreement.
"Paying Agent" shall have the meaning assigned to such term in the
Indenture.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pool Balance" as of the close of business on the last day of a Collection
Period means the aggregate Principal Balance of the Receivables (reduced by the
principal balance of any Administrative Receivables, Warranty Receivables and
Defaulted Receivables) as of the close of business on such day; provided,
however, that where the Pool Balance is relevant in determining whether the
requisite percentage of Certificateholders or Noteholders (or relevant Class or
Classes of Certificates or Notes, as the case may be) necessary to effect any
consent, waiver, request or demand shall have been obtained, the Pool Balance
shall be deemed to be reduced by the amount equal to the portion of the Pool
Balance (before giving effect to this provision) represented by the interests
evidenced by any applicable Certificate or Note registered in the name of the
Seller, the Servicer or any Person actually known to a Trust Officer of the
Owner Trustee or the Indenture Trustee, as the case may be, to be an Affiliate
of the Seller or the
14 (Nissan 2004-B Sale and Servicing Agreement)
Servicer, unless all of the Certificates or Notes, as the case may be, are held
or beneficially owned by NMAC, NARC II or any of their Affiliates.
"Pool Factor" for a particular Class of Notes or Certificates on any
Distribution Date means a seven-digit decimal figure indicating the principal
amount of such Class of Notes or the Certificate Balance, as the case may be, as
of the close of business on the last day of the related Collection Period as a
fraction of the Original Pool Balance.
"Prepayment" means, with respect to any Receivable, any prepayment,
whether in part or in full, in respect of such Receivable.
"Principal Balance" of a Receivable, as of any date of determination,
means the Amount Financed minus the sum of (i) all payments on such Receivable
allocable to principal, (ii) any refunded portion of extended warranty
protection plan or service contract costs, or of physical damage, credit life or
disability insurance premiums included in the Amount Financed, (iii) any payment
of the Administrative Purchase Payment or the Warranty Purchase Payment with
respect to the Receivable allocable to principal and (iv) any Net Liquidation
Proceeds allocable to principal.
"Purchase Agreement" means that certain agreement, dated as of June 24,
2004, between NMAC and the Seller, relating to the purchase by the Seller from
NMAC of the Receivables.
"Rating Agency" means, as of any date, any of the nationally recognized
statistical rating organizations that has been requested by the Seller or one of
its Affiliates to rate any Class of Notes and that is rating such Class of Notes
on such date.
"Receivable" means any retail installment sale contract that appears on
Schedule A to this Agreement (which Schedule A may be in the form of microfiche,
CD, datatape or paper) and that has not been released by the Owner Trustee from
the Trust.
"Receivable File" means the documents specified in Section 2.02 pertaining
to a particular Receivable.
"Record Date" means, with respect to the Notes of any Class and each
Distribution Date, the 14th day of the calendar month in which such Distribution
Date occurs, and, with respect to the Certificates or if Definitive Notes,
representing any Class of Notes, have been issued, the last day of the
Collection Period preceding the related Distribution Date. Any amount stated "as
of a Record Date" or "on a Record Date" shall give effect to (i) all
applications of collections, and (ii) all distributions to any party under this
Agreement, the Indenture and the Trust Agreement or to the related Obligor, as
the case may be, in each case as determined as of the opening of business on the
related Record Date.
"Relevant Trustee" means (i) with respect to the control over or
appropriate designation denoting ownership or control over any property
comprising a portion of the Owner Trust Estate that either is not conveyed or
pledged to the Indenture Trustee for the benefit of the Noteholders pursuant to
the Granting Clause of the Indenture or that has been released from the lien of
the Indenture, the Owner Trustee, and (ii) with respect to any property
comprising a portion of the Trust Estate (as defined in the Indenture) that has
not been released from the lien of the
15 (Nissan 2004-B Sale and Servicing Agreement)
Indenture, the Indenture Trustee; provided, however, that with respect to any
property that is under the joint or separate control of a co-trustee or separate
trustee under the Trust Agreement or the Indenture, respectively, "Relevant
Trustee" shall refer to either or both of the Owner Trustee and such co-trustee
or separate trustee or to either or both of the Indenture Trustee and such
co-trustee or separate trustee, as the case may be.
"Required Deposit Rating" shall have the meaning assigned to such term in
the definition of "Eligible Deposit Account."
"Required Rate" means, with respect to each Collection Period, 5.21%.
"Required Yield Supplement Amount" means, with respect to every
Distribution Date, an amount equal to the lesser of (i) the aggregate amount of
Yield Supplement Deposits that would become due for all future Distribution
Dates under the Yield Supplement Agreement, assuming (1) that payments on the
Receivables are made on their scheduled due dates, (2) that no Receivable
becomes a prepaid Receivable, and (3) a discount rate of 1.00%, and (ii) the
Initial Yield Supplement Amount.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.07.
"Reserve Account Initial Deposit" means $7,762,299.92.
"Schedule of Receivables" means the schedule of receivables attached as
Schedule A to this Agreement, as it may be amended from time to time.
"Scheduled Payment" on a Receivable means the payment required to be made
by the Obligor during each Collection Period that is sufficient to amortize the
related Principal Balance under the Simple Interest Method over the term of the
Receivable and to provide interest at the related APR.
"Securities Account Control Agreement" means the Securities Account
Control Agreement dated as of June 24, 2004, among the Seller, the Trust, Xxxxx
Fargo Bank, National Association, as Securities Intermediary thereunder and
Xxxxx Fargo Bank, National Association, as Indenture Trustee pursuant to which
the Reserve Account and the Yield Supplement Account will be established and
maintained.
"Securities Intermediary" shall have the meaning assigned to such term in
the Securities Account Control Agreement.
"Securityholders" has the meaning set forth in this Section 1.01 under the
definition of "Holder."
"Seller" means NARC II, as the seller of the Receivables under this
Agreement, and each successor to NARC II (in the same capacity) pursuant to
Section 6.04.
"Servicer" means NMAC, as the servicer of the Receivables, and each
successor to NMAC (in the same capacity) pursuant to Section 7.03 or 8.02.
16 (Nissan 2004-B Sale and Servicing Agreement)
"Servicer Default" means an event specified in Section 8.01.
"Servicer's Certificate" means a certificate completed and executed on
behalf of the Servicer by the president, any executive vice president, any vice
president, the treasurer, any assistant treasurer, the controller or any
assistant controller of the Servicer pursuant to Section 4.08.
"Servicing Rate" means 1.00% per annum.
"Simple Interest Method" means the method of allocating a fixed level
payment to principal and interest pursuant to which the portion of such payment
that is allocated to interest is equal to the product of the fixed rate of
interest multiplied by the unpaid principal balance multiplied by the quotient
obtained by calculating the period of time elapsed since the preceding payment
of interest was made and dividing such period of time by 365 or 366, as
appropriate.
"Simple Interest Receivable" means any Receivable under which the portion
of a payment allocable to interest and the portion allocable to principal is
determined in accordance with the Simple Interest Method.
"Specified Reserve Account Balance" means with respect to any Distribution
Date, an amount equal to $7,762,299.92, provided, however, that in the event
that on any Distribution Date (a) the annualized average for the preceding three
Collection Periods (or such smaller number of Collection Periods as have elapsed
since the Cutoff Date) of the percentage equivalents of the ratios of net losses
(i.e., the net balances of all Liquidated Receivables, less any Net Liquidation
Proceeds with respect to such Liquidated Receivables from that or prior
Collection Periods) to the Pool Balance as of the first day of each such
Collection Period exceeds 2.75% or (b) the average for the preceding three
Collection Periods (or such smaller number of Collection Periods as have elapsed
since the Cutoff Date) of the percentage equivalents of the ratios of the number
of Receivables that are delinquent 60 days or more to the outstanding number of
Receivables exceeds 2.0%, then the Specified Reserve Account Balance for such
Distribution Date (and for each succeeding Distribution Date until the relevant
averages have not exceeded the specified percentages in clauses (a) and (b)
above for three successive Distribution Dates) shall be a dollar amount equal to
the greater of (i) $7,762,299.92 and (ii) 5.0% of the Outstanding Amount of the
Notes and the Certificate Balance as of the preceding Distribution Date (after
giving effect to payments of principal made on such Distribution Date).
"Standard & Poor's" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Successor Servicer" means any entity appointed as a successor to the
Servicer pursuant to Section 8.02.
"Supplemental Servicing Fee" means, with respect to any Distribution Date,
all late fees, prepayment charges and other administrative fees and expenses or
similar charges allowed by applicable law with respect to the Receivables
received by the Servicer during the related Collection Period and any interest
earned from the investment of monies in the Accounts (other than the Yield
Supplement Account) during the related Collection Period.
17 (Nissan 2004-B Sale and Servicing Agreement)
"Swap Agreement" shall mean any currency swap agreement, including all
schedules and confirmations thereto, entered into by the Issuer and the Swap
Counterparty, as the same may be amended, supplemented, renewed, extended or
replaced from time to time.
"Swap Counterparty" shall mean an unaffiliated third party, as swap
counterparty under the Swap Agreement, or any successor or replacement swap
counterparty from time to time under the Swap Agreement.
"Total Servicing Fee" means the sum of the Base Servicing Fee and the
Supplemental Servicing Fee.
"Trust" means the Issuer.
"Trust Agreement" means the Trust Agreement, dated January 23, 2004, as
amended by the Amended and Restated Trust Agreement, dated as of June 24, 2004,
between the Seller and Wilmington Trust Company, as Owner Trustee.
"Trust Collection Account" shall have the meaning assigned to such term in
Section 5.01(c).
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
the Indenture for the benefit of the Noteholders (including, without limitation,
all property and interests granted to the Indenture Trustee pursuant to the
Granting Clause of the Indenture), including all proceeds thereof.
"Trust Officer" means, in the case of the Indenture Trustee, any officer
within the Corporate Trust Office of the Indenture Trustee, including any Vice
President, Assistant Vice President, Secretary, Assistant Secretary or any other
officer of the Indenture Trustee customarily performing functions similar to
those performed by any of the above designated officers and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject and, with respect to the Owner Trustee, any officer in the Corporate
Trust Administration Department of the Owner Trustee with direct responsibility
for the administration of the Trust Agreement and the Basic Documents on behalf
of the Owner Trustee.
"UCC" means the Uniform Commercial Code as in effect in the relevant
jurisdiction.
"USAP" shall have the meaning assigned to such term in Section 4.10.
"Warranty Purchase Payment," for any Warranty Receivable as of the last
day of any Collection Period, means the sum of the Principal Balance thereof as
of the beginning of such Collection Period plus interest accrued thereon through
the due date for the Obligor's payment in such Collection Period, at the related
APR, after giving effect to the receipt of monies collected (from whatever
source other than Advances) on such Warranty Receivable, if any, during such
Collection Period.
"Warranty Receivable" means a Receivable purchased as of the close of
business on the last day of a Collection Period by the Seller pursuant to
Section 3.02.
18 (Nissan 2004-B Sale and Servicing Agreement)
"Yield Supplement Account" means the segregated trust account established
and maintained for the benefit of the Noteholders pursuant to Section 5.08(a).
"Yield Supplement Agreement" means the agreement, dated as of the date of
this Agreement, among the Seller, NMAC, Xxxxx Fargo Bank, National Association,
as Indenture Trustee, and the Trust, substantially in the form attached hereto
as Exhibit A.
"Yield Supplement Amount" means, with respect to any Distribution Date,
the aggregate amount on deposit in the Yield Supplement Account after giving
effect to the withdrawal therefrom of the related Yield Supplement Deposit and
without regard to any amounts on deposit therein in respect of interest or
investment earnings earned on the investment of amounts on deposit therein in
Eligible Investments for any period.
"Yield Supplement Deposit" means, with respect to any Distribution Date,
the amount by which (a) the aggregate amount of interest that would have been
due during the related Collection Period on all Yield Supplemented Receivables
if such Yield Supplemented Receivables bore interest at the Required Rate
exceeds (b) the amount of interest accrued on such Yield Supplemented
Receivables at their respective APRs and due during such Collection Period.
"Yield Supplemented Receivable" means any Receivable that has an APR less
than the Required Rate.
SECTION 1.02 Usage of Terms. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
subsequent amendments, amendments and restatements and supplements thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
ARTICLE II
Conveyance of Receivables
SECTION 2.01 Conveyance of Receivables.
(a) In consideration of the promises and the agreements,
provisions and covenants herein contained and other good and valuable
consideration to be delivered to the Seller hereunder, on behalf of the
Issuer, the Seller does hereby sell, transfer, assign and otherwise convey
to the Issuer, without recourse (but subject to the Seller's obligations
in this Agreement):
19 (Nissan 2004-B Sale and Servicing Agreement)
(i) all right, title and interest of the Seller in and to
the Receivables (including all related Receivable Files) listed in
Schedule A hereto and all monies due thereon or paid thereunder or
in respect thereof (including proceeds of the repurchase of
Receivables by the Seller pursuant to Section 3.02 or the purchase
of Receivables by the Servicer pursuant to Section 4.06 or 9.01)
after the Cutoff Date;
(ii) the right of the Seller in the security interests in the
Financed Vehicles granted by the Obligors pursuant to the
Receivables and any related property;
(iii) the right of the Seller in any proceeds from claims on
any physical damage, credit life, credit disability or other
insurance policies covering the Financed Vehicles or the Obligors;
(iv) the right of the Seller through NMAC to receive payments
in respect of any Dealer Recourse with respect to the Receivables;
(v) the rights of the Seller under the Purchase Agreement
and the Assignment;
(vi) the right of the Seller to realize upon any property
(including the right to receive future Net Liquidation Proceeds)
that shall have secured a Receivable;
(vii) the right of the Seller in rebates of premiums and other
amounts relating to insurance policies and other items financed
under the Receivables in effect as of the Cutoff Date;
(viii) all other assets comprising the Owner Trust Estate; and
(ix) all proceeds of the foregoing.
On the Closing Date, the Seller shall deliver to, or to the order
of, the Issuer all property conveyed pursuant to this Section 2.01(a),
except for monies received in respect of the Receivables after the Cutoff
Date and before the Closing Date which shall be deposited by NMAC (in its
individual capacity or as the Servicer) into the Collection Account no
later than the first Record Date after the Closing Date. Concurrently
therewith and in exchange therefor, the Issuer shall deliver to, or to the
order of, the Seller the Notes and the Certificates.
(b) It is the intention of the Seller that the transfer and
assignment contemplated by this Agreement shall constitute a sale of the
Receivables from the Seller to the Issuer and the beneficial interest in
and title to the Receivables shall not be part of the Seller's estate in
the event of the filing of a bankruptcy petition by or against the Seller
under any bankruptcy law. The Seller agrees to execute and file all
filings (including filings under the UCC) necessary in any jurisdiction to
provide third parties with notice of the sale of the Receivables pursuant
to this Agreement and to perfect such sale under the UCC.
(c) Although the parties hereto intend that the transfer and
assignment contemplated by this Agreement be a sale, if such transfer and
assignment is deemed to
20 (Nissan 2004-B Sale and Servicing Agreement)
be other than a sale, the parties intend that all filings described in the
foregoing paragraph shall give the Issuer a first priority perfected
security interest in, to and under the Receivables, and other property
conveyed hereunder and all proceeds of any of the foregoing. This
Agreement shall be deemed to be the grant of a security interest from the
Seller to the Issuer, and the Issuer shall have all the rights, powers and
privileges of a secured party under the UCC.
(d) In connection with the foregoing conveyance, the Servicer shall
maintain its computer system so that, from and after the time of sale of
the Receivables to the Issuer under this Agreement, the Servicer's master
computer records that refer to any Receivable indicate clearly the
interest of the Issuer in such Receivables and that such Receivable is
owned by the Issuer and controlled by the Issuer. Indication of the
Issuer's ownership of a Receivable shall be deleted from or modified on
the Servicer's computer systems when, and only when, the Receivable has
been paid in full, repurchased or assigned pursuant to this Agreement.
(e) Ownership and control of the Receivables, as between the Issuer
and the Indenture Trustee (on behalf of the Noteholders and the
Certificateholders), shall be governed by the Indenture.
SECTION 2.02 Custody of Receivable Files. To assure uniform quality in
servicing the Receivables and to reduce administrative costs, the Issuer, upon
the execution and delivery of this Agreement, appoints the Servicer, and the
Servicer accepts such appointment, to act as the agent of the Issuer as
custodian of the following documents or instruments that are hereby
constructively delivered to the Issuer with respect to each Receivable:
(a) the original of such Receivable (or a photocopy or other image
thereof that the Servicer shall keep on file in accordance with its
customary procedures) fully executed by the Obligor;
(b) the original credit application fully executed by the related
Obligor (or a photocopy or other image thereof that the Servicer shall
keep on file in accordance with its customary procedures);
(c) the original certificate of title (or a photocopy or other image
thereof or such documents that the Servicer shall keep on file in
accordance with its customary procedures), evidencing the security
interest of the Servicer in the related Financed Vehicle; and
(d) any and all other documents that the Servicer shall keep on
file, in accordance with its customary procedures, relating to such
Receivable, the related Obligor or Financed Vehicle.
SECTION 2.03 Acceptance by Issuer. The Issuer acknowledges its acceptance
pursuant to this Agreement, of all right, title and interest in and to the
Receivables and other property conveyed by the Seller pursuant to this Agreement
and declares and shall declare from and after the date hereof that the Issuer
holds and shall hold such right, title and interest, upon the terms and
conditions set forth in this Agreement.
21 (Nissan 2004-B Sale and Servicing Agreement)
ARTICLE III
The Receivables
SECTION 3.01 Representations and Warranties of the Seller with Respect to
the Receivables. The Seller makes the following representations and warranties
as to the Receivables on which the Issuer is deemed to have relied in acquiring
the Receivables. Such representations and warranties speak as of the execution
and delivery of this Agreement and as of the Closing Date, but shall survive the
sale, transfer and assignment of the Receivables to the Issuer and the pledge
thereof to the Indenture Trustee pursuant to the Indenture.
(a) Characteristics of Receivables. Each Receivable (i) has been
originated in the United States of America by a Dealer for the retail sale
of a Financed Vehicle in the ordinary course of such Dealer's business,
has been fully and properly executed by the parties thereto, has been
purchased by the Seller from NMAC pursuant to the Purchase Agreement,
which in turn has purchased such Receivables from such Dealer under an
existing dealer agreement with NMAC, and has been validly assigned by such
Dealer to NMAC, which in turn has been validly assigned pursuant to the
Purchase Agreement by NMAC to the Seller in accordance with its terms,
(ii) created a valid, subsisting and enforceable security interest in
favor of NMAC in such Financed Vehicle, which security interest has been
validly assigned pursuant to the Purchase Agreement by NMAC to the Seller,
which in turn has been validly assigned by the Seller to the Issuer in
accordance with the terms hereof, (iii) contains customary and enforceable
provisions such that the rights and remedies of the holder thereof are
adequate for realization against the collateral of the benefits of the
security, (iv) provides for level monthly payments (provided that the
payment in the first or last month in the life of the Receivable may be
minimally different from the level payment) that fully amortize the Amount
Financed over an original term of no greater than 63 months, and (v)
provides for interest at the related APR.
(b) Schedule of Receivables. The information set forth in Schedule A
to this Agreement was true and correct in all material respects as of the
opening of business on the Cutoff Date; the Receivables were selected from
NMAC's retail installment sale contracts (other than contracts originated
in Alabama, Hawaii or Maine) meeting the criteria of the Trust set forth
in this Agreement; and no selection procedures believed to be adverse to
the Securityholders were utilized in selecting the Receivables.
(c) Compliance with Law. Each Receivable, the origination of such
Receivable, and the sale of the Financed Vehicle complied at the time it
was originated or made and at the execution of this Agreement complies in
all material respects with all requirements of applicable federal, state
and local laws, and regulations thereunder, including usury laws, the
Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair
Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal
Trade Commission Act, the 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,
22 (Nissan 2004-B Sale and Servicing Agreement)
state "Lemon Laws" designed to prevent fraud in the sale of automobiles
and other consumer credit laws and equal credit opportunity and disclosure
laws.
(d) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms subject to
the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general
equitable principles.
(e) Security Interest in Financed Vehicle. (i) Immediately prior to
the sale, assignment and transfer thereof to the Issuer, each Receivable
was secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of NMAC as secured party or all necessary and
appropriate actions shall have been commenced that would result in the
valid perfection of a first priority security interest in the Financed
Vehicle in favor of NMAC as secured party, and (ii) as of the Cutoff Date,
according to the records of NMAC, no Financed Vehicle has been repossessed
and the possession thereof not reinstated.
(f) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released from
the lien granted by the related Receivable in whole or in part.
(g) No Waiver. No provision of a Receivable has been waived in a
manner that is prohibited by the provisions of Section 4.01 or that would
cause such Receivable to fail to meet all of the other requirements and
warranties made by the Seller herein with respect thereto.
(h) No Defenses. No Receivable is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of any Receivable, or the
exercise of any right thereunder, will not render such Receivable
unenforceable in whole or in part or subject such Receivable to any right
of rescission, setoff, counterclaim or defense, including the defense of
usury, and no such right of rescission, setoff, counterclaim or defense
has been asserted with respect thereto.
(i) No Liens. To the Seller's knowledge, no liens have been filed
for work, labor or materials relating to a Financed Vehicle that shall be
liens prior to, or equal or coordinate with, the security interest in the
Financed Vehicle granted by the Receivable.
(j) No Default. Except for payment defaults continuing for a period
of not more than 29 days as of the Cutoff Date, no default, breach,
violation or event permitting acceleration under the terms of any
Receivable has occurred; and no continuing condition that with notice or
the lapse of time would constitute a default, breach, violation or event
permitting acceleration under the terms of any Receivable has arisen
(other than deferrals and waivers of late payment charges or fees
permitted hereunder).
(k) Insurance. NMAC, in accordance with its customary procedures,
has determined at the time of origination of each Receivable that the
related Obligor has
23 (Nissan 2004-B Sale and Servicing Agreement)
agreed to obtain physical damage insurance covering the Financed Vehicle
and the Obligor is required under the terms of the related Receivable to
maintain such insurance.
(l) Title. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Receivables from
the Seller to the Trust and that the beneficial interest in and title to
the Receivables not be part of the Seller's estate in the event of the
filing of a bankruptcy petition by or against the Seller under any
bankruptcy law. Immediately prior to the transfer and assignment herein
contemplated, the Seller had good and marketable title to each Receivable
free and clear of all Liens, and immediately upon the transfer thereof,
the Issuer, for the benefit of the Noteholders and the Certificateholders,
shall have good and marketable title to each Receivable, free and clear of
all Liens and rights of others. Each Receivable File contains the original
certificate of title (or a photocopy or image thereof) or evidence that an
application for a certificate of title has been filed. To the extent the
transfer and assignment contemplated under this Agreement is deemed to be
other than a sale, this Agreement and all filings described under this
Agreement create a valid and continuing security interest (as defined in
the applicable UCC) in the Receivables in favor of the Issuer, which
security interest is prior to all other Liens, and is enforceable as such
as against creditors of and purchasers from the Seller.
(m) Lawful Assignment. No Receivable has been originated in, or
shall be subject to the laws of, any jurisdiction under which the sale,
transfer and assignment of such Receivable under this Agreement are
unlawful, void or voidable.
(n) All Filings Made. All filings (including, without limitation,
UCC filings) necessary in any jurisdiction to give the Relevant Trustee a
first priority perfected ownership interest in the Receivables have been
made or have been delivered to the Relevant Trustee in a form suitable for
filing.
(o) Chattel Paper. Each Receivable constitutes "tangible chattel
paper," as such term is defined in the UCC.
(p) Simple Interest Receivables. All of the Receivables are Simple
Interest Receivables.
(q) One Original. There is only one original executed copy of each
Receivable.
(r) No Amendments. No Receivable has been amended such that the
amount of the Obligor's Scheduled Payments has been increased.
(s) APR. The APR of each Receivable equals or exceeds 0.00%.
(t) Maturity. As of the Cutoff Date, each Receivable had a remaining
term to maturity of not less than 3 payments and not greater than 60
payments.
(u) Balance. Each Receivable had an original Principal Balance of
not more than $50,000 and, as of the Cutoff Date, had a principal balance
of not less than $2,000 and not more than $47,500.
24 (Nissan 2004-B Sale and Servicing Agreement)
(v) Delinquency. No Receivable was more than 29 days past due as of
the Cutoff Date, and no Receivable has been extended by more than two
months.
(w) Bankruptcy. No Obligor was the subject of a bankruptcy
proceeding (according to the records of NMAC) as of the Cutoff Date.
(x) Transfer. Each Receivable prohibits the sale or transfer of the
Financed Vehicle without the consent of NMAC.
(y) New, Near-New and Used Vehicles. Each Financed Vehicle was a
new, near-new or used automobile or light-duty truck at the time the
related Obligor executed the retail installment sale contract.
(z) Origination. Each Receivable has an origination date on or after
September 30, 1999.
(aa) Receivable Files. The Receivable Files shall be kept at one or
more of the locations listed in Schedule B hereto. The Receivable Files
that constitute or evidence the Receivables do not have any marks or
notations indicating that they have been pledged, assigned or otherwise
conveyed by the Seller to any Person other than the Issuer. All financing
statements filed or to be filed against the Seller in favor of the Issuer
in connection herewith describing the Receivables contain a statement to
the following effect: "A purchase of or security interest in any
collateral described in this financing statement, except as permitted in
the Sale and Servicing Agreement, will violate the rights of the Issuer."
(bb) Forced-Placed Insurance Premiums. No contract relating to any
Receivable has had forced-placed insurance premiums added to the amount
financed.
(cc) No Fraud or Misrepresentation. To the knowledge of the Seller,
no Receivable was originated by a Dealer and sold by such Dealer to the
Seller with any conduct constituting fraud or misrepresentation on the
part of such Dealer.
(dd) No Further Amounts Owed on the Receivables. No further amounts
are owed by the Seller to any Obligor under the Receivables.
(ee) No Pledge or Assignment of Receivables. Other than the
security interest granted to the Issuer pursuant to this Agreement, the
Seller has not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Receivables. The Seller has not authorized
the filing of and is not aware of any financing statements against the
Seller that include a description of collateral covering the Receivables
other than any financing statement relating to the security interest
granted to the Issuer hereunder or a financing statement as to which the
security interest covering the Receivables has been released. The Seller
is not aware of any judgment or tax lien filings against the Seller.
25 (Nissan 2004-B Sale and Servicing Agreement)
(ff) No Government Obligors. None of the Receivables shall be due
from the United States or any state, or from any agency, department
subdivision or instrumentality thereof.
SECTION 3.02 Repurchase upon Breach. The Seller, the Servicer or the
Issuer, as the case may be, shall inform the other parties to this Agreement and
the Indenture Trustee promptly, in writing, upon the discovery of any breach of
the Seller's representations and warranties pursuant to Section 3.01 that
materially and adversely affects the interests of the Securityholders in any
Receivable. Unless the breach shall have been cured by the last day of the
second Collection Period following such discovery (or, at the Seller's election,
the last day of the first Collection Period following such discovery), the
Seller shall be obligated (whether or not such breach was known to the Seller on
the Closing Date), and the Issuer shall enforce the obligation of the Seller
under this Agreement and, if necessary, the Seller shall enforce the obligation
of NMAC under the Purchase Agreement, to repurchase any Receivable the
Securityholders' interest in which was materially and adversely affected by the
breach as of such last day. A breach of the representation in Section
3.01(a)(iv), (t) or (u) shall be deemed to affect materially and adversely the
related Receivable. In consideration of the purchase of the Receivables, the
Seller shall remit the Warranty Purchase Payment in the manner specified in
Section 5.05. For purposes of this Section 3.02, the Warranty Purchase Payment
of a Receivable that is not consistent with the Seller's warranty pursuant to
Section 3.01(a)(iv) shall include such additional amount as shall be necessary
to provide the full amount of interest as contemplated therein to the date of
repurchase. The sole remedy of the Trust, the Indenture Trustee (by operation of
the assignment of the Issuer's rights hereunder pursuant to the Indenture) or
any Securityholder with respect to a breach of the Seller's representations and
warranties pursuant to Section 3.01 shall be to require the Seller to repurchase
Receivables pursuant to this Section and to enforce the obligation of NMAC to
the Seller to repurchase such Receivables pursuant to the Purchase Agreement.
SECTION 3.03 Duties of Servicer as Custodian.
(a) Safekeeping. The Servicer shall hold the Receivable Files as
custodian for the benefit of the Issuer and maintain such accurate and
complete accounts, records and computer systems pertaining to each
Receivable File as shall enable the Issuer to comply with this Agreement.
In performing its duties as custodian, the Servicer shall act with
reasonable care, using that degree of skill and attention that the
Servicer exercises with respect to the receivable files relating to all
comparable automotive receivables that the Servicer services for itself or
others. In accordance with its customary practices with respect to its
retail installment sale contracts, the Servicer shall conduct, or cause to
be conducted, periodic audits of the Receivable Files held by it under
this Agreement and of the related accounts, records and computer systems,
in such a manner as shall enable the Issuer, the Owner Trustee or the
Indenture Trustee to verify the accuracy of the Servicer's record keeping.
The Servicer shall promptly report to the Issuer and the Indenture Trustee
any material failure on its part to hold the Receivable Files and maintain
its accounts, records and computer systems as herein provided in all
material respects and shall promptly take appropriate action to remedy any
such material failure. Nothing herein shall be deemed to require an
initial review or any periodic review by the Issuer, the Owner Trustee or
the Indenture Trustee of the Receivable Files.
26 (Nissan 2004-B Sale and Servicing Agreement)
(b) Maintenance of and Access to Records. The Servicer shall
maintain each Receivable File at one of its offices specified in Schedule
B or at such other office as shall be specified to the Owner Trustee and
the Indenture Trustee by written notice from the Servicer not later than
90 days after any change in location. The Servicer shall make available to
the Owner Trustee and the Indenture Trustee or their respective duly
authorized representatives, attorneys or auditors the Receivable Files and
the related accounts, records and computer systems maintained by the
Servicer at such times during normal business hours as the Owner Trustee
or the Indenture Trustee shall instruct. The Servicer shall permit the
Owner Trustee, the Indenture Trustee and their respective agents at any
time during normal business hours upon reasonable prior notice to inspect,
audit and make copies of and abstracts from the Servicer's records
regarding any Receivable.
(c) Release of Documents. Upon the occurrence and during the
continuation of a Servicer Default or to the extent necessary for the
Indenture Trustee to comply with its obligations under this Agreement, the
Servicer shall, upon instruction from the Indenture Trustee, release any
Receivable File to the Indenture Trustee, the Indenture Trustee's agent or
the Indenture Trustee's designee, as the case may be, at such place or
places as the Indenture Trustee may designate, as soon as practicable.
SECTION 3.04 Instructions; Authority To Act. The Servicer shall be deemed
to have received proper instructions with respect to the Receivable Files upon
its receipt of written instructions signed by a Trust Officer of the Owner
Trustee or the Indenture Trustee.
SECTION 3.05 Custodian's Indemnification. The Servicer, as custodian,
shall indemnify the Issuer, the Owner Trustee and the Indenture Trustee for any
and all liabilities, obligations, losses, compensatory damages, payments, costs
or expenses of any kind whatsoever that may be imposed on, incurred by or
asserted against any of them as the result of any improper act or omission in
any way relating to the maintenance and custody by the Servicer as custodian of
the Receivable Files; provided, however, that the Servicer shall not be liable
to the Owner Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Owner Trustee, and the
Servicer shall not be liable to the Indenture Trustee for any portion of any
such amount resulting from the willful misfeasance, bad faith or negligence of
the Indenture Trustee.
SECTION 3.06 Effective Period and Termination. The Servicer's appointment
as custodian shall become effective as of the Cutoff Date, and shall continue in
full force and effect until terminated pursuant to this Section. If NMAC shall
resign as Servicer in accordance with the provisions of this Agreement or if all
of the rights and obligations of any Servicer shall have been terminated under
Section 8.01, the appointment of NMAC as custodian may be terminated by the
Indenture Trustee or by the Holders of Notes evidencing not less than 25% of the
Outstanding Amount of the Notes (but excluding for purposes of such calculation
and action all Notes held or beneficially owned by NMAC, NARC II or any of their
Affiliates unless all of the Notes are held or beneficially owned by NMAC, NARC
II or any of their Affiliates) or, with the consent of Holders of the Notes
evidencing not less than 25% of the Outstanding Amount of the Notes, by the
Owner Trustee or by the Certificateholders evidencing not less than 25% of the
Certificate Balance (but excluding for purposes of such calculation and action
all Certificates held or beneficially owned by NMAC, NARC II or any of their
Affiliates unless all of the
27 (Nissan 2004-B Sale and Servicing Agreement)
Certificates are held or beneficially owned by NMAC, NARC II or any of their
Affiliates), in the same manner as the Indenture Trustee or such Holders may
terminate the rights and obligations of the Servicer under Section 8.01. The
Indenture Trustee or, with the consent of the Indenture Trustee, the Issuer may
terminate the Servicer's appointment as custodian, with cause, at any time upon
written notification to the Servicer, and without cause upon 30 days' prior
written notification to the Servicer. As soon as practicable after any
termination of such appointment, the Servicer shall deliver the Receivable Files
and the related accounts and records maintained by the Servicer to the Relevant
Trustee or the agent thereof at such place or places as the Relevant Trustee may
reasonably designate.
ARTICLE IV
Administration and Servicing of Receivables
SECTION 4.01 Duties of Servicer.
(a) The Servicer shall manage, service, administer and make
collections on the Receivables with reasonable care, using that degree of
skill and attention that the Servicer exercises with respect to all
comparable receivables that it services for itself or others. Except with
respect to Defaulted Receivables, Administrative Receivables or Warranty
Receivables, the Servicer shall not change the amount of or reschedule the
due date of any Scheduled Payment, change the APR of, or extend any
Receivable except as provided herein or change any material term of a
Receivable; provided, however, that:
(1) if a default, breach, violation, delinquency or event
permitting acceleration under the terms of any Receivable shall have
occurred or, in the judgment of the Servicer, is imminent, the
Servicer may (A) extend such Receivable for credit related reasons
that would be acceptable to the Servicer with respect to comparable
new, near-new or used automobile or light-duty truck receivables
that it services for itself, but only if (i) the final scheduled
payment date of such Receivable as extended would not be later than
the last day of the Collection Period preceding the Final Scheduled
Distribution Date for the Class A-4 Notes, and (ii) the rescheduling
or extension would not modify the terms of such Receivable in a
manner that would constitute a cancellation of such Receivable and
the creation of a new receivable for federal income tax purposes; or
(B) reduce an Obligor's monthly payment amount in the event of a
prepayment resulting from refunds of credit life and disability
insurance premiums and service contracts and make similar
adjustments in an Obligor's payment terms to the extent required by
law;
(2) if at the end of the scheduled term of any Receivable,
the outstanding principal amount thereof is such that the final
payment to be made by the related Obligor is larger than the
regularly scheduled payment of principal and interest made by such
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
28 (Nissan 2004-B Sale and Servicing Agreement)
Collection Period preceding the Final Scheduled Distribution Date
for the Class A-4 Notes; and
(3) the Servicer may in its discretion waive any late
payment charge or any other fees that may be collected in the
ordinary course of servicing a Receivable.
(b) The Servicer's duties shall include collection and posting of
all payments, responding to inquiries of Obligors on the Receivables,
investigating delinquencies, sending remittance advises to Obligors,
reporting tax information to Obligors, accounting for collections,
furnishing monthly and annual statements to the Owner Trustee and the
Indenture Trustee with respect to distributions and making Advances
pursuant to Section 5.04. In addition, the Servicer's duties shall include
the execution and delivery of any filings, certificates, affidavits or
other instruments required under the Xxxxxxxx-Xxxxx Act of 2002, to the
extent permitted by applicable law.
(c) Without limiting the generality of the foregoing, the Servicer
is authorized and empowered to execute and deliver, on behalf of itself,
the Trust, the Owner Trustee, the Indenture Trustee and the
Securityholders or any of them, any and all instruments of satisfaction or
cancellation, or partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables or to the Financed
Vehicles securing the Receivables. If the Servicer shall commence a legal
proceeding to enforce a Receivable, the Issuer (in the case of a
Receivable other than an Administrative Receivable or a Warranty
Receivable) shall thereupon be deemed to have automatically assigned,
solely for the purpose of collection, such Receivable to the Servicer. If
in any enforcement suit or legal proceeding it shall be held that the
Servicer may not enforce a Receivable on the ground that it shall not be a
real party in interest or a holder entitled to enforce such Receivable,
the Issuer shall, at the Servicer's expense and direction, take steps to
enforce the Receivable, including bringing suit in its name or the name of
the Indenture Trustee or the Securityholders. The Issuer shall furnish the
Servicer with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to carry out its servicing
and administrative duties hereunder.
(d) The Servicer, at its expense, shall obtain on behalf of the
Trust all licenses, including those required under the Pennsylvania Motor
Vehicle Sales Finance Act and the Maryland Financial Institutions Article,
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
29 (Nissan 2004-B Sale and Servicing Agreement)
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 Maintenance of Security Interests in Financed Vehicles. The
Servicer shall, in accordance with its customary servicing procedures, take such
steps as are necessary to maintain perfection of the security interest created
by each Receivable in the related Financed Vehicle. The Servicer is hereby
authorized to take such steps as are necessary to re-perfect such security
interest on behalf of the Issuer and the Indenture Trustee in the event of the
relocation of a Financed Vehicle or for any other reason. If the assignment of a
Receivable to the Trust is insufficient, without a notation on the related
Financed Vehicle's certificate of title, to grant to the Trust a first priority
perfected security interest in the related Financed Vehicle, the Servicer hereby
agrees to serve as the agent of the Trust for the purpose of perfecting the
security interest of the Trust in such Financed Vehicle and agrees that the
Servicer's listing as the secured party on the certificate of title is in this
capacity as agent of the Trust.
SECTION 4.05 Covenants of Servicer.
(a) The Servicer shall not release the Financed Vehicle securing any
Receivable from the security interest granted by such Receivable in whole
or in part except in the event of payment in full by or on behalf of the
Obligor thereunder or repossession.
(b) The Servicer shall not do anything to impair the rights of the
Securityholders in the Receivables.
(c) Except with respect to Defaulted Receivables, Administrative
Receivables or Warranty Receivables, the Servicer shall not alter the APR
of any Receivable or forgive payments on a Receivable. Except as provided
in Section 4.01, the Servicer shall not modify the number of payments
under a Receivable, increase the amount financed under a Receivable, or
extend the due date for any payment on a Receivable.
(d) 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.
30 (Nissan 2004-B Sale and Servicing Agreement)
SECTION 4.06 Purchase of Receivables upon Breach. The Servicer or the
Issuer shall inform the other party and the Indenture Trustee promptly, in
writing, upon the discovery of any breach by the Servicer of its obligations
under the second sentence of Section 4.01 or under Section 4.02, 4.04 or 4.05
that would materially and adversely affect any Receivable. Unless the breach
shall have been cured by the last day of the second Collection Period following
such discovery (or, at the Servicer's election, the last day of the first
Collection Period following discovery), the Servicer shall (whether or not such
breach was known to the Servicer on the Closing Date) purchase any Receivable
materially and adversely affected by such breach as of such last day. In
consideration of such Receivable, the Servicer shall remit the Administrative
Purchase Payment (as reduced by any Outstanding Advances with respect to such
Receivable) in the manner specified in Section 5.05. For the purposes of this
Section 4.06, the Administrative Purchase Payment shall consist in part of a
release by the Servicer of all rights of reimbursement with respect to
Outstanding Advances with respect to the purchased Receivable. The sole remedy
of the Indenture Trustee, the Owner Trustee, the Trust or the Securityholders
against the Servicer with respect to a breach by the Servicer of its obligations
under the second sentence of Section 4.01 or under Section 4.02, 4.04 or 4.05
shall be to require the Servicer to purchase Receivables pursuant to this
Section 4.06.
SECTION 4.07 Servicing Fee and Expenses. As compensation for the
performance of its obligations hereunder, the Servicer shall be entitled to
receive on each Distribution Date the Total Servicing Fee. Except to the extent
otherwise provided herein, the Servicer shall be required to pay all expenses
incurred by it in connection with its activities under this Agreement (including
fees and disbursements of the Indenture Trustee and independent accountants,
taxes imposed on the Servicer, expenses incurred in connection with
distributions and reports to Securityholders and all other fees and expenses not
expressly stated under this Agreement to be for the account of the
Securityholders).
SECTION 4.08 Servicer's Certificate.
(a) On or before the tenth day of each month (or, if such tenth day
is not a Business Day, then on the next succeeding Business Day), the
Servicer shall deliver to the Owner Trustee, each Paying Agent, and the
Indenture Trustee, with a copy to each Rating Agency, a Servicer's
Certificate containing all information necessary to make the distributions
pursuant to Sections 5.06, 5.07 and 5.08 (including the amount of the
aggregate collections on the Receivables; the aggregate Advances to be
made by the Servicer, if any, the aggregate Administrative Purchase
Payments for any Administrative Receivables to be purchased by the
Servicer, and the aggregate Warranty Purchase Payments for any Warranty
Receivables to be purchased by the Seller) for the Collection Period
preceding the date of such Servicer's Certificate, all information
necessary for the Owner Trustee to send statements to the
Certificateholders and the Indenture Trustee to send statements to the
Noteholders pursuant to the Trust Agreement or Indenture, as the case may
be. Each of the Owner Trustee and the Indenture Trustee may conclusively
rely on the information in any Servicer's Certificate and shall have no
duty to confirm or verify the contents thereof.
(b) Concurrently with delivery of the Servicer's Certificate in each
month, the Servicer shall deliver to the underwriters of the Notes the
Note Factor for each Class of
31 (Nissan 2004-B Sale and Servicing Agreement)
Notes, the Certificate Factor, and the Pool Factor for each Class of Notes
and for the Certificates, in each case as of the close of business on the
Distribution Date occurring in such month.
SECTION 4.09 Annual Statement as to Compliance; Notice of Default.
(a) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each of the Rating Agencies, on or before the last day of the
third month after the end of each fiscal year of the Servicer, beginning
June 30, 2005, an Officers' Certificate with respect to the prior fiscal
year of the Servicer ended such calendar year (or with respect to the
initial Officer's Certificate, the period from the date of the initial
issuance of the Notes to March 31, 2005), 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 or Noteholder by a request in writing to
the Owner Trustee or the Indenture Trustee addressed as set forth in
Section 10.03 hereof.
(b) The Servicer shall deliver to the Owner Trustee, the Indenture
Trustee and each Rating Agency, promptly after having obtained knowledge
thereof, but in no event later than five Business Days thereafter, written
notice in an Officer's Certificate of any event that with the giving of
notice or lapse of time, or both, would become a Servicer Default under
Section 8.01. The Seller shall deliver to the Owner Trustee, the Indenture
Trustee and to each such Rating Agency, promptly after having obtained
knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an Officer's Certificate of any event that
with the giving of notice or lapse of time, or both, would become a
Servicer Default under Section 8.01(a)(ii) or would result in any lowering
of the ratings described in Section 5.02(a)(ii)(A).
SECTION 4.10 Annual Independent Certified Public Accountants' Report. The
Servicer shall cause a firm of independent certified public accountants, who may
also render other services to the Servicer, the Seller or their Affiliates, to
deliver to the Owner Trustee, the Indenture Trustee and each of the Rating
Agencies, on or before the last day of the third month after the end of each
fiscal year of the Servicer, beginning June 30, 2005, with respect to the prior
fiscal year (or with respect to the initial reports, the period from the date of
the initial issuance of the Securities to March 31, 2005) the following reports:
(a) a report that such firm has audited the consolidated financial statements of
the Servicer in accordance with generally accepted auditing standards, that such
firm is independent of the Servicer within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants
("AICPA"), and expressing such firm's opinion thereon; and (b) a report
indicating that such firm has examined, in accordance with standards established
by AICPA, management's assertion about the Servicer's compliance with the
minimum servicing standards identified in the Mortgage Bankers Association of
America's Uniform Single Attestation Program for Mortgage Bankers ("USAP") as
such standards relate to automobile and light-duty truck loans serviced for
32 (Nissan 2004-B Sale and Servicing Agreement)
others, and expressing such firm's opinion on such management assertion (the
"Annual USAP Report") or any similar internal control audit report that is
acceptable to each Rating Agency. Upon the request of any Certificateholder or
Note Owner, the Owner Trustee or the Indenture Trustee, as the case may be,
shall promptly provide such Certificateholder or Note Owner with a copy of such
Annual USAP Report. For all purposes of this Agreement, the Owner Trustee and
the Indenture Trustee may rely on the representation of any Person that it is a
Certificateholder or a Note Owner, as the case may be.
SECTION 4.11 Access to Certain Documentation and Information Regarding
Receivables.
(a) The Servicer shall provide to the Owner Trustee and the
Indenture Trustee access to the Receivable Files in such cases where the
Securityholders shall be required by applicable statutes or regulations to
review such documentation. In each case, such access shall be afforded
without charge, but only upon reasonable request and during the normal
business hours at the respective offices of the Servicer.
(b) The Servicer shall provide to each Rating Agency any information
regarding the Receivables that is reasonably requested by such Rating
Agency.
(c) Nothing in this Section 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.
SECTION 4.12 Appointment of Subservicer. So long as NMAC acts as the
Servicer, the Servicer may at any time without notice or consent subcontract
substantially all its duties under this Agreement to any corporation more than
50% of the voting stock of which is owned, directly or indirectly, by Nissan.
The Servicer may at any time perform specific duties as servicer under this
Agreement through other subcontractors; provided, however, that no such
delegation or subcontracting shall relieve the Servicer of its responsibilities
with respect to such duties as to which the Servicer shall remain primarily
responsible with respect thereto.
SECTION 4.13 Amendments to Schedule of Receivables. If the Servicer,
during any Collection Period, assigns to a Receivable an account number that
differs from the original account number identifying such Receivable on the
Schedule of Receivables, the Servicer shall deliver to the Owner Trustee and the
Indenture Trustee, on or before the Distribution Date relating to such
Collection Period, an amendment to the Schedule of Receivables reporting the
newly assigned account number, together with the old account number of each such
Receivable. The first such delivery of amendments to the Schedule of Receivables
shall include monthly amendments reporting account numbers appearing on the
Schedule of Receivables with the new account numbers assigned to such
Receivables during any prior Collection Period.
SECTION 4.14 Acknowledgement by Servicer of its Obligations under the
Indenture. The Servicer hereby agrees and consents to the provisions of the
Indenture applicable to it (including, without limitation, Sections 8.03(a) and
8.03(b) thereof) and agrees to be bound by such provisions.
33 (Nissan 2004-B Sale and Servicing Agreement)
ARTICLE V
Distributions; Accounts;
Statements to the Certificateholders and the Noteholders
SECTION 5.01 Establishment of Accounts.
(a) The Servicer, on behalf of the Owner Trustee and the Indenture
Trustee, shall establish the Collection Account in the name of the
Indenture Trustee for the benefit of the Securityholders. The Collection
Account shall be a segregated trust account initially established with the
Indenture Trustee and maintained with the Indenture Trustee as long as (i)
the deposits of the Indenture Trustee have the Required Deposit Rating or
(ii) the Collection Account is maintained in a segregated trust account in
the trust department of the Indenture Trustee; provided, however, that all
amounts held in the Collection Account shall, to the extent permitted by
applicable laws, rules and regulations and as directed by the Servicer, be
invested by the Indenture Trustee in Eligible Investments; otherwise, such
amounts shall be maintained in cash; provided that if (x) the Servicer
shall have failed to give investment directions for any funds on deposit
in the Collection Account to the Indenture Trustee by 5:00 p.m. Eastern
Time (or such other time as may be agreed by the Servicer and the
Indenture Trustee) on any Business Day, or (y) a Default or Event of
Default shall have occurred and be continuing with respect to the Notes
but the Notes shall not have been declared due and payable pursuant to the
Indenture, or (z) if the Notes shall have been declared due and payable
following an Event of Default, amounts collected or receivable from the
Trust Estate are being applied in accordance with Section 5.05 of the
Indenture as if there had not been such a declaration, then the Indenture
Trustee shall, to the fullest extent practicable, invest and reinvest
funds in the Collection Account in one or more Eligible Investments
specified in clauses (i), (iv) or (vi) of the definition of Eligible
Investments. All such Eligible Investments shall mature not later than the
Business Day preceding the next Distribution Date, in such manner that
such amounts invested shall be available to make the required
distributions on the Distribution Date. The Servicer will not direct the
Indenture Trustee, and the Issuer shall cause the Servicer not to make any
investment of any funds or to sell any investment held in the Collection
Account unless the security interest granted and perfected in such account
will continue to be perfected in such investment or the proceeds of such
sale, in either case without any further action by any Person, and, in
connection with any direction to the Indenture Trustee to make any such
investment or sale, if requested by the Indenture Trustee, the Servicer
shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable
to the Indenture Trustee, to such effect. Should the short-term unsecured
debt obligations of the Indenture Trustee no longer have the Required
Deposit Rating then, unless the Collection Account is maintained in
segregated trust accounts in the trust department of the Indenture
Trustee, the Servicer shall, with the Indenture Trustee's assistance as
necessary and within ten Business Days of receipt of notice from the
Indenture Trustee that the Indenture Trustee no longer has the Required
Deposit Rating, cause the Collection Account (i) to be moved to segregated
trust accounts in a bank or trust company, the short-term unsecured debt
obligations of which shall have the Required Deposit Rating, or (ii) to be
moved to the trust department of the Indenture Trustee.
34 (Nissan 2004-B Sale and Servicing Agreement)
(b) Earnings on investment of funds in the Collection Account shall
be paid to the Servicer as servicing compensation, and any losses and
investment expenses shall be charged against the funds on deposit in the
Collection Account.
(c) Subject to the foregoing, the Servicer, on behalf of the Owner
Trustee and the Indenture Trustee, shall establish and maintain the
Collection Account as an Eligible Deposit Account in the name of and under
the exclusive control of the Indenture Trustee, bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Securityholders. The Indenture Trustee shall transfer all
amounts remaining on deposit in the Collection Account on the Distribution
Date on which the Notes of all Classes have been paid in full (or
substantially all of the Trust Estate is otherwise released from the lien
of the Indenture) to another Eligible Deposit Account established pursuant
to the Trust Agreement for the benefit of the Certificateholders (the
"Trust Collection Account"), and take all necessary or appropriate actions
to transfer all of its right, title and interest in the Collection
Account, all funds or investments held therein and all proceeds thereof,
whether or not on behalf of the Securityholders, to the Owner Trustee for
the benefit of the Certificateholders, subject to the limitations set
forth in the Indenture with respect to amounts held for payment to
Noteholders that do not promptly deliver a Note for payment on such
Distribution Date. After the transfer to the Trust Collection Account
described in the immediately preceding sentence, references in this
Agreement to "Collection Account" shall be deemed to be references to the
"Trust Collection Account."
(d) With respect to the Collection Account and all property held
therein, the Owner Trustee agrees, by its acceptance hereof that, on the
terms and conditions set forth in the Indenture, for so long as Notes of
any Class remain outstanding, the Indenture Trustee shall possess all
right, title and interest therein (excluding interest or investment income
thereon payable to the Servicer or the Seller, as the case may be), and
the Accounts shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the Noteholders and the Certificateholders, as
the case may be, as set forth in the Indenture. The parties hereto agree
that the Issuer, the Owner Trustee and the Holders of the Certificates
have no right, title or interest in the Reserve Account or any amounts on
deposit therein at any time. The parties hereto agree that the Servicer
shall have the power, revocable by the Indenture Trustee or by the Owner
Trustee with the consent of the Indenture Trustee, to instruct the
Indenture Trustee to make withdrawals and payments from the Collection
Account for the purpose of permitting the Servicer, Indenture Trustee or
the Owner Trustee to carry out its respective duties hereunder or under
the Indenture or the Trust Agreement, as the case may be.
Notwithstanding the foregoing, the Servicer shall be entitled to
withhold, or to be reimbursed from amounts otherwise payable into or on deposit
in the Collection Account, as the case may be, amounts previously deposited in
the Collection Account but later determined to have resulted from mistaken
deposits or posting.
35 (Nissan 2004-B Sale and Servicing Agreement)
SECTION 5.02 Collections.
(a) Except as otherwise provided in this Agreement, the Servicer
shall remit daily to the Collection Account all payments received by or on
behalf of the Obligors on or in respect of the Receivables (excluding
payments on the Warranty Receivables or the Administrative Receivables)
and all Net Liquidation Proceeds not later than the first Business Day
after receipt thereof. For purposes of this Article V, the phrase
"payments received by or on behalf of the Obligors" shall mean payments
made by Persons other than the Servicer. Notwithstanding the foregoing,
for so long as (i) NMAC is the Servicer, (ii) (A) NMAC's short-term
unsecured debt obligations are rated at least "P-1" by Moody's and NMAC's
short-term unsecured debt obligations (or, if NMAC is the Servicer and the
Servicer then has no short-term rating from Standard & Poor's, Nissan
Capital of America, Inc.'s short-term unsecured debt obligations) are
rated "A-1" by Standard & Poor's (so long as Moody's and Standard & Poor's
are Rating Agencies), or (B) certain arrangements are made that are
acceptable to the Rating Agencies, and (iii) no Event of Default or
Servicer Default shall have occurred and be continuing (unless waived by
the appropriate Securityholders) (collectively, the "Monthly Remittance
Conditions"); the Servicer shall not be required to remit such collections
to the Collection Account on the foregoing daily basis but shall be
entitled to retain such collections, without segregation from its other
funds, until the Business Day before each Distribution Date at which time
the Servicer shall remit all such collections in respect of the related
Collection Period to the Collection Account in immediately available
funds. Commencing with the first day of the first Collection Period that
begins at least two Business Days after the day on which any Monthly
Remittance Condition ceases to be satisfied and for so long as any Monthly
Remittance Condition is not satisfied, all collections then held by the
Servicer shall be immediately deposited into the Collection Account and
all future collections on or in respect of the Receivables (other than
payments on Warranty Receivables and the Administrative Receivables) and
all Net Liquidation Proceeds shall be remitted by the Servicer to the
Collection Account on a daily basis not later than the first Business Day
after receipt thereof.
(b) The Indenture Trustee or the Owner Trustee shall not be deemed
to have knowledge of any event or circumstances under clause (iii) of the
definition of the Monthly Remittance Condition unless the Indenture
Trustee or the Owner Trustee has received notice of such event or
circumstance from the Seller or the Servicer in an Officer's Certificate
or from the Holders of Notes evidencing not less than 25% in principal
amount of the Outstanding Amount of the Notes, or a Trust Officer of the
Indenture Trustee or the Owner Trustee with knowledge hereof or
familiarity herewith has actual knowledge of such event or circumstances.
(c) The Servicer shall give the Owner Trustee, the Indenture Trustee
and each Rating Agency written notice of the failure of any Monthly
Remittance Condition (and any subsequent curing of a failed Monthly
Remittance Condition) as soon as practical after the occurrence thereof
but in no event later than 10 Business Days after obtaining knowledge
thereof (it being understood that if the Monthly Remittance Condition is
not satisfied as of the Closing Date, no such notice shall be required in
connection therewith).
36 (Nissan 2004-B Sale and Servicing Agreement)
(d) Notwithstanding the foregoing, if a Monthly Remittance Condition
is not satisfied, the Servicer may utilize an alternative remittance
schedule (which may include the remittance schedule utilized by the
Servicer before the Monthly Remittance Condition became unsatisfied), if
the Servicer provides to the Owner Trustee and the Indenture Trustee
written confirmation from each Rating Agency that such alternative
remittance schedule will not result in the downgrading or withdrawal by
such Rating Agency of the ratings then assigned to any Class of Notes.
SECTION 5.03 Application of Collections. As of the Business Day
immediately preceding the related Distribution Date, all collections for the
related Collection Period with respect to each Receivable shall be applied by
the Servicer as follows:
(a) First, to interest accrued to date on such Receivable;
(b) Second, to principal until the Principal Balance of such
Receivable is brought current;
(c) Third, to reduce the unpaid late charges (if any) as provided in
such Receivable; and
(d) Fourth, to prepay principal on such Receivable.
SECTION 5.04 Advances.
(a) The Servicer shall make a payment with respect to each
Receivable (other than an Administrative Receivable, a Warranty Receivable
or a Liquidated Receivable) (each, an "Advance") equal to the excess if
any, of (x) the product of the Principal Balance of such Receivable as of
the first day of the related Collection Period and one-twelfth of its APR
(calculated on the basis of a 360-day year comprised of twelve 30-day
months), over (y) the interest actually received by the Servicer with
respect to such Receivable from the Obligor or from payments of the
Administrative Purchase Payment or the Warranty Purchase Payment, as the
case may be, during such Collection Period. The Servicer will not be
obligated to make an Advance in respect of a Receivable (other than an
Advance in respect of an interest shortfall arising from the Prepayment of
a Receivable) to the extent that the Servicer, in its sole discretion,
shall determine that the Advance constitutes a Nonrecoverable Advance.
With respect to each Receivable, the Advance shall increase the
Outstanding Advances. No Advances will be made with respect to the
Principal Balance of the Receivables. The Servicer shall deposit all such
Advances into the Collection Account in immediately available funds no
later than 5:00 p.m., New York City time, on the Business Day immediately
preceding the related Distribution Date. To the extent that the amount set
forth in clause (y) above with respect to a Receivable is greater than the
amount set forth in clause (x) above with respect thereto, such amount
shall be distributed to the Servicer pursuant to Section 5.06; provided,
however, that, notwithstanding anything else herein, the Servicer shall
not be reimbursed for any amounts representing an Advance, or any portion
thereof, made in respect of an interest shortfall arising from the
Prepayment of a Receivable.
37 (Nissan 2004-B Sale and Servicing Agreement)
(b) The Servicer shall be entitled to reimbursement for Outstanding
Advances, without interest, with respect to a Receivable from the
following sources with respect to such Receivable pursuant to Section
5.06(c)(i), Section 5.06(d)(i), or Section 5.06(e)(i): (i) subsequent
payments made by or on behalf of the related Obligor, (ii) Net Liquidation
Proceeds, and (iii) the Warranty Purchase Payments.
(c) To the extent that the Servicer has determined that any
Outstanding Advance is a Nonrecoverable Advance, the Servicer may provide
to the Owner Trustee and the Indenture Trustee an Officer's Certificate
setting forth the amount of such Nonrecoverable Advance, and on the
related Distribution Date, the Relevant Trustee shall remit to the
Servicer from funds on deposit in the Collection Account an amount equal
to the amount of such Nonrecoverable Advance pursuant to Section
5.06(c)(ii), Section 5.06(d)(ii), or 5.06(e)(ii).
(d) Notwithstanding anything to the contrary in this Agreement, for
so long as NMAC is the Servicer, in lieu of causing the Servicer first to
deposit and then the Relevant Trustee to remit to the Servicer the amounts
described in clauses (i) through (iii) in Section 5.04(b) reimbursable in
respect on Outstanding Advances, or the amounts described in Section
5.04(c) applicable in respect of Nonrecoverable Advances, the Servicer may
deduct such amounts from deposits otherwise to be made into the Collection
Account.
(e) Notwithstanding the provisions of Section 5.04(a), no Successor
Servicer, including the Indenture Trustee, shall be obligated to make
Advances unless it has expressly agreed to do so in writing.
SECTION 5.05 Additional Deposits.
(a) The following additional deposits shall be made to the
Collection Account: (i) the Seller shall remit the aggregate Warranty
Purchase Payments with respect to Warranty Receivables pursuant to Section
3.02; (ii) the Servicer shall remit (A) the aggregate Advances pursuant to
Section 5.04(a), (B) the aggregate Administrative Purchase Payments with
respect to Administrative Receivables pursuant to Section 4.06, and (C)
the cash amount required upon any optional purchase of the Receivables by
the Servicer, or any Successor Servicer, pursuant to Section 9.01; and
(iii) the Indenture Trustee shall transfer (A) the Yield Supplement
Deposit from the Yield Supplement Account to the Collection Account
pursuant to Section 5.08, plus reinvestment income on the Yield Supplement
Account (in assuring the availability therein of the related Available
Interest), plus amounts described in the second sentence of Section
5.08(b) and (B) the amounts described in Sections 5.06 and 5.07 from the
Reserve Account to the Collection Account pursuant to Section 5.07.
(b) All deposits required to be made pursuant to this Section 5.05
by the Seller or the Servicer, as the case may be, may be made in the form
of a single deposit and shall be made in immediately available funds, no
later than 5:00 P.M., New York City time, on the Business Day immediately
preceding the related Distribution Date. At the direction of the Servicer,
the Relevant Trustee shall invest such amounts in Eligible Investments
38 (Nissan 2004-B Sale and Servicing Agreement)
maturing not later than 12:00 P.M. New York City Time, on the related
Distribution Date.
SECTION 5.06 Payments and Distributions.
(a) The rights of the Certificateholders to receive distributions in
respect of the Certificates shall be and hereby are subordinated to the
rights of the Noteholders to receive distributions in respect of the Notes
to the extent provided in this Section 5.06.
(b) On each Determination Date, the Servicer shall calculate the
Available Interest, the Available Principal, the Yield Supplement Deposit,
the Noteholders' Principal Distributable Amount, the Certificateholders'
Principal Distributable Amount, the amount to be distributed to
Noteholders of each Class and to Certificateholders pursuant to Section
5.06(c), (d) or (e), and all other distributions, deposits and withdrawals
to be made on the related Distribution Date.
(c) Subject to Sections 5.06(d) and (e), on each Distribution Date,
the Relevant Trustee shall make the following payments and distributions
from the Collection Account (after payment of the Supplemental Servicing
Fee to the extent not previously retained by the Servicer) in the
following order of priority and in the amounts set forth in the Servicer's
Certificate for such Distribution Date; provided, however, that such
payments and distributions shall be made only from those funds deposited
in the Collection Account for the related Collection Period:
(i) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Advances required to be
reimbursed and to the extent set forth in Section 5.04(b);
(ii) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Nonrecoverable Advances
required to be reimbursed and to the extent set forth in Section 5.04(c);
(iii) to the Servicer, from Available Amounts, the Base
Servicing Fee (including any unpaid Base Servicing Fees from one or more
prior Collection Periods);
(iv) on a pro rata basis (based on the amounts distributable
pursuant to this clause to each such Class), to the Class A-1 Noteholders,
the Noteholders' Interest Distributable Amount for such Class, to the
Class A-2 Noteholders, the Noteholders' Interest Distributable Amount for
such Class, to the Class A-3 Noteholders, the Noteholders' Interest
Distributable Amount for such Class, to the Class A-4 Noteholders, the
Noteholders' Interest Distributable Amount for such Class, such amounts to
be paid from Available Amounts (after giving effect to any reduction in
Available Amounts described in clause (iii) above);
(v) to the Class A-1 Noteholders until the principal amount
thereof is reduced to zero, an amount equal to the Noteholders' Principal
Distributable Amount for such Distribution Date, such amounts to be paid
from Available Amounts (after giving effect to any reduction in Available
Amounts described in clauses (iii) and (v) above);
39 (Nissan 2004-B Sale and Servicing Agreement)
(vi) after the principal amount of the Class A-1 Notes is
reduced to zero, to the Class A-2 Noteholders until the principal amount
of the Class A-2 Notes is reduced to zero, then to the Class A-3
Noteholders until the principal amount of the Class A-3 Notes is reduced
to zero, and then to the Class A-4 Noteholders until the principal amount
of the Class A-4 Notes is reduced to zero, an amount equal to the
Noteholders' Principal Distributable Amount for such Distribution Date
(after giving effect to any reduction in Noteholders' Principal
Distributable Amount described in clause (v) above), such amounts to be
paid from Available Amounts (after giving effect to any reduction in
Available Amounts described in clauses (iii) through (v) above);
(vii) to the Reserve Account, the amount, if any, necessary to
cause the balance of funds therein to equal the Specified Reserve Account
Balance with respect to such Distribution Date, such amounts to be paid
from Available Amounts (after giving effect to any reduction in Available
Amounts described in clauses (iii) through (vi) above);
(viii) to the Certificateholders, or, to the extent amounts
are payable to a Swap Counterparty pursuant to a Swap Agreement as
described in Section 5.11, to such Swap Counterparty, except on any
Distribution Date that occurs after the Class A Notes are accelerated, the
Certificateholders' Principal Distributable Amount, such amounts to be
paid from Available Amounts (after giving effect to any reduction in
Available Amounts described in clauses (iii) through (viii) above); and
(ix) any Available Amounts remaining after giving effect to
the foregoing, to the Seller.
(d) Notwithstanding the provisions of Section 5.06(c), after the
occurrence of an Event of Default that results in the acceleration of any
Notes and unless and until such acceleration has been rescinded, on each
Distribution Date, the Relevant Trustee shall make the following payments
and distributions from the Collection Account (after payment of the
Supplemental Servicing Fee to the extent not previously retained by the
Servicer) in the following order of priority and in the amounts set forth
in the Servicer's Certificate for such Distribution Date; provided,
however, that such payments and distributions shall be made only from
those funds deposited in the Collection Account for the related Collection
Period:
(i) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Advances required to be
reimbursed and to the extent set forth in Section 5.04(b);
(ii) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Nonrecoverable Advances
required to be reimbursed and to the extent set forth in Section 5.04(c);
(iii) to the Servicer, from Available Amounts, the Base
Servicing Fee (including any unpaid Base Servicing Fees from one or more
prior Collection Periods);
40 (Nissan 2004-B Sale and Servicing Agreement)
(iv) to the Class A-1 Noteholders, the Noteholders' Interest
Distributable Amount for such Class (after giving effect to any reduction
in Available Amounts described in clause (iii) above);
(v) to the Class A-1 Noteholders, until the total amount
paid to such Noteholders in respect of principal from the Closing Date is
equal to the Original Principal Amount for such Class of Notes, such
amounts to be paid from Available Amounts (after giving effect to any
reduction in Available Amounts described in clauses (iii) through (iv)
above);
(vi) on the Distribution Date on which the Class A-1 Notes
have been paid in full and on each Distribution Date thereafter, on a pro
rata basis (based on the amounts distributable pursuant to this clause to
each such Class), to the Class A-2 Noteholders, the Noteholders' Interest
Distributable Amount for such Class, to the Class A-3 Noteholders, the
Noteholders' Interest Distributable Amount for such Class, and to the
Class A-4 Noteholders, the Noteholders' Interest Distributable Amount for
such Class, such amounts to be paid from Available Amounts (after giving
effect to any reduction in Available Amounts described in clauses (iii)
through (v) above);
(vii) to the Class B A-2 Noteholders, the Class A-3
Noteholders, and the Class A-4 Noteholders on a pro rata basis (based on
the Outstanding Amount of each Class), until the total amount paid to such
Noteholders in respect of principal from the Closing Date is equal to the
Original Principal Amount for such Class of Notes, such amounts to be paid
from Available Amounts (after giving effect to any reduction in Available
Amounts described in clauses (iii) through (vi) above);
(viii) on the Distribution Date on which the Notes have been
paid in full and on each Distribution Date thereafter, to the
Certificateholders, or, to the extent amounts are payable to a Swap
Counterparty pursuant to a Swap Agreement as described in Section 5.11, to
such Swap Counterparty, until the total amount paid to the
Certificateholders in respect of principal from the Closing Date is equal
to the Original Certificate Balance, such amount to be paid from Available
Amounts (after giving effect to the reduction in Available Amounts
described in clauses (iii) through (vii) above); and
(ix) any Available Amounts remaining after giving effect to
the foregoing, to the Seller.
(e) Notwithstanding the provisions of Sections 5.06(c) and 5.06(d),
after the occurrence of an Event of Default that results in the
acceleration of any Notes, on or after the date on which such acceleration
has been rescinded, on each Distribution Date, the Relevant Trustee shall
make the following payments and distributions from the Collection Account
(after payment of the Supplemental Servicing Fee to the extent not
previously retained by the Servicer) in the following order of priority
and in the amounts set forth in the Servicer's Certificate for such
Distribution Date; provided, however, that such payments and distributions
shall be made only from those funds deposited in the Collection Account
for the related Collection Period:
41 (Nissan 2004-B Sale and Servicing Agreement)
(i) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Advances required to be
reimbursed and to the extent set forth in Section 5.04(b);
(ii) to the Servicer, from amounts on deposit in the
Collection Account, any payments in respect of Nonrecoverable Advances
required to be reimbursed and to the extent set forth in Section 5.04(c);
(iii) to the Servicer, from Available Amounts, the Base
Servicing Fee (including any unpaid Base Servicing Fees from one or more
prior Collection Periods);
(iv) on a pro rata basis (based on the amounts distributable
pursuant to this clause to each such Class), to the Class A-1 Noteholders,
the Noteholders' Interest Distributable Amount for such Class, to the
Class A-2 Noteholders, the Noteholders' Interest Distributable Amount for
such Class, to the Class A-3 Noteholders, the Noteholders' Interest
Distributable Amount for such Class, and to the Class A-4 Noteholders, the
Noteholders' Interest Distributable Amount for such Class, such amounts to
be paid from Available Amounts (after giving effect to any reduction in
Available Amounts described in clause (iii) above);
(v) to the Class A-1 Noteholders, until the total amount
paid to such Noteholders in respect of principal from the Closing Date is
equal to the Original Principal Amount for the Class A-1 Notes, such
amounts to be paid from Available Amounts (after giving effect to any
reduction in Available Amounts described in clause (iii) and clause (iv)
above);
(vi) to the Class A-2 Noteholders, until the total amount
paid to such Noteholders in respect of principal from the Closing Date is
equal to the Original Principal Amount for the Class A-2 Notes, such
amounts to be paid from Available Amounts (after giving effect to any
reduction in Available Amounts described in clauses (iii) through (v)
above);
(vii) to the Class A-3 Noteholders, until the total amount
paid to such Noteholders in respect of principal from the Closing Date is
equal to the Original Principal Amount for the Class A-3 Notes, such
amounts to be paid from Available Amounts (after giving effect to any
reduction in Available Amounts described in clauses (iii) through (vi)
above);
(viii) to the Class A-4 Noteholders, until the total amount
paid to such Noteholders in respect of principal from the Closing Date is
equal to the Original Principal Amount for the Class A-4 Notes, such
amounts to be paid from Available Amounts (after giving effect to the
reduction in Available Amounts described in clauses (iii) through (vii)
above);
(ix) on the Distribution Date on which the Notes have been
paid in full and on each Distribution Date thereafter, to the
Certificateholders, or, to the extent amounts are payable to a Swap
Counterparty pursuant to a Swap Agreement as described in Section 5.11, to
such Swap Counterparty, until the total amount paid to the
42 (Nissan 2004-B Sale and Servicing Agreement)
Certificateholders in respect of principal from the Closing Date is equal
to the Original Certificate Balance, such amount to be paid from Available
Amounts (after giving effect to the reduction in Available Amounts
described in clauses (iii) through (viii) above); and
(x) any Available Amounts remaining after giving effect to
the foregoing, to the Seller.
(f) For purposes of determining whether an Event of Default pursuant
to Section 5.01(b) of the Indenture has occurred, the amount of principal
required to be paid to the Holders of any Class of Notes on any
Distribution Date is the amount available to be paid thereto pursuant to
Section 5.06(c); provided, however, that (i) the Class A-1 Notes are
required to be paid in full on or before the Final Scheduled Distribution
Date for such Class, meaning that the Class A-1 Noteholders are entitled
to have received on or before such date payments in respect of principal
in an aggregate amount equal to the Original Principal Amount for such
Class, together with all interest accrued thereon through such date; (ii)
the Class A-2 Notes are required to be paid in full on or before the Final
Scheduled Distribution Date for such Class, meaning that the Class A-2
Noteholders are entitled to have received on or before such date payments
in respect of principal in an aggregate amount equal to the Original
Principal Amount for such Class, together with all interest accrued
thereon through such date; (iii) the Class A-3 Notes are required to be
paid in full on or before the Final Scheduled Distribution Date for such
Class, meaning that the Class A-3 Noteholders are entitled to have
received on or before such date payments in respect of principal in an
aggregate amount equal to the Original Principal Amount for such Class,
together with all interest accrued thereon through such date; and (iv) the
Class A-4 Notes are required to be paid in full on or before the Final
Scheduled Distribution Date for such Class, meaning that the Class A-4
Noteholders are entitled to have received on or before such date payments
in respect of principal in an aggregate amount equal to the Original
Principal Amount for such Class, together with all interest accrued
thereon through such date.
(g) Except with respect to the final payment upon retirement of a
Note or Certificate, the Servicer shall on each Distribution Date instruct
the Relevant Trustee to pay or distribute to each Securityholder of record
on the related Record Date by check mailed to such Securityholder at the
address of such Holder appearing in the Certificate Register or Note
Register, as the case may be (or, if DTC, its nominee or a Clearing Agency
is the relevant Holder, by wire transfer of immediately available funds or
pursuant to other arrangements), the amount to be paid or distributed to
such Securityholder pursuant to such Holder's Note or Certificate. With
respect to the final payment upon retirement of a Note or Certificate, the
Servicer shall on the relevant final Distribution Date instruct the
Relevant Trustee to pay or distribute the amounts due thereon only upon
delivery for cancellation of the certificate representing such Note or
Certificate in accordance with the Indenture or the Trust Agreement, as
the case may be.
SECTION 5.07 Reserve Account.
(a) In order to assure that certain amounts will be available to
make required payments to Noteholders, the Seller will, pursuant to the
Securities Account Control
43 (Nissan 2004-B Sale and Servicing Agreement)
Agreement, establish and maintain with the Securities Intermediary a
segregated trust account (the "Reserve Account") in the name of the
Indenture Trustee which will include the money and other property
deposited and held therein pursuant to Sections 5.06(c), 5.06(d), 5.06(e)
and this Section 5.07. On or prior to the Closing Date, the Seller shall
deposit an amount equal to the Reserve Account Initial Deposit into the
Reserve Account. As, and to the extent, set forth in Section 5.06(c), the
Relevant Trustee will deposit Available Amounts into the Reserve Account
on each Distribution Date as provided in the Servicer's Certificate, until
the amount on deposit therein equals the Specified Reserve Account
Balance. On each Distribution Date, to the extent that amounts in the
Collection Account and/or Available Amounts, as the case may be, are
insufficient to fully fund the payments and distributions described in
clauses (i) through (vi) of Section 5.06(c), clauses (i) through (vii) of
Section 5.06(d), or clauses (i) through (ix) of Section 5.06(e), the
Relevant Trustee will withdraw amounts then on deposit in the Reserve
Account, up to the amounts of any such deficiencies, and deposit such
amounts into the Collection Account for application pursuant to such
clauses. On each Distribution Date, as provided in the Servicer's
Certificate, the Relevant Trustee will release to the Seller any amounts
remaining on deposit in the Reserve Account in excess of the Specified
Reserve Account Balance. Upon the payment in full of the Notes under the
Indenture, as directed in writing by the Servicer, the Relevant Trustee
will release to the Seller any amounts remaining on deposit in the Reserve
Account, and all rights to the Reserve Account and all other collateral
registered or held therein shall revert to the Seller in accordance with
the Securities Account Control Agreement. Upon any such distribution to
the Seller, the Issuer, Owner Trustee, Certificateholders, Indenture
Trustee and Noteholders will have no further rights in, or claims to, such
amounts.
(b) All amounts held in the Reserve Account shall be invested by the
Relevant Trustee, as directed in writing by the Servicer, in Eligible
Investments; provided that if (x) the Servicer shall have failed to give
investment directions for any funds on deposit in the Reserve Account to
the Indenture Trustee by 5:00 p.m. Eastern Time (or such other time as may
be agreed by the Servicer and the Indenture Trustee) on any Business Day,
or (y) a Default or Event of Default shall have occurred and be continuing
with respect to the Notes but the Notes shall not have been declared due
and payable pursuant to the Indenture, or (z) the Notes shall have been
declared due and payable following an Event of Default, but amounts
collected or receivable from the Trust Estate are being applied pursuant
to Section 5.05 of the Indenture as if there had not been such a
declaration, then the Indenture Trustee shall, to the fullest extent
practicable, invest and reinvest funds in the Reserve Account in one or
more Eligible Investments specified in clauses (i), (iv) or (vi) of the
definition of Eligible Investments. All such Eligible Investments shall
mature not later than the Business Day preceding the next Distribution
Date, in such manner that such amounts invested shall be available to make
the required deposits on the Distribution Date; provided that if permitted
by the Rating Agencies, monies on deposit therein may be invested in
Eligible Investments that mature later than the Business Day preceding the
next Distribution Date. The Servicer will not direct the Relevant Trustee
to make any investment of any funds or to sell any investment held in the
Reserve Account unless the security interest granted and perfected in such
account will continue to be perfected in such investment or the proceeds
of such sale, in either case without any further action by any Person,
and, in connection with any direction to the Relevant
44 (Nissan 2004-B Sale and Servicing Agreement)
Trustee to make any such investment or sale, if requested by the Relevant
Trustee, the Servicer shall deliver to the Relevant Trustee an Opinion of
Counsel, acceptable to the Relevant Trustee, to such effect. Earnings, if
any, on investment of funds in the Reserve Account shall be paid to the
Seller, and losses and any investment expenses shall be charged against
the funds on deposit therein. The Relevant Trustee shall incur no
liability for the selection of investments or for losses thereon absent
its own negligence or willful misfeasance. The Relevant Trustee shall have
no liability in respect of losses incurred as a result of the liquidation
of any investment prior to its stated maturity date or the failure of the
Servicer to provide timely written investment directions.
(c) Subject to the right of the Relevant Trustee to make withdrawals
therefrom, as directed by the Servicer, for the purposes and in the
amounts set forth in Section 5.06 and 5.07(a), the Reserve Account and all
funds held therein shall be the property of the Seller and not the
property of the Issuer, the Owner Trustee or the Indenture Trustee. The
Issuer, the Owner Trustee, the Seller and the Indenture Trustee will treat
the Reserve Account, all funds therein and all net investment income with
respect thereto as assets of the Seller for federal income tax and all
other purposes.
(d) The Seller hereby grants to the Owner Trustee and the Indenture
Trustee for the benefit of the Noteholders a security interest in the
Reserve Account and all funds (including Eligible Investments) in the
Reserve Account (including the Reserve Account Initial Deposit) and the
proceeds thereof to secure the payment of interest on and principal of the
Notes, and the Owner Trustee and the Indenture Trustee shall have all of
the rights of a secured party under the UCC with respect thereto; provided
that all income from the investment of funds in the Reserve Account, and
the right to receive such income are retained by the Seller and are not
transferred, assigned or otherwise conveyed hereunder. If for any reason
the Reserve Account is no longer an Eligible Deposit Account, the Relevant
Trustee shall promptly cause the Reserve Account to be moved to another
institution or otherwise changed so that the Reserve Account becomes an
Eligible Deposit Account.
(e) Neither the Owner Trustee nor the Indenture Trustee shall enter
into any subordination or intercreditor agreement with respect to the
Reserve Account.
SECTION 5.08 Yield Supplement Account.
(a) In order to assure that sufficient amounts to make required
distributions of interest to Noteholders will be available, the Owner
Trustee will, pursuant to the Securities Account Control Agreement and the
Yield Supplement Agreement, establish and maintain with the Securities
Intermediary a segregated trust account (the "Yield Supplement Account")
in the name of the Indenture Trustee which will include the money and
other property deposited and held therein pursuant to the Yield Supplement
Agreement and this Section 5.08.
(b) On or prior to the Closing Date, the Seller shall make a capital
contribution to the Trust by depositing an amount equal to the Initial
Yield Supplement Amount into the Yield Supplement Account pursuant to the
Yield Supplement Agreement. On each
45 (Nissan 2004-B Sale and Servicing Agreement)
Distribution Date, to the extent amounts then on deposit in the Yield
Supplement Account are sufficient therefor, the Relevant Trustee will
withdraw amounts then on deposit in the Yield Supplement Account in an
amount equal to the Yield Supplement Deposit with respect to such
Distribution Date and deposit such amounts into the Collection Account for
application pursuant to Section 5.06. On each Distribution Date, if the
amount on deposit in the Yield Supplement Account (after giving effect to
all deposits thereto or withdrawals therefrom on such Distribution Date)
is greater than the Required Yield Supplement Amount, the Relevant Trustee
will deposit such excess into the Collection Account for distribution by
the Relevant Trustee in accordance with the terms of Section 5.06(c). Upon
payment in full of the Notes under the Indenture, as directed in writing
by the Servicer, the Indenture Trustee will release any amounts remaining
on deposit in the Yield Supplement Account, and all rights to the Yield
Supplement Account and all other collateral registered or held therein to
the Seller.
(c) All amounts held in the Yield Supplement Account shall be
invested by the Relevant Trustee, as directed in writing by the Servicer,
in Eligible Investments; provided that if (x) the Servicer shall have
failed to give investment directions for any funds on deposit in the Yield
Supplement Account to the Indenture Trustee by 5:00 p.m. Eastern Time (or
such other time as may be agreed by the Servicer and the Indenture
Trustee) on any Business Day, or (y) a Default or Event of Default shall
have occurred and be continuing with respect to the Notes but the Notes
shall not have been declared due and payable pursuant to the Indenture, or
(z) the Notes shall have been declared due and payable following an Event
of Default, but amounts collected or receivable from the Trust Estate are
being applied pursuant to Section 5.05 of the Indenture as if there had
not been such a declaration, then the Indenture Trustee shall, to the
fullest extent practicable, invest and reinvest funds in the Yield
Supplement Account in one or more Eligible Investments specified in
clauses (i), (iv) or (vi) of the definition of Eligible Investments. All
such Eligible Investments shall mature not later than the Business Day
preceding the next Distribution Date, in such manner that such amounts
invested shall be available to make the required deposits on the
Distribution Date; provided, that if permitted by the Rating Agencies,
monies on deposit therein may be invested in Eligible Investments that
mature later than the Business Day preceding the next Distribution Date.
The Servicer will not direct the Relevant Trustee to make any investment
of any funds or to sell any investment held in the Yield Supplement
Account unless the security interest granted and perfected in such account
will continue to be perfected in such investment or the proceeds of such
sale, in either case without any further action by any Person, and, in
connection with any direction to the Relevant Trustee to make any such
investment or sale, if requested by the Relevant Trustee, the Servicer
shall deliver to the Relevant Trustee an Opinion of Counsel, acceptable to
the Relevant Trustee, to such effect. Earnings, if any, on investment of
funds in the Yield Supplement Account shall be deposited in the Collection
Account on each Distribution Date, and losses and any investment expenses
shall be charged against the funds on deposit therein. The Relevant
Trustee shall incur no liability for the selection of investments or for
losses thereon absent its own negligence or willful misfeasance. The
Relevant Trustee shall have no liability in respect of losses incurred as
a result of the liquidation of any investment prior to its stated maturity
date or the failure of the Servicer to provide timely written investment
directions.
46 (Nissan 2004-B Sale and Servicing Agreement)
(d) The Trust, the Owner Trustee, the Seller and the Indenture
Trustee will treat the Yield Supplement Account, all funds therein and all
net investment income with respect thereto as assets of the Trust for
federal income tax and all other purposes.
(e) Pursuant to the Yield Supplement Agreement and the Securities
Account Control Agreement, the Trust will grant to the Indenture Trustee,
for the benefit of the Noteholders, a security interest in all funds
(including Eligible Investments) in the Yield Supplement Account
(including the Initial Yield Supplement Amount) and the proceeds thereof
to secure the payment of interest on the Notes, and the Indenture Trustee
shall have all of the rights of a secured party under the UCC with respect
thereto. If for any reason the Yield Supplement Account is no longer an
Eligible Deposit Account, the Relevant Trustee shall promptly cause the
Yield Supplement Account to be moved to another institution or otherwise
changed so that the Yield Supplement Account becomes an Eligible Deposit
Account.
(f) Neither the Owner Trustee nor the Indenture Trustee shall enter
into any subordination or intercreditor agreement with respect to the
Yield Supplement Account.
SECTION 5.09 Statements to Certificateholders and Noteholders.
(a) On each Distribution Date, the Indenture Trustee shall include
with each distribution to each Noteholder and the Owner Trustee shall
include with each distribution to each Certificateholder a statement
(which statement shall also be provided to each Rating Agency) based on
information in the Servicer's Certificate furnished pursuant to Section
4.08, setting forth for the Collection Period relating to such
Distribution Date the following information:
(i) the amount of the payment allocable to the principal
amount of each Class of Notes and to the Certificate Balance;
(ii) the amount of the payment allocable to interest on or
with respect to each Class of Notes;
(iii) the amount of the distribution allocable to the Yield
Supplement Deposit, if any, plus reinvestment income, if any, on the
Yield Supplement Account;
(iv) the Pool Balance as of the close of business on the last
day of the related Collection Period;
(v) the amount of the Base Servicing Fee paid to the
Servicer with respect to the related Collection Period, the amount
of any unpaid Base Servicing Fees and the change in such amount from
that of the prior Distribution Date;
(vi) the Noteholders' Interest Carryover Shortfall and the
Noteholders' Principal Carryover Shortfall, if any, with respect to
each Class of Notes, and the change in such amounts from the
preceding Distribution Date;
47 (Nissan 2004-B Sale and Servicing Agreement)
(vii) the Outstanding Amount, the Note Factor and the Note
Pool Factor with respect to each Class of Notes, and the Certificate
Balance, the Certificate Factor and the Certificate Pool Factor with
respect to the Certificates, in each case after giving effect to all
payments in respect of principal on such Distribution Date;
(viii) the amount of Advances made in respect of the
Receivables during the related Collection Period and the amount of
unreimbursed Advances on such Distribution Date;
(ix) the balance of the Reserve Account and the Yield
Supplement Account on such Distribution Date, after giving effect to
changes thereto on such Distribution Date and the amount of such
changes;
(x) the amount of defaults and net losses on the Receivables
for the related Collection Period; and
(xi) the number of delinquencies on the Receivables as a
percentage of the number of Receivables.
(b) Copies of such statements may be obtained by the
Certificateholders or the Note Owners from the Owner Trustee or the
Indenture Trustee, as the case may be, by a request in writing. The Owner
Trustee or the Indenture Trustee, as the case may be, shall provide such
copies promptly after such requests.
SECTION 5.10 Net Deposits. So long as NMAC is the Servicer, 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. Accounts between the Seller and the Servicer
will be adjusted accordingly. Nonetheless, the Servicer shall account for all of
the above described remittances and distributions (except for the Supplemental
Servicing Fee to the extent that the Servicer is entitled to retain such
amounts) in the Servicer's Certificate as if the amounts were deposited and/or
transferred separately.
SECTION 5.11 Swap Agreement. Pursuant to the Trust Agreement, the Issuer
may, from time to time, as directed by the Certificateholders by means of notice
to the Administrator, enter into a currency Swap Agreement with a Swap
Counterparty to swap amounts payable to Certificateholders from U.S. dollars to
Japanese yen; provided, that (1) at the time the Issuer enters into the Swap
Agreement, the rating agencies have confirmed the then-existing ratings of the
Notes, and (2) any payments to the Swap Counterparty (including termination
payments) are payable only from amounts that are otherwise payable to the
Certificateholders. Any payments received by the Issuer from the Swap
Counterparty under such a Swap Agreement shall not be deposited in the
Collection Account and shall be paid by the Indenture Trustee directly to or to
the order of the Certificateholders on the related Distribution Date. In
connection with executing any such Swap Agreement, the Issuer, Indenture
Trustee, Owner Trustee, Seller and Servicer will enter into an amendment to this
Sale and Servicing Agreement, subject to Section 10.01 in a form approved by the
Certificateholders, that will specify the creation of any necessary accounts
48 (Nissan 2004-B Sale and Servicing Agreement)
and modifications of any provisions hereof to the extent necessary or
appropriate to effectuate the intention of such Swap Agreement.
ARTICLE VI
The Seller
SECTION 6.01 Representations of Seller. The Seller makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of this
Agreement and as of the Closing Date, and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Seller has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware, with corporate power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, corporate power, authority and legal right to
acquire and own the Receivables. The location of the Seller's chief
executive office and principal place of business is Torrance, California.
(b) Due Qualification. The Seller is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications and where the failure to so qualify would have a material
adverse effect on the ability of the Seller to perform its obligations
under this Agreement.
(c) Power and Authority. The Seller has the corporate power and
authority to execute and deliver this Agreement and to carry out its
terms. The Seller has full power and authority to sell and assign the
property to be sold and assigned to and deposited as part of the Owner
Trust Estate, and has duly authorized such sale and assignment to the
Trust by all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Seller by
all necessary corporate action.
(d) Valid Sale; Binding Obligations. This Agreement evidences a
valid sale, transfer and assignment of the Receivables, enforceable
against creditors of and purchasers from the Seller (other than a good
faith purchaser for value in the ordinary course of business who takes
actual possession of one or more Receivables); and this Agreement is a
legal, valid and binding obligation of the Seller enforceable in
accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general equitable principles.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or by-laws of the Seller, or
49 (Nissan 2004-B Sale and Servicing Agreement)
any indenture, agreement or other instrument to which the Seller is a
party or by which it shall be bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than the Basic
Documents); nor violate any law or, to the best of the Seller's knowledge,
any order, rule or regulation applicable to the Seller of any court or of
any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Seller or its
properties; which breach, default, conflict, Lien or violation in any case
would have a material adverse effect on the ability of the Seller to
perform its obligations under this Agreement.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the best of the Seller's knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its properties: (i)
asserting the invalidity of this Agreement, the Trust Agreement, the
Indenture, the Securities Account Control Agreement, the Yield Supplement
Agreement, the Certificates or the Notes; (ii) seeking to prevent the
issuance of the Certificates or the Notes or the consummation of any of
the transactions contemplated by this Agreement, the Trust Agreement, the
Indenture, the Securities Account Control Agreement or the Yield
Supplement Agreement; (iii) seeking any determination or ruling that would
materially and adversely affect the performance by the Seller of its
obligations under, or the validity or enforceability of, this Agreement,
the Trust Agreement, the Indenture, the Securities Account Control
Agreement, the Yield Supplement Agreement, the Certificates or the Notes;
or (iv) relating to the Seller and that would adversely affect the federal
or any state income tax attributes of the Issuer, the Certificates or the
Notes.
SECTION 6.02 Additional Covenants of the Seller.
(a) The Seller agrees with the Certificateholders, the Note Owners
and each Rating Agency that the Seller shall not issue any securities or
deposit assets into a trust that issues any securities, the issuance of
which could reasonably be expected to materially and adversely affect the
rating of any Class of Notes unless it shall have first obtained the
written consent of each Rating Agency to the effect that such issuance
will not materially adversely affect such rating; provided that, the
issuance of another series of certificates or notes pursuant to agreements
with terms substantially similar to the terms of the Basic Documents shall
not be deemed to materially and adversely affect the ratings on the Notes.
The Seller shall provide a copy of any such consent to the Owner Trustee
and the Indenture Trustee.
(b) The Seller shall not do any of the following (without the prior
written consent of each Rating Agency (other than Moody's) (which consent
shall be to the effect that the acts set forth below shall not affect
materially adversely the rating on any Class of Notes) and, upon the
Seller's receipt of such written consent from each Rating Agency (other
than Moody's), the Owner Trustee and the Indenture Trustee shall, without
any exercise of its own discretion, also provide its written consent to
the Seller (promptly after the occurrence of any of the following, the
Seller shall provide notice of such occurrence to Moody's, so long as
Xxxxx'x is then rating any outstanding Notes)):
50 (Nissan 2004-B Sale and Servicing Agreement)
(1) engage in any business or activity other than those set
forth in Article Three of the Seller's Certificate of Incorporation,
as amended;
(2) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (A) any indebtedness
incurred in connection with the issuance of any certificates or
notes (as defined in the Seller's Certificate of Incorporation),
provided that any such future indebtedness incurred in connection
with the issuance of any certificates or notes must be rated at
least with the same ratings given the outstanding certificates or
notes secured or supported by assets acquired by the Seller from
NMAC by each nationally recognized statistical rating organization
that has rated such outstanding certificates or notes or, prior to
the issuing of such future indebtedness incurred in connection with
such certificates or notes, the Seller shall have received
confirmation from each nationally recognized statistical rating
organization that has rated such outstanding certificates or notes
that the ratings of such outstanding certificates or notes will not
be adversely affected by the issuance of such future indebtedness;
and (B) (i) any indebtedness to NMAC or any of its Affiliates
incurred in connection with the acquisition of receivables, which
indebtedness shall be fully subordinated (and which shall provide
for payment only after payment in respect of all outstanding rated
debt) and nonrecourse against any assets of the Seller other than
the assets pledged to secure such indebtedness, (ii) such
indebtedness does not constitute a claim against the Seller in the
event the assets pledged to secure such indebtedness are
insufficient to pay such indebtedness, (iii) holders of such
indebtedness agree that they have no rights in any assets of the
Seller other than the assets pledged to secure such indebtedness,
and (iv) to the extent that any holder of such indebtedness is
deemed to have any interest in any assets of the Seller other than
the assets pledged to secure such indebtedness, holders of such
indebtedness agree that their interest is subordinate to claims or
rights of holders of other indebtedness issued by the Seller, and
that such agreement constitutes a subordination agreement for
purposes of Section 510(a) of the Bankruptcy Code;
(3) dissolve or liquidate, in whole or in part, consolidate
or merge with or into any other entity or convey or transfer its
properties and assets substantially as an entirety to any entity,
unless:
(i) the entity (if other than the Seller) formed or
surviving the consolidation or merger or which acquires the
properties and assets of the Seller is organized and existing under
the laws of the State of Delaware, expressly assumes the due and
punctual payment of all obligations of the Seller, including those
obligations of the Seller under this Agreement and the Basic
Documents, and has a Certificate of Incorporation containing
provisions identical to the provisions of Article Three, Article
Four and Article Fifteen of the Seller's Certificate of
Incorporation, as amended;
(ii) immediately after giving effect to the
transaction, no default or event of default has occurred and is
continuing under any indebtedness of the Seller or any agreements
relating to such indebtedness;
51 (Nissan 2004-B Sale and Servicing Agreement)
(iii) the entity (if other than the Seller) formed or
surviving the consolidation or merger or which acquires the
properties and assets of the Seller agrees that (i) it shall
maintain its funds or assets as identifiable and not commingle its
funds or assets with those of any direct or ultimate parent of such
entity and pay from its assets all obligations and indebtedness of
any kind incurred by it, (ii) it shall maintain bank accounts,
corporate records and books of account separate from those of any
direct or ultimate parent of such entity and (iii) the business
affairs of such entity will be managed by or under the direction of
its board of directors and it will conduct its business from an
office space separate from any direct or ultimate parent of such
entity; and
(iv) each nationally recognized statistical rating
organization that has rated any issue of certificates or notes
secured or supported by assets acquired by the Seller from NMAC
shall confirm in writing that the rating of such certificates or
notes shall not be adversely affected by such consolidation or
merger;
(4) without the affirmative vote of 100% of the members of
the board of directors of the Seller, institute proceedings to be
adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it, or file a petition
seeking or consent to reorganization or relief under any applicable
federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the corporation or all
or substantially all of its property, or make any assignment for the
benefit of creditors;
(5) cease to have an "Independent Director," as defined in
the Seller's charter;
(6) without the affirmative vote of at least one
"Independent Director," as defined in the Seller's charter, enter
into any transactions with the Servicer not in the ordinary course
of business; or
(7) modify any provision of the "Restricted Articles," as
defined in the Seller's Certificate of Incorporation, of the
Seller's Certificate of Incorporation, as amended, in any material
respect.
SECTION 6.03 Liability of Seller; Indemnities. The Seller shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Trust,
the Owner Trustee, the Indenture Trustee from and against any taxes that
may at any time be asserted against any such Person with respect to, as of
the date hereof, the sale of the Receivables to the Trust or the issuance
and original sale of the Notes and the Certificates, including any sales,
gross receipts, general corporation, tangible personal property, privilege
or license taxes (but, in the case of the Trust, not including any taxes
52 (Nissan 2004-B Sale and Servicing Agreement)
asserted with respect to ownership of the Receivables or federal or other
income taxes arising out of the transactions contemplated by this
Agreement and the Basic Documents) and costs and expenses in defending
against the same.
(b) The Seller shall indemnify, defend and hold harmless the Owner
Trustee and the Indenture Trustee, the Trust, the Certificateholders and
the Noteholders from and against any loss, liability or expense incurred
by reason of (i) the Seller's willful misfeasance, bad faith or negligence
in the performance of its duties under this Agreement, or by reason of
reckless disregard of its obligations and duties under this Agreement, and
(ii) the Seller's or the Issuer's violation of federal or state securities
laws in connection with the registration or the sale of the Certificates
and the Notes.
Indemnification under this Section 6.03 shall survive the
termination of this Agreement and shall include reasonable fees and expenses of
counsel and expenses of litigation. If the Seller shall have made any indemnity
payment to any Person entitled thereto pursuant to this Section 6.03 and such
Person thereafter shall collect any of such amounts from others, such Person
shall promptly repay such amounts to the Seller, without interest (except to the
extent the recipient collects interest from others).
Promptly after receipt by a party indemnified under this Section
6.03 (for purposes of this paragraph, an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party will, if a claim is to be
made in respect thereof against the Seller under this Section 6.03, notify the
Seller of the commencement thereof. If any such action is brought against any
Indemnified Party under this Section 6.03 and it notifies the Seller of the
commencement thereof, the Seller will assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party (who may, unless there is, as
evidenced by an Opinion of Counsel to the Indemnified Party stating that there
is, a conflict of interest, be counsel to the Seller), and the Seller will not
be liable to such Indemnified Party under this Section 6.03 for any legal or
other expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof, other than reasonable costs of investigation. The
obligations set forth in this Section 6.03 shall survive the termination of this
Agreement or the resignation or removal of the Owner Trustee or the Indenture
Trustee and shall include reasonable fees and expenses of counsel and expenses
of litigation. If the Seller shall have made any indemnity payments pursuant to
this Section 6.03 and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall promptly
repay such amounts to the Seller, without interest (except to the extent
received by such Person).
SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations
of, Seller. Subject to Section 6.02, any Person (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger, conversion or
consolidation to which the Seller shall be a party, (iii) succeeding to the
business of the Seller or (iv) that is a corporation more than 50% of the voting
stock of which is owned directly or indirectly by Nissan, which Person in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of the Seller under this Agreement, will be the successor to the
Seller under this Agreement without the execution or filing of any document or
any further act on the part of any of the parties to this Agreement; provided,
however, that (x) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 6.01 shall have been
breached and no
53 (Nissan 2004-B Sale and Servicing Agreement)
Servicer Default, and no event that, after notice or lapse of time, or both,
would become a Servicer Default, shall have occurred and be continuing, (y) the
Seller shall have delivered to the Owner Trustee and the Indenture Trustee an
Officer's Certificate stating that such consolidation, merger or succession and
such agreement or assumption comply with this Section 6.04 and that all
conditions precedent, if any, provided for in this Agreement relating to such
transaction have been complied with and (z) the Seller shall have delivered to
the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A)
stating that, in the opinion of such counsel, based on customary qualifications
and assumptions, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
perfect the interest of the Issuer and the Indenture Trustee, respectively, in
the Receivables, and reciting the details of such filings, or (B) stating that,
in the opinion of such counsel, no such action shall be necessary to preserve
and protect such interest. The Seller shall provide notice of any merger,
consolidation or succession pursuant to this Section 6.04 to each Rating Agency.
Notwithstanding anything herein to the contrary, the execution of the foregoing
agreement of assumption and compliance with clauses (x), (y) and (z) above shall
be conditions to the consummation of the transactions referred to in clauses
(i), (ii), (iii) or (iv) above.
SECTION 6.05 Limitation on Liability of Seller and Others.
(a) Neither the Seller nor any of the directors, officers, employees
or agents of the Seller shall be under any liability to the Trust, the
Certificateholders or the Noteholders, except as provided under this
Agreement, for any action taken or for refraining from the taking of any
action pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Seller or any such
person against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties
or by reason of reckless disregard of obligations and duties under this
Agreement. The Seller and any director, officer, employee or agent of the
Seller may rely in good faith on the advice of counsel or on any document
of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising under this Agreement.
(b) The Seller shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to its
obligations under this Agreement, and that in its opinion may cause it to
incur any expense or liability; provided, however, that the Servicer may
undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement and the rights and duties of the parties to this
Agreement and the interests of the Certificateholders and the Noteholders
under this Agreement. In such event, the legal expenses and costs of such
action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Servicer, and the Servicer will not be entitled to be
reimbursed therefor.
SECTION 6.06 Seller May Own Certificates or Notes. The Seller and any
Affiliate of the Seller may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights as it would have
if it were not the Seller or an Affiliate thereof, except as otherwise provided
in the Basic Documents. Certificates or Notes so owned by or pledged to the
Seller or such controlling or commonly controlled Person shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority or
54 (Nissan 2004-B Sale and Servicing Agreement)
distinction as among all of the Certificates or the Notes, as the case may be,
except as otherwise expressly provided in the Basic Documents.
ARTICLE VII
The Servicer
SECTION 7.01 Representations of Servicer. The Servicer makes the following
representations on which the Issuer is deemed to have relied in acquiring the
Receivables. The representations speak as of the execution and delivery of this
Agreement and as of the Closing Date and shall survive the sale of the
Receivables to the Issuer and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
(a) Organization and Good Standing. The Servicer is duly organized
and is validly existing as a corporation in good standing under the laws
of the state of its incorporation, with corporate power and authority to
own its properties and to conduct its business as such properties are
currently owned and such business is presently conducted, and had at all
relevant times, and has, corporate power, authority and legal right to
acquire, own, sell and service the Receivables and to hold the Receivable
Files as custodian on behalf of the Trust and the Indenture Trustee. The
location of the Servicer's chief executive office and principal place of
business is Torrance, California.
(b) Due Qualification. The Servicer is duly qualified to do business
as a foreign corporation in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business relating to the servicing
of the Receivables as required by this Agreement shall require such
qualifications and where the failure to so qualify would have a material
adverse effect on the ability of the Servicer to perform its obligations
under this Agreement.
(c) Power and Authority. The Servicer has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the
execution, delivery and performance of this Agreement have been duly
authorized by the Servicer by all necessary corporate action.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Servicer enforceable in accordance with its
terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and
by general equitable principles.
(e) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or by-laws of the Servicer, or any indenture,
agreement or other instrument to which the Servicer is a party or by which
it shall be bound; nor result in the creation or imposition of any Lien
upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument
55 (Nissan 2004-B Sale and Servicing Agreement)
(other than the Basic Documents); nor violate any law or any order, rule
or regulation applicable to the Servicer of any court or of any federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its properties;
which breach, default, conflict, Lien or violation in any case would have
a material adverse effect on the ability of the Seller to perform its
obligations under this Agreement.
(f) No Proceedings. There are no proceedings or investigations
pending, or, to the best of the Servicer's knowledge, threatened, before
any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its properties:
(i) asserting the invalidity of this Agreement, the Trust Agreement, the
Indenture, the Purchase Agreement, the Certificates or the Notes; (ii)
seeking to prevent the issuance of the Certificates or the Notes or the
consummation of any of the transactions contemplated by this Agreement,
the Trust Agreement, the Indenture or the Purchase Agreement; (iii)
seeking any determination or ruling that would materially and adversely
affect the performance by the Servicer of its obligations under, or the
validity or enforceability of, this Agreement, the Trust Agreement, the
Indenture, the Purchase Agreement, the Certificates or the Notes; or (iv)
relating to the Servicer and that would adversely affect the federal or
any state income tax attributes of the Certificates or the Notes.
SECTION 7.02 Indemnities of Servicer. The Servicer shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer under this Agreement:
(a) The Servicer shall defend, indemnify and hold harmless
the Owner Trustee, the Indenture Trustee, the Trust, the
Certificateholders and the Noteholders from and against any and all costs,
expenses, losses, damages, claims and liabilities (collectively,
"Damages") arising out of or resulting from the use, ownership or
operation by the Servicer or any of its Affiliates (other than the Trust)
of a Financed Vehicle.
(b) The Servicer shall indemnify, defend and hold harmless
the Owner Trustee, the Indenture Trustee, the Trust, the
Certificateholders and the Noteholders from and against any and all
Damages to the extent that such Damage arose out of, or was imposed upon,
the Owner Trustee, the Indenture Trustee, the Trust, the
Certificateholders or the Noteholders through the negligence, willful
misfeasance or bad faith of the Servicer in the performance of its duties
under this Agreement or by reason of reckless disregard of its obligations
and duties under this Agreement.
(c) The Servicer shall indemnify, defend and hold harmless
the Owner Trustee and the Indenture Trustee from and against all Damages
arising out of or incurred in connection with the acceptance or
performance of the trusts and duties herein contained, except to the
extent that such Damage: (i) shall be due to the willful misfeasance, bad
faith, or negligence (except for errors in judgment) of the Owner Trustee
or the Indenture Trustee, as the case may be; (ii) relates to any tax
other than the taxes with respect to which the Seller shall be required to
indemnify the Owner Trustee or the Indenture Trustee; (iii) shall arise
from the breach by the Owner Trustee or the
56 (Nissan 2004-B Sale and Servicing Agreement)
Indenture Trustee of any of their respective representations or warranties
set forth in the Basic Documents; (iv) shall be one as to which the Seller
is required to indemnify the Owner Trustee or the Indenture Trustee and as
to which such Person has received payment of indemnity from the Seller; or
(v) shall arise out of or be incurred in connection with the performance
by the Indenture Trustee of the duties of Successor Servicer hereunder.
Promptly after receipt by a party indemnified under this Section
7.02 (for purposes of this paragraph, an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party will, if a claim in respect
thereof is to be made against the Servicer under this Section 7.02, notify the
Servicer of the commencement thereof. If any such action is brought against any
Indemnified Party under this Section 7.02 and it notifies the Servicer of the
commencement thereof, the Servicer will assume the defense thereof, with counsel
reasonably satisfactory to such Indemnified Party (who may, unless there is, as
evidenced by an Opinion of Counsel to the Indemnified Party stating that there
is, a conflict of interest, be counsel to the Servicer), and the Servicer will
not be liable to such Indemnified Party under this Section 7.02 for any legal or
other expenses subsequently incurred by such Indemnified Party in connection
with the defense thereof, other than reasonable costs of investigation. The
obligations set forth in this Section 7.02 shall survive the termination of this
Agreement or the resignation or removal of the Servicer, the Owner Trustee or
the Indenture Trustee and shall include reasonable fees and expenses of counsel
and expenses of litigation. If the Servicer shall have made any indemnity
payments pursuant to this Section 7.02 and the Person to or on behalf of whom
such payments are made thereafter collects any of such amounts from others, such
Person shall promptly repay such amounts to the Servicer, without interest
(except to the extent received by such Person).
Indemnification under this Section 7.02 by NMAC (or any successor
thereto pursuant to Section 7.03) as Servicer, with respect to the period such
Person was the Servicer, shall survive the termination of such Person as
Servicer or a resignation by such Person as Servicer as well as the termination
of this Agreement and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer shall have made any indemnity payments
pursuant to this Section 7.02 and the recipient thereafter collects any of such
amounts from others, the recipient shall promptly repay such amounts to the
Servicer, without interest (except to the extent the recipient collects interest
from others).
SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations
of, Servicer. Any Person (i) into which the Servicer may be merged or
consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Servicer shall be a party, (iii) succeeding to the business of the
Servicer, or (iv) so long as NMAC acts as Servicer, that is a corporation more
than 50% of the voting stock of which is owned directly or indirectly by Nissan,
which Person in any of the foregoing cases executes an agreement of assumption
to perform every obligation of the Servicer under this Agreement, will be the
successor to the Servicer under this Agreement without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement; provided, however, that (x) immediately after giving effect to such
transaction, no Servicer Default, and no event which, after notice or lapse of
time, or both, would become a Servicer Default, shall have occurred and be
continuing, (y) the Servicer shall have delivered to the Owner Trustee and the
Indenture Trustee an Officer's
57 (Nissan 2004-B Sale and Servicing Agreement)
Certificate stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section 7.03 and that all conditions
precedent provided for in this Agreement relating to such transaction have been
complied with and (z) the Servicer shall have delivered to the Owner Trustee and
the Indenture Trustee an Opinion of Counsel either (A) stating that, in the
opinion of such counsel, based on customary qualifications and assumptions, all
financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Issuer and the Indenture Trustee in the Receivables, and
reciting the details of such filings, or (B) stating that, in the opinion of
such counsel, no such action shall be necessary to perfect such interest. The
Servicer shall provide notice of any merger, consolidation or succession
pursuant to this Section 7.03 to each Rating Agency. Notwithstanding anything
herein to the contrary, the execution of the foregoing agreement of assumption
and compliance with clauses (x), (y) and (z) above shall be conditions to the
consummation of the transactions referred to in clauses (i), (ii), (iii) or (iv)
above.
SECTION 7.04 Limitation on Liability of Servicer and Others.
(a) Neither the Servicer nor any of the directors, officers,
employees or agents of the Servicer shall be under any liability to the
Trust, the Certificateholders or the Noteholders, except as provided under
this Agreement, for any action taken or for refraining from the taking of
any action pursuant to this Agreement or for errors in judgment; provided,
however, that this provision shall not protect the Servicer or any such
person against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of duties
or by reason of reckless disregard of obligations and duties under this
Agreement. The Servicer and any director, officer, employee or agent of
the Servicer may rely in good faith on the advice of counsel or on any
document of any kind, prima facie properly executed and submitted by any
Person respecting any matters arising under this Agreement.
(b) Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action
that shall not be incidental to its duties to service the Receivables in
accordance with this Agreement, and that in its opinion may cause it to
incur any expense or liability; provided, however, that the Servicer may
undertake any reasonable action that it may deem necessary or desirable in
respect of the Basic Documents and the rights and duties of the parties to
the Basic Documents and the interests of the Certificateholders under this
Agreement and the Noteholders under the Indenture. In such event, the
legal expenses and costs of such action and any liability resulting
therefrom shall be expenses, costs and liabilities of the Servicer, and
the Servicer will not be entitled to be reimbursed therefor.
SECTION 7.05 NMAC Not To Resign as Servicer. Subject to the provisions of
Section 7.03, NMAC shall not resign from the obligations and duties hereby
imposed on it as Servicer under this Agreement except upon determination that
the performance of its duties under this Agreement shall no longer be
permissible under applicable law. Notice of any such determination permitting
the resignation of NMAC shall be communicated to the Owner Trustee and the
Indenture Trustee at the earliest practicable time (and, if such communication
is not in writing, shall be confirmed in writing at the earliest practicable
time), and any such
58 (Nissan 2004-B Sale and Servicing Agreement)
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Owner Trustee and the Indenture Trustee concurrently with or
promptly after such notice. No such resignation shall become effective until the
Indenture Trustee or a Successor Servicer shall (i) have taken the actions
required by Section 8.01 of this Agreement to effect the termination of the
responsibilities and rights of the predecessor Servicer under this Agreement,
including the transfer to the Successor Servicer for administration by it of all
cash amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received with respect to a Receivable and the
delivery of the Receivable Files, and the related accounts and records
maintained by the Servicer, (ii) have assumed the responsibilities and
obligations of NMAC as Servicer under this Agreement in accordance with Section
8.02 of this Agreement (other than the initial Servicer's obligation to make
Advances), and (iii) become the Administrator under the Administration Agreement
in accordance with Section 8 of such Agreement.
ARTICLE VIII
Default
SECTION 8.01 Servicer Default. If any one of the following events (a
"Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer (or the Seller, so long as NMAC is
the Servicer) to deliver to the Relevant Trustee for deposit in any of the
Accounts any required payment or to direct the Relevant Trustee to make
any required distributions therefrom, which failure continues unremedied
for a period of three Business Days after (i) receipt by the Servicer (or
the Seller, so long as NMAC is the Servicer) of written notice of such
failure given by the Owner Trustee or the Indenture Trustee, (ii) receipt
by the Servicer (or the Seller, so long as NMAC is the Servicer), the
Owner Trustee or the Indenture Trustee of written notice of such failure
given by Holders of Notes evidencing not less than 25% of the Outstanding
Amount, or (iii) discovery of such failure by any officer of the Servicer;
(b) any failure by the Servicer (or the Seller, as long as NMAC is
the Servicer) to duly observe or perform in any material respect any other
covenants or agreements of the Servicer (or the Seller, as long as NMAC is
the Servicer) set forth in this Agreement (including its obligation to
purchase Receivables pursuant to Section 4.06), which failure shall
materially and adversely affect the rights of the Certificateholders or
the Noteholders and shall continue unremedied for a period of 90 days
after giving of written notice of the failure to (i) the Servicer (or the
Seller, as long as NMAC is the Servicer) by the Owner Trustee or the
Indenture Trustee, or (ii) the Servicer (or the Seller, as long as NMAC is
the Servicer) and the Owner Trustee or the Indenture Trustee by Holders of
Notes evidencing not less than 25% of the Outstanding Amount or Holders of
Certificates evidencing not less than 25% of the Certificate Balance; or
(c) the occurrence of an Insolvency Event with respect to the
Servicer;
59 (Nissan 2004-B Sale and Servicing Agreement)
then, and in each and every case, so long as the Servicer Default shall not have
been remedied, either the Indenture Trustee or the Holders of Notes evidencing a
majority of the Outstanding Amount of the Notes (but excluding for purposes of
such calculation and action all Notes held or beneficially owned by NMAC, NARC
II or any of their Affiliates unless all of the Notes are held or beneficially
owned by NMAC, NARC II or any of their Affiliates), acting together as a single
Class, by notice then given in writing to the Servicer (and to the Indenture
Trustee and the Owner Trustee if given by the Noteholders) may terminate all of
the rights and obligations (other than the obligations set forth in Section 7.02
hereof) of the Servicer under this Agreement. On or after the receipt by the
Servicer of such written notice, all authority and power of the Servicer under
this Agreement, whether with respect to the Notes, the Certificates or the
Receivables or otherwise, shall, without further action, pass to and be vested
in the Indenture Trustee or such Successor Servicer as may be appointed under
Section 8.02; and, without limitation, the Indenture Trustee and the Owner
Trustee are hereby authorized and empowered to execute and deliver, for the
benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of the Receivables
and related documents, or otherwise. The predecessor Servicer shall cooperate
with the Successor Servicer and the Owner Trustee in effecting the termination
of the responsibilities and rights of the predecessor Servicer under this
Agreement, including, without limitation, the transfer to the Successor Servicer
for administration by it of all cash amounts that shall at the time be held by
the predecessor Servicer for deposit, or have been deposited by the predecessor
Servicer, in the Accounts or thereafter received with respect to the Receivables
that shall at that time be held by the predecessor Servicer and the delivery of
the Receivable Files and the related accounts and records maintained by the
predecessor 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 8.01 shall be paid by the predecessor Servicer
upon presentation of reasonable documentation of such costs and expenses.
Notwithstanding the foregoing, in the event the predecessor Servicer is the
Indenture Trustee, the original Servicer hereunder shall reimburse the Indenture
Trustee for all reasonable costs and expenses as described in the immediately
preceding sentence. Upon receipt of notice of the occurrence of a Servicer
Default, the Indenture Trustee shall give notice thereof to the Rating Agencies.
SECTION 8.02 Appointment of Successor.
(a) Upon the Servicer's receipt of notice of termination pursuant to
Section 8.01 or the Servicer's resignation in accordance with the terms of
this Agreement, the predecessor Servicer shall continue to perform its
functions as Servicer under this Agreement, in the case of termination,
only until the date specified in such termination notice or, if no such
date is specified in a notice of termination, until receipt of such notice
and, in the case of resignation, until the earlier of (i) the date 45 days
from the delivery to the Owner Trustee and the Indenture Trustee of
written notice of such resignation (or written confirmation of such
notice) in accordance with the terms of this Agreement and (ii) the date
upon which the predecessor Servicer shall become unable to act as
Servicer, as specified in the notice of resignation and accompanying
Opinion of Counsel. In the event of the Servicer's resignation or
termination hereunder, the
60 (Nissan 2004-B Sale and Servicing Agreement)
Indenture Trustee shall appoint a Successor Servicer, and the Successor
Servicer shall accept its appointment (including its appointment as
Administrator under the Administration Agreement as set forth in Section
8.02(b)) by a written assumption in form acceptable to the Owner Trustee
and the Indenture Trustee. If a Successor Servicer has not been appointed
at the time when the predecessor Servicer has ceased to act as Servicer in
accordance with this Section 8.02, the Indenture Trustee without further
action shall automatically be appointed the Successor Servicer and the
Indenture Trustee shall be entitled to the Total Servicing Fee.
Notwithstanding the above, the Indenture Trustee shall, if it shall be
legally unable so to act, appoint or petition a court of competent
jurisdiction to appoint, and the predecessor Servicer, if no successor
Servicer has been appointed at the time the predecessor Servicer has
ceased to act, may petition a court of competent jurisdiction to appoint
any established institution having a net worth of not less than
$100,000,000 and whose regular business shall include the servicing of
automobile and/or light-duty truck receivables, as the successor to the
Servicer under this Agreement.
(b) Upon appointment, the Successor Servicer (including the
Indenture Trustee acting as Successor Servicer) shall (i) be the successor
in all respects to the predecessor Servicer and shall be subject to all
the responsibilities, duties and liabilities arising thereafter relating
thereto placed on the predecessor Servicer (except the initial Servicer's
obligation to make Advances) and shall be entitled, subject to the
arrangements referred to in paragraph (c) below, to the servicing fee and
all the rights granted to the predecessor Servicer by the terms and
provisions of this Agreement and (ii) become the Administrator under the
Administration Agreement in accordance with Section 8 of such Agreement.
(c) In connection with such appointment, the Issuer may make such
arrangements for the compensation of such Successor Servicer out of
payments on Receivables as it and such Successor Servicer shall agree;
provided, however, that no such compensation shall be in excess of that
permitted the predecessor Servicer under this Agreement. The Issuer, the
Indenture Trustee and such Successor Servicer shall take such action,
consistent with this Agreement, as shall be necessary to effectuate any
such succession.
SECTION 8.03 Repayment of Advances. If the Servicer shall resign or be
terminated, the Servicer shall continue to be entitled to receive, to the extent
of available funds, reimbursement for Outstanding Advances pursuant to Sections
5.03 and 5.04 with respect to all Advances previously made thereby.
SECTION 8.04 Notification . Upon any termination of, or appointment of a
successor to, the Servicer pursuant to this Article VIII, the Owner Trustee
shall give prompt written notice thereof to the Certificateholders, and the
Indenture Trustee shall give prompt written notice thereof to Noteholders and
the Rating Agencies.
SECTION 8.05 Waiver of Past Defaults. The Holders of Notes evidencing a
majority of the Outstanding Amount of the Notes, or, in the case of any Servicer
Default which does not adversely affect the Indenture Trustee or the
Noteholders, the Holders of Certificates evidencing a majority of the
Certificate Balance, in each case excluding for purposes of such calculation and
action all Securities held or beneficially owned by NMAC, NARC II or any of
their Affiliates
61 (Nissan 2004-B Sale and Servicing Agreement)
(unless all of the Notes or the Certificates, as the case may be, are held by
NMAC, NARC II and their Affiliates), may, on behalf of all the Noteholders and
the Certificateholders, waive in writing any default by the Servicer in the
performance of its obligations hereunder and its consequences, except a default
in making any required deposits to or payments from the Collection Account in
accordance with this Agreement. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Default arising therefrom shall
be deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereto.
ARTICLE IX
Termination; Release of Receivables
SECTION 9.01 Optional Purchase of All Receivables.
(a) On each Distribution Date following the last day of a Collection
Period as of which the Pool Balance shall be less than or equal to the
Optional Purchase Percentage multiplied by the Original Pool Balance, the
Servicer or any successor to the Servicer shall have the option to
purchase, or cause to be purchased, the corpus of the Owner Trust Estate
(whether or not such assets then comprise all or a portion of the Trust
Estate) for an amount equal to the Optional Purchase Price (the "Optional
Purchase"). To exercise such option, the Servicer or any successor to the
Servicer shall notify the Owner Trustee and the Indenture Trustee of its
intention to do so in writing, no later than the tenth day of the month
preceding the month in which the Distribution Date as of which such
purchase is to be effected and shall, on or before the Distribution Date
on which such purchase is to occur, deposit pursuant to Section 5.05 in
the Collection Account an amount equal to the Optional Purchase Price (or
the deposit in cash of such lesser amount as provided in Section 9.01(b)),
and shall succeed to all interests in and to the Trust Estate and the
Owner Trust Estate; provided, however, that the Servicer shall not effect
any such purchase so long as the rating of NMAC by Moody's, or if NMAC
shall then be unrated by Moody's, then the rating of Nissan Capital of
America, Inc., is less then "Ba1" by Moody's, unless the Owner Trustee and
the Indenture Trustee shall have received an Opinion of Counsel to the
effect that such purchase shall not constitute a fraudulent conveyance,
subject to such assumptions as to factual matters as may be contained
therein. Amounts so deposited will be paid and distributed as set forth in
Section 5.06 of this Agreement. Upon such deposit of the amount necessary
to purchase the corpus of the Owner Trust Estate, the Servicer shall for
all purposes of this Agreement be deemed to have released all claims for
reimbursement of Outstanding Advances made in respect of the Receivables.
(b) The Servicer, at its option, may pay all or a portion of the
Optional Purchase Price by issuing a demand note in favor of the Trust,
the terms of which, on the whole, shall be commercially reasonable and
substantially similar to terms that would prevail in an arms-length
negotiation between unaffiliated parties; provided, however, that (i) the
Servicer shall pay in cash the portion of the Optional Purchase Price that
is equal to or greater than the sum of (x) the Outstanding Amount of all
Classes of Notes and (y) the Noteholders' Interest Distributable Amount
for all Classes of Notes for such Distribution
62 (Nissan 2004-B Sale and Servicing Agreement)
Date, and (ii) the Servicer may issue a demand note to a Certificateholder
pursuant to this Section 9.01 only if such Certificateholder consents to
the receipt of such demand note.
(c) Notice of any such purchase of the Owner Trust Estate shall be
given by the Owner Trustee and the Indenture Trustee to each
Securityholder as soon as practicable after their receipt of notice
thereof from the Servicer.
(d) Following the satisfaction and discharge of the Indenture and
the payment in full of the principal of and interest on the Notes, the
Certificateholders will succeed to the rights of the Noteholders hereunder
other than under Section 5.06 and the Issuer will succeed to the rights of
the Indenture Trustee provided for in this Agreement.
SECTION 9.02 Release of Receivables.
(a) Upon repurchase of any Receivable by the Seller pursuant to
Section 3.02 or by the Servicer pursuant to Section 4.06 or Section 9.01,
the Issuer and the Indenture Trustee on behalf of the Noteholders, shall,
without further action, be deemed to transfer, assign, set-over and
otherwise convey to the Seller or the Servicer, as the case may be, all
right, title and interest of the Issuer in, to and under such repurchased
Receivable, all monies due or to become due with respect thereto and all
proceeds thereof and the other property conveyed to the Issuer hereunder
pursuant to Section 2.01 with respect to such Receivable, and all security
and any documents relating thereto, such assignment being an assignment
outright and not for security; and the Seller or the Servicer, as
applicable, shall thereupon own each such Receivable, and all such related
security and documents, free of any further obligation to the Issuer, the
Owner Trustee, the Certificateholders, the Indenture Trustee or the
Noteholders with respect thereto.
(b) The Issuer and Indenture Trustee shall execute such documents
and instruments of transfer and assignment and take such other actions as
shall be reasonably requested by the Seller or the Servicer, as the case
may be, to effect the conveyance of such Receivable pursuant to Sections
3.02, 4.06 and 9.02.
If in any enforcement suit or legal proceeding it is held that the
Seller or the Servicer may not enforce a repurchased Receivable on the ground
that it is not a real party in interest or a holder entitled to enforce the
Receivable, the Issuer, and the Indenture Trustee on behalf of the Noteholders,
shall, at the written direction and expense of the Seller or Servicer, as the
case may be, take such reasonable steps as the Seller or the Servicer deems
necessary to enforce the Receivable, including bringing suit in the name or
names of the Issuer, the Certificateholders or the Noteholders.
SECTION 9.03 Termination.
(a) The respective obligations of the Seller, the Servicer, NMAC (so
long as NMAC has rights or obligations hereunder), the Owner Trustee, and
the Indenture Trustee, as the case may be, pursuant to this Agreement
shall terminate upon the earliest of (i) the maturity or other liquidation
of the last Receivable and the final disposition of all amounts received
upon liquidation of any remaining Receivables, or (ii) the election by the
Servicer to purchase the corpus of the Trust as described in Section 9.01
and the
63 (Nissan 2004-B Sale and Servicing Agreement)
payment or distribution to Securityholders of all amounts required to be
paid to them under the Indenture or the Trust Agreement, as the case may
be.
(b) Notice of any such termination under this Section 9.03 shall be
given by the Indenture Trustee or the Owner Trustee to each Securityholder
of record as specified in the Indenture or the Trust Agreement, as
appropriate.
ARTICLE X
Miscellaneous
SECTION 10.01 Amendment.
(a) This Agreement may be amended by the Seller, the Servicer and
the Issuer, with the consent of the Indenture Trustee, but without the
consent of any of the Noteholders or the Certificateholders,
(1) to cure any ambiguity, correct or supplement any provision
herein that may be inconsistent with any other provision herein, or
make any other provisions with respect to matters or questions
arising hereunder that are not inconsistent with the provisions
herein; provided that (i) the amendment will not materially and
adversely affect the interest of any Noteholder or Certificateholder
and (ii) the Servicer shall have delivered an Officer's Certificate
to the Indenture Trustee and the Owner Trustee stating that such
amendment will not materially and adversely affect the interest of
any Noteholder or Certificateholder; and
(2) to change the formula for determining the required amount
for the Specified Reserve Account Balance upon (i) confirmation from
each Rating Agency that such amendment will not result in the
qualification, reduction or withdrawal of any rating it currently
assigns to any Class of Notes, and (ii) delivery by the Servicer to
the Indenture Trustee and the Owner Trustee of an Officer's
Certificate stating that such amendment will not materially and
adversely affect the interest of any Securityholder.
An amendment will be deemed not to materially and adversely affect
the interests of any Noteholder or Certificateholder of any Class if (x) the
amendment does not adversely affect the Trust's status as a partnership (or, for
any period during which there is not more than one beneficial owner of a
Certificate, the Trust's status as an entity that is disregarded as an entity
separate from the Certificateholder) for federal income tax purposes, (y) each
Rating Agency confirms that that amendment will not result in a reduction or
withdrawal of its rating on the Notes of that Class, and (z) the Servicer has
delivered the Officer's Certificate described in this Section 10.01(a).
(b) This Agreement may also be amended from time to time by the
Seller, the Servicer and the Issuer, with the consent of the Indenture
Trustee and the consent of:
(1) the Holders of Notes evidencing a majority of the
Outstanding Amount of the Notes; or
64 (Nissan 2004-B Sale and Servicing Agreement)
(2) in the case of any amendment that does not adversely
affect the Indenture Trustee or the Noteholders, the Holders of the
Certificates evidencing a majority of the outstanding Certificate
Balance (but excluding for purposes of calculation and action all
Certificates held by the Seller, the Servicer or any of their
Affiliates, unless all of the Certificates are held by the Seller,
the Servicer or any of their Affiliates);
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of those Noteholders or Certificateholders; provided, however,
that no amendment shall:
(1) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the
Receivables or distributions that are required to be made for the
benefit of those Noteholders or Certificateholders or change the
Interest Rate or the Specified Reserve Account Balance (except as
described above under clause (2) of subsection (a) above) without
the consent of each "adversely affected" Noteholder or
Certificateholder; or
(2) reduce the aforesaid percentage of the Outstanding Amount
of the Notes or Certificate Balance of the Certificates which is
required to consent to any amendment, without the consent of the
Holders of all the then outstanding Notes or Certificates.
An amendment referred to in clause (x) above will be deemed not to
"adversely affect" a Noteholder of any Class only if each Rating Agency confirms
that that amendment will not result in a reduction or withdrawal of its rating
on the Notes of that Class. In connection with any amendment referred to in
clause (x) above, the Servicer shall deliver an Officer's Certificate to the
Indenture Trustee and the Owner Trustee stating that those Noteholders and
Certificateholders whose consents were not obtained were not adversely affected
by such amendment.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment or
consent to each Certificateholder, the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of the Certificateholders or
Noteholders pursuant to this Section 10.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Owner
Trustee and the Indenture Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement and the Opinion of Counsel referred to in Section
10.02(h)(A). The Owner Trustee and the Indenture Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Owner Trustee's or
the Indenture Trustee's, as applicable, own rights, duties or immunities under
this Agreement or otherwise.
65 (Nissan 2004-B Sale and Servicing Agreement)
SECTION 10.02 Protection of Title to Trust.
(a) The Seller shall execute and file such financing statements and
cause to be executed and filed such continuation statements, all in such
manner and in such places as may be required by law fully to preserve,
maintain and protect the interest of the Issuer and of the Indenture
Trustee in the Receivables and in the proceeds thereof. The Seller shall
deliver (or cause to be delivered) to the Owner Trustee and the Indenture
Trustee file-stamped copies of, or filing receipts for, any document filed
as provided above, as soon as available following such filing.
(b) The Seller and the Servicer shall notify the Owner Trustee and
the Indenture Trustee within 30 days after any change of its name,
identity or corporate structure in any manner that would, could or might
make any financing statement or continuation statement filed in accordance
with paragraph (a) above seriously misleading within the meaning of
Section 9-507(c) of the UCC, and shall promptly file appropriate
amendments to all previously filed financing statements or continuation
statements.
(c) Each of the Seller and the Servicer shall notify the Owner
Trustee and the Indenture Trustee of any relocation of its principal
executive office or state of incorporation within 30 days after such
relocation, if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing
statement and shall promptly file any such amendment or new financing
statement. The Servicer shall at all times maintain each office from which
it shall service Receivables, and its principal executive office, within
the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Receivable accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each),
and (ii) reconciliation between payments or recoveries on (or with respect
to) each Receivable and the amounts from time to time deposited in the
Collection Account in respect of such Receivable.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale under this Agreement of the Receivables to the
Trust, the Servicer's master computer records that refer to any Receivable
shall indicate clearly the interest of the Issuer and the Indenture
Trustee in such Receivable and that such Receivable is owned by the Issuer
and has been pledged to the Indenture Trustee. Indication of these
respective interests in a Receivable shall be deleted from or modified on
the Servicer's computer systems when, and only when, the related
Receivable shall have become a Liquidated Receivable or been repurchased.
(f) If at any time the Seller or the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in
automotive receivables to, any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, lender
or other transferee computer tapes, records or printouts that, if they
shall refer in any manner whatsoever to any Receivable, shall indicate
clearly that such
66 (Nissan 2004-B Sale and Servicing Agreement)
Receivable has been sold and is owned by the Issuer and has been pledged
to the Indenture Trustee.
(g) Upon receipt of a written request from the Owner Trustee or the
Indenture Trustee, which request shall be made no more frequently than
annually, the Servicer shall furnish to the Owner Trustee or the Indenture
Trustee, as the case may be, within 20 Business Days after receipt of such
request, a list of all Receivables (by contract number and name of
Obligor) then held as part of the Trust, together with a reconciliation of
the list of Receivables attached hereto as Schedule A and to each of the
Servicer's Certificates furnished before such request indicating removal
of Receivables from the Trust. The Servicer shall permit the Indenture
Trustee and its agents at any time during normal business hours upon
reasonable prior notice to inspect, audit and make copies of and abstracts
from the Servicer's records regarding any Receivable.
(h) The Servicer shall deliver to the Owner Trustee and the
Indenture Trustee:
(A) upon the execution and delivery of this Agreement
and of each amendment hereto, an Opinion of Counsel, based on
customary assumptions and qualifications, stating that, in the
opinion of such counsel, either (A) all financing statements and
continuation statements have been executed and filed that are
necessary to perfect the interest of the Trust and the Indenture
Trustee in the Receivables, and reciting the details of such filings
or referring to prior Opinions of Counsel in which such details are
given, or (B) no such action shall be necessary to preserve and
protect such interest; and
(B) if requested by the Indenture Trustee or the Owner
Trustee, not more frequently than annually, an Opinion of Counsel,
dated as of a date during such 90-day period, either (A) stating
that, in the opinion of such counsel, based on customary assumptions
and qualifications, all financing statements and continuation
statements have been executed and filed that are necessary to
perfect the interest of the Trust and the Indenture Trustee in the
Receivables, and reciting the details of such filings or referring
to prior Opinions of Counsel in which such details are given, or (B)
no such action shall be necessary to preserve and protect such
interest.
(i) Each Opinion of Counsel referred to in clause (h)(A) or (h)(B)
above shall specify any action necessary (as of the date of such Opinion
of Counsel) to be taken in the following year to preserve and protect such
interest.
SECTION 10.03 Notices. All demands, notices, communications and
instructions upon or to the Seller, the Servicer, the Owner Trustee, the
Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Seller, to Nissan Auto Receivables Corporation II, 000 Xxxx 000xx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention of Secretary, (b) in the case of
the Servicer, to Nissan Motor Acceptance Corporation, 000 Xxxx 000xx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention of Secretary, (c) in the case of the
Issuer or the Owner Trustee, to Nissan Auto Receivables 2004-B Owner Trust, c/o
67 (Nissan 2004-B Sale and Servicing Agreement)
Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Nissan Auto Receivables 2004-B Owner
Trust, (d) in the case of the Indenture Trustee, at the Corporate Trust Office,
(e) in the case of Moody's, to Xxxxx'x Investors Service, ABS Monitoring
Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (f) in the case of
Standard & Poor's, to Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Asset Backed Surveillance Department; or, as to each of the foregoing, at such
other address as shall be designated by written notice to the other parties.
SECTION 10.04 Assignment by the Seller or the Servicer. Notwithstanding
anything to the contrary contained herein, except as provided in Sections 6.04
and 7.03 of this Agreement and as provided in the provisions of this Agreement
concerning the resignation or termination of the Servicer, this Agreement may
not be assigned by the Seller or the Servicer without the prior written consent
of the Indenture Trustee, the Owner Trustee, the Holders of Notes evidencing not
less than 66 2/3% of the Outstanding Amount and the Holders of Certificates
evidencing not less than 66 2/3% of the Certificate Balance.
SECTION 10.05 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Seller, the Servicer, the Issuer,
the Owner Trustee, the Certificateholders, the Indenture Trustee and the
Noteholders, and nothing in this Agreement, whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 10.06 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.07 Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 10.08 Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 10.09 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions (other than Section 5-1401 of the General Obligations
Law of the State of New York), and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 10.10 Assignment by Issuer. The Seller hereby acknowledges and
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of
the Noteholders of all right, title and interest
68 (Nissan 2004-B Sale and Servicing Agreement)
of the Issuer in, to and under the Receivables and the related property acquired
hereunder and/or the assignment of any or all of the Issuer's rights and
obligations hereunder to the Indenture Trustee.
SECTION 10.11 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the
Servicer and the Seller shall not, prior to the date which is one year and
one day after the termination of this Agreement with respect to the
Issuer, acquiesce, petition or otherwise invoke or cause the Issuer to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer under any federal or
state bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar
official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, each of
the Servicer and the Owner Trustee (not in its individual capacity but
solely as Owner Trustee), prior to the date which is one year and one day
after the Notes are paid in full, covenants and agrees that it will not at
any time file, join in any filing of, or cooperate with or encourage
others to file any bankruptcy, reorganization arrangement, insolvency or
liquidation proceeding or other proceedings against the Seller under any
federal or state bankruptcy, insolvency or similar law, appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Seller.
SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture
Trustee. Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by Wilmington Trust Company, not in its
individual capacity, but solely in its capacity as Owner Trustee of the Issuer,
and by Xxxxx Fargo Bank, National Association, not in its individual capacity,
but solely in its capacity as Indenture Trustee under the Indenture. In no event
shall Wilmington Trust Company or Xxxxx Fargo Bank, National Association have
any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuer hereunder or in any of the certificates, notices
or agreements delivered by the Seller or the Servicer, or prepared by the Seller
or the Servicer for delivery by the Owner Trustee on behalf of the Issuer,
pursuant hereto, as to all of which recourse shall be had solely to the assets
of the Issuer. For all purposes of this Agreement, in the performance of its
duties or obligations hereunder or in the performance of any duties or
obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and
entitled to the benefits of, the terms and provisions of Articles VI, VII and
VIII of the Trust Agreement.
SECTION 10.13 Waivers. No failure or delay on the part of the Issuer in
exercising any power, right or remedy under this Agreement or the Assignment
shall operate as a waiver hereof or thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise hereof or thereof or the exercise of any such power, right or remedy
preclude any other or further exercise hereof or thereof or the exercise of any
other power, right or remedy. Notwithstanding anything to the contrary, the
Issuer shall not waive any breach of representations and warranties as set forth
in Sections 3.01(e), (l), (n), (o), (aa) or (ee) without
69 (Nissan 2004-B Sale and Servicing Agreement)
the written consent of at least a majority of the Outstanding Amount of the
Notes, voting as a single class (excluding for such purposes the outstanding
principal amount of any Notes held of record or beneficially owned by NMAC, NARC
II or any of their Affiliates, unless at such time all of the Notes are held of
record or beneficially owned by NMAC, NARC II or any of their Affiliates.
70 (Nissan 2004-B Sale and Servicing Agreement)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first above
written.
NISSAN AUTO RECEIVABLES 2004-B OWNER
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee on behalf of
the Trust
By: /s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
NISSAN AUTO RECEIVABLES
CORPORATION II, as Seller
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
NISSAN MOTOR ACCEPTANCE
CORPORATION,
individually and as Servicer
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
ACKNOWLEDGED AND ACCEPTED AS OF
THE DAY AND YEAR FIRST ABOVE WRITTEN:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Indenture Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
S-1 (Nissan 2004-B Sale and Servicing Agreement)
SCHEDULE A
SCHEDULE OF RECEIVABLES
TO BE DELIVERED BY NMAC UPON REQUEST.
A-1 (Nissan 2004-B Sale and Servicing Agreement)
SCHEDULE B
LOCATION OF THE RECEIVABLE FILES
1. Nissan Motor Acceptance Corporation, including its Infiniti Financial
Services Division, 0000 Xxxxxxxx Xxxxxxx, Xxxxxx, XX 00000-0000
2. Iron Mountain, 0000 X. Xxxxx Xxxxx, Xxxxxx, Xxxxx 00000
3. Nissan North America, Inc., Denver Data Center, 000 Xxxxxxxxx Xxxxxx, Xxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
4. Arcus, 00000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000
5. FDI Consulting, 0000 Xxxxx Xxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxx 00000
(Nissan 2004-B Sale and Servicing Agreement)
EXHIBIT A
FORM OF YIELD SUPPLEMENT AGREEMENT
Please see Exhibit 4.6
(Nissan 2004-B Sale and Servicing Agreement)
