EXHIBIT 4.1
NISSAN AUTO RECEIVABLES ____-_ OWNER TRUST
(a Delaware Business Trust)
AMENDED AND RESTATED TRUST AGREEMENT
between
NISSAN AUTO RECEIVABLES CORPORATION,
as Depositor,
and
[______________],
as Owner Trustee
Dated as of [______________]
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions..........................................................1
SECTION 1.01 Definitions..........................................................1
SECTION 1.02 Usage of Terms.......................................................4
ARTICLE II Creation of Trust....................................................5
SECTION 2.01 Creation of Trust....................................................5
SECTION 2.02 Office...............................................................5
SECTION 2.03 Purposes and Powers..................................................5
SECTION 2.04 Power of Attorney....................................................6
SECTION 2.05 Declaration of Trust.................................................6
SECTION 2.06 Liability of NMAC and the Certificateholders.........................7
SECTION 2.07 Title to Trust Property..............................................7
SECTION 2.08 Situs of Trust.......................................................7
SECTION 2.09 Representations and Warranties of the Depositor......................7
SECTION 2.10 Federal Income Tax Allocations.......................................9
ARTICLE III Certificates and Transfer of Interests...............................9
SECTION 3.01 The Certificates.....................................................9
SECTION 3.02 Authentication of Certificates......................................10
SECTION 3.03 Registration of Transfer and Exchange of
Certificates........................................................10
SECTION 3.04 Mutilated, Destroyed, Lost or Stolen Certificates...................11
SECTION 3.05 Persons Deemed Certificateholders...................................12
SECTION 3.06 Access to List of Certificateholders' Names
and Addresses.......................................................12
SECTION 3.07 Maintenance of Office or Agency.....................................12
SECTION 3.08 Appointment of Paying Agent.........................................13
SECTION 3.09 Ownership by the Depositor of Certificates..........................13
SECTION 3.10 Book-Entry Certificates.............................................13
SECTION 3.11 Notices to Clearing Agency..........................................14
SECTION 3.12 Definitive Certificates.............................................14
SECTION 3.13 Temporary Certificates..............................................15
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ARTICLE IV Actions By Owner Trustee or Certificateholders......................15
SECTION 4.01 Prior Notice to Certificateholders with Respect to
Certain Matters.....................................................15
SECTION 4.02 Action by Certificateholders with Respect to
Certain Matters.....................................................16
SECTION 4.03 Action with Respect to Bankruptcy...................................16
SECTION 4.04 Restrictions on Certificateholders' Power...........................16
SECTION 4.05 Majority of the Controlling Class of
Certificates Control................................................17
ARTICLE V Application of Trust Funds; Certain Duties..........................17
SECTION 5.01 Establishment of the Trust Collection Account.......................17
SECTION 5.02 Application of Amounts in Trust Accounts............................18
SECTION 5.03 Method of Payment...................................................19
SECTION 5.04 Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and
Others..............................................................19
SECTION 5.05 Signature on Returns; Tax Matter Partner............................19
ARTICLE VI Authority and Duties of Owner Trustee...............................19
SECTION 6.01 General Authority...................................................20
SECTION 6.02 General Duties......................................................20
SECTION 6.03 Duties of the Owner Trustee.........................................20
SECTION 6.04 No Duties Except as Specified in this Agreement or
in Instructions.....................................................21
SECTION 6.05 No Action Except Under Specified Documents or
Instructions........................................................22
SECTION 6.06 Restrictions........................................................22
ARTICLE VII Concerning the Owner Trustee........................................22
SECTION 7.01 Rights of the Owner Trustee.........................................22
SECTION 7.02 Furnishing of Documents.............................................23
SECTION 7.03 Representations and Warranties......................................23
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TABLE OF CONTENTS
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PAGE
SECTION 7.04 Reliance; Advice of Counsel.........................................24
SECTION 7.05 Not Actingin Individual Capacity....................................25
SECTION 7.06 Owner Trustee Not Liable for Certificates or
Receivables.........................................................25
SECTION 7.07 Owner Trustee May Own Certificates and Notes........................26
SECTION 7.08 Pennsylvania Motor Vehicle Sales Finance Act and
Maryland License..................................................26
ARTICLE VIII Compensation of Owner Trustee.......................................26
SECTION 8.01 Owner Trustee's Fees and Expenses...................................26
SECTION 8.02 Indemnification.....................................................26
SECTION 8.03 Payments to the Owner Trustee.......................................27
ARTICLE IX Termination of Trust Agreement......................................27
SECTION 9.01 Termination of Trust Agreement......................................27
ARTICLE X Successor Owner Trustees and Additional Owner
Trustees............................................................28
SECTION 10.01 Eligibility Requirements for Owner Trustee..........................28
SECTION 10.02 Resignation or Removal of Owner Trustee.............................28
SECTION 10.03 Successor Owner Trustee.............................................29
SECTION 10.04 Merger or Consolidation of Owner Trustee............................29
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee.......................30
ARTICLE XI Miscellaneous.......................................................31
SECTION 11.01 Supplements and Amendments..........................................31
SECTION 11.02 No Legal Title to Owner Trust Estate in
Certificateholders..................................................32
SECTION 11.03 Limitations on Rights of Others.....................................32
SECTION 11.04 Notices.............................................................32
SECTION 11.05 Severability........................................................33
SECTION 11.06 Counterparts........................................................33
SECTION 11.07 Successors and Assigns..............................................33
SECTION 11.08 No Petition.........................................................33
SECTION 11.09 No Recourse.........................................................33
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TABLE OF CONTENTS
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SECTION 11.10 Headings............................................................34
SECTION 11.11 GOVERNING LAW.......................................................34
SECTION 11.12 NMAC Payment Obligation.............................................34
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TABLE OF CONTENTS
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Exhibit A.................................................................Form of Certificates
Exhibit B...........................................Form of Transferee's Representation Letter
Exhibit C...........................................Form of Transferor's Representation Letter
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of [_________________],
between NISSAN AUTO RECEIVABLES Corporation, a Delaware corporation, as
depositor, and [_________________], a [_________________], not in its individual
capacity but solely as Owner Trustee, amending and restating in its entirety the
Trust Agreement, dated as of [_________________] (the "Original Trust
Agreement"), between the same parties, and herein referred to as the "Trust
Agreement" or this "Agreement."
IN CONSIDERATION of the mutual agreements herein contained, and of
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Except as otherwise specified herein or if the
context may otherwise require, capitalized terms used but not otherwise defined
herein have the meanings assigned to such terms in the Sale and Servicing
Agreement and the Indenture for all purposes of this Agreement. Except as
otherwise provided in this Agreement, whenever used herein the following words
and phrases, unless the context otherwise requires, shall have the following
meanings:
"ADMINISTRATION AGREEMENT" means the Administration Agreement dated as of
[_______] by and between the Trust, as issuer, NMAC, as Administrator, the
Indenture Trustee and the Owner Trustee pursuant to which NMAC undertakes to
perform certain of the duties and obligations of the Trust and the Owner Trustee
hereunder, under the Sale and Servicing Agreement and under the Indenture.
"ADMINISTRATOR" means NMAC acting in its capacity as Administrator under
the Administration Agreement.
"AGREEMENT" means this Amended and Restated Trust Agreement, which amends
and restates the Original Trust Agreement.
"BASIC DOCUMENTS" means the Purchase Agreement, this Agreement, the
Certificate of Trust, the Sale and Servicing Agreement, the Indenture, the Yield
Supplement Agreement, the Administration Agreement, the Note Depository
Agreement, the Certificate Depository Agreement, the Securities Account Control
Agreement and the other documents and certificates delivered in connection
herewith and therewith.
"BOOK-ENTRY CERTIFICATE" means a beneficial interest in the Certificates of
any Class, ownership and transfers of which shall be made through book entries
by a Clearing Agency as described in Section 3.10.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware Code,
12 Del.
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Code Sections 3801 ET SEQ.
"CERTIFICATE" means a Class C Certificate or a Class D Certificate.
"CERTIFICATE DEPOSITORY AGREEMENT" means the agreement entitled "Letter of
Representations" dated on or before the Closing Date among the Clearing Agency,
the Trust and the Owner Trustee with respect to certain matters relating to the
duties thereof with respect to the Book-Entry Certificates.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed with respect to
the formation of the Trust pursuant to Section 3810(a) of the Business Trust
Statute.
"CERTIFICATE OWNER" means, with respect to a Book-Entry Certificate, the
Person who is the beneficial owner of such Book-Entry Certificate, as reflected
on the books and records of the Clearing Agency, or on the books and records 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) and shall mean, with respect
to a Definitive Certificate, the related Certificateholder.
"CERTIFICATE REGISTER" means the register maintained pursuant to Section
3.03.
"CERTIFICATEHOLDER" or "HOLDER" means a Person in whose name a Certificate
is registered in the Certificate Register, except that, solely for the purposes
of giving certain consents, waivers, requests or demands pursuant to this
Agreement, the interest evidenced by any Certificate registered in the name of
NARC or NMAC, or any Person actually known to a Trust Officer of the Owner
Trustee to be controlling, controlled by or under common control with NARC or
NMAC, shall not be taken into account in determining whether the requisite
percentage necessary to effect any such consent, waiver, request or demand shall
have been obtained.
"CERTIFICATE REGISTRAR" means the Owner Trustee unless and until a
successor thereto is appointed pursuant to Section 3.03. The Certificate
Registrar initially designates its offices at [______________], as its offices
for purposes of Section 3.03.
"CLASS C CERTIFICATE" means any of the [__%] Certificates, Class C,
executed by the Trust and authenticated by the Owner Trustee, evidencing a
beneficial ownership interest in the Trust, substantially in the form set forth
in EXHIBIT A hereto.
"CLASS C PASS-THROUGH RATE" means [_______] % per annum.
"CLASS D CERTIFICATE" means any of the [__%] Certificates, Class D,
executed by the Trust and authenticated by the Owner Trustee, evidencing a
beneficial ownership interest in the Trust, substantially in the form set forth
in EXHIBIT A hereto.
"CLASS D PASS-THROUGH RATE" means [_______]% per annum.
"CLEARING AGENCY" means an organization registered as a "clearing agency"
pursuant to
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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.
"CODE" means the Internal Revenue Code of 1986.
"CORPORATE TRUST OFFICE" means, with respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at
[______________]; or at such other address as the Owner Trustee may designate by
notice to the Certificateholders, or the principal corporate trust office of any
successor Owner Trustee (the address of which the successor Owner Trustee will
notify the Certificateholders).
"DEFINITIVE CERTIFICATES" shall have the meaning assigned to such term in
Section 3.12.
"DEPOSITOR" means NARC in its capacity as depositor hereunder.
"ERISA" shall have the meaning assigned to such term in Section 3.03(c).
"EXPENSES" shall have the meaning assigned to such term in Section 8.01.
"INDENTURE" means the Indenture dated as of [______________] entered into
between the Trust and the Indenture Trustee named therein pursuant to which a
series of Notes are issued.
"NMAC" means Nissan Motor Acceptance Corporation, a California corporation.
"NARC" means Nissan Auto Receivables Corporation, a Delaware corporation.
"NON-U.S. PERSON" means any Person who is not (i) a citizen or resident of
the United States who is a natural person, (ii) a corporation or partnership (or
an entity treated as a corporation or partnership) organized in or under the
laws of the United States or any state thereof, including the District of
Columbia (unless, in the case of a partnership, Treasury Regulations are adopted
that provide otherwise), (iii) an estate, the income of which is subject to
United States Federal income taxation, regardless of its source, or (iv) a
trust, if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons (as such term is defined in the Code and Treasury Regulations) have the
authority to control all substantial decisions of the trust; except that, to the
extent provided in Treasury Regulations, certain trusts in existence prior to
August 20, 1996 which elected to be treated as United States Persons prior to
such date also shall be United States Persons.
"NOTES" means the notes issued by the Trust pursuant to the Indenture,
having the payment and other terms set forth in the Indenture.
"ORIGINAL CERTIFICATE BALANCE" means, with respect to the Class C
Certificates, $[________], and with respect to the Class D Certificates,
$[________].
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"ORIGINAL TRUST AGREEMENT" shall have the meaning assigned to such term in
the introductory paragraph to this Agreement.
"OWNER TRUST ESTATE" means all right, title and interest of the Trust in
and to the property and rights assigned to the Trust pursuant to Article II of
the Sale and Servicing Agreement, all funds on deposit from time to time in the
accounts created pursuant to Section 5.01 of the Sale and Servicing Agreement
(excluding any net investment income with respect to amounts held in such
accounts) and all other property of the Trust from time to time, including any
rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement, and as assignee of the rights and
interests of the Depositor under the Purchase Agreement.
"OWNER TRUSTEE" means [______________], a [________________], not in its
individual capacity but solely as owner trustee under this Agreement, and any
successor Owner Trustee hereunder.
"PAYING AGENT" means any paying agent or co-paying agent appointed pursuant
to Section 3.08, and shall initially be [______________].
"PLAN" shall have the meaning assigned to such term in Section
3.03(c)(1)(ii).
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement,
dated as of the date hereof, among the Trust, NARC, as seller, and NMAC, as
servicer.
"SECRETARY OF STATE" means the Secretary of State of the State of Delaware.
"SECURITIES ACCOUNT CONTROL AGREEMENT" shall have the meaning assigned to
such term in the Sale and Servicing Agreement.
"SECURITYHOLDERS" means the Certificateholders and the Noteholders.
"TREASURY REGULATIONS" means regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST" means the Nissan Auto Receivables ____-_ Owner Trust, formed as a
Delaware business trust pursuant to this Agreement and the filing of the
Certificate of Trust.
"TRUST COLLECTION ACCOUNT" shall have the meaning assigned to such term in
Section 5.01(a).
"YIELD SUPPLEMENT AGREEMENT" means the Yield Supplement Agreement dated as
of the date hereof among NMAC, the Depositor and the Trust.
SECTION 1.02 USAGE OF TERMS. With respect to all terms in this Agreement,
the singular includes the plural and the plural the singular; words importing
any gender include the
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other genders; references to "writing" include printing, typing, lithography
and other means of reproducing words in a visible form; references to
agreements and other contractual instruments include all subsequent
amendments, amendments and restatements and supplements thereto or changes
therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
ARTICLE II
CREATION OF TRUST
SECTION 2.01 CREATION OF TRUST. A Delaware business trust known as "Nissan
Auto Receivables ____-_ Owner Trust" was formed in accordance with the
provisions of the Business Trust Statute pursuant to the Original Trust
Agreement. Under the Original Trust Agreement, the Owner Trustee was authorized
and vested with the power and authority to make and execute contracts,
instruments, certificates, agreements and other writings on behalf of the Trust
as set forth herein and to ▇▇▇ and be sued on behalf of the Trust.
The Owner Trustee accepted under the Original Trust Agreement, and does
hereby confirm its acceptance and agreement to hold in trust, for the benefit of
the Certificateholders and such other Persons as may become beneficiaries
hereunder from time to time, all of the Owner Trust Estate conveyed or to be
conveyed to the Trust, and all monies and proceeds that may be received with
respect thereto, subject to the terms of this Agreement.
SECTION 2.02 OFFICE. The principal place of business of the Trust for
purposes of Delaware law shall be in care of the Owner Trustee at the Corporate
Trust Office or at such other address in Delaware as the Owner Trustee may
designate by written notice to the Certificateholders and the Servicer. The
Trust may establish additional offices located at such place or places inside or
outside of the State of Delaware as the Owner Trustee may designate by written
notice to the Certificateholders and the Servicer.
SECTION 2.03 PURPOSES AND POWERS.
(a) The purpose of the Trust is to engage in the following activities:
(i) to issue Notes pursuant to the Indenture and Certificates
pursuant to this Agreement;
(ii) to acquire the Receivables and related property from the
Depositor in exchange for the Notes and Certificates pursuant to the Sale
and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Owner Trust Estate pursuant to, and on the terms and conditions set forth
in, the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and
5
Servicing Agreement any portion of the Trust Estate released from the Lien
of, and remitted to the Trust pursuant to, the Indenture as set forth
therein and in the Sale and Servicing Agreement;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Owner Trust Estate and the making of distributions to the
Certificateholders and the Noteholders and in respect of amounts to be
released to the Depositor, the Servicer, the Administrator and third
parties, if any.
The Trust is hereby authorized to engage in the foregoing activities. The
Trust shall not engage in any activity other than in connection with the
foregoing and as required or authorized by the terms of the Basic Documents.
SECTION 2.04 POWER OF ATTORNEY. Pursuant to the Administration Agreement,
the Owner Trustee has authorized the Administrator to perform certain of its
administrative duties hereunder, including duties with respect to the management
of the Owner Trust Estate, and in connection therewith hereby grants the
Administrator its revocable power of attorney. Each Certificateholder by such
Holder's acceptance of any Certificate or beneficial interest therein, as the
case may be, shall be deemed to have granted power of attorney to the
Administrator for purposes of actions taken or to be taken with respect to the
Certificates.
SECTION 2.05 DECLARATION OF TRUST. The Owner Trustee hereby declares that
it will hold the Owner Trust Estate in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholders, subject to
the obligations of the Trust under the Basic Documents. It is the intention of
the parties hereto that the Trust constitute a business trust under the Business
Trust Statute and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that, solely for
income and franchise tax purposes, the Trust shall be treated as a partnership
for any period during which the beneficial ownership interests in the Trust are
held by more than one person, with the assets of the partnership being the
Receivables and other assets held by the Trust, and the Notes being debt of the
partnership. The parties agree that for any such period, unless otherwise
required by appropriate tax authorities, the Trust will file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership for such tax purposes.
Effective as of the date hereof, the Owner Trustee shall have all rights, powers
and duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. At the direction of the Depositor, the
Owner Trustee caused to be filed the Certificate of Trust pursuant to the
Business Trust Statute, and the Owner Trustee shall file or cause to be filed
such amendments thereto as shall be necessary or
6
appropriate to satisfy the purposes of this agreement and as shall be
consistent with the provisions hereof.
SECTION 2.06 LIABILITY OF NMAC AND THE CERTIFICATEHOLDERS .
(a) The Administrator shall be liable directly to and will, in accordance
with the Administration Agreement and the following provisions, indemnify and
hold harmless the Owner Trustee, any co-trustee and the Indenture Trustee for
any loss, liability, claim, action, suit, cost or expense of the Trust
(including Expenses, to the extent not paid out of the Owner Trust Estate) to
the extent that the Administrator would be liable if the Trust were a
partnership under the Delaware Revised Uniform Limited Partnership Act in which
the Administrator were a general partner; PROVIDED, HOWEVER, that the
Administrator shall not be liable for any losses incurred by a Certificateholder
in the capacity of an investor in the Certificates or a Noteholder in the
capacity of an investor in the Notes and will not and shall not be deemed hereby
to have indemnified the Owner Trustee, any co-trustee or Indenture Trustee
against any loss liability or expense resulting from the such trustee's own
willful misfeasance, bad faith or negligence or by reason of a breach of
representation or warranty thereof contained herein or in the Indenture, as the
case may be. In addition, any third party creditors of the Trust (other than in
connection with the obligations described in the provisions in the preceding
sentence for which the Administrator shall not be liable) shall be deemed to be
third party beneficiaries of this paragraph.
(b) No Certificateholder shall have any personal liability for any
liability or obligation of the Trust, solely by reason of it being a
Certificateholder.
SECTION 2.07 TITLE TO TRUST PROPERTY. Legal title to all of the Owner Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee or trustees, in which case
title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.08 SITUS OF TRUST. The Trust will be located in Delaware and
administered in the state of [__________]. All bank accounts maintained by the
Owner Trustee on behalf of the Trust shall be located in the State of Delaware
or the State of New York [or ___________]. The Trust shall not have any
employees in any state other than Delaware; PROVIDED, HOWEVER, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees within
or without the State of Delaware. Payments will be received by the Trust only in
Delaware or New York [or__________], and payments will be made by the Trust only
from Delaware or New York [or__________]. The principal office of the Trust will
be at the Corporate Trust Office in Delaware.
SECTION 2.09 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The Depositor
hereby represents and warrants to the Owner Trustee that as of the Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Depositor has been duly organized
and is validly existing as a corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its properties and
to conduct its business as such properties
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are currently owned and such business is presently conducted, and had at all
relevant times, and has, corporate power, authority and legal right to
acquire and own the Receivables.
(b) DUE QUALIFICATION. The Depositor is duly qualified to do business as a
foreign corporation in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business shall require such qualifications, and where the
failure to so qualify would have a material adverse effect on the ability of the
Depositor to perform its obligations under this Agreement.
(c) POWER AND AUTHORITY. The Depositor has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms. The
Depositor has full power and authority to sell and assign the property to be
sold and assigned to and deposited as part of the Owner Trust Estate and has
duly authorized such sale and assignment to the Trust and the Owner Trustee by
all necessary corporate action; and the execution, delivery and performance of
this Agreement has been duly authorized by the Depositor by all necessary
corporate action.
(d) BINDING OBLIGATIONS. This Agreement is a legal, valid and binding
obligation of the Depositor enforceable in accordance with its terms, subject to
the effect of bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditors' rights generally and by general equitable
principles.
(e) NO VIOLATION. The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, nor constitute (with or
without notice or lapse of time) a default under, the certificate of
incorporation or by-laws of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such indenture, agreement or other instrument
(other than the Basic Documents); nor violate any law or, to the best of the
Depositor's knowledge, any order, rule or regulation applicable to the Depositor
of any court or of any federal or state regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the Depositor or
its properties; which breach, default, conflict, Lien or violation in any case
would have a material adverse effect on the ability of the Depositor to perform
its obligations under this Agreement.
(f) NO PROCEEDINGS. There are no proceedings or investigations pending, or,
to the best of the Depositor's knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement; (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement; (iii) seeking any determination
or ruling that would materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, this
Agreement; or (iv) relating to the Depositor and that would adversely affect the
federal or any state income tax attributes of the Trust, the Certificates or the
Notes.
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SECTION 2.10 FEDERAL INCOME TAX ALLOCATIONS. Net income of the Trust for
any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) shall be
allocated:
(a) in an amount equal to any amount distributed to the Certificateholders
pursuant to the Sale and Servicing Agreement (to the extent not previously
allocated pursuant to this clause); and
(b) to the Depositor, to the extent of any remaining net income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in the preceding
sentence. Net losses of the Trust, if any, for any month as determined for
federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated to the Depositor to
the extent the Depositor has agreed hereunder and under the Sale and Servicing
Agreement and the Indenture to bear the economic burden of such net losses, and
any remaining net losses shall be allocated among the Certificateholders as of
the first Distribution Date following the end of such month in proportion to
their ownership of principal amount of Certificates as of the close of business
on such Distribution Date. The Depositor is authorized to modify the allocations
in this paragraph if necessary or appropriate, in its sole discretion, for the
allocations to fairly reflect the economic income, gain or loss to the Depositor
or to the Certificateholders, or as otherwise required by the Code.
ARTICLE III
CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01 THE CERTIFICATES. The Certificates shall be issued in minimum
denominations of $[_____] and in integral multiples of $[______] in excess
thereof, provided that one Class D Certificate issued to the Depositor pursuant
to Section 3.09 may be issued in an irregular denomination that includes any
residual amount. The Certificates shall be executed on behalf of the Trust by
manual or facsimile signature of a Trust Officer of the Owner Trustee and
authenticated on behalf of the Owner Trustee by the manual or facsimile
signature of a Trust Officer. Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be valid and
binding obligations of the Trust, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Certificates or did not hold such offices at the date of
authentication and delivery of such Certificates.
The Certificates may be printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination in the form of EXHIBIT A
hereto.
A transferee of a Certificate shall become a Certificateholder, and shall
be entitled to the
9
rights and subject to the obligations of a Certificateholder hereunder, upon
such transferee's acceptance of a Certificate duly registered in such
transferee's name pursuant to Section 3.03.
SECTION 3.02 AUTHENTICATION OF CERTIFICATES. Concurrently with the initial
sale of the Receivables to the Trust pursuant to the Sale and Servicing
Agreement, the Owner Trustee shall cause to be executed, authenticated and
delivered on behalf of the Trust to or upon the written order of the Depositor
Certificates in an aggregate principal amount equal to the Original Certificate
Balance and evidencing the entire ownership of the Trust. No Certificate shall
entitle its holder to any benefit under this Agreement or be valid for any
purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in EXHIBIT A, executed by the
Owner Trustee or the Owner Trustee's authenticating agent, by manual or
facsimile signature of a Trust Officer, and such authentication shall constitute
conclusive evidence, and the only evidence, that such Certificate shall have
been duly authenticated and delivered hereunder. All Certificates shall be dated
the date of their authentication.
SECTION 3.03 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 3.07, a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Owner Trustee
shall provide for the registration of Certificates and of transfers and
exchanges of Certificates as herein provided. The Owner Trustee shall be the
initial Certificate Registrar. In the event that the Certificate Registrar shall
for any reason become unable to act as Certificate Registrar, the Certificate
Registrar shall promptly give written notice to such effect to the Depositor,
the Owner Trustee and the Servicer. Upon receipt of such notice, the Servicer
shall appoint another bank or trust company, having an office or agency located
in the Borough of Manhattan, The City of New York, and that shall agree to act
in accordance with the provisions of this Agreement applicable to it, and
otherwise acceptable to the Owner Trustee, to act as successor Certificate
Registrar under this Agreement.
(b) Upon surrender for registration of transfer of any Certificate at the
office or agency maintained pursuant to Section 3.07, the Owner Trustee shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of a like
aggregate amount dated the date of authentication by the Owner Trustee or any
authenticating agent. At the option of a Holder, Certificates may be exchanged
for other Certificates of the same Class of authorized denominations of a like
aggregate amount upon surrender of the Certificates to be exchanged at the
office or agency maintained pursuant to Section 3.07. The preceding provisions
of this Section notwithstanding, the Owner Trustee shall not make and the
Certificate Registrar shall not register transfer or exchanges of Certificates
for a period of 15 days preceding the due date for any payment with respect to
the Certificates.
(c) Every Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in form
satisfactory to the Owner Trustee and the Certificate Registrar duly executed by
the Holder or his attorney duly authorized
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in writing. Each Certificate surrendered for registration of transfer or
exchange shall be cancelled and disposed of by the Owner Trustee in
accordance with its customary practice.
No transfer of a Certificate shall be made unless the Owner Trustee shall
have received:
(1) a representation from the transferee of such Certificate acceptable to
and in form and substance satisfactory to the Owner Trustee substantially in the
form of EXHIBIT B to the effect that:
(i) such transferee is not a Non-U.S. Person; and
(ii) such transferee is not an employee benefit plan or arrangement
subject to Section 406 of Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or a plan subject to Section 4975 of the Code (a
"Plan"), nor a person acting on behalf of a Plan nor using the assets of a
Plan to effect such transfer;
(2) a representation from the transferor of such Certificate acceptable to
and in form and substance satisfactory to the Owner Trustee substantially in the
form of EXHIBIT C; and
(3) an opinion of counsel to the Owner Trustee that the transfer of such
Certificate is being made pursuant to an effective registration under the
Securities Act or is exempt from the registration requirements of the Securities
Act.
For purposes of the preceding sentence, with respect to a Certificate that
is a Book-Entry Certificate, if the transferee's certificate referred to above
is not furnished, the representations contained in clause (1) above shall be
deemed to have been made to the Owner Trustee by the transferee's (including an
initial acquiror's) acceptance of such Certificate. Notwithstanding anything
else to the contrary herein, any purported transfer of a Certificate to or on
behalf of a Plan or utilizing the assets of a Plan shall be void and of no
effect.
To the extent permitted under applicable law (including, but not limited
to, ERISA), the Owner Trustee shall be under no liability to any Person for any
registration of transfer of any Certificate that is in fact not permitted by
this Section 3.03(c) or for making any payments due on such Certificate to the
Certificateholder thereof or taking any other action with respect to such Holder
under the provisions of this Trust Agreement or the Sale and Servicing Agreement
so long as the transfer was registered by the Certificate Registrar or the Owner
Trustee in accordance with the foregoing requirements.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
SECTION 3.04 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (a) any
mutilated Certificate shall be surrendered to the Certificate Registrar, or if
the Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there
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shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Certificate shall have been
acquired by a bona fide purchaser, the Owner Trustee on behalf of the Trust
shall execute and the Owner Trustee, or the Owner Trustee's authenticating
agent, shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of the
same class and like tenor and denomination. In connection with the issuance
of any new Certificate under this Section, the Owner Trustee or the
Certificate Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be
found at any time.
SECTION 3.05 PERSONS DEEMED CERTIFICATEHOLDERS. Prior to due presentation
of a Certificate for registration of transfer, the Owner Trustee or the
Certificate Registrar may treat the Person in whose name any Certificate shall
be registered in the Certificate Register as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 5.02 and for all
other purposes whatsoever, and neither the Owner Trustee nor the Certificate
Registrar shall be bound by any notice to the contrary.
SECTION 3.06 ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES. The
Certificate Registrar shall furnish or cause to be furnished to the Owner
Trustee, the Servicer or the Depositor, as the case may be, within 15 days after
its receipt of a request therefor from the Owner Trustee, the Servicer or the
Depositor in writing, a list, in such form as the Owner Trustee, the Servicer or
the Depositor may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders of any Class or one or more Holders of Certificates of any
Class evidencing, in the aggregate, not less than 25% of the Certificate Balance
of such Class apply in writing to the Owner Trustee, and such application states
that the applicants desire to communicate with other Certificateholders with
respect to their rights under this Agreement or under the Certificates and such
application is accompanied by a copy of the communication that such applicants
propose to transmit, then the Owner Trustee shall, within five Business Days
after the receipt of such application, afford such applicants access during
normal business hours to the current list of Certificateholders. Each Holder, by
receiving and holding a Certificate, shall be deemed to have agreed not to hold
any of the Depositor, the Servicer, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
SECTION 3.07 MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in the Borough of Manhattan, The City of New York an office or offices
or agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates [______________], [______________], as its
principal corporate trust office for such purposes. The Owner Trustee shall give
prompt written notice to the Depositor and to the Certificateholders of any
change in the location of the Certificate Register or any such office or agency.
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SECTION 3.08 APPOINTMENT OF PAYING AGENT. Except during any period when the
Indenture Trustee is authorized and directed to do so under the Indenture (i.e.
prior to the termination of the Indenture), the Paying Agent shall make
distributions to Certificateholders from the Collection Account pursuant to
Section 5.02 and shall report the amounts of such distributions to the Owner
Trustee. Any Paying Agent shall have the revocable power to withdraw funds from
the Collection Account for the purpose of making the distributions referred to
above. The Owner Trustee may revoke such power and remove the Paying Agent if
the Owner Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be the Owner Trustee, and any
co-paying agent chosen by the Owner Trustee, and acceptable to the Owner
Trustee. The Paying Agent shall be permitted to resign as Paying Agent upon 30
days' written notice to the Indenture Trustee and, if the Paying Agent is not
the Owner Trustee, to the Owner Trustee. In the event that the Owner Trustee
shall no longer be the Paying Agent, the Owner Trustee shall appoint a successor
to act as Paying Agent (which shall be a bank or trust company). The Owner
Trustee shall cause such successor Paying Agent or any additional Paying Agent
appointed by the Owner Trustee to execute and deliver to the Owner Trustee an
instrument in which such successor Paying Agent or additional Paying Agent shall
agree with the Owner Trustee that as Paying Agent, such successor Paying Agent
or additional Paying Agent will hold all sums, if any, held by it for payment to
the Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders. The
Paying Agent shall return all unclaimed funds to the Owner Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04,
8.01 and 8.02 shall apply to the Owner Trustee also in its role as Paying Agent,
for so long as the Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other Paying Agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
SECTION 3.09 OWNERSHIP BY THE DEPOSITOR OF CERTIFICATES. The Depositor
shall on the Closing Date purchase, and shall thereafter retain beneficial and
record ownership of, Certificates representing at least [___]% of the
Certificate Balance of the Class D Certificates. Any attempted transfer of any
Certificate that would reduce such interest of the Depositor below [___]% of the
Certificate Balance of the Class D Certificates shall be void. The Owner Trustee
shall cause at least one Class D Certificate issued to the Depositor
(representing at least [___]% of the Certificate Balance of such Class) to bear
a legend stating "THIS CERTIFICATE IS NON-TRANSFERABLE".
SECTION 3.10 BOOK-ENTRY CERTIFICATES. The Certificates, upon original
issuance, will be issued in the form of a typewritten Certificate or
Certificates representing Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Trust; PROVIDED, HOWEVER, that Definitive Certificate may be issued to the
Depositor pursuant to Section 3.12. Such Certificate or Certificates shall
initially be registered on the Certificate Register in the name of Cede & Co.,
the nominee of the initial Clearing Agency, and no Certificate Owner will
receive a Definitive Certificate representing such Certificate Owner's interest
in such Certificate, except as provided in Section 3.12. Unless and
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until definitive, fully registered Certificates (the "Definitive
Certificates") have been issued to Certificate Owners pursuant Section 3.12:
(a) the provisions of this Section shall be in full force and effect;
(b) the Depositor, the Servicer, the Administrator, Certificate Registrar
and the Owner Trustee shall be entitled to deal with the Clearing Agency for all
purposes of this Agreement (including the payment of principal of and interest
on the Certificates and the giving of instructions or directions hereunder) as
the authorized representative of the Certificate Owners;
(c) to the extent that the provisions of this section conflict with any
other provisions of this Agreement, the provisions of this Section shall
control;
(d) the rights of Certificate Owners shall be exercised only through the
Clearing Agency (or through procedures established by the Clearing Agency) and
shall be limited to those established by law and the agreements between the
Depositor, the Owner Trustee or such Certificate Owners and the Clearing Agency
and/or the Clearing Agency Participants. Unless and until Definitive
Certificates are issued pursuant to Section 3.12, 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 Certificates
to such Clearing Agency Participants; and
(e) whenever this Agreement requires or permits actions to be taken based
upon instructions or directions of Holders of Certificates of any Class
evidencing a specified percentage of the Certificate Balance of such Class, the
Clearing Agency shall be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Certificate Owners and/or
Clearing Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Certificates and has delivered such
instructions to the Owner Trustee.
SECTION 3.11 NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.12, the Owner Trustee shall give all such notices and
communications specified herein to be given to Certificateholders to the
Clearing Agency, and shall have no obligations to the Certificate Owners.
SECTION 3.12 DEFINITIVE CERTIFICATES. If (i) the Depositor or the
Administrator advises the Owner Trustee in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities with
respect to the Certificates, and the Depositor, the Owner Trustee or the
Administrator is unable to locate a qualified successor (and if the
Administrator has made such determination, the Administrator has given written
notice thereof to the Owner Trustee), (ii) the Depositor, the Owner Trustee or
the Administrator at its option advises each such other 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, Certificate
Owners representing beneficial interests aggregating a majority of the
Certificate Balance
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(voting as a single class) advise the Clearing Agency and the Owner Trustee
through the Clearing Agency in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interest of the
Certificate Owners, then the Clearing Agency shall notify all Certificate
Owners and the Owner Trustee of the occurrence of any such event and of the
availability of the Definitive Certificates to Certificate Owners requesting
the same. Upon surrender to the Owner Trustee of the typewritten Certificate
or Certificates representing the Book-Entry Certificates by the Clearing
Agency accompanied by registration instructions, the Owner Trustee shall
execute and authenticate the related temporary Certificates or Definitive
Certificates in accordance with the instructions of the Clearing Agency.
Neither the Certificate Registrar nor the Owner 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 Certificates, Depositor, the Servicer, the Administrator and the
Owner Trustee shall recognize the Holders of the Definitive Certificates as
Certificateholders. The Definitive Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Owner Trustee, as evidenced by its execution
thereof. The Owner Trustee and Administrator shall have no liability if they
are unable to locate a qualified successor Clearing Agency. From and after
the date of issuance of Definitive Certificates, all notices to be given to
Certificateholders will be mailed thereto at their addresses of record in the
Certificate Register as of the relevant Record Date. Such notices will be
deemed to have been given as of the date of mailing.
SECTION 3.13 TEMPORARY CERTIFICATES. Pending the preparation of Definitive
Certificates, the Owner Trustee, on behalf of the Trust, may execute,
authenticate and deliver, temporary Certificates, printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Certificates in lieu of which they
are issued. If temporary Certificates are issued, the Depositor will cause
Definitive Certificates to be prepared without unreasonable delay. After the
preparation of Definitive Certificates, the temporary Certificates shall be
exchangeable for Definitive Certificates upon surrender thereof at the office or
agency to be maintained as provided in Section 3.07 without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Certificates, the Owner Trustee on behalf of the Trust shall execute,
authenticate and deliver in exchange therefor a like principal amount of
Definitive Certificates in authorized denominations. Until so exchanged, the
temporary Certificates shall in all respects be entitled to the same benefits
under this Agreement as the related Definitive Certificates.
ARTICLE IV
ACTIONS BY OWNER TRUSTEE OR CERTIFICATEHOLDERS
SECTION 4.01 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. With respect to the following matters, the Owner Trustee shall not take
action unless at least 30 days before the taking of such action (or such shorter
period as shall be agreed to in writing by all Certificateholders), the Owner
Trustee shall have notified the Certificateholders in writing of the proposed
action and the Certificateholders shall not have notified the Owner Trustee in
writing
15
prior to the 30th day (or such agreed upon shorter period) after such
notice is given that such Certificateholders have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or
lawsuits brought in connection with the collection of the Receivables) and the
compromise of any action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for collection of
the Receivables);
(b) the election by the Trust to file an amendment to the Certificate of
Trust (unless such amendment is required to be filed under the Business Trust
Statute);
(c) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is required;
(d) the amendment of the Indenture, whether or not by a Supplemental
Indenture, in circumstances where the consent of any Noteholder is not required
but such amendment materially adversely affects the interest of the
Certificateholders;
(e) the amendment, change or modification of the Administration Agreement,
other than to cure any ambiguity or to amend or supplement any provision in a
manner or add any provision that would not materially adversely affect the
interests of the Certificateholders; or
(f) the appointment (i) pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee, (ii) pursuant to this Agreement of
a successor Certificate Registrar or (iii) any consent by the Note Registrar,
Paying Agent or Indenture Trustee or Certificate Registrar to the assignment of
its respective obligations under the Indenture or this Agreement, as applicable.
SECTION 4.02 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS.
The Owner Trustee shall not have the power, except upon the direction of the
Certificateholders, to (a) remove the Administrator pursuant to Section 8 of the
Administration Agreement, (b) appoint a successor Administrator pursuant to
Section 8 of the Administration Agreement, (c) remove the Servicer pursuant to
Section 8.01 of the Sale and Servicing Agreement or (d) except as expressly
provided in the Basic Documents, sell the Receivables after the termination of
the Indenture. The Owner Trustee shall take the actions referred to in the
preceding sentence only upon written instructions signed by the authorized
representative of 100% of the Certificateholders.
SECTION 4.03 ACTION WITH RESPECT TO BANKRUPTCY. The Owner Trustee shall not
have the power to commence a voluntary proceeding in bankruptcy relating to the
Trust without the unanimous prior approval of all Certificateholders and the
delivery to the Owner Trustee by each Certificateholder that such
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.04 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligations of the Trust or of the Owner Trustee under any of the Basic
16
Documents or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.05 MAJORITY OF THE CONTROLLING CLASS OF CERTIFICATES CONTROL.
Except as otherwise expressly provided herein, any action that may be taken by
the Certificateholders under this Agreement may be taken by the Holders of the
Controlling Class of Certificates evidencing not less than a majority of the
Certificate Balance of such Class. Except as expressly provided herein, any
written notice of the Certificateholders delivered pursuant to this Agreement
shall be effective if signed by Holders of the Controlling Class of Certificates
evidencing not less than a majority of the Certificate Balance of such Class at
the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01 ESTABLISHMENT OF THE TRUST COLLECTION ACCOUNT.
(a) On or prior to the Distribution Date on which the Notes of all Classes
have been paid in full (or substantially all of the Trust Estate is otherwise
released from the lien of the Indenture), the Owner Trustee, for the benefit of
the Certificateholders, shall establish and maintain, or shall cause to be
established and maintained, in the name of the Trust (or in such other name as
shall be specified in the Sale and Servicing Agreement), the trust collection
account (the "Trust Collection Account"). The Trust Collection Account shall be
established and maintained as an Eligible Deposit Account, and, subject to
provisions of the Sale and Servicing Agreement, bearing a designation clearly
indicating that, subject to Section 5.01(b), the funds deposited therein are
held by the Trust for the benefit of the Certificateholders, in each case in
accordance with Section 5.01 of the Sale and Servicing Agreement.
Subject to Section 5.01(b), the Owner Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Trust
Collection Account and in all proceeds thereof (other than any net investment
earnings on Eligible Investments held therein). Except as otherwise expressly
provided herein, the Trust Collection Account shall be under the sole dominion
and control of the Owner Trustee for the benefit of the Certificateholders. If,
at any time, the Trust Collection Account ceases to be an Eligible Deposit
Account, the Owner Trustee (or the Administrator on behalf of the Owner Trustee,
if the Trust Collection Account is not then held by the Owner Trustee or an
affiliate thereof) shall within 10 Business Days establish a new equivalent
Eligible Deposit Account and shall transfer any cash and/or any investments to
such new account.
(b) Concurrently with the execution and delivery of the Indenture, the
Servicer will establish and maintain, or shall cause to be established and
maintained, at the direction of the Depositor, the Collection Account in the
name of and under the control of the Indenture Trustee for the benefit of the
Securityholders in accordance with Section 5.01 of the Sale and Servicing
Agreement. The Indenture Trustee will be obligated to transfer back to the Trust
Collection Account all funds or investments held in the Collection Account
established pursuant to the Sale
17
and Servicing Agreement on the Distribution Date on which the Notes of all
Classes have been paid in full or the Indenture is otherwise terminated
(excluding any amounts to be retained for distribution in respect of Notes
that are not promptly delivered for payment on such Distribution Date), and
to take all necessary or appropriate actions to transfer all right, title and
interest of the Indenture Trustee in such funds or investments and all
proceeds thereof to the Owner Trustee for the benefit of the
Certificateholders.
SECTION 5.02 APPLICATION OF AMOUNTS IN TRUST ACCOUNTS.
(a) For so long as any Notes are outstanding, on each Distribution Date,
the Owner Trustee will take reasonable steps to determine that the Servicer has
properly delivered the Servicer's Certificate identifying how amounts on deposit
in the Collection Account are to be allocated and distributed and will instruct
the Indenture Trustee, or cause the Indenture Trustee to be instructed, to
distribute to Certificateholders, on a pro rata basis, the amounts distributable
thereto pursuant to Section 5.06 of the Sale and Servicing Agreement and Section
3.01 of the Indenture. From and after the date on which the Notes of all Classes
have been paid in full, on each Distribution Date, the Owner Trustee shall
distribute to the Certificateholders amounts on deposit in the Collection
Account that are distributable to the Certificateholders in accordance with the
instructions of the Servicer pursuant to Sections 5.06 of the Sale and Servicing
Agreement. Upon the release from the Lien of the Indenture of amounts on deposit
in the Collection Account or any other portion of the Owner Trust Estate, the
Owner Trustee will cause such property to be properly deposited into the
Collection Account under the control of the Owner Trustee pursuant to Section
5.01(a) or distributed to the Certificateholders in accordance with the
provisions of this Agreement, as the case may be.
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.09 of the Sale and Servicing Agreement with respect to
such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's payment
(or allocations of income) to a Certificateholder, such tax shall reduce the
amount otherwise distributable to the Certificateholder in accordance with this
Section. The Owner Trustee is hereby authorized and directed to retain from
amounts otherwise distributable to the Certificateholders sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to any distribution (such as any distribution to a Non-U.S.
Person), the Owner Trustee may in its sole discretion withhold such amounts in
accordance with this paragraph (c). In the event that a Certificateholder wishes
to apply for a refund of any such withholding tax, the Owner Trustee shall
reasonably cooperate with such Certificateholder in making such claim so long as
such Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
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SECTION 5.03 METHOD OF PAYMENT. Subject to Section 9.01(c), distributions
required to be made to Certificateholders on any Distribution Date shall be made
to each Certificateholder of record on the related Record Date either by check
mailed to such Certificateholder at the address of such holder appearing in the
Certificate Register or by wire transfer, in immediately available funds, to the
account of any Certificateholder at a bank or other entity having appropriate
facilities therefor, if such Certificateholder shall have provided to the
Certificate Registrar appropriate written instructions at least five Business
Days prior to such Distribution Date.
SECTION 5.04 ACCOUNTING AND REPORTS TO THE NOTEHOLDERS, CERTIFICATEHOLDERS,
THE INTERNAL REVENUE SERVICE AND OTHERS. The Owner Trustee shall (a) maintain
(or cause to be maintained) the books of the Trust on a fiscal year basis (with
a March 31 year end) or a calendar basis on the accrual method of accounting,
(b) deliver to each Certificate Owner, as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including
Schedule K-1) to enable each Certificate Owner to prepare its federal and state
income tax returns, (c) file any tax and information returns, and fulfill any
other reporting requirements, relating to the Trust, as may be required by the
Code and applicable Treasury Regulations (including Treasury Regulation Section
1.6049-7), (d) for any period during which the beneficial ownership interests in
the Trust are held by more than one person, make such elections as may from time
to time be required or appropriate under any applicable state or federal statute
or rule or regulation thereunder so as to maintain the Trust's characterization
as a partnership for federal income tax purposes, (e) cause such tax returns to
be signed in the manner required by law, and (f) collect or cause to be
collected any withholding tax as described in and in accordance with Section
5.02(c) with respect to income or distributions to Certificateholders. The Owner
Trustee shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables. The
Owner Trustee shall not make the election provided under Section 754 of the
Code.
SECTION 5.05 SIGNATURE ON RETURNS; TAX MATTER PARTNER.
(a) The Owner Trustee shall sign on behalf of the Trust the tax returns of
the Trust, unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by the Administrator,
pursuant to the power-of-attorney granted thereto pursuant to Section 2.04.
(b) For any period during which the beneficial ownership interests of the
Trust are held by more than one person, the Certificateholder holding the Class
D Certificates evidencing the largest portion of the Original Certificate
Balance of such Class shall be designated the "tax matters partner" of the Trust
pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations, but hereby delegates its powers and duties as such to the
Administrator pursuant to the power-of-attorney granted thereto pursuant to
Section 2.04.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
19
SECTION 6.01 GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to be
a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party and any
amendment thereto, and, on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver Class A-1 Notes in the aggregate principal amount of
$[______________] , Class A-2 Notes in the aggregate principal amount of
$[______________], Class A-3 Notes in the aggregate principal amount of
$[______________], and Class B Notes in the aggregate principal amount of
$[______________]. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust, pursuant to the Basic Documents.
SECTION 6.02 GENERAL DUTIES. It shall be the duty of the Owner Trustee to
discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and the Basic Documents to which the Trust is a
party and to administer the Trust in accordance with the provisions hereof and
of the Basic Documents and in the interest of the Certificateholders.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Basic
Documents to the extent the Administrator has agreed in the Administration
Agreement to perform any act or to discharge any duty of the Owner Trustee
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator to carry out such
obligations or fulfill such duties under the Administration Agreement.
SECTION 6.03 DUTIES OF THE OWNER TRUSTEE.
(a) Subject to Article IV and in accordance with the terms of the Basic
Documents, the Certificateholders may by written instruction direct the Owner
Trustee in the management of the Trust. Such direction may be exercised at any
time by written instruction of the Certificateholders pursuant to Article IV.
The Owner Trustee, accepts the trusts hereby created and agrees to perform its
duties hereunder with respect to such trusts but only upon the terms of this
Agreement. The Owner Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Owner Trustee that shall be specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to determine
whether they conform on their face to the requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the Owner
Trustee from liability for its own negligent action, its own negligent failure
to act, its own bad faith or its own willful misfeasance; PROVIDED, HOWEVER,
that:
(i) the duties and obligations of the Owner Trustee shall be
determined solely by the express provisions of this Agreement, the Owner
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Owner Trustee, the permissive right of the Owner Trustee to do things
enumerated in this Agreement shall not be construed as a duty and, in the
absence of bad faith on the part of the Owner Trustee, the Owner Trustee
may conclusively rely, as to the truth of the
20
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Owner Trustee and conforming on
their face to the requirements of this Agreement;
(ii) the Owner Trustee shall not be personally liable for an error of
judgment made in good faith by a Trust Officer, unless it shall be proved
that the Owner Trustee was negligent in performing its duties in accordance
with the terms of this Agreement; and
(iii) the Owner Trustee shall not be personally liable with respect to
any action taken, suffered or omitted to be taken in good faith in
accordance with the direction of the Holders of the Controlling Class of
Certificates representing at least a majority of the Certificate Balance of
such Class (or such larger or smaller percentage of any other Class or
Classes as may be required by any other provision of this Agreement or the
other Basic Documents).
(c) The Owner Trustee shall not be required to expend or risk its own funds
or otherwise incur financial liability in the performance of any of its duties
under this Agreement, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it.
(d) All information obtained by the Owner Trustee regarding the Obligors
and the Receivables contained in the Trust, whether upon the exercise of its
rights under this Agreement or otherwise, shall be maintained by the Owner
Trustee in confidence and shall not be disclosed to any other Person, unless
such disclosure is required by any applicable law or regulation or pursuant to
subpoena.
(e) Pursuant to Section 3.02 of the Sale and Servicing Agreement, in the
event that the Owner Trustee discovers that a representation or warranty made by
the Seller pursuant to Section 3.01 or 6.01 of the Sale and Servicing Agreement
with respect to a Receivable was incorrect as of the time specified with respect
to such representation and warranty and such incorrectness materially and
adversely affects the interests of any Securityholder in such Receivable, the
Owner Trustee shall give prompt written notice to the Servicer, the Depositor
and the Indenture Trustee of such incorrectness. Pursuant to Section 4.06 of the
Sale and Servicing Agreement, in the event that the Owner Trustee discovers that
any covenant of the Servicer set forth in the second sentence of Section 4.01 or
Section 4.02 or 4.05 of the Sale and Servicing Agreement has been breached by
the Servicer, the Owner Trustee shall give prompt written notice to the
Servicer, the Depositor and the Indenture Trustee of such breach.
SECTION 6.04 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of, or
otherwise deal with the Owner Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any Basic Document to which the
Owner Trustee is a party or otherwise contemplated hereby, except as expressly
provided by the terms of this Agreement, any Basic Document to which the Trust
is a
21
party or in any document or written instruction received by the Owner Trustee
pursuant to Section 6.03. No implied duties or obligations shall be read into
this Agreement or any Basic Document against the Owner Trustee. The Owner
Trustee shall have no responsibility for filing any financing or continuation
statement in any public office at any time or otherwise to perfect or
maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any
part of the Owner Trust Estate that result from actions by, or claims
against, the Owner Trustee that are not related to the ownership or the
administration of the Owner Trust Estate.
SECTION 6.05 NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Owner Trust Estate except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03.
SECTION 6.06 RESTRICTIONS. The Owner Trustee shall not take any action (a)
that is inconsistent with the purposes of the Trust set forth in Section 2.03 or
(b) that, to the actual knowledge of the Owner Trustee, would result in the
Trust's becoming taxable as a corporation for federal income tax purposes. The
Certificateholders shall not have the authority to and, by acceptance of an
ownership interest in any Certificate shall thereby be deemed to have covenanted
not to, direct the Owner Trustee to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 RIGHTS OF THE OWNER TRUSTEE . Except as otherwise provided in
Article VI:
(a) in accordance with Section 7.04, the Owner Trustee may rely and shall
be protected in acting or refraining from acting upon any resolution, Officer's
Certificate, certificate of an authorized signatory, certificate of auditors or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(b) the Owner Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in accordance with the instructions of the
Administrator, as provided in the Administration Agreement, or the
Certificateholders, as provided herein;
(c) the Owner Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Agreement or the Sale and Servicing
Agreement, or to institute, conduct or
22
defend any litigation under this Agreement, or in relation to this Agreement
or the Sale and Servicing Agreement, at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Agreement or
the Sale and Servicing Agreement, unless such Securityholders shall have
offered to the Owner Trustee reasonable security or indemnity against the
costs, expenses and liabilities that may be incurred therein or thereby;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents, including
the principal of and interest on the Notes;
(e) the Owner Trustee shall not be bound to recalculate, reverify, or make
any investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing to
do so by Holders of the Controlling Class of Certificates representing not less
than 25% of the Certificate Balance of such Class; PROVIDED, HOWEVER, that if
the payment within a reasonable time to the Owner Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Owner Trustee, not reasonably assured to the Owner
Trustee by the security afforded to it by the terms of this Agreement, the Owner
Trustee may require reasonable indemnity against such cost, expense or liability
as a condition to so proceeding; the reasonable expense of every such
examination shall be paid by the Administrator or, if paid by the Owner Trustee,
shall be reimbursed by the Administrator upon demand; and nothing in this clause
shall derogate from the obligation of the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors; and
(f) the Owner Trustee shall not be liable for the default or misconduct of
the Administrator, the Servicer, the Depositor or the Indenture Trustee under
any of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust under the Basic
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or the
Servicer under the Sale and Servicing Agreement.
SECTION 7.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish (a)
to the Certificateholders promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Owner Trustee
under the Basic Documents and (b) to Noteholders promptly upon written request
therefor, copies of the Sale and Servicing Agreement, the Administration
Agreement and the Trust Agreement.
SECTION 7.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Depositor and for the benefit of the
Certificateholders, that:
(a) It is a [_____________] duly organized and validly existing in good
standing under the laws of [_____________]. It has full power, right and
authority to execute, deliver and perform its obligations under this Agreement
and each other Basic Document.
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(b) It has taken all corporate action necessary to authorize the execution
and delivery of this Agreement and each other Basic Document, and this Agreement
and each other Basic Document has been executed and delivered by one of its
officers duly authorized to execute and deliver this Agreement and each other
Basic Document on its behalf.
(c) This Agreement constitutes the legal, valid and binding obligation of
the Owner Trustee, enforceable against it in accordance with its terms except as
the enforceability thereof may be limited by bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity.
(d) It is authorized to exercise trust powers in the State of Delaware as
and to the extent contemplated herein or has appointed a Delaware trustee that
is so authorized and it has a principal place of business in the State of
Delaware or has appointed a Delaware trustee that has such a principal place of
business.
(e) Neither the execution nor the delivery by it of this Agreement nor the
consummation by the Owner Trustee of the transactions contemplated hereby or
thereby nor compliance by it with any of the terms or provisions hereof or
thereof will contravene any federal or Delaware law, governmental rule or
regulation governing the [banking or trust] powers of the Owner Trustee or any
judgment or order binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be
bound.
SECTION 7.04 RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Owner
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Owner Trustee may for all purposes
hereof rely on a certificate, signed by the president or any vice president or
by the treasurer or other authorized officers or agents of the relevant party,
as to such fact or matter and such certificate shall constitute full protection
to the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under the Basic Documents, the Owner
Trustee (i) may act directly or through its agents or attorneys pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by the Owner Trustee with reasonable care,
and (ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Owner Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any
24
such counsel, accountants or other such persons and not contrary to this
Agreement or any Basic Document.
SECTION 7.05 NOT ACTING IN INDIVIDUAL CAPACITY. In accepting the trusts
hereby created, [_____________________] acts solely as Owner Trustee hereunder
and not in its individual capacity. Except with respect to a claim based on the
failure of the Owner Trustee to perform its duties under this Agreement or based
on the Owner Trustee's willful misconduct, bad faith or negligence, no recourse
shall be had for any claim based on any provision of this Agreement, the Notes
or Certificates, or based on rights obtained through the assignment of any of
the foregoing, against the institution serving as the Owner Trustee in its
individual capacity. The Owner Trustee shall not have any personal obligation,
liability or duty whatsoever to any Securityholder or any other Person with
respect to any such claim, and any such claim shall be asserted solely against
the Trust or any indemnitor who shall furnish indemnity as provided in this
Indenture.
SECTION 7.06 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR RECEIVABLES. The
Owner Trustee makes no representations as to the validity or sufficiency of this
Agreement or of the Certificates or of the Notes (other than the execution by
the Owner Trustee on behalf of the Trust of, and the certificate of
authentication on, the Certificates, and the direction of the Owner Trustee, on
behalf of the Trust, to the Indenture Trustee relating to the execution of the
Notes). The Owner Trustee shall have no obligation to perform any of the duties
of the Servicer or Administrator unless explicitly set forth in this Agreement.
The Owner Trustee shall at no time have any responsibility or liability for
or with respect to the legality, validity and enforceability of the
Certificates, the Notes or any Receivable, any ownership interest in any
Financed Vehicle, or the maintenance of any such ownership interest, or for or
with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Securityholders under this Agreement and the
Indenture, including without limitation the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the existence,
condition, location and ownership of any Receivable or Financed Vehicle; the
existence and enforceability of any physical damage or credit life or credit
disability insurance; the existence and contents of any retail installment sales
contract or any computer or other record thereof; the completeness of any retail
installment sales contract; the performance or enforcement of any retail
installment sales contract; the compliance by the Trust with any covenant or the
breach by the Trust of any warranty or representation made under this Agreement
or in any related document and the accuracy of any such warranty or
representation prior to the Owner Trustee's receipt of notice or other discovery
of any noncompliance therewith or any breach thereof; the acts or omissions of
the Trust or the Servicer; or any action by the Owner Trustee taken at the
instruction of the Certificateholders, PROVIDED, HOWEVER, that the foregoing
shall not relieve the Owner Trustee of its obligation to perform its duties
under this Agreement.
The Owner Trustee shall not be accountable for the use or application by
the Issuer of any of the Certificates or of the proceeds of such Certificates,
of any of the Notes or of the proceeds of such Notes, or for the use or
application of any funds paid to the Servicer in respect of the Certificates.
25
SECTION 7.07 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The Owner
Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Servicer in banking or other
transactions with the same rights as it would have if it were not Owner
Trustee.
SECTION 7.08 PENNSYLVANIA MOTOR VEHICLE SALES FINANCE ACT AND MARYLAND
LICENSE. The Owner Trustee, in its individual capacity, shall use its best
efforts to maintain, and the Owner Trustee, as Owner Trustee, shall cause the
Trust to use its best efforts to maintain, the effectiveness of all licenses
required under the Pennsylvania Motor Vehicle Sales Finance Act
and Maryland and all other similar applicable state laws in connection with
this Agreement and the Basic Documents and the transactions contemplated
hereby and thereby until such time as the Trust shall terminate in accordance
with the terms hereof.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 OWNER TRUSTEE'S FEES AND EXPENSES. The Trust shall pay or
shall cause the Servicer to pay to the Owner Trustee from time to time
compensation for its services as have been separately agreed upon before the
date hereof. The Administrator shall, pursuant to the Administration
Agreement and the provisions herein, reimburse the Owner Trustee for all
reasonable out-of-pocket expenses incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Owner Trustee's agents, counsel, accountants and experts
directly related to its services hereunder ("Expenses").
SECTION 8.02 INDEMNIFICATION. The Administrator shall indemnify or shall
cause the Servicer to indemnify the Owner Trustee against any and all loss,
liability or Expense (including reasonable attorneys' fees) incurred by it in
connection with the administration of the Trust and the performance of its
duties hereunder. The Owner Trustee shall notify the Administrator and the
Servicer promptly of any claim for which it may seek indemnity. Failure by
the Owner Trustee to so notify the Administrator and the Servicer shall not
relieve the Administrator or the Servicer of its obligations hereunder,
except where such failure shall affect the Administrator's or Servicer's
defenses in respect thereof. In case any such action is brought against the
Owner Trustee under this Section 8.02 and it notifies the Administrator of
the commencement thereof, the Administrator will assume the defense thereof,
with counsel reasonably satisfactory to the Owner Trustee (who may, unless
there is, as evidenced by an opinion of counsel to the Owner Trustee stating
that there is an unwaivable conflict of interest, be counsel to the
Administrator), and the Administrator will not be liable to the Owner Trustee
under this Section for any legal or other expenses subsequently incurred by
the Owner Trustee in connection with the defense thereof, other than
reasonable costs of investigation. Neither the Administrator nor the Servicer
need reimburse any expense or indemnify against any loss, liability or
expense incurred by the Owner Trustee through the Owner Trustee's own willful
misconduct, negligence or bad faith.
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SECTION 8.03 PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article VIII from assets in the Owner Trust
Estate shall be deemed not to be a part of the Owner Trust Estate immediately
after such payment.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Article VIII) shall terminate and the
Trust shall dissolve and be of no further force or effect, upon the earliest
of (i) the maturity or other liquidation of the last Receivable (or other
asset) in the Owner Trust Estate and the final distribution by the Owner
Trustee of all moneys or other property or proceeds of the Owner Trust Estate
in accordance with the terms of this Agreement, the Indenture and the Sale
and Servicing Agreement (including, but not limited to, any property and
proceeds to be deposited in the Collection Account pursuant to Sections 3.02,
4.06, 5.02, 5.04, 5.05, 5.07, 5.08 or 9.01 of the Sale and Servicing
Agreement or to be released by the Indenture Trustee from the Lien of the
Indenture pursuant to Section 10.01 or 10.02 of the Indenture), or (ii) the
payment or distribution to all Securityholders of all amounts specified in
Sections 3.02, 4.06, 5.02, 5.04, 5.06 or 9.02 of the Sale and Servicing
Agreement. The bankruptcy, liquidation, dissolution, death or incapacity of
any Certificateholder shall not (x) operate to terminate this Agreement or
the Trust, nor (y) entitle such Certificateholder's legal representatives or
heirs to claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Owner Trust
Estate, nor (z) otherwise affect the rights, obligations and liabilities of
the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor any
Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the Distribution
Date upon which the Certificateholders shall surrender their Certificates to
the Paying Agent for payment of the final distributions and cancellation,
shall be given by the Owner Trustee to the Certificateholders mailed within
five Business Days of receipt of notice of such termination from the Servicer
given pursuant to Section 10.03 of the Sale and Servicing Agreement, stating
(i) the Distribution Date upon or with respect to which final payment of the
Certificates shall be made upon presentation and surrender of the
Certificates at the office of the Paying Agent therein designated, (ii) the
amount of any such final payment and (iii) that payment to be made on such
Distribution Date will be made only upon presentation and surrender of the
Certificates at the office of the Paying Agent therein specified. The Owner
Trustee shall give such notice to the Certificate Registrar (if other than
the Owner Trustee) and the Paying Agent (if other than the Owner Trustee) at
the time such notice is given to Certificateholders. Upon presentation and
surrender of the Certificates, the Paying Agent shall cause to be distributed
to Certificateholders amounts distributable on such Distribution Date
pursuant to Section 5.02.
In the event that one or more of the Certificateholders shall not
surrender their
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Certificates for cancellation within six months after the date specified in
the above-mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one year after the second notice all the Certificates
shall not have been surrendered for cancellation, the Owner Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Certificateholders concerning surrender of their
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in
the Trust after exhaustion of such remedies shall be distributed by the Owner
Trustee to the Depositor.
(d) Upon the winding up of the Trust and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with
the provisions of Section 3820 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be an entity having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal
or state authorities. If such entity shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section
10.01, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. In case at any time the Owner Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in Section 10.02.
SECTION 10.02 RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner Trustee
may at any time resign and be discharged from the trusts hereby created by
giving written notice thereof to the Depositor, the Servicer and the
Indenture Trustee. [If at any time the Owner Trustee is deemed to have a
conflict of interest under the TIA, because of its roles as both Owner Trustee
hereunder and Indenture Trustee under the Indenture, the Owner Trustee shall
resign as Owner Trustee hereunder.] [[______________], in its capacity as Owner
Trustee, shall also resign as Owner Trustee hereunder if any Event of Default
under the Indenture occurs and is necessary to eliminate any conflict of
interest under the TIA with the Indenture Trustee or any other trustee under
the Indenture.]Upon receiving such notice of resignation, the Servicer shall
promptly appoint a successor Owner Trustee by written instrument, in duplicate,
one copy of which shall be delivered to each of the resigning Owner Trustee and
the successor Owner Trustee. If no successor Owner Trustee shall have been so
appointed or shall not have accepted such appointment within 30 days after the
giving of such notice of resignation, the resigning Owner Trustee may petition
any court of competent jurisdiction for the appointment of a successor Owner
Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the
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provisions of Section 10.01 and shall fail to resign promptly, or if at any
time the Owner Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, or a receiver of the Owner Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Administrator may
remove the Owner Trustee by written instrument to such effect delivered to
the Owner Trustee, the Depositor and the Indenture Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Servicer shall promptly appoint a
successor Owner Trustee by written instrument in duplicate, one copy of which
instrument shall be delivered to each of the outgoing Owner Trustee so
removed and the successor Owner Trustee, and pay all fees, expenses and other
compensation owed to the outgoing Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section
shall not become effective until acceptance of appointment by the successor
Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses
owed to the outgoing Owner Trustee. The Administrator shall provide notice of
such resignation or removal of the Owner Trustee to each of the Rating
Agencies.
SECTION 10.03 SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Owner Trustee shall become
effective and such successor Owner Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties,
and obligations of its predecessor under this Agreement, with like effect as
if originally named as Owner Trustee. The predecessor Owner Trustee shall
upon payment of its fees and expenses deliver to the successor Owner Trustee
all documents and statements and monies held by it under this Agreement; and
the Administrator and the predecessor Owner Trustee shall execute and deliver
such instruments and do such other things as may reasonably be required for
fully and certainly vesting and confirming in the successor Owner Trustee all
such rights, powers, duties, and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee
shall meet the criteria for eligibility set forth in Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice of the successor of the
Owner Trustee to all Certificateholders, the Indenture Trustee, all
Noteholders and the Rating Agencies. If the Administrator fails to mail such
notice within 10 days after acceptance of appointment by the successor Owner
Trustee, the successor Owner Trustee shall cause such notice to be mailed at
the expense of the Administrator.
SECTION 10.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the Owner Trustee may be merged or converted or with which it may
be consolidated or any corporation resulting from any merger, conversion or
consolidation to which the Owner
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Trustee shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, shall
be the successor of the Owner Trustee hereunder, provided such corporation
shall be eligible pursuant to Section 10.01, without the execution or filing
of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; PROVIDED, FURTHER,
that the Owner Trustee shall mail notice of such merger or consolidation to
the Rating Agencies.
SECTION 10.05 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any
part of the Owner Trust Estate or any Financed Vehicle may at the time be
located, the Administrator and the Owner Trustee acting jointly shall have
the power and shall execute and deliver all instruments to appoint one or
more Persons approved by the Owner Trustee to act as co-trustee, jointly with
the Owner Trustee, or separate trustee or separate trustees, of all or any
part of the Owner Trust Estate, and to vest in such Person, in such capacity,
such title to the Trust, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment
within 25 days after the receipt by it of a request so to do, the Owner
Trustee alone shall have the power to make such appointment. No co-trustee or
separate trustee under this Agreement shall be required to meet the terms of
eligibility as a trustee pursuant to Section 10.01 and no notice of the
appointment of any co-trustee or separate trustee shall be required pursuant
to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provision and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not
authorized to act separately without the Owner Trustee joining in such
act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed, the Owner Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties, and obligations (including the holding of
title to the Trust or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Owner Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Owner Trustee acting jointly may at
any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and
co-trustees, as if given to each of them. Each separate trustee and
co-trustee, upon its acceptance of the powers and duties conferred thereto
-30-
under this Agreement, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating
to the conduct of, affecting the liability of, or affording protection to,
the Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect,
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 SUPPLEMENTS AND AMENDMENTS. This Agreement may be amended
by the Depositor and the Owner Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Owner Trustee, with prior written notice to the Rating Agencies, with
the consent of the Holders of the Controlling Class of Notes evidencing not
less than a majority of the Outstanding Amount of such Class (excluding for
such purpose Notes owned by NARC, NMAC or any of their Affiliates) or if all
of the Notes have been paid in full, the Holders of the Controlling Class of
Certificates evidencing not less than a majority of the Certificate Balance
of such Class (excluding for such purpose Certificates owned by NARC, NMAC or
any of their Affiliates) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on Receivables or distributions that shall
be required to be made for the benefit of the Noteholders or the
Certificateholders or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes and the Certificate Balance required to consent to any
such amendment, without the consent of the Holders of all the affected Notes
and Certificates.
Promptly after the execution of any such amendment or consent, the Owner
Trustee shall furnish written notification of the substance of such amendment
or consent to each
-31-
Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be
sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Certificateholders
provided for in this Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by Certificateholders
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Owner Trustee shall cause the filing of such amendment with the
Secretary of State.
Prior to the execution of any amendment to this Agreement or the
Certificate of Trust, the Owner Trustee shall be entitled to receive and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Owner
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02 NO LEGAL TITLE TO OWNER TRUST ESTATE IN
CERTIFICATEHOLDERS. The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. The Certificateholders shall be entitled to
receive distributions with respect to their undivided ownership interest
therein only in accordance with Articles V and IX. No transfer, by operation
of law or otherwise, of any right, title or interest of the
Certificateholders to and in their ownership interest in the Owner Trust
Estate shall operate to terminate this Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Owner Trust Estate.
SECTION 11.03 LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.06,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Depositor, NMAC, the Certificateholders, the Administrator and,
to the extent expressly provided herein the Indenture Trustee and the
Noteholders, and nothing in this Agreement (other than Section 2.06), whether
express or implied, shall be construed to give to any other Person any legal
or equitable right, remedy or claim in the Owner Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 11.04 NOTICES.
(a) Unless otherwise expressly specified or permitted by the terms
hereof, all notices shall be in writing and shall be deemed given upon
receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Owner
Trustee shall be deemed given only upon actual receipt by the Owner Trustee),
if to the Owner Trustee, addressed to the Corporate Trust Office; if to the
Depositor, addressed to Nissan Auto Receivables Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Secretary; if, to the Trust,
addressed to Nissan Auto Receivables [_____-_] Owner Trust, c/o [____________]
, Attention: [__________], with a copy to Nissan Motor Acceptance
-32-
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary; or, as to each party, at such other address as shall be designated
by such party in a written notice to each other party.
(b) Any notice required or permitted to be given a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Any notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
SECTION 11.05 SEVERABILITY. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid or unenforceable in any jurisdiction, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other provisions
of this Agreement or of the Certificates or the rights of the Holders thereof.
SECTION 11.06 COUNTERPARTS. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed
to be an original, and all of which shall constitute but one and the same
instrument.
SECTION 11.07 SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor, the Owner Trustee and its successors and each Certificate Owner
and its successors and permitted assigns, all as herein provided. Any
request, notice, direction, consent, waiver or other instrument or action by
a Certificate Owner shall bind the successors and assigns of such Certificate
Owner.
SECTION 11.08 NO PETITION. The Owner Trustee (not in its individual
capacity but solely as Owner Trustee), by entering into this Agreement,
hereby covenants and agrees, and each Certificateholder, by accepting a
Certificate, and the Indenture Trustee and any Noteholder by accepting the
benefits of this Agreement, are thereby deemed to covenant and agree that
they will not at any time institute against the Depositor or the Trust, or
join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law. This Section 11.09 shall survive the termination of this
Agreement or the termination of the Owner Trustee under this Agreement.
SECTION 11.09 NO RECOURSE. Each Certificateholder by accepting an
interest in a Certificate acknowledges that such Certificates represent
beneficial interests in the Trust only and do not represent interests in or
obligations of the Depositor, NMAC (in any capacity), the Administrator, the
Owner Trustee, the Indenture Trustee or any Affiliate thereof and no recourse
may be had against such parties or their assets, except as may be expressly
set forth or contemplated in the Certificates or the Basic Documents.
-33-
SECTION 11.10 HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
SECTION 11.12 NMAC PAYMENT OBLIGATION. The parties hereto acknowledge
and agree that, pursuant to the Sale and Servicing Agreement and the
following provisions, the Servicer shall be responsible for payment of the
Administrator's fees under the Administration Agreement and shall reimburse
the Administrator for all expenses and liabilities of the Administrator
incurred thereunder. In addition, the parties hereto acknowledge and agree
that, pursuant to the Sale and Servicing Agreement and the following
provisions, the Servicer shall be responsible for the payment of all fees and
expenses of the Trust, the Owner Trustee and the Indenture Trustee paid by
any of them in connection with any of their obligations under the Basic
Documents to obtain or maintain any required license under the Pennsylvania
Motor Vehicle Sales Finance Act and Maryland and all other similar
applicable state laws. The parties hereto covenant and agree that neither of
them shall look to the other for payment of any such fees or expenses.
-34-
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be
duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
NISSAN AUTO RECEIVABLES
CORPORATION,
Depositor
By:
----------------------------------------
Name:
Title:
[_________________________________],
not in its individual capacity but
solely as Owner Trustee
By:
----------------------------------------
Name:
Title:
S-1
------------
EXHIBIT A
------------
(FORM OF [CLASS C] [CLASS D] CERTIFICATE)
UNLESS THIS CERTIFICATE 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
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN.
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER, THE ADMINISTRATOR, NMAC,
NARC, NISSAN NORTH AMERICA, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, AND
WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL
AGENCY.
[THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) (1) TO A PERSON THAT THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
1933 ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE 1933 ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE 1933 ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR (4) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D OF THE 1933 ACT AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION.]
A-1
NO TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE OWNER TRUSTEE
SHALL HAVE RECEIVED A REPRESENTATION FROM THE TRANSFEREE HEREOF IN FORM AND
SUBSTANCE SATISFACTORY TO THE OWNER TRUSTEE TO THE EFFECT THAT SUCH
TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN OR ARRANGEMENT SUBJECT TO SECTION
406 OF ERISA OR A PLAN SUBJECT TO SECTION 4975 OF THE CODE (A "PLAN"), NOR A
PERSON ACTING ON BEHALF OF A PLAN NOR USING THE ASSETS OF A PLAN TO EFFECT
SUCH TRANSFER. IF THIS CERTIFICATE IS A BOOK-ENTRY CERTIFICATE, THE
REPRESENTATIONS ABOVE SHALL BE DEEMED TO HAVE BEEN MADE TO THE OWNER TRUSTEE
BY THE TRANSFEREE'S (INCLUDING AN INITIAL ACQUIROR'S) ACCEPTANCE OF THIS
CERTIFICATE.
NUMBER $____________
R-_____ CUSIP NO. _________
NISSAN AUTO RECEIVABLES ____-_ OWNER TRUST
[_______]% ASSET BACKED [CLASS C] [CLASS D] CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of retail installment sale contracts
secured by new, near-new and used automobiles and light-duty trucks and sold
to the Trust by Nissan Auto Receivables Corporation ("NARC").
(This Certificate does not represent an interest in or obligation of NARC,
Nissan Motor Acceptance Corporation ("NMAC"), Nissan North America, Inc. or
any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT ________________________________________ is the
registered owner of _________________________ DOLLARS nonassessable,
fully-paid, fractional undivided interest in Nissan Auto Receivables ____-_
Owner Trust (the "Trust") formed by NARC.
The Trust was created pursuant to a Trust Agreement, dated as of
[_______](as amended and supplemented from time to time, including the
Amended and Restated Trust Agreement, dated as of [_____________], the "Trust
Agreement"), between NARC, as depositor (the "Depositor"), and
[______________], as owner trustee (the "Owner Trustee"), a summary of
certain of the pertinent provisions of which is set forth below. Capitalized
terms used herein and not otherwise defined have the meanings assigned to
such terms in the Trust Agreement, the Indenture, dated as of [______________]
(the "Indenture"), between the Trust and [______________], as indenture
trustee (the "Indenture Trustee"), or in the Sale and Servicing Agreement,
dated as of [______________] (the "Sale and Servicing Agreement"), among the
Trust, the Depositor and NMAC, as servicer (the "Servicer"), as applicable.
-A-2
This Certificate is one of the duly authorized Certificates designated
as "Asset Backed Certificates, [Class C] [Class D]" (the "[Class C] [Class D]
Certificates") issued pursuant to the Trust Agreement. Certain debt
instruments evidencing obligations of the Trust have been issued under the
Indenture, consisting of four classes of Notes designated as "Class A-1
[______]% Asset Backed Notes", "Class A-2 [______]% Asset Backed Notes,"
"Class A-3 [______]% Asset Backed Notes" and "Class B [______]% Asset Backed
Notes" (collectively, the "Notes"). This Certificate is issued under and is
subject to the terms, provisions and conditions of the Trust Agreement to
which Trust Agreement the holder of this Certificate by virtue of the
acceptance hereof assents and by which such holder is bound. The property of
the Trust includes a pool of retail installment sale contracts secured by
new, near-new and used automobiles and light-duty trucks (the "Receivables"),
all monies received after such date, security interests in the vehicles
financed thereby, certain bank accounts and the proceeds thereof, proceeds
from claims on certain insurance policies and certain other rights under the
Trust Agreement and the Sale and Servicing Agreement and all proceeds of the
foregoing.
Under the Trust Agreement, there will be distributed on the 15th day of
each month or, if such 15th day is not a Business Day, the next Business Day,
(each, a "Distribution Date"), commencing on [______], to the person in whose
name this Certificate is registered at the close of business on the related
Record Date, such Certificateholder's pro rata portion of the amounts to be
distributed to Holders of the [Class C] [Class D] Certificates on such
Distribution Date in respect of amounts distributable to the
Certificateholders of the [Class C] [Class D] Certificates pursuant to
Section 5.06 of the Sale and Servicing Agreement.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to
the rights of the Noteholders as described in the Sale and Servicing
Agreement and the Indenture [and the rights of the Holders of the Class C
Certificates as described in the Trust Agreement and the Sale and Servicing
Agreement].
It is the intent of the Depositor, NMAC and the Certificateholders that,
for purposes of federal income tax, state and local income tax, any state
single business tax and any other income taxes, the Trust will be treated as
a partnership, and the Certificateholders will be treated as partners in that
partnership, for any period during which the beneficial ownership interests
in the Trust are held by more than one person. Each Certificateholder, by
acceptance of a Certificate or any beneficial interest on a Certificate,
agrees to treat, and to take no action inconsistent with the treatment of,
the Certificates as partnership interests in the Trust for such tax purposes.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or any beneficial interest in a Certificate, covenants and agrees
that such Certificateholder or Certificate Owner, as the case may be, will
not at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States, federal or state bankruptcy or similar
law in connection with any obligations relating to the Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
A-3
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Owner Trustee by wire transfer or check mailed to each
Certificateholder of record without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise
provided in the Trust Agreement and notwithstanding the above, the final
distribution on this Certificate will be made after due notice by the Owner
Trustee of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency maintained for the
purpose by the Owner Trustee in the Borough of Manhattan, The City of New
York.
Reference is hereby made to the further provisions of this Certificate
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed
by an authorized officer of the Owner Trustee, by manual signature, this
Certificate shall not entitle the holder hereof to any benefit under the
Trust Agreement or the Sale and Servicing Agreement or be valid for any
purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Certificate to be duly executed.
NISSAN AUTO RECEIVABLES ____-_ OWNER TRUST
By: [NAME OF OWNER TRUSTEE],
not in its individual capacity but solely
an Owner Trustee
Dated: By:
---------------------------------------
Authorized Signatory
A-5
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
[---------------------],
as Owner Trustee
By:
---------------------------
Authorized Signatory
A-6
(REVERSE OF CERTIFICATE)
The Certificates do not represent an obligation of, or an interest in,
NMAC, NARC, Nissan North America, Inc. or any of their Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated herein or in the Trust Agreement or the
Basic Documents. In addition, this Certificate is not guaranteed by any
governmental agency or instrumentality and is limited in right of payment to
certain collections with respect to the Receivables (and certain other
amounts), all as more specifically set forth in the Trust Agreement and in
the Sale and Servicing Agreement. A copy of each of the Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business
hours at the principal office of the Depositor, and at such other places, if
any, designated by the Depositor, by any Certificateholder upon written
request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of
the Depositor and the rights of the Certificateholders under the Trust
Agreement at any time by the Depositor and the Owner Trustee, with the
consent of the Holders of the Controlling Class of the Notes representing a
majority of the Outstanding Amount of such Class, or, with respect to certain
matters not affecting the interests of the Noteholders, with the consent of
the Holders of the Controlling Class of Certificates representing a majority
of the Certificate Balance of such Class (excluding, in each case, Securities
held by NARC, NMAC or any of their Affiliates). Any such consent by the
holder of this Certificate shall be conclusive and binding on such holder and
on all future holders of this Certificate and of any Certificate issued upon
the transfer hereof or in exchange herefor or in lieu hereof whether or not
notation of such consent is made upon this Certificate or such replacement
certificate. The Trust Agreement also permits the amendment thereof, in
certain limited circumstances, without the consent of the Holders of the
Certificates.
As provided in the Trust Agreement, and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in the Borough of Manhattan in The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the holder
hereof or such holder's attorney duly authorized in writing, and thereupon
one or more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee
or transferees. The initial Certificate Registrar appointed under the Trust
Agreement is [______], [City, State].
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 and in integral multiples of $1,000 in
excess thereof. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of the same Class of authorized denominations evidencing the
same aggregate denomination, as requested by the holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require
payment of a sum sufficient to cover any tax or governmental charge payable
in connection therewith.
A-7
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the person in whose name this
Certificate is registered as the owner hereof for all purposes and none of
the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Sale and Servicing Agreement [and the disposition of
all property held as part of the Owner Trust Estate]. NMAC, as servicer of the
Receivables under the Sale and Servicing Agreement, or any successor
servicer, may at its option purchase the corpus of the Trust at a price
specified in the Sale and Servicing Agreement, and any such purchase of the
Receivables and other property of the Trust will effect early retirement of
the Certificates; however, such right of purchase is exercisable only after
the last day of the Collection Period as of which the Pool Balance is less
than or equal to 10% of the Original Pool Balance.
A-8
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
-------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
--------------------------------------------------------------------Attorney to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
*/
--------------------------
Signature Guaranteed:
*/
--------------------------
----------------
*/ NOTICE: The signature to this assignment must correspond with the name
as it appears upon the face of the within Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-9
EXHIBIT B
FORM OF TRANSFEREE REPRESENTATION LETTER
Nissan Auto Receivables [___-__] Owner Trust
[NAME OF OWNER TRUSTEE],
not in its individual capacity but solely as Owner Trustee
[ADDRESS]
[NAME OF CERTIFICATE REGISTRAR]
[ADDRESS]
Attention: Corporate Trust Services -- Nissan Auto Receivables [____-__]
Owner Trust
Re: TRANSFER OF NISSAN AUTO RECEIVABLES [____-__] OWNER TRUST
CERTIFICATE, CLASS [C][D]
Ladies and Gentlemen:
This letter is delivered pursuant to Section 3.03 of the Amended
and Restated Trust Agreement, dated as of [____________] (the "Trust
Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and
[_____________], as Owner Trustee (the "Owner Trustee"), in connection with
the transfer by _______________________________________ (the "Seller") to the
undersigned (the "Purchaser") of $__________________________ balance of the
Class [C][D]Certificates (the "Certificates"). Capitalized terms used and not
otherwise defined herein have the meanings assigned to such terms in the
Trust Agreement.
In connection with such transfer, the undersigned hereby represents
and warrants to you and the addressees hereof as follows:
/ / I am not a Non-U.S. Person as defined in the Trust Agreement; and
/ / I am not (i) an employee benefit plan subject to the fiduciary
responsibility provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), or a governmental plan (as defined in Section
3(32) of ERISA) subject to any federal, state or local law ("Similar Law")
which is, to a material extent, similar to the foregoing provisions of ERISA
or the Code (each a "Plan") or (ii) a person acting on behalf of or using the
assets of any such Plan (including an entity whose underlying assets include
Plan assets by reason of investment in the entity by such Plan and the
application of Department of Labor Regulation Sections 2510.3-101).
[Signature appears on next page]
B-1
IN WITNESS WHEREOF, the Purchaser hereby executes this Transferee
Representation Letter on the ___ day of _______________, _____.
Very truly yours,
-----------------------------,
The Purchaser
By: __________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF TRANSFEROR REPRESENTATION LETTER
Nissan Auto Receivables [___-__]Owner Trust
[NAME OF OWNER TRUSTEE],
not in its individual capacity but solely as Owner Trustee
[ADDRESS]
[NAME OF CERTIFICATE REGISTRAR]
[ADDRESS]
Attention: Corporate Trust Services -- Nissan Auto Receivables [____-__]
Owner Trust
Re: TRANSFER OF NISSAN AUTO RECEIVABLES [____-__] OWNER
TRUST CERTIFICATE, CLASS [C][D]
Ladies and Gentlemen:
This letter is delivered pursuant to Section 3.03 of the Amended
and Restated Trust Agreement, dated as of [__________] (the "Trust
Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and
(________________], as Owner Trustee (the "Owner Trustee"), in connection
with the transfer by _______________________________________ (the
"Purchaser") to the undersigned (the "Seller") of $__________________________
balance of Class [C][D] Certificates (the "Certificates"). Capitalized terms
used and not otherwise defined herein have the meanings ascribed thereto in
the Trust Agreement. The Transferor hereby certifies, represents and warrants
to you, as Certificate Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free from
any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has (a)
offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security to any person in any manner, (b) solicited any
offer to buy or accept a transfer, pledge or other disposition of any
Transferred Certificate, any interest in any Transferred Certificate or
any other similar security from any person in any manner, (c) otherwise
approached or negotiated with respect to any Transferred Certificate, any
interest in any Transferred Certificate or any other similar security with
any person in any manner, (d) made any general solicitation by means of
general advertising or in any other manner, or (e) taken any other action,
which (in the case of any of the acts described in clauses (a) through (e)
hereof)
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would constitute a distribution of any Transferred Certificate under the
Securities Act of 1933, as amended (the "Securities Act"), or would render
the disposition of any Transferred Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Transferred Certificate pursuant to
the Securities Act or any state securities laws.
Very truly yours,
------------------------------------
(Transferor)
By: ________________________________
Name: ______________________________
Title: _____________________________
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