EXHIBIT 4.2
INDENTURE
NISSAN AUTO RECEIVABLES 2002-C OWNER TRUST
as Issuer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee
Dated as of August 19, 2002
INDENTURE (the "Indenture"), dated as of August 19, 2002, between NISSAN
AUTO RECEIVABLES 2002-C OWNER TRUST, a Delaware business trust (the "Issuer"),
and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking
association, as trustee and not in its individual capacity (the "Indenture
Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of (i) the Holders of the Issuer's 1.70400% Asset
Backed Notes, Class A-1 (the "Class A-1 Notes"), 1.9400% Asset Backed Notes,
Class A-2 (the "Class A-2 Notes"), 2.60000% Asset Backed Notes, Class A-3 (the
"Class A-3 Notes"), and 3.33000% Asset Backed Notes, Class A-4 (the "Class A-4
Notes" and, together with the Class A-1, Class A-2 and the Class A-3 Notes, the
"Notes") and (ii) for the purposes of the Granting Clause below, the
Certificateholders:
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as
Indenture Trustee for the benefit of the Holders of the Notes and Certificates,
the following:
(i) all right, title and interest of the Issuer in and to the Receivables
(including all related Receivable Files) and all monies due thereon or paid
thereunder or in respect thereof (including proceeds of the repurchase of
Receivables by the Seller pursuant to Section 3.02 of the Sale and Servicing
Agreement or the purchase of Receivables by the Servicer pursuant to Section
4.06 or 9.01 of the Sale and Servicing Agreement) after the Cutoff Date;
(ii) the Collection Account and amounts on deposit in the Collection
Account and the Yield Supplement Account;
(iii) the right of the Issuer in the security interests in the Financed
Vehicles granted by the Obligors pursuant to the Receivables and any related
property;
(iv) the right of the Issuer in any proceeds from claims on any physical
damage, credit life, credit disability or other insurance policies covering the
Financed Vehicles or the Obligors;
(v) the right of the Issuer (through the Seller and NMAC) to receive
payments in respect of any Dealer Recourse with respect to the Receivables;
(vi) the rights of the Issuer under the Sale and Servicing Agreement, and,
through the Seller, under the Purchase Agreement and the Assignment;
(vii) the rights of the Issuer under the Yield Supplement Agreement;
(viii) the right of the Issuer to realize upon any property (including the
right to receive future Net Liquidation Proceeds) that shall have secured a
Receivable;
(ix) the right of the Issuer in rebates of premiums and other amounts
relating to insurance policies and other items financed under the Receivables in
effect as of the Cutoff Date;
(x) all other assets comprising the Owner Trust Estate; and
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(xi) all proceeds of the foregoing.
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, and subject to the subordinate claims
thereon of the Holder of the Certificates, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Holders of
the Notes and for the benefit of the Certificateholders, acknowledges such
Grant, accepts the trusts under this Indenture in accordance with the provisions
of this Indenture and agrees to perform its duties required in this Indenture to
the best of its ability to the end that the interests of the Holders of the
Notes may be adequately and effectively protected and the rights of the
Certificateholders secured.
ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01 Definitions. Except as otherwise specified herein or if the
context may otherwise require, capitalized terms used but not otherwise defined
herein have the meanings ascribed thereto in the Trust Agreement, the Sale and
Servicing Agreement and the Securities Account Control Agreement, as the case
may be, for all purposes of this Indenture. Except as otherwise provided in this
Indenture, whenever used herein the following words and phrases, unless the
context otherwise requires, shall have the following meanings:
"Action" has the meaning specified in Section 11.03(a).
"Administration Agreement" means the Administration Agreement, dated as of
August 19, 2002, among the Administrator, the Issuer and the Indenture Trustee.
"Administrator" means NMAC or any successor Administrator under the
Administration Agreement.
"Applicant" has the meaning specified in Section 7.01.
"Authorized Officer" means with respect to the Issuer, any officer of the
Owner Trustee who is authorized to act for the Owner Trustee in matters relating
to the Issuer identified as such on any list of Authorized Officers delivered by
the Owner Trustee to the Indenture Trustee.
"Book-Entry Notes" means a beneficial interest in the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10.
"Business Day" means any day except a Saturday, a Sunday or a day on which
banks in New York, New York, Los Angeles, California, Wilmington, Delaware or
Minneapolis, Minnesota are authorized or obligated by law, regulation, executive
order or governmental decree to be closed.
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"Certificates" means the Certificates of the Issuer issued under the Trust
Agreement.
"Class" means any one of the classes of the Notes.
"Class A-1 Rate" means 1.70400% per annum (computed on the basis of actual
number of days in the related Interest Period and a 360-day year).
"Class A-1 Notes" means the 1.70400% Asset Backed Notes, Class A-1,
substantially in the form attached hereto as Exhibit A.
"Class A-2 Rate" means 1.94000% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"Class A-2 Notes" means the 1.94000% Asset Backed Notes, Class A-2,
substantially in the form attached hereto as Exhibit A.
"Class A-3 Rate" means 2.60000% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"Class A-3 Notes" means the 2.60000% Asset Backed Notes, Class A-3,
substantially in the form attached hereto as Exhibit A.
"Class A-4 Rate" means 3.33000% per annum (computed on the basis of a
360-day year consisting of twelve 30-day months).
"Class A-4 Notes" means the 3.33000% Asset Backed Notes, Class A-4,
substantially in the form attached hereto as Exhibit A.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means August 19, 2002.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
"Collateral" means the property of the Issuer subject to the Granting
Clause hereof, the Reserve Account, all amounts held from time to time in the
Reserve Account and all investments therein.
"Corporate Trust Office" means the principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Agreement is located
at Xxxxx Fargo Center, Sixth and Marquette Avenue, MAC N9311-000, Xxxxxxxxxxx,
XX 00000, Attn: Asset Backed Securities Department, or at
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such other address as the Indenture Trustee may designate from time to time by
notice to the Noteholders, the Issuer and the Administrator, or the principal
corporate trust office of any successor Indenture Trustee at the address
designated by such successor Indenture Trustee by notice to the Noteholders, the
Issuer and the Administrator.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
Executive Vice President, any Vice President, the Secretary or the Treasurer of
such corporation; and with respect to any partnership, any general partner
xxxxxxx.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create, and xxxxx x xxxx upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to this Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the granting party or otherwise, and generally to do
and receive anything that the granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Holder" or "Noteholder" means the Person in whose name a Note is
registered on the Note Register.
"Indenture Trustee" means Xxxxx Fargo Bank Minnesota, National
Association, a national banking association, as Indenture Trustee under this
Indenture, or any successor Indenture Trustee under this Indenture.
"Independent" means, when used with respect to any specified Person, that
the Person is in fact independent of the Seller, the Servicer, the
Administrator, the Issuer or any other obligor on the Notes or any Affiliate of
any of the foregoing Persons because, among other things, such Person (a) is not
an employee, officer or director or otherwise controlled thereby or under common
control therewith, (b) does not have any direct financial interest or any
material indirect financial interest therein (whether as holder of securities
thereof or party to contract therewith or otherwise), and (c) is not and has not
within the preceding twelve months been a promoter, underwriter, trustee,
partner, director or person performing similar functions therefor or otherwise
had legal, contractual or fiduciary or other duties to act on behalf of or for
the benefit thereof.
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"Independent Certificate" means a certificate or opinion to be delivered
to the Indenture Trustee, made by an Independent appraiser or other expert
appointed by an Issuer Order and approved by the Indenture Trustee in the
exercise of reasonable care, and such opinion or certificate shall state that
the signer has read the definition of "Independent" in this Indenture and that
the signer is Independent within the meaning thereof.
"Interest Period" means, with respect to any Distribution Date and the
Class A-1 Notes, the period from (and including) the preceding Distribution Date
to (but excluding) such Distribution Date, except that the initial Interest
Period will be from (and including) the Closing Date to (but excluding)
September 16, 2002, 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) September 15, 2002.
"Interest Rate" means the Class A-1 Rate, the Class A-2 Rate, the Class
A-3 Rate, or the Class A-4 Rate, as indicated by the context.
"Issuer" means Nissan Auto Receivables 2002-C Owner Trust unless and until
a successor replaces it and, thereafter, means the successor and, for purposes
of any provision contained herein and required by the TIA, each other obligor on
the Notes.
"Issuer Order" and "Issuer Request" mean a written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
"NMAC" means Nissan Motor Acceptance Corporation, in its individual
capacity and not as Servicer.
"Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or a
Class A-4 Note.
"Note Depository Agreement" means the agreement entitled "Letter of
Representations" dated on or before the Closing Date among the Clearing Agency,
the Issuer and the Indenture Trustee with respect to certain matters relating to
the duties thereof with respect to the Book-Entry Notes.
"Note Owner" means, with respect to a Book-Entry Note, any Person who is
the beneficial owner of such Book-Entry Note, as reflected on the books of the
Clearing Agency or on the books of a Person maintaining an account with such
Clearing Agency (directly as a Clearing Agency Participant or as an indirect
participant, in each case in accordance with the rules of such Clearing Agency).
"Note Register" means the Register of Noteholders' information maintained
by the Note Registrar pursuant to Section 2.04.
"Note Registrar" means the Indenture Trustee unless and until a successor
Note Registrar shall have been appointed pursuant to Section 2.04.
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"Officer's Certificate" means a certificate signed by any Authorized
Officer of the Issuer, under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01, and delivered to
the Indenture Trustee.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Indenture, be an employee of
or counsel to the Issuer, the Seller or the Servicer and which counsel shall be
reasonably satisfactory to the Owner Trustee, the Indenture Trustee or the
Rating Agencies, as the case may be.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to
the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which money in the necessary
amount has been theretofore deposited with the Indenture Trustee or any Paying
Agent in trust for the Holders of such Notes; and
(c) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture unless proof satisfactory
to the Indenture Trustee is presented that any such Notes are held by a
protected purchaser;
provided, that in determining whether the Holders of the requisite percentage of
the Outstanding Amount of the Notes, or any Class of Notes, have given any
request, demand, authorization, direction, notice, consent, or waiver hereunder
or under any Basic Document, Notes owned by the Issuer, any other obligor upon
the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Indenture Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, or waiver, only
Notes that the Indenture Trustee knows to be so owned shall be so disregarded.
Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer, any other obligor upon the Notes, the Seller or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or, if indicated by the context, all Notes of any Class, Outstanding at the date
of determination.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity but solely as Owner Trustee under the Trust Agreement, or any successor
Owner Trustee under the Trust Agreement.
"Paying Agent" means the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11
that has been authorized by the Issuer to make payments to and distributions
from the Collection Account, including payment of principal of or interest on
the Notes on behalf of the Issuer.
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"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 in lieu of a mutilated, lost,
destroyed or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
"Registered Holder" means the Person in whose name a Note is registered on
the Note Register on the applicable Record Date.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of August 19, 2002, among the Issuer, Nissan Auto Receivables
Corporation II, as Seller, and Nissan Motor Acceptance Corporation, as Servicer,
and as to which the Indenture Trustee is a third party beneficiary of certain
provisions.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Account Control Agreement" shall have the meaning assigned to
such term in the Sale and Servicing Agreement.
"Seller" shall mean Nissan Auto Receivables Corporation II, in its
capacity as seller under the Sale and Servicing Agreement, and its successor in
interest.
"Servicer" shall mean Nissan Motor Acceptance Corporation, in its capacity
as servicer under the Sale and Servicing Agreement, and any Successor Servicer
thereunder.
"Successor Servicer" has the meaning specified in Section 3.07.
"Trust Estate" means all money, instruments, rights and other property
that are subject or intended to be subject to the lien and security interest of
this Indenture for the benefit of the Noteholders (including, without
limitation, all property and interests Granted to the Indenture Trustee pursuant
to the Granting Clause), including all proceeds thereof.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction at the relevant time.
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SECTION 1.02 Usage of Terms. With respect to all terms in this Indenture,
the singular includes the plural and the plural the singular; words importing
any gender include the other genders; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
references to agreements and other contractual instruments include all
subsequent amendments, amendments and restatements and supplements thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Indenture; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
SECTION 1.03 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined in the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings so assigned to them.
ARTICLE II
The Notes
SECTION 2.01 Form. The Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes and the Class A-4 Notes, in each case together with the Indenture
Trustee's certificate of authentication, shall be in substantially the form set
forth in Exhibit A, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution thereof. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
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Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibit A are part of the terms of this Indenture.
SECTION 2.02 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile. Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes. The Indenture Trustee shall upon Issuer
Order authenticate and deliver the Class A-1 Notes for original issue in an
aggregate principal amount of $316,000,000, the Class A-2 Notes for original
issue in an aggregate principal amount of $170,000,000, the Class A-3 Notes for
original issue in an aggregate principal amount of $435,000,000, and the Class
A-4 Notes for original issue in an aggregate principal amount of $183,266,000.
The aggregate principal amount of the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes and the Class A-4 Notes outstanding at any time may not exceed
such respective amounts except as provided in Section 2.05. The Notes shall be
issuable as registered Notes in denominations of $1,000 and any integral
multiple thereof. Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form included in Exhibit A, executed by
the Indenture Trustee by the manual or facsimile signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
SECTION 2.03 Temporary Notes. Pending the preparation of Definitive Notes,
the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes that are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture as the officers executing such
Notes may determine, as evidenced by their execution of such Notes. If temporary
Notes are issued, the Issuer will cause Definitive Notes to be prepared without
unreasonable delay. After the preparation of Definitive Notes, the temporary
Notes shall be exchangeable for Definitive Notes upon surrender of the temporary
Notes at the office or agency of the Issuer to be maintained as provided in
Section 3.02, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Notes of any Class, the Issuer shall execute, and the
Indenture Trustee shall authenticate and deliver in exchange therefor, a like
principal amount of Definitive Notes of such Class of authorized denominations.
Until so exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Definitive Notes.
SECTION 2.04 Registration; Registration of Transfer and Exchange.
(a) The Note Registrar shall maintain a Note Register in which, subject to
such reasonable regulations as it may prescribe, the Note Registrar shall
provide for the registration of Notes and transfers and exchanges of Notes as
provided in this Indenture. The Indenture Trustee
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is xxxxxx initially appointed Note Registrar for the purpose of registering
Notes and transfers and exchanges of Notes as provided in this Indenture. In the
event that, subsequent to the Closing Date, the Indenture Trustee notifies the
Issuer that it is unable to act as Note Registrar, the Issuer shall appoint
another bank or trust company, having an office or agency located in the Borough
of Manhattan, The City of New York, agreeing to act in accordance with the
provisions of this Indenture applicable to it, and otherwise acceptable to the
Indenture Trustee, to act as successor Note Registrar under this Indenture.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Holders of the Notes and
the principal amounts and number of such Notes.
(b) Upon the proper surrender for registration of transfer of any Note at
the office or agency of the Issuer to be maintained as provided in Section 3.02,
the Issuer shall execute, and the Indenture Trustee shall authenticate in the
name of the designated transferee or transferees, one or more new Notes of the
same Class in authorized denominations of a like aggregate principal amount.
(c) At the option of the Holder, Notes may be exchanged for other Notes of
the same Class in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at such office or agency.
Whenever any Notes are so surrendered for exchange, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, the Notes which the Noteholder making the exchange
is entitled to receive. Every Note presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Indenture Trustee and the Note Registrar duly executed
by the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of transfer or
exchange of Notes, but the Indenture Trustee may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Notes.
(e) All Notes surrendered for registration of transfer or exchange shall
be canceled and subsequently destroyed by the Indenture Trustee.
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee such security or
indemnity as may be required by it to hold the Issuer and the Indenture Trustee
harmless, then, in the absence of notice to the Issuer, the Note Registrar or
the Indenture Trustee that such Note has been acquired by a protected purchaser,
the Issuer shall execute, and upon its request the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the
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same Class. In connection with the issuance of any new Note under this Section
2.05, the Issuer may require payment by the Holder of such Note of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
If, after the delivery of such replacement Note or payment of a destroyed,
lost or stolen Note, a protected purchaser of the original Note in lieu of which
such replacement Note was issued presents for payment such original Note, the
Issuer and the Indenture Trustee shall be entitled to recover such replacement
Note (or such payment) from the Person to whom it was delivered or any Person
taking such replacement Note from such Person to whom such replacement Note was
delivered or any assignee of such Person, except a protected purchaser, and
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any loss, damage, cost or expense incurred by the Issuer or the
Indenture Trustee in connection therewith.
Every replacement Note issued pursuant to this Section 2.05 in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes of the same Class duly issued
hereunder.
The provisions of this Section 2.05 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.06 Persons Deemed Owners. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of and interest, if any,
on such Note and for all other purposes whatsoever, and none of the Issuer, the
Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be
affected by notice to the contrary.
SECTION 2.07 Payments of Principal and Interest.
(a) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes shall accrue interest during each Interest Period at the Class
A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, and the Class A-4 Rate,
respectively, and such interest shall be payable on each related Distribution
Date as specified in the applicable Note by applying amounts available pursuant
to Section 5.06 of the Sale and Servicing Agreement and to Section 3.01 of this
Indenture. Any installment of interest or principal payable on any Note that is
punctually paid or duly provided for by the Issuer on the applicable
Distribution Date shall be paid to the Person in whose name such Note (or one or
more Predecessor Notes) is registered on the Record Date by wire transfer in
immediately available funds to the account designated by such nominee, except
for the final installment of principal payable with respect to such Note on a
Distribution Date or on the applicable Final Scheduled Distribution Date, which
shall be payable as provided below.
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(b) The principal of each Note shall be payable in installments on each
Distribution Date by applying amounts available pursuant to Section 5.06 of the
Sale and Servicing Agreement. Notwithstanding the foregoing, the entire unpaid
principal amount of the Notes shall be due and payable, if not previously paid,
from and after the date on which the Indenture Trustee or the Holders of a
majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purpose the outstanding principal amount of any Notes held
of record or beneficially owned by NARC II, NMAC or any of their Affiliates,
unless at such time all of the Notes are held of record or beneficially owned by
NARC II, NMAC or any of their Affiliates), have declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 in connection
with an Event of Default. All principal payments on each Class of Notes shall be
made pro rata to the Noteholders of such Class entitled thereto. The Indenture
Trustee shall notify the Person in whose name a Note is registered at the close
of business on the Record Date preceding the Distribution Date on which the
final installment of principal of and interest on such Note will be paid. Such
notice shall be mailed or transmitted by facsimile not less than 15 nor more
than 30 days prior to such final Distribution Date, shall specify that such
final installment will be payable only upon presentation and surrender of such
Note and shall specify the place where such Note may be presented and
surrendered for payment of such installment.
SECTION 2.08 Cancellation. All Notes surrendered for payment, registration
of transfer or exchange shall, if surrendered to any Person other than the
Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly
canceled by the Indenture Trustee. The Issuer may at any time deliver to the
Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly canceled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes canceled
as provided in this Section, except as expressly permitted by this Indenture.
All canceled Notes may be held or disposed of by the Indenture Trustee in
accordance with its standard retention or disposal policy as in effect at the
time unless the Issuer shall direct by an Issuer Order that they be destroyed or
returned to it; provided, that such Issuer Order is timely and the Notes have
not been previously disposed of by the Indenture Trustee.
SECTION 2.09 Release of Collateral. Subject to Sections 8.05 and 11.01 and
the terms of the Basic Documents, the Indenture Trustee shall release property
from the lien of this Indenture only upon receipt of an Issuer Request
accompanied by an Officer's Certificate, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will be
issued in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company, the initial Clearing Agency, or a
custodian therefor, by, or on behalf of, the Issuer. The Book-Entry Notes shall
be registered initially on the Note Register in the name of Cede & Co., the
nominee of the initial Clearing Agency, and no Note Owner thereof will receive a
Definitive Note representing such Note Owner's interest in such Note, except as
provided in Section 2.12. Unless and until definitive, fully registered Notes
(the "Definitive Notes") have been issued to such Note Owners pursuant to
Section 2.12:
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(a) the provisions of this Section shall be in full force and effect;
(b) the Note Registrar and the Indenture Trustee shall be entitled to deal
with the Clearing Agency for all purposes of this Indenture (including the
payment of principal of and interest on the Notes and the giving of instructions
or directions hereunder) as the authorized representative of the Note Owners;
(c) to the extent that the provisions of this Section conflict with any
other provisions of this Indenture, the provisions of this Section shall
control;
(d) the rights of Note Owners shall be exercised only through the Clearing
Agency and shall be limited to those established by law and agreements between
such Note Owners and the Clearing Agency and/or the Clearing Agency Participants
pursuant to the Note Depository Agreement. Unless and until Definitive Notes are
issued pursuant to Section 2.12, the initial Clearing Agency will make
book-entry transfers among the Clearing Agency Participants and receive and
transmit payments of principal of and interest on the Notes to such Clearing
Agency Participants; and
(e) whenever this Indenture requires or permits actions to be taken based
upon instructions or directions of Holders of Notes evidencing a specified
percentage of the Outstanding Amount of the Notes or of the Notes of any Class,
the Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and has delivered such
instructions to the Indenture Trustee.
SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to such Note Owners pursuant to
Section 2.12, the Indenture Trustee shall give all such notices and
communications specified herein to be given to Holders of the Notes to the
Clearing Agency and shall be deemed to have been given as of the date of
delivery to the Clearing Agency.
SECTION 2.12 Definitive Notes. If (i) the Seller, the Owner Trustee or the
Administrator advises the Indenture Trustee in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Book-Entry Notes and the Seller, the Owner Trustee and the
Administrator are unable to locate a qualified successor (and if the
Administrator has made such determination, the Administrator has given written
notice thereof to the Indenture Trustee), (ii) the Seller, the Indenture Trustee
or the Administrator at its option advises each other such party in writing that
it elects to terminate the book-entry system through the Clearing Agency, or
(iii) after the occurrence of an Event of Default or a Servicer Default, Note
Owners representing beneficial interests aggregating a majority of the
Outstanding Amount of the Notes of all Classes advise the Indenture Trustee and
the Clearing Agency in writing that the continuation of a book-entry system
through the Clearing Agency or a successor thereto is no longer in the best
interests of the Note Owners acting together as a single Class, then the
Clearing Agency shall notify all Note Owners and the Indenture Trustee of the
occurrence of such event and of the availability of Definitive Notes to Note
Owners requesting
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the same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the
Holders of the Definitive Notes as Noteholders. The Indenture Trustee, Issuer
and Administrator shall not be liable for any inability to locate a qualified
successor Clearing Agency. From and after the date of issuance of Definitive
Notes, all notices to be given to Noteholders will be mailed thereto at their
addresses of record in the Note Register as of the relevant Record Date. Such
notices will be deemed to have been given as of the date of mailing.
SECTION 2.13 Tax Treatment. The Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that, for federal, state and
local income, single business and franchise tax purposes, the Notes will qualify
as indebtedness of the Issuer secured by the Trust Estate or, for periods during
which there is a single beneficial owner of the Certificates, indebtedness of
the Certificateholder issued by the Trust Estate. The Issuer, by entering into
this Indenture, and each Noteholder, by its acceptance of a Note (and each Note
Owner by its acceptance of an interest in the applicable Book-Entry Note), agree
to treat the Notes for federal, state and local income, single business and
franchise tax purposes as indebtedness of the Issuer.
ARTICLE III
Covenants, Representations and Warranties
SECTION 3.01 Payment of Principal and Interest. In accordance with the
terms of this Indenture, the Issuer will duly and punctually (i) pay the
principal of and interest, if any, on the Notes in accordance with the terms of
the Notes and (ii) cause the Servicer to direct the Indenture Trustee to release
from the Collection Account all other amounts distributable or payable from the
Owner Trust Estate under the Trust Agreement, the Sale and Servicing Agreement
and the Administration Agreement. Without limiting the foregoing and in order to
fulfill such obligations, pursuant to Sections 8.02 and 8.03 hereof, the Issuer
will cause the Servicer to direct the Indenture Trustee to apply all amounts on
deposit in the Collection Account, the Reserve Account and the Yield Supplement
Account on a Distribution Date deposited therein pursuant to the Sale and
Servicing Agreement (i) (a) for the benefit of the Class A-1 Notes, to the Class
A-1 Noteholders, (b) for the benefit of the Class A-2 Notes, to the Class A-2
Noteholders, (c) for the benefit of the Class A-3 Notes, to the Class A-3
Noteholders, and (d) for the benefit of the Class A-4 Notes, to the Class A-4
Noteholders, and (ii) for the benefit of the Certificateholders, to or as
directed by the Owner Trustee or the Administrator, as set forth in Section
5.06, 5.07 and 5.08 of the Sale and Servicing Agreement. Amounts properly
withheld under the Code by any Person from a payment to any Noteholder of
interest and/or principal shall be considered as having been paid by the Issuer
to such Noteholder for all purposes of this Indenture.
SECTION 3.02 Maintenance of Office or Agency. The Issuer will maintain in
the Borough of Manhattan, The City of New York, an office or agency where Notes
may be surrendered for registration of transfer or exchange, and where notices
and demands to or upon
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the Issuer in respect of the Notes and this Indenture may be served. The Issuer
hereby initially appoints the Indenture Trustee to serve as its agent for the
foregoing purposes. The Issuer will give prompt written notice to the Indenture
Trustee of the location, and of any change in the location, of any such office
or agency. If at any time the Issuer shall fail to maintain any such office or
agency or shall fail to furnish the Indenture Trustee with the address thereof,
such surrenders, notices and demands may be made or served at the Corporate
Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent
to receive all such surrenders, notices and demands.
SECTION 3.03 Money for Payments To Be Held in Trust. As provided in
Sections 8.02 and 8.03, all payments of amounts due and payable with respect to
any Notes that are to be made from amounts withdrawn from the Collection
Account, the Reserve Account or the Yield Supplement Account pursuant to
Sections 8.02 and 8.03 shall be made on behalf of the Issuer by the Indenture
Trustee or by the Paying Agent, and no amounts so withdrawn from such accounts
for payments of Notes shall be paid over to the Issuer, the Owner Trustee or the
Administrator except as provided in this Section.
On or before each Distribution Date, the Issuer shall deposit in the
Collection Account or, in accordance with the Sale and Servicing Agreement,
cause to be deposited (including the provision of instructions to the Indenture
Trustee to make any required withdrawals from the Reserve Account or the Yield
Supplement Account and to deposit such amounts in the Collection Account), an
aggregate sum sufficient to pay the amounts then becoming due under the Notes
and the Certificates, such sum to be held in trust for the benefit of the
Persons entitled thereto, and (unless the Paying Agent is the Indenture Trustee)
shall promptly notify the Indenture Trustee of its action or failure so to act.
The Indenture Trustee, as Paying Agent, hereby agrees with the Issuer that
it will, and the Issuer will cause each Paying Agent other than the Indenture
Trustee, as a condition to its acceptance of its appointment as Paying Agent, to
execute and deliver to the Indenture Trustee an instrument in which such Paying
Agent shall agree with the Indenture Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of amounts due with respect
to the Notes or Certificates or for release to the Issuer for payment on the
Certificates in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and pay or release such sums to such Persons as herein provided;
(b) give the Indenture Trustee notice of any default by the Issuer (or any
other obligor upon the Notes) of which it has actual knowledge in the making of
any payment required to be made with respect to the Notes or the release of any
amounts to the Issuer to be paid to the Certificateholders;
(c) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture Trustee
all sums so held in trust by such Paying Agent;
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(d) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes (or for
release to the Issuer) if at any time it ceases to meet the standards required
to be met by a Paying Agent at the time of its appointment; and
(e) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes or Certificates (or
assisting the Issuer to withhold from payment to the Certificateholders) of any
applicable withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed after such
amount has become due and payable and after the Indenture Trustee has taken the
steps described in this paragraph shall be discharged from such trust and be
paid to Children's Hospital Los Angeles upon presentation thereto of an Issuer
Request; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof, and all liability of the
Indenture Trustee or such Paying Agent with respect to such trust money shall
thereupon cease. In the event that any Noteholder shall not surrender its Notes
for retirement within six months after the date specified in the written notice
of final payment described in Section 2.07, the Indenture Trustee will give a
second written notice to the registered Noteholders that have not surrendered
their Notes for final payment and retirement. If within one year after such
second notice any Notes have not been surrendered, the Indenture Trustee shall,
at the expense and direction of the Issuer, cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be paid to Children's Hospital Los
Angeles. The Indenture Trustee shall also adopt and employ, at the expense and
direction of the Issuer, any other reasonable means of notification of such
repayment specified by the Issuer or the Administrator.
SECTION 3.04 Existence. The Issuer will keep in full effect its existence,
rights and franchises as a business trust under the laws of the State of
Delaware (unless it becomes, or any successor Issuer hereunder is or becomes,
organized under the laws of any other State or of the United States of America,
in which case the Issuer will keep in full effect its existence, rights and
franchises under the laws of such other jurisdiction) and will obtain and
preserve its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Trust Estate or the Owner Trust Estate.
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SECTION 3.05 Protection of Trust Estate. The Issuer will from time to time
execute and deliver all such supplements and amendments hereto and all such
financing statements, continuation statements, instruments of further assurance
and other instruments, and will take such other action necessary or advisable
to:
(a) maintain or preserve the lien and security interest (and the priority
thereof) of this Indenture or carry out more effectively the purposes hereof;
(b) perfect, publish notice of or protect the validity of any Grant made
or to be made by this Indenture;
(c) enforce any of the Collateral; or
(d) preserve and defend title to the Trust Estate and the rights of the
Indenture Trustee and the Noteholders in such Trust Estate against the claims of
all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 3.05.
SECTION 3.06 Opinions as to Trust Estate.
(a) On the Closing Date, the Issuer shall furnish or cause to be furnished
to the Indenture Trustee an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
execution, recording and filing of this Indenture, any indentures supplemental
hereto, any requisite financing statements and continuation statements and any
other requisite documents necessary to perfect and make effective the lien and
security interest of this Indenture or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) As and when specified in Section 10.02(h) of the Sale and Servicing
Agreement, the Issuer shall furnish or cause to be furnished to the Indenture
Trustee an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the execution, recording,
filing or re-recording and refiling of this Indenture, any indentures
supplemental hereto, any financing statements and continuation statements and
any other requisite documents necessary to maintain the lien and security
interest created by this Indenture or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security interest.
Such Opinion of Counsel shall also describe the execution, recording, filing or
re-recording and refiling of this Indenture, any indentures supplemental hereto,
any financing statements and continuation statements and any other documents
that will, in the opinion of such counsel, be required to maintain the lien and
security interest of this Indenture until the date in the following calendar
year on which such Opinion of Counsel must again be delivered.
SECTION 3.07 Performance of Obligations; Servicing of Receivables.
(a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's material
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covenants or obligations under any instrument or agreement included in the Trust
Estate or that would result in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such instrument or agreement, except as expressly provided in the Basic
Documents.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officer's Certificate of the Issuer
shall be deemed to be action taken by the Issuer. Initially, the Issuer has
contracted with the Servicer and the Administrator to assist the Issuer in
performing its duties under this Indenture.
(c) The Issuer will punctually perform and observe all of its obligations
and agreements contained in the Basic Documents and in the instruments and
agreements included in the Trust Estate, including but not limited to filing or
causing to be filed all UCC financing statements and continuation statements
required to be filed by the terms of the Trust Agreement, this Indenture and the
Sale and Servicing Agreement in accordance with and within the time periods
provided for herein and therein.
(d) If an Authorized Officer of the Issuer shall have knowledge of the
occurrence of a Servicer Default under the Sale and Servicing Agreement, the
Issuer shall promptly notify the Indenture Trustee and the Rating Agencies
thereof, and shall specify in such notice the action, if any, the Issuer is
taking with respect of such default. If a Servicer Default shall arise from the
failure of the Servicer to perform any of its duties or obligations under the
Sale and Servicing Agreement with respect to the Receivables, the Issuer shall
take all reasonable steps available to it to remedy such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers pursuant to Section 8.01 of the
Sale and Servicing Agreement, the Indenture Trustee shall appoint a successor
servicer (the "Successor Servicer"), and such Successor Servicer shall accept
its appointment by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer has not been appointed and
accepted its appointment as set forth in Section 8.02 of the Sale and Servicing
Agreement, the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer and shall thereafter be entitled to the Total
Servicing Fee. Notwithstanding the above, the Indenture Trustee shall, if it
shall be legally unable so to act, appoint or petition a court of competent
jurisdiction to appoint, and the predecessor Servicer, if no successor Servicer
has been appointed at the time the predecessor Servicer has ceased to act, may
petition a court of competent jurisdiction to appoint, any established
institution having a net worth of not less than $100,000,000 and whose regular
business shall include the servicing of automobile and/or light-duty truck
receivables, as the successor to the Servicer under the Sale and Servicing
Agreement. Upon such appointment, the Indenture Trustee will be released from
the duties and obligations of acting as Successor Servicer, such release
effective upon the effective date of the servicing agreement entered into
between the Successor Servicer and the Issuer.
In connection with any such appointment, the Indenture Trustee may make
such arrangements for the compensation of such successor as it and such
Successor Servicer shall agree, subject to the limitations set forth below and
in the Sale and Servicing Agreement, and in
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accordance with Section 8.02 of the Sale and Servicing Agreement, the Issuer
shall enter into an agreement with such Successor Servicer for the servicing of
the Receivables (such agreement to be in form and substance satisfactory to the
Indenture Trustee). If the Indenture Trustee shall succeed to the Servicer's
duties as servicer of the Receivables as provided herein, it shall do so in its
individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI hereof shall be inapplicable to the
Indenture Trustee in its duties as Successor Servicer and the servicing of the
Receivables. In case the Indenture Trustee shall become the Successor Servicer,
the Indenture Trustee shall be entitled to appoint as a subservicer any one of
its Affiliates, provided that the Indenture Trustee, in its capacity as
Successor Servicer, shall remain fully liable for the actions and omissions of
such Affiliate.
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Sale and Servicing Agreement, the Issuer shall promptly notify the Indenture
Trustee. As soon as a Successor Servicer is appointed, the Issuer shall notify
the Indenture Trustee of such appointment, specifying in such notice the name
and address of such Successor Servicer.
(g) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees (i) that it will not, without the prior
written consent of the Indenture Trustee and the Holders of a majority in
Outstanding Amount of the Notes, voting as a single class (excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by NMAC, NARC II or any of their Affiliates, unless at such
time all of the Notes are held of record or beneficially owned by NARC II, NMAC
or any of their Affiliates), amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, waiver, supplement,
termination or surrender of, the terms of any Collateral (except to the extent
otherwise provided in the Sale and Servicing Agreement) or the Basic Documents,
or waive timely performance or observance by the Servicer or the Seller under
the Sale and Servicing Agreement; and (ii) that any such amendment shall not (A)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Receivables or distributions that are
required to be made for the benefit of the Noteholders or change the Interest
Rate or the Specified Reserve Account Balance (except as otherwise provided in
the Basic Documents), in each case without the consent of each of the "adversely
affected" Noteholders, or (B) reduce the aforesaid percentage of the Notes that
is required to consent to any such amendment, without the consent of the Holders
of all the outstanding Notes. If any such amendment, modification, supplement or
waiver shall be so consented to by the Indenture Trustee or such Holders, the
Issuer agrees, promptly following a request by the Indenture Trustee to agree to
such amendment and to execute and deliver, in its own name and at its own
expense, such agreements, instruments, consents and other documents as the
Indenture Trustee may deem necessary or appropriate in the circumstances to
implement such amendment and to cause the relevant Basic Documents, as amended,
to be enforceable against the Issuer. For the purposes of clause (ii) above, an
amendment will be deemed not to "adversely affect" a Noteholder of any Class
only if each Rating Agency confirms that such amendment will not result in a
reduction or withdrawal of its rating on such Class of Notes.
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SECTION 3.08 Negative Covenants. So long as any Notes are Outstanding, the
Issuer shall not:
(a) except as expressly permitted by Basic Documents, sell, transfer,
exchange or otherwise dispose of any of the properties or assets of the Issuer,
including those included in the Trust Estate, unless directed to do so by the
Indenture Trustee;
(b) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly withheld
from such payments under the Code) or assert any claim against any present or
former Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Trust Estate;
(c) except as may be expressly permitted hereby, (A) permit the validity
or effectiveness of this Indenture to be impaired, or permit the lien of this
Indenture to be amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or obligations with
respect to the Notes under this Indenture, (B) permit any lien, charge, excise,
claim, security interest, mortgage or other encumbrance (other than the lien of
this Indenture) to be created on or extend to or otherwise arise upon or burden
the Trust Estate or any part thereof or any interest therein or the proceeds
thereof (other than tax liens, mechanics' liens and other liens that arise by
operation of law, in each case on any of the Financed Vehicles and arising
solely as a result of an action or omission of the related Obligor), (C) permit
the lien of this Indenture not to constitute a valid first priority (other than
with respect to any such tax, mechanics' or other lien) security interest in the
Trust Estate, or (D) dissolve or liquidate in whole or in part; or
(d) assume or incur any indebtedness other than the Notes or as expressly
contemplated by this Indenture (in connection with the obligation to reimburse
Advances from the Trust Estate, or to pay expenses from the Trust Estate) or by
the Basic Documents as in effect on the date hereof.
SECTION 3.09 Annual Statement as to Compliance. The Issuer will cause the
Servicer to deliver to the Indenture Trustee concurrently with its delivery
thereof to the Issuer the annual statement of compliance described in Section
4.09 of the Sale and Servicing Agreement. In addition, on the same date annually
upon which such annual statement of compliance is to be delivered by the
Servicer, the Issuer shall deliver to the Indenture Trustee an Officer's
Certificate stating, as to the Authorized Officer signing such Officer's
Certificate, that:
(a) a review of the activities of the Issuer during such year and of its
performance under this Indenture has been made under such Authorized Officer's
supervision; and
(b) to the best of such Authorized Officer's knowledge, based on such
review, the Issuer has complied with all conditions and covenants under this
Indenture throughout such year, or, if there has been a default in its
compliance with any such condition or covenant, specifying each such default
known to such Authorized Officer and the nature and status thereof.
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
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(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing
under the laws of the United States of America or any State or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Indenture Trustee, in
form satisfactory to the Indenture Trustee, the duty to make due and
punctual payment of the principal of and interest on all Notes and the
performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) no Rating Agency shall have notified the Indenture Trustee and
the Owner Trustee that such transaction might or would result in the
removal or reduction of the rating then assigned thereby to any Class of
Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain each lien and security
interest created by the Trust Agreement, the Sale and Servicing Agreement
or this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation or merger and any related supplemental indenture complies
with this Article III and that all conditions precedent provided in this
Indenture relating to such transaction have been complied with (including
any filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer any of its properties or
assets, including those included in the Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer such
properties and assets of the Issuer shall (A) be a United States citizen
or a Person organized and existing under the laws of the United States of
America or any state or the District of Columbia, (B) expressly assume, by
an indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the duty to make
due and punctual payment of the principal of and interest on all Notes and
the performance or observance of every agreement and covenant of this
Indenture on the part of the Issuer to be performed or observed, all as
provided herein, (C) expressly agrees by means of such supplemental
indenture that all right, title and interest so conveyed or transferred
shall be subject and subordinate to the rights of Holders of the Notes,
(D) unless otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer, the Owner
Trustee and the Indenture Trustee against and from any loss, liability or
expense arising under or related to this Indenture and the Notes, and (E)
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expressly agrees by means of such supplemental indenture that such Person
(or if a group of Persons, then one specified Person) shall make all
filings that counsel satisfactory to such purchaser or transferee and the
Indenture Trustee determines must be made with (1) the Commission (and any
other appropriate Person) required by the Exchange Act or the appropriate
authorities in any state in which the Notes have been sold pursuant to any
qualification or exemption under the securities or "blue sky" laws of such
state, in connection with the Notes or (2) the Internal Revenue Service or
the relevant state or local taxing authorities of any jurisdiction;
(ii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(iii) no Rating Agency shall have notified the Indenture Trustee and
the Owner Trustee that such transaction might or would result in the
removal or reduction of the rating then assigned thereby to any Class of
Notes;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse tax consequence to the
Issuer, any Noteholder or any Certificateholder;
(v) any action that is necessary to maintain each lien and security
interest created by the Trust Agreement, the Sale and Servicing Agreement
or this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating
to such transaction have been complied with (including any filing required
by the Exchange Act).
SECTION 3.11 Successor or Transferee.
(a) Upon any consolidation or merger of the Issuer in accordance with
Section 3.10(a), the Person formed by or surviving such consolidation or merger
(if other than the Issuer) shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), Nissan Auto Receivables 2002-C Owner Trust
will be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes and
the Certificates immediately upon the delivery of written notice to the
Indenture Trustee stating that Nissan Auto Receivables 2002-C Owner Trust is to
be so released.
SECTION 3.12 No Other Business. Unless and until the Issuer shall have
been released from its duties and obligations hereunder, the Issuer shall not
engage in any business
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other than financing, purchasing, owning, selling and managing the Receivables
in the manner contemplated by the Basic Documents and activities incidental
thereto.
SECTION 3.13 No Borrowing. Unless and until the Issuer shall have been
released from its duties and obligations hereunder, the Issuer shall not issue,
incur, assume, guarantee or otherwise become liable, directly or indirectly, for
any indebtedness except for the Notes or other obligations permitted hereunder
(including the obligation to reimburse Advances or certain expenses of the
Servicer) or under another Basic Document (including indemnification expenses of
the Issuer and certain fees and expenses of the Administrator).
SECTION 3.14 Servicer's Notice Obligations. The Issuer shall cause the
Servicer to comply with all of its duties and obligations with respect to the
preparation of reports, the delivery of Officer's Certificates and Opinions of
Counsel and the giving of instructions and notices under the Sale and Servicing
Agreement (including, but not limited to, under Sections 4.08, 4.09, 4.11, 4.13,
5.09 and Article IX thereof).
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Unless and
until the Issuer shall have been released from its duties and obligations
hereunder, except as contemplated by the Sale and Servicing Agreement or this
Indenture, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16 Capital Expenditures. Unless and until the Issuer shall have
been released from its duties and obligations hereunder, the Issuer shall not
make any expenditure (by long-term or operating lease or otherwise) for capital
assets (either realty or personalty).
SECTION 3.17 Removal of Administrator. So long as any Notes are
Outstanding, the Issuer shall not remove the Administrator without cause unless
so instructed by the Owner Trustee or the Indenture Trustee and unless each
Rating Agency shall have received 10 days' written notice thereof and shall not
have notified the Indenture Trustee, the Administrator or the Owner Trustee that
such removal might or would result in the removal or reduction of the rating, if
any, then assigned thereby to any Class of Notes or the Certificates.
SECTION 3.18 Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Servicer, the Owner Trustee or any Certificateholder or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer, (ii) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; provided, however, that the Issuer
may make, or cause to be made, (x) distributions to the Servicer, the Owner
Trustee and the Certificateholders as contemplated by, and to the extent funds
are available for such purpose under, the Sale and Servicing Agreement or the
Trust Agreement, and (y) payments to the Owner Trustee or the Indenture Trustee
pursuant to the
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Administration Agreement. The Issuer will not, directly or indirectly, make
payments to or distributions from the Collection Account except in accordance
with the Basic Documents.
SECTION 3.19 Notice of Events of Default. The Issuer shall give the
Indenture Trustee and each Rating Agency prompt written notice of each Event of
Default hereunder, each default on the part of the Servicer or the Seller of its
obligations under the Sale and Servicing Agreement (including any Servicer
Defaults) and each default on the part of NMAC of its obligations under the
Purchase Agreement. The Indenture Trustee shall notify each Noteholder of record
in writing of any Event of Default promptly upon a Responsible Officer obtaining
actual knowledge thereof. Such notices will be provided in accordance with
Section 2.11.
SECTION 3.20 Further Instruments and Actions. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
SECTION 3.21 Representations and Warranties. The Issuer makes the
following representations and warranties. Such representations and warranties
speak as of the execution and delivery of this Indenture and as of the Closing
Date, but shall survive the Closing Date. Notwithstanding anything to the
contrary, the Indenture Trustee shall not waive any breach of representations or
warranties in this Section 3.21 without 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).
(a) This Indenture creates a valid and continuing security interest (as
defined in the applicable UCC) in the Collateral in favor of the Indenture
Trustee, which security interest is prior to all other Liens, and is enforceable
as such as against creditors of any purchasers from the Issuer.
(b) The Issuer has taken all steps necessary to perfect its security
interest against the Obligor in the property securing the Receivables.
(c) The Collateral constitutes "tangible chattel paper" within the meaning
of the applicable UCC.
(d) The Issuer owns and has good and marketable title to the Collateral
free and clear of any Lien, claim or encumbrance of any Person.
(e) The Issuer has caused or will have caused, within ten days, the filing
of all appropriate financing statements in the proper filing office in the
appropriate jurisdictions under applicable law in order to perfect the security
interest in the Collateral granted to the Indenture Trustee hereunder.
(f) Other than the security interest granted to the Indenture Trustee
pursuant to this Indenture, the Issuer has not pledged, assigned, sold, granted
a security interest in, or otherwise conveyed any of the Collateral. The Issuer
has not authorized the filing of and is not aware of
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any financing statements against the Issuer that includes a description of
collateral covering the Collateral other than any financing statement relating
to the security interest granted to the Indenture Trustee hereunder or a
financing statement as to which the security interest covering the Receivables
has been released. The Issuer is not aware of any judgment or tax lien filings
against the Issuer.
(g) The Servicer, as an agent of the Issuer, has in its possession all
original copies of the Receivable File that constitute or evidence the
Collateral. The Receivable Files that constitute or evidence the Collateral do
not have any marks or notations indicating that they have been pledged, assigned
or otherwise conveyed by the Issuer to any Person other than the Indenture
Trustee. All financing statements filed or to be filed against the Issuer in
favor of the Indenture Trustee in connection herewith describing the Collateral
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 Indenture, will violate the rights of the Indenture Trustee."
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01 Satisfaction and Discharge of Indenture. This Indenture shall
cease to be of further effect with respect to the Notes except as to (i) rights
of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.05, 3.08,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including the rights of the Indenture Trustee under Section
6.07 and the obligations of the Indenture Trustee under Sections 3.03 and 4.02),
and (vi) the rights of the Noteholders and the Certificateholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when:
(a) either (1) all Notes theretofore authenticated and delivered (other
than Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.05 and Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Indenture Trustee for
cancellation or (2) all Notes not theretofore delivered to the Indenture Trustee
for cancellation have become due and payable or will become due and payable
within one year (either because the Final Scheduled Distribution Date for the
Class A-4 Notes is within one year or because the Indenture Trustee has received
notice of the exercise of the option granted pursuant to Section 9.01 of the
Sale and Servicing Agreement) and the Issuer has irrevocably deposited or caused
to be irrevocably deposited with the Indenture Trustee cash or direct
obligations of or obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Indenture Trustee for cancellation
when due;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
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(c) the Issuer has delivered to the Indenture Trustee an Officer's
Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture
Trustee) an Independent Certificate from a firm of certified public accountants,
each meeting the applicable requirements of Section 11.01 and, subject to
Section 11.02, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been complied
with.
SECTION 4.02 Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and (a)
applied by it in accordance with the provisions of the Notes and this Indenture
to the payment, either directly or through any Paying Agent, as the Indenture
Trustee may determine, to the Holders of the particular Notes for the payment of
which such moneys have been deposited with the Indenture Trustee, of all sums
due and to become due thereon for principal and interest or (b) released to the
Owner Trustee for application pursuant to the Trust Agreement or the Sale and
Servicing Agreement; but such moneys need not be segregated from other funds
except to the extent required herein or in the Sale and Servicing Agreement or
required by law.
SECTION 4.03 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.03 or 4.02 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
ARTICLE V
Remedies
SECTION 5.01 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Note when the same
becomes due and payable, and such default shall continue for a period of five
days;
(b) default in the payment of the principal of or any installment of the
principal of any Note when the same becomes due and payable;
(c) default in the observance or performance of any covenant or agreement
of the Issuer made in this Indenture (other than a covenant or agreement, a
default in the observance or performance of which is elsewhere in this Section
specifically dealt with) which shall continue or not be cured for a period of 90
days after there shall have been given, by registered or certified mail, to the
Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by
the Holders of at least 25% of the Outstanding Amount of the Notes, acting
together as a single class, a written notice specifying such default or
incorrect representation or warranty and requiring it to be remedied and stating
that such notice is a notice of Default hereunder;
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(d) any representation or warranty of the Issuer made in this Indenture or
in any certificate or other writing delivered pursuant hereto or in connection
herewith shall prove to have been incorrect in any material respect as of the
time when the same shall have been made, and such default shall continue or not
be cured, or the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been eliminated or
otherwise cured, for a period of 30 days after there shall have been given, by
registered or certified mail, to the Issuer by the Indenture Trustee or to the
Issuer and the Indenture Trustee by the Holders of at least 25% of the
Outstanding Amount of the Notes, acting together as a single Class, a written
notice specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a notice of Default
hereunder;
(e) the filing of a petition seeking entry of a decree or order for relief
by a court having jurisdiction in the premises in respect of the Issuer or any
substantial part of the Trust Estate in an involuntary case under any applicable
federal or state bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any substantial part of
the Trust Estate, or ordering the winding-up or liquidation of the Issuer's
affairs, and such petition shall remain unstayed and in effect for a period of
90 consecutive days; or
(f) the commencement by the Issuer of a voluntary case under any
applicable federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Trust Estate, or the making by the Issuer of any general
assignment for the benefit of creditors, or the failure by the Issuer generally
to pay its debts as such debts become due, or the taking of any action by the
Issuer in furtherance of any of the foregoing.
The Issuer shall deliver to the Indenture Trustee, within five Business
Days after the occurrence thereof, written notice in the form of an Officer's
Certificate of any Default that with the giving of notice or the lapse of time
would become an Event of Default under clause (d), stating the status of such
Default and any action the Issuer is taking or proposes to take with respect
thereto.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Holders of a majority of the Outstanding Amount of the
Notes, voting as a single class (excluding for such purposes the outstanding
principal amount of any Notes held of record or beneficially owned by NMAC, NARC
II or any of their Affiliates, unless at such time all of the Notes are held of
record or beneficially owned by NARC II, NMAC or any of their Affiliates) may
declare all the Notes to be immediately due and payable, by a notice in writing
to the Issuer (and to the Indenture Trustee if given by Noteholders), and upon
any such declaration the unpaid principal amount of such Notes, together with
accrued and unpaid interest thereon through the date of acceleration, shall
become immediately due and payable.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as
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hereinafter in this Article V provided, the Holders of a majority of the
Outstanding Amount of the Notes, voting as a single class (excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by NMAC, NARC II or any of their Affiliates, unless at such
time all of the Notes are held of record or beneficially owned by NARC II, NMAC
or any of their Affiliates), by written notice to the Issuer and the Indenture
Trustee, may rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Securities Intermediary in
the name of the Indenture Trustee a sum sufficient to pay:
(i) all payments of principal of and interest on the Notes and all
other amounts that would then be due hereunder or upon such Notes if the
Event of Default giving rise to such acceleration had not occurred; and
(ii) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the principal of
the Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.
(a) The Issuer covenants that if (i) default is made in the payment of any
interest on any Note, so long as any amounts remain unpaid with respect to the
Notes, when the same becomes due and payable, and such default continues for a
period of five days, or (ii) default is made in the payment of the principal of
or any installment of the principal of any Note when the same becomes due and
payable, the Issuer will, upon demand of the Indenture Trustee, pay to the
Indenture Trustee, for the benefit of the Holders of the Notes, the whole amount
then due and payable on the Notes for principal and interest, with interest upon
the overdue principal and, to the extent payment at such rate of interest shall
be legally enforceable, upon overdue installments of interest at the rate borne
by the Notes and in addition thereto such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Indenture Trustee and
its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
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(c) If an Event of Default occurs and is continuing, the Indenture Trustee
may, as more particularly provided in Section 5.04, in its discretion, proceed
to protect and enforce its rights and the rights of the Noteholders and,
incidentally thereto, the Certificateholders, by such appropriate Proceedings as
the Indenture Trustee shall deem most effective to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy or legal or equitable right vested in the
Indenture Trustee by this Indenture or by law.
(d) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Trust Estate, Proceedings under Title 11 of the United States Code or any
other applicable federal or state bankruptcy, insolvency or other similar law,
or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, then, irrespective of whether the principal of any Notes
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Indenture Trustee shall have made any
demand pursuant to the provisions of this Section, the Indenture Trustee shall
be entitled and empowered, by intervention in such Proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes, and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of Notes in any election of a trustee, a standby
trustee or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee or the Holders of Notes allowed in any judicial proceedings
relative to the Issuer, its creditors and its property.
Any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee and, in the event that the Indenture Trustee
shall consent to the making of payments
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directly to such Noteholders, to pay to the Indenture Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Indenture Trustee,
each predecessor Indenture Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Notes.
(g) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.04 Remedies; Priorities.
(a) If an Event of Default shall have occurred and be continuing and
result in the acceleration of the Notes, the Indenture Trustee shall make
payments on the Notes and to the Owner Trustee as set forth in Section 5.06(d)
of the Sale and Servicing Agreement, rather than pursuant to Section 5.06(c)
thereof.
(b) If the Indenture Trustee, in compliance with Section 5.04(a), is
deemed to have a conflict of interest under the TIA and is required to resign as
Indenture Trustee hereunder, the Issuer shall, pursuant to Section 6.08, cause
the Servicer to appoint a successor Indenture Trustee.
(c) In accordance with Section 5.04(b), if an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.05):
(i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and
any other obligor upon such Notes moneys adjudged due;
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(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture with respect to the Trust Estate;
(iii) exercise any remedies of a secured party under the UCC and
take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee and the Noteholders; and
(iv) sell the Trust Estate or any portion thereof or rights or
interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; provided, however, that the
Indenture Trustee may not sell or otherwise liquidate the Trust Estate
following an Event of Default, other than an Event of Default described in
Section 5.01(a) or (b), unless (A) the Holders of 100% of the Outstanding
Amount of the Notes, voting as a single class, consent thereto (but
excluding for purposes of such vote all Notes held or beneficially owned
by NMAC, NARC II or any of their Affiliates, unless at such time all of
the Notes are held or beneficially owned by NMAC, NARC II and their
Affiliates), or (B) the proceeds of such sale or liquidation distributable
to the Noteholders are sufficient to discharge in full all amounts then
due and unpaid upon the Notes for principal and interest, or (C) the
Indenture Trustee determines that the Trust Estate may not continue to
provide sufficient funds on an ongoing basis to make all payments of
principal of and interest on the Notes as they would have become due if
the Notes had not been declared due and payable, and the Indenture Trustee
obtains the consent of Holders of a 66 2/3% of the Outstanding Amount of
the Notes, voting as a single class (but excluding for purposes of such
vote all Notes held or beneficially owned by NMAC, NARC II or any of their
Affiliates, unless at such time all of the Notes are held or beneficially
owned by NMAC, NARC II and their Affiliates). In determining such
sufficiency or insufficiency with respect to clause (B) and (C), the
Indenture Trustee may, but need not, obtain and rely upon an opinion of an
Independent investment banking or accounting firm of national reputation
as to the feasibility of such proposed action and as to the sufficiency of
the Trust Estate for such purpose.
(d) The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before such
record date, the Issuer shall mail to each Noteholder and the Indenture Trustee
a notice that states the related record date, payment date and amount to be
paid.
SECTION 5.05 Optional Preservation of the Receivables. If the Notes have
been declared to be due and payable under Section 5.02 following an Event of
Default and such declaration and its consequences have not been rescinded and
annulled, the Indenture Trustee may, unless otherwise directed by the Holders of
at least a majority of the Outstanding Amount of the Notes, voting as a single
class (excluding from such action and calculation any Notes held by NMAC, NARC
II or any of their Affiliates, unless at such time all of the Notes are held of
record or beneficially owned by NARC II, NMAC or any of their Affiliates), but
need not, elect to maintain possession of the Trust Estate and direct the
Issuer, Servicer and Administrator not to take steps to liquidate the
Receivables. It is the desire of the parties hereto and the Noteholders that
there be at all times sufficient funds for the payment of principal of and
interest on the Notes, and the Indenture Trustee shall take such desire into
account when determining whether or not to maintain possession of the Trust
Estate. In determining whether to maintain possession
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of the Trust Estate, the Indenture Trustee may, but need not, obtain and rely
upon an opinion of an Independent investment banking or accounting firm of
national reputation as to the feasibility of such proposed action and as to the
sufficiency of the Trust Estate for such purpose.
SECTION 5.06 Limitation of Suits. No Holder of any Note shall have any
right to institute any Proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder unless such Xxxxxx has previously given written notice to the
Indenture Trustee of a continuing Event of Default, and:
(a) the Event of Default arises from the Servicer's failure to remit
payments when due; or
(b) the Holders of not less than 25% of the Outstanding Amount of the
Notes, voting as a single class (excluding for such purpose the outstanding
principal amount of any Notes held of record or beneficially owned by NARC II,
NMAC or any of their Affiliates, unless at such time all of the Notes are held
of record or beneficially owned by NARC II, NMAC or any of their Affiliates)
have made written request to the Indenture Trustee to institute such Proceeding
in respect of such Event of Default in its own name as Indenture Trustee
hereunder and have offered to the Indenture Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in complying with such
request, the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceedings, and no
direction inconsistent with that written request has been given to the Indenture
Trustee during the 60-day period by the holders of a majority in principal
amount of those outstanding Notes (or relevant class or classes of Notes).
It is understood and intended that no one or more Holders of Notes shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Notes or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Holders of Notes,
each representing less than a majority of the Outstanding Amount of the Notes,
the Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Note on or after the
respective due dates thereof expressed in such Note and in this Indenture (in
each case with reference to the calculations to be made pursuant to the Sale and
Servicing Agreement) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
SECTION 5.08 Restoration of Rights and Remedies. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture
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and such Proceeding has been discontinued or abandoned for any reason or has
been determined adversely to the Indenture Trustee or to such Noteholder, then
and in every such case the Issuer, the Indenture Trustee and the Noteholders
shall, subject to any determination in such Proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Indenture Trustee and the Noteholders shall continue as
though no such Proceeding had been instituted.
SECTION 5.09 Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Holder of any Note to exercise any right or remedy
accruing upon any Default or Event of Default shall impair any such right or
remedy or constitute a waiver of any such Default or Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Indenture Trustee or to the Noteholders may be exercised from time to
time, and as often as may be deemed expedient, by the Indenture Trustee or by
the Noteholders, as the case may be.
SECTION 5.11 Control by Noteholders. The Holders of a majority of the
Outstanding Amount of the Notes, voting as a single class (excluding for such
purpose the outstanding principal amount of any Notes held of record or
beneficially owned by NARC II, NMAC or any of their Affiliates, unless at such
time all of the Notes are held of record or beneficially owned by NARC II, NMAC
or any of their Affiliates), shall have the right to direct the time, method and
place of conducting any Proceeding for any remedy available to the Indenture
Trustee with respect to the Notes or exercising any trust or power conferred on
the Indenture Trustee; provided that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture; and
(b) any direction to the Indenture Trustee to sell or liquidate the Trust
Estate shall be by Holders of Notes representing not less than the applicable
percentage of the Outstanding Amount of the Notes set forth in Section
5.04(c)(iv); and
(c) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee that is not inconsistent with such direction.
Notwithstanding the rights of Noteholders set forth in this Section,
subject to Section 6.01, the Indenture Trustee need not take any action that it
determines might involve it in liability or might materially adversely affect
the rights of any Noteholders not consenting to such action.
SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the
acceleration of the maturity of the Notes as provided in Section 5.02 or the
liquidation or sale of
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the Trust Estate pursuant to Section 5.04, the Holders of a majority of the
Outstanding Amount of the Notes, voting as a single class (excluding for such
purposes the outstanding principal amount of any Notes held of record or
beneficially owned by NMAC, NARC II or any of their Affiliates, unless at such
time all of the Notes are held of record or beneficially owned by NARC II, NMAC
or any of their Affiliates) may waive any past Default or Event of Default and
its consequences except a Default or Event of Default in (a) the deposit of
collections or other required amounts, (b) any required payment from amounts
held in Accounts in respect of amounts due on the Notes, (c) payment of
principal or interest on the Notes, or (d) an Event of Default in respect of a
covenant or provision hereof that cannot be modified or amended without the
consent of the Holder of each Note. In the case of any such waiver, the Issuer,
the Indenture Trustee and the Holders of the Notes shall be restored to their
former positions and rights hereunder, respectively.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note or Note Owner by such Xxxxxx's acceptance of such
Note or beneficial interest therein, as the case may be, shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or a group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes, (c) any suit instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture.
SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall
34
be impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Trust Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.04(a).
SECTION 5.16 Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and
at the Administrator's expense, the Issuer shall take all such lawful action as
the Indenture Trustee may request to compel or secure the performance and
observance by the Seller and the Servicer, as applicable, of each of their
obligations to the Issuer or to each other under or in connection with the Sale
and Servicing Agreement or by the Seller of its remedies under or in connection
with the Purchase Agreement, and to exercise any and all rights, remedies,
powers and privileges lawfully available to the Issuer under or in connection
with the Sale and Servicing Agreement or the Purchase Agreement to the extent
and in the manner directed by the Indenture Trustee, including the transmission
of notices of default on the part of the Seller or the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by the Seller or the Servicer of each of their respective
obligations under the Sale and Servicing Agreement or the Purchase Agreement.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the direction (which direction shall be in writing or by
telephone, confirmed in writing promptly thereafter) of the Holders of a
majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purposes the outstanding principal amount of any Notes held
of record or beneficially owned by NMAC, NARC II or any of their Affiliates,
unless at such time all of the Notes are held of record or beneficially owned by
NARC II, NMAC or any of their Affiliates), shall, exercise all rights, remedies,
powers, privileges and claims of the Issuer against the Seller or the Servicer
under or in connection with the Sale and Servicing Agreement or the Purchase
Agreement, or against the Administrator under the Administration Agreement,
including the right or power to take any action to compel or secure performance
or observance by the Seller, the Servicer or the Administrator, of each of their
obligations to the Issuer thereunder and to give any consent, request, notice,
direction, approval, extension, or waiver thereunder and any right of the Issuer
to take such action shall be suspended.
ARTICLE VI
The Indenture Trustee
SECTION 6.01 Duties of Indenture Trustee. The Indenture Trustee, both
prior to and after the occurrence of a Servicer Default under the Sale and
Servicing Agreement, undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture.
(a) The Indenture Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Indenture Trustee that shall be specifically required to be furnished
pursuant to any provision of this Indenture, shall examine them to determine
whether they conform on their face to the requirements of this Indenture.
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(b) No provision of this Indenture shall be construed to relieve the
Indenture Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misfeasance; provided,
however, that:
(i) the duties and obligations of the Indenture Trustee shall be
determined solely by the express provisions of this Indenture, the
Indenture Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture, no
implied covenants or obligations shall be read into this Indenture against
the Indenture Trustee, the permissive right of the Indenture Trustee to do
things enumerated in this Indenture shall not be construed as a duty and,
in the absence of bad faith on the part of the Indenture Trustee, the
Indenture Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Indenture Trustee and conforming
on their face to the requirements of this Indenture;
(ii) the Indenture Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Indenture Trustee was negligent in performing its
duties in accordance with the terms of this Indenture; and
(iii) the Indenture Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in good faith
in accordance with the direction of (i) the Holders of at least a majority
of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purposes the outstanding principal amount of any Notes
held of record or beneficially owned by NARC II, NMAC or any of their
Affiliates, unless at such time all of the Notes are held of record or
beneficially owned by NARC II, NMAC or any of their Affiliates), relating
to the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power
conferred upon the Indenture Trustee under this Indenture.
(c) The Indenture Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties under this Indenture, or in the exercise of any of its rights or powers,
if there shall be reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) All information obtained by the Indenture Trustee regarding the
Obligors and the Receivables contained in the Trust, whether upon the exercise
of its rights under this Indenture or otherwise, shall be maintained by the
Indenture Trustee in confidence and shall not be disclosed to any other Person,
unless such disclosure is required by any applicable law or regulation or
pursuant to subpoena.
(e) If (i) pursuant to Section 3.02 of the Sale and Servicing Agreement, a
Responsible Officer of the Indenture Trustee discovers that a representation or
warranty with respect to a Receivable was incorrect as of the time specified
with respect to such representation and warranty and such incorrectness
materially and adversely affects such Receivable, or (ii) pursuant to Section
4.06 of the Sale and Servicing Agreement, a Responsible Officer of the
36
Indenture Trustee discovers that a covenant of the Servicer has been breached
with respect to a Receivable that would materially and adversely affect such
Receivable, the Indenture Trustee shall give prompt written notice to the
Servicer and the Owner Trustee of such incorrectness.
SECTION 6.02 Rights of Indenture Trustee.
(a) Except as otherwise provided in Section 6.01:
(i) the Indenture Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of an authorized signatory, certificate of auditors or any
other certificate, statement, instrument, opinion, report, notice,
request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(ii) the Indenture Trustee may consult with counsel and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it under this
Indenture in good faith and in accordance with such Opinion of Counsel;
(iii) the Indenture Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture or the Sale and
Servicing Agreement, or to institute, conduct or defend any litigation
under this Indenture, or in relation to this Indenture or the Sale and
Servicing Agreement, at the request, order or direction of any of the
Noteholders pursuant to the provisions of this Indenture or the Sale and
Servicing Agreement, unless such Noteholders shall have offered to the
Indenture Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby;
(iv) the Indenture Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(v) the Indenture Trustee shall not be bound to recalculate,
reverify, or make any investigation into the facts of matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing to do so by Holders of Notes
evidencing not less than 25% of the aggregate Outstanding Amount of the
Notes; provided, however, that if the payment within a reasonable time to
the Indenture Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Indenture Trustee, not reasonably assured to the Indenture Trustee by
the security afforded to it by the terms of this Indenture, the Indenture
Trustee may require reasonable indemnity against such cost, expense or
liability as a condition to so proceeding; the reasonable expense of every
such examination shall be paid by the Administrator or, if paid by the
Indenture Trustee, shall be reimbursed by the Administrator upon demand;
and nothing in this clause shall derogate from the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors; and
37
(vi) the Indenture Trustee may execute any of the trusts or powers
under this Indenture or perform any duties under this Indenture either
directly or by or through agents or attorneys or a custodian.
(b) No Noteholder will have any right to institute any proceeding with
respect to this Indenture except upon satisfying the conditions set forth in
Section 5.06.
SECTION 6.03 Individual Rights of Indenture Trustee. The Indenture Trustee
in its individual or any other capacity may become the Holder, beneficial owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, in so doing the Indenture Trustee must comply with Sections
6.11 and 6.12.
SECTION 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee makes
no representations as to the validity or sufficiency of this Indenture or of the
Notes (other than the execution by the Indenture Trustee on behalf of the Trust
of, and the certificate of authentication on, the Notes), or of the
Certificates. The Indenture Trustee shall have no obligation to perform any of
the duties of the Servicer or the Administrator unless explicitly set forth in
this Indenture. The Indenture Trustee shall at no time have any responsibility
or liability for or with respect to the legality, validity and enforceability of
the Notes or any Receivable, any ownership interest in any Financed Vehicle, or
the maintenance of any such ownership interest, or for or with respect to the
efficacy of the Trust or its ability to generate the payments to be distributed
to Noteholders under this Indenture, including without limitation the validity
of the assignment of the Receivables to the Trust or of any intervening
assignment; the existence, condition, location and ownership of any Receivable
or Financed Vehicle; the existence and enforceability of any physical damage or
credit life or credit disability insurance; the existence and contents of any
retail installment sales contract or any computer or other record thereof; the
completeness of any retail installment sales contract; the performance or
enforcement of any retail installment sales contract; the compliance by the
Issuer with any covenant or the breach by the Issuer, Seller or Servicer of any
warranty or representation made under this Indenture or in any Basic Document or
other related document and the accuracy of any such warranty or representation
prior to the Indenture Trustee's receipt of notice or other discovery of any
noncompliance therewith or any breach thereof; the acts or omissions of the
Issuer, Seller or the Servicer; or any action by the Indenture Trustee taken at
the instruction of the Servicer, provided, however, that the foregoing shall not
relieve the Indenture Trustee of its obligation to perform its duties under this
Indenture. Except with respect to a claim based on the failure of the Indenture
Trustee to perform its duties under this Indenture or based on the Indenture
Trustee's willful misconduct, bad faith or negligence, no recourse shall be had
for any claim based on any provision of this Indenture, the Notes or
Certificates or assignment thereof against the institution serving as the
Indenture Trustee in its individual capacity. The Indenture Trustee shall not
have any personal obligation, liability or duty whatsoever to any Noteholder or
any other Person with respect to any such claim, and any such claim shall be
asserted solely against the Trust or any indemnitor who shall furnish indemnity
as provided in this Indenture. The Indenture Trustee shall not be accountable
for the use or application by the Issuer of any of the Notes or of the proceeds
of such Notes, or for the use or application of any funds paid to the Servicer
in respect of the Notes.
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SECTION 6.05 Notice of Defaults. If a Responsible Officer of the Indenture
Trustee knows that a Default has occurred and is continuing, the Indenture
Trustee shall mail to each Noteholder notice of such Default within 10 days of
the occurrence thereof. Except in the case of a Default in payment of principal
of or interest on any Note, the Indenture Trustee may withhold such notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Noteholders.
SECTION 6.06 Reports by Indenture Trustee to Holders. The Indenture
Trustee shall deliver or cause to be delivered annually to each Noteholder of
record such information as may be required to enable such holder to prepare its
federal and state income tax returns. The Indenture Trustee shall also deliver
or cause to be delivered annually to each Noteholder of record a report relating
to its eligibility and qualification to continue as Indenture Trustee under this
Indenture, any amounts advanced by it under this Indenture, the amount, interest
rate and maturity date of certain indebtedness owed by the Trust to such
Indenture Trustee, in its individual capacity, the property and funds physically
held by such Indenture Trustee in its capacity as such, and any action taken by
it that materially affects the Notes and that has not been previously reported.
SECTION 6.07 Compensation and Indemnity. The Issuer shall cause the
Servicer to pay to the Indenture Trustee from time to time reasonable
compensation for its services. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall cause the Servicer to reimburse the Indenture Trustee for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection and
the costs of implementing any Swap Agreement as contemplated by Section 9.01, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Indenture Trustee's agents, counsel, accountants and experts. The Administrator
shall indemnify or shall cause the Servicer to indemnify the Indenture Trustee
against any and all loss, liability or expense (including reasonable attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Indenture Trustee shall notify the
Administrator and the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Indenture Trustee to so notify the Administrator and
the Servicer shall not relieve the Administrator or the Servicer of its
obligations hereunder. The Administrator shall defend or shall cause the
Servicer to defend any such claim, and the Indenture Trustee may have separate
counsel and the Administrator shall pay or shall cause the Servicer to pay the
fees and expenses of such counsel. Neither the Administrator nor the Servicer
need reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
The Administrator's payment obligations to the Indenture Trustee pursuant
to this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.01(f) or (g) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable federal or state bankruptcy, insolvency or similar law.
39
SECTION 6.08 Replacement of Indenture Trustee. The Indenture Trustee may
resign at any time by providing written notice of its resignation to the Issuer.
The Administrator may remove the Indenture Trustee if:
(a) the Indenture Trustee fails to comply with Section 6.11;
(b) the Indenture Trustee is adjudged a bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(d) the Indenture Trustee otherwise becomes legally or practically
incapable of fulfilling its duties hereunder.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Servicer
shall promptly appoint a successor Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.08.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee, to the Servicer and to the
Administrator. Thereupon the resignation or removal of the retiring Indenture
Trustee shall become effective, and the successor Indenture Trustee shall have
all the rights, powers and duties of the Indenture Trustee under this Indenture.
The successor Indenture Trustee shall mail a notice of its succession to
Noteholders. The retiring Indenture Trustee shall promptly transfer all property
held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 30 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Administrator or the Holders of a majority in Outstanding Amount of
the Notes may petition any court of competent jurisdiction for the appointment
of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may at any time thereafter petition any court of competent jurisdiction for the
removal of the Indenture Trustee and the appointment of a successor Indenture
Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's and the Administrator's obligations under Section 6.07
shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.09 Successor Indenture Trustee by Xxxxxx. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another Person, the
resulting, surviving or transferee corporation without any further act shall be
the successor Indenture Trustee if such surviving Person or transferee
corporation or banking shall be otherwise qualified and eligible under Section
6.11. The
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Indenture Trustee shall provide the Issuer, the Servicer and the Rating Agencies
reasonable prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Trust Estate may at the time be located or for the purpose of
implementing any Swap Agreement as contemplated by Section 9.01, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity and for the benefit of the Noteholders,
such title to the Trust Estate, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Indenture Trustee may consider necessary or desirable. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a trustee under Section 6.11 and no notice to Noteholders of the appointment of
any co-trustee or separate trustee shall be required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon such separate trustee or co-trustee shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in and/or directing such act), except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed the Indenture Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
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(iii) the Indenture Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts thereupon conferred, shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Indenture Trustee or separately, as may be provided therein, subject to
all the provisions of this Indenture, including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall at
all times satisfy the requirements of TIA Section 310(a). The Indenture Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition and it or its parent
shall have a long-term debt rating of "Baa3" or better by Xxxxx'x or shall
otherwise be acceptable to Xxxxx'x. The Indenture Trustee shall comply with TIA
Section 310(b), including the optional provision permitted by the second
sentence of TIA Section 310(b)(9); provided, however, that there shall be
excluded from the operation of TIA Section 310(b)(1) any indenture or indentures
under which other securities of the Issuer are outstanding if the requirements
for such exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 6.12 Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
SECTION 6.13 Acknowledgement by Indenture Trustee of its Obligations Under
the Sale and Servicing Agreement. The Indenture Trustee hereby agrees and
consents to the provisions of the Sale and Servicing Agreement applicable to it
(including, without limitation, Sections 5.06, 5.07, 5.09 thereof) and agrees to
be bound by such provisions.
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ARTICLE VII
Noteholders' Lists and Reports
SECTION 7.01 Note Registrar To Furnish Names and Addresses of Noteholders.
The Note Registrar shall furnish or cause to be furnished to the Indenture
Trustee, the Owner Trustee, the Servicer or the Administrator, within 15 days
after receipt by the Note Registrar of a written request therefrom, a list of
the names and addresses of the Noteholders of any Class as of the most recent
Record Date. If three or more Noteholders, or one or more Holders evidencing not
less than 25% of the Outstanding Amount of the Notes (hereinafter referred to as
"Applicants"), apply in writing to the Indenture Trustee, and such application
states that the Applicants desire to communicate with other Noteholders with
respect to their rights under this Indenture or under the Notes and such
application is accompanied by a copy of the communication that such Applicants
propose to transmit, then the Indenture Trustee shall, within five Business Days
after the receipt of such application, afford such Applicants access, during
normal business hours, to the current list of Noteholders. Such Indenture
Trustee may elect not to afford the requesting Noteholders access to the list of
Noteholders if it agrees to mail the desired communication by proxy, on behalf
of and at the expense of the requesting Noteholders, to all Noteholders. Every
Noteholder, by receiving and holding a Note, agrees with the Indenture Trustee
and the Issuer that none of the Indenture Trustee, the Owner Trustee, the
Issuer, the Servicer or the Administrator shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Noteholders under this Indenture, regardless of the source from which such
information was derived.
If the Indenture Trustee shall cease to be the Note Registrar, then
thereafter the Administrator will furnish or cause to be furnished to the
Indenture Trustee not more than five days after the most recent Record Date or
at such other times as the Indenture Trustee reasonably may request in writing,
a list, in such form as the Indenture Trustee reasonably may require, of the
names and addresses of the Holders of Notes as of such Record Date.
SECTION 7.02 Preservation of Information; Communications to Noteholders.
(a) The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Notes
contained in the most recent list furnished to the Indenture Trustee as provided
in Section 7.01 and the names and addresses of Holders of Notes received by the
Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in such Section 7.01 upon receipt
of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 3.12(c).
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SECTION 7.03 Reports by Issuer.
(a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) that the Issuer may be required
to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with the rules and regulations prescribed from time to time by
the Commission such additional information, documents and reports with
respect to compliance by the Issuer with the conditions and covenants of
this Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section 313(c))
such summaries of any information, documents and reports required to be
filed by the Issuer pursuant to clauses (i) and (ii) of this Section
7.03(a) and by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on March 31 of each year, unless the fiscal year of the Servicer ends
on some other date, in which case, the fiscal year of the Issuer shall be the
same as the fiscal year of the Servicer.
SECTION 7.04 Reports by Indenture Trustee. If required by TIA Section
313(a), within 60 days after the end of each Fiscal Year of the Issuer,
beginning with March 31, 2003, the Indenture Trustee shall mail to each
Noteholder as required by TIA Section 313(c) a brief report dated as of such
date that complies with TIA Section 313(a). The Indenture Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Noteholders shall be
filed by the Indenture Trustee with the Commission and each stock exchange, if
any, on which the Notes are listed. The Issuer shall notify the Indenture
Trustee if and when the Notes are listed on any stock exchange.
SECTION 7.05 Indenture Trustee Website. The Indenture Trustee may make
available to the Noteholders, via the Indenture Trustee's website, all reports
or notices required to be provided by the Indenture Trustee under the terms of
this Indenture and, with the consent or at the direction of the Servicer, such
other information regarding the Notes as the Indenture Trustee may have in its
possession, but only with the use of a password provided by the Indenture
Trustee or its agent to such Person upon receipt by the Indenture Trustee from
such Person of a certification in the form of Exhibit B hereto; provided,
however, that the Indenture Trustee or its agent shall provide such password to
each party to this Indenture without requiring such certification. Any
information that is disseminated in accordance with the provisions of this
Section 7.05 shall not be required to be disseminated in any other form or
manner. Except for
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documents prepared by the Indenture Trustee and subject to its obligations under
this Indenture, the Indenture Trustee will make no representation or warranties
as to the accuracy or completeness of such documents and will assume no
responsibility therefor.
The Indenture Trustee's internet website shall be initially located
at xxx.XXXXxx.xxx or at such other address as shall be specified by the
Indenture Trustee from time to time in writing to the parties hereto. In
connection with providing access to the Trustee's internet website, the
Indenture Trustee may require registration and the acceptance of a disclaimer.
ARTICLE VIII
Accounts, Disbursements and Releases
SECTION 8.01 Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it as provided in this Indenture.
Except as otherwise expressly provided in this Indenture, if any default occurs
in the making of any payment or performance under any agreement or instrument
that is part of the Trust Estate, the Indenture Trustee may take such action as
may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default or Event of Default under this
Indenture and any right to proceed thereafter as provided in Article V.
SECTION 8.02 Accounts.
(a) On or prior to the Closing Date, (i) the Issuer shall cause the
Servicer to establish and maintain, in the name of the Indenture Trustee, for
the benefit of the Noteholders and, to the extent set forth herein, the
Certificateholders, the Collection Account as provided in Section 5.01 of the
Sale and Servicing Agreement and (ii) the Issuer will establish and maintain
with the Securities Intermediary and pledge to the Indenture Trustee for the
benefit of the Noteholders the Yield Supplement Account in the name of the
Indenture Trustee pursuant to the Yield Supplement Agreement as provided in
Section 5.08 of the Sale and Servicing Agreement and the Securities Account
Control Agreement.
(b) On or prior to the Closing Date, the Issuer will cause the Seller to,
pursuant to the Securities Account Control Agreement, establish and maintain
with the Securities Intermediary in the name of the Indenture Trustee, for the
benefit of the Noteholders, the Reserve Account as provided in Section 5.07 of
the Sale and Servicing Agreement.
(c) The Indenture Trustee shall transfer all amounts remaining on deposit
in the Collection Account on the Distribution Date on which the Notes of all
Classes have been paid in full (or substantially all of the Trust Estate is
otherwise released from the lien of this Indenture) to the Trust Collection
Account and shall take all necessary or appropriate actions to transfer all of
its right, title and interest in the Collection Account, all funds or
investments held therein and all proceeds thereof, whether or not on behalf of
the Securityholders, to the Owner Trustee for
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the benefit of the Certificateholders, subject to the limitations set forth
herein with respect to amounts held for payment to Noteholders that do not
promptly deliver a Note for payment on such Distribution Date.
(d) The Indenture Trustee shall transfer all amounts remaining on deposit
in the Yield Supplement Account on the Distribution Date on which the Notes of
all Classes have been paid in full (or substantially all of the Trust Estate is
otherwise released from the lien of this Indenture) to the Owner Trustee for the
benefit of the Certificateholders and shall take all necessary or appropriate
actions to transfer all of its right, title and interest in the Yield Supplement
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, which amounts the Owner Trustee shall deposit into the
Trust Collection Account, subject to the limitations set forth herein with
respect to amounts held for payment to Noteholders that do not promptly deliver
a Note for payment on such Distribution Date.
SECTION 8.03 General Provisions Regarding Accounts.
(a) So long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Collection Account shall be
invested in Eligible Investments and reinvested by the Indenture Trustee at the
written direction of the Servicer, subject to the provisions of Section 5.01 of
the Sale and Servicing Agreement. All income or other gain from investments of
moneys deposited in the Collection Account shall be deposited by the Indenture
Trustee in the Collection Account and paid to the Servicer as servicing
compensation on any Business Day on or after which such amount is deposited in
the Collection Account, and any loss resulting from such investments shall be
charged to such account. The Servicer will not direct the Indenture Trustee, and
the Issuer shall cause the Servicer not, to make any investment of any funds or
to sell any investment held in the Collection Account unless the security
interest Granted and perfected in such account will continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) So long as no Default or Event of Default shall have occurred and be
continuing, all or a portion of the funds in the Reserve Account and the Yield
Supplement Account shall be invested in Eligible Investments and reinvested by
the Indenture Trustee at the written direction of the Servicer, subject to the
provisions of Section 5.07 and Section 5.08, respectively, of the Sale and
Servicing Agreement and the provisions of the Securities Account Control
Agreement. All income or other gain from investments of moneys deposited in the
Reserve Account shall be paid by the Indenture Trustee to the Seller on any
Business Day on or after which such amount is deposited in the Reserve Account.
All income or other gain from investments of moneys deposited in the Yield
Supplement Account shall be deposited into the Collection Account on each
Distribution Date. Subject to the right of the Indenture Trustee to make
withdrawals therefrom, as directed by the Servicer, for the purposes and in the
amounts set forth in Section 5.06 of the Sale and Servicing Agreement, the
Reserve Account and all funds held therein shall be the property of the Seller
and not the property of the Trust, the Owner Trustee or the Indenture Trustee.
The Seller will grant to the Indenture Trustee, for the benefit of the
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Noteholders, a security interest in all funds (including Eligible Investments)
in the Reserve Account (including the Reserve Account Initial Deposit) and the
proceeds thereof, and the Issuer 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 and the proceeds thereof, 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; and
provided, further, that amounts on deposit in the Yield Supplement Account in
excess of the Required Yield Supplement Amount will be deposited into the
Collection Account for distribution in accordance with the terms of Section
5.06(c), (d), (e) or (h) of the Sale and Servicing Agreement. The Servicer will
not direct the Indenture Trustee to make any investment of any funds or to sell
any investment held in the Reserve Account or the Yield Supplement Account
unless the security interest granted and perfected in such account will continue
to be perfected in such investment or the proceeds of such sale, in either case
without any further action by any Person, and, in connection with any direction
to the Indenture Trustee to make any such investment or sale, if requested by
the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an
Opinion of Counsel, acceptable to the Indenture Trustee, to such effect.
(c) Subject to Section 6.01(c), the Indenture Trustee shall not in any way
be held liable by reason of any insufficiency in the Collection Account, the
Reserve Account or the Yield Supplement Account resulting from any loss on any
Eligible Investment included therein at the direction of the Servicer, except
for losses attributable to the Indenture Trustee's failure to make payments on
such Eligible Investments issued by the Indenture Trustee, in its commercial
capacity as principal obligor and not as trustee, in accordance with the terms
thereof.
(d) If (i) the Servicer shall have failed to give investment directions
for any funds on deposit in the Collection Account, the Reserve Account or the
Yield Supplement Account, to the Indenture Trustee by 5:00 p.m. Eastern Time (or
such other time as may be agreed by the Servicer and Indenture Trustee) on any
Business Day or (ii) a Default or Event of Default shall have occurred and be
continuing with respect to the Notes but the Notes shall not have been declared
due and payable pursuant to Section 5.02 or (iii) if such Notes shall have been
declared due and payable following an Event of Default, amounts collected or
receivable from the Trust Estate are being applied in accordance with Section
5.05 as if there had not been such a declaration, then the Indenture Trustee
shall, to the fullest extent practicable, invest and reinvest funds in the
Accounts in one or more Eligible Investments specified in clauses (i), (iv) or
(vi) of the definition of Eligible Investments provided in the Sale and
Servicing Agreement. If the Indenture Trustee invests and reinvests funds in the
Reserve Account or the Yield Supplement Account pursuant to clause (ii) or
clause (iii) above, the Indenture Trustee shall issue a prohibition notice to
the securities intermediary as provided in the Securities Account Control
Agreement. If the Default or Event of Default that caused the Indenture Trustee
to assume control over the investment of funds in the Reserve Account and Yield
Supplement Account has been waived and the acceleration, if any, of the Notes
has been rescinded, the Indenture Trustee shall issue a rescission of
prohibition notice to the securities intermediary as provided in the Securities
Account Control Agreement.
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SECTION 8.04 Release of Trust Estate.
(a) Subject to the payment of its fees and expenses pursuant to Section
6.07, the Indenture Trustee may, and when required by the provisions of this
Indenture shall, execute instruments to release property from the lien of this
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Trust Estate that secured the
Notes from the lien of this Indenture and release to or to the order of the
Issuer, or, in the case of the Reserve Account or the Yield Supplement Account,
to the Seller, any funds entitled thereto then on deposit in the Collection
Account, the Reserve Account and the Yield Supplement Account, as the case may
be. The Indenture Trustee shall release property from the lien of this Indenture
pursuant to this Section 8.04(b) only upon receipt of an Issuer Request
accompanied by an Officer's Certificate and (if required by the TIA) Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) meeting the
applicable requirements of Section 11.01.
SECTION 8.05 Release of Receivables Upon Purchase by the Seller or the
Servicer. (a) Upon repurchase of any Receivable by the Seller pursuant to
Section 3.02 of the Sale and Servicing Agreement or any purchase of any
Receivable by the Servicer pursuant to Section 4.06 or Section 9.01 of the Sale
and Servicing Agreement, the Indenture Trustee, on behalf of the Noteholders,
shall, without further action, be deemed to release from the Lien of this
Indenture such repurchased Receivable, all monies due or to become due with
respect thereto and all proceeds thereof and the other property with respect to
such Receivable, and all security and any documents relating thereto, and the
Seller or the Servicer, as applicable, shall thereupon own each such Receivable,
and all such related security and documents, free of any further obligation to
the Issuer, the Indenture Trustee or the Noteholders with respect thereto.
(b) The Indenture Trustee shall execute such documents and instruments and
take such other actions as shall be reasonably requested by the Seller or the
Servicer, as the case may be, to effect the release of such Receivable pursuant
hereto and the assignment of such Receivable by the Issuer pursuant to Section
9.02 of the Sale and Servicing Agreement.
SECTION 8.06 Opinion of Counsel. The Indenture Trustee shall receive at
least seven days notice when requested by the Issuer to take any action pursuant
to Section 8.04(a), accompanied by copies of any instruments involved, and the
Indenture Trustee shall also require, except in connection with any action
contemplated by Section 8.04(b), as a condition to such action, an Opinion of
Counsel, in form and substance satisfactory to the Indenture Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that
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such Opinion of Counsel shall not be required to express an opinion as to the
fair value of the Trust Estate. Counsel rendering any such opinion may rely,
without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
Supplemental Indentures
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of the Holders of any Notes but with prior notice
to the Rating Agencies, the Issuer and the Indenture Trustee, when authorized by
an Issuer Order, at any time and from time to time, may enter into one or more
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or to better assure, convey
and confirm unto the Indenture Trustee any property subject or required to
be subjected to the lien of this Indenture, or to subject to the lien of
this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer contained herein and in
the Notes;
(iii) to add to the covenants of the Issuer, for the benefit of
the Holders of the Notes, or to surrender any right or power herein
conferred upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture that may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture to the extent such action shall
not adversely affect the interests of the Holders of the Notes;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to
or change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification
of this Indenture under the TIA or under any similar federal statute
hereafter enacted and to add to this Indenture such other provisions as
may be expressly required by the TIA.
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The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Holders of the Notes, enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Holders of the Notes under this Indenture; provided, however, that such action
shall not materially and adversely affect the interests of any Noteholder.
(c) Pursuant to the Trust Agreement and the Sale and Servicing Agreement,
the Issuer may, from time to time, at its option, 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 be paid
directly to or to the order of the Certificateholders pursuant to Section
5.06(c), (d) and (e) of the Sale and Servicing Agreement. In connection with
executing any such Swap Agreement, the Issuer, Indenture Trustee, Owner Trustee,
Seller and Servicer will enter into a supplement to this Indenture, subject to
this Section 9.01 and subject to the approval of the Owner Trustee and the
Certificateholders, that will specify the creation of any necessary accounts and
modifications of any provisions necessary or appropriate to effectuate the
intention of such Swap Agreement.
SECTION 9.02 Supplemental Indentures with Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Holders of
a majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purpose the outstanding principal amount of any Notes held
of record or beneficially owned by NARC II, NMAC or any of their Affiliates,
unless at such time all of the Notes are held of record or beneficially owned by
NARC II, NMAC or any of their Affiliates), by Action of such Holders delivered
to the Issuer and the Indenture Trustee, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Holders of the Notes under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Note affected thereby:
(a) change the due date of any installment of principal of or interest on
any Note, or reduce the principal amount thereof, the Interest Rate thereon or
redemption price therefor, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable;
(b) impair the right to institute suit for the enforcement of the
provisions of this Indenture requiring the application of funds available
therefor, as provided in Article V, to the payment of any such amount due on the
Notes on or after the respective due dates thereof;
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(c) reduce the percentage of the Outstanding Amount of the Notes, the
consent of the Holders of which is required for any such supplemental indenture,
or the consent of the Holders of which is required for any waiver of compliance
with certain provisions of this Indenture or certain defaults hereunder and
their consequences provided for in this Indenture;
(d) modify or alter the provisions of the proviso to the definition of the
term "Outstanding";
(e) reduce the percentage of the Outstanding Amount of the Notes required
to direct the Indenture Trustee to sell or liquidate the Trust Estate if the
proceeds of that sale would be insufficient to pay the principal amount of and
accrued but unpaid interest on the Notes pursuant to Section 5.04(c)(iv);
(f) reduce any percentage required to amend the sections of the Indenture
that specify the applicable percentage of Outstanding Amount of the Notes
necessary to amend the Indenture; or
(g) permit the creation of any lien ranking prior to or on a parity with
the lien of this Indenture with respect to any part of the Trust Estate or,
except as otherwise permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or deprive the Holder of
any Note of the security provided by the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any
Notes would be adversely affected by any supplemental indenture and any such
determination shall be conclusive upon the Holders of all Notes, whether
theretofore or thereafter authenticated and delivered hereunder. The Indenture
Trustee shall not be liable for any such determination made in good faith.
It shall not be necessary for any Action of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Action shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Holders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03 Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modification thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel from external counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
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SECTION 9.04 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.05 Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
SECTION 9.06 Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
Release
SECTION 10.01 Optional Purchase of All Receivables. If the Servicer or any
successor to the Servicer shall notify the Owner Trustee and the Indenture
Trustee of its intention to exercise the option granted to it in Section 9.01 of
the Sale and Servicing Agreement to repurchase the outstanding Receivables
primarily comprising the Owner Trust Estate, then the Owner Trustee and the
Indenture Trustee shall give written notice thereof to each Securityholder and
the Rating Agencies as soon as practicable after their receipt of notice from
the Servicer. Upon deposit by the Servicer or any successor to the Servicer of
the amount necessary to effect such purchase of the corpus of the Owner Trust
Estate, the Indenture Trustee shall make the final distributions to the
Noteholders and Certificateholders as set forth in Section 5.06 of the Sale and
Servicing Agreement and shall promptly transfer all of its right, title and
interest in and to any amounts or investments remaining on deposit in the
Collection Account to the Owner Trustee, and in the Reserve Account and the
Yield Supplement Account to the Seller (in any event excluding any portion
thereof necessary to make distributions to Noteholders described in Section
3.03), and release from the lien of this Indenture all of the remaining
Collateral. The Indenture Trustee shall execute, deliver and file all
agreements, certificates, instruments or other documents necessary or reasonably
requested by the Issuer in order to effect such release and the transfer to the
Issuer of the Collateral.
52
ARTICLE XI
Miscellaneous
SECTION 11.01 Compliance Certificates and Opinions, etc.
(a) Upon any application or request by the Issuer to the Indenture Trustee
to take any action under any provision of this Indenture, the Issuer shall, upon
written request therefor from the Indenture Trustee, furnish to the Indenture
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with, (ii) an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, and
(iii) (if required by the TIA) an Independent Certificate from a firm of
certified public accountants meeting the applicable requirements of this
Section, except that, in the case of any such application or request as to which
the furnishing of such documents is specifically required by any provision of
this Indenture, no such written request from the Indenture Trustee need be
furnished (and only such expressly required documents need be delivered in
connection therewith).
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(c) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.01(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's
Certificate certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the Issuer
of the Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of any
signatory thereof as to the matters described in clause (c)(i) above, the
Issuer shall also deliver to the Indenture Trustee an Independent
Certificate as to the same matters, if the fair value to the Issuer of
53
the securities to be so deposited and of all other such securities made
the basis of any such withdrawal or release since the commencement of the
then-current calendar year of the Issuer, as set forth in the certificates
delivered pursuant to clause (c)(i) above and this clause (c)(ii), is 10%
or more of the Outstanding Amount of the Notes, but such a certificate
need not be furnished with respect to any securities so deposited, if the
fair value thereof to the Issuer as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of the
Outstanding Amount of the Notes.
(iii) Whenever any property or securities are to be released from
the lien of this Indenture, the Issuer shall also furnish to the Indenture
Trustee an Officer's Certificate certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of
such release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will not
impair the security under this Indenture in contravention of the
provisions hereof.
(iv) Notwithstanding Section 2.09 or any other provision of this
Section, the Issuer may, without compliance with the requirements of the
other provisions of this Section, (A) collect, liquidate, sell or
otherwise dispose of Receivables and Financed Vehicles as and to the
extent permitted or required by the Basic Documents and (B) make cash
payments out of the Accounts as and to the extent permitted or required by
the Basic Documents so long as the Issuer shall deliver to the Indenture
Trustee every six months, commencing February 15, 2003, an Officer's
Certificate of the Issuer stating that all such dispositions of Collateral
that occurred during the preceding six calendar months were in the
ordinary course of the Issuer's business and that the proceeds thereof
were applied in accordance with the Basic Documents.
SECTION 11.02 Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate of an Authorized Officer or Opinion of
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
54
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.03 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Noteholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Noteholders in person or by agents duly appointed
in writing; and except as herein otherwise expressly provided such action shall
become effective when such instrument or instruments are delivered to the
Indenture Trustee, and, where it is hereby expressly required, to the Issuer.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Action" of the Noteholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.01) conclusive in favor of
the Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Notes shall bind the Holder of every Note
issued upon the registration thereof or in exchange therefor or in lieu thereof,
in respect of anything done, omitted or suffered to be done by the Indenture
Trustee or the Issuer in reliance thereon, whether or not notation of such
action is made upon such Note.
SECTION 11.04 Notices to Indenture Trustee, Issuer and Rating Agencies.
Any request, demand, authorization, direction, notice, consent, waiver or Action
of Noteholders or other documents provided or permitted by this Indenture shall
be in writing and if such request, demand, authorization, direction, notice,
consent, waiver or Action of Noteholders is to be made upon, given or furnished
to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, it shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Indenture Trustee at its Corporate Trust Office, or
55
(b) the Issuer by the Indenture Trustee or by any Noteholder, it shall be
sufficient for every purpose hereunder if in writing and mailed first-class,
postage prepaid to the Issuer addressed to: Nissan Auto Receivables 2002-C Owner
Trust, c/o Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Nissan Auto Receivables 2002-C
Owner Trust, with a copy to Nissan Motor Acceptance Corporation, 000 Xxxx 000xx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Secretary, or at any other
address previously furnished in writing to the Indenture Trustee by the Issuer
or the Administrator. The Issuer shall promptly transmit any notice received by
it from the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Owner Trustee shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, to (i) in the case of
Moody's, at the following address: Xxxxx'x Investors Service, Inc., ABS
Monitoring Department, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (ii) in
the case of Standard & Poor's, at the following address: Standard & Poor's
Rating Services, 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 11.05 Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default or Event of
Default.
SECTION 11.06 Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any
56
agreement with any Holder of a Note providing for a method of payment, or notice
by the Indenture Trustee or any Paying Agent to such Holder, that is different
from the methods provided for in this Indenture for such payments or notices.
The Issuer will furnish to the Indenture Trustee a copy of each such agreement
and the Indenture Trustee will cause payments to be made and notices to be given
in accordance with such agreements.
SECTION 11.07 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.08 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 11.09 Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successors and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind its successors, co-trustees and agents.
SECTION 11.10 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Indenture shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Indenture and shall
in no way affect the validity or enforceability of the other provisions of this
Indenture or of the Notes or the Certificates or the rights of the Holders
thereof.
SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Trust Estate, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 11.12 Governing Law. This Indenture shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York), and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
SECTION 11.13 Counterparts. This Indenture may be executed simultaneously
in any number of counterparts, each of which shall be deemed to be an original,
and all of which shall constitute but one and the same instrument.
57
SECTION 11.14 Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.15 Trust Obligation. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Owner Trustee or
the Indenture Trustee on the Notes or Certificates or under this Indenture or
any certificate or other writing delivered in connection herewith or therewith,
against (i) the Indenture Trustee or the Owner Trustee in its individual
capacity, (ii) the Seller, any Certificateholder or other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any Certificateholder or other owner of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being understood that the Indenture Trustee and the Owner Trustee have no such
obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement.
SECTION 11.16 No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they will not at any time file, join in any filing of, or cooperate or
encourage others to file against the Seller or the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law,
in connection with any obligations relating to the Notes, the Certificates or
any of the Basic Documents.
SECTION 11.17 Inspection. The Issuer agrees that, on reasonable prior
notice, it will permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports and other papers of the Issuer, to make copies and extracts therefrom,
to cause (at the expense of the requesting party) such books to be audited by
Independent certified public accountants, and to discuss the Issuer's affairs,
finances and accounts with the Issuer's officers, employees, and Independent
certified public accountants, all at such reasonable times and as often as may
be reasonably requested. The Indenture Trustee shall and shall cause its
representatives to hold in confidence all such information except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
58
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
NISSAN AUTO RECEIVABLES 2002-C OWNER TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:_____________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Indenture Trustee
By:_____________________________
Name:
Title:
S-1
EXHIBIT A
(Form of Class A-1 Note, Class A-2 Note, Class A-3 Note, and Class A-4 Note)
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN.
ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE
LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF.
THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR GUARANTEED
BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO RECEIVABLES CORPORATION II, NISSAN
MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO.,
LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS
NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT
IN THE RESERVE ACCOUNT AND THE YIELD SUPPLEMENT ACCOUNT.
A-1
No_____ $__________
NISSAN AUTO RECEIVABLES 2002-C OWNER TRUST
CLASS [A-1][A-2][A-3][A-4] ___% ASSET BACKED NOTES
Nissan Auto Receivables 2002-C Owner Trust, a business trust organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to ____________________,
or registered assigns, the principal sum of _______________ DOLLARS
($__________) payable on each Distribution Date in an aggregate amount, if any,
payable from the Collection Account in respect of the principal on the Class
[A-1][A-2][A-3][A-4] Notes pursuant to Section 3.01 of the Indenture dated as of
August 19, 2002 (the "Indenture"), between the Issuer and Xxxxx Fargo Bank
Minnesota, National Association, as Indenture Trustee (the "Indenture Trustee")
and Sections 5.06(c), (d), (e) [and (h)] of the Sale and Servicing Agreement
dated as of August 19, 2002 among the Issuer, NARC II, as Seller, and NMAC, as
Servicer (which amounts shall be limited to the portion of Available Amounts
specified in such sections); provided, however, that the entire unpaid principal
amount of this Note shall be due and payable on the Distribution Date occurring
[in][on] ____________________ (the "Class [A-1][A-2][A-3][A-4] Final Scheduled
Distribution Date"). Capitalized terms used but not defined herein have the
meanings ascribed thereto in the Indenture and the Sale and Servicing Agreement,
as the case may be.
The Issuer will pay interest on this Note at the rate per annum shown
above on each Distribution Date until the principal of this Note is paid or made
available for payment, on the principal amount of this Note outstanding on the
preceding Distribution Date (after giving effect to all payments of principal
made on the preceding Distribution Date), subject to certain limitations
contained in Section 3.01 of the Indenture. Interest on this Note will accrue
for each Distribution Date, [during the period from (and including) the
Distribution Date during the calendar month preceding such Distribution Date (or
in the case of the first Distribution Date, from (and including) the Closing
Date to (but excluding) such Distribution Date)][during 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]. Interest will be
computed on the basis specified in the Indenture for each Interest Period. Such
principal of and interest on this Note shall be paid in the manner specified on
the reverse hereof.
The principal of and interest on this Note is payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
A-2
Reference is made to the further provisions of this Note set forth on the
reverse hereof, which shall have the same effect as though fully set forth on
the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer, as of the date set forth
below.
Date:_______________
NISSAN AUTO RECEIVABLES 2002-C
OWNER TRUST
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as
Owner Trustee under the Trust
Agreement
By:___________________________________
Authorized Signatory
A-3
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
Date:_______________
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Indenture
Trustee
By:___________________________________
Authorized Signatory
A-4
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as [____]% Asset Backed Notes, Class [A-1][A-2][A-3][A-4] (herein
called the "Class [A-1][A-2][A-3][A-4] Notes"), all issued under the Indenture,
to which Indentures and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights and obligations thereunder of the
Issuer, the Indenture Trustee and the Holders of the Notes. The Class
[A-1][A-2][A-3][A-4] Notes are subject to all terms of the Indenture.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the
Class A-4 Notes (collectively, the "Notes") are and will be equally and ratably
secured by the collateral pledged as security therefor as provided in the
Indenture.
Principal of the Class [A-1][A-2][A-3][A-4] Notes will be payable on each
Distribution Date in an amount described in the Indenture. "Distribution Date"
means the fifteenth calendar day of each month, or, if any such date is not a
Business Day, the next succeeding Business Day, commencing September 16, 2002;
[provided, however, that if any Class A-1 Notes remain outstanding after the
Distribution Date in August 2003, a special Distribution Date for the payment of
interest and principal on the Class A-1 Notes only, pursuant to Section 5.06(h)
of the Sale and Servicing Agreement, will occur on September 8, 2003].
Notwithstanding the foregoing, the entire unpaid principal amount of the
Notes shall be due and payable on the date on which an Event of Default shall
have occurred and be continuing and the Indenture Trustee or the Holders of a
majority of the Outstanding Amount of the Notes, voting as a single class
(excluding for such purpose the outstanding principal amount of any Notes held
of record or beneficially owned by NARC II, NMAC or any of their Affiliates,
unless at such time all of the Notes are held of record or beneficially owned by
NARC II, NMAC or any of their Affiliates), have declared the Notes to be
immediately due and payable in the manner provided in Section 5.02 of the
Indenture or following the exercise by the Servicer of its option to purchase
the Receivables pursuant to Section 9.01 of the Sale and Servicing Agreement and
Section 10.01 of the Indenture. In case of an Event of Default, all interest and
principal payments will be made (1) first to the holders of the Class A-1 Notes,
until the outstanding principal balance of the Class A-1 Notes has been paid in
full, and (2) then to the holders of the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes on a pro rata basis (x) with respect to interest, based
on the respective aggregate amounts of interest due to these classes of notes
and (y) with respect to principal, based on the respective outstanding principal
balances of those classes of notes, until the outstanding principal balances of
those classes of notes have been paid in full. In case of the optional purchase
of the Receivables, all interest and principal payments on the Class
[A-1][A-2][A-3][A-4] Notes shall be made pro rata to the Class
[A-1][A-2][A-3][A-4] Noteholders entitled thereto.
Payments of interest on this Note due and payable on each Distribution
Date, together with the installment of principal, if any, to the extent not in
full payment of this Note, shall be paid to the Person in whose name of such
Note (or one or more Predecessor Notes) is registered on the Record Date by wire
transfer in immediately available funds to the account designated by such
nominee, except for the final installment of principal payable with respect to
such Note on a Distribution Date or on the applicable Final Scheduled
Distribution Date, which shall be payable as provided below. Any reduction in
the principal amount of this Note (or any one or more Predecessor Notes)
effected by any payments made on any Distribution Date shall be binding
A-5
upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, will notify the Person who was the Registered Holder
hereof as of the Record Date preceding such Distribution Date by notice mailed
or transmitted by facsimile prior to such Distribution Date, and the amount then
due and payable shall be payable only upon presentation and surrender of this
Note at the Indenture Trustee's principal Corporate Trust Office or at the
office of the Indenture Trustee's agent appointed for such purposes located in
The City of New York.
The Issuer shall pay interest on overdue installments of interest at the
Class [A-1][A-2][A-3][A-4] Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Note Register upon
surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee as set forth in Section 2.04 of the Indenture, and thereupon
one or more new Notes of authorized denominations and in the same aggregate
principal amount will be issued to the designated transferee or transferees. No
service charge will be charged for any registration of transfer or exchange of
this Note, but the transferor may be required to pay a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under
the Indenture or any certificate or other writing delivered in connection
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) the Seller or any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Owner Trustee in its individual
capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee
or the Indenture Trustee or of any successor or assign of the Indenture Trustee
or the Owner Trustee in its individual capacity, except as any such Person may
have expressly agreed (it being understood that the Indenture Trustee and the
Owner Trustee have no such obligations in their individual capacity) and except
that any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
The Holder of this Note by its acceptance hereof agrees that, except as
expressly provided in the Basic Documents, in the case of an Event of Default
under the Indenture, the Holder shall have no claim against any of the foregoing
for any deficiency, loss or claim therefrom; provided, however, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Issuer for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Note.
A-6
Each Noteholder or Note Owner, by acceptance of a Note or, in the case of
a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting
the benefits of the Indenture that such Noteholder or Note Owner will not at any
time file, join in the filing of, or cooperate with or encourage others to file
against the Seller or the Issuer, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, the Indenture or the Basic Documents.
The Issuer has entered into the Indenture and this Note is issued with the
intention that, for federal, state and local income, single business and
franchise tax purposes, the Notes will qualify as indebtedness of the Issuer
secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and each
Note Owner by acceptance of a beneficial interest in a Note), agrees to treat
the Notes for federal, state and local income, single business and franchise tax
purposes as indebtedness of the Issuer.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Issuer, the Indenture Trustee or any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Notes under the Indenture at any
time by the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, with prior notice to the Rating Agencies and with the consent of the
Holders of a majority of the Outstanding Amount of the Notes, voting as a single
class (excluding for such purpose the outstanding principal amount of any Notes
held of record or beneficially owned by NARC II, NMAC or any of their
Affiliates, unless at such time all of the Notes are held of record or
beneficially owned by NARC II, NMAC or any of their Affiliates). Section 5.12 of
the Indenture also contains provisions permitting the Holders of a majority of
the Outstanding Amount of the Notes, voting as a single class (excluding for
such purpose the outstanding principal amount of any Notes held of record or
beneficially owned by NARC II, NMAC or any of their Affiliates, unless at such
time all of the Notes are held of record or beneficially owned by NARC II, NMAC
or any of their Affiliates), on behalf of the Holders of all the Notes, to waive
compliance by the Issuer with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note (or any one or more Predecessor Notes) shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. The Indenture also permits the Indenture Trustee
to amend or waive certain terms and conditions set forth in the Indenture
without the consent of Holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
A-7
The Issuer is permitted by the Indenture, under certain circumstances, to
merge or consolidate, subject to the rights of the Indenture Trustee and the
Holders of Notes under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note and the Indenture shall be construed in accordance with the laws
of the State of New York, without reference to its conflict of law provisions
(other than Section 5-1401 of the General Obligations Law of the State of New
York), and the obligations, rights and remedies of the parties hereunder and
thereunder shall be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency herein prescribed.
A-8
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of
assignee:___________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
________________________________________________________________________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints , attorney, to transfer said Note on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:_______________*/
Signature Guaranteed:
_____________________*/
*/ NOTICE: The signature to this assignment must correspond with the name
of the registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-9
EXHIBIT B
INVESTOR CERTIFICATION
Date:
Xxxxx Fargo Bank Minnesota,
National Association
Sixth Street and Marquette Avenue
MAC N9311-000
Xxxxxxxxxxx, XX 00000
Attention: Corporate Trust Services -- Asset-Backed Administration
Class [A-1] [A-2] [A-3] [A-4] Notes
In accordance with Section 7.05 of the Indenture dated as of August 19,
2002 (the "Indenture"), between Nissan Auto Receivables 2002-C Trust (the
"Issuer") and Xxxxx Fargo Bank Minnesota, National Association, as Indenture
Trustee (the "Indenture Trustee"), with respect to the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, the undersigned
hereby certifies and agrees as follows:
1. ___________________________(the "Noteholder") is the beneficial
owner or Nominee or Advisor of $_________ of original principal amount of
the Class [A-1] [A-2] [A-3] [A-4] Notes (the "Notes"), and the
Noteholder's/Nominee's/Advisor's DTC Participant Number (if applicable) is
____________________.
2. The Noteholder hereby provides the following contact information:
(complete either Section A or B)
I. A. EXECUTION BY BENEFICIAL OWNER
The undersigned Beneficial Owner of the Notes hereby represents and
warrants that it is duly authorized to execute this form and that such power has
not been granted or assigned to any other person.
Name of Beneficial Owner:_____________________________________________________
(Print Name of Authorized Signature):_________________________________________
Signature:____________________________________________________________________
Address:______________________________________________________________________
Phone:________________________________________________________________________
FAX:__________________________________________________________________________
E-Mail Address: ______________________________________________________________
Name of Nominee/Custodian: ___________________________________________________
B-1
Total Original Principal Amount Owned:________________________________________
Total Current Principal Amount Owned:_________________________________________
B. EXECUTION BY NOMINEE OR ADVISOR
The undersigned hereby represents and warrants that it is the Nominee or
Advisor for the Beneficial Owner indicated, and that the Beneficial Owner has
granted to the undersigned the power and authority to act on behalf of the
Beneficial Owner.
Name of Nominee or Advisor:___________________________________________________
(Print Name of Authorized Signature):_________________________________________
Signature:____________________________________________________________________
Address:______________________________________________________________________
Phone:________________________________________________________________________
FAX:__________________________________________________________________________
E-Mail Address: ______________________________________________________________
Name of Beneficial Owner:_____________________________________________________
Total Original Principal Amount with Respect
to Which Direction is Made:___________________________________________________
Total Current Principal Amount with
Respect to Which Direction is Made:___________________________________________
3. The undersigned is requesting a password pursuant to Section 7.05
of the Indenture for access to certain information (the "Information") on
the Trustee's website.
4. In consideration of the Trustee's disclosure to the undersigned
of the Information, or the password in connection therewith, the
undersigned will keep the Information confidential (except from such
outside persons as are assisting it in connection with the related Notes,
from its accountants and attorneys, and otherwise from such governmental
or banking authorities or agencies to which the undersigned is subject),
and such Information will not, without the prior written consent of the
Trustee, be otherwise disclosed by the undersigned or by its officers,
directors, partners, employees, agents or representatives (collectively,
the "Representatives") in any manner whatsoever, in whole or in part.
5. The undersigned will not use or disclose the Information in any
manner which could result in a violation of any provision of the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended, or would require registration
of any Certificate pursuant to Section 5 of the Securities Act.
6. The undersigned shall be fully liable for any breach of this
agreement by itself or any of its Representatives and shall indemnify the
Issuer, NARC II, NMAC and any of their Affiliates, and the Indenture
Trustee for any loss, liability or expense
B-2
incurred thereby with respect to any such breach by the undersigned or
any of its Representatives.
7. Capitalized terms used but not defined herein shall have the
respective meanings assigned thereto in the Indenture.
IN WITNESS WHEREOF, the undersigned has caused its name to be signed
hereby by its duly authorized officer, as of the day and year written above.
______________________________________
Beneficial Owner/Nominee/Advisor
By:___________________________________
Title:________________________________
Company:______________________________
Phone:________________________________
B-3
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions................................................2
SECTION 1.02 Usage of Terms.............................................8
SECTION 1.03 Incorporation by Reference of Trust Indenture Act..........8
ARTICLE II
THE NOTES
SECTION 2.01 Form.......................................................8
SECTION 2.02 Execution, Authentication and Delivery.....................9
SECTION 2.03 Temporary Notes............................................9
SECTION 2.04 Registration; Registration of Transfer and Exchange........9
SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes................10
SECTION 2.06 Persons Deemed Owners.....................................11
SECTION 2.07 Payments of Principal and Interest........................11
SECTION 2.08 Cancellation..............................................12
SECTION 2.09 Release of Collateral.....................................12
SECTION 2.10 Book-Entry Notes..........................................12
SECTION 2.11 Notices to Clearing Agency................................13
SECTION 2.12 Definitive Notes..........................................13
SECTION 2.13 Tax Treatment.............................................14
ARTICLE III
COVENANTS, REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Payment of Principal and Interest.........................14
SECTION 3.02 Maintenance of Office or Agency...........................14
SECTION 3.03 Money for Payments To Be Held in Trust....................15
SECTION 3.04 Existence.................................................16
SECTION 3.05 Protection of Trust Estate................................17
SECTION 3.06 Opinions as to Trust Estate...............................17
SECTION 3.07 Performance of Obligations; Servicing of Receivables......17
SECTION 3.08 Negative Covenants........................................20
SECTION 3.09 Annual Statement as to Compliance.........................20
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.......20
SECTION 3.11 Successor or Transferee...................................22
SECTION 3.12 No Other Business.........................................22
SECTION 3.13 No Borrowing..............................................23
SECTION 3.14 Servicer's Notice Obligations.............................23
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.........23
-i-
TABLE OF CONTENTS
(continued)
Page
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SECTION 3.16 Capital Expenditures......................................23
SECTION 3.17 Removal of Administrator..................................23
SECTION 3.18 Restricted Payments.......................................23
SECTION 3.19 Notice of Events of Default...............................24
SECTION 3.20 Further Instruments and Actions...........................24
SECTION 3.21 Representations and Warranties............................24
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture...................25
SECTION 4.02 Application of Trust Money................................26
SECTION 4.03 Repayment of Moneys Held by Paying Agent..................26
ARTICLE V
REMEDIES
SECTION 5.01 Events of Default.........................................26
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment........27
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee.........................................28
SECTION 5.04 Remedies; Priorities......................................30
SECTION 5.05 Optional Preservation of the Receivables..................31
SECTION 5.06 Limitation of Suits.......................................32
SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal
and Interest..............................................32
SECTION 5.08 Restoration of Rights and Remedies........................32
SECTION 5.09 Rights and Remedies Cumulative............................33
SECTION 5.10 Delay or Omission Not a Waiver............................33
SECTION 5.11 Control by Noteholders....................................33
SECTION 5.12 Waiver of Past Defaults...................................33
SECTION 5.13 Undertaking for Costs.....................................34
SECTION 5.14 Waiver of Stay or Extension Laws..........................34
SECTION 5.15 Action on Notes...........................................34
SECTION 5.16 Performance and Enforcement of Certain Obligations........35
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.01 Duties of Indenture Trustee...............................35
SECTION 6.02 Rights of Indenture Trustee...............................37
SECTION 6.03 Individual Rights of Indenture Trustee....................38
-ii-
TABLE OF CONTENTS
(continued)
Page
----
SECTION 6.04 Indenture Trustee's Disclaimer............................38
SECTION 6.05 Notice of Defaults........................................39
SECTION 6.06 Reports by Indenture Trustee to Holders...................39
SECTION 6.07 Compensation and Indemnity................................39
SECTION 6.08 Replacement of Indenture Trustee..........................40
SECTION 6.09 Successor Indenture Trustee by Merger.....................40
SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture
Trustee...................................................41
SECTION 6.11 Eligibility; Disqualification.............................42
SECTION 6.12 Preferential Collection of Claims Against Issuer..........42
SECTION 6.13 Acknowledgement by Indenture Trustee of its Obligations
Under the Sale and Servicing Agreement....................42
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.01 Note Registrar To Furnish Names and Addresses of
Noteholders...............................................43
SECTION 7.02 Preservation of Information; Communications to
Noteholders...............................................43
SECTION 7.03 Reports by Issuer.........................................44
SECTION 7.04 Reports by Indenture Trustee..............................44
SECTION 7.05 Indenture Trustee Website.................................44
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.01 Collection of Money.......................................45
SECTION 8.02 Accounts..................................................45
SECTION 8.03 General Provisions Regarding Accounts.....................46
SECTION 8.04 Release of Trust Estate...................................48
SECTION 8.05 Release of Receivables Upon Purchase by the Seller or the
Servicer..................................................48
SECTION 8.06 Opinion of Counsel........................................48
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Noteholders....49
SECTION 9.02 Supplemental Indentures with Consent of Noteholders.......50
SECTION 9.03 Execution of Supplemental Indentures......................51
SECTION 9.04 Effect of Supplemental Indenture..........................51
SECTION 9.05 Conformity with Trust Indenture Act.......................51
SECTION 9.06 Reference in Notes to Supplemental Indentures.............51
-iii-
TABLE OF CONTENTS
(continued)
Page
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ARTICLE X
RELEASE
SECTION 10.01 Optional Purchase of All Receivables......................52
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Compliance Certificates and Opinions, etc.................52
SECTION 11.02 Form of Documents Delivered to Indenture Trustee..........54
SECTION 11.03 Acts of Noteholders.......................................55
SECTION 11.04 Notices to Indenture Trustee, Issuer and Rating Agencies..55
SECTION 11.05 Notices to Noteholders; Waiver............................56
SECTION 11.06 Alternate Payment and Notice Provisions...................56
SECTION 11.07 Conflict with Trust Indenture Act.........................57
SECTION 11.08 Effect of Headings and Table of Contents..................57
SECTION 11.09 Successors and Assigns....................................57
SECTION 11.10 Severability..............................................57
SECTION 11.11 Benefits of Indenture.....................................57
SECTION 11.12 Governing Law.............................................57
SECTION 11.13 Counterparts..............................................57
SECTION 11.14 Recording of Indenture....................................58
SECTION 11.15 Trust Obligation..........................................58
SECTION 11.16 No Petition...............................................58
SECTION 11.17 Inspection................................................58
EXHIBIT A FORM OF CLASS A-1 NOTE, CLASS A-2 NOTE, CLASS A-3 NOTE AND CLASS
A-4 NOTE
EXHIBIT B FORM OF INVESTOR CERTIFICATION
-iv-
CROSS-REFERENCE TABLE
(not a part of this Indenture)
TIA Indenture
Section Section
------- ---------
(Section)310(a)(1)........................................................6.11
(a)(2)..............................................................6.11
(a)(3)........................................................6.10(b)(i)
(a)(4)..............................................................N.A.
(a)(5)..............................................................6.11
(b) ................................................................5.04
6.08
6.11
11.04
(c) ................................................................N.A.
(Section)311(a) ..........................................................6.12
(b) ................................................................6.12
(c) ................................................................N.A.
(Section)312(a) ..........................................................7.01
(b) ................................................................7.01
7.02(b)
(c) .............................................................7.02(c)
(Section)313(a) ..........................................................7.04
(b)(1)..............................................................N.A.
(b)(2)..............................................................7.04
(c) ................................................................7.04
11.04
(d) ................................................................7.04
(Section)314(a) ..........................................................7.03
3.09
11.04
7.04
(b) ................................................................3.06
11.14
7.04
(c)(1) ............................................................11.01
6.02
8.05(b)
6.02
11.01
(c)(2).............................................................11.01
3.06
3.10
6.02
8.05(b)
v
TIA Indenture
Section Section
------- ---------
8.06
(c)(3).............................................................11.01
(d) ............................................................11.01(c)
(e) ...............................................................11.01
(f) ................................................................N.A.
(Section)315(a) ..........................................................6.01
(b) ................................................................6.05
(c) ................................................................N.A.
(d) .............................................................6.01(c)
(e) ................................................................5.13
(Section)316(a)(1)(A).....................................................5.11
6.01(c)
(a)(1)(B)...........................................................5.12
(a)(2)..............................................................N.A.
(b) ................................................................5.07
9.02
5.13(c)
(c) ................................................................N.A.
(Section)317(a)(1) .......................................................5.04
(a)(2) ..........................................................5.03(c)
5.03(d)
5.04
(b) ................................................................3.03
(Section)318(a) .........................................................11.07
---------
N.A. means not applicable.
vi
