EXHIBIT 4.4
NISSAN AUTO RECEIVABLES 1999-A OWNER TRUST
(a Delaware Business Trust)
AMENDED AND RESTATED TRUST AGREEMENT
between
NISSAN AUTO RECEIVABLES CORPORATION,
as Depositor,
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
Dated as of August 6, 1999
TABLE OF CONTENTS
ARTICLE I Definitions..................................................................................1
SECTION 1.01 Definitions.......................................................................1
SECTION 1.02 Usage of Terms....................................................................4
ARTICLE II Creation of Trust............................................................................4
SECTION 2.01 Creation of Trust.................................................................4
SECTION 2.02 Office............................................................................4
SECTION 2.03 Purposes and Powers...............................................................5
SECTION 2.04 Power of Attorney.................................................................5
SECTION 2.05 Declaration of Trust..............................................................6
SECTION 2.06 Liability of the Certificateholders...............................................6
SECTION 2.07 Title to Trust Property...........................................................6
SECTION 2.08 Situs of Trust....................................................................6
SECTION 2.09 Representations and Warranties of the Depositor...................................6
SECTION 2.10 Federal Income Tax Allocations....................................................8
ARTICLE III Certificates and Transfer of Interests.......................................................8
SECTION 3.01 The Certificates..................................................................8
SECTION 3.02 Authentication of Certificates....................................................9
SECTION 3.03 Registration of Transfer and Exchange of Certificates.............................9
SECTION 3.04 Mutilated, Destroyed, Lost or Stolen Certificates................................10
SECTION 3.05 Persons Deemed Certificateholders................................................11
SECTION 3.06 Access to List of Certificateholders' Names and Addresses........................11
SECTION 3.07 Maintenance of Office or Agency..................................................11
SECTION 3.08 Appointment of Paying Agent......................................................11
SECTION 3.09 Ownership by the Depositor of Certificates.......................................12
ARTICLE IV Actions By Owner Trustee or Certificateholders..............................................12
SECTION 4.01 Prior Notice to Certificateholders with Respect to Certain Matters...............12
SECTION 4.02 Action by Certificateholders with Respect to Certain Matters.....................13
SECTION 4.03 Action with Respect to Bankruptcy................................................13
SECTION 4.04 Restrictions on Certificateholders' Power........................................13
SECTION 4.05 Majority of the Certificates Control.............................................14
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TABLE OF CONTENTS
(CONTINUED)
ARTICLE V Application of Trust Funds; Certain Duties..................................................14
SECTION 5.01 Establishment of the Trust Collection Account....................................14
SECTION 5.02 Application of Amounts in Trust Accounts.........................................15
SECTION 5.03 Method of Payment................................................................15
SECTION 5.04 Accounting and Reports to the Noteholders, Certificateholders, the
Internal Revenue Service and Others..............................................16
SECTION 5.05 Signature on Returns; Tax Matter Partner.........................................16
ARTICLE VI Authority and Duties of Owner Trustee.......................................................16
SECTION 6.01 General Authority................................................................16
SECTION 6.02 General Duties...................................................................17
SECTION 6.03 Duties of the Owner Trustee......................................................17
SECTION 6.04 No Duties Except as Specified in this Agreement or in Instructions...............18
SECTION 6.05 No Action Except Under Specified Documents or Instructions.......................19
SECTION 6.06 Restrictions.....................................................................19
ARTICLE VII Concerning the Owner Trustee................................................................19
SECTION 7.01 Rights of the Owner Trustee......................................................19
SECTION 7.02 Furnishing of Documents..........................................................20
SECTION 7.03 Representations and Warranties...................................................20
SECTION 7.04 Reliance; Advice of Counsel......................................................21
SECTION 7.05 Not Actingin Individual Capacity.................................................21
SECTION 7.06 Owner Trustee Not Liable for Certificates or Receivables.........................22
SECTION 7.07 Owner Trustee May Own Certificates and Notes.....................................22
SECTION 7.08 Sales Finance Licenses...........................................................22
ARTICLE VIII Compensation of Owner Trustee...............................................................23
SECTION 8.01 Owner Trustee's Fees and Expenses................................................23
SECTION 8.02 Indemnification..................................................................23
SECTION 8.03 Payments to the Owner Trustee....................................................23
ARTICLE IX Termination of Trust Agreement..............................................................24
SECTION 9.01 Termination of Trust Agreement...................................................24
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TABLE OF CONTENTS
(CONTINUED)
ARTICLE X Successor Owner Trustees and Additional Owner Trustees......................................25
SECTION 10.01 Eligibility Requirements for Owner Trustee.......................................25
SECTION 10.02 Resignation or Removal of Owner Trustee..........................................25
SECTION 10.03 Successor Owner Trustee..........................................................26
SECTION 10.04 Merger or Consolidation of Owner Trustee.........................................26
SECTION 10.05 Appointment of Co-Trustee or Separate Trustee....................................27
ARTICLE XI Miscellaneous...............................................................................28
SECTION 11.01 Supplements and Amendments.......................................................28
SECTION 11.02 No Legal Title to Owner Trust Estate in Certificateholders.......................29
SECTION 11.03 Limitations on Rights of Others..................................................29
SECTION 11.04 Notices..........................................................................29
SECTION 11.05 Severability.....................................................................30
SECTION 11.06 Counterparts.....................................................................30
SECTION 11.07 Successors and Assigns...........................................................30
SECTION 11.08 No Petition......................................................................30
SECTION 11.09 No Recourse......................................................................30
SECTION 11.10 Headings.........................................................................30
SECTION 11.11 GOVERNING LAW....................................................................31
SECTION 11.12 NMAC Payment Obligation..........................................................31
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TABLE OF CONTENTS
(CONTINUED)
Exhibit A Form of Certificate
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 August 6,
1999, between NISSAN AUTO RECEIVABLES Corporation, a Delaware corporation, as
depositor, and CHASE MANHATTAN BANK DELAWARE, a Delaware banking corporation, as
Owner Trustee, amending and restating in its entirety the Trust Agreement, dated
as of August 6, 1999 (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 August 1, 1999 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.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 ET SEQ.
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"CERTIFICATE" means any of the Certificates executed by the Trust and
authenticated by the Owner Trustee, evidencing a beneficial ownership interest
in the Trust, substantially in the form set forth in EXHIBIT A hereto.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed with
respect to the formation of the Trust pursuant to Section 3810(a) of the
Business Trust Statute.
"CERTIFICATE REGISTER" means the register maintained pursuant to
Section 3.03.
"CERTIFICATEHOLDER" or "HOLDER" means a Person in whose name a
Certificate is registered in the Certificate Register, except that, solely for
the purposes of giving certain consents, waivers, requests or demands pursuant
to this Agreement, the interest evidenced by any Certificate registered in the
name of NARC or NMAC, or any Person actually known to a Trust Officer of the
Owner Trustee to be controlling, controlled by or under common control with NARC
or NMAC, shall not be taken into account in determining whether the requisite
percentage necessary to effect any such consent, waiver, request or demand shall
have been obtained unless at such time all Certificates are then owned by NARC,
NMAC and their Affiliates.
"CERTIFICATE REGISTRAR" means The Chase Manhattan Bank 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.
"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).
"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 August 1, 1999 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.
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"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 $69,553,742.24.
"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 Chase Manhattan Bank Delaware, a Delaware banking
corporation, not in its individual capacity but solely as owner trustee under
this Agreement, and any successor Owner Trustee hereunder.
"PAYING AGENT" means any paying agent or co-paying agent appointed
pursuant to Section 3.08, and shall initially be The Chase Manhattan Bank.
"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.
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"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 1999-A Owner Trust, formed as
a Delaware business trust pursuant to this Agreement and the filing of the
Certificate of Trust.
"TRUST COLLECTION ACCOUNT" shall have the meaning assigned to such term
in Section 5.01(a).
"YIELD SUPPLEMENT AGREEMENT" means the Yield Supplement Agreement dated
as of the date hereof among NMAC, the Depositor and the Trust.
SECTION 1.02 USAGE OF TERMS. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "writing" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
subsequent amendments, amendments and restatements and supplements thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; references to laws include their amendments and
supplements, the rules and regulations thereunder and any successors thereto;
and the term "including" means "including without limitation."
ARTICLE II
CREATION OF TRUST
SECTION 2.01 CREATION OF TRUST. A Delaware business trust known as
"Nissan Auto Receivables 1999-A Owner Trust" was formed in accordance with the
provisions of the Business Trust Statute pursuant to the Original Trust
Agreement. Under the Original Trust Agreement, the Owner Trustee was authorized
and vested with the power and authority to make and execute contracts,
instruments, certificates, agreements and other writings on behalf of the Trust
as set forth herein and to ▇▇▇ 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
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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, and the Trust shall have the power and
authority and is authorized, to engage in the following activities:
(i) to issue Notes pursuant to the Indenture and Certificates
pursuant to this Agreement;
(ii) to acquire the Owner Trust Estate (including the
Receivables and related property) from the Depositor in exchange for
the Notes and Certificates pursuant to the Sale and Servicing
Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Owner Trust Estate pursuant to, and on the terms and conditions set
forth in, the Indenture and to hold, manage and distribute to the
Certificateholders pursuant to the terms of the Sale and Servicing
Agreement any portion of the Trust Estate released from the Lien of,
and remitted to the Trust pursuant to, the Indenture as set forth
therein and in the Sale and Servicing Agreement;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Certificateholders and the Noteholders and in respect of amounts
to be released to the Depositor, the Servicer, the Administrator and
third parties, if any.
The Trust shall not engage in any activity other than in connection
with the foregoing and as required or authorized by the terms of the Basic
Documents.
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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 appropriate
to satisfy the purposes of this agreement and as shall be consistent with the
provisions hereof.
SECTION 2.06 LIABILITY OF THE CERTIFICATEHOLDERS . No Certificateholder
shall have any personal liability for any liability or obligation of the Trust,
solely by reason of it being a Certificateholder.
SECTION 2.07 TITLE TO TRUST PROPERTY. Legal title to all of the Owner
Trust Estate shall be vested at all times in the Trust as a separate legal
entity except where applicable law in any jurisdiction requires title to any
part of the Owner Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Owner Trustee, a co-trustee
and/or a separate trustee, as the case may be.
SECTION 2.08 SITUS OF TRUST. The Trust will be located in Delaware and
administered in the states of Delaware, New York or Minnesota. All bank accounts
maintained by the Owner Trustee on behalf of the Trust shall be located in the
State of Delaware or the State of New York. The Trust shall not have any
employees in any state other than Delaware; PROVIDED, HOWEVER, that nothing
herein shall restrict or prohibit the Owner Trustee from having employees within
or without the State of Delaware. Payments will be received by the Trust only
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in Delaware or New York, and payments will be made by the Trust only from
Delaware or New York. The principal office of the Trust will be at the
Corporate Trust Office in Delaware.
SECTION 2.09 REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Owner Trustee that as of the
Closing Date:
(a) ORGANIZATION AND GOOD STANDING. The Depositor has been duly
organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, corporate power, authority and legal right to acquire and own the
Receivables.
(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.
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(f) NO PROCEEDINGS. There are no proceedings or investigations pending,
or, to the best of the Depositor's knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Depositor or its properties: (i) asserting the
invalidity of this Agreement; (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement; (iii) seeking any determination
or ruling that would materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or enforceability of, this
Agreement; or (iv) relating to the Depositor and that would adversely affect the
federal or any state income tax attributes of the Trust, the Certificates or the
Notes.
SECTION 2.10 FEDERAL INCOME TAX ALLOCATIONS. Net income of the Trust
for any month as determined for federal income tax purposes (and each item of
income, gain, loss and deduction entering into the computation thereof) 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 $1,000.00 and in integral multiples of $0.01 in excess
thereof. The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of a Trust Officer of the Owner Trustee and authenticated on
behalf of the Owner Trustee by the manual or facsimile signature of a Trust
Officer. Certificates bearing the manual or facsimile signatures of
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individuals who were, at the time when such signatures shall have been
affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such offices
at the date of authentication and delivery of such Certificates.
The Certificates may be printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination in the
form of EXHIBIT A hereto.
A transferee of a Certificate shall become a Certificateholder, and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder, upon such transferee's acceptance of a
Certificate duly registered in such transferee's name pursuant to Section
3.03.
SECTION 3.02 AUTHENTICATION OF CERTIFICATES. Concurrently with the
initial 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. The Chase Manhattan Bank shall be the initial authenticating
agent of the Owner Trustee hereunder, and all references herein to
authentication by the Owner Trustee shall be deemed to include the
authenticating agent.
SECTION 3.03 REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.07, a Certificate Register
in which, subject to such reasonable regulations as it may prescribe, the
Owner Trustee shall provide for the registration of Certificates and of
transfers and exchanges of Certificates as herein provided. The Chase
Manhattan Bank 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.
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(b) Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.07, the Owner
Trustee shall execute, authenticate and deliver (or shall cause its
authenticating agent to authenticate and deliver), in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or any authenticating agent. At the
option of a Holder, Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.07. The preceding provisions of this Section notwithstanding, the
Owner Trustee shall not make and the Certificate Registrar shall not register
transfer or exchanges of Certificates for a period of 15 days preceding the
due date for any payment with respect to the Certificates.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer
in form satisfactory to the Owner Trustee and the Certificate Registrar duly
executed by the Holder or his attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
cancelled and disposed of by the Owner Trustee in accordance with its
customary practice.
No transfer of a Certificate shall be made unless the Owner Trustee
shall have received:
(1) a representation from the transferee of such Certificate
substantially in the form of EXHIBIT B to the effect that:
(i) such transferee is not a Non-U.S. Person; and
(ii) such transferee is not an employee benefit plan or
arrangement subject to Section 406 of Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), or a plan subject to Section 4975 of the
Code (a "Plan"), nor a person acting on behalf of a
Plan nor using the assets of a Plan to effect such
transfer;
(2) a representation from the transferor of such Certificate
substantially in the form of EXHIBIT C; and
(3) an opinion of counsel to the Owner Trustee that the transfer of
such Certificate is being made pursuant to an effective registration under
the Securities Act or is exempt from the registration requirements of the
Securities Act.
Notwithstanding anything else to the contrary herein, any purported
transfer of a Certificate to or on behalf of a Plan or utilizing the assets
of a Plan shall be void and of no effect.
To the extent permitted under applicable law (including, but not
limited to, ERISA), the Owner Trustee shall be under no liability to any
Person for any registration of transfer of any Certificate that is in fact
not permitted by this Section 3.03(c) or for making any payments due on such
Certificate to the Certificateholder thereof or taking any other action with
respect to such
10
Holder under the provisions of this Trust Agreement or the Sale and Servicing
Agreement so long as the transfer was registered by the Certificate Registrar
or the Owner Trustee in accordance with the foregoing requirements.
(d) No service charge shall be made for any registration of transfer or
exchange of Certificates, but the Owner Trustee or the Certificate Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Certificates.
SECTION 3.04 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If
(a) any mutilated Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee
such security or indemnity as may be required by them to save each of them
harmless, then in the absence of notice that such Certificate shall have been
acquired by a 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 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 or one or more Holders of
Certificates evidencing, in the aggregate, not less than 25% of the
Certificate Balance apply in writing to the Owner Trustee, and such
application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Owner
Trustee shall, within five Business Days after the receipt of such
application, afford such applicants access during
11
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 The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, as its
principal corporate trust office for such purposes. The Owner Trustee shall
give prompt written notice to the Depositor and to the Certificateholders of
any change in the location of the Certificate Register or any such office or
agency.
SECTION 3.08 APPOINTMENT OF PAYING AGENT. Except during any period
when the Indenture Trustee is authorized and directed to do so under the
Indenture (i.e. prior to the termination of the Indenture), the Paying Agent
shall make distributions to Certificateholders from the Collection Account
pursuant to Section 5.02 and shall report the amounts of such distributions
to the Owner Trustee. Any Paying Agent shall have the revocable power to
withdraw funds from the Collection Account for the purpose of making the
distributions referred to above. The Owner Trustee may revoke such power and
remove the Paying Agent if the Owner Trustee determines in its sole
discretion that the Paying Agent shall have failed to perform its obligations
under this Agreement in any material respect. The Paying Agent shall
initially be The Chase Manhattan Bank, 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 Chase Manhattan Bank 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.
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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 100% of the
Certificate Balance. Any attempted transfer of any Certificate that would
reduce such interest of the Depositor below 100% of the Certificate Balance
shall be void. The Owner Trustee shall cause one Certificate issued to the
Depositor (representing 100% of the Certificate Balance) to bear a legend
stating "THIS CERTIFICATE IS NON-TRANSFERABLE."
ARTICLE IV
ACTIONS BY OWNER TRUSTEE OR CERTIFICATEHOLDERS
SECTION 4.01 PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. With respect to the following matters, the Owner Trustee
shall not take action unless at least 30 days before the taking of such
action (or such shorter period as shall be agreed to in writing by all
Certificateholders), the Owner Trustee shall have notified the
Certificateholders in writing of the proposed action and none of the
Certificateholders shall have notified the Owner Trustee in writing prior to
the 30th day (or such agreed upon shorter period) after such notice is given
that such Certificateholders have withheld consent or provided alternative
direction:
(a) the initiation of any claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Receivables) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or
lawsuits for collection of the Receivables);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(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.
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SECTION 4.02 ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Owner Trustee shall not have the power, except upon the
direction of the Certificateholders, to (a) remove the Administrator pursuant
to Section 8 of the Administration Agreement, (b) appoint a successor
Administrator pursuant to Section 8 of the Administration Agreement, (c)
remove the Servicer pursuant to Section 8.01 of the Sale and Servicing
Agreement or (d) except as expressly provided in the Basic Documents, sell
the Receivables after the termination of the Indenture. The Owner Trustee
shall take the actions referred to in the preceding sentence only upon
written instructions signed by the authorized representative of 100% of the
Certificateholders.
SECTION 4.03 ACTION WITH RESPECT TO BANKRUPTCY. The Owner Trustee
shall not have the power to commence a voluntary proceeding in bankruptcy
relating to the Trust without the unanimous prior approval of all
Certificateholders (including the Board of Directors (including the
Independent Directors, as such term is defined in the Depositor's Certificate
of Incorporation) of the Depositor) and the delivery to the Owner Trustee of
a written certification by each Certificateholder that such Certificateholder
reasonably believes that the Trust is insolvent.
SECTION 4.04 RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any
obligations of the Trust or of the Owner Trustee under any of the Basic
Documents or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.
SECTION 4.05 MAJORITY OF THE CERTIFICATES CONTROL. Except as
otherwise expressly provided herein, any action that may be taken by the
Certificateholders under this Agreement may be taken by the Holders of the
Certificates evidencing not less than a majority of the Certificate Balance.
Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Agreement shall be effective if
signed by Holders of the Certificates evidencing not less than a majority of
the Certificate Balance at the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01 ESTABLISHMENT OF THE TRUST COLLECTION ACCOUNT.
(a) On or prior to the Distribution Date on which the Notes of all
Classes have been paid in full (or substantially all of the Trust Estate is
otherwise released from the lien of the Indenture), the Owner Trustee, for
the benefit of the Certificateholders, shall establish and maintain, or shall
cause to be established and maintained, in the name of the Trust (or in such
other name as shall be specified in the Sale and Servicing Agreement), the
trust collection account (the "Trust Collection Account"). The Trust
Collection Account shall be established and
14
maintained as an Eligible Deposit Account, and, subject to provisions of the
Sale and Servicing Agreement, bearing a designation clearly indicating that,
subject to Section 5.01(b), the funds deposited therein are held by the Trust
for the benefit of the Certificateholders, in each case in accordance with
Section 5.01 of the Sale and Servicing Agreement.
Subject to Section 5.01(b), the Owner Trustee shall possess all
right, title and interest in all funds on deposit from time to time in the
Trust Collection Account and in all proceeds thereof (other than any net
investment earnings on Eligible Investments held therein). Except as
otherwise expressly provided herein, the Trust Collection Account shall be
under the sole dominion and control of the Owner Trustee for the benefit of
the Certificateholders. If, at any time, the Trust Collection Account ceases
to be an Eligible Deposit Account, the Owner Trustee (or the Administrator on
behalf of the Owner Trustee, if the Trust Collection Account is not then held
by the Owner Trustee or an affiliate thereof) shall within 10 Business Days
establish a new equivalent Eligible Deposit Account and shall transfer any
cash and/or any investments to such new account.
(b) Concurrently with the execution and delivery of the Indenture,
the Servicer will establish and maintain, or shall cause to be established
and maintained, at the direction of the Depositor, the Collection Account in
the name of and under the control of the Indenture Trustee for the benefit of
the Securityholders in accordance with Section 5.01 of the Sale and Servicing
Agreement. The Indenture Trustee will be obligated to transfer back to the
Trust Collection Account all funds or investments held in the Collection
Account established pursuant to the Sale and Servicing Agreement on the
Distribution Date on which the Notes of all Classes have been paid in full or
the Indenture is otherwise terminated (excluding any amounts to be retained
for distribution in respect of Notes that are not promptly delivered for
payment on such Distribution Date), and to take all necessary or appropriate
actions to transfer all right, title and interest of the Indenture Trustee in
such funds or investments and all proceeds thereof to the Owner Trustee for
the benefit of the Certificateholders.
SECTION 5.02 APPLICATION OF AMOUNTS IN TRUST ACCOUNTS.
(a) For so long as any Notes are outstanding, on each Distribution
Date, the Indenture Trustee will distribute to Certificateholders, on a pro rata
basis, the amounts distributable thereto pursuant to Section 5.06 of the Sale
and Servicing Agreement and Section 3.01 of the Indenture. From and after the
date on which the Notes of all Classes have been paid in full, on each
Distribution Date, the Owner Trustee shall distribute to the Certificateholders
amounts on deposit in the Collection Account that are distributable to the
Certificateholders in accordance with the instructions of the Servicer pursuant
to 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.
15
(b) On each Distribution Date, the Owner Trustee shall send to each
Certificateholder the statement provided to the Owner Trustee by the Servicer
pursuant to Section 5.09 of the Sale and Servicing Agreement with respect to
such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall
reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to the
Certificateholders sufficient funds for the payment of any tax that is
legally owed by the Trust (but such authorization shall not prevent the Owner
Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to
a Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax
is payable with respect to any distribution (such as any distribution to a
Non-U.S. Person), the Owner Trustee may in its sole discretion withhold such
amounts in accordance with this paragraph (c). In the event that a
Certificateholder wishes to apply for a refund of any such withholding tax,
the Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Owner Trustee for any out-of-pocket expenses incurred.
SECTION 5.03 METHOD OF PAYMENT. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution
Date shall be made to each Certificateholder of record on the related Record
Date either by check mailed to such Certificateholder at the address of such
holder appearing in the Certificate Register or by wire transfer, in
immediately available funds, to the account of any Certificateholder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar
appropriate written instructions at least five Business Days prior to such
Distribution Date.
SECTION 5.04 ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The
Administrator on behalf of the Trust shall (a) maintain (or cause to be
maintained) the books of the Trust on a fiscal year basis (with a March 31
year end) or a calendar basis on the accrual method of accounting, (b)
deliver to each Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required
(including Schedule K-1) to enable each Certificateholder to prepare its
federal and state income tax returns, (c) file any tax and information
returns, and fulfill any other reporting requirements, relating to the Trust,
as may be required by the Code and applicable Treasury Regulations (including
Treasury Regulation Section 1.6049-7), (d) for any period during which the
beneficial ownership interests in the Trust are held by more than one person,
make such elections as may from time to time be required or appropriate under
any applicable state or federal statute or rule or regulation thereunder so
as to maintain the Trust's characterization as a partnership for federal
income tax purposes, (e) cause such tax returns to be signed in the manner
required by law, and (f) collect or cause to be collected any withholding tax
16
as described in and in accordance with Section 5.02(c) with respect to income
or distributions to Certificateholders. The Administrator on behalf of the
Trust shall elect under Section 1278 of the Code to include in income
currently any market discount that accrues with respect to the Receivables.
The Administrator on behalf of the Trust shall not make the election provided
under Section 754 of the Code.
SECTION 5.05 SIGNATURE ON RETURNS; TAX MATTER PARTNER.
(a) The Administrator on behalf of the Trust shall sign on behalf of
the Trust the tax returns of the Trust, unless applicable law requires a
Certificateholder to sign such documents, in which case such documents shall
be signed by the Administrator, pursuant to the power-of-attorney granted
thereto pursuant to Section 2.04.
(b) For any period during which the beneficial ownership interests
of the Trust are held by more than one person, the Certificateholder holding
Certificates evidencing the largest portion of the Original Certificate
Balance shall be designated the "tax matters partner" of the Trust pursuant
to Section 6231(a)(7)(A) of the Code and applicable Treasury Regulations, but
hereby delegates its powers and duties as such to the Administrator pursuant
to the power-of-attorney granted thereto pursuant to Section 2.04.
ARTICLE VI
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01 GENERAL AUTHORITY. The Owner Trustee is authorized and
directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to
or contemplated by the Basic Documents to which the Trust is to be a party
and any amendment thereto, and, on behalf of the Trust, to direct the
Indenture Trustee to authenticate and deliver Class A-1 Notes in the
aggregate principal amount of $195,850,000, Class A-2 Notes in the aggregate
principal amount of $260,000,000 and Class A-3 Notes in the aggregate
principal amount of $206,740,000. In addition to the foregoing, the Owner
Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust, pursuant to the Basic Documents.
SECTION 6.02 GENERAL DUTIES. It shall be the duty of the Owner
Trustee to discharge (or cause to be discharged) all of its responsibilities
pursuant to the terms of this Agreement and the Basic Documents to which the
Trust is a party and to administer the Trust in accordance with the
provisions hereof and of the Basic Documents and in the interest of the
Certificateholders. Notwithstanding the foregoing, the Owner Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Basic Document, and the Owner Trustee
17
shall not be held liable for the default or failure of the Administrator to
carry out such obligations or fulfill such duties under the Administration
Agreement.
SECTION 6.03 DUTIES OF THE OWNER TRUSTEE.
(a) Subject to Article IV and in accordance with the terms of the
Basic Documents, the Certificateholders may by written instruction direct the
Owner Trustee in the management of the Trust. Such direction may be exercised
at any time by written instruction of the Certificateholders pursuant to
Article IV. The Owner Trustee, accepts the trusts hereby created and agrees
to perform its duties hereunder with respect to such trusts but only upon the
terms of this Agreement. The Owner Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Owner Trustee that shall be specifically
required to be furnished pursuant to any provision of this Agreement, shall
examine them to determine whether they conform on their face to the
requirements of this Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Owner Trustee from liability for its own negligent action, its own negligent
failure to act, its own bad faith or its own willful misfeasance; PROVIDED,
HOWEVER, that:
(i) the duties and obligations of the Owner Trustee shall be
determined solely by the express provisions of this Agreement, the
Owner Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Agreement,
no implied covenants or obligations shall be read into this Agreement
against the Owner Trustee, the permissive right of the Owner Trustee to
do things enumerated in this Agreement shall not be construed as a duty
and, in the absence of bad faith on the part of the Owner Trustee, the
Owner Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Owner Trustee and conforming
on their face to the requirements of this Agreement;
(ii) the Owner Trustee shall not be personally liable for an
error of judgment made in good faith by a Trust Officer, unless it
shall be proved that the Owner Trustee was negligent in performing its
duties in accordance with the terms of this Agreement; and
(iii) the Owner Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken in good
faith in accordance with the direction of the Holders of the
Certificates representing at least a majority of the Certificate
Balance (or such larger or smaller percentage of the Certificate
Balance as may be required by any other provision of this Agreement or
the other Basic Documents), the Servicer, the Administrator or the
Indenture Trustee.
18
(c) The Owner Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties under this Agreement, or in the exercise of any of its rights or powers,
if there shall be reasonable grounds for believing that the repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) All information obtained by the Owner Trustee regarding the
Obligors and the Receivables contained in the Trust, whether upon the exercise
of its rights under this Agreement or otherwise, shall be maintained by the
Owner Trustee in confidence and shall not be disclosed to any other Person,
unless such disclosure is required by any applicable law or regulation or
pursuant to subpoena or is required to be made to regulators, auditors or other
governmental authorities.
(e) Pursuant to Section 3.02 of the Sale and Servicing Agreement, in
the event that the Owner Trustee discovers that a representation or warranty
made by the Seller pursuant to Section 3.01 or 6.01 of the Sale and Servicing
Agreement with respect to a Receivable was incorrect as of the time specified
with respect to such representation and warranty and such incorrectness
materially and adversely affects the interests of any Securityholder in such
Receivable, the Owner Trustee shall give prompt written notice to the Servicer,
the Depositor and the Indenture Trustee of such incorrectness. Pursuant to
Section 4.06 of the Sale and Servicing Agreement, in the event that the Owner
Trustee discovers that any covenant of the Servicer set forth in the second
sentence of Section 4.01 or Section 4.02 or 4.05 of the Sale and Servicing
Agreement has been breached by the Servicer, the Owner Trustee shall give prompt
written notice to the Servicer, the Depositor and the Indenture Trustee of such
breach.
SECTION 6.04 NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR
IN INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to
manage, make any payment with respect to, register, record, sell, dispose of,
or otherwise deal with the Owner Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any Basic
Document to which the Owner Trustee is a party or otherwise contemplated
hereby, except as expressly provided by the terms of this Agreement, any
Basic Document to which the Trust is a party or in any document or written
instruction received by the Owner Trustee pursuant to Section 6.03. No
implied duties or obligations shall be read into this Agreement or any Basic
Document against the Owner Trustee. The Owner Trustee shall have no
responsibility for filing any financing or continuation statement in any
public office at any time or otherwise to perfect or maintain the perfection
of any security interest or lien granted to it hereunder or to prepare or
file 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
19
part of the Owner Trust Estate except (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 6.03.
SECTION 6.06 RESTRICTIONS. The Owner Trustee shall not take any
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of a Trust Officer of the
Owner Trustee, would result in the Trust's becoming taxable as a corporation
for federal income tax purposes. The Certificateholders shall not have the
authority to and, by acceptance of an ownership interest in any Certificate
shall thereby be deemed to have covenanted not to, direct the Owner Trustee
to take action that would violate the provisions of this Section.
ARTICLE VII
CONCERNING THE OWNER TRUSTEE
SECTION 7.01 RIGHTS OF THE OWNER TRUSTEE. Except as otherwise
provided in Article VI:
(a) in accordance with Section 7.04, the Owner Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of an authorized signatory, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) the Owner Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in accordance with the instructions of the
Administrator, as provided in the Administration Agreement, the Servicer or the
Indenture Trustee, or the Certificateholders, as provided herein;
(c) the Owner Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or the Sale and Servicing
Agreement, or to institute, conduct or defend any litigation under this
Agreement, or in relation to this Agreement or the Sale and Servicing Agreement,
at the request, order or direction of any of the Securityholders pursuant to the
provisions of this Agreement or the Sale and Servicing Agreement, unless such
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;
20
(e) the Owner Trustee shall not be bound to recalculate, reverify, or
make any investigation into the facts of matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing to
do so by Holders of Certificates representing not less than 25% of the
Certificate Balance; PROVIDED, HOWEVER, that if the payment within a reasonable
time to the Owner Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the
Owner Trustee, not reasonably assured to the Owner Trustee by the security
afforded to it by the terms of this Agreement, the Owner Trustee may require
reasonable indemnity against such cost, expense or liability as a condition to
so proceeding; the reasonable expense of every such examination shall be paid by
the Administrator or, if paid by the Owner Trustee, shall be reimbursed by the
Administrator upon demand; and nothing in this clause shall derogate from the
obligation of the Servicer to observe any applicable law prohibiting disclosure
of information regarding the Obligors; and
(f) the Owner Trustee shall not be liable for the default or misconduct
of the Administrator, the Servicer, the Depositor or the Indenture Trustee under
any of the Basic Documents or otherwise, and the Owner Trustee shall have no
obligation or liability to perform the obligations of the Trust or any other
Person (including the Owner Trustee) under the Basic Documents that are required
to be performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under the Sale and
Servicing Agreement.
SECTION 7.02 FURNISHING OF DOCUMENTS. The Owner Trustee shall
furnish to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or copies of all reports, notices, requests, demands,
certificates, financial statements and any other instruments furnished to the
Owner Trustee under the Basic Documents.
SECTION 7.03 REPRESENTATIONS AND WARRANTIES. The Owner Trustee
hereby represents and warrants to the Depositor and for the benefit of the
Certificateholders, that:
(a) It is a banking corporation duly organized and validly existing in
good standing under the laws of Delaware. It has full power, right and authority
to execute, deliver and perform its obligations under this Agreement and each
other Basic Document.
(b) It has taken all corporate action necessary to authorize the
execution and delivery of this Agreement and each other Basic Document, and this
Agreement and each other Basic Document has been executed and delivered by one
of its officers duly authorized to execute and deliver this Agreement and each
other Basic Document on its behalf.
(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.
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(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 such counsel, accountants or other
such persons and not, to the actual knowledge of the Owner Trustee, contrary to
this Agreement or any Basic Document.
SECTION 7.05 NOT ACTING IN INDIVIDUAL CAPACITY. In accepting
the trusts hereby created, Chase Manhattan Bank Delaware acts solely as Owner
Trustee hereunder and not in its individual capacity. Except with respect to
a claim based on the Owner Trustee's willful 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.
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The Owner Trustee shall not have any personal obligation, liability or duty
whatsoever to any Securityholder or any other Person with respect to any such
claim, and any such claim shall be asserted solely against the Trust or any
indemnitor who shall furnish indemnity as provided in this Indenture.
SECTION 7.06 OWNER TRUSTEE NOT LIABLE FOR CERTIFICATES OR
RECEIVABLES. The Owner Trustee makes no representations as to the validity or
sufficiency of this Agreement or of the Certificates or of the Notes (other
than the execution by the Owner Trustee on behalf of the Trust of, and the
certificate of authentication on, the Certificates). The Owner Trustee shall
have no obligation to perform any of the duties of the Servicer or
Administrator.
The Owner Trustee shall at no time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
the Certificates, the Notes or any Receivable, any ownership interest in any
Financed Vehicle, or the maintenance of any such ownership interest, or for or
with respect to the efficacy of the Trust or its ability to generate the
payments to be distributed to Securityholders under this Agreement and the
Indenture, including without limitation the validity of the assignment of the
Receivables to the Trust or of any intervening assignment; the existence,
condition, location and ownership of any Receivable or Financed Vehicle; the
existence and enforceability of any physical damage or credit life or credit
disability insurance; the existence and contents of any retail installment sales
contract or any computer or other record thereof; the completeness of any retail
installment sales contract; the performance or enforcement of any retail
installment sales contract; the compliance by the Trust with any covenant or the
breach by the Trust of any warranty or representation made under this Agreement
or in any related document and the accuracy of any such warranty or
representation prior to the Owner Trustee's receipt of notice or other discovery
of any noncompliance therewith or any breach thereof; the acts or omissions of
the Trust or the Servicer; or any action by the Owner Trustee taken at the
instruction of the Certificateholders, PROVIDED, HOWEVER, that the foregoing
shall not relieve the Owner Trustee of its obligation to perform its duties
under this Agreement.
The Owner Trustee shall not be accountable for the use or
application by the Issuer of any of the Certificates or of the proceeds of such
Certificates, of any of the Notes or of the proceeds of such Notes, or for the
use or application of any funds paid to the Servicer in respect of the
Certificates.
SECTION 7.07 OWNER TRUSTEE MAY OWN CERTIFICATES AND NOTES. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Certificates or Notes and may deal with the Depositor, the
Administrator, the Indenture Trustee and the Servicer in banking or other
transactions with the same rights as it would have if it were not Owner
Trustee.
SECTION 7.08 SALES FINANCE LICENSES. The Owner Trustee shall
cause the Trust to use its best efforts to maintain the effectiveness of all
licenses required under the Pennsylvania Motor Vehicle Sales Finance Act and
all other similar applicable state laws (other than those of Alabama, Hawaii
and Maryland) in connection with this Agreement and the Basic Documents
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and the transactions contemplated hereby and thereby until such time as the
Trust shall terminate in accordance with the terms hereof.
ARTICLE VIII
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01 OWNER TRUSTEE'S FEES AND EXPENSES. The Depositor
shall pay or shall cause the Servicer to pay to the Owner Trustee from time
to time compensation for its services as have been separately agreed upon
before the date hereof. The Depositor shall reimburse the Owner Trustee for
all reasonable out-of-pocket expenses incurred or made by it, including costs
of collection, in addition to the compensation for its services. Such
expenses shall include the reasonable compensation and expenses,
disbursements and advances of the Owner Trustee's agents, counsel,
accountants and experts directly related to its services hereunder
("Expenses").
SECTION 8.02 INDEMNIFICATION. The Depositor shall indemnify or
shall cause the Servicer or the Administrator to indemnify the Owner Trustee
against any and all loss, liability, claim, tort, penalty or Expense
(including reasonable attorneys' fees) of any kind or nature whatsoever
incurred by it in connection with the administration of the Trust and the
performance of its duties hereunder. The Owner Trustee shall notify the
Administrator and the Servicer promptly of any claim for which it may seek
indemnity. Failure by the Owner Trustee to so notify the Administrator and
the Servicer shall not relieve the Depositor or the Administrator or the
Servicer of its obligations hereunder, except to the extent such failure
shall adversely affect the Depositor's or the Administrator's or the
Servicer's defenses in respect thereof. In case any such action is brought
against the Owner Trustee under this Section 8.02 and it notifies the
Administrator of the commencement thereof, the Administrator will assume the
defense thereof, with counsel reasonably satisfactory to the Owner Trustee
(who may, unless there is, as evidenced by an opinion of counsel to the Owner
Trustee stating that there is a conflict of interest, be counsel to the
Administrator), and the Administrator will not be liable to the Owner Trustee
under this Section for any legal or other expenses subsequently incurred by
the Owner Trustee in connection with the defense thereof, other than
reasonable costs of investigation. Neither the Depositor nor the
Administrator nor the Servicer need reimburse any expense or indemnify
against any loss, liability or expense incurred by the Owner Trustee through
the Owner Trustee's own willful misconduct, negligence or bad faith. The
Owner Trustee's rights under this Article VIII shall survive the termination
of this Agreement or the resignation or removal of the Owner Trustee.
SECTION 8.03 PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to
the Owner Trustee pursuant to this Article VIII from assets in the Owner
Trust Estate shall be deemed not to be a part of the Owner Trust Estate
immediately after such payment.
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01 TERMINATION OF TRUST AGREEMENT.
(a) This Agreement (other than Article VIII) shall terminate and the
Trust shall dissolve and be wound up in accordance with Section 3808 of the
Business Trust Statute, upon the earliest of (i) the maturity or other
liquidation of the last Receivable (or other asset) in the Owner Trust Estate
and the final distribution of all moneys or other property or proceeds of the
Owner Trust Estate in accordance with the terms of this Agreement, the Indenture
and the Sale and Servicing Agreement (including, but not limited to, any
property and proceeds to be deposited in the Collection Account pursuant to
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 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
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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 3810 of the Business Trust Statute.
ARTICLE X
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01 ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The
Owner Trustee shall at all times be an entity having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authorities. If such entity shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section 10.01, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Owner Trustee shall
cease to be eligible in accordance with the provisions of this Section, the
Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
SECTION 10.02 RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Depositor, the Servicer and
the Indenture Trustee. If, for any reason, The Chase Manhattan Bank or any of
its Affiliates should assume the duties of the Indenture Trustee, then from
that time forward Chase Manhattan Bank Delaware, in its capacity as Owner
Trustee, shall resign as Owner Trustee hereunder if any Event of Default
under the Indenture occurs and is necessary to eliminate any conflict of
interest under the TIA with the Indenture Trustee or any other trustee under
the Indenture. Upon receiving such notice of resignation, the Servicer shall
promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which shall be delivered to each of the resigning
Owner Trustee and the successor Owner Trustee. If no successor Owner Trustee
shall have been so appointed or shall not have accepted such appointment
within 30 days after the giving of such notice of resignation, the resigning
Owner Trustee may petition any court of competent jurisdiction for the
appointment of a successor Owner Trustee.
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If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign
promptly, or if at any time the Owner Trustee shall be legally unable to act,
or shall be adjudged bankrupt or insolvent, or a receiver of the Owner
Trustee or of its property shall be appointed, or any public officer shall
take charge or 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.
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SECTION 10.04 MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any
corporation into which the Owner Trustee may be merged or converted or with
which it may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Owner Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Owner Trustee, shall be the successor of the Owner Trustee
hereunder, provided such corporation shall be eligible pursuant to Section
10.01, without the execution or 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
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(iii) the Administrator and the Owner Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as if given to each of them. Each separate trustee and
co-trustee, upon its acceptance of the powers and duties conferred thereto
under this Agreement, shall be vested with the estates or property specified
in its instrument of appointment, either jointly with the Owner Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision of this Agreement relating
to the conduct of, affecting the liability of, or affording protection to,
the Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect,
of this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Owner Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 SUPPLEMENTS AND AMENDMENTS. This Agreement may be
amended by the Depositor and the Owner Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions in this
Agreement or of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that such action shall not, as
evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the
Depositor and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of the Holders of the Notes evidencing not less
than a majority of the Outstanding Amount of the Notes (excluding for such
purpose Notes owned by NARC, NMAC or any of their Affiliates unless at such
time all Notes are then owned by NARC, NMAC and their Affiliates) or if all
of the Notes have been paid in full, the Holders of the Certificates
evidencing not less than a majority of the Certificate Balance (excluding for
such purpose Certificates owned by NARC, NMAC or any of their Affiliates
unless at such time all Certificates are then owned by NARC, NMAC and their
Affiliates) for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the
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Noteholders or the Certificateholders; PROVIDED, HOWEVER, that no such
amendment shall (a) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on Receivables or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage
of the Outstanding Amount of the Notes and the Certificate Balance required
to consent to any such amendment, without the consent of the Holders of all
the affected Notes and Certificates.
Promptly after the execution of any such amendment or consent, the
Owner Trustee shall furnish written notification of the substance of such
amendment or consent to each Certificateholder, the Indenture Trustee and
each of the Rating Agencies.
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.
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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 1999-A Owner Trust, c/o Chase Manhattan
Bank Delaware, Corporate Trust Department, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Nissan Auto Receivables 1999-A Owner Trust, with a
copy to Nissan Motor Acceptance 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
Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument
or action by a Certificateholder shall bind the successors and assigns of
such Certificateholder.
SECTION 11.08 NO PETITION. The Owner Trustee (not in its
individual capacity but solely as Owner Trustee), by entering into this
Agreement, hereby covenants and agrees, and each Certificateholder, by
accepting a Certificate, and the Indenture Trustee and any Noteholder by
accepting the benefits of this Agreement, are thereby deemed to covenant and
agree that they will not at any time institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or
31
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.
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, the
Servicer shall be responsible for payment of the Administrator's fees under
the Administration Agreement and shall reimburse the Administrator for all
expenses and liabilities of the Administrator incurred thereunder. In
addition, the parties hereto acknowledge and agree that, pursuant to the Sale
and Servicing Agreement, the Servicer shall be responsible for the payment of
all fees and expenses of the Trust, the Owner Trustee (to the extent not paid
by the Depositor or the Administrator) and the Indenture Trustee paid by any
of them in connection with any of their obligations under the Basic Documents
to obtain or maintain any required license under the Pennsylvania Motor
Vehicle Sales Finance Act and all other similar applicable state laws other
than those of Alabama, Hawaii and Maryland.
SECTION 1.01
32
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
NISSAN AUTO RECEIVABLES
CORPORATION,
as Depositor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S-1
EXHIBIT A
(FORM OF CERTIFICATE)
THIS CERTIFICATE IS NON-TRANSFERABLE.
THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN
THE DEPOSITOR, THE OWNER TRUSTEE, THE SERVICER, THE ADMINISTRATOR, NMAC, NARC,
NISSAN NORTH AMERICA, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT
BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY.
NUMBER $____________
R-_____ CUSIP NO. _________
NISSAN AUTO RECEIVABLES 1999-A OWNER TRUST
ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the
property of which includes a pool of retail installment sale contracts secured
by new, near-new and used automobiles and light-duty trucks and sold to the
Trust by Nissan Auto Receivables Corporation ("NARC").
(This Certificate does not represent an interest in or obligation of NARC,
Nissan Motor Acceptance Corporation ("NMAC"), Nissan North America, Inc. or any
of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT ________________________________________ is the
registered owner of _________________________ DOLLARS nonassessable, fully-paid,
fractional undivided interest in Nissan Auto Receivables 1999-A Owner Trust (the
"Trust") formed by NARC.
The Trust was created pursuant to a Trust Agreement, dated as of August
6, 1999 (as amended and supplemented from time to time, including the Amended
and Restated Trust Agreement, dated as of August 6, 1999, the "Trust
Agreement"), between NARC, as depositor (the "Depositor"), and Chase Manhattan
Bank Delaware, as owner trustee (the "Owner Trustee"),
A-1
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
August 1, 1999 (the "Indenture"), between the Trust and Norwest Bank
Minnesota, National Association, as indenture trustee (the "Indenture
Trustee"), or in the Sale and Servicing Agreement, dated as of August 1, 1999
(the "Sale and Servicing Agreement"), among the Trust, the Depositor and
NMAC, as servicer (the "Servicer"), as applicable.
This Certificate is one of the duly authorized Certificates designated
as "Asset Backed Certificates" (the "Certificates") issued pursuant to the Trust
Agreement. Certain debt instruments evidencing obligations of the Trust have
been issued under the Indenture, consisting of three classes of Notes designated
as "Class A-1 5.619% Asset Backed Notes", "Class A-2 6.120% Asset Backed Notes,"
and "Class A-3 6.470% 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 September 15, 1999, to the person
in whose name this Certificate is registered at the close of business on the
related Record Date, such Certificateholder's pro rata portion of the amounts to
be distributed to Holders of the Certificates on such Distribution Date in
respect of amounts distributable to the Certificateholders of the Certificates
pursuant to Section 5.06 of the Sale and Servicing Agreement.
The holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate are subordinated to the
rights of the Noteholders as described in the Sale and Servicing Agreement and
the Indenture.
It is the intent of the Depositor, NMAC and the Certificateholders
that, for purposes of federal income tax, state and local income tax, any state
single business tax and any other income taxes, the Trust will be treated as a
partnership, and the Certificateholders will be treated as partners in that
partnership, for any period during which the beneficial ownership interests in
the Trust are held by more than one person. For any such period, 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.
A-2
Each Certificateholder, by its acceptance of a Certificate or any
beneficial interest in a Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States, federal or state bankruptcy or
similar law in connection with any obligations relating to the Certificates, the
Notes, the Trust Agreement or any of the Basic Documents.
Distributions on this Certificate will be made as provided in the Trust
Agreement by the Paying Agent by wire transfer or check mailed to each
Certificateholder of record without the presentation or surrender of this
Certificate or the making of any notation hereon. Except as otherwise provided
in the Trust Agreement and notwithstanding the above, the final distribution on
this Certificate will be made after due notice by the Owner Trustee of the
pendency of such distribution and only upon presentation and surrender of this
Certificate at the office or agency 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 or an authenticating
agent, by manual signature, this Certificate shall not entitle the holder hereof
to any benefit under the Trust Agreement or the Sale and Servicing Agreement or
be valid for any purpose.
THIS CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3
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 1999-A OWNER
TRUST
By: CHASE MANHATTAN BANK
DELAWARE,
not in its individual capacity
but solely as Owner Trustee
Dated: By:
------------------------------
Authorized Signatory
A-4
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
CHASE MANHATTAN BANK CHASE MANHATTAN BANK
DELAWARE, as Owner Trustee DELAWARE, as Owner Trustee
or By: The Chase Manhattan Bank, as
By: _______________________ authenticating agent
Authorized Signatory
By: _________________________
Authorized Signatory
A-5
(REVERSE OF CERTIFICATE)
The Certificates do not represent an obligation of, or an interest in,
the Owner Trustee, NMAC, NARC, Nissan North America, Inc. or any of their
Affiliates and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated herein or in the Trust
Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Receivables (and certain
other amounts), all as more specifically set forth in the Trust Agreement and in
the Sale and Servicing Agreement. A copy of each of the Sale and Servicing
Agreement and the Trust Agreement may be examined during normal business hours
at the principal office of the Depositor, and at such other places, if any,
designated by the Depositor, by any Certificateholder upon written request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Owner Trustee, with the consent of the Holders
of the Notes representing a majority of the Outstanding Amount of the Notes, or,
if all of the Notes have been paid in full, with the consent of the Holders of
the Certificates representing a majority of the Certificate Balance (excluding,
in each case, Securities held by NARC, NMAC or any of their Affiliates unless at
such time all Notes or Certificates, as the case may be, are then owned by NARC,
NMAC and their Affiliates). Any such consent by the holder of this Certificate
shall be conclusive and binding on such holder and on all future holders of this
Certificate and of any Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent is
made upon this Certificate or such replacement certificate. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Holders of the Certificates or the Notes.
As provided in the Trust Agreement, and subject to certain limitations
therein set forth, the transfer of this Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies of the Certificate Registrar maintained by
the Owner Trustee in the Borough of Manhattan in The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Owner Trustee and the Certificate Registrar duly executed by the holder hereof
or such holder's attorney duly authorized in writing, and thereupon one or more
new Certificates of authorized denominations evidencing the same aggregate
interest in the Trust will be issued to the designated transferee or
transferees. The initial Certificate Registrar appointed under the Trust
Agreement is The Chase Manhattan Bank, at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇-▇▇▇▇.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000.00 and in integral multiples of $0.01 in
excess thereof. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the holder surrendering the same. No service
charge will be made
A-6
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.
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-7
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-8
EXHIBIT B
FORM OF TRANSFEREE REPRESENTATION LETTER
Nissan Auto Receivables 1999-A Owner Trust
c/o CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Owner Trustee
Corporate Trust Department
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Nissan Auto Receivables 1999-A Owner Trust
THE CHASE MANHATTAN BANK,
as Certificate Registrar
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Nissan Auto Receivables 1999-A Owner Trust
Attention: Corporate Trust Services -- Nissan Auto Receivables 1999-A Owner
Trust
Re: TRANSFER OF NISSAN AUTO RECEIVABLES 1999-A OWNER TRUST
CERTIFICATES, (THE "CERTIFICATES")
Ladies and Gentlemen:
This letter is delivered pursuant to Section 3.03 of the
Amended and Restated Trust Agreement, dated as of August 6, 1999 (the "Trust
Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and
Chase Manhattan Bank Delaware, as Owner Trustee (the "Owner Trustee"), in
connection with the transfer by ______________________________ (the "Seller")
to the undersigned (the "Purchaser") of $__________________________ balance
of the Certificates. Capitalized terms used and not otherwise defined herein
have the meanings assigned to such terms in the Trust Agreement.
In connection with such transfer, the undersigned hereby
represents and warrants to you and the addressees hereof as follows:
/ / I am not a Non-U.S. Person as defined in the Trust
Agreement; and
/ / I am not (i) an employee benefit plan subject to the
fiduciary responsibility provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code"), or a governmental
B-1
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
Section 2510.3-101).
[Signature appears on next page]
IN WITNESS WHEREOF, the Purchaser hereby executes this
Transferee Representation Letter on the ___ day of _______________.
Very truly yours,
-----------------------------,
The Purchaser
By:
-----------------------------,
Name:
Title:
B-2
EXHIBIT C
FORM OF TRANSFEROR REPRESENTATION LETTER
Nissan Auto Receivables 1999-A Owner Trust
c/o CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as Owner Trustee
Corporate Trust Department
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Nissan Auto Receivables 1999-A Owner Trust
THE CHASE MANHATTAN BANK,
as Certificate Registrar
Corporate Trust Department
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Nissan Auto Receivables 1999-A Owner Trust
Attention: Corporate Trust Services -- Nissan Auto Receivables 1999-A Owner
Trust
Re: TRANSFER OF NISSAN AUTO RECEIVABLES 1999-A OWNER TRUST
CERTIFICATES, (THE "CERTIFICATES")
Ladies and Gentlemen:
This letter is delivered pursuant to Section 3.03 of the
Amended and Restated Trust Agreement, dated as of August 6, 1999 (the "Trust
Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and
Chase Manhattan Bank Delaware, as Owner Trustee (the "Owner Trustee"), in
connection with the transfer by _______________________________ (the
"Purchaser") to the undersigned (the "Seller") of $__________________________
balance of the Certificates. Capitalized terms used and not otherwise defined
herein have the meanings ascribed thereto in the Trust Agreement. The
Transferor hereby certifies, represents and warrants to you, as Certificate
Registrar, that:
1. The Transferor is the lawful owner of the Transferred
Certificates with the full right to transfer such Certificates free
from any and all claims and encumbrances whatsoever.
2. Neither the Transferor nor anyone acting on its behalf has
(a) offered, transferred, pledged, sold or otherwise disposed of any
Transferred Certificate, any
C-1
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) would constitute a
distribution of any Transferred Certificate under the Securities Act of
1933, as amended (the "Securities Act"), or would render the
disposition of any Transferred Certificate a violation of Section 5 of
the Securities Act or any state securities laws, or would require
registration or qualification of any Transferred Certificate pursuant
to the Securities Act or any state securities laws.
Very truly yours,
-------------------------
(Transferor)
By:
-----------------------
Name:
-----------------------
Title:
-----------------------
C-2