-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CwO79mgTdsOIaGpCxqW36J6iugYQ34r4M/91xNwEB3ZdygWK6T3tErifcqsEvsVG TMEnAY1xqipzlP3DROVPKg== 0000950150-00-000047.txt : 20000203 0000950150-00-000047.hdr.sgml : 20000203 ACCESSION NUMBER: 0000950150-00-000047 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 20000202 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000202 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NISSAN AUTO RECEIVABLES CORP /DE CENTRAL INDEX KEY: 0000878032 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 136978161 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 033-42130 FILM NUMBER: 520659 BUSINESS ADDRESS: STREET 1: 990 W 190TH ST CITY: TORRANCE STATE: CA ZIP: 90502 BUSINESS PHONE: 3107198013 MAIL ADDRESS: STREET 1: 990 WEST 190TH STREET CITY: TORRANCE STATE: CA ZIP: 90502 8-K 1 FORM 8-K 1 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES AND EXCHANGE ACT OF 1934 Date of Report: February 2, 2000 (Date of earliest event reported) NISSAN AUTO RECEIVABLES CORPORATION ON BEHALF OF NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST -------------------------------------------------------------- (Exact name of registrant as specified in its charter) DELAWARE 333-82763 33-0479655 (State or Other Jurisdiction of (Commission File Number) (I.R.S. Employer Incorporation) Identification No.)
990 WEST 190TH STREET TORRANCE, CALIFORNIA 90502 ---------------------------------------- (Address of principal executive offices) Registrant's telephone number, including area code: (310) 719-8013 ITEM 5. OTHER EVENTS On January 27, 2000, Nissan Auto Receivables Corporation ("NARC") and Nissan Motor Acceptance Corporation ("NMAC") entered into that certain Purchase Agreement, dated as of January 27, 2000 (the "Purchase Agreement"), pursuant to which NMAC transferred to NARC certain retail installment sales contracts relating to certain new, near-new and used automobiles and light-duty trucks (the "Receivables") and related property. On January 27, 2000, Nissan Auto Receivables 2000-A Owner Trust (the "Trust"), a Delaware business trust created pursuant to that certain Trust Agreement, dated as of December 21, 1999, as amended by the Amended and Restated Trust Agreement, dated as of January 27, 2000 (the "Amended and Restated Trust Agreement"), by and between NARC, as depositor, and Wilmington Trust Company, as owner trustee, entered into that certain Sale and Servicing Agreement, dated as of January 27, 2000 (the "Sale and Servicing Agreement"), with NARC, as seller, and NMAC, as servicer, pursuant to which the Receivables and related property were transferred to the Trust. Also on January 27, 2000, the Trust caused the issuance, pursuant to an Indenture, dated as of January 27, 2000 (the "Indenture"), by and between the Trust, as issuer, and Norwest Bank Minnesota, National Association, as indenture trustee (the "Indenture Trustee"), of the Notes in the following classes: Class A-1, Class A-2, Class A-3 and Class A-4 (collectively, the "Notes"). Also on January 27, 2000, NARC, as seller, NMAC, as servicer, and the Indenture Trustee entered into that certain Yield Supplement Agreement, dated as of January 27, 2000 (the "Yield Supplement Agreement"), relating to the yield supplement account to be maintained for the benefit of the holders of the Notes. Also on January 27, 2000, the Trust, as issuer, NMAC, as administrator, and the Indenture Trustee entered into that certain Administration Agreement, dated as of January 27, 2000, relating to the provision by NMAC of certain 2 services relating to the Notes. The Notes, with an aggregate scheduled principal balance, as of January 27, 2000, of $758,130,000, were sold to Chase Securities Inc., J.P. Morgan Securities Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as underwriters (the "Underwriters"), pursuant to an Underwriting Agreement, dated as of January 19, 2000, by and among NARC, NMAC and Chase Securities Inc., on behalf of itself and as the representative of the Underwriters. The Notes have been registered pursuant to the Securities Act of 1933, as amended, under a Registration Statement on Form S-3 (Commission File No. 333-82763). Attached as Exhibit 4.1 is the Sale and Servicing Agreement, as Exhibit 4.2 is the Indenture, as Exhibit 4.3 is the Purchase Agreement, as Exhibit 4.4 is the Amended and Restated Trust Agreement, as Exhibit 4.5 is the Administration Agreement and as Exhibit 4.6 is the Yield Supplement Agreement. ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS (a) Not applicable. (b) Not applicable. (c) Exhibits The exhibit number corresponds with Item 601(a) of Regulation S-K.
Exhibit No. Description ----------- ----------- Exhibit 4.1 Sale and Servicing Agreement, dated as of January 27, 2000, by and among the Trust, as issuer, NARC, as seller, and NMAC, as servicer. Exhibit 4.2 Indenture, dated as of January 27, 2000, by and between the Trust, as issuer, and the Indenture Trustee. Exhibit 4.3 Purchase Agreement, dated as of January 27, 2000, by and between NARC, as purchaser, and NMAC, as seller. Exhibit 4.4 Amended and Restated Trust Agreement, dated as of January 27, 2000, by and between NARC, as depositor, and Wilmington Trust Company, as Owner Trustee. Exhibit 4.5 Administration Agreement, dated as of January 27, 2000, by and among the Trust, as issuer, NMAC, as administrator, and the Indenture Trustee. Exhibit 4.6 Yield Supplement Agreement, dated as of January 27, 2000, by and among NARC, as seller, NMAC, as servicer, and the Indenture Trustee.
3 Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on behalf of the Registrant by the undersigned thereunto duly authorized. NISSAN AUTO RECEIVABLES CORPORATION By: /s/ Tomoaki Shimazu ------------------------------------ Name: Tomoaki Shimazu Title: Treasurer, Assistant Secretary and Director February 2, 2000 4 EXHIBIT INDEX Item 601(a) of Regulation S-K
Exhibit No. Description ----------- ----------- Exhibit 4.1 Sale and Servicing Agreement, dated as of January 27, 2000, by and among the Trust, as issuer, NARC, as seller, and NMAC, as servicer. Exhibit 4.2 Indenture, dated as of January 27, 2000, by and between the Trust, as issuer, and the Indenture Trustee. Exhibit 4.3 Purchase Agreement, dated as of January 27, 2000, by and between NARC, as purchaser, and NMAC, as seller. Exhibit 4.4 Amended and Restated Trust Agreement, dated as of January 27, 2000, by and between NARC, as depositor, and Wilmington Trust Company, as Owner Trustee. Exhibit 4.5 Administration Agreement, dated as of January 27, 2000, by and among the Trust, as issuer, NMAC, as administrator, and the Indenture Trustee. Exhibit 4.6 Yield Supplement Agreement, dated as of January 27, 2000, by and among NARC, as seller, NMAC, as servicer, and the Indenture Trustee.
EX-4.1 2 SALE AND SERVICING AGREEMENT 1 EXHIBIT 4.1 SALE AND SERVICING AGREEMENT among NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST as Issuer, NISSAN AUTO RECEIVABLES CORPORATION, as Seller, and NISSAN MOTOR ACCEPTANCE CORPORATION, as Servicer Dated as of January 27, 2000 2 TABLE OF CONTENTS
PAGE ---- ARTICLE I DEFINITIONS SECTION 1.01 Definitions...........................................................................1 SECTION 1.02 Usage of Terms.......................................................................19 ARTICLE II CONVEYANCE OF RECEIVABLES SECTION 2.01 Conveyance of Receivables............................................................19 SECTION 2.02 Custody of Receivables Files.........................................................21 SECTION 2.03 Acceptance by Issuer.................................................................21 ARTICLE III THE RECEIVABLES SECTION 3.01 Representations and Warranties of the Seller with Respect to the Receivables.........21 SECTION 3.02 Repurchase upon Breach...............................................................25 SECTION 3.03 Duties of Servicer as Custodian......................................................25 SECTION 3.04 Instructions; Authority To Act.......................................................26 SECTION 3.05 Custodian's Indemnification..........................................................26 SECTION 3.06 Effective Period and Termination.....................................................26 ARTICLE IV ADMINISTRATION AND SERVICING OF RECEIVABLES SECTION 4.01 Duties of Servicer...................................................................27 SECTION 4.02 Collection of Receivable Payments....................................................28 SECTION 4.03 Realization upon Receivables.........................................................29 SECTION 4.04 Maintenance of Security Interests in Financed Vehicles...............................29 SECTION 4.05 Covenants of Servicer................................................................29 SECTION 4.06 Purchase of Receivables upon Breach..................................................29 SECTION 4.07 Servicing Fee and Expenses...........................................................30 SECTION 4.08 Servicer's Certificate...............................................................30 SECTION 4.09 Annual Statement as to Compliance; Notice of Default.................................30 SECTION 4.10 Annual Independent Certified Public Accountants' Report..............................31 SECTION 4.11 Access to Certain Documentation and Information Regarding Receivables..........................................................................31 SECTION 4.12 Appointment of Subservicer...........................................................32 SECTION 4.13 Amendments to Schedule of Receivables................................................32 SECTION 4.14 Acknowledgement by Servicer of its Obligations under the Indenture...................32
i 3 TABLE OF CONTENTS (CONTINUED)
PAGE ---- ARTICLE V DISTRIBUTIONS; RESERVE ACCOUNT; STATEMENTS TO THE CERTIFICATEHOLDERS AND THE NOTEHOLDERS SECTION 5.01 Establishment of Accounts............................................................32 SECTION 5.02 Collections..........................................................................34 SECTION 5.03 Application of Collections...........................................................35 SECTION 5.04 Advances.............................................................................35 SECTION 5.05 Additional Deposits..................................................................36 SECTION 5.06 Payments and Distributions...........................................................37 SECTION 5.07 Reserve Account......................................................................40 SECTION 5.08 Yield Supplement Account.............................................................42 SECTION 5.09 Statements to Certificateholders and Noteholders.....................................43 SECTION 5.10 Net Deposits.........................................................................44 ARTICLE VI THE SELLER SECTION 6.01 Representations of Seller............................................................45 SECTION 6.02 Additional Covenants of the Seller...................................................46 SECTION 6.03 Liability of Seller; Indemnities.....................................................48 SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of, Seller...............................................................................49 SECTION 6.05 Limitation on Liability of Seller and Others.........................................50 SECTION 6.06 Seller May Own Certificates or Notes.................................................50 ARTICLE VII THE SERVICER SECTION 7.01 Representations of Servicer..........................................................50 SECTION 7.02 Indemnities of Servicer..............................................................52 SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of, Servicer.............................................................................53 SECTION 7.04 Limitation on Liability of Servicer and Others.......................................53 SECTION 7.05 NMAC Not To Resign as Servicer.......................................................54 ARTICLE VIII DEFAULT SECTION 8.01 Servicer Default.....................................................................54 SECTION 8.02 Appointment of Successor.............................................................56
ii 4 TABLE OF CONTENTS (CONTINUED)
PAGE ---- SECTION 8.03 Repayment of Advances................................................................57 SECTION 8.04 Notification ........................................................................57 SECTION 8.05 Waiver of Past Defaults..............................................................57 ARTICLE IX TERMINATION; RELEASE OF RECEIVABLES SECTION 9.01 Optional Purchase of All Receivables.................................................57 SECTION 9.02 Release of Receivables...............................................................58 SECTION 9.03 Termination..........................................................................59 ARTICLE X MISCELLANEOUS SECTION 10.01 Amendment............................................................................59 SECTION 10.02 Protection of Title to Trust.........................................................61 SECTION 10.03 Notices..............................................................................63 SECTION 10.04 Assignment by the Seller or the Servicer.............................................63 SECTION 10.05 Limitations on Rights of Others......................................................63 SECTION 10.06 Severability.........................................................................63 SECTION 10.07 Separate Counterparts................................................................63 SECTION 10.08 Headings.............................................................................64 SECTION 10.09 Governing Law........................................................................64 SECTION 10.10 Assignment by Issuer.................................................................64 SECTION 10.11 Nonpetition Covenants................................................................64 SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee.......................64 SCHEDULE A Schedule of Receivables SCHEDULE B Location of Receivables SCHEDULE C Overextended Receivables
iii 5 SALE AND SERVICING AGREEMENT, dated as of January 27, 2000, among NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST, a Delaware business trust (the "Issuer"), NISSAN AUTO RECEIVABLES CORPORATION, a Delaware corporation, and NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation. Capitalized terms used herein without definition shall have the respective meanings assigned to such terms in Article I. WHEREAS, the Issuer desires to purchase a portfolio of receivables arising in connection with retail installment sales contracts secured by new, near-new or used automobiles and light-duty trucks generated by NMAC in the ordinary course of business and sold to the Seller; WHEREAS, the Seller is willing to sell such receivables to the Issuer; and WHEREAS, the Servicer is willing to service such receivables. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained, the parties hereto hereby agree as follows: ARTICLE I Definitions SECTION 1.01 Definitions. Except as otherwise provided in this Agreement, whenever used herein, the following words and phrases, unless the context otherwise requires, shall have the following respective meanings: "Accounts" means the Collection Account, the Yield Supplement Account and the Reserve Account. "Administration Agreement" means the Administration Agreement, dated as of January 27, 2000, among the Administrator, the Issuer and the Indenture Trustee. "Administrative Purchase Payment" for any Administrative Receivable as of the last day of any Collection Period, means the sum of the Principal Balance thereof as of the beginning of such Collection Period plus interest accrued thereon through the due date for the Obligor's payment in such Collection Period at the related APR, after giving effect to the receipt of monies collected (from whatever source other than the Advances) on such Administrative Receivable, if any, during such Collection Period. "Administrative Receivable" means a Receivable purchased as of the close of business on the last day of a Collection Period by the Servicer pursuant to Section 4.06 or Section 9.01. "Administrator" means NMAC, or any successor Administrator under the Administration Agreement. "Advance" means the amount, as of the last day of a Collection Period, that the Servicer is required to advance on the respective Receivable pursuant to Section 5.04. 6 "Affiliate" means, with respect to any specified Person, any other Person controlling or controlled by or under common control with such specified Person. For the purposes of this definition, "control," when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the term "controlling" and "controlled" have meanings correlative to the foregoing. "Aggregate Noteholders' Interest Distributable Amount" means, with respect to any Distribution Date, the sum of the Noteholders' Interest Distributable Amount for all Classes of Notes with respect to such Distribution Date. "Agreement" means this Sale and Servicing Agreement among Nissan Auto Receivables 2000-A Owner Trust, as Issuer, NARC, as Seller, and NMAC, as Servicer. "AICPA" shall have the meaning assigned to such term in Section 4.10. "Allocable Principal" means, for any Distribution Date, an amount equal to the excess, if any, of (i) the sum of the Outstanding Amount of the Notes and the Certificate Balance as of the close of business on the immediately preceding Distribution Date over (ii) the Pool Balance as of the end of the related Collection Period. "Amount Financed" with respect to any Receivable, means the amount advanced under the Receivable toward the purchase price of the related Financed Vehicle and any related costs, including but not limited to accessories, insurance premiums, service and warranty contracts and other items customarily financed as part of retail automobile and light-duty truck installment sale contracts. "Annual Percentage Rate" or "APR" of a Receivable means the annual rate of finance charges stated in such Receivable. "Assignment" shall have the meaning assigned to such term in the Purchase Agreement. "Annual USAP Report" shall have the meaning specified in Section 4.10. "Available Amounts" means, with respect to any Distribution Date, the sum of Available Interest and Available Principal for such Distribution Date. "Available Interest" means, for any Distribution Date, the sum of the following amounts received during the related Collection Period: (i) that portion of all collections on Receivables allocable to interest, (ii) without duplication of amounts described in clause (i), Net Liquidation Proceeds to the extent allocable to interest due on a Liquidated Receivable in accordance with the Servicer's customary servicing procedures, (iii) all Advances made by the Servicer pursuant to Section 5.04, (iv) without duplication of any amounts described above in clauses (i) and (ii), the Administrative Purchase Payment of each Receivable that became an Administrative Receivable during the related Collection Period to the extent attributable to interest thereon, (v) without duplication of any amounts described above in clauses (i) and (ii), the Warranty Purchase Payment of each Receivable that became a Warranty Receivable during the related Collection Period to the extent attributable to interest thereon, and (vi) the Yield Supplement 2 7 Deposit plus reinvestment income on the Yield Supplement Account; provided, however, that in calculating Available Interest, amounts to be paid to the Servicer as reimbursement for Advances pursuant to Sections 5.06(c)(i), 5.06(c)(ii), 5.06(d)(i) and 5.06(d)(ii) on such Distribution Date shall be excluded. "Available Principal" means, for any Distribution Date, the sum of the following amounts received during the related Collection Period: (i) that portion of all collections on Receivables attributable to principal, (ii) without duplication of amounts described in clause (i), Net Liquidation Proceeds attributable to principal due on a Liquidated Receivable in accordance with the Servicer's customary servicing procedures, (iii) without duplication of any amounts described above in clauses (i) and (ii), the Administrative Purchase Payment of each Receivable that became an Administrative Receivable during the related Collection Period to the extent attributable to principal, and (iv) without duplication of any amounts described above in clauses (i) and (ii), the Warranty Purchase Payment of each Receivable that became a Warranty Receivable during the related Collection Period to the extent attributable to principal. "Base Servicing Fee" means the fee payable to the Servicer on each Distribution Date, calculated pursuant to Section 4.07, for services rendered during the related Collection Period, which shall be equal to one-twelfth of the Servicing Rate multiplied by the Pool Balance as of the close of business on the last day of the immediately preceding Collection Period or, with respect to the first Distribution Date, the Original Pool Balance. "Basic Documents" means the Purchase Agreement, the Trust Agreement, the Certificate of Trust, this Agreement, the Indenture, the Administration Agreement, the Securities Account Control Agreement, the Yield Supplement Agreement, the Note Depository Agreement and the other documents and certificates delivered in connection herewith and therewith. "Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in New York, New York, Los Angeles, California, Wilmington, Delaware or Minneapolis, Minnesota are authorized or obligated by law, regulation, executive order or governmental decree to remain closed. "Certificate Balance" means, as of any Distribution Date, the Original Certificate Balance, reduced by all amounts distributed to the Certificateholders pursuant to Section 5.06(c) and/or (d) hereof (but in no event less than zero). For the purposes of determining whether the vote of the requisite percentage of Certificateholders necessary to effect any consent, waiver, request or demand shall have been obtained, the Certificate Balance shall be deemed to be reduced by the amount equal to the balance (without giving effect to this provision) evidenced by any Certificate registered in the name of the Seller, the Servicer or any Person actually known to a Trust Officer of the Owner Trustee or the Indenture Trustee, as the case may be, to be the Seller or the Servicer or any of their Affiliates. "Certificate Factor" means, with respect to any Distribution Date, a seven-digit decimal figure obtained by dividing the Certificate Balance as of the close of business on the last day of the related Collection Period by the Original Certificate Balance. 3 8 "Certificate of Trust" shall have the meaning assigned to such term in the Trust Agreement. "Certificate Pool Factor" means, with respect to any Distribution Date, a seven-digit decimal figure obtained by dividing the Certificate Balance as of the close of business on the last day of the related Collection Period by the Original Pool Balance. "Certificate Register" means the register maintained by the Certificate Registrar pursuant to the Trust Agreement recording the names of the Certificateholders. "Certificateholder" shall have the meaning assigned to such term in the Trust Agreement. "Certificateholders' Distributable Amount" means, with respect to any Distribution Date, the Certificateholders' Principal Distributable Amount, if any, for such Distribution Date. "Certificateholders' Monthly Principal Distributable Amount" means, with respect to any Distribution Date, the Certificateholders' Percentage of the Allocable Principal for such Distribution Date. "Certificateholders' Percentage" means the following: (i) for each Distribution Date until the Distribution Date on which the principal amount of all of the Notes has been paid in full, 0%; (ii) for the Distribution Date on which the principal amount of all the Notes has been paid in full, the percentage of Allocable Principal remaining after the Notes have been paid in full; and (iii) for each Distribution Date after the Distribution Date on which the principal amount of all of the Notes is reduced to zero, 100%. "Certificateholders' Principal Carryover Shortfall" means, with respect to any Distribution Date, the excess, if any, of the Certificateholders' Monthly Principal Distributable Amount over the amount in respect of principal that is actually distributed to the Certificateholders on such current Distribution Date. "Certificateholders' Principal Distributable Amount" means, with respect to any Distribution Date, the sum of (i) the Certificateholders' Monthly Principal Distributable Amount for such Distribution Date and (ii) on the Final Scheduled Distribution Date for the Certificates, if any, or upon the termination of the Trust, the amount necessary to reduce the outstanding principal amount of the Certificates to zero; provided, however, that the Certificateholders' Principal Distributable Amount shall not exceed the Certificate Balance. "Certificates" shall have the meaning assigned to such term in the Trust Agreement. "Class" means any one of the classes of Notes or Certificates, as the case may be. "Class A-1 Interest Rate" means 6.125% per annum. "Class A-1 Note" means any of the 6.125% Asset Backed Notes, Class A-1, issued under the Indenture. 4 9 "Class A-1 Noteholder" means the Person in whose name a Class A-1 Note is registered in the Note Register. "Class A-2 Interest Rate" means 6.730% per annum. "Class A-2 Note" means any of the 6.730% Asset Backed Notes, Class A-2, issued under the Indenture. "Class A-2 Noteholder" means the Person in whose name a Class A-2 Note is registered in the Note Register. "Class A-3 Interest Rate" means 7.010% per annum. "Class A-3 Note" means any of the 7.010% Asset Backed Notes, Class A-3, issued under the Indenture. "Class A-3 Noteholder" means the Person in whose name a Class A-3 Note is registered in the Note Register. "Class A-4 Interest Rate" means 7.170% per annum. "Class A-4 Note" means any of the 7.170% Asset Backed Notes, Class A-4, issued under the Indenture. "Class A-4 Noteholder" means the Person in whose name a Class A-4 Note is registered in the Note Register. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Exchange Act. "Closing Date" means January 27, 2000. "Collection Account" means the account designated as such, established and maintained pursuant to Section 5.01. "Collection Period" means, with respect to any Distribution Date, the preceding calendar month. Any amount stated "as of the close of business of the last day of a Collection Period" shall give effect to the following calculations as determined as of the end of the day on such last day: (i) all applications of collections, (ii) all Advances and reductions of Outstanding Advances and (iii) all distributions. "Corporate Trust Office" shall have the meaning assigned to such term in the Indenture. "Cutoff Date" means December 31, 1999. "Damages" shall have the meaning assigned to such term in Section 7.02. "Dealer" means the dealer who sold a Financed Vehicle and who originated and assigned the related Receivable to NMAC under an existing agreement between such dealer and NMAC. 5 10 "Dealer Recourse" means, with respect to a Receivable, all recourse rights against the Dealer which originated the Receivable, and any successor Dealer. "Default" or "Event of Default" shall have the meaning assigned to such term in the Indenture. "Defaulted Receivable" means a Receivable (other than an Administrative Receivable or a Warranty Receivable as to which a Warranty Purchase Payment or an Administrative Purchase Payment has been made), which, by its terms, is delinquent more than 120 days or, with respect to Receivables that are delinquent less than 120 days, the Servicer has (i) determined, in accordance with its customary servicing procedures, that eventual payment in full is unlikely or (ii) repossessed the Financed Vehicle. "Definitive Notes" shall have the meaning ascribed thereto in the Indenture. "Determination Date" means the tenth calendar day of each calendar month, or if such tenth day is not a Business Day, the next succeeding Business Day. "Distribution Date" means, for each Collection Period, the 15th calendar day of the following calendar month, or if the 15th day is not a Business Day, the next following Business Day, commencing February 15, 2000. "DTC" means The Depository Trust Company. "Eligible Deposit Account" means an account maintained (i) with the Indenture Trustee or the Owner Trustee so long as the Indenture Trustee's or the Owner Trustee's short-term unsecured debt obligations have a rating of "P-1" by Moody's and a rating of "A-1+" by Standard & Poor's, and for any account in which deposits in excess of 30 days are to be made, so long as the Indenture Trustee or the Owner Trustee's long-term unsecured debt obligations have a rating of at least "AA-" by Standard & Poor's (such short-term and long-term (if applicable) ratings being the "Required Deposit Rating"), or (ii) in a segregated trust account in the trust department of the Indenture Trustee or the Owner Trustee, as the case may be. Notwithstanding anything to the contrary, as of the Closing Date, the Indenture Trustee shall be deemed to have met the requirements in clause (i). "Eligible Investments" means, at any time, any one or more of the following obligations and securities: (i) direct obligations of, and obligations fully guaranteed as to timely payment of principal and interest by, the United States of America; (ii) demand deposits, time deposits or certificates of deposit of any depository institution or trust company incorporated under the laws of the United States of America or any state thereof (or any domestic branch of a foreign bank) and subject to supervision and examination by Federal or State banking or depository institution authorities; provided, however, that at the time of the investment or contractual commitment to invest therein, the commercial paper or other short-term unsecured debt obligations (other than such obligations the rating of which is based on the credit of a Person other than such 6 11 depository institution or trust company) thereof shall have a credit rating from each of the Rating Agencies in the highest investment category granted thereby; (iii) commercial paper having, at the time of the investment or contractual commitment to invest therein, a rating from each of the Rating Agencies in the highest investment category granted thereby; (iv) investments in money market funds having a rating from each of the Rating Agencies in the highest investment category granted thereby (including funds for which the Owner Trustee, the Indenture Trustee or any of their respective Affiliates is investment manager or advisor); (v) bankers' acceptances issued by any depository institution or trust company referred to in clause (ii) above; (vi) repurchase obligations with respect to any security that is a direct obligation of, or fully guaranteed by, the United States of America or any agency or instrumentality thereof the obligations of which are backed by the full faith and credit of the United States of America, in either case entered into with a depository institution or trust company (acting as principal) described in clause (ii); (vii) repurchase obligations with respect to any security or whole loan, entered into with (a) a depository institution or trust company (acting as principal) described in clause (ii) above (except that the rating referred to in the proviso in such clause (ii) shall be "A-1" or higher in the case of Standard & Poor's) (such depository institution or trust company being referred to in this definition as a "financial institution"), (b) a broker/dealer (acting as principal) registered as a broker or dealer under Section 15 of the Exchange Act (a "broker/dealer"), the unsecured short-term debt obligations of which are rated "P-1" by Moody's and at least "A-1" by Standard & Poor's at the time of entering into such repurchase obligation (a "rated broker/dealer"), (c) an unrated broker/dealer (an "unrated broker/dealer"), acting as principal that is a wholly-owned subsidiary of a non-bank holding company the unsecured short-term debt obligations of which are rated "P-1" by Moody's and at least "A-1" by Standard & Poor's at the time of entering into such repurchase obligation (a "Rated Holding Company"), or (d) an unrated wholly-owned subsidiary of a direct or indirect parent Rated Holding Company, which guarantees such subsidiary's obligations under such repurchase agreement (a "Guaranteed Counterparty"); provided that the following conditions are satisfied: (A) the aggregate amount of funds invested in repurchase obligations of a financial institution, a rated broker/dealer, an unrated broker/dealer or a Guaranteed Counterparty in respect of which the unsecured short-term ratings of Standard & Poor's are "A-1" (in the case of an unrated broker/dealer or Guaranteed Counterparty, such rating being that of the related Rated Holding Company) shall not exceed 20% of the outstanding Pool Balance (there being no limit on the amount of funds that may be invested in repurchase obligations in respect of which such Standard & Poor's rating is "A-1+" (in the case of an 7 12 unrated broker/dealer or Guaranteed Counterparty, such rating being that of the related Rated Holding Company)); (B) in the case of the Reserve Account and the Yield Supplement Account, the rating from Standard & Poor's in respect of the unsecured short term debt obligations of the financial institution, rated broker/dealer, unrated broker/dealer or Guaranteed Counterparty (in the case of an unrated broker/dealer or Guaranteed Counterparty, such rating being that of the related Rated Holding Company) shall be "A-1+"; (C) the repurchase obligation must mature within 30 days of the date on which the Indenture Trustee or the Owner Trustee, as applicable, enters into such repurchase obligation; (D) the repurchase obligation shall not be subordinated to any other obligation of the related financial institution, rated broker/dealer, unrated broker/dealer or Guaranteed Counterparty; (E) the collateral subject to the repurchase obligation is held, in the appropriate form, by a custodial bank on behalf of the Indenture Trustee or the Owner Trustee, as applicable; (F) the repurchase obligation shall require that the collateral subject thereto shall be marked to market daily; (G) in the case of a repurchase obligation of a Guaranteed Counterparty, the following conditions shall also be satisfied: (1) the Indenture Trustee or the Owner Trustee, as applicable, shall have received an Opinion of Counsel to the effect that the guarantee of the related Rated Holding Company is a legal, valid and binding agreement of the Rated Holding Company, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization and moratorium or other similar laws affecting creditors' rights generally and to general equitable principles; (2) the Indenture Trustee or the Owner Trustee, as applicable, shall have received (x) an incumbency certificate for the signer of such guarantee, certified by an officer of such Rated Holding Company, and (y) a resolution, certified by an officer of the Rated Holding Company, of the board of directors (or applicable committee thereof) of the Rated Holding Company authorizing the execution, delivery and performance of such guarantee by the Rated Holding Company; (3) the only conditions to the obligation of such Rated Holding Company to pay on behalf of the Guaranteed Counterparty shall be that the Guaranteed Counterparty shall not have paid under such repurchase obligation when required (it being understood that no notice to, demand on 8 13 or other action in respect of the Guaranteed Counterparty is necessary) and that the Indenture Trustee or the Owner Trustee, as applicable, shall make a demand on the Rated Holding Company to make the payment due under such guarantee; (4) the guarantee of the Rated Holding Company shall be irrevocable with respect to such repurchase obligation and shall not be subordinated to any other obligation of the Rated Holding Company; and (5) each of the Rating Agencies has confirmed in writing to the Indenture Trustee or the Owner Trustee, as applicable, that it has reviewed the form of the guarantee of the Rated Holding Company and has determined that the issuance of such guarantee will not result in the downgrade or withdrawal of the ratings assigned to the Notes; and (H) the repurchase obligation shall require that the repurchase obligation be overcollateralized and shall provide that, upon any failure to maintain such overcollateralization, the repurchase obligation shall become due and payable, and unless the repurchase obligation is satisfied immediately, the collateral subject to the repurchase agreement shall be liquidated and the proceeds applied to satisfy the unsatisfied portion of the repurchase obligation; and (viii) any other investment with respect to which the Servicer has received written notification from the Rating Agencies that the acquisition of such investment as an Eligible Investment will not result in a withdrawal or downgrading of the ratings on the Notes; provided that, unless otherwise expressly stated herein, each of the foregoing investments shall be denominated in U.S. dollars, shall not be purchased at a premium, shall mature no later than the Business Day prior to the Distribution Date immediately following the date of purchase, and shall be required to be held to such maturity. For purposes of this definition, any reference to the highest available credit rating of an obligation shall mean the highest available credit rating for such obligation (excluding any "+" signs associated with such rating), or such lower credit rating (as approved in writing by each Rating Agency) as will not result in the qualification, downgrading or withdrawal of the rating then assigned by such Rating Agency to any of the Notes. "Event of Default" shall have the meaning assigned to such term in the Indenture. "Excess Proceeds" shall have the meaning assigned to such term in Section 6.02(b). "Exchange Act" means the Securities Exchange Act of 1934. "Final Scheduled Distribution Date" means, with respect to the Class A-1 Notes, the Distribution Date in February, 2001; with respect to the Class A-2 Notes, the Distribution Date in May, 2002; with respect to the Class A-3 Notes, the Distribution Date in September, 2003; and with respect to the Class A-4 Notes, the Distribution Date in August, 2004. 9 14 "Financed Vehicle" means a new, near-new or used automobile or light-duty truck, together with all accessions thereto, securing an Obligor's indebtedness under the related Receivable. "Holder" or "Securityholder" means the registered holder of any Certificate or Note as evidenced by the Certificate Register (as defined in the Trust Agreement) or Note Register (as defined in the Indenture) except that, solely for the purposes of giving certain consents, waivers, requests or demands pursuant to the Trust Agreement or the Indenture, the interest evidenced by any Certificate or Note registered in the name of NARC or NMAC, or any Person actually known to a Trust Officer to be an Affiliate of 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 NARC or NMAC are the only holders. "Indenture" means the Indenture dated as of January 27, 2000, between the Issuer and the Indenture Trustee. "Indenture Trustee" means the Person acting as Indenture Trustee under the Indenture, its successors in interest and any successor trustee under the Indenture. "Initial Yield Supplement Amount" means $27,173,860.31. "Insolvency Event" means, with respect to a specified Person, (a) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of such Person or all or substantially all of its property in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for all or substantially all of its property, or ordering the winding-up or liquidation of such Person's affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (b) the commencement by such Person of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by such Person to the entry of an order for relief in an involuntary case under any such law, or the consent by such Person to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for such Person or for all or substantially all of its property, or the making by such Person of any general assignment for the benefit of creditors. "Interest Period" with respect to any Distribution Date and (i) the Class A-1 Notes, means the period from, and including, the preceding Distribution Date (or, in the case of the initial Interest Period, from and including the Closing Date) to, but excluding, such Distribution Date; and (ii) in the case of each other Class of Notes, means the period from, and including, the 15th day of the preceding calendar month (or, in the case of the initial Interest Period, from and including the Closing Date) to, but excluding, the 15th day of the month in which such Distribution Date occurs. "Interest Rate" means the Class A-1 Interest Rate, the Class A-2 Interest Rate, the Class A-3 Interest Rate or the Class A-4 Interest Rate. "Issuer" means Nissan Auto Receivables 2000-A Owner Trust. 10 15 "Lien" means any security interest, lien, charge, pledge, equity or encumbrance of any kind, other than, in the case of a Financed Vehicle, tax liens, mechanics' liens and any liens that attach to such Financed Vehicle by operation of law. "Liquidated Receivable" means a Defaulted Receivable as to which the related Financed Vehicle has been liquidated by the Servicer. "Monthly Remittance Conditions" shall have the meaning assigned to such term in Section 5.02. "Moody's" means Moody's Investors Service, Inc. "NARC" means Nissan Auto Receivables Corporation, a Delaware corporation. "Net Liquidation Proceeds" means the monies collected from whatever source on a Liquidated Receivable, net of the sum of any amounts expended by the Servicer for the account of the Obligor, plus any amounts required by law to be remitted to the Obligor. "Nissan" means Nissan Motor Co., Ltd. "NMAC" means Nissan Motor Acceptance Corporation, in its individual capacity and not as Servicer. "Nonrecoverable Advance" means any Outstanding Advance with respect to (i) any Defaulted Receivable or (ii) any Receivable as to which the Servicer determines that any recovery from payments made on or with respect to such Receivable is unlikely. "Note" means any one of the notes issued under the Indenture. "Note Depository Agreement" shall have the meaning assigned to such term in the Indenture. "Note Factor" means, with respect to any Class of Notes and any Distribution Date, a seven-digit decimal figure obtained by dividing the Outstanding Amount of such Class of Notes, as of the close of business on the last day of the related Collection Period, by the initial Outstanding Amount of that Class of Notes. "Noteholder" shall have the meaning assigned to such term in the Indenture. "Noteholders' Distributable Amount" means, with respect to any Distribution Date, the Aggregate Noteholders' Interest Distributable Amount with respect to such Distribution Date plus the Noteholders' Principal Distributable Amount with respect to such Distribution Date. "Noteholders' Interest Carryover Shortfall" means, with respect to any Distribution Date and a Class of Notes, the excess, if any, of the sum of the Noteholders' Monthly Interest Distributable Amount for such Class for the preceding Distribution Date plus any outstanding Noteholders' Interest Carryover Shortfall for such Class on such preceding Distribution Date, over the amount in respect of interest that is actually paid on the Notes of such Class on such 11 16 preceding Distribution Date, plus, to the extent permitted by applicable law, interest on the Noteholders' Interest Carryover Shortfall at the related Interest Rate for the related Interest Period (calculated on the same basis as interest on that Class of Notes for the same period). "Noteholders' Interest Distributable Amount" means, with respect to any Distribution Date and a Class of Notes, the sum of the Noteholders' Monthly Interest Distributable Amount for such Class plus any outstanding Noteholders' Interest Carryover Shortfall for such Class as of the close of the immediately preceding Distribution Date. "Noteholders' Monthly Interest Distributable Amount" means, with respect to any Distribution Date and a Class of Notes, interest accrued for the related Interest Period (calculated on the basis of, in the case of Class A-1 Notes, the actual number of days in such Interest Period and a year assumed to consist of 360 days, and in the case of all other Classes of Notes, such Interest Period being assumed to consist of 30 days and a year assumed to consist of 360 days) at the related Interest Rate for such Class of Notes on the outstanding amount of the Notes of such Class on the immediately preceding Distribution Date, after giving effect to all payments of principal to Noteholders of such Class on or prior to such Distribution Date (or, in the case of the first Distribution Date, on the original principal amount of such Class of Notes). "Noteholders' Monthly Principal Distributable Amount" means, with respect to any Distribution Date, the Noteholders' Percentage of the Allocable Principal for such Distribution Date. "Noteholders' Percentage" means (i) for each Distribution Date until the Distribution Date on which the aggregate principal amount of all of the Notes has been paid in full, 100%; (ii) for the Distribution Date on which the principal amount of all of the Notes has been paid in full, the percentage required to pay all of the Notes in full; and (iii) thereafter, 0%. "Noteholders' Principal Carryover Shortfall" means, with respect to any Distribution Date, the excess, if any, of the Noteholders' Monthly Principal Distributable Amount for the preceding Distribution Date over the amount in respect of principal that is actually paid as principal on the Notes on such current Distribution Date. Noteholders' Principal Carryover Shortfall is not used to determine the amount of principal due on the Notes on any Distribution Date, but is used solely for reporting purposes. "Noteholders' Principal Distributable Amount" means, with respect to any Distribution Date, the sum of (i) the Noteholders' Monthly Principal Distributable Amount for such Distribution Date, and (ii) on the Final Scheduled Distribution Date for any Class of Notes, the amount necessary to reduce the outstanding principal amount of such Class of Notes to zero; provided, however, that the Noteholders' Principal Distributable Amount shall not exceed the Outstanding Amount of the Notes. "Note Owner" shall have the meaning assigned to such term in the Indenture. "Note Pool Factor" means, with respect to any Class of Notes and any Distribution Date, a seven-digit decimal figure obtained by dividing the Outstanding Amount of such Class of Notes as of the close of business on the last day of the related Collection Period by the Original Pool Balance. 12 17 "Note Register" means the register maintained by the Indenture Trustee pursuant to the Indenture recording the name of each Noteholder. "Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes. "Obligor" on a Receivable means the purchaser or co-purchasers of the Financed Vehicle or any other Person who owes payments under the Receivable (but excluding any Dealer in respect of Dealer Recourse). "Officer's Certificate" means a certificate signed by the chairman of the board, the president, any executive vice president, any vice president, the treasurer, any assistant treasurer or the controller of the Seller or the Servicer, as the case may be. "Opinion of Counsel" means one or more written opinions of counsel who may, except as otherwise provided herein, be an employee of or counsel to the Issuer, the Seller or the Servicer, which counsel shall be reasonably acceptable to the Indenture Trustee, the Owner Trustee or the Rating Agencies, as the case may be. "Optional Purchase Percentage" means 10.00%. "Optional Purchase Price" means, with respect to any Distribution Date, the sum of (i) the Outstanding Amount of all Classes of Notes, (ii) the Noteholders' Interest Distributable Amount for all Classes of Notes for such Distribution Date, and (iii) the Certificate Balance. "Original Certificate Balance" means $79,591,182.12. "Original Pool Balance" means the aggregate Principal Balance of the Receivables on the Cutoff Date. "Original Principal Amount " means $184,000,000 for the Class A-1 Notes, $229,000,000 for the Class A-2 Notes, $250,000,000 for the Class A-3 Notes and $95,130,000 for the Class A-4 Notes. "Outstanding" shall have the meaning assigned to that term in the Indenture. "Outstanding Advances" means, with respect to a Receivable and the last day of a Collection Period, the sum of all Advances made as of or prior to such date, minus all payments or collections as of or prior to such date that are specified in Sections 5.04(b) and 5.04(d) as applied to reimburse all unpaid Advances with respect to such Receivable. "Outstanding Amount" means the aggregate principal amount of all Notes, or, if indicated by the context, all Notes of any Class, Outstanding at the date of determination. "Overextended Receivables" means the Receivables set forth on Schedule C to this Agreement. 13 18 "Owner Trust Estate" means all right, title and interest of the Trust in and to the Receivables (other than the Warranty Receivables for which the Seller has paid the Warranty Purchase Payment in accordance with Section 3.02 and Administrative Receivables for which the Servicer has paid the Administrative Purchase Payment in accordance with Section 4.06), and all monies paid thereon, and all monies accrued thereon, after the Cutoff Date; security interests in the Financed Vehicles and any accessions thereto; funds deposited in the Collection Account; all property (including the right to receive Net Liquidation Proceeds) that shall have secured a Receivable and that shall have been acquired by or on behalf of the Owner Trustee; proceeds from claims on any physical damage, credit life or disability insurance policies covering the Financed Vehicles or the Obligors; all right to receive payments in respect of any Dealer Recourse with respect to the Receivables; all right, title and interest of the Seller in and to the Purchase Agreement and the Yield Supplement Agreement; all right, title and interest of the Owner Trustee and the Trust pursuant to this Agreement and the Administration Agreement; certain rebates of premiums and other amounts relating to certain insurance policies and other items financed under the Receivables in effect as of the Cutoff Date; and the proceeds of any and all of the foregoing. "Owner Trustee" means the Person acting as Owner Trustee under the Trust Agreement, its successors in interest and any successor owner trustee under the Trust Agreement. "Paying Agent" shall have the meaning assigned to such term in the Indenture. "Person" means any individual, corporation, estate, partnership, joint venture, association, joint stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Pool Balance" as of the close of business on the last day of a Collection Period means the aggregate Principal Balance of the Receivables (excluding Administrative Receivables, Warranty Receivables and Defaulted Receivables) as of the close of business on such day; provided, however, that where the Pool Balance is relevant in determining whether the requisite percentage of Certificateholders or Noteholders (or relevant Class or Classes of Certificates or Notes, as the case may be) necessary to effect any consent, waiver, request or demand shall have been obtained, the Pool Balance shall be deemed to be reduced by the amount equal to the portion of the Pool Balance (before giving effect to this provision) represented by the interests evidenced by any applicable Certificate or Note registered in the name of the Seller, the Servicer or any Person actually known to a Trust Officer of the Owner Trustee or the Indenture Trustee, as the case may be, to be an Affiliate of the Seller or the Servicer, unless all of the Certificates or Notes, as the case may be, are held or beneficially owned by NMAC, NARC or any of their Affiliates. "Pool Factor" for a particular Class of Notes or Certificates on any Distribution Date means a seven-digit decimal figure indicating the principal amount of such Class of Notes or the Certificate Balance, as the case may be, as of the close of business on the last day of the related Collection Period as a fraction of the Original Pool Balance. "Prepayment" means, with respect to any Receivable, any prepayment, whether in part or in full, in respect of such Receivable. 14 19 "Principal Balance" of a Receivable, as of any date of determination, means the Amount Financed minus the sum of (i) all payments on such Receivable allocable to principal, (ii) any refunded portion of extended warranty protection plan or service contract costs, or of physical damage, credit life or disability insurance premiums included in the Amount Financed, (iii) any payment of the Administrative Purchase Payment or the Warranty Purchase Payment with respect to the Receivable allocable to principal and (iv) any Net Liquidation Proceeds allocable to principal. "Purchase Agreement" means that certain agreement, dated as of January 27, 2000, between NMAC and the Seller, relating to the purchase by the Seller from NMAC of the Receivables. "Rating Agency" means, as of any date, any of the nationally recognized statistical rating organizations that has been requested by the Seller or one of its Affiliates to rate any Class of Notes and that is rating such Class of Notes on such date. "Receivable" means any retail installment sale contract that appears on Schedule A to this Agreement (which Schedule A may be in the form of microfiche, CD, datatape or paper) and that has not been released by the Owner Trustee from the Trust. "Receivable File" means the documents specified in Section 2.02 pertaining to a particular Receivable. "Record Date" means, with respect to the Notes of any Class and each Distribution Date, the 14th day of the calendar month in which such Distribution Date occurs, and, with respect to the Certificates or if Definitive Notes, representing any Class of Notes, have been issued, the last day of the Collection Period preceding the related Distribution Date. Any amount stated "as of a Record Date" or "on a Record Date" shall give effect to (i) all applications of collections, and (ii) all distributions to any party under this Agreement, the Indenture and the Trust Agreement or to the related Obligor, as the case may be, in each case as determined as of the opening of business on the related Record Date. "Relevant Trustee" means (i) with respect to the control over or appropriate designation denoting ownership or control over any property comprising a portion of the Owner Trust Estate that either is not conveyed or pledged to the Indenture Trustee for the benefit of the Noteholders pursuant to the Granting Clause of the Indenture or that has been released from the lien of the Indenture, the Owner Trustee, and (ii) with respect to any property comprising a portion of the Trust Estate (as defined in the Indenture) that has not been released from the lien of the Indenture, the Indenture Trustee; provided, however, that with respect to any property that is under the joint or separate control of a co-trustee or separate trustee under the Trust Agreement or the Indenture, respectively, "Relevant Trustee" shall refer to either or both of the Owner Trustee and such co-trustee or separate trustee or to either or both of the Indenture Trustee and such co-trustee or separate trustee, as the case may be. "Required Deposit Rating" shall have the meaning assigned to such term in the definition of "Eligible Deposit Account." 15 20 "Required Rate" means, with respect to each Collection Period, the sum of (i) the Servicing Rate plus (ii) the Class A-4 Interest Rate. "Required Yield Supplement Amount" means, with respect to every Distribution Date, an amount equal to the lesser of (i) the aggregate amount of Yield Supplement Deposits that would become due for all future Distribution Dates under the Yield Supplement Agreement, assuming that payments on the Receivables are made on their scheduled due dates, no Receivable becomes a prepaid Receivable and a discount rate of 2.5%, and (ii) the Initial Yield Supplement Amount. "Reserve Account" means the account designated as such, established and maintained pursuant to Section 5.07. "Reserve Account Initial Deposit" means $6,282,908.87. "Schedule of Receivables" means the schedule of receivables attached as Schedule A to this Agreement, as it may be amended from time to time. "Scheduled Payment" on a Receivable means the payment required to be made by the Obligor during each Collection Period that is sufficient to amortize the related Principal Balance under the Simple Interest Method over the term of the Receivable and to provide interest at the related APR. "Securities Account Control Agreement" means the Securities Account Control Agreement dated as of January 27, 2000, among the Seller, Norwest Bank Minnesota, National Association, as Securities Intermediary thereunder and Norwest Bank Minnesota, National Association, as Indenture Trustee pursuant to which the Reserve Account and the Yield Supplement Account will be established and maintained. "Securityholders" has the meaning set forth in this Section 1.01 under the definition of "Holder." "Seller" means NARC, as the seller of the Receivables under this Agreement, and each successor to NARC (in the same capacity) pursuant to Section 6.04. "Servicer" means NMAC, as the servicer of the Receivables, and each successor to NMAC (in the same capacity) pursuant to Section 7.03 or 8.02. "Servicer Default" means an event specified in Section 8.01. "Servicer's Certificate" means a certificate completed and executed on behalf of the Servicer by the president, any executive vice president, any vice president, the treasurer, any assistant treasurer, the controller or any assistant controller of the Servicer pursuant to Section 4.08. "Servicing Rate" means 1.00% per annum. "Simple Interest Method" means the method of allocating a fixed level payment to principal and interest pursuant to which the portion of such payment that is allocated to interest is 16 21 equal to the product of the fixed rate of interest multiplied by the unpaid principal balance multiplied by the quotient obtained by calculating the period of time elapsed since the preceding payment of interest was made and dividing such period of time by 365 or 366, as appropriate. "Simple Interest Receivable" means any Receivable under which the portion of a payment allocable to interest and the portion allocable to principal is determined in accordance with the Simple Interest Method. "Specified Reserve Account Balance" means with respect to any Distribution Date, an amount equal to $6,282,908.87, provided, however, that in the event that on any Distribution Date (i) the annualized average for the preceding three Collection Periods (or such smaller number of Collection Periods as have elapsed since the Cutoff Date) of the percentage equivalents of the ratios of net losses (i.e., the net balances of all Liquidated Receivables, less any Net Liquidation Proceeds with respect to such Liquidated Receivables from that or prior Collection Periods) to the Pool Balance as of the first day of each such Collection Period exceeds 3.25% or (ii) the average for the preceding three Collection Periods (or such smaller number of Collection Periods as have elapsed since the Cutoff Date) of the percentage equivalents of the ratios of the number of Receivables that are delinquent 60 days or more to the outstanding number of Receivables exceeds 2.0%, then the Specified Reserve Account Balance for such Distribution Date (and for each succeeding Distribution Date until the relevant averages have not exceeded the specified percentages in clauses (i) and (ii) above for three successive Distribution Dates) shall be a dollar amount equal to the greater of (i) $6,282,908.87 and (ii) 5% of the Outstanding Amount of the Notes and the Certificate Balance as of the preceding Distribution Date (after giving effect to payments of principal made on such Distribution Date). "Standard & Poor's" means Standard & Poor's Ratings Services, a Division of the McGraw-Hill Companies. "Successor Servicer" means any entity appointed as a successor to the Servicer pursuant to Section 8.02. "Supplemental Servicing Fee" means, with respect to any Distribution Date, all late fees, prepayment charges and other administrative fees and expenses or similar charges allowed by applicable law with respect to the Receivables received by the Servicer during the related Collection Period and any interest earned from the investment of monies in the Accounts (other than the Yield Supplement Account and the Reserve Account) during the related Collection Period. "Total Servicing Fee" means the sum of the Base Servicing Fee and the Supplemental Servicing Fee. "Trust" means the Issuer. "Trust Agreement" means Trust Agreement, dated December 21, 1999, as amended by the Amended and Restated Trust Agreement, dated as of January 27, 2000, between the Seller and the Owner Trustee. 17 22 "Trust Collection Account" shall have the meaning assigned to such term in Section 5.01(c). "Trust Estate" means all money, instruments, rights and other property that are subject or intended to be subject to the lien and security interest of the Indenture for the benefit of the Noteholders (including, without limitation, all property and interests granted to the Indenture Trustee pursuant to the Granting Clause of the Indenture), including all proceeds thereof. "Trust Officer" means, in the case of the Indenture Trustee, any officer within the Corporate Trust Office of the Indenture Trustee, including any Vice President, Assistant Vice President, Secretary, Assistant Secretary or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject and, with respect to the Owner Trustee, any officer in the Corporate Trust Administration Department of the Owner Trustee with direct responsibility for the administration of the Trust Agreement and the Basic Documents on behalf of the Owner Trustee. "UCC" means the Uniform Commercial Code as in effect in the relevant jurisdiction. "USAP" shall have the meaning assigned to such term in Section 4.10. "Warranty Purchase Payment," for any Warranty Receivable as of the last day of any Collection Period, means the sum of the Principal Balance thereof as of the beginning of such Collection Period plus interest accrued thereon through the due date for the Obligor's payment in such Collection Period, at the related APR, after giving effect to the receipt of monies collected (from whatever source other than Advances) on such Warranty Receivable, if any, during such Collection Period. "Warranty Receivable" means a Receivable purchased as of the close of business on the last day of a Collection Period by the Seller pursuant to Section 3.02. "Yield Supplement Account" means the segregated trust account established and maintained for the benefit of the Noteholders pursuant to Section 5.08(a). "Yield Supplement Agreement" means the agreement, dated as of the date of this Agreement, among the Seller, NMAC and Norwest Bank Minnesota, National Association, as Indenture Trustee, substantially in the form attached hereto as Exhibit A. "Yield Supplement Amount" means, with respect to any Distribution Date, the aggregate amount on deposit in the Yield Supplement Account after giving effect to the withdrawal therefrom of the related Yield Supplement Deposit and without regard to any amounts on deposit therein in respect of interest or investment earnings earned on the investment of amounts on deposit therein in Eligible Investments for any period. "Yield Supplement Deposit" means, with respect to any Distribution Date, the amount by which (a) the aggregate amount of interest that would have been due during the related Collection Period on all Yield Supplemented Receivables if such Yield Supplemented 18 23 Receivables bore interest at the Required Rate exceeds (b) the amount of interest accrued on such Yield Supplemented Receivables at their respective APRs and due during such Collection Period. "Yield Supplemented Receivable" means any Receivable that has an APR less than the Required Rate. SECTION 1.02 Usage of Terms. With respect to all terms in this Agreement, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to "writing" include printing, typing, lithography and other means of reproducing words in a visible form; references to agreements and other contractual instruments include all subsequent amendments, amendments and restatements and supplements thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Agreement; references to Persons include their permitted successors and assigns; references to laws include their amendments and supplements, the rules and regulations thereunder and any successors thereto; and the term "including" means "including without limitation." ARTICLE II Conveyance of Receivables SECTION 2.01 Conveyance of Receivables. (a) In consideration of the premises and the agreements, provisions and covenants herein contained and other good and valuable consideration to be delivered to the Seller hereunder, on behalf of the Issuer, the Seller does hereby sell, transfer, assign and otherwise convey to the Issuer, without recourse (but subject to the Seller's obligations in this Agreement): (i) all right, title and interest of the Seller in and to the Receivables (including all related Receivable Files) listed in Schedule A hereto and all monies due thereon or paid thereunder or in respect thereof (including proceeds of the repurchase of Receivables by the Seller pursuant to Section 3.02 or the purchase of Receivables by the Servicer pursuant to Section 4.06 or 9.01) after the Cutoff Date; (ii) the right of the Seller in the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any related property; (iii) the right of the Seller in any proceeds from claims on any physical damage, credit life, credit disability or other insurance policies covering the Financed Vehicles or the Obligors; (iv) the right of the Seller through NMAC to receive payments in respect of any Dealer Recourse with respect to the Receivables; 19 24 (v) the right of the Seller under the Purchase Agreement, the Assignment and the Yield Supplement Agreement; (vi) the right of the Seller to realize upon any property (including the right to receive future Net Liquidation Proceeds) that shall have secured a Receivable; (vii) the right of the Seller in rebates of premiums and other amounts relating to insurance policies and other items financed under the Receivables in effect as of the Cutoff Date; (viii) all other assets comprising the Owner Trust Estate; and (ix) all proceeds of the foregoing. On the Closing Date, the Seller shall deliver to, or to the order of, the Issuer all property conveyed pursuant to this Section 2.01(a), except for monies received in respect of the Receivables after the Cutoff Date and before the Closing Date which shall be deposited by NMAC (in its individual capacity or as the Servicer) into the Collection Account no later than the first Record Date after the Closing Date. Concurrently therewith and in exchange therefor, the Issuer shall deliver to, or to the order of, the Seller the Notes and the Certificates. (b) It is the intention of the Seller that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Receivables from the Seller to the Issuer and the beneficial interest in and title to the Receivables shall not be part of the Seller's estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. The Seller agrees to execute and file all filings (including filings under the UCC) necessary in any jurisdiction to provide third parties with notice of the sale of the Receivables pursuant to this Agreement and to perfect such sale under the UCC. (c) Although the parties hereto intend that the transfer and assignment contemplated by this Agreement be a sale, if such transfer and assignment is deemed to be other than a sale, the parties intend that all filings described in the foregoing paragraph shall give the Issuer a first priority perfected security interest in, to and under the Receivables, and other property conveyed hereunder and all proceeds of any of the foregoing. This Agreement shall be deemed to be the grant of a security interest from the Seller to the Issuer, and the Issuer shall have all the rights, powers and privileges of a secured party under the UCC. (d) In connection with the foregoing conveyance, the Servicer shall maintain its computer system so that, from and after the time of sale of the Receivables to the Issuer under this Agreement, the Servicer's master computer records that refer to any Receivable indicate clearly the interest of the Issuer in such Receivables and that such Receivable is owned by the Issuer and controlled by the Issuer. Indication of the Issuer's ownership of a Receivable shall be deleted from or modified on the Servicer's computer systems when, and only when, the Receivable has been paid in full, repurchased or assigned pursuant to this Agreement. (e) Ownership and control of the Receivables, as among the Issuer and the Indenture Trustee (on behalf of the Noteholders and the Certificateholders) shall be governed by the Indenture. 20 25 SECTION 2.02 Custody of Receivables Files. To assure uniform quality in servicing the Receivables and to reduce administrative costs, the Issuer, upon the execution and delivery of this Agreement, appoints the Servicer, and the Servicer accepts such appointment, to act as the agent of the Issuer as custodian of the following documents or instruments that are hereby constructively delivered to the Issuer with respect to each Receivable: (a) the original of such Receivable (or a photocopy or other image thereof that the Servicer shall keep on file in accordance with its customary procedures) fully executed by the Obligor; (b) the original credit application fully executed by the related Obligor (or a photocopy or other image thereof that the Servicer shall keep on file in accordance with its customary procedures); (c) the original certificate of title (or a photocopy or other image thereof or such documents that the Servicer shall keep on file in accordance with its customary procedures), evidencing the security interest of the Servicer in the related Financed Vehicle; and (d) any and all other documents that the Servicer shall keep on file, in accordance with its customary procedures, relating to such Receivable, the related Obligor or Financed Vehicle. SECTION 2.03 Acceptance by Issuer. The Issuer acknowledges its acceptance pursuant to this Agreement, of all right, title and interest in and to the Receivables conveyed by the Seller pursuant to this Agreement and declares and shall declare from and after the date hereof that the Issuer holds and shall hold such right, title and interest, upon the terms and conditions set forth in this Agreement. ARTICLE III The Receivables SECTION 3.01 Representations and Warranties of the Seller with Respect to the Receivables. The Seller makes the following representations and warranties as to the Receivables on which the Issuer is deemed to have relied in acquiring the Receivables. Such representations and warranties speak as of the execution and delivery of this Agreement and as of the Closing Date, but shall survive the sale, transfer and assignment of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture. (a) Characteristics of Receivables. Each Receivable (i) has been originated in the United States of America by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of such Dealer's business, has been fully and properly executed by the parties thereto, has been purchased by the Seller from NMAC pursuant to the Purchase Agreement, which in turn has purchased such Receivables from such Dealer under an existing dealer agreement with NMAC, and has been validly assigned by such Dealer to NMAC, which in turn has been validly assigned pursuant to the Purchase Agreement by NMAC to the Seller in accordance with its 21 26 terms, (ii) created a valid, subsisting and enforceable security interest in favor of NMAC in such Financed Vehicle, which security interest has been validly assigned pursuant to the Purchase Agreement by NMAC to the Seller, which in turn has been validly assigned by the Seller to the Issuer in accordance with the terms hereof, (iii) contains customary and enforceable provisions such that the rights and remedies of the holder thereof are adequate for realization against the collateral of the benefits of the security, (iv) other than the Overextended Receivables, provides for level monthly payments (provided that the payment in the first or last month in the life of the Receivable may be minimally different from the level payment) that fully amortize the Amount Financed over an original term of no greater than 60 months, and (v) provides for yield interest at the related APR. (b) Schedule of Receivables. The information set forth in Schedule A to this Agreement was true and correct in all material respects as of the opening of business on the Cutoff Date; the Receivables were selected at random from NMAC's retail installment sale contracts (other than contracts originated in Alabama, Hawaii or Maryland) meeting the criteria of the Trust set forth in this Agreement; and no selection procedures believed to be adverse to the Securityholders were utilized in selecting the Receivables. (c) Compliance with Law. Each Receivable and the sale of the Financed Vehicle complied at the time it was originated or made and at the execution of this Agreement complies in all material respects with all requirements of applicable federal, state and local laws, and regulations thereunder, including usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Soldiers and Sailors Civil Relief Act of 1940, the Federal Reserve Board's Regulations B and Z, and state adaptations of the National Consumer Credit Protection Act and of the Uniform Consumer Credit Code, state "Lemon Laws" designed to prevent fraud in the sale of automobiles and other consumer credit laws and equal credit opportunity and disclosure laws. (d) Binding Obligation. Each Receivable represents the genuine, legal, valid and binding payment obligation in writing of the Obligor, enforceable by the holder thereof in accordance with its terms subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equitable principles. (e) Security Interest in Financed Vehicle. (i) Immediately prior to the sale, assignment and transfer thereof to the Issuer, each Receivable was secured by a validly perfected first priority security interest in the Financed Vehicle in favor of NMAC as secured party or all necessary and appropriate actions shall have been commenced that would result in the valid perfection of a first priority security interest in the Financed Vehicle in favor of NMAC as secured party, and (ii) as of the Cutoff Date, according to the records of NMAC, no Financed Vehicle has been repossessed. (f) Receivables in Force. No Receivable has been satisfied, subordinated or rescinded, nor has any Financed Vehicle been released from the lien granted by the related Receivable in whole or in part. 22 27 (g) No Waiver. No provision of a Receivable has been waived in a manner that is prohibited by the provisions of Section 4.01 or that would cause such Receivable to fail to meet all of the other requirements and warranties made by the Seller herein with respect thereto. (h) No Defenses. No Receivable is subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and the operation of any of the terms of any Receivable, or the exercise of any right thereunder, will not render such Receivable unenforceable in whole or in part or subject such Receivable to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto. (i) No Liens. To the Seller's knowledge, no liens have been filed for work, labor or materials relating to a Financed Vehicle that shall be liens prior to, or equal or coordinate with, the security interest in the Financed Vehicle granted by the Receivable. (j) No Default. Except for payment defaults continuing for a period of not more than 29 days as of the Cutoff Date, no default, breach, violation or event permitting acceleration under the terms of any Receivable has occurred; and no continuing condition that with notice or the lapse of time would constitute a default, breach, violation or event permitting acceleration under the terms of any Receivable has arisen (other than deferrals and waivers of late payment charges or fees permitted hereunder). (k) Insurance. NMAC, in accordance with its customary procedures, has determined at the time of origination of each Receivable that the related Obligor has agreed to obtain physical damage insurance covering the Financed Vehicle and the Obligor is required under the terms of the related Receivable to maintain such insurance. (l) Title. It is the intention of the Seller that the transfer and assignment herein contemplated constitute a sale of the Receivables from the Seller to the Trust and that the beneficial interest in and title to the Receivables not be part of the Seller's estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. Immediately prior to the transfer and assignment herein contemplated, the Seller had good and marketable title to each Receivable free and clear of all Liens, and immediately upon the transfer thereof, the Issuer, for the benefit of the Noteholders and the Certificateholders, shall have good and marketable title to each Receivable, free and clear of all Liens and rights of others. Each Receivable File contains the original certificate of title (or a photocopy or image thereof) or evidence that an application for a certificate of title has been filed. (m) Lawful Assignment. No Receivable has been originated in, or shall be subject to the laws of, any jurisdiction under which the sale, transfer and assignment of such Receivable under this Agreement are unlawful, void or voidable. (n) All Filings Made. All filings (including, without limitation, UCC filings) necessary in any jurisdiction to give the Relevant Trustee a first priority perfected ownership interest in the Receivables have been made or have been delivered in form suitable for filing to the Relevant Trustee. 23 28 (o) Chattel Paper. Each Receivable constitutes "chattel paper," as such term is defined in the UCC. (p) Simple Interest Receivables. All of the Receivables are Simple Interest Receivables. (q) One Original. There is only one original executed copy of each Receivable. (r) No Amendments. No Receivable has been amended such that the amount of the Obligor's Scheduled Payments has been increased. (s) APR. The APR of each Receivable equals or exceeds 5.25%. (t) Maturity. As of the Cutoff Date, each Receivable had a remaining term to maturity of not less than 5 months and not greater than 59 months. (u) Balance. Each Receivable had an original Principal Balance of not more than $49,090.33 and, as of the Cutoff Date, had a principal balance of not less than $2,000.36 and not more than $44,807.66. (v) Delinquency. No Receivable was more than 29 days past due as of the Cutoff Date, and no Receivable has been extended by more than two months. (w) Bankruptcy. No Obligor was the subject of a bankruptcy proceeding (according to the records of NMAC) as of the Cutoff Date. (x) Transfer. Each Receivable prohibits the sale or transfer of the Financed Vehicle without the consent of NMAC. (y) New, Near-New and Used Vehicles. Each Financed Vehicle was a new, near-new or used automobile or light-duty truck at the time the related Obligor executed the retail installment sale contract. (z) Origination. Each Receivable has an origination date on or after July 3, 1995. (aa) Location of Receivable Files. The Receivable Files shall be kept at one or more of the locations listed in Schedule B hereto. (bb) Forced-Placed Insurance Premiums. No contract relating to any Receivable has had forced-placed insurance premiums added to the amount financed. (cc) No Fraud or Misrepresentation. To the knowledge of the Seller, no Receivable was originated by a Dealer and sold by such Dealer to the Seller with any conduct constituting fraud or misrepresentation on the part of such Dealer. (dd) No Further Amounts Owed on the Receivables. No further amounts are owed by the Seller to any Obligor under the Receivables. 24 29 SECTION 3.02 Repurchase upon Breach. The Seller, the Servicer or the Issuer, as the case may be, shall inform the other parties to this Agreement and the Indenture Trustee promptly, in writing, upon the discovery of any breach of the Seller's representations and warranties pursuant to Section 3.01 that materially and adversely affects the interests of the Securityholders in any Receivable. Unless the breach shall have been cured by the last day of the second Collection Period following such discovery (or, at the Seller's election, the last day of the first Collection Period following such discovery), the Seller shall be obligated (whether or not such breach was known to the Seller on the Closing Date), and the Issuer shall enforce the obligation of the Seller under this Agreement and, if necessary, the Seller shall enforce the obligation of NMAC under the Purchase Agreement, to repurchase any Receivable the Securityholders' interest in which was materially and adversely affected by the breach as of such last day. A breach of the representation in Section 3.01(a)(iv), (t) or (u) shall be deemed to affect materially and adversely the related Receivable. In consideration of the purchase of the Receivables, the Seller shall remit the Warranty Purchase Payment in the manner specified in Section 5.05. For purposes of this Section 3.02, the Warranty Purchase Payment of a Receivable that is not consistent with the Seller's warranty pursuant to Section 3.01(a)(iv) shall include such additional amount as shall be necessary to provide the full amount of interest as contemplated therein to the date of repurchase. The sole remedy of the Trust, the Indenture Trustee (by operation of the assignment of the Issuer's rights hereunder pursuant to the Indenture) or any Securityholder with respect to a breach of the Seller's representations and warranties pursuant to Section 3.01 shall be to require the Seller to repurchase Receivables pursuant to this Section and to enforce the obligation of NMAC to the Seller to repurchase such Receivables pursuant to the Purchase Agreement. In addition, the Seller, the Servicer and the Issuer hereby agree to treat the Overextended Receivables as if a breach had occurred with respect to such Overextended Receivables. The Seller hereby agrees to repurchase the Overextended Receivables pursuant to the provisions of the foregoing paragraph and to (i) enforce the obligation of NMAC under the Purchase Agreement to repurchase the Overextended Receivables and (ii) remit the Warranty Purchase Payment with respect to such Overextended Receivables pursuant to Section 5.05 no later than the Business Day immediately preceding the first Distribution Date after the Closing Date. SECTION 3.03 Duties of Servicer as Custodian. (a) Safekeeping. The Servicer shall hold the Receivable Files as custodian for the benefit of the Issuer and maintain such accurate and complete accounts, records and computer systems pertaining to each Receivable File as shall enable the Issuer to comply with this Agreement. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to the receivable files relating to all comparable automotive receivables that the Servicer services for itself or others. In accordance with its customary practices with respect to its retail installment sale contracts, the Servicer shall conduct, or cause to be conducted, periodic audits of the Receivable Files held by it under this Agreement and of the related accounts, records and computer systems, in such a manner as shall enable the Issuer, the Owner Trustee or the Indenture Trustee to verify the accuracy of the Servicer's record keeping. The Servicer shall promptly report to the Issuer and the Indenture Trustee any material failure on its part to hold the Receivable Files and 25 30 maintain its accounts, records and computer systems as herein provided in all material respects and shall promptly take appropriate action to remedy any such material failure. Nothing herein shall be deemed to require an initial review or any periodic review by the Issuer, the Owner Trustee or the Indenture Trustee of the Receivable Files. (b) Maintenance of and Access to Records. The Servicer shall maintain each Receivable File at one of its offices specified in Schedule B or at such other office as shall be specified to the Owner Trustee and the Indenture Trustee by written notice from the Servicer not later than 90 days after any change in location. The Servicer shall make available to the Owner Trustee and the Indenture Trustee or their respective duly authorized representatives, attorneys or auditors the Receivable Files and the related accounts, records and computer systems maintained by the Servicer at such times during normal business hours as the Owner Trustee or the Indenture Trustee shall instruct. The Servicer shall permit the Owner Trustee, the Indenture Trustee and their respective agents at any time during normal business hours upon reasonable prior notice to inspect, audit and make copies of and abstracts from the Servicer's records regarding any Receivable. (c) Release of Documents. Upon the occurrence and during the continuation of a Servicer Default or to the extent necessary for the Indenture Trustee to comply with its obligations under this Agreement, the Servicer shall, upon instruction from the Indenture Trustee, release any Receivable File to the Indenture Trustee, the Indenture Trustee's agent or the Indenture Trustee's designee, as the case may be, at such place or places as the Indenture Trustee may designate, as soon as practicable. SECTION 3.04 Instructions; Authority To Act. The Servicer shall be deemed to have received proper instructions with respect to the Receivable Files upon its receipt of written instructions signed by a Trust Officer of the Owner Trustee or the Indenture Trustee. SECTION 3.05 Custodian's Indemnification. The Servicer, as custodian, shall indemnify the Issuer, the Owner Trustee and the Indenture Trustee for any and all liabilities, obligations, losses, compensatory damages, payments, costs or expenses of any kind whatsoever that may be imposed on, incurred by or asserted against any of them as the result of any improper act or omission in any way relating to the maintenance and custody by the Servicer as custodian of the Receivable Files; provided, however, that the Servicer shall not be liable to the Owner Trustee for any portion of any such amount resulting from the willful misfeasance, bad faith or negligence of the Owner Trustee, and the Servicer shall not be liable to the Indenture Trustee for any portion of any such amount resulting from the willful misfeasance, bad faith or negligence of the Indenture Trustee. SECTION 3.06 Effective Period and Termination. The Servicer's appointment as custodian shall become effective as of the Cutoff Date, and shall continue in full force and effect until terminated pursuant to this Section. If NMAC shall resign as Servicer in accordance with the provisions of this Agreement or if all of the rights and obligations of any Servicer shall have been terminated under Section 8.01, the appointment of NMAC as custodian may be terminated by the Indenture Trustee or by the Holders of Notes evidencing not less than 25% of the Outstanding Amount of the Notes (but excluding for purposes of such calculation and action all Notes held or beneficially owned by NMAC, NARC or any of their Affiliates unless all of the 26 31 Notes are held or beneficially owned by NMAC, NARC or any of their Affiliates) or, with the consent of Holders of the Notes evidencing not less than 25% of the Outstanding Amount of the Notes, by the Owner Trustee or by the Certificateholders evidencing not less than 25% of the Certificate Balance (but excluding for purposes of such calculation and action all Certificates held or beneficially owned by NMAC, NARC or any of their Affiliates unless all of the Certificates are held or beneficially owned by NMAC, NARC or any of their Affiliates), in the same manner as the Indenture Trustee or such Holders may terminate the rights and obligations of the Servicer under Section 8.01. The Indenture Trustee or, with the consent of the Indenture Trustee, the Issuer may terminate the Servicer's appointment as custodian, with cause, at any time upon written notification to the Servicer, and without cause upon 30 days' prior written notification to the Servicer. As soon as practicable after any termination of such appointment, the Servicer shall deliver the Receivable Files and the related accounts and records maintained by the Servicer to the Relevant Trustee or the agent thereof at such place or places as the Relevant Trustee may reasonably designate. ARTICLE IV Administration and Servicing of Receivables SECTION 4.01 Duties of Servicer. (a) The Servicer shall manage, service, administer and make collections on the Receivables with reasonable care, using that degree of skill and attention that the Servicer exercises with respect to all comparable receivables that it services for itself or others. Except with respect to Defaulted Receivables, Administrative Receivables or Warranty Receivables, the Servicer shall not change the amount of or reschedule the due date of any Scheduled Payment, change the APR of, or extend any Receivable except as provided herein or change any material term of a Receivable; provided, however, that: (1) if a default, breach, violation, delinquency or event permitting acceleration under the terms of any Receivable shall have occurred or, in the judgment of the Servicer, is imminent, the Servicer may (A) extend such Receivable for credit related reasons that would be acceptable to the Servicer with respect to comparable new, near-new or used automobile or light-duty truck receivables that it services for itself, but only if (i) the final scheduled payment date of such Receivable as extended would not be later than the last day of the Collection Period preceding the Final Scheduled Distribution Date for the Class A-4 Notes, and (ii) the rescheduling or extension would not modify the terms of such Receivable in a manner which would constitute a cancellation of such Receivable and the creation of a new receivable for federal income tax purposes; or (B) reduce an Obligor's monthly payment amount in the event of a prepayment resulting from refunds of credit life and disability insurance premiums and service contracts and make similar adjustments in an Obligor's payment terms to the extent required by law; (2) if at the end of the scheduled term of any Receivable, the outstanding principal amount thereof is such that the final payment to be made by the related Obligor is larger than the regularly scheduled payment of principal and interest made by such 27 32 Obligor, the Servicer may permit such Obligor to pay such remaining principal amount in more than one payment of principal and interest, provided that the last such payment shall be due on or prior to the last day of the Collection Period preceding the Final Scheduled Distribution Date for the Class A-4 Notes; and (3) the Servicer may in its discretion waive any late payment charge or any other fees that may be collected in the ordinary course of servicing a Receivable. (b) The Servicer's duties shall include collection and posting of all payments, responding to inquiries of Obligors on the Receivables, investigating delinquencies, sending remittance advises to Obligors, reporting tax information to Obligors, accounting for collections, furnishing monthly and annual statements to the Owner Trustee and the Indenture Trustee with respect to distributions and making Advances pursuant to Section 5.04. (c) Without limiting the generality of the foregoing, the Servicer is authorized and empowered to execute and deliver, on behalf of itself, the Trust, the Owner Trustee, the Indenture Trustee and the Securityholders or any of them, any and all instruments of satisfaction or cancellation, or partial or full release or discharge, and all other comparable instruments, with respect to the Receivables or to the Financed Vehicles securing the Receivables. If the Servicer shall commence a legal proceeding to enforce a Receivable, the Issuer (in the case of a Receivable other than an Administrative Receivable or a Warranty Receivable) shall thereupon be deemed to have automatically assigned, solely for the purpose of collection, such Receivable to the Servicer. If in any enforcement suit or legal proceeding it shall be held that the Servicer may not enforce a Receivable on the ground that it shall not be a real party in interest or a holder entitled to enforce such Receivable, the Issuer shall, at the Servicer's expense and direction, take steps to enforce the Receivable, including bringing suit in its name or the name of the Indenture Trustee or the Securityholders. The Issuer shall furnish the Servicer with any powers of attorney and other documents reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder. (d) The Servicer, at its expense, shall obtain on behalf of the Trust all licenses, including those required under the Pennsylvania Motor Vehicle Sales Finance Act, required by the laws of any jurisdiction to be held by the Trust in connection with ownership of the Receivables, and shall make all filings and pay all fees as may be required in connection therewith during the term hereof. Nothing in the foregoing or in any other section of this Agreement shall be construed to prevent the Servicer from implementing new programs, whether on an intermediate, pilot or permanent basis, or on a regional or nationwide basis, or from modifying its standards, policies and procedures as long as, in each case, the Servicer does or would implement such programs or modify its standards, policies and procedures in respect of comparable assets serviced for itself in the ordinary course of business. SECTION 4.02 Collection of Receivable Payments. The Servicer shall make reasonable efforts to collect all payments called for under the terms and provisions of the Receivables as and when the same shall become due and shall follow such collection procedures as it follows with respect to all comparable receivables that it services for itself or others. 28 33 SECTION 4.03 Realization upon Receivables. On behalf of the Trust, the Servicer shall use commercially reasonable efforts, consistent with its customary servicing procedures, to repossess or otherwise convert the ownership of the Financed Vehicle securing any Receivable as to which the Servicer shall have determined eventual payment in full is unlikely. The Servicer shall follow such customary and usual practices and procedures as it shall deem necessary or advisable in its servicing of comparable receivables, which may include reasonable efforts to realize upon any Dealer Recourse and selling the related Financed Vehicle at public or private sale. The foregoing shall be subject to the provision that, in any case in which the Financed Vehicle shall have suffered damage, the Servicer shall not expend funds in connection with the repair or the repossession of such Financed Vehicle unless it shall determine in its discretion that such repair and/or repossession will increase the Net Liquidation Proceeds. SECTION 4.04 Maintenance of Security Interests in Financed Vehicles. The Servicer shall, in accordance with its customary servicing procedures, take such steps as are necessary to maintain perfection of the security interest created by each Receivable in the related Financed Vehicle. The Servicer is hereby authorized to take such steps as are necessary to re-perfect such security interest on behalf of the Issuer and the Indenture Trustee in the event of the relocation of a Financed Vehicle or for any other reason. If the assignment of a Receivable to the Trust is insufficient, without a notation on the related Financed Vehicle's certificate of title, to grant to the Trust a first priority perfected security interest in the related Financed Vehicle, the Servicer hereby agrees to serve as the agent of the Trust for the purpose of perfecting the security interest of the Trust in such Financed Vehicle and agrees that the Servicer's listing as the secured party on the certificate of title is in this capacity as agent of the Trust. SECTION 4.05 Covenants of Servicer. (a) The Servicer shall not release the Financed Vehicle securing any Receivable from the security interest granted by such Receivable in whole or in part except in the event of payment in full by or on behalf of the Obligor thereunder or repossession. (b) The Servicer shall not do anything to impair the rights of the Securityholders in the Receivables. (c) If the Servicer shall determine not to make an Advance related to delinquency or non-payment of any Receivable pursuant to Section 5.04 because it determines that such Advance would not be recoverable from subsequent collections on such Receivable, such Receivable shall be designated by the Servicer to be a Defaulted Receivable, provided that such Receivable otherwise meets the definition of a Defaulted Receivable. SECTION 4.06 Purchase of Receivables upon Breach. The Servicer or the Issuer shall inform the other party and the Indenture Trustee promptly, in writing, upon the discovery of any breach by the Servicer of its obligations under the second sentence of Section 4.01 or under Section 4.02, 4.04 or 4.05 that would materially and adversely affect any Receivable. Unless the breach shall have been cured by the last day of the second Collection Period following such discovery (or, at the Servicer's election, the last day of the first Collection Period following discovery), the Servicer shall (whether or not such breach was known to the Servicer on the Closing Date) purchase any Receivable materially and adversely affected by such breach as of 29 34 such last day. In consideration of such Receivable, the Servicer shall remit the Administrative Purchase Payment (as reduced by any Outstanding Advances with respect to such Receivable) in the manner specified in Section 5.05. For the purposes of this Section 4.06, the Administrative Purchase Payment shall consist in part of a release by the Servicer of all rights of reimbursement with respect to Outstanding Advances with respect to the purchased Receivable. The sole remedy of the Indenture Trustee, the Owner Trustee, the Trust or the Securityholders against the Servicer with respect to a breach by the Servicer of its obligations under the second sentence of Section 4.01 or under Section 4.02, 4.04 or 4.05 shall be to require the Servicer to purchase Receivables pursuant to this Section 4.06. SECTION 4.07 Servicing Fee and Expenses. As compensation for the performance of its obligations hereunder, the Servicer shall be entitled to receive on each Distribution Date the Total Servicing Fee. Except to the extent otherwise provided herein, the Servicer shall be required to pay all expenses incurred by it in connection with its activities under this Agreement (including fees and disbursements of the Indenture Trustee and independent accountants, taxes imposed on the Servicer, expenses incurred in connection with distributions and reports to Securityholders and all other fees and expenses not expressly stated under this Agreement to be for the account of the Securityholders). SECTION 4.08 Servicer's Certificate. (a) On or before the tenth day of each month (or, if such tenth day is not a Business Day, then on the next succeeding Business Day), the Servicer shall deliver to the Owner Trustee, each Paying Agent, and the Indenture Trustee, with a copy to each Rating Agency, a Servicer's Certificate containing all information necessary to make the distributions pursuant to Sections 5.06, 5.07 and 5.08 (including the amount of the aggregate collections on the Receivables, the aggregate Advances to be made by the Servicer, if any, the aggregate Administrative Purchase Payments for any Administrative Receivables to be purchased by the Servicer, and the aggregate Warranty Purchase Payments for any Warranty Receivables to be purchased by the Seller) for the Collection Period preceding the date of such Servicer's Certificate, all information necessary for the Owner Trustee to send statements to the Certificateholders and the Indenture Trustee to send statements to the Noteholders pursuant to the Trust Agreement or Indenture, as the case may be. Each of the Owner Trustee and the Indenture Trustee may conclusively rely on the information in any Servicer's Certificate and shall have no duty to confirm or verify the contents thereof. (b) Concurrently with delivery of the Servicer's Certificate in each month, the Servicer shall deliver to the underwriters of the Notes the Note Factor for each Class of Notes, the Certificate Factor, and the Pool Factor for each Class of Notes and for the Certificates, in each case as of the close of business on the Distribution Date occurring in such month. SECTION 4.09 Annual Statement as to Compliance; Notice of Default. (a) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee and each of the Rating Agencies, on or before June 30 of each year, beginning June 30, 2000, an Officers' Certificate with respect to the prior twelve months ended on March 31 of such calendar year (or with respect to the initial Officer's Certificate, the period from the date of the initial issuance of the Securities to March 31, 2000), stating that that 1. a review of the activities of the Servicer during the 30 35 preceding 12-month (or shorter) period and of its performance under this Agreement has been made under such officer's supervision and 1. to the best of such officer's knowledge, based on such review, the Servicer has fulfilled all its obligations under this Agreement throughout such twelve-month (or shorter) period, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer and the nature and status thereof. A copy of such Officer's Certificate may be obtained by any Certificateholder or Noteholder by a request in writing to the Owner Trustee or the Indenture Trustee addressed as set forth in Section 10.03 hereof. (b) The Servicer shall deliver to the Owner Trustee, the Indenture Trustee and each Rating Agency, promptly after having obtained knowledge thereof, but in no event later than five Business Days thereafter, written notice in an Officer's Certificate of any event that with the giving of notice or lapse of time, or both, would become a Servicer Default under Section 8.01. The Seller shall deliver to the Owner Trustee, the Indenture Trustee and to each such Rating Agency, promptly after having obtained knowledge thereof, but in no event later than five Business Days thereafter, written notice in an Officer's Certificate of any event that with the giving of notice or lapse of time, or both, would become an Event of Default under Section 8.01(a)(ii) or would result in any lowering of the ratings described in Section 5.02(a)(ii)(A). SECTION 4.10 Annual Independent Certified Public Accountants' Report. The Servicer shall cause a firm of independent certified public accountants, who may also render other services to the Servicer, the Seller or their Affiliates, to deliver to the Owner Trustee, the Indenture Trustee and each of the Rating Agencies, on or before June 30 of each year, beginning June 30, 2000 with respect to the prior 12 months ended on March 31 of such year (or with respect to the initial reports, the period from the date of the initial issuance of the Securities to March 31, 2000) the following reports: (a) a report that such firm has audited the consolidated financial statements of the Servicer in accordance with generally accepted auditing standards, that such firm is independent of the Servicer within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants ("AICPA"), and expressing such firm's opinion thereon; and (b) a report indicating that such firm has examined, in accordance with standards established by AICPA, management's assertion about the Servicer's compliance with the minimum servicing standards identified in the Mortgage Bankers Association of America's Uniform Single Attestation Program for Mortgage Bankers ("USAP") as such standards relate to automobile and light-duty truck loans serviced for others, and expressing such firm's opinion on such management assertion (the "Annual USAP Report"). Upon the request of any Certificateholder or Note Owner, the Owner Trustee or the Indenture Trustee, as the case may be, shall promptly provide such Certificateholder or Note Owner with a copy of such Annual USAP Report. For all purposes of this Agreement, the Owner Trustee and the Indenture Trustee may rely on the representation of any Person that it is a Certificateholder or a Note Owner, as the case may be. SECTION 4.11 Access to Certain Documentation and Information Regarding Receivables. The Servicer shall provide to the Owner Trustee and the Indenture Trustee access to the Receivable Files in such cases where the Securityholders shall be required by applicable statutes or regulations to review such documentation. In each case, such access shall be afforded without charge, but only upon reasonable request and during the normal business hours at the respective offices of the Servicer. Nothing in this Section shall affect the obligation of the 31 36 Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of the Servicer to provide access to information as a result of such obligation shall not constitute a breach of this Section. SECTION 4.12 Appointment of Subservicer. So long as NMAC acts as the Servicer, the Servicer may at any time without notice or consent subcontract substantially all its duties under this Agreement to any corporation more than 50% of the voting stock of which is owned, directly or indirectly, by Nissan. The Servicer may at any time perform specific duties as servicer under this Agreement through other subcontractors; provided, however, that no such delegation or subcontracting shall relieve the Servicer of its responsibilities with respect to such duties as to which the Servicer shall remain primarily responsible with respect thereto. SECTION 4.13 Amendments to Schedule of Receivables. If the Servicer, during any Collection Period, assigns to a Receivable an account number that differs from the original account number identifying such Receivable on the Schedule of Receivables, the Servicer shall deliver to the Owner Trustee and the Indenture Trustee, on or before the Distribution Date relating to such Collection Period, an amendment to the Schedule of Receivables reporting the newly assigned account number, together with the old account number of each such Receivable. The first such delivery of amendments to the Schedule of Receivables shall include monthly amendments reporting account numbers appearing on the Schedule of Receivables with the new account numbers assigned to such Receivables during any prior Collection Period. SECTION 4.14 Acknowledgement by Servicer of its Obligations under the Indenture. The Servicer hereby agrees and consents to the provisions of the Indenture applicable to it (including, without limitation, Sections 8.03(a) and 8.03(b) thereof) and agrees to be bound by such provisions. ARTICLE V Distributions; Reserve Account; Statements to the Certificateholders and the Noteholders SECTION 5.01 Establishment of Accounts. (a) The Servicer, on behalf of the Owner Trustee and the Indenture Trustee, shall establish the Collection Account in the name of the Indenture Trustee for the benefit of the Securityholders. The Collection Account shall be a segregated trust account initially established with the Indenture Trustee and maintained with the Indenture Trustee as long as (i) the deposits of the Indenture Trustee have the Required Deposit Rating or (ii) the Collection Account is maintained in a segregated trust account in the trust department of the Indenture Trustee; provided, however, that all amounts held in the Collection Account shall, to the extent permitted by applicable laws, rules and regulations and as directed by the Servicer, be invested by the Indenture Trustee in Eligible Investments; otherwise, such amounts shall be maintained in cash; provided that if (x) the Servicer shall have failed to give investment directions for any funds on deposit in the Collection Account to the Indenture Trustee by 5:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and the Indenture Trustee) on any Business Day, or (y) a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to the Indenture, or (z) if the 32 37 Notes shall have been declared due and payable following an Event of Default, amounts collected or receivable from the Trust Estate are being applied in accordance with Section 5.05 of the Indenture as if there had not been such a declaration, then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in the Collection Account in one or more Eligible Investments specified in clauses (i), (iv) or (vi) of the definition of Eligible Investments. All such Eligible Investments shall mature not later than the Business Day preceding the next Distribution Date, in such manner that such amounts invested shall be available to make the required distributions on the Distribution Date. The Servicer will not direct the Indenture Trustee, and the Issuer shall cause the Servicer not, to make any investment of any funds or to sell any investment held in the Collection Account unless the security interest granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. Should the short-term unsecured debt obligations of the Indenture Trustee no longer have the Required Deposit Rating then, unless the Collection Account is maintained in segregated trust accounts in the trust department of the Indenture Trustee, the Servicer shall, with the Indenture Trustee's assistance as necessary and within ten Business Days of receipt of notice from the Indenture Trustee that the Indenture Trustee no longer has the Required Deposit Rating, cause the Collection Account (i) to be moved to segregated trust accounts in a bank or trust company, the short-term unsecured debt obligations of which shall have the Required Deposit Rating, or (ii) to be moved to the trust department of the Indenture Trustee. (b) Earnings on investment of funds in the Collection Account shall be paid to the Servicer on each Distribution Date as servicing compensation, and any losses and investment expenses shall be charged against the funds on deposit in the Collection Account. (c) Subject to the foregoing, the Servicer, on behalf of the Owner Trustee and the Indenture Trustee, shall establish and maintain the Collection Account as an Eligible Deposit Account in the name of and under the exclusive control of the Indenture Trustee, bearing a designation clearly indicating that the funds deposited therein are held for the benefit of the Securityholders. The Indenture Trustee will be obligated to transfer all amounts remaining on deposit in the Collection Account on the Distribution Date on which the Notes of all Classes have been paid in full (or substantially all of the Trust Estate is otherwise released from the lien of the Indenture) to another Eligible Deposit Account established pursuant to the Trust Agreement for the benefit of the Certificateholders (the "Trust Collection Account"), and to take all necessary or appropriate actions to transfer all of its right, title and interest in the Collection Account, all funds or investments held therein and all proceeds thereof, whether or not on behalf of the Securityholders, to the Owner Trustee for the benefit of the Certificateholders, subject to the limitations set forth in the Indenture with respect to amounts held for payment to Noteholders that do not promptly deliver a Note for payment on such Distribution Date. After the transfer to the Trust Collection Account described in the immediately preceding sentence, references in this Agreement to "Collection Account" shall be deemed to be references to the "Trust Collection Account." 33 38 (d) With respect to the Collection Account and all property held therein, the Owner Trustee agrees, by its acceptance hereof that, on the terms and conditions set forth in the Indenture, for so long as Notes of any Class remain outstanding, the Indenture Trustee shall possess all right, title and interest therein (excluding interest or investment income thereon payable to the Servicer or the Seller, as the case may be), and the Accounts shall be under the sole dominion and control of the Indenture Trustee for the benefit of the Noteholders and the Certificateholders, as the case may be, as set forth in the Indenture. The parties hereto agree that the Issuer, the Owner Trustee and the Holders of the Certificates have no right, title or interest in the Reserve Account or any amounts on deposit therein at any time. The parties hereto agree that the Servicer shall have the power, revocable by the Indenture Trustee or by the Owner Trustee with the consent of the Indenture Trustee, to instruct the Indenture Trustee to make withdrawals and payments from the Collection Account for the purpose of permitting the Servicer, Indenture Trustee or the Owner Trustee to carry out its respective duties hereunder or under the Indenture or the Trust Agreement, as the case may be. Notwithstanding the foregoing, the Servicer shall be entitled to withhold, or to be reimbursed from amounts otherwise payable into or on deposit in the Collection Account, as the case may be, amounts previously deposited in the Collection Account but later determined to have resulted from mistaken deposits or posting. SECTION 5.02 Collections. (a) Except as otherwise provided in this Agreement, the Servicer shall remit daily to the Collection Account all payments received by or on behalf of the Obligors on or in respect of the Receivables (excluding payments on the Warranty Receivables or the Administrative Receivables) and all Net Liquidation Proceeds not later than the first Business Day after receipt thereof. Notwithstanding the foregoing, for so long as (i) NMAC is the Servicer, (ii) (A) NMAC's short-term unsecured debt obligations are rated at least "P-1" by Moody's and NMAC's short-term unsecured debt obligations (or, if NMAC is the Servicer and the Servicer then has no short-term rating from Standard & Poor's, Nissan Capital of America, Inc.'s short-term unsecured debt obligations) are rated "A-1" by Standard & Poor's (so long as Moody's and Standard & Poor's are Rating Agencies), or (B) certain arrangements are made that are acceptable to the Rating Agencies, and (iii) no Event of Default or Servicer Default shall have occurred and be continuing (unless waived by the appropriate Securityholders) (collectively, the "Monthly Remittance Conditions"); the Servicer shall not be required to remit such collections to the Collection Account on the foregoing daily basis but shall be entitled to retain such collections, without segregation from its other funds, until the Business Day before each Distribution Date at which time the Servicer shall remit all such collections in respect of the related Collection Period to the Collection Account in immediately available funds. Commencing with the first day of the first Collection Period that begins at least two Business Days after the day on which any Monthly Remittance Condition ceases to be satisfied and for so long as any Monthly Remittance Condition is not satisfied, all collections then held by the Servicer shall be immediately deposited into the Collection Account and all future collections on or in respect of the Receivables (other than payments on Warranty Receivables and the Administrative Receivables) and all Net Liquidation Proceeds shall be remitted by the Servicer to the Collection Account on a daily basis not later than the first Business Day after receipt thereof. For purposes of this Article V, the phrase "payments received by or on behalf of the Obligors" shall mean payments made by Persons other than the Servicer. 34 39 (b) The Indenture Trustee or the Owner Trustee shall not be deemed to have knowledge of any event or circumstances under clause (iii) of the definition of the Monthly Remittance Condition unless the Indenture Trustee or the Owner Trustee has received notice of such event or circumstance from the Seller or the Servicer in an Officer's Certificate or from the Holders of Notes evidencing not less than 25% in principal amount of the Outstanding Amount of the Notes, or a Trust Officer of the Indenture Trustee or the Owner Trustee with knowledge hereof or familiarity herewith has actual knowledge of such event or circumstances.. (c) The Servicer shall give the Owner Trustee, the Indenture Trustee and each Rating Agency written notice of the failure of any Monthly Remittance Condition (and any subsequent curing of a failed Monthly Remittance Condition) as soon as practical after the occurrence thereof but in no event later than 10 Business Days after obtaining knowledge thereof (it being understood that if the Monthly Remittance Condition is not satisfied as of the Closing Date, no such notice shall be required in connection therewith). (d) Notwithstanding the foregoing, if a Monthly Remittance Condition is not satisfied, the Servicer may utilize an alternative remittance schedule (which may include the remittance schedule utilized by the Servicer before the Monthly Remittance Condition became unsatisfied), if the Servicer provides to the Owner Trustee and the Indenture Trustee written confirmation from each Rating Agency that such alternative remittance schedule will not result in the downgrading or withdrawal by such Rating Agency of the ratings then assigned to any Class of Notes. SECTION 5.03 Application of Collections. As of the Business Day immediately preceding the related Distribution Date, all collections for the related Collection Period with respect to each Receivable shall be applied by the Servicer as follows: (a) First, to interest accrued to date on such Receivable; (b) Second, to principal until the Principal Balance of such Receivable is brought current; (c) Third, to reduce the unpaid late charges (if any) as provided in such Receivable; and (d) Fourth, to prepay principal on such Receivable. SECTION 5.04 Advances. (a) The Servicer shall make a payment with respect to each Receivable (other than an Administrative Receivable, a Warranty Receivable or a Liquidated Receivable) (each, an "Advance") equal to the excess if any, of (x) the product of the Principal Balance of such Receivable as of the first day of the related Collection Period and one-twelfth of its APR (calculated on the basis of a 360-day year comprised of twelve 30-day months), over (y) the interest actually received by the Servicer with respect to such Receivable from the Obligor or from payments of the Administrative Purchase Payment or the Warranty Purchase Payment, as the case may be, during such Collection Period. The Servicer will not be obligated to make an Advance in respect of a Receivable (other than an Advance in respect of an interest shortfall 35 40 arising from the Prepayment of a Receivable) to the extent that the Servicer, in its sole discretion, shall determine that the Advance constitutes a Nonrecoverable Advance. With respect to each Receivable, the Advance shall increase the Outstanding Advances. No Advances will be made with respect to the Principal Balance of the Receivables. The Servicer shall deposit all such Advances into the Collection Account in immediately available funds no later than 5:00 p.m., New York City time, on the Business Day immediately preceding the related Distribution Date. To the extent that the amount set forth in clause (y) above with respect to a Receivable is greater than the amount set forth in clause (x) above with respect thereto, such amount shall be distributed to the Servicer pursuant to Section 5.06; provided, however, that, notwithstanding anything else herein, the Servicer shall not be reimbursed for any amounts representing an Advance, or any portion thereof, made in respect of an interest shortfall arising from the Prepayment of a Receivable. (b) The Servicer shall be entitled to reimbursement for Outstanding Advances, without interest, with respect to a Receivable from the following sources with respect to such Receivable pursuant to Section 5.06(c)(i) or Section 5.06(d)(i): (i) subsequent payments made by or on behalf of the related Obligor, (ii) Net Liquidation Proceeds, and (iii) the Warranty Purchase Payments. (c) To the extent that the Servicer has determined that any Outstanding Advance is a Nonrecoverable Advance, the Servicer may provide to the Owner Trustee and the Indenture Trustee an Officer's Certificate setting forth the amount of such Nonrecoverable Advance, and on the related Distribution Date, the Relevant Trustee shall remit to the Servicer from funds on deposit in the Collection Account an amount equal to the amount of such Nonrecoverable Advance pursuant to Section 5.06(c)(ii) or Section 5.06(d)(ii). (d) For so long as the Monthly Remittance Conditions are satisfied, in lieu of causing the Servicer first to deposit and then the Relevant Trustee to remit to the Servicer the amounts described in clauses (i) through (iii) in Section 5.04(b) reimbursable in respect on Outstanding Advances, or the amounts described in Section 5.04(c) applicable in respect of Nonrecoverable Advances, the Servicer may deduct such amounts from deposits otherwise to be made into the Collection Account. (e) Notwithstanding the provisions of Section 5.04(a), no Successor Servicer, including the Indenture Trustee, shall be obligated to make Advances unless it has expressly agreed to do so in writing. SECTION 5.05 Additional Deposits. (a) The following additional deposits shall be made to the Collection Account: (i) the Seller shall remit the aggregate Warranty Purchase Payments with respect to Warranty Receivables pursuant to Section 3.02; (ii) the Servicer shall remit (A) the aggregate Advances pursuant to Section 5.04(a), (B) the aggregate Administrative Purchase Payments with respect to Administrative Receivables pursuant to Section 4.06, and (C) the amount required upon any optional purchase of the Receivables by the Servicer, or any Successor Servicer, pursuant to Section 9.01; and (iii) the Indenture Trustee shall transfer (A) the Yield Supplement Deposit from the Yield Supplement Account to the Collection Account pursuant to Section 5.08, plus reinvestment income on the Yield Supplement Account (in assuring the availability therein of the related Available Interest) and (B) the amounts described 36 41 in Sections 5.06 and 5.07 from the Reserve Account to the Collection Account pursuant to Section 5.07. (b) All deposits required to be made pursuant to this Section 5.05 by the Seller or the Servicer, as the case may be, may be made in the form of a single deposit and shall be made in immediately available funds, no later than 5:00 P.M., New York City time, on the Business Day immediately preceding the related Distribution Date. At the direction of the Servicer, the Relevant Trustee shall invest such amounts in Eligible Investments maturing not later than 3:00 P.M. New York City Time, on the related Distribution Date. SECTION 5.06 Payments and Distributions. (a) The rights of the Certificateholders to receive distributions in respect of the Certificates shall be and hereby are subordinated to the rights of the Noteholders to receive distributions in respect of the Notes to the extent provided in this Section 5.06. (b) On each Determination Date, the Servicer shall calculate the Available Interest, the Available Principal, the Allocable Principal, the Yield Supplement Deposit, the Noteholders' Distributable Amount, the Certificateholders' Distributable Amount, the amount to be distributed to Noteholders of each Class and to Certificateholders pursuant to Section 5.06(c) or (d), and all other distributions, deposits and withdrawals to be made on the related Distribution Date. (c) Subject to Section 5.06(d), on each Distribution Date, the Relevant Trustee shall make the following payments and distributions from the Collection Account (after payment of the Supplemental Servicing Fee to the extent not previously retained by the Servicer) in the following order of priority and in the amounts set forth in the Servicer's Certificate for such Distribution Date; provided, however, that such payments and distributions shall be made only from those funds deposited in the Collection Account for the related Collection Period: (i) to the Servicer, from amounts on deposit in the Collection Account, any payments in respect of Advances required to be reimbursed and to the extent set forth in Section 5.04(b); (ii) to the Servicer, from amounts on deposit in the Collection Account, any payments in respect of Nonrecoverable Advances required to be reimbursed and to the extent set forth in Section 5.04(c); (iii) to the Servicer, from Available Amounts, the Base Servicing Fee (including any unpaid Base Servicing Fees from one or more prior Collection Periods); (iv) on a pro rata basis (based on the amounts distributable pursuant to this clause to each such Class), to the Class A-1 Noteholders, the Noteholders' Interest Distributable Amount for such Class, to the Class A-2 Noteholders, the Noteholders' Interest Distributable Amount for such Class, to the Class A-3 Noteholders, the Noteholders' Interest Distributable Amount for such Class, and to the Class A-4 Noteholders, the Noteholders' Interest Distributable Amount for such Class; such amounts to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clause (iii) above); 37 42 (v) to the Class A-1 Noteholders, an amount equal to the Noteholders' Principal Distributable Amount, such amount to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clauses (iii) and (iv) above), until the principal amount of the Class A-1 Notes is reduced to zero; (vi) on the Distribution Date on which the Class A-1 Notes have been paid in full and on each Distribution Date thereafter, to the Class A-2 Noteholders, an amount equal to the Noteholders' Principal Distributable Amount, such amount to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clauses (iii) through (v) above), until the principal amount of the Class A-2 Notes is reduced to zero; (vii) on the Distribution Date on which the Class A-2 Notes have been paid in full and on each Distribution Date thereafter, to the Class A-3 Noteholders, an amount equal to the Noteholders' Principal Distributable Amount, such amount to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clauses (iii) through (vi) above), until the principal amount of the Class A-3 Notes is reduced to zero; (viii) on the Distribution Date on which the Class A-3 Notes have been paid in full and on each Distribution Date thereafter, to the Class A-4 Noteholders, an amount equal to the Noteholders' Principal Distributable Amount, such amount to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clauses (iii) through (vii) above), until the principal amount of the Class A-4 Notes is reduced to zero; (ix) to the Reserve Account, the amount, if any, necessary to cause the balance of funds therein to equal the Specified Reserve Account Balance with respect to such Distribution Date, such amounts to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clauses (iii) through (viii) above); (x) on the Distribution Date on which the Notes have been paid in full and on each Distribution Date thereafter, to the Certificateholders, an amount equal to the Certificateholders' Principal Distributable Amount, such amount to be paid from Available Amounts (after giving effect to the reduction in Available Amounts described in clauses (iii) through (ix) above); and (xi) any Available Amounts remaining after giving effect to the foregoing, to the Seller. (d) Notwithstanding the provisions of Section 5.06(c), after the occurrence of an Event of Default that results in the acceleration of any Notes, on each Distribution Date, the Relevant Trustee shall make the following payments and distributions from the Collection Account (after payment of the Supplemental Servicing Fee to the extent not previously retained by the Servicer) in the following order of priority and in the amounts set forth in the Servicer's Certificate for such Distribution Date; provided, however, that such payments and distributions 38 43 shall be made only from those funds deposited in the Collection Account for the related Collection Period: (i) to the Servicer, from amounts on deposit in the Collection Account, any payments in respect of Advances required to be reimbursed and to the extent set forth in Section 5.04(b); (ii) to the Servicer, from amounts on deposit in the Collection Account, any payments in respect of Nonrecoverable Advances required to be reimbursed and to the extent set forth in Section 5.04(c); (iii) to the Servicer, from Available Amounts, the Base Servicing Fee (including any unpaid Base Servicing Fees from one or more prior Collection Periods); (iv) on a pro rata basis (based on the amounts distributable pursuant to this clause to each such Class), to the Class A-1 Noteholders, the Noteholders' Interest Distributable Amount for such Class, to the Class A-2 Noteholders, the Noteholders' Interest Distributable Amount for such Class, to the Class A-3 Noteholders, the Noteholders' Interest Distributable Amount for such Class, and to the Class A-4 Noteholders, the Noteholders' Interest Distributable Amount for such Class; such amounts to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clause (iii) above); (v) to the Class A-1 Noteholders, the Class A-2 Noteholders, the Class A-3 Noteholders and the Class A-4 Noteholders, on a pro rata basis (based on the Outstanding Amount of each Class), until the total amount paid to such Noteholders in respect of principal from the Closing Date is equal to the Original Principal Amount for such Class of Notes, such amounts to be paid from Available Amounts (after giving effect to any reduction in Available Amounts described in clauses (iii) and (iv) above); (vi) on the Distribution Date on which the Notes have been paid in full and on each Distribution Date thereafter, to the Certificateholders, an amount equal to the Certificateholders' Principal Distributable Amount, such amount to be paid from Available Amounts (after giving effect to the reduction in Available Amounts described in clauses (iii) through (v) above); and (vii) any Available Amounts remaining after giving effect to the foregoing, to the Seller. (e) For purposes of determining whether an Event of Default pursuant to Section 5.01(b) of the Indenture has occurred, the amount of principal required to be paid to the Holders of any Class of Notes on any Distribution Date is the amount available to be paid thereto pursuant to Section 5.06(c); provided, however, that (i) the Class A-1 Notes are required to be paid in full on or before the Final Scheduled Distribution Date for such Class, meaning that the Class A-1 Noteholders are entitled to have received on or before such date payments in respect of principal in an aggregate amount equal to the Original Principal Amount for such Class, together with all interest accrued thereon through such date; (ii) the Class A-2 Notes are required to be paid in full on or before the Final Scheduled Distribution Date for such Class, meaning that 39 44 the Class A-2 Noteholders are entitled to have received on or before such date payments in respect of principal in an aggregate amount equal to the Original Principal Amount for such Class, together with all interest accrued thereon through such date; (iii) the Class A-3 Notes are required to be paid in full on or before the Final Scheduled Distribution Date for such Class, meaning that the Class A-3 Noteholders are entitled to have received on or before such date payments in respect of principal in an aggregate amount equal to the Original Principal Amount for such Class, together with all interest accrued thereon through such date; and (iv) the Class A-4 Notes are required to be paid in full on or before the Final Scheduled Distribution Date for such Class, meaning that the Class A-4 Noteholders are entitled to have received on or before such date payments in respect of principal in an aggregate amount equal to the Original Principal Amount for such Class, together with all interest accrued thereon through such date. (f) Except with respect to the final payment upon retirement of a Note or Certificate, the Servicer shall on each Distribution Date instruct the Relevant Trustee to pay or distribute to each Securityholder of record on the related Record Date by check mailed to such Securityholder at the address of such Holder appearing in the Certificate Register or Note Register, as the case may be (or, if DTC, its nominee or a Clearing Agency is the relevant Holder, by wire transfer of immediately available funds or pursuant to other arrangements), the amount to be paid or distributed to such Securityholder pursuant to such Holder's Note or Certificate. With respect to the final payment upon retirement of a Note or Certificate, the Servicer shall on the relevant final Distribution Date instruct the Relevant Trustee to pay or distribute the amounts due thereon only upon delivery for cancellation of the certificate representing such Note or Certificate in accordance with the Indenture or the Trust Agreement, as the case may be. SECTION 5.07 Reserve Account. (a) In order to assure that certain amounts will be available to make required payments to Noteholders, the Seller will, pursuant to the Securities Account Control Agreement, establish and maintain with the Securities Intermediary a segregated trust account (the "Reserve Account") in the name of the Indenture Trustee which will include the money and other property deposited and held therein pursuant to Sections 5.06(c), 5.06(d) and this Section 5.07. On or prior to the Closing Date, the Seller shall deposit an amount equal to the Reserve Account Initial Deposit into the Reserve Account. As and to the extent set forth in Section 5.06(c) or (d), the Relevant Trustee will deposit Available Amounts into the Reserve Account on each Distribution Date as provided in the Servicer's Certificate, until the amount on deposit therein equals the Specified Reserve Account Balance. On each Distribution Date, to the extent that amounts in the Collection Account and/or Available Amounts, as the case may be, are insufficient to fully fund the payments and distributions described in clauses (i) through (viii) of Section 5.06(c) or clauses (i) through (v) of Section 5.06(d), the Relevant Trustee will withdraw amounts then on deposit in the Reserve Account, up to the amounts of any such deficiencies, and deposit such amounts into the Collection Account for application pursuant to such clauses. On each Distribution Date, as provided in the Servicer's Certificate, the Relevant Trustee will release to the Seller any amounts remaining on deposit in the Reserve Account in excess of the Specified Reserve Account Balance. Upon the payment in full of the Notes under the Indenture, as directed in writing by the Servicer, the Relevant Trustee will release to the Seller any amounts remaining on deposit in the Reserve Account, and all rights to the Reserve Account and all other collateral registered or held therein shall revert to the Seller in accordance with the Securities Account Control Agreement. 40 45 Upon any such distribution to the Seller, the Issuer, Owner Trustee, Certificateholders, Indenture Trustee and Noteholders will have no further rights in, or claims to, such amounts. (b) All amounts held in the Reserve Account shall be invested by the Relevant Trustee, as directed in writing by the Servicer, in Eligible Investments; provided that if (x) the Servicer shall have failed to give investment directions for any funds on deposit in the Reserve Account to the Indenture Trustee by 5:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and the Indenture Trustee) on any Business Day, or (y) a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to the Indenture, or (z) if the Notes shall have been declared due and payable following an Event of Default, amounts collected or receivable from the Trust Estate are being applied in accordance with Section 5.05 of the Indenture as if there had not been such a declaration, then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in the Reserve Account in one or more Eligible Investments specified in clauses (i), (iv) or (vi) of the definition of Eligible Investments. All such Eligible Investments shall mature not later than the Business Day preceding the next Distribution Date, in such manner that such amounts invested shall be available to make the required deposits on the Distribution Date; provided that if permitted by the Rating Agencies, monies on deposit therein may be invested in Eligible Investments that mature later than the Business Day preceding the next Distribution Date. The Servicer will not direct the Relevant Trustee to make any investment of any funds or to sell any investment held in the Reserve Account unless the security interest granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Relevant Trustee to make any such investment or sale, if requested by the Relevant Trustee, the Servicer shall deliver to the Relevant Trustee an Opinion of Counsel, acceptable to the Relevant Trustee, to such effect. Earnings, if any, on investment of funds in the Reserve Account shall be paid to the Seller on each Distribution Date, and losses and any investment expenses shall be charged against the funds on deposit therein. The Relevant Trustee shall incur no liability for the selection of investments or for losses thereon absent its own negligence or willful misfeasance. The Relevant Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity date or the failure of the Servicer to provide timely written investment directions. (c) Subject to the right of the Relevant Trustee to make withdrawals therefrom, as directed by the Servicer, for the purposes and in the amounts set forth in Section 5.06, the Reserve Account and all funds held therein shall be the property of the Seller and not the property of the Issuer, the Owner Trustee or the Indenture Trustee. The Issuer, the Owner Trustee, the Seller and the Indenture Trustee will treat the Reserve Account, all funds therein and all net investment income with respect thereto as assets of the Seller for federal income tax and all other purposes. (d) The Seller hereby grants to the Relevant Trustee for the benefit of the Noteholders a security interest in all funds (including Eligible Investments) in the Reserve Account (including the Reserve Account Initial Deposit) and the proceeds thereof to secure the payment of interest on and principal of the Notes, and the Relevant Trustee shall have all of the rights of a secured party under the UCC with respect thereto; provided that all income from the investment of funds in the Reserve Account, and the right to receive such income are retained by the Seller and are 41 46 not transferred, assigned or otherwise conveyed hereunder. If for any reason the Reserve Account is no longer an Eligible Deposit Account, the Relevant Trustee shall promptly cause the Reserve Account to be moved to another institution or otherwise changed so that the Reserve Account becomes an Eligible Deposit Account. (e) Neither the Owner Trustee nor the Indenture Trustee shall enter into any subordination or intercreditor agreement with respect to the Reserve Account. SECTION 5.08 Yield Supplement Account. (a) In order to assure that sufficient amounts to make required distributions of interest to Noteholders will be available, the Seller will, pursuant to the Securities Account Control Agreement and the Yield Supplement Agreement, establish and maintain with the Securities Intermediary a segregated trust account (the "Yield Supplement Account") in the name of the Indenture Trustee which will include the money and other property deposited and held therein pursuant to the Yield Supplement Agreement and this Section 5.08. (b) On or prior to the Closing Date, the Seller shall deposit an amount equal to the Initial Yield Supplement Amount into the Yield Supplement Account pursuant to the Yield Supplement Agreement. On each Distribution Date, to the extent amounts on deposit in the Yield Supplement Account are sufficient therefor, the Relevant Trustee will withdraw amounts then on deposit in the Yield Supplement Account in an amount equal to the Yield Supplement Deposit with respect to such Distribution Date and deposit such amounts into the Collection Account for application pursuant to Section 5.06. On each Distribution Date, if the amount on deposit in the Yield Supplement Account (after giving effect to all deposits thereto or withdrawals therefrom on such Distribution Date) is greater than the Required Yield Supplement Amount, the Relevant Trustee will distribute such excess to the Seller. Upon payment in full of the Notes under the Indenture, as directed in writing by the Servicer, the Relevant Trustee will release to the Seller any amounts remaining on deposit in the Yield Supplement Account and all rights to the Yield Supplement Account, and all other Collateral registered or held therein shall revert to the Seller in accordance with the Securities Account Control Agreement. Upon any such distribution to the Seller, the Issuer, Owner Trustee, Indenture Trustee and Certificateholders will have no further rights in, or claims to, such amounts. (c) All amounts held in the Yield Supplement Account shall be invested by the Relevant Trustee, as directed in writing by the Servicer, in Eligible Investments; provided that if (x) the Servicer shall have failed to give investment directions for any funds on deposit in the Yield Supplement Account to the Indenture Trustee by 5:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and the Indenture Trustee) on any Business Day, or (y) a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to the Indenture, or (z) if the Notes shall have been declared due and payable following an Event of Default, amounts collected or receivable from the Trust Estate are being applied in accordance with Section 5.05 of the Indenture as if there had not been such a declaration, then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in the Yield Supplement Account in one or more Eligible Investments specified in clauses (i), (iv) or (vi) of the definition of Eligible Investments. All such Eligible Investments shall mature not later than the Business Day 42 47 preceding the next Distribution Date, in such manner that such amounts invested shall be available to make the required deposits on the Distribution Date; provided that if permitted by the Rating Agencies, monies on deposit therein may be invested in Eligible Investments that mature later than the Business Day preceding the next Distribution Date. The Servicer will not direct the Relevant Trustee to make any investment of any funds or to sell any investment held in the Yield Supplement Account unless the security interest granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Relevant Trustee to make any such investment or sale, if requested by the Relevant Trustee, the Servicer shall deliver to the Relevant Trustee an Opinion of Counsel, acceptable to the Relevant Trustee, to such effect. Earnings, if any, on investment of funds in the Yield Supplement Account shall be deposited in the Collection Account on each Distribution Date, and losses and any investment expenses shall be charged against the funds on deposit therein. The Relevant Trustee shall incur no liability for the selection of investments or for losses thereon absent its own negligence or willful misfeasance. The Relevant Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity date or the failure of the Servicer to provide timely written investment directions. (d) Subject to the right of the Relevant Trustee to make withdrawals therefrom, as directed by the Servicer, for the purposes and in the amounts set forth in Section 5.06, the Yield Supplement Account and all funds held therein shall be the property of the Seller and not the property of the Issuer, the Owner Trustee or the Indenture Trustee. The Issuer, the Owner Trustee, the Seller and the Indenture Trustee will treat the Yield Supplement Account, all funds therein and all net investment income with respect thereto as assets of the Seller for federal income tax and all other purposes. (e) Pursuant to the Yield Supplement Agreement, the Seller will grant to the Relevant Trustee, for the benefit of the Noteholders, a security interest in all funds (including Eligible Investments) in the Yield Supplement Account (including the Initial Yield Supplement Amount) and the proceeds thereof to secure the payment of interest on the Notes, and the Relevant Trustee shall have all of the rights of a secured party under the UCC with respect thereto. If for any reason the Yield Supplement Account is no longer an Eligible Deposit Account, the Relevant Trustee shall promptly cause the Yield Supplement Account to be moved to another institution or otherwise changed so that the Yield Supplement Account becomes an Eligible Deposit Account. (f) Neither the Owner Trustee nor the Indenture Trustee shall enter into any subordination or intercreditor agreement with respect to the Yield Supplement Account. SECTION 5.09 Statements to Certificateholders and Noteholders. (a) On each Distribution Date, the Indenture Trustee shall include with each distribution to each Noteholder and the Owner Trustee shall include with each distribution to each Certificateholder a statement (which statement shall also be provided to each Rating Agency) based on information in the Servicer's Certificate furnished pursuant to Section 4.08, setting forth for the Collection Period relating to such Distribution Date the following information: 43 48 (i) the amount of the payment allocable to the principal amount of each Class of Notes and to the Certificate Balance; (ii) the amount of the payment allocable to interest on or with respect to each Class of Notes; (iii) the amount of the distribution allocable to the Yield Supplement Deposit, if any, plus reinvestment income, if any, on the Yield Supplement Account; (iv) the Pool Balance as of the close of business on the last day of the related Collection Period; (v) the amount of the Base Servicing Fee paid to the Servicer with respect to the related Collection Period, the amount of any unpaid Base Servicing Fees and the change in such amount from that of the prior Distribution Date; (vi) the Noteholders' Interest Carryover Shortfall, the Noteholders' Principal Carryover Shortfall, and the Certificateholders' Principal Carryover Shortfall, if any, with respect to each Class of Notes and the Certificates, and the change in such amounts from the preceding Distribution Date; (vii) the Outstanding Amount, the Note Factor and the Note Pool Factor with respect to each Class of Notes, and the Certificate Balance, the Certificate Factor and the Certificate Pool Factor with respect to the Certificates, in each case after giving effect to all payments in respect of principal on such Distribution Date; (viii) the amount of Advances made in respect of the Receivables during the related Collection Period and the amount of unreimbursed Advances on such Distribution Date; (ix) the balance of the Reserve Account and the Yield Supplement Account on such Distribution Date, after giving effect to changes thereto on such Distribution Date and the amount of such changes; (x) the amount of defaults and net losses on the Receivables for the related Collection Period; and (xi) the number of delinquencies on the Receivables as a percentage of the number of Receivables. (b) Copies of such statements may be obtained by the Certificateholders or the Note Owners from the Owner Trustee or the Indenture Trustee, as the case may be, by a request in writing. The Owner Trustee or the Indenture Trustee, as the case may be, shall provide such copies promptly after such requests. SECTION 5.10 Net Deposits. For so long as each Monthly Remittance Condition is satisfied (or the rating agency confirmation described in Section 5.02(d) has been obtained), the Servicer (in whatever capacity) may make the remittances pursuant to Sections 5.02 and 5.05 44 49 above net of amounts to be distributed to the Servicer (in whatever capacity) pursuant to Section 5.06. Accounts between the Seller and the Servicer will be adjusted accordingly. Nonetheless, the Servicer shall account for all of the above described remittances and distributions (except for the Supplemental Servicing Fee to the extent that the Servicer is entitled to retain such amounts) in the Servicer's Certificate as if the amounts were deposited and/or transferred separately. ARTICLE VI The Seller SECTION 6.01 Representations of Seller. The Seller makes the following representations on which the Issuer is deemed to have relied in acquiring the Receivables. The representations speak as of the execution and delivery of this Agreement and as of the Closing Date, and shall survive the sale of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture. (a) Organization and Good Standing. The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, corporate power, authority and legal right to acquire and own the Receivables. The location of the Seller's chief executive office and principal place of business is Torrance, California. (b) Due Qualification. The Seller is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications and where the failure to so qualify would have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement. (c) Power and Authority. The Seller has the corporate power and authority to execute and deliver this Agreement and to carry out its terms. The Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited as part of the Owner Trust Estate, and has duly authorized such sale and assignment to the Trust by all necessary corporate action; and the execution, delivery and performance of this Agreement has been duly authorized by the Seller by all necessary corporate action. (d) Valid Sale; Binding Obligations. This Agreement evidences a valid sale, transfer and assignment of the Receivables, enforceable against creditors of and purchasers from the Seller (other than a good faith purchaser for value in the ordinary course of business who takes actual possession of one or more Receivables); and this Agreement is a legal, valid and binding obligation of the Seller enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equitable principles. (e) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, nor constitute (with or without notice or lapse of time) a 45 50 default under, the certificate of incorporation or by-laws of the Seller, or any indenture, agreement or other instrument to which the Seller is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than the Basic Documents); nor violate any law or, to the best of the Seller's knowledge, any order, rule or regulation applicable to the Seller of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties; which breach, default, conflict, Lien or violation in any case would have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement. (f) No Proceedings. There are no proceedings or investigations pending, or, to the best of the Seller's knowledge, threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Seller or its properties: (i) asserting the invalidity of this Agreement, the Trust Agreement, the Indenture, the Securities Account Control Agreement, the Yield Supplement Agreement, the Certificates or the Notes; (ii) seeking to prevent the issuance of the Certificates or the Notes or the consummation of any of the transactions contemplated by this Agreement, the Trust Agreement, the Indenture, the Securities Account Control Agreement or the Yield Supplement Agreement; (iii) seeking any determination or ruling that would materially and adversely affect the performance by the Seller of its obligations under, or the validity or enforceability of, this Agreement, the Trust Agreement, the Indenture, the Securities Account Control Agreement, the Yield Supplement Agreement, the Certificates or the Notes; or (iv) relating to the Seller and that would adversely affect the federal or any state income tax attributes of the Issuer, the Certificates or the Notes. SECTION 6.02 Additional Covenants of the Seller. (a) The Seller agrees with the Certificateholders, the Note Owners and each Rating Agency that the Seller shall not issue any securities or deposit assets into a trust that issues any securities, the issuance of which could reasonably be expected to materially and adversely affect the rating of any Class of Notes unless it shall have first obtained the written consent of each Rating Agency to the effect that such issuance will not materially adversely affect such rating; provided that, the issuance of another series of certificates or notes pursuant to agreements with terms substantially similar to the terms of the Basic Documents shall not be deemed to materially and adversely affect the ratings on the Notes. The Seller shall provide a copy of any such consent to the Owner Trustee and the Indenture Trustee. (b) The Seller shall not do any of the following (without the prior written consent of each Rating Agency (other than Moody's) (which consent shall be to the effect that the acts set forth below shall not affect materially adversely the rating on any Class of Notes) and, upon the Seller's receipt of such written consent from each Rating Agency (other than Moody's), the Owner Trustee and the Indenture Trustee shall, without any exercise of its own discretion, also provide its written consent to the Seller (promptly after the occurrence of any of the following, the Seller shall provide notice of such occurrence to Moody's, so long as Moody's is then rating any outstanding Notes)): (1) engage in any business or activity other than those set forth in Article Three of the Seller's Certificate of Incorporation, as amended; 46 51 (2) incur any indebtedness, or assume or guaranty any indebtedness of any other entity, other than (A) any indebtedness incurred in connection with the issuance of any certificates or notes (as defined in the Seller's Certificate of Incorporation), provided that any such future indebtedness incurred in connection with the issuance of any certificates or notes must be rated at least with the same ratings given the outstanding certificates or notes secured or supported by assets acquired by the Seller from NMAC by each nationally recognized statistical rating organization that has rated such outstanding certificates or notes or, prior to the issuing of such future indebtedness incurred in connection with such certificates or notes, the Seller shall have received confirmation from each nationally recognized statistical rating organization that has rated such outstanding certificates or notes that the ratings of such outstanding certificates or notes will not be adversely affected by the issuance of such future indebtedness and (B) any indebtedness to NMAC or any of its Affiliates incurred in connection with the acquisition of receivables, which indebtedness shall be subordinated to all other obligations of the Seller and shall be nonrecourse debt of the Seller, except with respect to proceeds of the receivables in excess of such proceeds necessary to pay all obligations in relation to the certificates or the notes ("Excess Proceeds"), and shall not constitute a claim against the Seller to the extent that Excess Proceeds are insufficient to pay such indebtedness; (3) dissolve or liquidate, in whole or in part, consolidate or merge with or into any other entity or convey or transfer its properties and assets substantially as an entirety to any entity, unless: (i) the entity (if other than the Seller) formed or surviving the consolidation or merger or which acquires the properties and assets of the Seller is organized and existing under the laws of the State of Delaware, expressly assumes the due and punctual payment of all obligations of the Seller, including those obligations of the Seller under this Agreement and the Basic Documents, and has a Certificate of Incorporation containing provisions identical to the provisions of Article Three, Article Four and Article Fifteen of the Seller's Certificate of Incorporation, as amended; and (ii) immediately after giving effect to the transaction, no default or event of default has occurred and is continuing under any indebtedness of the Seller or any agreements relating to such indebtedness; and (iii) the entity (if other than the Seller) formed or surviving the consolidation or merger or which acquires the properties and assets of the Seller agrees that (i) it shall maintain its funds or assets as identifiable and not commingle its funds or assets with those of any direct or ultimate parent of such entity and pay from its assets all obligations and indebtedness of any kind incurred by it, (ii) it shall maintain bank accounts, corporate records and books of account separate from those of any direct or ultimate parent of such entity and (iii) the business affairs of such entity will be managed by or under the direction of its board of directors and it will conduct its business from an office space separate from any direct or ultimate parent of such entity; and 47 52 (iv) each nationally recognized statistical rating organization that has rated any issue of certificates or notes secured or supported by assets acquired by the Seller from NMAC shall confirm in writing that the rating of such certificates or notes shall not be adversely affected by such consolidation or merger; (4) without the affirmative vote of 100% of the members of the board of directors of the Seller, institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition seeking or consent to reorganization or relief under any applicable federal or state law relating to bankruptcy, or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the corporation or all or substantially all of its property, or make any assignment for the benefit of creditors; (5) cease to have an "Independent Director," as defined in the Seller's charter; (6) without the affirmative vote of at least one "Independent Director," as defined in the Seller's charter, enter into any transactions with the Servicer not in the ordinary course of business; or (7) modify any provision of Article Three, Article Four or Article Fifteen of the Seller's Certificate of Incorporation, as amended, in any material respect. SECTION 6.03 Liability of Seller; Indemnities. The Seller shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Seller under this Agreement. (a) The Seller shall indemnify, defend and hold harmless the Trust, the Owner Trustee, the Indenture Trustee from and against any taxes that may at any time be asserted against any such Person with respect to, as of the date hereof, the sale of the Receivables to the Trust or the issuance and original sale of the Notes and the Certificates, including any sales, gross receipts, general corporation, tangible personal property, privilege or license taxes (but, in the case of the Trust, not including any taxes asserted with respect to ownership of the Receivables or federal or other income taxes arising out of the transactions contemplated by this Agreement and the Basic Documents) and costs and expenses in defending against the same. (b) The Seller shall indemnify, defend and hold harmless the Owner Trustee and the Indenture Trustee, the Trust, the Certificateholders and the Noteholders from and against any loss, liability or expense incurred by reason of (i) the Seller's willful misfeasance, bad faith or negligence in the performance of its duties under this Agreement, or by reason of reckless disregard of its obligations and duties under this Agreement, and (ii) the Seller's or the Issuer's violation of federal or state securities laws in connection with the registration or the sale of the Certificates and the Notes. Indemnification under this Section 6.03 shall survive the termination of this Agreement and shall include reasonable fees and expenses of counsel and expenses of litigation. If the Seller shall have made any indemnity payment to any Person entitled thereto pursuant to this Section 6.03 and such Person thereafter shall collect any of such amounts from others, such 48 53 Person shall promptly repay such amounts to the Seller, without interest (except to the extent the recipient collects interest from others). Promptly after receipt by a party indemnified under this Section 6.03 (for purposes of this paragraph, an "Indemnified Party") of notice of the commencement of any action, such Indemnified Party will, if a claim is to be made in respect thereof against the Seller under this Section 6.03, notify the Seller of the commencement thereof. If any such action is brought against any Indemnified Party under this Section 6.03 and it notifies the Seller of the commencement thereof, the Seller will assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party (who may, unless there is, as evidenced by an Opinion of Counsel to the Indemnified Party stating that there is, a conflict of interest, be counsel to the Seller), and the Seller will not be liable to such Indemnified Party under this Section 6.03 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, other than reasonable costs of investigation. The obligations set forth in this Section 6.03 shall survive the termination of this Agreement or the resignation or removal of the Owner Trustee or the Indenture Trustee and shall include reasonable fees and expenses of counsel and expenses of litigation. If the Seller shall have made any indemnity payments pursuant to this Section 6.03 and the Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Seller, without interest (except to the extent received by such Person). SECTION 6.04 Merger or Consolidation of, or Assumption of the Obligations of, Seller. Subject to Section 6.02, any Person (i) into which the Seller may be merged or consolidated, (ii) resulting from any merger, conversion or consolidation to which the Seller shall be a party, (iii) succeeding to the business of the Seller or (iv) that is a corporation more than 50% of the voting stock of which is owned directly or indirectly by Nissan, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Seller under this Agreement, will be the successor to the Seller under this Agreement without the execution or filing of any document or any further act on the part of any of the parties to this Agreement; provided, however, that (x) immediately after giving effect to such transaction, no representation or warranty made pursuant to Section 6.01 shall have been breached and no Servicer Default, and no event that, after notice or lapse of time, or both, would become a Servicer Default, shall have occurred and be continuing, (y) the Seller shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's Certificate stating that such consolidation, merger or succession and such agreement or assumption comply with this Section 6.04 and that all conditions precedent, if any, provided for in this Agreement relating to such transaction have been complied with and (z) the Seller shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, based on customary qualifications and assumptions, all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary fully to perfect the interest of the Issuer and the Indenture Trustee, respectively, in the Receivables, and reciting the details of such filings, or (B) stating that, in the opinion of such counsel, no such action shall be necessary to preserve and protect such interest. The Seller shall provide notice of any merger, consolidation or succession pursuant to this Section 6.04 to each Rating Agency. Notwithstanding anything herein to the contrary, the execution of the foregoing agreement of assumption and compliance with clauses (x), (y) and (z) above shall be conditions to the consummation of the transactions referred to in clauses (i), (ii), (iii) or (iv) above. 49 54 SECTION 6.05 Limitation on Liability of Seller and Others. (a) Neither the Seller nor any of the directors, officers, employees or agents of the Seller shall be under any liability to the Trust, the Certificateholders or the Noteholders, except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment; provided, however, that this provision shall not protect the Seller or any such person against any liability that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations and duties under this Agreement. The Seller and any director, officer, employee or agent of the Seller may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising under this Agreement. (b) The Seller shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be incidental to its obligations under this Agreement, and that in its opinion may cause it to incur any expense or liability; provided, however, that the Servicer may undertake any reasonable action that it may deem necessary or desirable in respect of this Agreement and the rights and duties of the parties to this Agreement and the interests of the Certificateholders and the Noteholders under this Agreement. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Servicer, and the Servicer will not be entitled to be reimbursed therefor. SECTION 6.06 Seller May Own Certificates or Notes. The Seller and any Affiliate of the Seller may in its individual or any other capacity become the owner or pledgee of Certificates or Notes with the same rights as it would have if it were not the Seller or an Affiliate thereof, except as otherwise provided in the Basic Documents. Certificates or Notes so owned by or pledged to the Seller or such controlling or commonly controlled Person shall have an equal and proportionate benefit under the provisions of this Agreement, without preference, priority or distinction as among all of the Certificates or the Notes, as the case may be, except as otherwise expressly provided in the Basic Documents. ARTICLE VII The Servicer SECTION 7.01 Representations of Servicer. The Servicer makes the following representations on which the Issuer is deemed to have relied in acquiring the Receivables. The representations speak as of the execution and delivery of this Agreement and as of the Closing Date and shall survive the sale of the Receivables to the Issuer and the pledge thereof to the Indenture Trustee pursuant to the Indenture. (a) Organization and Good Standing. The Servicer is duly organized and is validly existing as a corporation in good standing under the laws of the state of its incorporation, with corporate power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, corporate power, authority and legal right to acquire, own, sell and service the Receivables 50 55 and to hold the Receivable Files as custodian on behalf of the Trust and the Indenture Trustee. The location of the Servicer's chief executive office and principal place of business is Torrance, California. (b) Due Qualification. The Servicer is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the ownership or lease of property or the conduct of its business relating to the servicing of the Receivables as required by this Agreement shall require such qualifications and where the failure to so qualify would have a material adverse effect on the ability of the Servicer to perform its obligations under this Agreement. (c) Power and Authority. The Servicer has the power and authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery and performance of this Agreement have been duly authorized by the Servicer by all necessary corporate action. (d) Binding Obligation. This Agreement constitutes a legal, valid and binding obligation of the Servicer enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equitable principles. (e) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, nor constitute (with or without notice or lapse of time) a default under, the articles of incorporation or by-laws of the Servicer, or any indenture, agreement or other instrument to which the Servicer is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than the Basic Documents); nor violate any law or any order, rule or regulation applicable to the Servicer of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Servicer or its properties; which breach, default, conflict, Lien or violation in any case would have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement. (f) No Proceedings. There are no proceedings or investigations pending, or, to the best of the Servicer's knowledge, threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Servicer or its properties: (i) asserting the invalidity of this Agreement, the Trust Agreement, the Indenture, the Certificates or the Notes; (ii) seeking to prevent the issuance of the Certificates or the Notes or the consummation of any of the transactions contemplated by this Agreement, the Trust Agreement or the Indenture; (iii) seeking any determination or ruling that would materially and adversely affect the performance by the Servicer of its obligations under, or the validity or enforceability of, this Agreement, the Trust Agreement, the Indenture, the Certificates or the Notes ; or (iv) relating to the Servicer and that would adversely affect the federal or any state income tax attributes of the Certificates or the Notes. 51 56 SECTION 7.02 Indemnities of Servicer. The Servicer shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Servicer under this Agreement: (a) The Servicer shall defend, indemnify and hold harmless the Owner Trustee, the Indenture Trustee, the Trust, the Certificateholders and the Noteholders from and against any and all costs, expenses, losses, damages, claims and liabilities (collectively, "Damages") arising out of or resulting from the use, ownership or operation by the Servicer or any of its Affiliates (other than the Trust) of a Financed Vehicle. (b) The Servicer shall indemnify, defend and hold harmless the Owner Trustee, the Indenture Trustee, the Trust, the Certificateholders and the Noteholders from and against any and all Damages to the extent that such Damage arose out of, or was imposed upon, the Owner Trustee, the Indenture Trustee, the Trust, the Certificateholders or the Noteholders through the negligence, willful misfeasance or bad faith of the Servicer in the performance of its duties under this Agreement or by reason of reckless disregard of its obligations and duties under this Agreement. (c) The Servicer shall indemnify, defend and hold harmless the Owner Trustee and the Indenture Trustee from and against all Damages arising out of or incurred in connection with the acceptance or performance of the trusts and duties herein contained, except to the extent that such Damage: (i) shall be due to the willful misfeasance, bad faith, or negligence (except for errors in judgment) of the Owner Trustee or the Indenture Trustee, as the case may be; (ii) relates to any tax other than the taxes with respect to which the Seller shall be required to indemnify the Owner Trustee or the Indenture Trustee; (iii) shall arise from the breach by the Owner Trustee or the Indenture Trustee of any of their respective representations or warranties set forth in the Basic Documents; (iv) shall be one as to which the Seller is required to indemnify the Owner Trustee or the Indenture Trustee and as to which such Person has received payment of indemnity from the Seller; or (v) shall arise out of or be incurred in connection with the performance by the Indenture Trustee of the duties of Successor Servicer hereunder. Promptly after receipt by a party indemnified under this Section 7.02 (for purposes of this paragraph, an "Indemnified Party") of notice of the commencement of any action, such Indemnified Party will, if a claim in respect thereof is to be made against the Servicer under this Section 7.02, notify the Servicer of the commencement thereof. If any such action is brought against any Indemnified Party under this Section 7.02 and it notifies the Servicer of the commencement thereof, the Servicer will assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party (who may, unless there is, as evidenced by an Opinion of Counsel to the Indemnified Party stating that there is, a conflict of interest, be counsel to the Servicer), and the Servicer will not be liable to such Indemnified Party under this Section 7.02 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, other than reasonable costs of investigation. The obligations set forth in this Section 7.02 shall survive the termination of this Agreement or the resignation or removal of the Servicer, the Owner Trustee or the Indenture Trustee and shall include reasonable fees and expenses of counsel and expenses of litigation. If the Servicer shall have made any indemnity payments pursuant to this Section 7.02 and the 52 57 Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Servicer, without interest (except to the extent received by such Person). Indemnification under this Section 7.02 by NMAC (or any successor thereto pursuant to Section 7.03) as Servicer, with respect to the period such Person was the Servicer, shall survive the termination of such Person as Servicer or a resignation by such Person as Servicer as well as the termination of this Agreement and shall include reasonable fees and expenses of counsel and expenses of litigation. If the Servicer shall have made any indemnity payments pursuant to this Section 7.02 and the recipient thereafter collects any of such amounts from others, the recipient shall promptly repay such amounts to the Servicer, without interest (except to the extent the recipient collects interest from others). SECTION 7.03 Merger or Consolidation of, or Assumption of the Obligations of, Servicer. Any Person (i) into which the Servicer may be merged or consolidated, (ii) resulting from any merger, conversion or consolidation to which the Servicer shall be a party, (iii) succeeding to the business of the Servicer, or (iv) so long as NMAC acts as Servicer, that is a corporation more than 50% of the voting stock of which is owned directly or indirectly by Nissan, which Person in any of the foregoing cases executes an agreement of assumption to perform every obligation of the Servicer under this Agreement, will be the successor to the Servicer under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties to this Agreement; provided, however, that (x) immediately after giving effect to such transaction, no Servicer Default, and no event which, after notice or lapse of time, or both, would become a Servicer Default, shall have occurred and be continuing, (y) the Servicer shall have delivered to the Owner Trustee and the Indenture Trustee an Officer's Certificate stating that such consolidation, merger or succession and such agreement of assumption comply with this Section 7.03 and that all conditions precedent provided for in this Agreement relating to such transaction have been complied with and (z) the Servicer shall have delivered to the Owner Trustee and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion of such counsel, based on customary qualifications and assumptions, all financing statements and continuation statements and amendments thereto have been executed and filed that are necessary fully to preserve and protect the interest of the Issuer and the Indenture Trustee in the Receivables, and reciting the details of such filings, or (B) stating that, in the opinion of such counsel, no such action shall be necessary to prefect such interest. The Servicer shall provide notice of any merger, consolidation or succession pursuant to this Section 7.03 to each Rating Agency. Notwithstanding anything herein to the contrary, the execution of the foregoing agreement of assumption and compliance with clauses (x), (y) and (z) above shall be conditions to the consummation of the transactions referred to in clauses (i), (ii), (iii) or (iv) above. SECTION 7.04 Limitation on Liability of Servicer and Others. (a) Neither the Servicer nor any of the directors, officers, employees or agents of the Servicer shall be under any liability to the Trust, the Certificateholders or the Noteholders, except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment; provided, however, that this provision shall not protect the Servicer or any such person against any liability that would 53 58 otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations and duties under this Agreement. The Servicer and any director, officer, employee or agent of the Servicer may rely in good faith on the advice of counsel or on any document of any kind, prima facie properly executed and submitted by any Person respecting any matters arising under this Agreement. (b) Except as provided in this Agreement, the Servicer shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be incidental to its duties to service the Receivables in accordance with this Agreement, and that in its opinion may cause it to incur any expense or liability; provided, however, that the Servicer may undertake any reasonable action that it may deem necessary or desirable in respect of the Basic Documents and the rights and duties of the parties to the Basic Documents and the interests of the Certificateholders under this Agreement and the Noteholders under the Indenture. In such event, the legal expenses and costs of such action and any liability resulting therefrom shall be expenses, costs and liabilities of the Servicer, and the Servicer will not be entitled to be reimbursed therefor. SECTION 7.05 NMAC Not To Resign as Servicer. Subject to the provisions of Section 7.03, NMAC shall not resign from the obligations and duties hereby imposed on it as Servicer under this Agreement except upon determination that the performance of its duties under this Agreement shall no longer be permissible under applicable law. Notice of any such determination permitting the resignation of NMAC shall be communicated to the Owner Trustee and the Indenture Trustee at the earliest practicable time (and, if such communication is not in writing, shall be confirmed in writing at the earliest practicable time), and any such determination shall be evidenced by an Opinion of Counsel to such effect delivered to the Owner Trustee and the Indenture Trustee concurrently with or promptly after such notice. No such resignation shall become effective until the Indenture Trustee or a Successor Servicer shall (i) have taken the actions required by Section 8.01 of this Agreement to effect the termination of the responsibilities and rights of the predecessor Servicer under this Agreement, including the transfer to the Successor Servicer for administration by it of all cash amounts that shall at the time be held by the predecessor Servicer for deposit, or shall thereafter be received with respect to a Receivable and the delivery of the Receivable Files, and the related accounts and records maintained by the Servicer, (ii) have assumed the responsibilities and obligations of NMAC as Servicer under this Agreement in accordance with Section 8.02 of this Agreement (other than the initial Servicer's obligation to make Advances), and (iii) become the Administrator under the Administration Agreement in accordance with Section 8 of such Agreement. ARTICLE VIII Default SECTION 8.01 Servicer Default. If any one of the following events (a "Servicer Default") shall occur and be continuing: 54 59 (a) any failure by the Servicer (or the Seller, so long as NMAC is the Servicer) to deliver to the Relevant Trustee for deposit in any of the Accounts any required payment or to direct the Relevant Trustee to make any required distributions therefrom, which failure continues unremedied for a period of three Business Days after (i) receipt by the Servicer (or the Seller, so long as NMAC is the Servicer) of written notice of such failure given by the Owner Trustee or the Indenture Trustee, (ii) receipt by the Servicer (or the Seller, so long as NMAC is the Servicer), the Owner Trustee or the Indenture Trustee of written notice of such failure given by Holders of Notes evidencing not less than 25% of the Outstanding Amount, or (iii) discovery of such failure by any officer of the Servicer; (b) any failure by the Servicer (or the Seller, as long as NMAC is the Servicer) to duly observe or perform in any material respect any other covenants or agreements of the Servicer (or the Seller, as long as NMAC is the Servicer) set forth in this Agreement (including its obligation to purchase Receivables pursuant to Section 4.06), which failure shall materially and adversely affect the rights of the Certificateholders or the Noteholders and shall continue unremedied for a period of 90 days after giving of written notice of the failure to (i) the Servicer (or the Seller, as long as NMAC is the Servicer) by the Owner Trustee or the Indenture Trustee, or (ii) the Servicer (or the Seller, as long as NMAC is the Servicer) and the Owner Trustee or the Indenture Trustee by Holders of Notes evidencing not less than 25% of the Outstanding Amount or Holders of Certificates evidencing not less than 25% of the Certificate Balance; or (c) the occurrence of an Insolvency Event with respect to the Servicer; then, and in each and every case, so long as the Servicer Default shall not have been remedied, either the Indenture Trustee or the Holders of Notes evidencing a majority of the Outstanding Amount of the Notes (but excluding for purposes of such calculation and action all Notes held or beneficially owned by NMAC, NARC or any of their Affiliates unless all of the Notes are held or beneficially owned by NMAC, NARC or any of their Affiliates), by notice then given in writing to the Servicer (and to the Indenture Trustee and the Owner Trustee if given by the Noteholders) may terminate all of the rights and obligations (other than the obligations set forth in Section 7.02 hereof) of the Servicer under this Agreement. On or after the receipt by the Servicer of such written notice, all authority and power of the Servicer under this Agreement, whether with respect to the Notes, the Certificates or the Receivables or otherwise, shall, without further action, pass to and be vested in the Indenture Trustee or such Successor Servicer as may be appointed under Section 8.02; and, without limitation, the Indenture Trustee and the Owner Trustee are hereby authorized and empowered to execute and deliver, for the benefit of the predecessor Servicer, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do or accomplish all other acts or things necessary or appropriate to effect the purposes of such notice of termination, whether to complete the transfer and endorsement of the Receivables and related documents, or otherwise. The predecessor Servicer shall cooperate with the Successor Servicer and the Owner Trustee in effecting the termination of the responsibilities and rights of the predecessor Servicer under this Agreement, including, without limitation, the transfer to the Successor Servicer for administration by it of all cash amounts that shall at the time be held by the predecessor Servicer for deposit, or have been deposited by the predecessor Servicer, in the Accounts or thereafter received with respect to the Receivables that shall at that time be held by the predecessor Servicer and the delivery of the Receivables Files and the related accounts and records maintained by the predecessor Servicer. All reasonable costs and expenses 55 60 (including attorneys' fees) incurred in connection with transferring the Receivable Files to the Successor Servicer and amending this Agreement to reflect such succession as Servicer pursuant to this Section 8.01 shall be paid by the predecessor Servicer upon presentation of reasonable documentation of such costs and expenses. Notwithstanding the foregoing, in the event the predecessor Servicer is the Indenture Trustee, the original Servicer hereunder shall reimburse the Indenture Trustee for all reasonable costs and expenses as described in the immediately preceding sentence. Upon receipt of notice of the occurrence of a Servicer Default, the Indenture Trustee shall give notice thereof to the Rating Agencies. SECTION 8.02 Appointment of Successor. (a) Upon the Servicer's receipt of notice of termination pursuant to Section 8.01 or the Servicer's resignation in accordance with the terms of this Agreement, the predecessor Servicer shall continue to perform its functions as Servicer under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the earlier of (i) the date 45 days from the delivery to the Owner Trustee and the Indenture Trustee of written notice of such resignation (or written confirmation of such notice) in accordance with the terms of this Agreement and (ii) the date upon which the predecessor Servicer shall become unable to act as Servicer, as specified in the notice of resignation and accompanying Opinion of Counsel. In the event of the Servicer's resignation or termination hereunder, the Indenture Trustee shall appoint a Successor Servicer, and the Successor Servicer shall accept its appointment (including its appointment as Administrator under the Administration Agreement as set forth in Section 8.02(b)) by a written assumption in form acceptable to the Owner Trustee and the Indenture Trustee. If a Successor Servicer has not been appointed at the time when the predecessor Servicer has ceased to act as Servicer in accordance with this Section 8.02, the Indenture Trustee without further action shall automatically be appointed the Successor Servicer and the Indenture Trustee shall be entitled to the Total Servicing Fee. Notwithstanding the above, the Indenture Trustee shall, if it shall be legally unable so to act, appoint or petition a court of competent jurisdiction to appoint, and the predecessor Servicer, if no successor Servicer has been appointed at the time the predecessor Servicer has ceased to act, may petition a court of competent jurisdiction to appoint any established institution having a net worth of not less than $100,000,000 and whose regular business shall include the servicing of automobile and/or light-duty truck receivables, as the successor to the Servicer under this Agreement. (b) Upon appointment, the Successor Servicer (including the Indenture Trustee acting as Successor Servicer) shall (i) be the successor in all respects to the predecessor Servicer and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Servicer (except the initial Servicer's obligation to make Advances) and shall be entitled, subject to the arrangements referred to in paragraph (c) below, to the servicing fee and all the rights granted to the predecessor Servicer by the terms and provisions of this Agreement and (ii) become the Administrator under the Administration Agreement in accordance with Section 8 of such Agreement. (c) In connection with such appointment, the Issuer may make such arrangements for the compensation of such Successor Servicer out of payments on Receivables as it and such 56 61 Successor Servicer shall agree; provided, however, that no such compensation shall be in excess of that permitted the predecessor Servicer under this Agreement. The Issuer, the Indenture Trustee and such Successor Servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. SECTION 8.03 Repayment of Advances. If the Servicer shall resign or be terminated, the Servicer shall continue to be entitled to receive, to the extent of available funds, reimbursement for Outstanding Advances pursuant to Sections 5.03 and 5.04 with respect to all Advances previously made thereby. SECTION 8.04 Notification. Upon any termination of, or appointment of a successor to, the Servicer pursuant to this Article VIII, the Owner Trustee shall give prompt written notice thereof to the Certificateholders, and the Indenture Trustee shall give prompt written notice thereof to Noteholders and the Rating Agencies. SECTION 8.05 Waiver of Past Defaults. The Holders of Notes evidencing a majority of the Outstanding Amount of the Notes, or, in the case of any Servicer Default which does not adversely affect the Indenture Trustee or the Noteholders, the Holders of Certificates evidencing a majority of the Certificate Balance, in each case excluding for purposes of such calculation and action all Securities held or beneficially owned by NMAC, NARC or any of their Affiliates (unless all of the Notes or the Certificates, as the case may be, are held by NMAC, NARC and their Affiliates), may, on behalf of all the Noteholders and the Certificateholders, waive in writing any default by the Servicer in the performance of its obligations hereunder and its consequences, except a default in making any required deposits to or payments from the Collection Account in accordance with this Agreement. Upon any such waiver of a past default, such default shall cease to exist, and any Servicer Default arising therefrom shall be deemed to have been remedied for every purpose of this Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereto. ARTICLE IX Termination; Release of Receivables SECTION 9.01 Optional Purchase of All Receivables. (a) On each Distribution Date following the last day of a Collection Period as of which the Pool Balance shall be less than or equal to the Optional Purchase Percentage multiplied by the Original Pool Balance, the Servicer or any successor to the Servicer shall have the option to purchase the corpus of the Owner Trust Estate (whether or not such assets then comprise all or a portion of the Trust Estate) for an amount equal to the Optional Purchase Price. To exercise such option, the Servicer or any successor to the Servicer shall notify the Owner Trustee and the Indenture Trustee of its intention to do so in writing, no later than the tenth day of the month preceding the month in which the Distribution Date as of which such purchase is to be effected and shall, on or before the Distribution Date on which such purchase is to occur, deposit pursuant to Section 5.05 in the Collection Account an amount equal to the Optional Purchase Price, and shall succeed to all interests in and to the Trust Estate and the Owner Trust Estate; provided, however, that the Servicer shall not effect any such purchase so long as the 57 62 rating of NMAC by Moody's, or if NMAC shall then be unrated by Moody's, then the rating of Nissan Capital of America, Inc., is less then "Ba1" by Moody's, unless the Owner Trustee and the Indenture Trustee shall have received an Opinion of Counsel to the effect that such purchase shall not constitute a fraudulent conveyance, subject to such assumptions as to factual matters as may be contained therein. Amounts so deposited will be paid and distributed as set forth in Section 5.06 of this Agreement. Upon such deposit of the amount necessary to purchase the corpus of the Owner Trust Estate, the Servicer shall for all purposes of this Agreement be deemed to have released all claims for reimbursement of Outstanding Advances made in respect of the Receivables. (b) Notice of any such purchase of the Owner Trust Estate shall be given by the Owner Trustee and the Indenture Trustee to each Securityholder as soon as practicable after their receipt of notice thereof from the Servicer. (c) Following the satisfaction and discharge of the Indenture and the payment in full of the principal of and interest on the Notes, the Certificateholders will succeed to the rights of the Noteholders hereunder other than under Section 5.06 and the Issuer will succeed to the rights of the Indenture Trustee provided for in this Agreement. SECTION 9.02 Release of Receivables. (a) Upon repurchase of any Receivable by the Seller pursuant to Section 3.02 or by the Servicer pursuant to Section 4.06 or Section 9.01, the Issuer and the Indenture Trustee on behalf of the Noteholders, shall, without further action, be deemed to transfer, assign, set-over and otherwise convey to the Seller or the Servicer, as the case may be, all right, title and interest of the Issuer in, to and under such repurchased Receivable, all monies due or to become due with respect thereto and all proceeds thereof and the other property conveyed to the Issuer hereunder pursuant to Section 2.01 with respect to such Receivable, and all security and any documents relating thereto, such assignment being an assignment outright and not for security; and the Seller or the Servicer, as applicable, shall thereupon own each such Receivable, and all such related security and documents, free of any further obligation to the Issuer, the Owner Trustee, the Certificateholders, the Indenture Trustee or the Noteholders with respect thereto. (b) The Issuer and Indenture Trustee shall execute such documents and instruments of transfer and assignment and take such other actions as shall be reasonably requested by the Seller or the Servicer, as the case may be, to effect the conveyance of such Receivable pursuant to Sections 3.02, 4.06 and 9.02. 58 63 If in any enforcement suit or legal proceeding it is held that the Seller or the Servicer may not enforce a repurchased Receivable on the ground that it is not a real party in interest or a holder entitled to enforce the Receivable, the Issuer, and the Indenture Trustee on behalf of the Noteholders, shall, at the written direction and expense of the Seller or Servicer, as the case may be, take such reasonable steps as the Seller or the Servicer deems necessary to enforce the Receivable, including bringing suit in the name or names of the Issuer, the Certificateholders or the Noteholders. SECTION 9.03 Termination. (a) The respective obligations of the Seller, the Servicer, NMAC (so long as NMAC has rights or obligations hereunder), the Owner Trustee, and the Indenture Trustee, as the case may be, pursuant to this Agreement shall terminate upon the earliest of (i) the maturity or other liquidation of the last Receivable and the final disposition of all amounts received upon liquidation of any remaining Receivables, or (ii) the election by the Servicer to purchase the corpus of the Trust as described in Section 9.01 and the payment or distribution to Securityholders of all amounts required to be paid to them under the Indenture or the Trust Agreement, as the case may be. (b) Notice of any such termination under this Section 9.03 shall be given by the Indenture Trustee or the Owner Trustee to each Securityholder of record as specified in the Indenture or the Trust Agreement, as appropriate. ARTICLE X Miscellaneous SECTION 10.01 Amendment. (a) This Agreement may be amended by the Seller, the Servicer and the Issuer, with the consent of the Indenture Trustee, but without the consent of any of the Noteholders or the Certificateholders, (1) to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, or make any other provisions with respect to matters or questions arising hereunder that are not inconsistent with the provisions herein; provided that (i) the amendment will not materially and adversely affect the interest of any Noteholder or Certificateholder and (ii) the Servicer shall have delivered an Officer's Certificate to the Indenture Trustee and the Owner Trustee stating that such amendment will not materially and adversely affect the interest of any Noteholder or Certificateholder; and (2) to change the formula for determining the required amount for the Specified Reserve Account Balance upon (i) confirmation from each Rating Agency that such amendment will not result in the qualification, reduction or withdrawal of any rating it currently assigns to any Class of Notes, and (ii) delivery by the Servicer to the Indenture Trustee and the Owner Trustee of an 59 64 Officer's Certificate stating that such amendment will not materially and adversely affect the interest of any Securityholder. An amendment will be deemed not to materially and adversely affect the interests of any Noteholder or Certificateholder of any Class if (x) the amendment does not adversely affect the Trust's status as a partnership (or, for any period during which there is not more than one beneficial owner of a Certificate, the Trust's status as an entity that is disregarded as an entity separate from the Certificateholder) for federal income tax purposes, (y) each Rating Agency confirms that that amendment will not result in a reduction or withdrawal of its rating on the Notes of that Class, and (z) the Servicer has delivered the Officer's Certificate described in this Section 10.01(a). (b) This Agreement may also be amended from time to time by the Seller, the Servicer and the Issuer, with the consent of the Indenture Trustee and the consent of: (1) the Holders of Notes evidencing a majority of the Outstanding Amount of the Notes; or (2) in the case of any amendment that does not adversely affect the Indenture Trustee or the Noteholders, the Holders of the Certificates evidencing a majority of the outstanding Certificate Balance (but excluding for purposes of calculation and action all Certificates held by the Seller, the Servicer or any of their Affiliates, unless all of the Certificates are held by the Seller, the Servicer or any of their Affiliates) for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of those Noteholders or Certificateholders; provided, however, that no amendment shall: (x) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the Receivables or distributions that are required to be made for the benefit of those Noteholders or Certificateholders or change the Interest Rate or the Specified Reserve Account Balance (except as described above under clause (2) of subsection (a) above) without the consent of each "adversely affected" Noteholder or Certificateholder; or (y) reduce the aforesaid percentage of the Outstanding Amount of the Notes or Certificate Balance of the Certificates which is required to consent to any amendment, without the consent of the Holders of all the then outstanding Notes or Certificates. An amendment referred to in clause (x) above will be deemed not to "adversely affect" a Noteholder of any Class only if each Rating Agency confirms that that amendment will not result in a reduction or withdrawal of its rating on the Notes of that Class. In connection with any amendment referred to in clause (x) above, the Servicer shall deliver an Officer's Certificate to the Indenture Trustee and the Owner Trustee stating that those Noteholders and Certificateholders whose consents were not obtained were not adversely affected by such amendment. 60 65 Promptly after the execution of any such amendment or consent, the Owner Trustee shall furnish written notification of the substance of such amendment or consent to each Certificateholder, the Indenture Trustee and each of the Rating Agencies. It shall not be necessary for the consent of the Certificateholders or Noteholders pursuant to this Section 10.01 to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof. Prior to the execution of any amendment to this Agreement, the Owner Trustee and the Indenture Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and the Opinion of Counsel referred to in Section 10.02. The Owner Trustee and the Indenture Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee's or the Indenture Trustee's, as applicable, own rights, duties or immunities under this Agreement or otherwise. SECTION 10.02 Protection of Title to Trust. (a) The Seller shall execute and file such financing statements and cause to be executed and filed such continuation statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Issuer and of the Indenture Trustee in the Receivables and in the proceeds thereof. The Seller shall deliver (or cause to be delivered) to the Owner Trustee and the Indenture Trustee file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. (b) The Seller and the Servicer shall notify the Owner Trustee and the Indenture Trustee within 30 days after any change of its name, identity or corporate structure in any manner that would, could or might make any financing statement or continuation statement filed in accordance with paragraph (a) above seriously misleading within the meaning of Section 9-402(7) of the UCC, and shall promptly file appropriate amendments to all previously filed financing statements or continuation statements. (c) Each of the Seller and the Servicer shall notify the Owner Trustee and the Indenture Trustee of any relocation of its principal executive office within 30 days after such relocation, if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement and shall promptly file any such amendment or new financing statement. The Servicer shall at all times maintain each office from which it shall service Receivables, and its principal executive office, within the United States of America. (d) The Servicer shall maintain accounts and records as to each Receivable accurately and in sufficient detail to permit (i) the reader thereof to know at any time the status of such Receivable, including payments and recoveries made and payments owing (and the nature of each), and (ii) reconciliation between payments or recoveries on (or with respect to) each Receivable and the amounts from time to time deposited in the Collection Account in respect of such Receivable. 61 66 (e) The Servicer shall maintain its computer systems so that, from and after the time of sale under this Agreement of the Receivables to the Trust, the Servicer's master computer records that refer to any Receivable shall indicate clearly the interest of the Issuer and the Indenture Trustee in such Receivable and that such Receivable is owned by the Issuer and has been pledged to the Indenture Trustee. Indication of these respective interests in a Receivable shall be deleted from or modified on the Servicer's computer systems when, and only when, the related Receivable shall have become a Liquidated Receivable or been repurchased. (f) If at any time the Seller or the Servicer shall propose to sell, grant a security interest in, or otherwise transfer any interest in automotive receivables to, any prospective purchaser, lender or other transferee, the Servicer shall give to such prospective purchaser, lender or other transferee computer tapes, records or printouts that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold and is owned by the Issuer and has been pledged to the Indenture Trustee. (g) Upon receipt of a written request from the Owner Trustee or the Indenture Trustee, which request shall be made no more frequently than annually, the Servicer shall furnish to the Owner Trustee or the Indenture Trustee, as the case may be, within 20 Business Days after receipt of such request, a list of all Receivables (by contract number and name of Obligor) then held as part of the Trust, together with a reconciliation of the list of Receivables attached hereto as Schedule A and to each of the Servicer's Certificates furnished before such request indicating removal of Receivables from the Trust. The Servicer shall permit the Indenture Trustee and its agents at any time during normal business hours upon reasonable prior notice to inspect, audit and make copies of and abstracts from the Servicer's records regarding any Receivable. (h) The Servicer shall deliver to the Owner Trustee and the Indenture Trustee: (A) upon the execution and delivery of this Agreement and of each amendment hereto, an Opinion of Counsel, based on customary assumptions and qualifications, stating that, in the opinion of such counsel, either (A) all financing statements and continuation statements have been executed and filed that are necessary to perfect the interest of the Trust and the Indenture Trustee in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (B) no such action shall be necessary to preserve and protect such interest; and (B) if requested by the Indenture Trustee or the Owner Trustee, not more frequently than annually, an Opinion of Counsel, dated as of a date during such 90-day period, either (A) stating that, in the opinion of such counsel, based on customary assumptions and qualifications, all financing statements and continuation statements have been executed and filed that are necessary to perfect the interest of the Trust and the Indenture Trustee in the Receivables, and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (B) no such action shall be necessary to preserve and protect such interest. 62 67 (i) Each Opinion of Counsel referred to in clause (h)(A) or (h)(B) above shall specify any action necessary (as of the date of such Opinion of Counsel) to be taken in the following year to preserve and protect such interest. SECTION 10.03 Notices. All demands, notices, communications and instructions upon or to the Seller, the Servicer, the Owner Trustee, the Indenture Trustee or the Rating Agencies under this Agreement shall be in writing, personally delivered or mailed by certified mail, return receipt requested, and shall be deemed to have been duly given upon receipt (a) in the case of the Seller, to Nissan Auto Receivables Corporation, 990 West 190th Street, Torrance, California 90502, Attention of Secretary ((310) 719-8013), (b) in the case of the Servicer, to Nissan Motor Acceptance Corporation, 990 West 190th Street, Torrance, California 90502, Attention of Secretary ((310) 719-8000), (c) in the case of the Issuer or the Owner Trustee, to Nissan Auto Receivables 2000-A Owner Trust, c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Nissan Auto Receivables 2000-A Owner Trust, (d) in the case of the Indenture Trustee, at the Corporate Trust Office, (e) in the case of Moody's, to Moody's Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New York, New York 10007, and (f) in the case of Standard & Poor's, to Standard & Poor's Ratings Services, 55 Water Street, New York, New York 10041-0003, Attention: Asset Backed Surveillance Department; or, as to each of the foregoing, at such other address as shall be designated by written notice to the other parties. SECTION 10.04 Assignment by the Seller or the Servicer. Notwithstanding anything to the contrary contained herein, except as provided in Sections 6.04 and 7.03 of this Agreement and as provided in the provisions of this Agreement concerning the resignation or termination of the Servicer, this Agreement may not be assigned by the Seller or the Servicer without the prior written consent of the Indenture Trustee, the Owner Trustee, the Holders of Notes evidencing not less than 66 2/3% of the Outstanding Amount and the Holders of Certificates evidencing not less than 66 2/3% of the Certificate Balance. SECTION 10.05 Limitations on Rights of Others. The provisions of this Agreement are solely for the benefit of the Seller, the Servicer, the Issuer, the Owner Trustee, the Certificateholders, the Indenture Trustee and the Noteholders, and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein. SECTION 10.06 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. SECTION 10.07 Separate Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. 63 68 SECTION 10.08 Headings. The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. SECTION 10.09 Governing Law. This Agreement shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. SECTION 10.10 Assignment by Issuer. The Seller hereby acknowledges and consents to any mortgage, pledge, assignment and grant of a security interest by the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the Noteholders of all right, title and interest of the Issuer in, to and under the Receivables and the related property acquired hereunder and/or the assignment of any or all of the Issuer's rights and obligations hereunder to the Indenture Trustee. SECTION 10.11 Nonpetition Covenants. (a) Notwithstanding any prior termination of this Agreement, the Servicer and the Seller shall not, prior to the date which is one year and one day after the termination of this Agreement with respect to the Issuer, acquiesce, petition or otherwise invoke or cause the Issuer to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Issuer under any federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Issuer or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Issuer. (b) Notwithstanding any prior termination of this Agreement, the Servicer shall not, prior to the date which is one year and one day after the termination of this Agreement with respect to the Seller, acquiesce, petition or otherwise invoke or cause the Seller to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Seller under any federal or state bankruptcy, insolvency or similar law, appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Seller or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Seller. SECTION 10.12 Limitation of Liability of Owner Trustee and Indenture Trustee. Notwithstanding anything contained herein to the contrary, this Agreement has been countersigned by Wilmington Trust Company, not in its individual capacity, but solely in its capacity as Owner Trustee of the Issuer, and by Norwest Bank Minnesota, National Association, not in its individual capacity, but solely in its capacity as Indenture Trustee under the Indenture. In no event shall Wilmington Trust Company or Norwest Bank Minnesota, National Association have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder or in any of the certificates, notices or agreements delivered by the Seller or the Servicer, or prepared by the Seller or the Servicer for delivery by the Owner Trustee on behalf of the Issuer, pursuant hereto, as to all of which recourse shall be had solely to the assets 64 69 of the Issuer. For all purposes of this Agreement, in the performance of its duties or obligations hereunder or in the performance of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles VI, VII and VIII of the Trust Agreement. 65 70 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers as of the day and year first above written. NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee on behalf of the Trust By: /s/ James P. Lawler ---------------------------------------- Name: James P. Lawler Title: Vice President NISSAN AUTO RECEIVABLES CORPORATION, as Seller By: /s/ Tomoaki Shimazu ---------------------------------------- Name: Tomoaki Shimazu Title: Treasurer, Assistant Secretary and Director NISSAN MOTOR ACCEPTANCE CORPORATION, as Servicer By:/s/ Yoichiro Nagashima ---------------------------------------- Name: Yoichiro Nagashima Title: President and Chairman of the Board of Directors ACKNOWLEDGED AND ACCEPTED AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN: NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee By: /s/ Marianna C. Stershic -------------------------------- Name: Marianna C. Stershic Title: Assistant Vice President S-1 71 SCHEDULE A Schedule of Receivables (Delivered to the Trust on the Closing Date and kept on a CD ROM) A-1 72 SCHEDULE B LOCATION OF THE RECEIVABLES 1. NISSAN MOTOR ACCEPTANCE CORPORATION 2901 Kinwest Parkway Irving, Texas 75063 2. NISSAN MOTOR ACCEPTANCE CORPORATION 990 W. 190th Street Torrance, California 90502 3. PIERCE LEAHY INC. 1235 N. Union Bower Irving, Texas 75061 4. PIERCE LEAHY INC. 5911 Fresca Drive La Palma, CA 90623 B-1 73 SCHEDULE C OVEREXTENDED RECEIVABLES
Outstanding Balance Loan Number as of 12/31/99 ----------- -------------- 24-5820619 $3,607.69 24-4997418 $7,942.82 24-4143300 $10,861.68 24-4203551 $12,151.40 24-4768524 $10,458.70 24-6207220 $18,657.82 ---------- ---------- Total $63,680.11
C-1 EX-4.2 3 INDENTURE 1 EXHIBIT 4.2 INDENTURE NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST as Issuer and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION as Indenture Trustee Dated as of January 27, 2000 2 TABLE OF CONTENTS
PAGE ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE SECTION 1.01 Definitions................................................................2 SECTION 1.02 Usage of Terms.............................................................7 SECTION 1.03 Incorporation by Reference of Trust Indenture Act..........................8 ARTICLE II THE NOTES SECTION 2.01 Form.......................................................................8 SECTION 2.02 Execution, Authentication and Delivery.....................................9 SECTION 2.03 Temporary Notes............................................................9 SECTION 2.04 Registration; Registration of Transfer and Exchange........................9 SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes................................10 SECTION 2.06 Persons Deemed Owners.....................................................11 SECTION 2.07 Payments of Principal and Interest........................................11 SECTION 2.08 Cancellation..............................................................12 SECTION 2.09 Release of Collateral.....................................................12 SECTION 2.10 Book-Entry Notes..........................................................12 SECTION 2.11 Notices to Clearing Agency................................................13 SECTION 2.12 Definitive Notes..........................................................13 SECTION 2.13 Tax Treatment.............................................................14 ARTICLE III COVENANTS SECTION 3.01 Payment of Principal and Interest.........................................14 SECTION 3.02 Maintenance of Office or Agency...........................................15 SECTION 3.03 Money for Payments To Be Held in Trust....................................15 SECTION 3.04 Existence.................................................................16 SECTION 3.05 Protection of Trust Estate................................................17 SECTION 3.06 Opinions as to Trust Estate...............................................17 SECTION 3.07 Performance of Obligations; Servicing of Receivables......................18 SECTION 3.08 Negative Covenants........................................................20 SECTION 3.09 Annual Statement as to Compliance.........................................20 SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.......................20 SECTION 3.11 Successor or Transferee...................................................22 SECTION 3.12 No Other Business.........................................................22 SECTION 3.13 No Borrowing..............................................................23 SECTION 3.14 Servicer's Notice Obligations.............................................23 SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.........................23
-i- 3 TABLE OF CONTENTS (CONTINUED)
PAGE SECTION 3.16 Capital Expenditures......................................................23 SECTION 3.17 Removal of Administrator..................................................23 SECTION 3.18 Restricted Payments.......................................................23 SECTION 3.19 Notice of Events of Default...............................................24 SECTION 3.20 Further Instruments and Actions...........................................24 ARTICLE IV SATISFACTION AND DISCHARGE SECTION 4.01 Satisfaction and Discharge of Indenture...................................24 SECTION 4.02 Application of Trust Money................................................25 SECTION 4.03 Repayment of Moneys Held by Paying Agent..................................25 ARTICLE V REMEDIES SECTION 5.01 Events of Default.........................................................25 SECTION 5.02 Acceleration of Maturity; Rescission and Annulment........................26 SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee.........................................................27 SECTION 5.04 Remedies; Priorities......................................................29 SECTION 5.05 Optional Preservation of the Receivables..................................30 SECTION 5.06 Limitation of Suits.......................................................31 SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal and Interest.....31 SECTION 5.08 Restoration of Rights and Remedies........................................31 SECTION 5.09 Rights and Remedies Cumulative............................................32 SECTION 5.10 Delay or Omission Not a Waiver............................................32 SECTION 5.11 Control by Noteholders....................................................32 SECTION 5.12 Waiver of Past Defaults...................................................32 SECTION 5.13 Undertaking for Costs.....................................................33 SECTION 5.14 Waiver of Stay or Extension Laws..........................................33 SECTION 5.15 Action on Notes...........................................................33 SECTION 5.16 Performance and Enforcement of Certain Obligations........................34 ARTICLE VI THE INDENTURE TRUSTEE SECTION 6.01 Duties of Indenture Trustee...............................................34 SECTION 6.02 Rights of Indenture Trustee...............................................36 SECTION 6.03 Individual Rights of Indenture Trustee....................................37 SECTION 6.04 Indenture Trustee's Disclaimer............................................37
-ii- 4 TABLE OF CONTENTS (CONTINUED)
PAGE SECTION 6.05 Notice of Defaults........................................................38 SECTION 6.06 Reports by Indenture Trustee to Holders...................................38 SECTION 6.07 Compensation and Indemnity................................................38 SECTION 6.08 Replacement of Indenture Trustee..........................................38 SECTION 6.09 Successor Indenture Trustee by Merger.....................................39 SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee.........40 SECTION 6.11 Eligibility; Disqualification.............................................41 SECTION 6.12 Preferential Collection of Claims Against Issuer..........................41 SECTION 6.13 Acknowledgement by Indenture Trustee of its Obligations Under the Sale and Servicing Agreement....................................41 ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS SECTION 7.01 Note Registrar To Furnish Names and Addresses of Noteholders..............41 SECTION 7.02 Preservation of Information; Communications to Noteholders................42 SECTION 7.03 Reports by Issuer.........................................................42 SECTION 7.04 Reports by Indenture Trustee..............................................43 ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES SECTION 8.01 Collection of Money.......................................................43 SECTION 8.02 Accounts..................................................................43 SECTION 8.03 General Provisions Regarding Accounts.....................................44 SECTION 8.04 Release of Trust Estate...................................................45 SECTION 8.05 Release of Receivables Upon Purchase by the Seller or the Servicer........46 SECTION 8.06 Opinion of Counsel........................................................46 ARTICLE IX SUPPLEMENTAL INDENTURES SECTION 9.01 Supplemental Indentures Without Consent of Noteholders....................47 SECTION 9.02 Supplemental Indentures with Consent of Noteholders.......................48 SECTION 9.03 Execution of Supplemental Indentures......................................49 SECTION 9.04 Effect of Supplemental Indenture..........................................49 SECTION 9.05 Conformity with Trust Indenture Act.......................................49 SECTION 9.06 Reference in Notes to Supplemental Indentures.............................49
-iii- 5 TABLE OF CONTENTS (CONTINUED)
PAGE ARTICLE X RELEASE SECTION 10.01 Optional Purchase of All Receivables......................................50 ARTICLE XI MISCELLANEOUS SECTION 11.01 Compliance Certificates and Opinions, etc.................................50 SECTION 11.02 Form of Documents Delivered to Indenture Trustee..........................52 SECTION 11.03 Acts of Noteholders.......................................................53 SECTION 11.04 Notices to Indenture Trustee, Issuer and Rating Agencies..................53 SECTION 11.05 Notices to Noteholders; Waiver............................................54 SECTION 11.06 Alternate Payment and Notice Provisions...................................54 SECTION 11.07 Conflict with Trust Indenture Act.........................................54 SECTION 11.08 Effect of Headings and Table of Contents..................................55 SECTION 11.09 Successors and Assigns....................................................55 SECTION 11.10 Severability..............................................................55 SECTION 11.11 Benefits of Indenture.....................................................55 SECTION 11.12 Governing Law.............................................................55 SECTION 11.13 Counterparts..............................................................55 SECTION 11.14 Recording of Indenture....................................................55 SECTION 11.15 Trust Obligation..........................................................55 SECTION 11.16 No Petition...............................................................56 SECTION 11.17 Inspection................................................................56 EXHIBIT A FORM OF CLASS A-1 NOTE, CLASS A-2 NOTE, CLASS A-3 NOTE AND CLASS A-4 NOTE
-iv- 6 CROSS-REFERENCE TABLE (not a part of this Indenture)
TIA Indenture Section Section - ------- ------- (Section)310(a) (1)......................................................................6.11 (a) (2)............................................................................6.11 (a) (3)......................................................................6.10(b)(i) (a) (4)............................................................................N.A. (a) (5)............................................................................6.11 (b) ...............................................................................5.04 6.08 6.11 11.04 (c) ...............................................................................N.A. (Section)311(a) .........................................................................6.12 (b) ...............................................................................6.12 (c) ...............................................................................N.A. (Section)312(a) .........................................................................7.01 (b) ...............................................................................7.01 7.02(b) (c) ............................................................................7.02(c) (Section)313(a) .........................................................................7.04 (b) (1)............................................................................N.A. (b) (2)............................................................................7.04 (c) ...............................................................................7.04 11.04 (d) ...............................................................................7.04 (Section)314(a) .........................................................................7.03 3.09 11.04 7.04 (b) ...............................................................................3.06 11.14 7.04 (c) (1) ..........................................................................11.01 6.02 8.05(b) 6.02 11.01 (c) (2)...........................................................................11.01 3.06 3.10 6.02 8.05(b)
v 7
TIA Indenture Section Section - ------- ------- 8.06 (c) (3)...........................................................................11.01 (d) ...........................................................................11.01(c) (e) ..............................................................................11.01 (f) ...............................................................................N.A. (Section)315(a) .........................................................................6.01 (b) ...............................................................................6.05 (c) ...............................................................................N.A. (d) ............................................................................6.01(c) (e) ...............................................................................5.13 (Section)316(a)(1) (A)...................................................................5.11 6.01(c) (a) (1) (B)........................................................................5.12 (a) (2)............................................................................N.A. (b) ...............................................................................5.07 9.02 5.13(c) (c) ...............................................................................N.A. (Section)317(a) (1) .....................................................................5.04 (a) (2) ........................................................................5.03(c) 5.03(d) 5.04 (b) ...............................................................................3.03 (Section)318(a) ........................................................................11.07
- --------- N.A. means not applicable vi 8 INDENTURE, dated as of January 27, 2000, between NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST, a Delaware business trust (the "Issuer"), and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as trustee and not in its individual capacity (the "Indenture Trustee"). Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of (i) the Holders of the Issuer's 6.125% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), 6.730% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), 7.010% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), and 7.170% Asset Backed Notes, Class A-4 (the "Class A-4 Notes" and, together with the Class A-1, Class A-2 and the Class A-3 Notes, the "Notes") and (ii) for the purposes of the Granting Clause below, the Certificateholders: GRANTING CLAUSE The Issuer hereby Grants to the Indenture Trustee at the Closing Date, as Indenture Trustee for the benefit of the Holders of the Notes and Certificates, the following: (i) all right, title and interest of the Issuer in and to the Receivables (including all related Receivable Files) and all monies due thereon or paid thereunder or in respect thereof (including proceeds of the repurchase of Receivables by the Seller pursuant to Section 3.02 of the Sale and Servicing Agreement or the purchase of Receivables by the Servicer pursuant to Section 4.06 or 9.01 of the Sale and Servicing Agreement) after the Cutoff Date; (ii) amounts on deposit in the Collection Account; (iii) the right of the Issuer in the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any related property; (iv) the right of the Issuer in any proceeds from claims on any physical damage, credit life, credit disability or other insurance policies covering the Financed Vehicles or the Obligors; (v) the right of the Issuer (through the Seller and NMAC) to receive payments in respect of any Dealer Recourse with respect to the Receivables; (vi) the right of the Issuer under the Sale and Servicing Agreement and, through the Seller, the Purchase Agreement, the Assignment, and the Yield Supplement Agreement; (vii) the right of the Issuer to realize upon any property (including the right to receive future Net Liquidation Proceeds) that shall have secured a Receivable; (viii) the right of the Issuer in rebates of premiums and other amounts relating to insurance policies and other items financed under the Receivables in effect as of the Cutoff Date; (ix) all other assets comprising the Owner Trust Estate; and (x) all proceeds of the foregoing. 1 9 The foregoing Grant is made in trust to secure the payment of principal of and interest on, and any other amounts owing in respect of, the Notes, equally and ratably without prejudice, priority or distinction, and to secure compliance with the provisions of this Indenture, and subject to the subordinate claims thereon of the Holder of the Certificates, all as provided in this Indenture. The Indenture Trustee, as Indenture Trustee on behalf of the Holders of the Notes and for the benefit of the Certificateholders, acknowledges such Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Holders of the Notes may be adequately and effectively protected and the rights of the Certificateholders secured. ARTICLE I Definitions and Incorporation by Reference SECTION 1.01 Definitions. Except as otherwise specified herein or if the context may otherwise require, capitalized terms used but not otherwise defined herein have the meanings ascribed thereto in the Trust Agreement, the Sale and Servicing Agreement and the Securities Account Control Agreement, as the case may be, for all purposes of this Indenture. Except as otherwise provided in this Indenture, whenever used herein the following words and phrases, unless the context otherwise requires, shall have the following meanings: "Action" has the meaning specified in Section 11.03(a). "Administration Agreement" means the Administration Agreement, dated as of January 27, 2000, among the Administrator, the Issuer and the Indenture Trustee. "Administrator" means NMAC or any successor Administrator under the Administration Agreement. "Applicant" has the meaning specified in Section 7.01. "Authorized Officer" means with respect to the Issuer, any officer of the Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Issuer identified as such on any list of Authorized Officers delivered by the Owner Trustee to the Indenture Trustee. "Book-Entry Notes" means a beneficial interest in the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 2.10. "Business Day" means any day except a Saturday, a Sunday or a day on which banks in New York, New York, Los Angeles, California, Wilmington, Delaware or Minneapolis, Minnesota are authorized or obligated by law, regulation, executive order or governmental decree to be closed. "Certificates" means the Certificates of the Issuer issued under the Trust Agreement. 2 10 "Class" means any one of the classes of the Notes. "Class A-1 Rate" means 6.125% per annum (computed on the basis of actual number of days in the related Interest Period and a 360-day year). "Class A-1 Notes" means the 6.125% Asset Backed Notes, Class A-1, substantially in the form attached hereto as Exhibit A. "Class A-2 Rate" means 6.730% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months). "Class A-2 Notes" means the 6.730% Asset Backed Notes, Class A-2, substantially in the form attached hereto as Exhibit A. "Class A-3 Rate" means 7.010% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months). "Class A-3 Notes" means the 7.010% Asset Backed Notes, Class A-3, substantially in the form attached hereto as Exhibit A. "Class A-4 Rate" means 7.170% per annum (computed on the basis of a 360-day year consisting of twelve 30-day months). "Class A-4 Notes" means the 7.170% Asset Backed Notes, Class A-4, substantially in the form attached hereto as Exhibit A. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Exchange Act. "Clearing Agency Participant" means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" means January 27, 2000. "Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder. "Collateral" means the property of the Issuer subject to the Granting Clause hereof, the Reserve Account, the Yield Supplement Account, and all amounts held from time to time in the Reserve Account and Yield Supplement Account and all investments therein. "Corporate Trust Office" means the principal office of the Indenture Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of execution of this Agreement is located at Norwest Center, 6th Street and Marquette Avenue, MAC N9311-161, Minneapolis, Minnesota 55479-0070; Attention: Nissan Auto Receivables 2000-A Owner Trust, or at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders, the Issuer and the Administrator, or the principal corporate 3 11 trust office of any successor Indenture Trustee at the address designated by such successor Indenture Trustee by notice to the Noteholders, the Issuer and the Administrator. "Default" means any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default. "Definitive Notes" has the meaning specified in Section 2.10. "Event of Default" has the meaning specified in Section 5.01. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Executive Officer" means, with respect to any corporation, the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, Executive Vice President, any Vice President, the Secretary or the Treasurer of such corporation; and with respect to any partnership, any general partner thereof. "Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create, and grant a lien upon and a security interest in and right of set-off against, deposit, set over and confirm pursuant to this Indenture. A Grant of the Collateral or of any other agreement or instrument shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other moneys payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise, and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto. "Holder" or "Noteholder" means the Person in whose name a Note is registered on the Note Register. "Indenture Trustee" means Norwest Bank Minnesota, National Association, a national banking association, as Indenture Trustee under this Indenture, or any successor Indenture Trustee under this Indenture. "Independent" means, when used with respect to any specified Person, that the Person is in fact independent of the Seller, the Servicer, the Administrator, the Issuer or any other obligor on the Notes or any Affiliate of any of the foregoing Persons because, among other things, such Person (a) is not an employee, officer or director or otherwise controlled thereby or under common control therewith, (b) does not have any direct financial interest or any material indirect financial interest therein (whether as holder of securities thereof or party to contract therewith or otherwise), and (c) is not and has not within the preceding twelve months been a promoter, underwriter, trustee, partner, director or person performing similar functions therefor or otherwise had legal, contractual or fiduciary or other duties to act on behalf of or for the benefit thereof. 4 12 "Independent Certificate" means a certificate or opinion to be delivered to the Indenture Trustee, made by an Independent appraiser or other expert appointed by an Issuer Order and approved by the Indenture Trustee in the exercise of reasonable care, and such opinion or certificate shall state that the signer has read the definition of "Independent" in this Indenture and that the signer is Independent within the meaning thereof. "Interest Period" means, with respect to any Distribution Date and the Class A-1 Notes, the period from (and including) the preceding Distribution Date to (but excluding) such Distribution Date, except that the initial Interest Period will be from (and including) the Closing Date to (but excluding) February 15, 2000, and, with respect to any Distribution Date and the Class A-2 Notes, the Class A-3 Notes, and the Class A-4 Notes, the period from (and including) the 15th day of the preceding calendar month to (but excluding) the 15th day of the month in which such Distribution Date occurs, except that the initial Interest Period will be from (and including) the Closing Date to (but excluding) February 15, 2000. "Interest Rate" means the Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, or the Class A-4 Rate, as indicated by the context. "Issuer" means Nissan Auto Receivables 2000-A Owner Trust unless and until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein and required by the TIA, each other obligor on the Notes. "Issuer Order" and "Issuer Request" mean a written order or request signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee. "Note" means a Class A-1 Note, a Class A-2 Note, a Class A-3 Note or a Class A-4 Note. "Note Depository Agreement" means the agreement entitled "Letter of Representations" dated on or before the Closing Date among the Clearing Agency, the Issuer and the Indenture Trustee with respect to certain matters relating to the duties thereof with respect to the Book-Entry Notes. "Note Owner" means, with respect to a Book-Entry Note, any Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency or on the books of a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency). "Note Register" means the Register of Noteholders' information maintained by the Note Registrar pursuant to Section 2.04. "Note Registrar" means the Indenture Trustee unless and until a successor Note Registrar shall have been appointed pursuant to Section 2.04. "Officer's Certificate" means a certificate signed by any Authorized Officer of the Issuer, under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.01, and delivered to the Indenture Trustee. 5 13 "Opinion of Counsel" means one or more written opinions of counsel who may, except as otherwise expressly provided in this Indenture, be an employee of or counsel to the Issuer, the Seller or the Servicer and which counsel shall be reasonably satisfactory to the Owner Trustee, the Indenture Trustee or the Rating Agencies, as the case may be. "Outstanding" means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture except: (a) Notes theretofore canceled by the Note Registrar or delivered to the Note Registrar for cancellation; (b) Notes or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Holders of such Notes; and (c) Notes in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a protected purchaser; provided, that in determining whether the Holders of the requisite percentage of the Outstanding Amount of the Notes, or any Class of Notes, have given any request, demand, authorization, direction, notice, consent, or waiver hereunder or under any Basic Document, Notes owned by the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any of the foregoing Persons shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, or waiver, only Notes that the Indenture Trustee knows to be so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's right so to act with respect to such Notes and that the pledgee is not the Issuer, any other obligor upon the Notes, the Seller or any Affiliate of any of the foregoing Persons. "Outstanding Amount" means the aggregate principal amount of all Notes, or, if indicated by the context, all Notes of any Class, Outstanding at the date of determination. "Owner Trustee" means Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee under the Trust Agreement, or any successor Owner Trustee under the Trust Agreement. "Paying Agent" means the Indenture Trustee or any other Person that meets the eligibility standards for the Indenture Trustee specified in Section 6.11 that has been authorized by the Issuer to make payments to and distributions from the Collection Account, including payment of principal of or interest on the Notes on behalf of the Issuer. "Predecessor Note" means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 2.05 in lieu of 6 14 a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note. "Proceeding" means any suit in equity, action at law or other judicial or administrative proceeding. "Registered Holder" means the Person in whose name a Note is registered on the Note Register on the applicable Record Date. "Responsible Officer" means, with respect to the Indenture Trustee, any officer within the Corporate Trust Office of the Indenture Trustee, including any Vice President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer's knowledge of and familiarity with the particular subject. "Sale and Servicing Agreement" means the Sale and Servicing Agreement, dated as of January 27, 2000, among the Issuer, Nissan Auto Receivables Corporation, as Seller, and Nissan Motor Acceptance Corporation, as Servicer, and as to which the Indenture Trustee is a third party beneficiary of certain provisions. "Securities Act" means the Securities Act of 1933, as amended. "Securities Account Control Agreement" shall have the meaning assigned to such term in the Sale and Servicing Agreement. "Seller" shall mean Nissan Auto Receivables Corporation, in its capacity as seller under the Sale and Servicing Agreement, and its successor in interest. "Servicer" shall mean Nissan Motor Acceptance Corporation, in its capacity as servicer under the Sale and Servicing Agreement, and any Successor Servicer thereunder. "Successor Servicer" has the meaning specified in Section 3.07. "Trust Estate" means all money, instruments, rights and other property that are subject or intended to be subject to the lien and security interest of this Indenture for the benefit of the Noteholders (including, without limitation, all property and interests Granted to the Indenture Trustee pursuant to the Granting Clause), including all proceeds thereof. "Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in force on the date hereof, unless otherwise specifically provided. "UCC" means, unless the context otherwise requires, the Uniform Commercial Code, as in effect in the relevant jurisdiction at the relevant time. SECTION 1.02 Usage of Terms. With respect to all terms in this Indenture, the singular includes the plural and the plural the singular; words importing any gender include the other genders; references to "writing" include printing, typing, lithography and other means of 7 15 reproducing words in a visible form; references to agreements and other contractual instruments include all subsequent amendments, amendments and restatements and supplements thereto or changes therein entered into in accordance with their respective terms and not prohibited by this Indenture; references to Persons include their permitted successors and assigns; references to laws include their amendments and supplements, the rules and regulations thereunder and any successors thereto; and the term "including" means "including without limitation." SECTION 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the Securities and Exchange Commission. "indenture securities" means the Notes. "indenture security holder" means a Noteholder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Indenture Trustee. "obligor" on the indenture securities means the Issuer and any other obligor on the indenture securities. All other TIA terms used in this Indenture that are defined in the TIA, defined in the TIA by reference to another statute or defined by Commission rule have the meanings so assigned to them. ARTICLE II The Notes SECTION 2.01 Form. The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes, in each case together with the Indenture Trustee's certificate of authentication, shall be in substantially the form set forth in Exhibit A, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution thereof. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note. The Definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A are part of the terms of this Indenture. 8 16 SECTION 2.02 Execution, Authentication and Delivery. The Notes shall be executed on behalf of the Issuer by any of its Authorized Officers. The signature of any such Authorized Officer on the Notes may be manual or facsimile. Notes bearing the manual or facsimile signature of individuals who were at any time Authorized Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes. The Indenture Trustee shall upon Issuer Order authenticate and deliver the Class A-1 Notes for original issue in an aggregate principal amount of $184,000,000, the Class A-2 Notes for original issue in an aggregate principal amount of $229,000,000, the Class A-3 Notes for original issue in an aggregate principal amount of $250,000,000, and the Class A-4 Notes for original issue in an aggregate principal amount of $95,130,000. The aggregate principal amount of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes outstanding at any time may not exceed such respective amounts except as provided in Section 2.05. The Notes shall be issuable as registered Notes in the minimum denomination $1,000. Each Note shall be dated the date of its authentication. No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form included in Exhibit A, executed by the Indenture Trustee by the manual or facsimile signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. SECTION 2.03 Temporary Notes. Pending the preparation of Definitive Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed or otherwise produced, of the tenor of the Definitive Notes in lieu of which they are issued and with such variations not inconsistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes. If temporary Notes are issued, the Issuer will cause Definitive Notes to be prepared without unreasonable delay. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer to be maintained as provided in Section 3.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes of any Class, the Issuer shall execute, and the Indenture Trustee shall authenticate and deliver in exchange therefor, a like principal amount of Definitive Notes of such Class of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes. SECTION 2.04 Registration; Registration of Transfer and Exchange. (a) The Note Registrar shall maintain a Note Register in which, subject to such reasonable regulations as it may prescribe, the Note Registrar shall provide for the registration of Notes and transfers and exchanges of Notes as provided in this Indenture. The Indenture Trustee is hereby initially appointed Note Registrar for the purpose of registering Notes and transfers and exchanges of Notes as provided in this Indenture. In the event that, subsequent to the Closing Date, the Indenture Trustee notifies the Issuer that it is unable to act as Note Registrar, the Issuer 9 17 shall appoint another bank or trust company, having an office or agency located in the Borough of Manhattan, The City of New York, agreeing to act in accordance with the provisions of this Indenture applicable to it, and otherwise acceptable to the Indenture Trustee, to act as successor Note Registrar under this Indenture. If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to rely upon a certificate executed on behalf of the Note Registrar by an Executive Officer thereof as to the names and addresses of the Holders of the Notes and the principal amounts and number of such Notes. (b) Upon the proper surrender for registration of transfer of any Note at the office or agency of the Issuer to be maintained as provided in Section 3.02, the Issuer shall execute, and the Indenture Trustee shall authenticate in the name of the designated transferee or transferees, one or more new Notes of the same Class in authorized denominations of a like aggregate principal amount. (c) At the option of the Holder, Notes may be exchanged for other Notes of the same Class in any authorized denominations, of a like aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, the Issuer shall execute, and the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, the Notes which the Noteholder making the exchange is entitled to receive. Every Note presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee and the Note Registrar duly executed by the Holder thereof or his attorney duly authorized in writing. (d) No service charge shall be made for any registration of transfer or exchange of Notes, but the Indenture Trustee may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Notes. (e) All Notes surrendered for registration of transfer or exchange shall be canceled and subsequently destroyed by the Indenture Trustee. SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be required by it to hold the Issuer and the Indenture Trustee harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser, the Issuer shall execute, and upon its request the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class. In connection with the issuance of any new Note under this Section 2.05, the Issuer may require payment by the Holder of such Note of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. 10 18 If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note, a protected purchaser of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered or any assignee of such Person, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith. Every replacement Note issued pursuant to this Section 2.05 in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes of the same Class duly issued hereunder. The provisions of this Section 2.05 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes. SECTION 2.06 Persons Deemed Owners. Prior to due presentment for registration of transfer of any Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name any Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest, if any, on such Note and for all other purposes whatsoever, and none of the Issuer, the Indenture Trustee or any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary. SECTION 2.07 Payments of Principal and Interest. (a) The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall accrue interest during each Interest Period at the Class A-1 Rate, the Class A-2 Rate, the Class A-3 Rate, and the Class A-4 Rate, respectively, and such interest shall be payable on each related Distribution Date as specified in the applicable Note by applying amounts available pursuant to Section 5.06 of the Sale and Servicing Agreement and to Section 3.01 of this Indenture. Any installment of interest or principal payable on any Note that is punctually paid or duly provided for by the Issuer on the applicable Distribution Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered on the Record Date. With respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payment will be made by wire transfer in immediately available funds to the account designated by such nominee, except for the final installment of principal payable with respect to such Note on a Distribution Date or on the applicable Final Scheduled Distribution Date, which shall be payable as provided below. Such payment will be made by check mailed first-class postage prepaid to such Person's address as it appears on the Note Register on such Record Date or by wire transfer to the account specified by the registered holder of any Note with a face amount of at least $10,000,000. The funds 11 19 represented by any such checks returned undelivered shall be held in accordance with Section 3.03. (b) The principal of each Note shall be payable in installments on each Distribution Date by applying amounts available pursuant to Section 5.06 of the Sale and Servicing Agreement. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable, if not previously paid, from and after the date on which the Indenture Trustee or the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purpose the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 in connection with an Event of Default. All principal payments on each Class of Notes shall be made pro rata to the Noteholders of such Class entitled thereto. The Indenture Trustee shall notify the Person in whose name a Note is registered at the close of business on the Record Date preceding the Distribution Date on which the final installment of principal of and interest on such Note will be paid. Such notice shall be mailed or transmitted by facsimile not less than 15 nor more than 30 days prior to such final Distribution Date, shall specify that such final installment will be payable only upon presentation and surrender of such Note and shall specify the place where such Note may be presented and surrendered for payment of such installment. SECTION 2.08 Cancellation. All Notes surrendered for payment, registration of transfer or exchange shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Notes may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuer shall direct by an Issuer Order that they be destroyed or returned to it; provided, that such Issuer Order is timely and the Notes have not been previously disposed of by the Indenture Trustee. SECTION 2.09 Release of Collateral. Subject to Sections 8.05 and 11.01 and the terms of the Basic Documents, the Indenture Trustee shall release property from the lien of this Indenture only upon receipt of an Issuer Request accompanied by an Officer's Certificate, an Opinion of Counsel and Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(l) or an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates. SECTION 2.10 Book-Entry Notes. The Notes, upon original issuance, will be issued in the form of typewritten Notes representing the Book-Entry Notes, to be delivered to The Depository Trust Company, the initial Clearing Agency, or a custodian therefor, by, or on behalf of, the Issuer. The Book-Entry Notes shall be registered initially on the Note Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner thereof will receive a Definitive Note representing such Note Owner's interest in such Note, except as 12 20 provided in Section 2.12. Unless and until definitive, fully registered Notes (the "Definitive Notes") have been issued to such Note Owners pursuant to Section 2.12: (a) the provisions of this Section shall be in full force and effect; (b) the Note Registrar and the Indenture Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Indenture (including the payment of principal of and interest on the Notes and the giving of instructions or directions hereunder) as the authorized representative of the Note Owners; (c) to the extent that the provisions of this Section conflict with any other provisions of this Indenture, the provisions of this Section shall control; (d) the rights of Note Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Note Owners and the Clearing Agency and/or the Clearing Agency Participants pursuant to the Note Depository Agreement. Unless and until Definitive Notes are issued pursuant to Section 2.12, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments of principal of and interest on the Notes to such Clearing Agency Participants; and (e) whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Holders of Notes evidencing a specified percentage of the Outstanding Amount of the Notes or of the Notes of any Class, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Notes and has delivered such instructions to the Indenture Trustee. SECTION 2.11 Notices to Clearing Agency. Whenever a notice or other communication to the Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to such Note Owners pursuant to Section 2.12, the Indenture Trustee shall give all such notices and communications specified herein to be given to Holders of the Notes to the Clearing Agency and shall be deemed to have been given as of the date of delivery to the Clearing Agency. SECTION 2.12 Definitive Notes. If (i) the Seller, the Owner Trustee or the Administrator advises the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities with respect to the Book-Entry Notes and the Seller, the Owner Trustee and the Administrator are unable to locate a qualified successor (and if the Administrator has made such determination, the Administrator has given written notice thereof to the Indenture Trustee), (ii) the Seller, the Indenture Trustee or the Administrator at its option advises each other such party in writing that it elects to terminate the book-entry system through the Clearing Agency, or (iii) after the occurrence of an Event of Default or a Servicer Default, Note Owners representing beneficial interests aggregating a majority of the Outstanding Amount of the Notes of all Classes advise the Indenture Trustee and the Clearing Agency in writing that the continuation of a book-entry system through the Clearing Agency or a 13 21 successor thereto is no longer in the best interests of the Note Owners acting together as a single Class, then the Clearing Agency shall notify all Note Owners and the Indenture Trustee of the occurrence of such event and of the availability of Definitive Notes to Note Owners requesting the same. Upon surrender to the Indenture Trustee of the typewritten Notes representing the Book-Entry Notes by the Clearing Agency, accompanied by registration instructions, the Issuer shall execute and the Indenture Trustee shall authenticate the Definitive Notes in accordance with the instructions of the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the Holders of the Definitive Notes as Noteholders. The Indenture Trustee, Issuer and Administrator shall not be liable for any inability to locate a qualified successor Clearing Agency. From and after the date of issuance of Definitive Notes, all notices to be given to Noteholders will be mailed thereto at their addresses of record in the Note Register as of the relevant Record Date. Such notices will be deemed to have been given as of the date of mailing. SECTION 2.13 Tax Treatment. The Issuer has entered into this Indenture, and the Notes will be issued, with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness of the Issuer secured by the Trust Estate. The Issuer, by entering into this Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance of an interest in the applicable Book-Entry Note), agree to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuer. ARTICLE III Covenants SECTION 3.01 Payment of Principal and Interest. In accordance with the terms of this Indenture, the Issuer will duly and punctually (i) pay the principal of and interest, if any, on the Notes in accordance with the terms of the Notes and (ii) cause the Servicer to direct the Indenture Trustee to release from the Collection Account all other amounts distributable or payable from the Owner Trust Estate under the Trust Agreement, the Sale and Servicing Agreement and the Administration Agreement. Without limiting the foregoing and in order to fulfill such obligations, pursuant to Sections 8.02 and 8.03 hereof, the Issuer will cause the Servicer to direct the Indenture Trustee to apply all amounts on deposit in the Collection Account, the Reserve Account and the Yield Supplement Account on a Distribution Date deposited therein pursuant to the Sale and Servicing Agreement (i) (a) for the benefit of the Class A-1 Notes, to the Class A-1 Noteholders, (b) for the benefit of the Class A-2 Notes, to the Class A-2 Noteholders, (c) for the benefit of the Class A-3 Notes, to the Class A-3 Noteholders, and (d) for the benefit of the Class A-4 Notes, to the Class A-4 Noteholders, and (ii) for the benefit of the Certificateholders, to or as directed by the Owner Trustee or the Administrator, as set forth in Section 5.06, 5.07 and 5.08 of the Sale and Servicing Agreement. Amounts properly withheld under the Code by any Person from a payment to any Noteholder of interest and/or principal shall be considered as having been paid by the Issuer to such Noteholder for all purposes of this Indenture. 14 22 SECTION 3.02 Maintenance of Office or Agency. The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee to serve as its agent for the foregoing purposes. The Issuer will give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands. SECTION 3.03 Money for Payments To Be Held in Trust. As provided in Sections 8.02 and 8.03, all payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Collection Account, the Reserve Account or the Yield Supplement Account pursuant to Sections 8.02 and 8.03 shall be made on behalf of the Issuer by the Indenture Trustee or by the Paying Agent, and no amounts so withdrawn from such accounts for payments of Notes shall be paid over to the Issuer, the Owner Trustee or the Administrator except as provided in this Section. On or before each Distribution Date, the Issuer shall deposit in the Collection Account or, in accordance with the Sale and Servicing Agreement, cause to be deposited (including the provision of instructions to the Indenture Trustee to make any required withdrawals from the Reserve Account or the Yield Supplement Account and to deposit such amounts in the Collection Account), an aggregate sum sufficient to pay the amounts then becoming due under the Notes and the Certificates, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee of its action or failure so to act. The Indenture Trustee, as Paying Agent, hereby agrees with the Issuer that it will, and the Issuer will cause each Paying Agent other than the Indenture Trustee, as a condition to its acceptance of its appointment as Paying Agent, to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee, subject to the provisions of this Section, that such Paying Agent will: (a) hold all sums held by it for the payment of amounts due with respect to the Notes or Certificates or for release to the Issuer for payment on the Certificates in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay or release such sums to such Persons as herein provided; (b) give the Indenture Trustee notice of any default by the Issuer (or any other obligor upon the Notes) of which it has actual knowledge in the making of any payment required to be made with respect to the Notes or the release of any amounts to the Issuer to be paid to the Certificateholders; 15 23 (c) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent; (d) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of Notes (or for release to the Issuer) if at any time it ceases to meet the standards required to be met by a Paying Agent at the time of its appointment; and (e) comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes or Certificates (or assisting the Issuer to withhold from payment to the Certificateholders) of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith. The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which the sums were held by such Paying Agent; and upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money. Subject to applicable laws with respect to escheat of funds, any money held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed after such amount has become due and payable and after the Indenture Trustee has taken the steps described in this paragraph shall be discharged from such trust and be paid to Children's Hospital Los Angeles upon presentation thereto of an Issuer Request; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease. In the event that any Noteholder shall not surrender its Notes for retirement within six months after the date specified in the written notice of final payment described in Section 2.07, the Indenture Trustee will give a second written notice to the registered Noteholders that have not surrendered their Notes for final payment and retirement. If within one year after such second notice any Notes have not been surrendered, the Indenture Trustee shall, at the expense and direction of the Issuer, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be paid to Children's Hospital Los Angeles. The Indenture Trustee shall also adopt and employ, at the expense and direction of the Issuer, any other reasonable means of notification of such repayment specified by the Issuer or the Administrator. SECTION 3.04 Existence. The Issuer will keep in full effect its existence, rights and franchises as a business trust under the laws of the State of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes, organized under the laws of any other State or of the United States of America, in which case the Issuer will keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and will obtain and preserve its 16 24 qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate or the Owner Trust Estate. SECTION 3.05 Protection of Trust Estate. The Issuer will from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, and will take such other action necessary or advisable to: (a) maintain or preserve the lien and security interest (and the priority thereof) of this Indenture or carry out more effectively the purposes hereof; (b) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture; (c) enforce any of the Collateral; or (d) preserve and defend title to the Trust Estate and the rights of the Indenture Trustee and the Noteholders in such Trust Estate against the claims of all persons and parties. The Issuer hereby designates the Indenture Trustee its agent and attorney-in-fact to execute any financing statement, continuation statement or other instrument required to be executed pursuant to this Section 3.05. SECTION 3.06 Opinions as to Trust Estate. (a) On the Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the execution, recording and filing of this Indenture, any indentures supplemental hereto, any requisite financing statements and continuation statements and any other requisite documents necessary to perfect and make effective the lien and security interest of this Indenture or stating that, in the opinion of such counsel, no such action is necessary to make such lien and security interest effective. (b) As and when specified in Section 10.02(h) of the Sale and Servicing Agreement, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the execution, recording, filing or re-recording and refiling of this Indenture, any indentures supplemental hereto, any financing statements and continuation statements and any other requisite documents necessary to maintain the lien and security interest created by this Indenture or stating that in the opinion of such counsel no such action is necessary to maintain such lien and security interest. Such Opinion of Counsel shall also describe the execution, recording, filing or re-recording and refiling of this Indenture, any indentures supplemental hereto, any financing statements and continuation statements and any other documents that will, in the opinion of such counsel, be required to maintain the lien and security interest of this Indenture until the date in the following calendar year on which such Opinion of Counsel must again be delivered. 17 25 SECTION 3.07 Performance of Obligations; Servicing of Receivables. (a) The Issuer will not take any action and will use its best efforts not to permit any action to be taken by others that would release any Person from any of such Person's material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Basic Documents. (b) The Issuer may contract with other Persons to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer's Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Servicer and the Administrator to assist the Issuer in performing its duties under this Indenture. (c) The Issuer will punctually perform and observe all of its obligations and agreements contained in the Basic Documents and in the instruments and agreements included in the Trust Estate, including but not limited to filing or causing to be filed all UCC financing statements and continuation statements required to be filed by the terms of the Trust Agreement, this Indenture and the Sale and Servicing Agreement in accordance with and within the time periods provided for herein and therein. (d) If an Authorized Officer of the Issuer shall have knowledge of the occurrence of a Servicer Default under the Sale and Servicing Agreement, the Issuer shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and shall specify in such notice the action, if any, the Issuer is taking with respect of such default. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Sale and Servicing Agreement with respect to the Receivables, the Issuer shall take all reasonable steps available to it to remedy such failure. (e) As promptly as possible after the giving of notice of termination to the Servicer of the Servicer's rights and powers pursuant to Section 8.01 of the Sale and Servicing Agreement, the Indenture Trustee shall appoint a successor servicer (the "Successor Servicer"), and such Successor Servicer shall accept its appointment by a written assumption in a form acceptable to the Indenture Trustee. In the event that a Successor Servicer has not been appointed and accepted its appointment as set forth in Section 8.02 of the Sale and Servicing Agreement, the Indenture Trustee without further action shall automatically be appointed the Successor Servicer and shall thereafter be entitled to the Total Servicing Fee. Notwithstanding the above, the Indenture Trustee shall, if it shall be legally unable so to act, appoint or petition a court of competent jurisdiction to appoint, and the predecessor Servicer, if no successor Servicer has been appointed at the time the predecessor Servicer has ceased to act, may petition a court of competent jurisdiction to appoint any established institution having a net worth of not less than $100,000,000 and whose regular business shall include the servicing of automobile and/or light-duty truck receivables, as the successor to the Servicer under the Sale and Servicing Agreement. Upon such appointment, the Indenture Trustee will be released from the duties and obligations of acting as Successor Servicer, such release effective upon the effective date of the servicing agreement entered into between the Successor Servicer and the Issuer. 18 26 In connection with any such appointment, the Indenture Trustee may make such arrangements for the compensation of such successor as it and such Successor Servicer shall agree, subject to the limitations set forth below and in the Sale and Servicing Agreement, and in accordance with Section 8.02 of the Sale and Servicing Agreement, the Issuer shall enter into an agreement with such Successor Servicer for the servicing of the Receivables (such agreement to be in form and substance satisfactory to the Indenture Trustee). If the Indenture Trustee shall succeed to the Servicer's duties as servicer of the Receivables as provided herein, it shall do so in its individual capacity and not in its capacity as Indenture Trustee and, accordingly, the provisions of Article VI hereof shall be inapplicable to the Indenture Trustee in its duties as Successor Servicer and the servicing of the Receivables. In case the Indenture Trustee shall become the Successor Servicer, the Indenture Trustee shall be entitled to appoint as a subservicer any one of its affiliates, provided that the Indenture Trustee, in its capacity as Successor Servicer, shall remain fully liable for the actions and omissions of such Affiliate. (f) Upon any termination of the Servicer's rights and powers pursuant to the Sale and Servicing Agreement, the Issuer shall promptly notify the Indenture Trustee. As soon as a Successor Servicer is appointed, the Issuer shall notify the Indenture Trustee of such appointment, specifying in such notice the name and address of such Successor Servicer. (g) Without derogating from the absolute nature of the assignment granted to the Indenture Trustee under this Indenture or the rights of the Indenture Trustee hereunder, the Issuer agrees (i) that it will not, without the prior written consent of the Indenture Trustee and the Holders of a majority in Outstanding Amount of the Notes, voting as a single class (excluding for such purposes the outstanding principal amount of any Notes held of record or beneficially owned by NMAC, NARC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), amend, modify, waive, supplement, terminate or surrender, or agree to any amendment, modification, waiver, supplement, termination or surrender of, the terms of any Collateral (except to the extent otherwise provided in the Sale and Servicing Agreement) or the Basic Documents, or waive timely performance or observance by the Servicer or the Seller under the Sale and Servicing Agreement; and (ii) that any such amendment shall not (A) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the Receivables or distributions that are required to be made for the benefit of the Noteholders or change the Interest Rate or the Specified Reserve Account Balance (except as otherwise provided in the Basic Documents), in each case without the consent of each of the "adversely affected" Noteholders, or (B) reduce the aforesaid percentage of the Notes that is required to consent to any such amendment, without the consent of the Holders of all the outstanding Notes. If any such amendment, modification, supplement or waiver shall be so consented to by the Indenture Trustee or such Holders, the Issuer agrees, promptly following a request by the Indenture Trustee to agree to such amendment and to execute and deliver, in its own name and at its own expense, such agreements, instruments, consents and other documents as the Indenture Trustee may deem necessary or appropriate in the circumstances to implement such amendment and to cause the relevant Basic Documents, as amended, to be enforceable against the Issuer. For the purposes of clause (ii) above, an amendment will be deemed not to "adversely affect" a Noteholder of any Class only if each Rating Agency confirms that such amendment will not result in a reduction or withdrawal of its rating on such Class of Notes. 19 27 SECTION 3.08 Negative Covenants. So long as any Notes are Outstanding, the Issuer shall not: (a) except as expressly permitted by Basic Documents, sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuer, including those included in the Trust Estate, unless directed to do so by the Indenture Trustee; (b) claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such payments under the Code) or assert any claim against any present or former Noteholder by reason of the payment of the taxes levied or assessed upon any part of the Trust Estate; (c) except as may be expressly permitted hereby, (A) permit the validity or effectiveness of this Indenture to be impaired, or permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture, (B) permit any lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Trust Estate or any part thereof or any interest therein or the proceeds thereof (other than tax liens, mechanics' liens and other liens that arise by operation of law, in each case on any of the Financed Vehicles and arising solely as a result of an action or omission of the related Obligor), (C) permit the lien of this Indenture not to constitute a valid first priority (other than with respect to any such tax, mechanics' or other lien) security interest in the Trust Estate, or (D) dissolve or liquidate in whole or in part; or (d) assume or incur any indebtedness other than the Notes or as expressly contemplated by this Indenture (in connection with the obligation to reimburse Advances from the Trust Estate, or to pay expenses from the Trust Estate) or by the Basic Documents as in effect on the date hereof. SECTION 3.09 Annual Statement as to Compliance. The Issuer will cause the Servicer to deliver to the Indenture Trustee concurrently with its delivery thereof to the Issuer the annual statement of compliance described in Section 4.09 of the Sale and Servicing Agreement. In addition, on the same date annually upon which such annual statement of compliance is to be delivered by the Servicer, the Issuer shall deliver to the Indenture Trustee an Officer's Certificate stating, as to the Authorized Officer signing such Officer's Certificate, that: (a) a review of the activities of the Issuer during such year and of its performance under this Indenture has been made under such Authorized Officer's supervision; and (b) to the best of such Authorized Officer's knowledge, based on such review, the Issuer has complied with all conditions and covenants under this Indenture throughout such year, or, if there has been a default in its compliance with any such condition or covenant, specifying each such default known to such Authorized Officer and the nature and status thereof. SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms. (a) The Issuer shall not consolidate or merge with or into any other Person, unless: 20 28 (i) the Person (if other than the Issuer) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the duty to make due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) no Rating Agency shall have notified the Indenture Trustee and the Owner Trustee that such transaction might or would result in the removal or reduction of the rating then assigned thereby to any Class of Notes; (iv) the Issuer shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, any Noteholder or any Certificateholder; (v) any action that is necessary to maintain each lien and security interest created by the Trust Agreement, the Sale and Servicing Agreement or this Indenture shall have been taken; and (vi) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each stating that such consolidation or merger and any related supplemental indenture complies with this Article III and that all conditions precedent provided in this Indenture relating to such transaction have been complied with (including any filing required by the Exchange Act). (b) The Issuer shall not convey or transfer any of its properties or assets, including those included in the Trust Estate, to any Person, unless: (i) the Person that acquires by conveyance or transfer such properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any state or the District of Columbia, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the duty to make due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agrees by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise provided in such supplemental indenture, expressly agrees to indemnify, defend and hold harmless the Issuer, the Owner Trustee and the Indenture Trustee against and from any loss, liability or expense arising under or related to this Indenture and the Notes, and (E) 21 29 expressly agrees by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings that counsel satisfactory to such purchaser or transferee and the Indenture Trustee determines must be made with (1) the Commission (and any other appropriate Person) required by the Exchange Act or the appropriate authorities in any state in which the Notes have been sold pursuant to any qualification or exemption under the securities or "blue sky" laws of such state, in connection with the Notes or (2) the Internal Revenue Service or the relevant state or local taxing authorities of any jurisdiction; (ii) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; (iii) no Rating Agency shall have notified the Indenture Trustee and the Owner Trustee that such transaction might or would result in the removal or reduction of the rating then assigned thereby to any Class of Notes; (iv) the Issuer shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such transaction will not have any material adverse tax consequence to the Issuer, any Noteholder or any Certificateholder; (v) any action that is necessary to maintain each lien and security interest created by the Trust Agreement, the Sale and Servicing Agreement or this Indenture shall have been taken; and (vi) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each stating that such conveyance or transfer and such supplemental indenture comply with this Article III and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act). SECTION 3.11 Successor or Transferee. (a) Upon any consolidation or merger of the Issuer in accordance with Section 3.10(a), the Person formed by or surviving such consolidation or merger (if other than the Issuer) shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Person had been named as the Issuer herein. (b) Upon a conveyance or transfer of all the assets and properties of the Issuer pursuant to Section 3.10(b), Nissan Auto Receivables 2000-A Owner Trust will be released from every covenant and agreement of this Indenture to be observed or performed on the part of the Issuer with respect to the Notes and the Certificates immediately upon the delivery of written notice to the Indenture Trustee stating that Nissan Auto Receivables 2000-A Owner Trust is to be so released. SECTION 3.12 No Other Business. Unless and until the Issuer shall have been released from its duties and obligations hereunder, the Issuer shall not engage in any business 22 30 other than financing, purchasing, owning, selling and managing the Receivables in the manner contemplated by the Basic Documents and activities incidental thereto. SECTION 3.13 No Borrowing. Unless and until the Issuer shall have been released from its duties and obligations hereunder, the Issuer shall not issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness except for the Notes or other obligations permitted hereunder (including the obligation to reimburse Advances or certain expenses of the Servicer) or under another Basic Document (including indemnification expenses of the Issuer and certain fees and expenses of the Administrator). SECTION 3.14 Servicer's Notice Obligations. The Issuer shall cause the Servicer to comply with all of its duties and obligations with respect to the preparation of reports, the delivery of Officer's Certificates and Opinions of Counsel and the giving of instructions and notices under the Sale and Servicing Agreement (including, but not limited to, under Sections 4.08, 4.09, 4.11, 4.13, 5.09 and Article IX thereof). SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities. Unless and until the Issuer shall have been released from its duties and obligations hereunder, except as contemplated by the Sale and Servicing Agreement or this Indenture, the Issuer shall not make any loan or advance or credit to, or guarantee (directly or indirectly or by an instrument having the effect of assuring another's payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person. SECTION 3.16 Capital Expenditures. Unless and until the Issuer shall have been released from its duties and obligations hereunder, the Issuer shall not make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty). SECTION 3.17 Removal of Administrator. So long as any Notes are Outstanding, the Issuer shall not remove the Administrator without cause unless so instructed by the Owner Trustee or the Indenture Trustee and unless each Rating Agency shall have received 10 days' written notice thereof and shall not have notified the Indenture Trustee, the Administrator or the Owner Trustee that such removal might or would result in the removal or reduction of the rating, if any, then assigned thereby to any Class of Notes or the Certificates. SECTION 3.18 Restricted Payments. The Issuer shall not, directly or indirectly, (i) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, to the Servicer, the Owner Trustee or any Certificateholder or otherwise with respect to any ownership or equity interest or security in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amounts for any such purpose; provided, however, that the Issuer may make, or cause to be made, (x) distributions to the Servicer, the Owner Trustee and the Certificateholders as contemplated by, and to the extent funds are available for such purpose under, the Sale and Servicing Agreement or the Trust Agreement, and (y) payments to the Owner Trustee or the Indenture Trustee pursuant to the 23 31 Administration Agreement. The Issuer will not, directly or indirectly, make payments to or distributions from the Collection Account except in accordance with the Basic Documents. SECTION 3.19 Notice of Events of Default. The Issuer shall give the Indenture Trustee and each Rating Agency prompt written notice of each Event of Default hereunder, each default on the part of the Servicer or the Seller of its obligations under the Sale and Servicing Agreement (including any Servicer Defaults) and each default on the part of NMAC of its obligations under the Purchase Agreement. The Indenture Trustee shall notify each Noteholder of record in writing of any Event of Default promptly upon a Responsible Officer obtaining actual knowledge thereof. Such notices will be provided in accordance with Section 2.11. SECTION 3.20 Further Instruments and Actions. Upon request of the Indenture Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Indenture. ARTICLE IV Satisfaction and Discharge SECTION 4.01 Satisfaction and Discharge of Indenture. This Indenture shall cease to be of further effect with respect to the Notes except as to (i) rights of registration of transfer and exchange, (ii) substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.05, 3.08, 3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 6.07 and the obligations of the Indenture Trustee under Sections 3.03 and 4.02), and (vi) the rights of Noteholders and the Certificateholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when: (a) either (1) all Notes theretofore authenticated and delivered (other than Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.05 and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 3.03) have been delivered to the Indenture Trustee for cancellation or (2) all Notes not theretofore delivered to the Indenture Trustee for cancellation have become due and payable or will become due and payable within one year (either because the Final Scheduled Distribution Date for the Class A-4 Notes is within one year or because the Indenture Trustee has received notice of the exercise of the option granted pursuant to Section 9.01 of the Sale and Servicing Agreement) and the Issuer has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or direct obligations of or obligations guaranteed by the United States of America (which will mature prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation when due; 24 32 (b) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and (c) the Issuer has delivered to the Indenture Trustee an Officer's Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture Trustee) an Independent Certificate from a firm of certified public accountants, each meeting the applicable requirements of Section 11.01 and, subject to Section 11.02, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. SECTION 4.02 Application of Trust Money. All moneys deposited with the Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and (a) applied by it in accordance with the provisions of the Notes and this Indenture to the payment, either directly or through any Paying Agent, as the Indenture Trustee may determine, to the Holders of the particular Notes for the payment of which such moneys have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and interest or (b) released to the Owner Trustee for application pursuant to the Trust Agreement or the Sale and Servicing Agreement; but such moneys need not be segregated from other funds except to the extent required herein or in the Sale and Servicing Agreement or required by law. SECTION 4.03 Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to the Notes, all moneys then held by any Paying Agent other than the Indenture Trustee under the provisions of this Indenture with respect to such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held and applied according to Section 3.03 or 4.02 and thereupon such Paying Agent shall be released from all further liability with respect to such moneys. ARTICLE V Remedies SECTION 5.01 Events of Default. "Event of Default," wherever used herein, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (a) default in the payment of any interest on any Note when the same becomes due and payable, and such default shall continue for a period of five days; (b) default in the payment of the principal of or any installment of the principal of any Note when the same becomes due and payable; (c) default in the observance or performance of any covenant or agreement of the Issuer made in this Indenture (other than a covenant or agreement, a default in the observance or performance of which is elsewhere in this Section specifically dealt with) which shall continue or not be cured for a period of 90 days after there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders of at least 25% of the Outstanding Amount of the Notes, acting together as a single 25 33 class, a written notice specifying such default or incorrect representation or warranty and requiring it to be remedied and stating that such notice is a notice of Default hereunder; (d) any representation or warranty of the Issuer made in this Indenture or in any certificate or other writing delivered pursuant hereto or in connection herewith shall prove to have been incorrect in any material respect as of the time when the same shall have been made, and such default shall continue or not be cured, or the circumstance or condition in respect of which such misrepresentation or warranty was incorrect shall not have been eliminated or otherwise cured, for a period of 30 days after there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Holders of at least 25% of the Outstanding Amount of the Notes, acting together as a single Class, a written notice specifying such default or incorrect representation or warranty and requiring it to be remedied and stating that such notice is a notice of Default hereunder; (e) the filing of a decree or order for relief by a court having jurisdiction in the premises in respect of the Issuer or any substantial part of the Trust Estate in an involuntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of the Trust Estate, or ordering the winding-up or liquidation of the Issuer's affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or (f) the commencement by the Issuer of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Issuer to the entry of an order for relief in an involuntary case under any such law, or the consent by the Issuer to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of the Trust Estate, or the making by the Issuer of any general assignment for the benefit of creditors, or the failure by the Issuer generally to pay its debts as such debts become due, or the taking of any action by the Issuer in furtherance of any of the foregoing. The Issuer shall deliver to the Indenture Trustee, within five Business Days after the occurrence thereof, written notice in the form of an Officer's Certificate of any Default which with the giving of notice or the lapse of time would become an Event of Default under clause (d), the status of such Default and any action the Issuer is taking or proposes to take with respect thereto. SECTION 5.02 Acceleration of Maturity; Rescission and Annulment. If an Event of Default should occur and be continuing, then and in every such case the Indenture Trustee or the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purposes the outstanding principal amount of any Notes held of record or beneficially owned by NMAC, NARC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates) may declare all the Notes to be immediately due and payable, by a notice in writing to the Issuer (and to the Indenture Trustee if given by Noteholders), and upon any such declaration the unpaid principal amount of such Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable. 26 34 At any time after such declaration of acceleration of maturity has been made and before a judgment or decree for payment of the money due has been obtained by the Indenture Trustee as hereinafter in this Article V provided, the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purposes the outstanding principal amount of any Notes held of record or beneficially owned by NMAC, NARC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), by written notice to the Issuer and the Indenture Trustee, may rescind and annul such declaration and its consequences if: (a) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay: (i) all payments of principal of and interest on the Notes and all other amounts that would then be due hereunder or upon such Notes if the Event of Default giving rise to such acceleration had not occurred; and (ii) all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel; and (b) all Events of Default, other than the nonpayment of the principal of the Notes that has become due solely by such acceleration, have been cured or waived as provided in Section 5.12. No such rescission shall affect any subsequent default or impair any right consequent thereto. SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee. (a) The Issuer covenants that if (i) default is made in the payment of any interest on any Note, so long as any amounts remain unpaid with respect to the Notes, when the same becomes due and payable, and such default continues for a period of five days, or (ii) default is made in the payment of the principal of or any installment of the principal of any Note when the same becomes due and payable, the Issuer will, upon demand of the Indenture Trustee, pay to the Indenture Trustee, for the benefit of the Holders of the Notes, the whole amount then due and payable on the Notes for principal and interest, with interest upon the overdue principal and, to the extent payment at such rate of interest shall be legally enforceable, upon overdue installments of interest at the rate borne by the Notes and in addition thereto such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel. (b) In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer or other obligor upon such Notes and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Notes, wherever situated, the moneys adjudged or decreed to be payable. 27 35 (c) If an Event of Default occurs and is continuing, the Indenture Trustee may, as more particularly provided in Section 5.04, in its discretion, proceed to protect and enforce its rights and the rights of the Noteholders and, incidentally thereto, the Certificateholders, by such appropriate Proceedings as the Indenture Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or by law. (d) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes or any Person having or claiming an ownership interest in the Trust Estate, Proceedings under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor or Person, or in case of any other comparable judicial Proceedings relative to the Issuer or other obligor upon the Notes, or to the creditors or property of the Issuer or such other obligor, then, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section, the Indenture Trustee shall be entitled and empowered, by intervention in such Proceedings or otherwise: (i) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes, and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence or bad faith) and of the Noteholders allowed in such Proceedings; (ii) unless prohibited by applicable law and regulations, to vote on behalf of the Holders of Notes in any election of a trustee, a standby trustee or Person performing similar functions in any such Proceedings; (iii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders and of the Indenture Trustee on their behalf; and (iv) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Holders of Notes allowed in any judicial proceedings relative to the Issuer, its creditors and its property. Any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee and, in the event that the Indenture Trustee shall consent to the making of payments 28 36 directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence or bad faith. (e) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person. (f) All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Holders of the Notes. (g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Noteholders, and it shall not be necessary to make any Noteholder a party to any such Proceedings. SECTION 5.04 Remedies; Priorities. (a) If an Event of Default shall have occurred and be continuing and result in the acceleration of the Notes, the Indenture Trustee shall make payments on the Notes and to the Owner Trustee as set forth in Section 5.06(d) of the Sale and Servicing Agreement, rather than pursuant to Section 5.06(c) thereof. (b) If the Indenture Trustee, in compliance with Section 5.04(a), is deemed to have a conflict of interest under the TIA and is required to resign as Indenture Trustee hereunder, the Issuer shall, pursuant to Section 6.08, cause the Servicer to appoint a successor Indenture Trustee. (c) In accordance with Section 5.04(b), if an Event of Default shall have occurred and be continuing, the Indenture Trustee may do one or more of the following (subject to Section 5.05): (i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Issuer and any other obligor upon such Notes moneys adjudged due; 29 37 (ii) institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Trust Estate; (iii) exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Noteholders; and (iv) sell the Trust Estate or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law; provided, however, that the Indenture Trustee may not sell or otherwise liquidate the Trust Estate following an Event of Default, other than an Event of Default described in Section 5.01(a) or (b), unless (A) the Holders of 100% of the Outstanding Amount of the Notes, voting as a single class, consent thereto (but excluding for purposes of such vote all Notes held or beneficially owned by NMAC, NARC or any of their Affiliates, unless at such time all of the Notes are held or beneficially owned by NMAC, NARC and their Affiliates), or (B) the proceeds of such sale or liquidation distributable to the Noteholders are sufficient to discharge in full all amounts then due and unpaid upon the Notes for principal and interest, or (C) the Indenture Trustee determines that the Trust Estate may not continue to provide sufficient funds on an ongoing basis to make all payments of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable, and the Indenture Trustee obtains the consent of Holders of a 66 2/3% of the Outstanding Amount of the Notes, voting as a single class (but excluding for purposes of such vote all Notes held or beneficially owned by NMAC, NARC or any of their Affiliates, unless at such time all of the Notes are held or beneficially owned by NMAC, NARC and their Affiliates). In determining such sufficiency or insufficiency with respect to clause (B) and (C), the Indenture Trustee may, but need not, obtain and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose. (d) The Indenture Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this Section. At least 15 days before such record date, the Issuer shall mail to each Noteholder and the Indenture Trustee a notice that states the related record date, payment date and amount to be paid. SECTION 5.05 Optional Preservation of the Receivables. If the Notes have been declared to be due and payable under Section 5.02 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may, unless otherwise directed by the Holders of at least a majority of the Outstanding Amount of the Notes, voting as a single class (excluding from such action and calculation any Notes held by NMAC, NARC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), but need not, elect to maintain possession of the Trust Estate and direct the Issuer, Servicer and Administrator not to take steps to liquidate the Receivables. It is the desire of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of principal of and interest on the Notes, and the Indenture Trustee shall take such desire into account when determining whether or not to maintain possession of the Trust Estate. In determining whether to maintain possession 30 38 of the Trust Estate, the Indenture Trustee may, but need not, obtain and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose. SECTION 5.06 Limitation of Suits. No Holder of any Note shall have any right to institute any Proceeding, judicial or otherwise, with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder unless such Holder has previously given written notice to the Indenture Trustee of a continuing Event of Default, and: (a) the Event of Default arises from the Servicer's failure to remit payments when due; or (b) the Holders of not less than 25% of the Outstanding Amount of the Notes, voting as a single class (excluding for such purpose the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates) have made written request to the Indenture Trustee to institute such Proceeding in respect of such Event of Default in its own name as Indenture Trustee hereunder and have offered to the Indenture Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in complying with such request and the Indenture Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute such Proceedings. It is understood and intended that no one or more Holders of Notes shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Holders of Notes or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided. In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Holders of Notes, each representing less than a majority of the Outstanding Amount of the Notes, the Indenture Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture. SECTION 5.07 Unconditional Rights of Noteholders To Receive Principal and Interest. Notwithstanding any other provisions in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Note on or after the respective due dates thereof expressed in such Note and in this Indenture (in each case with reference to the calculations to be made pursuant to the Sale and Servicing Agreement) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. SECTION 5.08 Restoration of Rights and Remedies. If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, 31 39 be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted. SECTION 5.09 Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the Indenture Trustee or any Holder of any Note to exercise any right or remedy accruing upon any Default or Event of Default shall impair any such right or remedy or constitute a waiver of any such Default or Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be. SECTION 5.11 Control by Noteholders. The Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purpose the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to the Notes or exercising any trust or power conferred on the Indenture Trustee; provided that: (a) such direction shall not be in conflict with any rule of law or with this Indenture; and (b) any direction to the Indenture Trustee to sell or liquidate the Trust Estate shall be by Holders of Notes representing not less than the applicable percentage of the Outstanding Amount of the Notes set forth in Section 5.04(c)(iv); and (c) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction. Notwithstanding the rights of Noteholders set forth in this Section, subject to Section 6.01, the Indenture Trustee need not take any action that it determines might involve it in liability or might materially adversely affect the rights of any Noteholders not consenting to such action. SECTION 5.12 Waiver of Past Defaults. Prior to the declaration of the acceleration of the maturity of the Notes as provided in Section 5.02 or the liquidation or sale of the Trust Estate pursuant to Section 5.04, the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purposes the outstanding principal amount of any Notes held of record or beneficially owned by NMAC, NARC or any of their 32 40 Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates) may waive any past Default or Event of Default and its consequences except a Default or Event of Default in (a) the deposit of collections or other required amounts, (b) any required payment from amounts held in Accounts in respect of amounts due on the Notes, (c) payment of principal or interest on the Notes, or (d) an Event of Default in respect of a covenant or provision hereof that cannot be modified or amended without the consent of the Holder of each Note. In the case of any such waiver, the Issuer, the Indenture Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder, respectively. Upon any such waiver, such Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto. SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Note or Note Owner by such Holder's acceptance of such Note or beneficial interest therein, as the case may be, shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder, or a group of Noteholders, in each case holding in the aggregate more than 10% of the Outstanding Amount of the Notes, (c) any suit instituted by any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the respective due dates expressed in such Note and in this Indenture. SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner whatsoever, claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Trust Estate or upon any 33 41 of the assets of the Issuer. Any money or property collected by the Indenture Trustee shall be applied in accordance with Section 5.04(a). SECTION 5.16 Performance and Enforcement of Certain Obligations. (a) Promptly following a request from the Indenture Trustee to do so and at the Administrator's expense, the Issuer shall take all such lawful action as the Indenture Trustee may request to compel or secure the performance and observance by the Seller and the Servicer, as applicable, of each of their obligations to the Issuer or to each other under or in connection with the Sale and Servicing Agreement or by the Seller of its remedies under or in connection with the Purchase Agreement, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with the Sale and Servicing Agreement or the Purchase Agreement to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default on the part of the Seller or the Servicer thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Seller or the Servicer of each of their respective obligations under the Sale and Servicing Agreement or the Purchase Agreement. (b) If an Event of Default has occurred and is continuing, the Indenture Trustee may, and at the direction (which direction shall be in writing or by telephone, confirmed in writing promptly thereafter) of the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purposes the outstanding principal amount of any Notes held of record or beneficially owned by NMAC, NARC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), shall, exercise all rights, remedies, powers, privileges and claims of the Issuer against the Seller or the Servicer under or in connection with the Sale and Servicing Agreement or the Purchase Agreement, or against the Administrator under the Administration Agreement, including the right or power to take any action to compel or secure performance or observance by the Seller, the Servicer or the Administrator, of each of their obligations to the Issuer thereunder and to give any consent, request, notice, direction, approval, extension, or waiver thereunder and any right of the Issuer to take such action shall be suspended. ARTICLE VI The Indenture Trustee SECTION 6.01 Duties of Indenture Trustee. The Indenture Trustee, both prior to and after the occurrence of a Servicer Default under the Sale and Servicing Agreement, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. (a) The Indenture Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Indenture Trustee that shall be specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they conform on their face to the requirements of this Indenture. 34 42 (b) No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, its own bad faith or its own willful misfeasance; provided, however, that: (i) the duties and obligations of the Indenture Trustee shall be determined solely by the express provisions of this Indenture, the Indenture Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee, the permissive right of the Indenture Trustee to do things enumerated in this Indenture shall not be construed as a duty and, in the absence of bad faith on the part of the Indenture Trustee, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Indenture Trustee and conforming on their face to the requirements of this Indenture; (ii) the Indenture Trustee shall not be personally liable for an error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Indenture Trustee was negligent in performing its duties in accordance with the terms of this Indenture; and (iii) the Indenture Trustee shall not be personally liable with respect to any action taken, suffered or omitted to be taken in good faith in accordance with the direction of (i) the Holders of at least a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purposes the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), relating to the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee, or exercising any trust or power conferred upon the Indenture Trustee under this Indenture. (c) The Indenture Trustee shall not be required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Indenture, or in the exercise of any of its rights or powers, if there shall be reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) All information obtained by the Indenture Trustee regarding the Obligors and the Receivables contained in the Trust, whether upon the exercise of its rights under this Indenture or otherwise, shall be maintained by the Indenture Trustee in confidence and shall not be disclosed to any other Person, unless such disclosure is required by any applicable law or regulation or pursuant to subpoena. (e) If (i) pursuant to Section 3.02 of the Sale and Servicing Agreement, a Responsible Officer of the Indenture Trustee discovers that a representation or warranty with respect to a Receivable was incorrect as of the time specified with respect to such representation and warranty and such incorrectness materially and adversely affects such Receivable, or (ii) pursuant to Section 4.06 of the Sale and Servicing Agreement, a Responsible Officer of the 35 43 Indenture Trustee discovers that a covenant of the Servicer has been breached with respect to a Receivable that would materially and adversely affect such Receivable, the Indenture Trustee shall give prompt written notice to the Servicer and the Owner Trustee of such incorrectness. SECTION 6.02 Rights of Indenture Trustee. (a) Except as otherwise provided in Section 6.01: (i) the Indenture Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officer's Certificate, certificate of an authorized signatory, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (ii) the Indenture Trustee may consult with counsel and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted by it under this Indenture in good faith and in accordance with such Opinion of Counsel; (iii) the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or the Sale and Servicing Agreement, or to institute, conduct or defend any litigation under this Indenture, or in relation to this Indenture or the Sale and Servicing Agreement, at the request, order or direction of any of the Noteholders pursuant to the provisions of this Indenture or the Sale and Servicing Agreement, unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; (iv) the Indenture Trustee shall not be personally liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (v) the Indenture Trustee shall not be bound to recalculate, reverify, or make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of Notes evidencing not less than 25% of the aggregate Outstanding Amount of the Notes; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding; the reasonable expense of every such examination shall be paid by the Administrator or, if paid by the Indenture Trustee, shall be reimbursed by the Administrator upon demand; and nothing in this clause shall derogate from the obligation of the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors; and 36 44 (vi) the Indenture Trustee may execute any of the trusts or powers under this Indenture or perform any duties under this Indenture either directly or by or through agents or attorneys or a custodian. (b) No Noteholder will have any right to institute any proceeding with respect to this Indenture except upon satisfying the conditions set forth in Section 5.06. SECTION 6.03 Individual Rights of Indenture Trustee. The Indenture Trustee in its individual or any other capacity may become the Holder, beneficial owner or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may do the same with like rights. However, in so doing the Indenture Trustee must comply with Sections 6.11 and 6.12. SECTION 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes (other than the execution by the Indenture Trustee on behalf of the Trust of, and the certificate of authentication on, the Notes), or of the Certificates. The Indenture Trustee shall have no obligation to perform any of the duties of the Servicer or the Administrator unless explicitly set forth in this Indenture. The Indenture Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity and enforceability of the Notes or any Receivable, any ownership interest in any Financed Vehicle, or the maintenance of any such ownership interest, or for or with respect to the efficacy of the Trust or its ability to generate the payments to be distributed to Noteholders under this Indenture, including without limitation the validity of the assignment of the Receivables to the Trust or of any intervening assignment; the existence, condition, location and ownership of any Receivable or Financed Vehicle; the existence and enforceability of any physical damage or credit life or credit disability insurance; the existence and contents of any retail installment sales contract or any computer or other record thereof; the completeness of any retail installment sales contract; the performance or enforcement of any retail installment sales contract; the compliance by the Issuer with any covenant or the breach by the Issuer, Seller or Servicer of any warranty or representation made under this Indenture or in any Basic Document or other related document and the accuracy of any such warranty or representation prior to the Indenture Trustee's receipt of notice or other discovery of any noncompliance therewith or any breach thereof; the acts or omissions of the Issuer, Seller or the Servicer; or any action by the Indenture Trustee taken at the instruction of the Servicer, provided, however, that the foregoing shall not relieve the Indenture Trustee of its obligation to perform its duties under this Indenture. Except with respect to a claim based on the failure of the Indenture Trustee to perform its duties under this Indenture or based on the Indenture Trustee's willful misconduct, bad faith or negligence, no recourse shall be had for any claim based on any provision of this Indenture, the Notes or Certificates or assignment thereof against the institution serving as the Indenture Trustee in its individual capacity. The Indenture Trustee shall not have any personal obligation, liability or duty whatsoever to any Noteholder or any other Person with respect to any such claim, and any such claim shall be asserted solely against the Trust or any indemnitor who shall furnish indemnity as provided in this Indenture. The Indenture Trustee shall not be accountable for the use or application by the Issuer of any of the Notes or of the proceeds of such Notes, or for the use or application of any funds paid to the Servicer in respect of the Notes. 37 45 SECTION 6.05 Notice of Defaults. If a Responsible Officer of the Indenture Trustee knows that a Default has occurred and is continuing, the Indenture Trustee shall mail to each Noteholder notice of such Default within 10 days of the occurrence thereof. Except in the case of a Default in payment of principal of or interest on any Note, the Indenture Trustee may withhold such notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Noteholders. SECTION 6.06 Reports by Indenture Trustee to Holders. The Indenture Trustee shall deliver or cause to be delivered annually to each Noteholder of record such information as may be required to enable such holder to prepare its federal and state income tax returns. The Indenture Trustee shall also deliver or cause to be delivered annually to each Noteholder of record a report relating to its eligibility and qualification to continue as Indenture Trustee under this Indenture, any amounts advanced by it under this Indenture, the amount, interest rate and maturity date of certain indebtedness owed by the Trust to such Indenture Trustee, in its individual capacity, the property and funds physically held by such Indenture Trustee in its capacity as such, and any action taken by it that materially affects the Notes and that has not been previously reported. SECTION 6.07 Compensation and Indemnity. The Issuer shall pay or shall cause the Servicer to pay to the Indenture Trustee from time to time reasonable compensation for its services. The Indenture Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse or shall cause the Servicer to reimburse the Indenture Trustee for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustee's agents, counsel, accountants and experts. The Administrator shall indemnify or shall cause the Servicer to indemnify the Indenture Trustee against any and all loss, liability or expense (including reasonable attorneys' fees) incurred by it in connection with the administration of this trust and the performance of its duties hereunder. The Indenture Trustee shall notify the Administrator and the Servicer promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Administrator and the Servicer shall not relieve the Administrator or the Servicer of its obligations hereunder. The Administrator shall defend or shall cause the Servicer to defend any such claim, and the Indenture Trustee may have separate counsel and the Administrator shall pay or shall cause the Servicer to pay the fees and expenses of such counsel. Neither the Administrator nor the Servicer need reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustee's own willful misconduct, negligence or bad faith. The Administrator's payment obligations to the Indenture Trustee pursuant to this Section shall survive the discharge of this Indenture. When the Indenture Trustee incurs expenses after the occurrence of a Default specified in Section 5.01(f) or (g) with respect to the Issuer, the expenses are intended to constitute expenses of administration under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or similar law. SECTION 6.08 Replacement of Indenture Trustee. The Indenture Trustee may resign at any time by providing written notice of its resignation to the Issuer. The Administrator may remove the Indenture Trustee if: 38 46 (a) the Indenture Trustee fails to comply with Section 6.11; (b) the Indenture Trustee is adjudged a bankrupt or insolvent; (c) a receiver or other public officer takes charge of the Indenture Trustee or its property; or (d) the Indenture Trustee otherwise becomes legally or practically incapable of fulfilling its duties hereunder. If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Servicer shall promptly appoint a successor Indenture Trustee. No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee shall become effective until the acceptance of appointment by the successor Indenture Trustee pursuant to this Section 6.08. A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee, to the Servicer and to the Administrator. Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all the rights, powers and duties of the Indenture Trustee under this Indenture. The successor Indenture Trustee shall mail a notice of its succession to Noteholders. The retiring Indenture Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor Indenture Trustee. If a successor Indenture Trustee does not take office within 30 days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Administrator or the Holders of a majority in Outstanding Amount of the Notes may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee. If the Indenture Trustee fails to comply with Section 6.11, any Noteholder may at any time thereafter petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee. Notwithstanding the replacement of the Indenture Trustee pursuant to this Section, the Issuer's and the Administrator's obligations under Section 6.07 shall continue for the benefit of the retiring Indenture Trustee. SECTION 6.09 Successor Indenture Trustee by Merger. If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee if such surviving Person or transferee corporation or banking shall be otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall provide the Issuer, the Servicer and the Rating Agencies reasonable prior written notice of any such transaction. In case at the time such successor or successors by merger, conversion or consolidation to the Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall 39 47 have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Indenture Trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Notes or in this Indenture provided that the certificate of the Indenture Trustee shall have. SECTION 6.10 Appointment of Co-Indenture Trustee or Separate Indenture Trustee. (a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Trust Estate may at the time be located, the Indenture Trustee shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Trust, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Trust Estate, or any part hereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Indenture Trustee may consider necessary or desirable. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a trustee under Section 6.11 and no notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.08 hereof. (b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights, powers, duties and obligations conferred or imposed upon such separate trustee or co-trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Indenture Trustee joining in and/or directing such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to the Trust Estate or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee; (ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and (iii) the Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee. (c) Any notice, request or other writing given to the Indenture Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall 40 48 refer to this Agreement and the conditions of this Article VI. Each separate trustee and co-trustee, upon its acceptance of the trusts thereupon conferred, shall be vested with the estates or property specified in its instrument of appointment, either jointly with the Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee. (d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Indenture Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition and it or its parent shall have a long-term debt rating of "Baa3" or better by Moody's or shall otherwise be acceptable to Moody's. The Indenture Trustee shall comply with TIA Section 310(b), including the optional provision permitted by the second sentence of TIA Section 310(b)(9); provided, however, that there shall be excluded from the operation of TIA Section 310(b)(1) any indenture or indentures under which other securities of the Issuer are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(1) are met. SECTION 6.12 Preferential Collection of Claims Against Issuer. The Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated. SECTION 6.13 Acknowledgement by Indenture Trustee of its Obligations Under the Sale and Servicing Agreement. The Indenture Trustee hereby agrees and consents to the provisions of the Sale and Servicing Agreement applicable to it (including, without limitation, Sections 5.06, 5.07, 5.09 thereof) and agrees to be bound by such provisions. ARTICLE VII Noteholders' Lists and Reports SECTION 7.01 Note Registrar To Furnish Names and Addresses of Noteholders. The Note Registrar shall furnish or cause to be furnished to the Indenture Trustee, the Owner Trustee, the Servicer or the Administrator, within 15 days after receipt by the Note Registrar of a written request therefrom, a list of the names and addresses of the Noteholders of any Class as of the most recent Record Date. If three or more Noteholders, or one or more Holders evidencing not less than 25% of the Outstanding Amount of the Notes (hereinafter referred to as "Applicants"), apply in writing to the Indenture Trustee, and such application states that the 41 49 Applicants desire to communicate with other Noteholders with respect to their rights under this Indenture or under the Notes and such application is accompanied by a copy of the communication that such Applicants propose to transmit, then the Indenture Trustee shall, within five Business Days after the receipt of such application, afford such Applicants access, during normal business hours, to the current list of Noteholders. Such Indenture Trustee may elect not to afford the requesting Noteholders access to the list of Noteholders if it agrees to mail the desired communication by proxy, on behalf of and at the expense of the requesting Noteholders, to all Noteholders. Every Noteholder, by receiving and holding a Note, agrees with the Indenture Trustee and the Issuer that none of the Indenture Trustee, the Owner Trustee, the Issuer, the Servicer or the Administrator shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Noteholders under this Indenture, regardless of the source from which such information was derived. If the Indenture Trustee shall cease to be the Note Registrar, then thereafter the Administrator will furnish or cause to be furnished to the Indenture Trustee not more than five days after the most recent Record Date or at such other times as the Indenture Trustee reasonably may request in writing, a list, in such form as the Indenture Trustee reasonably may require, of the names and addresses of the Holders of Notes as of such Record Date. SECTION 7.02 Preservation of Information; Communications to Noteholders. (a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Holders of Notes contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.01 and the names and addresses of Holders of Notes received by the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any list furnished to it as provided in such Section 7.01 upon receipt of a new list so furnished. (b) Noteholders may communicate pursuant to TIA Section 312(b) with other Noteholders with respect to their rights under this Indenture or under the Notes. (c) The Issuer, the Indenture Trustee and the Note Registrar shall have the protection of TIA Section 3.12(c). SECTION 7.03 Reports by Issuer. (a) The Issuer shall: (i) file with the Indenture Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Issuer may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act; (ii) file with the Indenture Trustee and the Commission in accordance with the rules and regulations prescribed from time to time by the Commission such additional information, documents and reports with respect to compliance by the Issuer with the 42 50 conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders described in TIA Section 313(c)) such summaries of any information, documents and reports required to be filed by the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) and by rules and regulations prescribed from time to time by the Commission. (b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on March 31 of each year. SECTION 7.04 Reports by Indenture Trustee. If required by TIA Section 313(a), within 60 days after each anniversary of the Closing Date beginning with January 27, 2001, the Indenture Trustee shall mail to each Noteholder as required by TIA Section 313(c) a brief report dated as of such date that complies with TIA Section 313(a). The Indenture Trustee also shall comply with TIA Section 313(b). A copy of each report at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on which the Notes are listed. The Issuer shall notify the Indenture Trustee if and when the Notes are listed on any stock exchange. ARTICLE VIII Accounts, Disbursements and Releases SECTION 8.01 Collection of Money. Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply all such money received by it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Trust Estate, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any right to claim a Default or Event of Default under this Indenture and any right to proceed thereafter as provided in Article V. SECTION 8.02 Accounts. (a) On or prior to the Closing Date, the Issuer shall cause the Servicer to establish and maintain, in the name of the Indenture Trustee, for the benefit of the Noteholders and, to the extent set forth herein, the Certificateholders, the Collection Account as provided in Section 5.01 of the Sale and Servicing Agreement. (b) On or prior to the Closing Date, the Issuer will cause the Seller to, pursuant to the Securities Account Control Agreement, establish and maintain with the Indenture Trustee, for the 43 51 benefit of the Noteholders, the Reserve Account and the Yield Supplement Account as provided in Section 5.07 and Section 5.08, respectively, of the Sale and Servicing Agreement. (c) The Indenture Trustee shall transfer all amounts remaining on deposit in the Collection Account on the Distribution Date on which the Notes of all Classes have been paid in full (or substantially all of the Trust Estate is otherwise released from the lien of this Indenture) to the Trust Collection Account and shall take all necessary or appropriate actions to transfer all of its right, title and interest in the Collection Account, all funds or investments held therein and all proceeds thereof, whether or not on behalf of the Securityholders, to the Owner Trustee for the benefit of the Certificateholders, subject to the limitations set forth herein with respect to amounts held for payment to Noteholders that do not promptly deliver a Note for payment on such Distribution Date. SECTION 8.03 General Provisions Regarding Accounts. (a) So long as no Default or Event of Default shall have occurred and be continuing, all or a portion of the funds in the Collection Account shall be invested in Eligible Investments and reinvested by the Indenture Trustee at the written direction of the Servicer, subject to the provisions of Section 5.01 of the Sale and Servicing Agreement. All income or other gain from investments of moneys deposited in the Collection Account shall be deposited by the Indenture Trustee in the Collection Account and paid to the Servicer as servicing compensation on each Distribution Date, and any loss resulting from such investments shall be charged to such account. The Servicer will not direct the Indenture Trustee, and the Issuer shall cause the Servicer not, to make any investment of any funds or to sell any investment held in the Collection Account unless the security interest Granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (b) So long as no Default or Event of Default shall have occurred and be continuing, all or a portion of the funds in the Reserve Account and the Yield Supplement Account shall be invested in Eligible Investments and reinvested by the Indenture Trustee at the written direction of the Servicer, subject to the provisions of Section 5.07 and Section 5.08, respectively, of the Sale and Servicing Agreement and the provisions of the Securities Account Control Agreement. All income or other gain from investments of moneys deposited in the Reserve Account shall be paid by the Indenture Trustee to the Seller on each Distribution Date. All income or other gain from investments of moneys deposited in the Yield Supplement Account shall be deposited into the Collection Account on each Distribution Date. Subject to the right of the Indenture Trustee to make withdrawals therefrom, as directed by the Servicer, for the purposes and in the amounts set forth in Section 5.06 of the Sale and Servicing Agreement, the Reserve Account and the Yield Supplement Account and all funds held therein shall be the property of the Seller and not the property of the Trust, the Owner Trustee or the Indenture Trustee. The Seller will grant to the Indenture Trustee, for the benefit of the Noteholders, a security interest in all funds (including Eligible Investments) in the Reserve Account and the Yield Supplement Account (including the Reserve Account Initial Deposit and the Initial Yield Supplement Amount) and the proceeds thereof, and the Indenture Trustee shall have all of the rights of a secured party 44 52 under the UCC with respect thereto; provided that all income from the investment of funds in the Reserve Account, and the right to receive such income are retained by the Seller and are not transferred, assigned or otherwise conveyed hereunder. The Servicer will not direct the Indenture Trustee to make any investment of any funds or to sell any investment held in the Reserve Account or the Yield Supplement Account unless the security interest granted and perfected in such account will continue to be perfected in such investment or the proceeds of such sale, in either case without any further action by any Person, and, in connection with any direction to the Indenture Trustee to make any such investment or sale, if requested by the Indenture Trustee, the Servicer shall deliver to the Indenture Trustee an Opinion of Counsel, acceptable to the Indenture Trustee, to such effect. (c) Subject to Section 6.01(c), the Indenture Trustee shall not in any way be held liable by reason of any insufficiency in the Collection Account, the Reserve Account or the Yield Supplement Account resulting from any loss on any Eligible Investment included therein at the direction of the Servicer, except for losses attributable to the Indenture Trustee's failure to make payments on such Eligible Investments issued by the Indenture Trustee, in its commercial capacity as principal obligor and not as trustee, in accordance with the terms thereof. (d) If (i) the Servicer shall have failed to give investment directions for any funds on deposit in the Collection Account, the Reserve Account or the Yield Supplement Account, to the Indenture Trustee by 5:00 p.m. Eastern Time (or such other time as may be agreed by the Servicer and Indenture Trustee) on any Business Day or (ii) a Default or Event of Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to Section 5.02 or (iii) if such Notes shall have been declared due and payable following an Event of Default, amounts collected or receivable from the Trust Estate are being applied in accordance with Section 5.05 as if there had not been such a declaration, then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in the Accounts in one or more Eligible Investments specified in clauses (i), (iv) or (vi) of the definition of Eligible Investments provided in the Sale and Servicing Agreement. If the Indenture Trustee invests and reinvests funds in the Reserve Account or the Yield Supplement Account pursuant to clause (ii) or clause (iii) above, the Indenture Trustee shall issue a prohibition notice to the securities intermediary as provided in the Securities Account Control Agreement. If the Default or Event of Default that caused the Indenture Trustee to assume control over the investment of funds in the Reserve Account and Yield Supplement Account has been waived and the acceleration, if any, of the Notes has been rescinded, the Indenture Trustee shall issue a rescission of prohibition notice to the securities intermediary as provided in the Securities Account Control Agreement. SECTION 8.04 Release of Trust Estate. (a) Subject to the payment of its fees and expenses pursuant to Section 6.07, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee's interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article VIII shall be bound to ascertain the Indenture Trustee's 45 53 authority, inquire into the satisfaction of any conditions precedent or see to the application of any moneys. (b) The Indenture Trustee shall, at such time as there are no Notes outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have been paid, release any remaining portion of the Trust Estate that secured the Notes from the lien of this Indenture and release to or to the order of the Issuer, or, in the case of the Reserve Account or the Yield Supplement Account, to the Seller, any funds entitled thereto then on deposit in the Collection Account, the Reserve Account and the Yield Supplement Account, as the case may be. The Indenture Trustee shall release property from the lien of this Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer Request accompanied by an Officer's Certificate and (if required by the TIA) Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section 11.01. SECTION 8.05 Release of Receivables Upon Purchase by the Seller or the Servicer. (a) Upon repurchase of any Receivable by the Seller pursuant to Section 3.02 of the Sale and Servicing Agreement or any purchase of any Receivable by the Servicer pursuant to Section 4.06 or Section 9.01 of the Sale and Servicing Agreement, the Indenture Trustee, on behalf of the Noteholders, shall, without further action, be deemed to release from the Lien of this Indenture such repurchased Receivable, all monies due or to become due with respect thereto and all proceeds thereof and the other property with respect to such Receivable, and all security and any documents relating thereto, and the Seller or the Servicer, as applicable, shall thereupon own each such Receivable, and all such related security and documents, free of any further obligation to the Issuer, the Indenture Trustee or the Noteholders with respect thereto. (b) The Indenture Trustee shall execute such documents and instruments and take such other actions as shall be reasonably requested by the Seller or the Servicer, as the case may be, to effect the release of such Receivable pursuant hereto and the assignment of such Receivable by the Issuer pursuant to Section 9.02 of the Sale and Servicing Agreement. SECTION 8.06 Opinion of Counsel. The Indenture Trustee shall receive at least seven days notice when requested by the Issuer to take any action pursuant to Section 8.04(a), accompanied by copies of any instruments involved, and the Indenture Trustee shall also require, except in connection with any action contemplated by Section 8.04(b), as a condition to such action, an Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action will not materially and adversely impair the security for the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture; provided, however, that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Trust Estate. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action. 46 54 ARTICLE IX Supplemental Indentures SECTION 9.01 Supplemental Indentures Without Consent of Noteholders. (a) Without the consent of the Holders of any Notes but with prior notice to the Rating Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto (which shall conform to the provisions of the TIA as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes: (i) to correct or amplify the description of any property at any time subject to the lien of this Indenture, or to better assure, convey and confirm unto the Indenture Trustee any property subject or required to be subjected to the lien of this Indenture, or to subject to the lien of this Indenture additional property; (ii) to evidence the succession, in compliance with the applicable provisions hereof, of another person to the Issuer, and the assumption by any such successor of the covenants of the Issuer contained herein and in the Notes; (iii) to add to the covenants of the Issuer, for the benefit of the Holders of the Notes, or to surrender any right or power herein conferred upon the Issuer; (iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee; (v) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture that may be inconsistent with any other provision herein or in any supplemental indenture or to make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture to the extent such action shall not adversely affect the interests of the Holders of the Notes; (vi) to evidence and provide for the acceptance of the appointment hereunder by a successor trustee with respect to the Notes and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Article VI; or (vii) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the TIA or under any similar federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the TIA. The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained. (b) The Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, also without the consent of any of the Holders of the Notes, enter into an indenture or indentures 47 55 supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided, however, that such action shall not materially and adversely affect the interests of any Noteholder. SECTION 9.02 Supplemental Indentures with Consent of Noteholders. The Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may, with prior notice to the Rating Agencies and with the consent of the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purpose the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), by Action of such Holders delivered to the Issuer and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Holders of the Notes under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby: (a) change the due date of any installment of principal of or interest on any Note, or reduce the principal amount thereof, the Interest Rate thereon or redemption price therefor, or change any place of payment where, or the coin or currency in which, any Note or the interest thereon is payable; (b) impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on the Notes on or after the respective due dates thereof; (c) reduce the percentage of the Outstanding Amount of the Notes, the consent of the Holders of which is required for any such supplemental indenture, or the consent of the Holders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture; (d) modify or alter the provisions of the proviso to the definition of the term "Outstanding"; (e) reduce the percentage of the Outstanding Amount of the Notes required to direct the Indenture Trustee to sell or liquidate the Trust Estate if the proceeds of that sale would be insufficient to pay the principal amount of and accrued but unpaid interest on the Notes pursuant to Section 5.04(c)(iv); (f) reduce any percentage required to amend the sections of the Indenture that specify the applicable percentage of Outstanding Amount of the Notes necessary to amend the Indenture; or (g) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Trust Estate or, except as otherwise permitted or contemplated herein, terminate the lien of this Indenture on any property at any time subject hereto or deprive the Holder of any Note of the security provided by the lien of this Indenture. 48 56 The Indenture Trustee may in its discretion determine whether or not any Notes would be adversely affected by any supplemental indenture and any such determination shall be conclusive upon the Holders of all Notes, whether theretofore or thereafter authenticated and delivered hereunder. The Indenture Trustee shall not be liable for any such determination made in good faith. It shall not be necessary for any Action of Noteholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Action shall approve the substance thereof. Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this Section, the Indenture Trustee shall mail to the Holders of the Notes to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. SECTION 9.03 Execution of Supplemental Indentures. In executing, or permitting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modification thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion of Counsel from external counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture that affects the Indenture Trustee's own rights, duties, liabilities or immunities under this Indenture or otherwise. SECTION 9.04 Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and shall be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuer and the Holders of the Notes shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 9.05 Conformity with Trust Indenture Act. Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act as then in effect so long as this Indenture shall then be qualified under the Trust Indenture Act. SECTION 9.06 Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuer or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared 49 57 and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes. ARTICLE X Release SECTION 10.01 Optional Purchase of All Receivables. If the Servicer or any successor to the Servicer shall notify the Owner Trustee and the Indenture Trustee of its intention to exercise the option granted to it in the Sale and Servicing Agreement to repurchase the outstanding Receivables primarily comprising the Owner Trust Estate, then the Owner Trustee and the Indenture Trustee shall give written notice thereof to each Securityholder and the Rating Agencies as soon as practicable after their receipt of notice from the Servicer. Upon deposit by the Servicer or any successor to the Servicer of the amount necessary to effect such purchase of the corpus of the Owner Trust Estate, the Indenture Trustee shall make the final distributions to the Noteholders and Certificateholders as set forth in Section 5.06 of the Sale and Servicing Agreement and shall promptly transfer all of its right, title and interest in and to any amounts or investments remaining on deposit in the Collection Account to the Owner Trustee, and in the Reserve Account and the Yield Supplement Account to the Seller (in any event excluding any portion thereof necessary to make distributions to Noteholders described in Section 3.03), and release from the lien of this Indenture all of the remaining Collateral. The Indenture Trustee shall execute, deliver and file all agreements, certificates, instruments or other documents necessary or reasonably requested by the Issuer in order to effect such release and the transfer to the Issuer of the Collateral. ARTICLE XI Miscellaneous SECTION 11.01 Compliance Certificates and Opinions, etc. (a) Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, the Issuer shall, upon written request therefor from the Indenture Trustee, furnish to the Indenture Trustee (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, and (iii) (if required by the TIA) an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no such written request from the Indenture Trustee need be furnished (and only such expressly required documents need be delivered in connection therewith). (b) Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (i) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto; 50 58 (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with. (c) (i) Prior to the deposit of any Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of any property or securities subject to the lien of this Indenture, the Issuer shall, in addition to any obligation imposed in Section 11.01(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an Officer's Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Issuer of the Collateral or other property or securities to be so deposited. (ii) Whenever the Issuer is required to furnish to the Indenture Trustee an Officer's Certificate certifying or stating the opinion of any signatory thereof as to the matters described in clause (i) above, the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value to the Issuer of the securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current calendar year of the Issuer, as set forth in the certificates delivered pursuant to clause (i) above and this clause (ii), is 10% or more of the Outstanding Amount of the Notes, but such a certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuer as set forth in the related Officer's Certificate is less than $25,000 or less than one percent of the Outstanding Amount of the Notes. (iii) Whenever any property or securities are to be released from the lien of this Indenture, the Issuer shall also furnish to the Indenture Trustee an Officer's Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof. (iv) Whenever the Issuer is required to furnish to the Indenture Trustee an Officer's Certificate certifying or stating the opinion of any signatory thereof as to the matters described in clause (iii) above, the Issuer shall also furnish to the Indenture Trustee an Independent Certificate as to the same matters if the fair value of the property or securities and of all other property, other than property as contemplated by clause (v) below or securities released from the lien of this Indenture since the commencement of the then-current calendar year, as set forth in the certificates required by clause (iii) above and this clause (iv), equals 10% or more of the Outstanding Amount of the Notes, but 51 59 such certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's Certificate is less than $25,000 or less than one percent of the then Outstanding Amount of the Notes. (v) Notwithstanding Section 2.09 or any other provision of this Section, the Issuer may, without compliance with the requirements of the other provisions of this Section, (A) collect, liquidate, sell or otherwise dispose of Receivables and Financed Vehicles as and to the extent permitted or required by the Basic Documents and (B) make cash payments out of the Accounts as and to the extent permitted or required by the Basic Documents so long as the Issuer shall deliver to the Indenture Trustee every six months, commencing July 30, 2000, an Officer's Certificate of the Issuer stating that all such dispositions of Collateral that occurred during the preceding six calendar months were in the ordinary course of the Issuer's business and that the proceeds thereof were applied in accordance with the Basic Documents. SECTION 11.02 Form of Documents Delivered to Indenture Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which such officer's certificate or opinion is based are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Servicer, the Seller, the Issuer or the Administrator, stating that the information with respect to such factual matters is in the possession of the Servicer, the Seller, the Issuer or the Administrator, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer's compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, 52 60 however, be construed to affect the Indenture Trustee's right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI. SECTION 11.03 Acts of Noteholders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Action" of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section. (b) The fact and date of the execution by any person of any such instrument or writing may be proved in any manner that the Indenture Trustee deems sufficient. (c) The ownership of Notes shall be proved by the Note Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Notes shall bind the Holder of every Note issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note. SECTION 11.04 Notices to Indenture Trustee, Issuer and Rating Agencies. Any request, demand, authorization, direction, notice, consent, waiver or Action of Noteholders or other documents provided or permitted by this Indenture shall be in writing and if such request, demand, authorization, direction, notice, consent, waiver or Action of Noteholders is to be made upon, given or furnished to or filed with: (a) the Indenture Trustee by any Noteholder or by the Issuer, it shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Indenture Trustee at its Corporate Trust Office, or (b) the Issuer by the Indenture Trustee or by any Noteholder, it shall be sufficient for every purpose hereunder if in writing and mailed first-class, postage prepaid to the Issuer addressed to: Nissan Auto Receivables 2000-A Owner Trust, c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Nissan Auto Receivables 2000-A Owner Trust, with a copy to Nissan Motor Acceptance Corporation, 990 West 190th Street, Torrance, California 90502, Attention: Secretary, or at any other address previously furnished in writing to the Indenture Trustee by the Issuer or the Administrator. The Issuer shall promptly transmit any notice received by it from the Noteholders to the Indenture Trustee. 53 61 Notices required to be given to the Rating Agencies by the Issuer, the Indenture Trustee or the Owner Trustee shall be in writing, personally delivered or mailed by certified mail, return receipt requested, to (i) in the case of Moody's, at the following address: Moody's Investors Service, Inc., ABS Monitoring Department, 99 Church Street, New York, New York 10007, and (ii) in the case of Standard & Poor's, at the following address: Standard & Poor's Ratings Services, 55 Water Street, New York, New York 10041-0003, Attention: Asset Backed Surveillance Department, or as to each of the foregoing, at such other address as shall be designated by written notice to the other parties. SECTION 11.05 Notices to Noteholders; Waiver. Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid to each Noteholder affected by such event, at his address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given. Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver. In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event to Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice. Where this Indenture provides for notice to the Rating Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute a Default or Event of Default. SECTION 11.06 Alternate Payment and Notice Provisions. Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuer may enter into any agreement with any Holder of a Note providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Holder, that is different from the methods provided for in this Indenture for such payments or notices. The Issuer will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements. SECTION 11.07 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. 54 62 The provisions of TIA Sections 310 through 317 that impose duties on any person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein. SECTION 11.08 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 11.09 Successors and Assigns. All covenants and agreements in this Indenture and the Notes by the Issuer shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents. SECTION 11.10 Severability. If any one or more of the covenants, agreements, provisions or terms of this Indenture shall be for any reason whatsoever held invalid or unenforceable in any jurisdiction, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Indenture and shall in no way affect the validity or enforceability of the other provisions of this Indenture or of the Notes or the Certificates or the rights of the Holders thereof. SECTION 11.11 Benefits of Indenture. Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, and the Noteholders, and any other party secured hereunder, and any other Person with an ownership interest in any part of the Trust Estate, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 11.12 Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. SECTION 11.13 Counterparts. This Indenture may be executed simultaneously in any number of counterparts, each of which shall be deemed to be an original, and all of which shall constitute but one and the same instrument. SECTION 11.14 Recording of Indenture. If this Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuer and at its expense accompanied by an Opinion of Counsel (which may be counsel to the Indenture Trustee or any other counsel reasonably acceptable to the Indenture Trustee) to the effect that such recording is necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture. SECTION 11.15 Trust Obligation. No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or Certificates or under this Indenture or any certificate or other writing delivered in 55 63 connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any Certificateholder or other owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, any Certificateholder or other owner of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. For all purposes of this Indenture, in the performance of any duties or obligations of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VI, VII and VIII of the Trust Agreement. SECTION 11.16 No Petition. The Indenture Trustee, by entering into this Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree that they will not at any time institute against the Seller or the Issuer, or join in any institution against the Seller or the Issuer 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 Notes, the Certificates or any of the Basic Documents. SECTION 11.17 Inspection. The Issuer agrees that, on reasonable prior notice, it will permit any representative of the Indenture Trustee, during the Issuer's normal business hours, to examine all the books of account, records, reports and other papers of the Issuer, to make copies and extracts therefrom, to cause (at the expense of the requesting party) such books to be audited by Independent certified public accountants, and to discuss the Issuer's affairs, finances and accounts with the Issuer's officers, employees, and Independent certified public accountants, all at such reasonable times and as often as may be reasonably requested. The Indenture Trustee shall and shall cause its representatives to hold in confidence all such information except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and except to the extent that the Indenture Trustee may reasonably determine that such disclosure is consistent with its obligations hereunder. 56 64 IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers, thereunto duly authorized and duly attested, all as of the day and year first above written. NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee By: /s/ James P. Lawler --------------------------- Name: James P. Lawler Title: Vice President NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee By: /s/ Marianna C. Stershic --------------------------- Name: Marianna C. Stershic Title: Assistant Vice President S-1 65 EXHIBIT A (Form of Class A-1 Note, Class A-2 Note, Class A-3 Note, and Class A-4 Note) UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO RECEIVABLES CORPORATION, NISSAN MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO., LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE RESERVE ACCOUNT AND THE YIELD SUPPLEMENT ACCOUNT. A-1 66 No._____ $__________ NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST CLASS [A-1][A-2][A-3][A-4] ___% ASSET BACKED NOTES Nissan Auto Receivables 2000-A Owner Trust, a business trust organized and existing under the laws of the State of Delaware (herein referred to as the "Issuer"), for value received, hereby promises to pay to ____________________, or registered assigns, the principal sum of _______________ DOLLARS ($__________) payable on each Distribution Date in an aggregate amount, if any, payable from the Collection Account in respect of the principal on the Class [A-1][A-2][A-3][A-4] Notes pursuant to Section 3.01 of the Indenture dated as of January 27, 2000 (the "Indenture"), between the Issuer and Norwest Bank Minnesota, National Association, as Indenture Trustee (the "Indenture Trustee") and Sections 5.06(c) and (d) of the Sale and Servicing Agreement dated as of January 27, 2000 among the Issuer, NARC, as Seller, and NMAC, as Servicer (which amounts shall be limited to the portion of Available Amounts specified in such sections); provided, however, that the entire unpaid principal amount of this Note shall be due and payable on the Distribution Date occurring in [________] (the "Class [A-1][A-2][A-3][A-4] Final Scheduled Distribution Date"). Capitalized terms used but not defined herein have the meanings ascribed thereto in the Indenture and the Sale and Servicing Agreement, as the case may be. The Issuer will pay interest on this Note at the rate per annum shown above on each Distribution Date until the principal of this Note is paid or made available for payment, on the principal amount of this Note outstanding on the preceding Distribution Date (after giving effect to all payments of principal made on the preceding Distribution Date), subject to certain limitations contained in Section 3.01 of the Indenture. Interest on this Note will accrue for each Distribution Date [from the Distribution Date during the calendar month preceding such Distribution Date (or in the case of the first Distribution Date, from the Closing Date)][during the period from, and including, the 15th day of the preceding calendar month (or, in the case of the initial period, from and including the Closing Date) to, but excluding, the 15th day of the month in which such Distribution Date occurs]. Interest will be computed on the basis specified in the Indenture for each Interest Period. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof. The principal of and interest on this Note is payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note. A-2 67 Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note. Unless the certificate of authentication hereon has been executed by the Indenture Trustee whose name appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof, or be valid or obligatory for any purpose. IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or in facsimile, by its Authorized Officer, as of the date set forth below. Date: ------------------- NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee under the Trust Agreement By: ----------------------------------- Authorized Signatory A-3 68 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Notes designated above and referred to in the within-mentioned Indenture. Date: --------------------- NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee By: ------------------------------------ Authorized Signatory A-4 69 This Note is one of a duly authorized issue of Notes of the Issuer, designated as [____]% Asset Backed Notes, Class [A-1][A-2][A-3][A-4] (herein called the "Class [A-1][A-2][A-3][A-4] Notes"), all issued under the Indenture, to which Indentures and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Holders of the Notes. The Class [A-1][A-2][A-3][A-4] Notes are subject to all terms of the Indenture. The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes (collectively, the "Notes") are and will be equally and ratably secured by the collateral pledged as security therefor as provided in the Indenture. Principal of the Class [A-1][A-2][A-3][A-4] Notes will be payable on each Distribution Date in an amount described in the Indenture. "Distribution Date" means the fifteenth day of each month, or, if any such date is not a Business Day, the next succeeding Business Day, commencing February 15, 2000. Notwithstanding the foregoing, the entire unpaid principal amount of the Notes shall be due and payable on the date on which an Event of Default shall have occurred and be continuing and the Indenture Trustee or the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purpose the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), have declared the Notes to be immediately due and payable in the manner provided in Section 5.02 of the Indenture or following the exercise by the Servicer of its option to purchase the Receivables pursuant to Section 9.01 of the Sale and Servicing Agreement and Section 10.01 of the Indenture. All principal payments on the Class [A-1][A-2][A-3][A-4] Notes shall be made pro rata to the Class [A-1][A-2][A-3][A-4] Noteholders entitled thereto. Payments of interest on this Note due and payable on each Distribution Date, together with the installment of principal, if any, to the extent not in full payment of this Note, shall be paid to the Person in whose name of such Note (or one or more Predecessor Notes) is registered on the Record Date. With respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payments will be made by wire transfer in immediately available funds to the account designated by such nominee, except for the final installment of principal payable with respect to such Note on a Distribution Date or on the applicable Final Scheduled Distribution Date, which shall be payable as provided below. Such payment will be made by check mailed first-class postage prepaid to such Person's address as it appears on the Note Register on such Record Date or by wire transfer to the account specified by the registered holder of any Note with a face amount of at least $10,000,000. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) effected by any payments made on any Distribution Date shall be binding upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the then remaining unpaid principal amount of this Note on a Distribution Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the Registered Holder hereof as of the Record Date preceding such Distribution Date by notice mailed or transmitted by A-5 70 facsimile prior to such Distribution Date, and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Indenture Trustee's principal Corporate Trust Office or at the office of the Indenture Trustee's agent appointed for such purposes located in The City of New York. The Issuer shall pay interest on overdue installments of interest at the Class [A-1][A-2][A-3][A-4] Rate to the extent lawful. As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Indenture Trustee as set forth in Section 2.04 of the Indenture, and thereupon one or more new Notes of authorized denominations and in the same aggregate principal amount will be issued to the designated transferee or transferees. No service charge will be charged for any registration of transfer or exchange of this Note, but the transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange. Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. The Holder of this Note by its acceptance hereof agrees that, except as expressly provided in the Basic Documents, in the case of an Event of Default under the Indenture, the Holder shall have no claim against any of the foregoing for any deficiency, loss or claim therefrom; provided, however, that nothing contained herein shall be taken to prevent recourse to, and enforcement against, the assets of the Issuer for any and all liabilities, obligations and undertakings contained in the Indenture or in this Note. Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees by accepting the benefits of the Indenture that such Noteholder or Note Owner will not at any time institute against the Seller or the Issuer, or join in any institution against the Seller or the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under any United States A-6 71 federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture or the Basic Documents. The Issuer has entered into the Indenture and this Note is issued with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness of the Issuer secured by the Trust Estate. Each Noteholder, by acceptance of a Note (and each Note Owner by acceptance of a beneficial interest in a Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness of the Issuer. Prior to the due presentment for registration of transfer of this Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Issuer, the Indenture Trustee or any such agent shall be affected by notice to the contrary. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Notes under the Indenture at any time by the Issuer and the Indenture Trustee, when authorized by an Issuer Order, with prior notice to the Rating Agencies and with the consent of the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purpose the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates). Section 5.12 of the Indenture also contains provisions permitting the Holders of a majority of the Outstanding Amount of the Notes, voting as a single class (excluding for such purpose the outstanding principal amount of any Notes held of record or beneficially owned by NARC, NMAC or any of their Affiliates, unless at such time all of the Notes are held of record or beneficially owned by NARC, NMAC or any of their Affiliates), on behalf of the Holders of all the Notes, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of Holders of the Notes issued thereunder. The term "Issuer" as used in this Note includes any successor to the Issuer under the Indenture. The Issuer is permitted by the Indenture, under certain circumstances, to merge or consolidate, subject to the rights of the Indenture Trustee and the Holders of Notes under the Indenture. A-7 72 The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth. This Note and the Indenture shall be construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate, and in the coin or currency herein prescribed. A-8 73 ASSIGNMENT Social Security or taxpayer I.D. or other identifying number of assignee:_______ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto: - -------------------------------------------------------------------------------- (name and address of assignee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints , attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. Dated: */ --------------------- Signature Guaranteed: */ --------------------- */ NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Note Registrar, which requirements include membership or participation in STAMP or such other "signature guarantee program" as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. EX-4.3 4 PURCHASE AGREEMENT 1 EXHIBIT 4.3 PURCHASE AGREEMENT This PURCHASE AGREEMENT is made as of this 27th day of January, 2000, by and between NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation (the "Seller"), having its principal executive office at 990 W. 190th Street, Torrance, California 90502, and NISSAN AUTO RECEIVABLES CORPORATION, a Delaware corporation (the "Purchaser"), having its principal executive office at 990 W. 190th Street, Torrance, California 90502. WHEREAS, in the regular course of its business, the Seller purchases certain motor vehicle retail installment sale contracts secured by new and used automobiles and light duty trucks from motor vehicle dealers. WHEREAS, the Seller and the Purchaser wish to set forth the terms pursuant to which the Receivables (as hereinafter defined) are to be sold by the Seller to the Purchaser, which Receivables will be transferred by the Purchaser pursuant to the Sale and Servicing Agreement (as hereinafter defined), to the NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST, which will issue notes backed by such Receivables and the other property of the Trust (the "Notes") and certificates representing fractional undivided interests in such Receivables and the other property of the Trust (the "Certificates"). NOW, THEREFORE, in consideration of the foregoing, other good and valuable consideration, and the mutual terms and covenants contained herein, the parties hereto agree as follows: ARTICLE I CERTAIN DEFINITIONS Terms not defined in this Agreement shall have the respective meanings assigned such terms set forth in the Sale and Servicing Agreement or Trust Agreement, as the case may be. As used in this Agreement, the following terms shall, unless the context otherwise requires, have the following meanings (such meanings to be equally applicable to the singular and plural forms of the terms defined): "Agreement" means this Purchase Agreement and all amendments hereof and supplements hereto. "Assignment" means the document of assignment attached to this Agreement as Exhibit A. "Certificates" shall have the meaning specified in the introductory paragraphs of this Agreement. 2 "Closing" shall have the meaning specified in Section 2.2. "Closing Date" means January 27, 2000. "Collections" means all amounts collected by the Servicer (from whatever source) on or with respect to the Receivables. "Damages" shall have the meaning specified in Section 5.4(a). "Distribution Date" means, for each Collection Period, the 15th day of the following month or, if such 15th day is not a Business Day, the next succeeding Business Day. "Notes" shall have the meaning specified in the introductory paragraphs of this Agreement. "Overextended Receivables" means the Receivables set forth on Schedule B to this Agreement. "Prospectus" has the meaning assigned to such term in the Underwriting Agreement. "Purchaser" means Nissan Auto Receivables Corporation, a Delaware corporation, and its successors and assigns. "Rating Agency" means Standard & Poor's Ratings Services, a Division of the McGraw-Hill Companies or Moody's Investors Service, Inc. or any successors thereto. "Receivable" means any retail installment sale contract that appears on the Schedule of Receivables. "Receivables Purchase Price" means $837,721,182.12. "Repurchase Event" shall have the meaning specified in Section 6.2. "Sale and Servicing Agreement" means the Sale and Servicing Agreement by and among Nissan Auto Receivables Corporation, as seller, Nissan Motor Acceptance Corporation, as servicer, and the Trust dated as of January 27, 2000, as the same may be amended, amended and restated, supplemented or modified. "Schedule of Receivables" means the list of Receivables annexed to the Assignment as Schedule A thereto. "Securities" means the Notes and the Certificates. "Seller" means Nissan Motor Acceptance Corporation, a California corporation, and its successors and assigns. "Trust" means the Nissan Auto Receivables 2000-A Owner Trust. 2 3 "Trust Agreement" means the Trust Agreement dated as of December 21, 1999, as amended by the Amended and Restated Trust Agreement by and between Nissan Auto Receivables Corporation, as seller, and Wilmington Trust Company, as owner trustee, dated as of January 27, 2000, as the same may be amended, amended and restated, supplemented or modified. "Underwriting Agreement" means the Underwriting Agreement by and between Chase Securities Inc. and the Purchaser, dated January 19, 2000. 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 PURCHASE AND SALE OF RECEIVABLES 2.1 Purchase and Sale of Receivables. On the Closing Date, subject to the terms and conditions of this Agreement, the Seller agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the Seller, the Receivables and the other property relating thereto (as defined below). (a) Transfer of Receivables. On the Closing Date and simultaneously with the transactions pursuant to the Sale and Servicing Agreement, the Seller shall sell, transfer, assign and otherwise convey to the Purchaser, without recourse, (i) all right, title and interest of the Seller in and to the Receivables (including all related Receivable Files) and all monies due thereon or paid thereunder or in respect thereof after the Cutoff Date; (ii) the right of the Seller in the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any related property; (iii) the right of the Seller in any proceeds from claims on any physical damage, credit life, credit disability or other insurance policies covering Financed Vehicles or Obligors; (iv) the right of the Seller to receive payments in respect of any Dealer Recourse with respect to the Receivables; 3 4 (v) the right of the Seller to realize upon any property (including the right to receive future Net Liquidation Proceeds) that shall have secured a Receivable; (vi) the right of the Seller in rebates of premiums and other amounts relating to insurance policies and other items financed under the Receivables in effect as of the Cutoff Date; and (vii) all proceeds of the foregoing; provided that the Seller shall not be required to deliver to the Purchaser on the Closing Date monies received in respect of the Receivables after the Cutoff Date and before the Closing Date but shall or shall cause the Servicer to deposit such monies into the Collection Account no later than the first Record Date after the Closing Date. (b) Receivables Purchase Price. In consideration for the Receivables and other properties described in Section 2.1(a), the Purchaser shall, on the Closing Date, pay to the Seller the Receivables Purchase Price. An amount equal to approximately 90.314% of the Receivables Purchase Price shall be paid to the Seller in cash, net of any costs of the Purchaser related to the establishment of the Trust and the offering of the Securities, by federal wire transfer (same day) funds. The remaining approximately 9.686% of the Receivables Purchase Price shall be deemed paid by the Purchaser to the Seller and then immediately returned by the Seller to the Purchaser as a contribution to capital. 2.2 The Closing. The sale and purchase of the Receivables shall take place at a closing (the "Closing") at the offices of O'Melveny & Myers LLP, 400 South Hope Street, Los Angeles, CA 90071 on the Closing Date, simultaneously with the closings under: (a) the Sale and Servicing Agreement pursuant to which (i) the Purchaser will assign all of its right, title and interests in and to the Receivables and other property conveyed pursuant to Section 2.1(a) to the Trust for the benefit of the Securityholders; and (ii) the Purchaser will deposit the foregoing into the Trust in exchange for the Securities; and (b) the Underwriting Agreement, pursuant to which the Purchaser will sell to the underwriters named therein the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4 Notes. ARTICLE III REPRESENTATIONS AND WARRANTIES 3.1 Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Seller as of the date hereof and as of the Closing Date: (a) Organization, etc. The Purchaser 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 execute and deliver this Agreement and to perform the terms and provisions hereof. (b) Due Authorization and No Violation. This Agreement has been duly authorized, executed and delivered by the Purchaser, and constitutes a legal, valid and binding obligation of the Purchaser, enforceable in accordance with its terms, subject to the effect of 4 5 bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and to general equitable principles. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not conflict with, result in a breach of any of the terms or provisions of, nor constitute (with or without notice or lapse of time) a default under, or result in the creation or imposition of any Lien to the Purchaser upon any of the property or assets of the Purchaser pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Purchaser is a debtor or guarantor, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-laws of the Purchaser; which breach, default, conflict, Lien or violation in any case would have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement. (c) No Litigation. There are no proceedings or investigations pending to which the Purchaser is a party or of which any property of the Purchaser is the subject, and, to the best of the Purchaser's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; other than such proceedings that would not have a material adverse effect upon the ability of the Purchaser to perform its obligations under, or the validity and enforceability of, this Agreement. 3.2 Representations and Warranties of the Seller. (a) The Seller hereby represents and warrants to the Purchaser as of the date hereof and as of the Closing Date: (i) Organization, etc. The Seller has been duly organized and is validly existing as a corporation in good standing under the laws of the State of California and is in good standing in each jurisdiction in the United States of America in which the conduct of its business or the ownership of its property requires such qualification and where the failure to so qualify would have a material adverse effect on the ability of the Seller to perform its obligations under this Agreement. (ii) Power and Authority. The Seller has the corporate power and authority to sell and assign the property sold and assigned to the Purchaser hereunder and has duly authorized such sale and assignment to the Purchaser by all necessary corporate action. This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a legal, valid and binding obligation of the Seller, enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equitable principles. (iii) No Violation. The consummation of the transaction contemplated by this Agreement, and the fulfillment of the terms hereof, do not conflict with, or result in a breach of any of the terms or provisions of, nor constitute (with or without notice or lapse of time) a default under, or result in the creation or imposition of any Lien upon any of the property or assets of the Seller pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument under which the Seller is a debtor or guarantor, nor will such action result in any violation of the provisions of the Articles of Incorporation or the By-Laws of the Seller; which breach, default, conflict, Lien or violation in any case would have a 5 6 material adverse effect on the ability of the Seller to perform its obligations under this Agreement. (iv) No Proceedings. There are no proceedings or investigations pending to which the Seller is a party or of which any property of the Seller is the subject, and, to the best of the Seller's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others, other than such proceedings that would not have a material adverse effect upon the ability of the Seller to perform its obligations under, or the validity and enforceability of, this Agreement. (b) The Seller makes the following representations and warranties as to the Receivables on which the Purchaser relies in accepting the Receivables. Such representations and warranties speak as of the execution and delivery of this Agreement, but shall survive the sale, transfer, and assignment of the Receivables to the Purchaser hereunder and the subsequent assignment and transfer pursuant to the Sale and Servicing Agreement: (i) Characteristics of Receivables. Each Receivable (a) has been originated in the United States of America by a Dealer for the retail sale of a Financed Vehicle in the ordinary course of such Dealer's business, has been fully and properly executed by the parties thereto, has been purchased by the Seller from such Dealer under an existing dealer agreement with the Seller, and has been validly assigned by such Dealer to the Seller, (b) created a valid, subsisting and enforceable security interest in favor of the Seller in such Financed Vehicle, (c) contains customary and enforceable provisions such that the rights and remedies of the holder thereof are adequate for realization against the collateral of the benefits of the security, (d) other than the Overextended Receivables, provides for level monthly payments (provided that the payment in the first or last month in the life of the Receivable may be minimally different from the level payment) that fully amortize the Amount Financed over an original term of no greater than 60 months, and (e) provides for yield interest at the related Annual Percentage Rate. (ii) Schedule of Receivables. The information set forth in Schedule A to this Agreement was true and correct in all material respects as of the opening of business on the Cutoff Date; the Receivables were selected at random from the Seller's retail installment sale contracts (other than contracts originated in Alabama, Hawaii or Maryland) meeting the criteria of the Trust set forth in the Sale and Servicing Agreement; and no selection procedures believed to be adverse to the Securityholders were utilized in selecting the Receivables. (iii) Compliance with Law. Each Receivable and the sale of the Financed Vehicle complied at the time it was originated or made and at the execution of this Agreement complies in all material respects with all requirements of applicable federal, state and local laws, and regulations thereunder, including usury laws, the Federal Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Magnuson-Moss Warranty Act, the Soldiers and Sailors Civil Relief Act of 1940, the Federal Reserve Board's Regulations B and Z, and state adaptations of the 6 7 National Consumer Credit Protection Act and of the Uniform Consumer Credit Code, state "Lemon Laws" designed to prevent fraud in the sale of automobiles and other consumer credit laws and equal credit opportunity and disclosure laws. (iv) Binding Obligation. Each Receivable represents the genuine, legal, valid and binding payment obligation in writing of the Obligor, enforceable by the holder thereof in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equitable principles. (v) Security Interest in Financed Vehicle. (a) Immediately prior to the sale, assignment and transfer thereof to the Purchaser, each Receivable was secured by a validly perfected first priority security interest in the Financed Vehicle in favor of the Seller as secured party or all necessary or all appropriate actions shall have been commenced that would result in the valid perfection of a first priority security interest in the Financed Vehicle in favor of the Seller as secured party, and (b) as of the Cutoff Date, according to the records of the Seller, no Financed Vehicle has been repossessed. (vi) Receivables in Force. No Receivable has been satisfied, subordinated or rescinded, nor has any Financed Vehicle been released from the lien granted by the related Receivable in whole or in part. (vii) No Waiver. No provision of a Receivable has been waived in such a manner that is prohibited by the provisions of the Sale and Servicing Agreement or that would cause such Receivable to fail to meet all of the other requirements and warranties made by the Seller herein with respect thereto. (viii) No Defenses. No Receivable is subject to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and the operation of any of the terms of any Receivable, or the exercise of any right thereunder, will not render such Receivable unenforceable in whole or in part or subject such Receivable to any right of rescission, setoff, counterclaim or defense, including the defense of usury, and no such right of rescission, setoff, counterclaim or defense has been asserted with respect thereto. (ix) No Liens. To the Seller's knowledge, no liens have been filed for work, labor or materials relating to a Financed Vehicle that shall be liens prior to, or equal or coordinate with, the security interest in the Financed Vehicle granted by the Receivable. (x) No Default. Except for payment defaults continuing for a period of not more than 29 days as of the Cutoff Date, no default, breach, violation or event permitting acceleration under the terms of any Receivable has occurred; and no continuing condition that with notice or the lapse of time would constitute a default, breach, violation or event permitting acceleration under the terms of any Receivable has arisen (other than deferrals and waivers of late payment charges or fees permitted under the Sale and Servicing Agreement). 7 8 (xi) Insurance. The Seller, in accordance with its customary procedures, has determined at the time of origination of each Receivable that the related Obligor has agreed to obtain physical damage insurance covering the Financed Vehicle and the Obligor is required under the terms of related Receivable to maintain such insurance. (xii) Title. It is the intention of the Seller that the transfer and assignment herein contemplated constitute a sale of the Receivables from the Seller to the Purchaser and that the beneficial interest in and title to the Receivables not be part of the Seller's estate in the event of the filing of a bankruptcy petition by or against the Seller under any bankruptcy law. Immediately prior to the transfer and assignment herein contemplated, the Seller had good and marketable title to each Receivable free and clear of all Liens and, immediately upon the transfer thereof, the Purchaser shall have good and marketable title to each Receivable, free and clear of all Liens and rights of others. Each Receivable File contains the original certificate of title (or a photocopy or image thereof) or evidence that an application for a certificate of title has been filed. (xiii) Lawful Assignment. No Receivable has been originated in, or shall be subject to the laws of, any jurisdiction under which the sale, transfer and assignment of such Receivable under this Agreement or pursuant to the Sale and Servicing Agreement are unlawful, void or voidable. (xiv) All Filings Made. All filings (including, without limitation, UCC filings) necessary in any jurisdiction to give the Purchaser a first priority perfected ownership interest in the Receivables have been made or have been delivered in form suitable for filing to the Purchaser. (xv) Chattel Paper. Each Receivable constitutes "chattel paper", as such term is defined in the UCC. (xvi) Simple Interest Receivables. All of the Receivables are Simple Interest Receivables. (xvii) One Original. There is only one original executed copy of each Receivable. (xviii) No Amendments. No Receivable has been amended such that the amount of the Obligor's Scheduled Payments has been increased. (xix) APR. The Annual Percentage Rate of each Receivable equals or exceeds 5.25%. (xx) Maturity. As of the Cutoff Date, each Receivable had a remaining term to maturity of not less than 5 months and not greater than 59 months. (xxi) Balance. Each Receivable had an original principal balance of not more than $49,090.33 and, as of the Cutoff Date, had a principal balance of not less than $2,000.36 and not more than $44,807.66. 8 9 (xxii) Delinquency. No Receivable was more than 29 days past due as of the Cutoff Date and no Receivable has been extended by more than two months. (xxiii) Bankruptcy. No Obligor was the subject of a bankruptcy proceeding (according to the records of the Seller) as of the Cutoff Date. (xxiv) Transfer. Each Receivable prohibits the sale or transfer of the Financed Vehicle without the consent of the Seller. (xxv) New, Near-New and Used Vehicles. Each Financed Vehicle was a new, near-new or used automobile or light-duty truck at the time the related Obligor executed the retail installment sale contract. (xxvi) Origination. Each Receivable has an origination date on or after July 3, 1995. (xxvii) Forced-Placed Insurance Premiums. No contract relating to any Receivable has had forced-placed insurance premiums added to the amount financed. (xxviii) No Fraud or Misrepresentation. To the knowledge of the Seller, no Receivable was originated by a Dealer and sold by such Dealer to the Seller with any conduct constituting fraud or misrepresentation on the part of such Dealer. (xxix) No Further Amounts Owed on the Receivables. No further amounts are owed by the Seller to any Obligor under the Receivables. ARTICLE IV CONDITIONS 4.1 Conditions to Obligation of the Purchaser. The obligation of the Purchaser to purchase the Receivables and the related property described in Section 2.1(a) is subject to the satisfaction of the following conditions: (a) Representations and Warranties True. The representations and warranties of the Seller hereunder shall be true and correct in all material respects on the Closing Date with the same effect as if then made, and the Seller shall have performed in all material respects all obligations to be performed by it hereunder on or prior to the Closing Date. (b) Computer Files Marked. The Seller shall, at its own expense, on or prior to the Closing Date, indicate in its computer files that the Receivables have been sold to the Purchaser pursuant to this Agreement and shall deliver to the Purchaser the Schedule of Receivables certified by an officer of the Seller to be true, correct and complete in all material respects. 9 10 (c) Documents to be delivered by the Seller at the Closing. (i) The Assignment. At the Closing, the Seller shall execute and deliver the Assignment. (ii) Evidence of UCC Filing. On or prior to the Closing Date, the Seller shall record and file, or deliver in a form suitable for filing to the Purchaser, at its own expense, a UCC-1 financing statement in each jurisdiction in which required by applicable law, executed by the Seller, as seller or debtor, and naming the Purchaser, as purchaser or secured party, and the Trust, as assignee of the Purchaser, naming the Receivables and the other property conveyed hereunder as collateral, meeting the requirements of the laws of each such jurisdiction and in such manner as is necessary to perfect the sale, transfer, assignment and conveyance of such Receivables and other property conveyed hereunder to the Purchaser. (iii) Other Documents. At the Closing, the Seller shall deliver such other documents as the Purchaser may reasonably request. (d) Other Transactions. The transactions contemplated by the Sale and Servicing Agreement shall be consummated on the Closing Date. 4.2 Conditions to Obligation of the Seller. The obligation of the Seller to sell the Receivables and other property conveyed hereunder to the Purchaser is subject to the satisfaction of the following conditions: (a) Representations and Warranties True. The representations and warranties of the Purchaser hereunder shall be true and correct in all material respects on the Closing Date with the same effect as if then made, and the Purchaser shall have performed in all material respects all obligations to be performed by it hereunder on or prior to the Closing Date. (b) Receivables Purchase Price. On the Closing Date, the Purchaser shall deliver to the Seller the Receivables Purchase Price, as provided in Section 2.1(b). ARTICLE V COVENANTS OF THE SELLER The Seller agrees with the Purchaser as follows; provided, however, that, to the extent that any provision of this ARTICLE V conflicts with any provision of the Sale and Servicing Agreement, the Sale and Servicing Agreement shall govern: 5.1 Protection of Right, Title and Interest. (a) The Seller shall execute and file such financing statements and cause to be executed and filed such continuation statements, all in such manner and in such places as may be required by law fully to preserve, maintain and protect the interest of the Purchaser in the Receivables, the other property conveyed hereunder and the proceeds thereof. The Seller shall 10 11 deliver (or cause to be delivered) to the Purchaser file-stamped copies of, or filing receipts for, any document filed as provided above, as soon as available following such filing. (b) The Seller shall notify the Purchaser within 30 days after any change of its name, identity or corporate structure in any manner that would, could or might make any financing statement or continuation statement filed by the Seller in accordance with paragraph (a) above seriously misleading within the meaning of Section 9-402(7) of the UCC, and shall promptly file appropriate amendments to all previously filed financing statements or continuation statements. (c) The Seller shall notify the Purchaser of any relocation of its principal executive office within 30 days after such relocation, if, as a result of such relocation, the applicable provisions of the UCC would require the filing of any amendment of any previously filed financing or continuation statement or of any new financing statement and shall promptly file any such amendment. The Seller shall at all times maintain its principal executive office within the United States of America. (d) The Seller shall maintain its computer systems so that, from and after the time of sale hereunder of the Receivables to the Purchaser, the Seller's master computer records that refer to a Receivable shall indicate clearly the interest of the Purchaser in such Receivable and that such Receivable is owned by the Purchaser. (e) If at any time the Seller shall propose to sell, grant a security interest in, or otherwise transfer any interest in automotive receivables to any prospective purchaser, lender or other transferee, the Seller shall give to such prospective purchaser, lender or other transferee computer tapes, records or print-outs that, if they shall refer in any manner whatsoever to any Receivable, shall indicate clearly that such Receivable has been sold and is owned by the Purchaser. (f) The Seller shall permit the Purchaser and its agents at any time during normal business hours upon reasonable advance notice to inspect, audit and make copies of and abstracts from the Seller's records regarding any Receivable. 5.2 Other Liens or Interests. Except for the conveyances hereunder and contemplated pursuant to the Sale and Servicing Agreement, the Seller shall not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on any interest therein, and the Seller shall defend the right, title and interest of the Purchaser in, to and under such Receivables against all claims of third parties claiming through or under the Seller; provided, however, that the Seller's obligations under this Section 5.2 shall terminate upon the termination of the Trust pursuant to the Sale and Servicing Agreement. 5.3 Costs and Expenses. The Seller agrees to pay all reasonable costs and disbursements in connection with the perfection, as against all third parties, of the Purchaser's right, title and interest in and to the Receivables. 11 12 5.4 Indemnification. (a) The Seller shall defend, indemnify and hold harmless the Purchaser from and against any and all costs, expenses, losses, damages, claims and liabilities (collectively, "Damages"), arising out of or resulting from the failure of a Receivable to be originated in compliance with all requirements of law and for any breach of any of the Seller's representations and warranties contained herein. (b) The Seller shall defend, indemnify and hold harmless the Purchaser from and against any and all Damages arising out of or resulting from the use, ownership or operation by the Seller or any affiliate thereof of a Financed Vehicle. (c) The Seller shall defend, indemnify and hold harmless the Purchaser from and against any and all taxes that may at any time be asserted against the Purchaser with respect to the transactions contemplated herein, including, without limitation, any sales, gross receipts, general corporation, tangible personal property, privilege, or license taxes (but not including any taxes asserted with respect to ownership of the Receivables or federal or other taxes arising out of the transactions contemplated by this Agreement and any related documents) and costs and expenses in defending against the same. (d) The Seller shall defend, indemnify and hold harmless the Purchaser from and against any and all Damages to the extent that such Damage arose out of, or was imposed upon the Purchaser through, the negligence, willful misfeasance or bad faith of the Seller in the performance of its duties under this Agreement or by reason of reckless disregard of the Seller's obligations and duties under this Agreement. (e) The Seller shall defend, indemnify and hold harmless the Purchaser from and against all Damages arising out of or incurred in connection with the acceptance or performance of the Seller's trusts and duties as Servicer under the Sale and Servicing Agreement, except to the extent that such Damages shall be due to the willful misfeasance, bad faith or negligence of the Purchaser. These indemnity obligations shall be in addition to any obligation that the Seller may otherwise have. (f) Promptly after receipt by a party indemnified under this Section 5.4 (an "Indemnified Party") of notice of the commencement of any action, such Indemnified Party will, if a claim in respect thereof is to be made against the Seller under this Section 5.4, notify the Seller of the commencement thereof. If any such action is brought against any Indemnified Party under this Section 5.4 and it notifies the Seller of the commencement thereof, the Seller will assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Party (who may, unless there is, as evidenced by an opinion of counsel to the Indemnified Party stating that there is an unwaivable conflict of interest, be counsel to the Indemnifying Party), and the Seller will not be liable to such Indemnified Party under this Section 5.4 for any legal or other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof, other than reasonable costs of investigation. The obligations set forth in this Section 5.4 shall survive the termination of this Agreement and shall include reasonable fees and expenses of counsel and 12 13 expenses of litigation. If the Seller shall have made any indemnity payments pursuant to this Section 5.4 and the Person to or on behalf of whom such payments are made thereafter collects any of such amounts from others, such Person shall promptly repay such amounts to the Seller, without interest (except to the extent received by such Person). ARTICLE VI MISCELLANEOUS PROVISIONS 6.1 Obligations of Seller. The obligations of the Seller under this Agreement shall not be affected by reason of any invalidity, illegality or irregularity of any Receivable. 6.2 Repurchase Events. The Seller hereby covenants and agrees with the Purchaser for the benefit of the Purchaser, the Trust, the Indenture Trustee and the holders of the Securities, that the occurrence of a breach of any of the Seller's representations and warranties contained in Section 3.2(b) shall constitute events obligating the Seller to repurchase Receivables hereunder ("Repurchase Events") and pursuant to Section 3.02 of the Sale and Servicing Agreement, at the amount of the Warranty Purchase Payment from the Purchaser or, as described in Section 6.4 below, from the Trust. The repurchase obligation of the Seller shall constitute the sole remedy of the holders of the Securities, the Trust, the Indenture Trustee and the Purchaser against the Seller with respect to any Repurchase Event. In addition, the Seller hereby covenants and agrees with the Purchaser for the benefit of the Purchaser, the Trust, the Indenture Trustee and the holders of the Securities to (i) treat the Overextended Receivables as if a breach had occurred with respect to such Overextended Receivables which would give rise to the obligation of the Seller to repurchase such Overextended Receivables from the Purchaser pursuant to the provisions of the foregoing paragraph and pursuant to Section 3.02 of the Sale and Servicing Agreement and (ii) repurchase such Overextended Receivables at the amount of the Warranty Purchase Payment in accordance with such Section 3.02 no later than the first Distribution Date after the Closing Date. 6.3 Seller's Assignment of Purchased Receivables. With respect to all Receivables repurchased by the Seller pursuant to this Agreement, the Purchaser (without the need of any further written assignment) shall assign hereby, without recourse, representation or warranty (other than that it has good and marketable title to such Receivables), to the Seller all the Purchaser's right, title and interest in and to such Receivables, and all security and documents relating thereto. 6.4 Trust. The Seller acknowledges that the Purchaser will, pursuant to the Sale and Servicing Agreement, sell the Receivables to the Trust and assign its rights under this Agreement to the Trust and that the Trust will assign such rights to the Indenture Trustee for the benefit of the holders of the Notes, and that the representations and warranties contained in this Agreement and the rights of the Purchaser under Section 6.2 and the obligations under 6.3 are intended to benefit the Trust and the holders of the Securities. The Seller hereby consents to such sales and assignments. 13 14 6.5 Amendment. This Agreement may be amended from time to time by a written amendment duly executed and delivered by the Seller and the Purchaser; provided, however, that any such amendment must be consented to by the Holders of Notes representing a majority of the Outstanding Amount of the Notes, voting as a single class, or, in the case of any amendment that does not adversely affect the Indenture Trustee or the Noteholders (as evidenced by an Officer's Certificate of the Servicer and an external Opinion of Counsel indicating that such amendment will not adversely affect the Indenture Trustee or the Noteholder), the Holders of a majority of the Certificate Balance. 6.6 Accountants' Letters. (a) The Seller will cause Deloitte & Touche LLP to review the characteristics of the Receivables described in the Schedule of Receivables and to compare those characteristics to the information with respect to the Receivables contained in the Prospectus. (b) The Seller will cooperate with the Purchaser and Deloitte & Touche LLP in making available all information and taking all steps reasonably necessary to permit such accountants to complete the review set forth in Section 6.6(a) and to deliver the letters required of them under the Underwriting Agreement. 6.7 Waivers. No failure or delay on the part of the Purchaser in exercising any power, right or remedy under this Agreement or the Assignment shall operate as a waiver hereof or thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other or further exercise hereof or thereof or the exercise of any other power, right or remedy. 6.8 Notices. All communications and notices pursuant hereto to either party shall be in writing (including via telecopy) and addressed or delivered to it at its address (or in the case of telecopy, at its telecopy number at such address) shown in the opening portion of this Agreement or at such other address as may be designated by it by notice to the other party and, if mailed or delivered, shall be deemed given when mailed or delivered, or transmitted by telecopy. 6.9 Costs and Expenses. The Seller agrees to pay all expenses incident to the performance of its obligations under this Agreement and the Seller agrees to pay all reasonable out-of-pocket costs and expenses of the Purchaser, excluding fees and expenses of counsel, in connection with the perfection as against third parties of the Purchaser's right, title and interest in and to the Receivables and the enforcement of any obligation of the Seller hereunder. 6.10 Survival. The respective agreements, representations, warranties and other statements by the Seller and the Purchaser set forth in or made pursuant to this Agreement shall remain in full force and effect and will survive the Closing. 6.11 Headings and Cross-References. The various headings in this Agreement are included for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement. References in this Agreement to Section names or numbers are to such Sections of this Agreement. 14 15 6.12 Governing Law. This Agreement and the Assignment shall be governed by and construed in accordance with the internal laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties under this Agreement shall be determined in accordance with such laws. 6.13 Counterparts. This Agreement may be executed in two counterparts and by different parties on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. 6.14 Sale. Each party hereto agrees to treat the conveyance under this Agreement for all purposes (including, without limitation, tax and financial accounting purposes) as a sale of the Receivables on all of its relevant books, records, tax returns, financial statements and other applicable documents. Although the parties hereto intend that the transfer and assignment contemplated by this Agreement be a sale, in the event such transfer and assignment is deemed to be other than a sale, the parties intend that all filings described in this Agreement shall give the Purchaser a first priority perfected security interest in, to and under the Receivables and other property conveyed hereunder and all proceeds of any of the foregoing. This Agreement shall be deemed to be the grant of a security interest from the Seller to the Purchaser, and the Purchaser shall have all the rights, powers and privileges of a secured party under the UCC. 15 16 IN WITNESS WHEREOF, the parties hereto hereby have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the 27th day of January, 2000. NISSAN MOTOR ACCEPTANCE CORPORATION By: /s/ Yoichiro Nagashima ------------------------------------------------------- Name: Yoichiro Nagashima Title: President and Chairman of the Board of Directors NISSAN AUTO RECEIVABLES CORPORATION By: /s/ Tomoaki Shimazu ------------------------------------------------------- Name: Tomoaki Shimazu Title: Treasurer, Assistant Secretary and Director S-1 17 Exhibit A ASSIGNMENT For value received, in accordance with the Purchase Agreement, dated as of January 27, 2000 (the "Purchase Agreement"), between the undersigned (the "Seller") and Nissan Auto Receivables Corporation (the "Purchaser"), the undersigned does hereby sell, assign, transfer and otherwise convey unto the Purchaser, without recourse, the following: (i) all right, title and interest of the Seller in and to the Receivables listed on Schedule A hereto (including all related Receivable Files) and all monies due thereon or paid thereunder or in respect thereof after the Cutoff Date; (ii) the right of the Seller in the security interests in the Financed Vehicles granted by the Obligors pursuant to the Receivables and any related property; (iii) the right of the Seller in any proceeds from claims on any physical damage, credit life, credit disability or other insurance policies covering Financed Vehicles or Obligors; (iv) the right of the Seller to receive payments in respect any Dealer Recourse with respect to the Receivables; (v) the right of the Seller to realize upon any property (including the right to receive future Net Liquidation Proceeds) that shall have secured a Receivable; (vi) the right of the Seller in rebates of premiums and other amounts relating to insurance policies and other items financed under the Receivables in effect as of the Cutoff Date; and (vii) all proceeds of the foregoing. The foregoing sale does not constitute and is not intended to result in any assumption by the Purchaser of any obligation of the undersigned to the Obligors, insurers or any other person in connection with the Receivables, Receivable Files, any insurance policies or any agreement or instrument relating to any of them. This Assignment is made pursuant to and upon the representations, warranties and agreements on the part of the undersigned contained in the Purchase Agreement and is to be governed by the Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to such terms in the Purchase Agreement. A-1 18 IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly executed as of the 27th day of January, 2000. NISSAN MOTOR ACCEPTANCE CORPORATION By: ------------------------------------ Name: Title: A-2 19 SCHEDULE A Schedule of Receivables (Delivered on the Closing Date and kept on a CD ROM) Schedule A 20 SCHEDULE B Schedule of Overextended Receivables
Outstanding Balance Loan Number as of 12/31/99 ----------- -------------- 24-5820619 $ 3,607.69 24-4997418 $ 7,942.82 24-4143300 $10,861.68 24-4203551 $12,151.40 24-4768524 $10,458.70 24-6207220 $18,657.82 ---------- ---------- Total $63,680.11
Schedule B EX-4.4 5 AMENDED AND RESTATED TRUST AGREEMENT 1 EXHIBIT 4.4 NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST (a Delaware Business Trust) AMENDED AND RESTATED TRUST AGREEMENT between NISSAN AUTO RECEIVABLES CORPORATION, as Depositor, and WILMINGTON TRUST COMPANY, as Owner Trustee Dated as of January 27, 2000 2 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.............................................................5 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...................................................7 ARTICLE III Certificates and Transfer of Interests.....................................................8 SECTION 3.01 The Certificates.................................................................8 SECTION 3.02 Authentication of Certificates...................................................8 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............................................13 ARTICLE V Application of Trust Funds; Certain Duties................................................14
i 3 TABLE OF CONTENTS (CONTINUED) 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.............................................15 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 Acting in 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 ARTICLE X Successor Owner Trustees and Additional Owner Trustees....................................25 SECTION 10.01 Eligibility Requirements for Owner Trustee......................................25
ii 4 TABLE OF CONTENTS (CONTINUED) 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
iii 5 TABLE OF CONTENTS (CONTINUED) Exhibit A Form of Certificate Exhibit B Form of Transferee Representation Letter Exhibit C Form of Transferor Representation Letter
iv 6 AMENDED AND RESTATED TRUST AGREEMENT, dated as of January 27, 2000, between NISSAN AUTO RECEIVABLES Corporation, a Delaware corporation, as depositor, and WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee, amending and restating in its entirety the Trust Agreement, dated as of December 21, 2000 (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 January 27, 2000 by and between the Trust, as issuer, NMAC, as Administrator and the Indenture Trustee pursuant to which NMAC undertakes to perform certain of the duties and obligations of the Trust 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 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 ss. 3801 et seq. "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. 1 7 "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 Harris Trust Company of New York unless and until a successor thereto is appointed pursuant to Section 3.03. The Certificate Registrar initially designates its offices at 88 Pine Street, 19th Floor, Wall Street Plaza, New York, New York 10005, 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 Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890; 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 January 27, 2000 entered into between the Trust and the Indenture Trustee named therein pursuant to which a series of Notes are issued. "NMAC" means Nissan Motor Acceptance Corporation, a California corporation. "NARC" means Nissan Auto Receivables Corporation, a Delaware corporation. "Non-U.S. Person" means any Person who is not (i) a citizen or resident of the United States who is a natural person, (ii) a corporation or partnership (or an entity treated as a corporation or partnership) organized in or under the laws of the United States or any state thereof, including the District of Columbia (unless, in the case of a partnership, Treasury Regulations are adopted that provide otherwise), (iii) an estate, the income of which is subject to 2 8 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 $79,591,182.12. "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 Wilmington Trust Company, 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 Wilmington Trust Company. "Plan" shall have the meaning assigned to such term in Section 3.03(c)(1)(ii). "Sale and Servicing Agreement" means the Sale and Servicing Agreement, dated as of the date hereof, among the Trust, NARC, as seller, and NMAC, as servicer. "Secretary of State" means the Secretary of State of the State of Delaware. "Securities Account Control Agreement" shall have the meaning assigned to such term in the Sale and Servicing Agreement. "Securityholders" means the Certificateholders and the Noteholders. "Treasury Regulations" means regulations, including proposed or temporary regulations, promulgated under the Code. References herein to specific provisions of proposed or temporary 3 9 regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations. "Trust" means the Nissan Auto Receivables 2000-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 2000-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 sue and be sued on behalf of the Trust. The Owner Trustee accepted under the Original Trust Agreement, and does hereby confirm its acceptance and agreement to hold in trust, for the benefit of the Certificateholders and such other Persons as may become beneficiaries hereunder from time to time, all of the Owner Trust Estate conveyed or to be conveyed to the Trust, and all monies and proceeds that may be received with respect thereto, subject to the terms of this Agreement. SECTION 2.02 Office. The principal place of business of the Trust for purposes of Delaware law shall be in care of the Owner Trustee at the Corporate Trust Office or at such other address in Delaware as the Owner Trustee may designate by written notice to the Certificateholders and the Servicer. The Trust may establish additional offices located at such place or places inside or outside of the State of Delaware as the Owner Trustee may designate by written notice to the Certificateholders and the Servicer. 4 10 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 Owner 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. 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 5 11 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 division or branch of the Person holding the beneficial ownership interests in the Trust for any period during which the beneficial ownership interests in the Trust are held by one Person, and 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 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. 6 12 (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 by all necessary corporate action; and the execution, delivery and performance of this Agreement has been duly authorized by the Depositor by all necessary corporate action. (d) Binding Obligations. This Agreement is a legal, valid and binding obligation of the Depositor enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equitable principles. (e) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, nor constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Depositor, or any indenture, agreement or other instrument to which the Depositor is a party or by which it shall be bound; nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than the Basic Documents); nor violate any law or, to the best of the Depositor's knowledge, any order, rule or regulation applicable to the Depositor of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or its properties; which breach, default, conflict, Lien or violation in any case would have a material adverse effect on the ability of the Depositor to perform its obligations under this Agreement. (f) No Proceedings. There are no proceedings or investigations pending, or, to the best of the Depositor's knowledge, threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Depositor or its properties: (i) asserting the invalidity of this Agreement; (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement; (iii) seeking any determination or ruling that would materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement; or (iv) relating to the Depositor and that would adversely affect the federal or any state income tax attributes of the Trust, the Certificates or the Notes. 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) during which the beneficial ownership interests in the Trust are held by one more than one Person shall be allocated: 7 13 (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 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 transfer 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 the Depositor, 8 14 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 Wilmington Trust Company 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. Harris Trust Company of New York shall be the initial Certificate Registrar. In the event that the Certificate Registrar shall for any reason become unable to act as Certificate Registrar, the Certificate Registrar shall promptly give written notice to such effect to the Depositor, the Owner Trustee and the Servicer. Upon receipt of such notice, the Servicer shall appoint another bank or trust company, having an office or agency located in the Borough of Manhattan, The City of New York, and that shall agree to act in accordance with the provisions of this Agreement applicable to it, and otherwise acceptable to the Owner Trustee, to act as successor Certificate Registrar under this Agreement. (b) Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.07, the Owner Trustee shall execute, authenticate and deliver (or shall cause its authenticating agent to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount dated the date of authentication by the Owner Trustee or any authenticating agent. At the option of a Holder, Certificates may be exchanged for other Certificates of 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: 9 15 (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 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 protected 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 10 16 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 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 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 Harris Trust Company of New York, 88 Pine Street, 19th Floor, Wall Street Plaza, New York, New York 10005, 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 Wilmington Trust Company, and any co-paying agent chosen by the Owner Trustee, 11 17 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 Wilmington Trust Company shall no longer be the Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent (which shall be a bank or trust company). The Owner Trustee shall cause such successor Paying Agent or any additional Paying Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Owner Trustee that as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Certificateholders in trust for the benefit of the Certificateholders entitled thereto until such sums shall be paid to such Certificateholders. The Paying Agent shall return all unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04, 8.01 and 8.02 shall apply to the Owner Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and, to the extent applicable, to any other Paying Agent appointed hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. SECTION 3.09 Ownership by the Depositor of Certificates. The Depositor shall on the Closing Date receive in accordance with Section 3.02, 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); 12 18 (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; (f) the appointment (i) pursuant to the Indenture of a successor Note Registrar or Paying Agent, (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; or (g) the amendment of the Sale and Servicing Agreement in circumstances where the consent of any Noteholder is required. 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 13 19 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 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. 14 20 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 Section 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 Trust Collection Account under the control of the Owner Trustee pursuant to Section 5.01(a) or distributed to the Certificateholders in accordance with the provisions of this Agreement, as the case may be. (b) On each Distribution Date, the Owner Trustee shall send to each Certificateholder the statement provided to the Owner Trustee by the Servicer pursuant to Section 5.09 of the Sale and Servicing Agreement with respect to such Distribution Date. (c) In the event that any withholding tax is imposed on the Trust's payment (or allocations of income) to a Certificateholder, such tax shall reduce the amount otherwise distributable to the Certificateholder in accordance with this Section. The Owner Trustee is hereby authorized and directed to retain from amounts otherwise distributable to the Certificateholders sufficient funds for the payment of any tax that is legally owed by the Trust (but such authorization shall not prevent the Owner Trustee from contesting any such tax in appropriate proceedings, and withholding payment of such tax, if permitted by law, pending the outcome of such proceedings). The amount of any withholding tax imposed with respect to a Certificateholder shall be treated as cash distributed to such Certificateholder at the time it is withheld by the Trust and remitted to the appropriate taxing authority. If there is a possibility that withholding tax is payable with respect to any distribution (such as any distribution to a Non-U.S. Person), the Owner Trustee may in its sole discretion withhold such amounts in accordance with this paragraph (c). In the event that a Certificateholder wishes to apply for a refund of any such withholding tax, the Owner Trustee shall reasonably cooperate with such Certificateholder in making such claim so long as such Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred. 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) 15 21 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 (excluding 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 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. Notwithstanding anything to the contrary stated herein, the Owner Trustee shall be exclusively responsible for the mailing of the Schedule K-1's necessary to enable each Certificate Owner to prepare its federal and state income returns. 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 $184,000,000, Class A-2 Notes in the aggregate principal amount of $229,000,000, Class A-3 Notes in the aggregate principal amount of $250,000,000 and Class A-4 Notes in the aggregate 16 22 principal amount of $95,130,000. 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 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 17 23 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. (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 18 24 any Securities and Exchange Commission filing for the Trust or to record this Agreement or any Basic Document. The Owner Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any liens on any part of the Owner Trust Estate that result from actions by, or claims against, the Owner Trustee that are not related to the ownership or the administration of the Owner Trust Estate. SECTION 6.05 No Action Except Under Specified Documents or Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Owner Trust Estate except (i) in accordance with the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents and (iii) in accordance with any document or instruction delivered to the Owner Trustee pursuant to Section 6.03. SECTION 6.06 Restrictions. The Owner Trustee shall not take any action (a) that is inconsistent with the purposes of the Trust set forth in Section 2.03 or (b) that, to the actual knowledge of 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 19 25 Securityholders shall have offered to the Owner Trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred therein or thereby; (d) under no circumstances shall the Owner Trustee be liable for indebtedness evidenced by or arising under any of the Basic Documents, including the principal of and interest on the Notes; (e) the Owner Trustee shall not be bound to recalculate, reverify, or make any investigation into the facts of matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by Holders of 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. 20 26 (c) This Agreement constitutes the legal, valid and binding obligation of the Owner Trustee, enforceable against it in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors' rights generally and by general principles of equity. (d) It is authorized to exercise trust powers in the State of Delaware as and to the extent contemplated herein or has appointed a Delaware trustee that is so authorized and it has a principal place of business in the State of Delaware or has appointed a Delaware trustee that has such a principal place of business. (e) Neither the execution nor the delivery by it of this Agreement nor the consummation by the Owner Trustee of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof or thereof will contravene any federal or Delaware law, governmental rule or regulation governing the banking or trust powers of the Owner Trustee or any judgment or order binding on it, or constitute any default under its charter documents or by-laws or any indenture, mortgage, contract, agreement or instrument to which it is a party or by which any of its properties may be bound. SECTION 7.04 Reliance; Advice of Counsel. (a) The Owner Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond, or other document or paper believed by it to be genuine and believed by it to be signed by the proper party or parties. The Owner Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any corporate party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president or any vice president or by the treasurer or other authorized officers or agents of the relevant party, as to such fact or matter and such certificate shall constitute full protection to the Owner Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon. (b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under the Basic Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Owner Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Owner Trustee with reasonable care, and (ii) may consult with counsel, accountants and other skilled persons to be selected with reasonable care and employed by it. The Owner Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the 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, Wilmington Trust Company 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 21 27 misconduct, bad faith or negligence, no recourse shall be had for any claim based on any provision of this Agreement, the Notes or Certificates, or based on rights obtained through the assignment of any of the foregoing, against the institution serving as the Owner Trustee in its individual capacity. The Owner Trustee shall not have any personal obligation, liability or duty whatsoever to any Securityholder or any other Person with respect to any such claim, and any such claim shall be asserted solely against the Trust or any indemnitor who shall furnish indemnity as provided in this Indenture. SECTION 7.06 Owner Trustee Not Liable for Certificates or Receivables. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement or of the Certificates or of the Notes (other than the execution by the Owner Trustee on behalf of the Trust of, and the certificate of authentication on, the Certificates). 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 22 28 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. 23 29 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 the terms of the Sale and Servicing Agreement or to be released by the Indenture Trustee from the Lien of the Indenture pursuant to the terms of the Indenture), or (ii) the election by the Servicer to purchase the corpus of the Trust pursuant to Section 9.01 of the Sale and Servicing Agreement and the payment or distribution to all Securityholders of all amounts required to be paid to them under the Indenture or this 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 Certificateholders to surrender their Certificates for cancellation and receive the final distribution 24 30 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, Wilmington Trust Company or any of its Affiliates should assume the duties of the Indenture Trustee, then from that time forward Wilmington Trust Company, 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. 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 25 31 control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Administrator may remove the Owner Trustee by written instrument to such effect delivered to the Owner Trustee, the Depositor and the Indenture Trustee. If the Administrator shall remove the Owner Trustee under the authority of the immediately preceding sentence, the Servicer shall promptly appoint a successor Owner Trustee by written instrument in duplicate, one copy of which instrument shall be delivered to each of the outgoing Owner Trustee so removed and the successor Owner Trustee, and pay all fees, expenses and other compensation owed to the outgoing Owner Trustee. Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to the outgoing Owner Trustee. The Administrator shall provide notice of such resignation or removal of the Owner Trustee to each of the Rating Agencies. SECTION 10.03 Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to the Administrator and to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective and such successor Owner Trustee, without any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor under this Agreement, with like effect as if originally named as Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and expenses deliver to the successor Owner Trustee all documents and statements and monies held by it under this Agreement; and the Administrator and the predecessor Owner Trustee shall execute and deliver such instruments and do such other things as may reasonably be required for fully and certainly vesting and confirming in the successor Owner Trustee all such rights, powers, duties, and obligations. No successor Owner Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Owner Trustee shall meet the criteria for eligibility set forth in Section 10.01. Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section, the Administrator shall mail notice of the successor of the Owner Trustee to all Certificateholders, the Indenture Trustee, all Noteholders and the Rating Agencies. If the Administrator fails to mail such notice within 10 days after acceptance of appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Administrator. SECTION 10.04 Merger or Consolidation of Owner Trustee. Any corporation into which the Owner Trustee may be merged or converted or with which it may be consolidated or any corporation resulting from any merger, conversion or consolidation to which the Owner 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 26 32 filing of any instrument or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; provided, further, that the Owner Trustee shall mail notice of such merger or consolidation to the Rating Agencies. SECTION 10.05 Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Owner Trust Estate or any Financed Vehicle may at the time be located, the Administrator and the Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons approved by the Owner Trustee to act as co-trustee, jointly with the Owner Trustee, or separate trustee or separate trustees, of all or any part of the Owner Trust Estate, and to vest in such Person, in such capacity, such title to the Trust, or any part thereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Administrator and the Owner Trustee may consider necessary or desirable. If the Administrator shall not have joined in such appointment within 25 days after the receipt by it of a request so to do, the Owner Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a trustee pursuant to Section 10.01 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.03. Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provision and conditions: (i) all rights, powers, duties and obligations conferred or imposed upon the Owner Trustee shall be conferred upon and exercised or performed by the Owner Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Owner Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Owner Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties, and obligations (including the holding of title to the Trust or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Owner Trustee; (ii) no trustee under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and (iii) the Administrator and the Owner Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee. Any notice, request or other writing given to the Owner Trustee shall be deemed to have been given to each of the then separate trustees and co-trustees, as if given to each of them. Each separate trustee and co-trustee, upon its acceptance of the powers and duties conferred thereto 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 27 33 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 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. 28 34 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, the Certificateholders, the Administrator and, to the extent expressly provided herein the Indenture Trustee and the Noteholders, and nothing in this Agreement (other than Section 2.06), whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein. SECTION 11.04 Notices. (a) Unless otherwise expressly specified or permitted by the terms hereof, all notices shall be in writing and shall be deemed given upon receipt by the intended recipient or three Business Days after mailing if mailed by certified mail, postage prepaid (except that notice to the Owner Trustee shall be deemed given only upon actual receipt by the Owner Trustee), if to the Owner Trustee, addressed to the Corporate Trust Office; if to the Depositor, addressed to Nissan Auto Receivables Corporation, 990 West 190th Street, Torrance, California 90502, Attention of Secretary; if, to the Trust, addressed to Nissan Auto Receivables 2000-A Owner Trust, c/o Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890, Attention: Nissan Auto Receivables 2000-A Owner Trust, with a copy to Nissan Motor Acceptance Corporation, 990 West 190th Street, Torrance, California 90502, 29 35 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 liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law. This Section 11.08 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. 30 36 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. 31 37 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/ Tomoaki Shimazu ------------------------------------- Name: Tomoaki Shimazu Title: Treaurer, Assistant Secretary and Director WILMINGTON TRUST COMPANY, as Owner Trustee By: /s/ James P. Lawler ------------------------------------- Name: James P. Lawler Title: Vice President S-1 38 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. A-1 39 NUMBER $____________ R-_____ CUSIP NO. _________ NISSAN AUTO RECEIVABLES 2000-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 2000-A Owner Trust (the "Trust") formed by NARC. The Trust was created pursuant to a Trust Agreement, dated as of December 21, 1999 (as amended and supplemented from time to time, including the Amended and Restated Trust Agreement, dated as of January 27, 2000, the "Trust Agreement"), between NARC, as depositor (the "Depositor"), and Wilmington Trust Company, as owner trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions of which is set forth below. Capitalized terms used herein and not otherwise defined have the meanings assigned to such terms in the Trust Agreement, the Indenture, dated as of January 27, 2000 (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 January 27, 2000 (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 four classes of Notes designated as "Class A-1 6.125% Asset Backed Notes", "Class A-2 6.730% Asset Backed Notes,", "Class A-3 7.010% Asset Backed Notes" and "Class A-4 7.170% 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 the Cutoff Date, security interests in the vehicles financed thereby, certain bank accounts and the proceeds thereof, proceeds from claims on certain insurance policies and certain A-2 40 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 February 15, 2000, 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 division or branch of the Person holding the beneficial ownership interests in the Trust for any period during which the beneficial ownership interests in the Trust are held by one person, and 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 during which the beneficial ownership interests in the Trust are held by more than one person, each Certificateholder, by acceptance of a Certificate or any beneficial interest on a Certificate, agrees to treat, and to take no action inconsistent with the treatment of, the Certificates as partnership interests in the Trust for such tax purposes. Each Certificateholder, 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 of the Paying Agent maintained for the purpose by the Owner Trustee in the Borough of Manhattan, The City of New York. A-3 41 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-4 42 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 2000-A OWNER TRUST By: WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee Dated: By: -------------------------------------- Authorized Signatory A-5 43 OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Certificates referred to in the within-mentioned Trust Agreement. WILMINGTON TRUST COMPANY, as Owner Trustee By: -------------------------------------- Authorized Signatory A-6 44 (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 Harris Trust Company of New York, at 88 Pine Street, 19th Floor, Wall Street Plaza, New York, New York 10005. 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 for any such registration of transfer or exchange, but the Owner Trustee or the Certificate A-7 45 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-8 46 ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ________________________________________________________________________________ (Please print or type name and address, including postal zip code, of assignee) ________________________________________________________________________________ the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing ____________________________________________________________________ Attorney to transfer said Certificate on the books of the Certificate Registrar, with full power of substitution in the premises. Dated: ___________________ _______________________________________*/ Signature Guaranteed: _______________________________________*/ - -------------- */ NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Certificate in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. A-9 47 EXHIBIT B FORM OF TRANSFEREE REPRESENTATION LETTER Nissan Auto Receivables 2000-A Owner Trust c/o WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 Attention: Nissan Auto Receivables 2000-A Owner Trust HARRIS TRUST COMPANY OF NEW YORK, as Certificate Registrar 88 Pine Street, 19th Floor Wall Street Plaza New York, New York 10005 Attention: Nissan Auto Receivables 2000-A Owner Trust Attention: Corporate Trust Services -- Nissan Auto Receivables 2000-A Owner Trust Re: Transfer of Nissan Auto Receivables 2000-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 January 27, 2000 (the "Trust Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and Wilmington Trust Company, 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 plan (as defined in Section 3(32) of ERISA) subject to any federal, state or local law ("Similar B-1 48 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 ss. 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 49 EXHIBIT C FORM OF TRANSFEROR REPRESENTATION LETTER Nissan Auto Receivables 2000-A Owner Trust c/o WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 Attention: Nissan Auto Receivables 2000-A Owner Trust HARRIS TRUST COMPANY OF NEW YORK, as Certificate Registrar 88 Pine Street, 19th Floor Wall Street Plaza New York, New York 10005 Attention: Nissan Auto Receivables 2000-A Owner Trust Attention: Corporate Trust Services -- Nissan Auto Receivables 2000-A Owner Trust Re: Transfer of Nissan Auto Receivables 2000-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 January 27, 2000 (the "Trust Agreement"), between Nissan Auto Receivables Corporation, as Depositor, and Wilmington Trust Company, 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 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 C-1 50 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 EX-4.5 6 ADMINISTRATION AGREEMENT 1 EXHIBIT 4.5 ADMINISTRATION AGREEMENT among NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST, as Issuer NISSAN MOTOR ACCEPTANCE CORPORATION, as Administrator and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, as Indenture Trustee Dated as of January 27, 2000 2 TABLE OF CONTENTS
PAGE ---- 1. DUTIES OF THE ADMINISTRATOR.........................................................2 2. RECORDS.............................................................................7 3. COMPENSATION........................................................................7 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER................................7 5. INDEPENDENCE OF THE ADMINISTRATOR...................................................7 6. NO JOINT VENTURE....................................................................7 7. OTHER ACTIVITIES OF ADMINISTRATOR...................................................8 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.........................8 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.....................................9 10. NOTICES.............................................................................9 11. AMENDMENTS.........................................................................10 12. SUCCESSOR AND ASSIGNS..............................................................11 13. GOVERNING LAW......................................................................11 14. NO PETITION........................................................................11 15. HEADINGS...........................................................................11 16. COUNTERPARTS.......................................................................11 17. SEVERABILITY OF PROVISIONS.........................................................11 18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES.........................................11 19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.....................12
3 ADMINISTRATION AGREEMENT, dated as of January 27, 2000, among NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST, a Delaware business trust (the "Issuer"), NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation, as administrator (the "Administrator"), and Norwest Bank Minnesota, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as Indenture Trustee (as defined below). W I T N E S S E T H: WHEREAS, beneficial ownership interests in the Issuer represented by the Nissan Auto Receivables 2000-A Owner Trust Asset Backed Certificates (the "Certificates") have been issued in connection with the formation of the Issuer pursuant to the Amended and Restated Trust Agreement, dated as of January 27, 2000 (the "Trust Agreement"), between Nissan Auto Receivables Corporation ("NARC"), a Delaware corporation, as depositor, and Wilmington Trust Company, as owner trustee (the "Owner Trustee") to the owners thereof (the "Owners"); WHEREAS, the Issuer is issuing the Nissan Auto Receivables 2000-A Owner Trust 6.125% Asset Backed Notes Class A-1, the Nissan Auto Receivables 2000-A Owner Trust 6.730% Asset Backed Notes Class A-2, the Nissan Auto Receivables 2000-A Owner Trust 7.010% Asset Backed Notes Class A-3, and the Nissan Auto Receivables 2000-A Owner Trust 7.170% Asset Backed Notes Class A-4 (collectively, the "Notes") pursuant to the Indenture, dated as of January 27, 2000 (as amended and supplemented from time to time, the "Indenture"), between the Issuer and Norwest Bank Minnesota, National Association, as indenture trustee (the "Indenture Trustee"; capitalized terms used herein and not defined herein shall have the meanings ascribed thereto in the Indenture, the Trust Agreement or the Sale and Servicing Agreement, dated as of January 27, 2000, among the Issuer, Nissan Motor Acceptance Corporation ("NMAC"), as servicer, and NARC, as seller (the "Sale and Servicing Agreement"), as the case may be); WHEREAS, the Issuer has entered into certain agreements in connection with the issuance of the Certificates and the Notes, including the Purchase Agreement, dated as of January 27, 2000 (the "Purchase Agreement"), between NMAC, as seller, and NARC, as purchaser, the Trust Agreement, the Indenture, this Agreement, the Securities Account Control Agreement, the Yield Supplement Agreement, the Note Depository Agreement, and the Sale and Servicing Agreement (collectively, the "Basic Documents"); WHEREAS, pursuant to the Basic Documents, the Issuer is required to perform certain duties in connection with the Certificates, the Notes and the Collateral; WHEREAS, the Issuer desires to appoint NMAC as administrator to perform certain of the duties of the Issuer under the Basic Documents and to provide such additional services consistent with the terms of this Agreement and the Basic Documents as the Issuer may from time to time request; and WHEREAS, the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Issuer on the terms set forth herein; 4 NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows: 1. DUTIES OF THE ADMINISTRATOR. (a) Duties with respect to the Note Depository Agreement and the Indenture. (i) The Administrator agrees to perform all its duties as Administrator under the Basic Documents and the duties of the Issuer under the Note Depository Agreement and the Indenture. In addition, the Administrator shall consult with the Owner Trustee regarding the duties of the Issuer under the Indenture and the Note Depository Agreement. The Administrator shall monitor the performance of the Issuer and shall advise the Owner Trustee when action by the Issuer or the Owner Trustee is necessary to comply with the Issuer's duties under the Indenture and the Note Depository Agreement. The Administrator shall prepare for execution by the Issuer or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuer to prepare, file or deliver pursuant to the Indenture and the Note Depository Agreement. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuer to take pursuant to the Indenture including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to sections of the Indenture): (A) preparing or obtaining the documents and instruments required for the proper authentication of Notes and delivering the same to the Indenture Trustee (Section 2.02); (B) appointing the Note Registrar and giving the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.04); (C) preparing the notification to Noteholders of the final principal payment on their Notes (Section 2.07(b)); (D) preparing, obtaining and/or filing of all instruments, opinions and certificates and other documents required for the release of Collateral (Section 2.09) ; (E) maintaining an office in the Borough of Manhattan, City of New York, for the registration of transfer or exchange of Notes (Section 3.02); (F) causing newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.03); 2 5 (G) directing the Indenture Trustee to deposit moneys with Paying Agents, if any, other than the Indenture Trustee (Section 3.03); (H) obtaining and preserving or causing the Owner Trustee to obtain and preserve the Issuer's qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of the Indenture, the Notes, the Collateral and each other instrument and agreement included in the Trust Estate (Section 3.04); (I) preparing all supplements, amendments, financing statements, continuation statements, instruments of further assurance and other instruments, in accordance with Section 3.05 of the Indenture, necessary to protect the Trust Estate (Sections 3.05 and 3.07(c)); (J) furnishing the required Opinions of Counsel on the Closing Date and at such other times, in accordance with Sections 3.06 and 8.06 of the Indenture, and delivering the annual Officer's Certificates and certain other statements as to compliance with the Indenture, in accordance with Section 3.09 of the Indenture (Sections 3.06, 3.09 and 8.06); (K) identifying to the Indenture Trustee in an Officer's Certificate any Person with whom the Issuer has contracted to perform its duties under the Indenture (Section 3.07); (L) notifying the Indenture Trustee and the Rating Agencies of any Servicer Default pursuant to the Sale and Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties under the Sale and Servicing Agreement, taking all reasonable steps available to remedy such failure (Section 3.07(d)); (M) preparing and obtaining documents and instruments required in connection with the consolidation, merger or transfer of assets of the Issuer (Section 3.10); (N) delivering notice to the Indenture Trustee of each Event of Default and each other default by the Servicer or the Seller under the Sale and Servicing Agreement (Section 3.19); (O) monitoring the Issuer's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer's Certificate and obtaining the Opinion of Counsel and the Independent Certificate (as defined in the Indenture) related thereto (Section 4.01); (P) preparing and mailing the notification of the Indenture Trustee and Noteholders with respect to special payment dates, if any (Section 5.04(d)); 3 6 (Q) preparing and, after execution by the Issuer and the Indenture Trustee, filing with the Commission and any applicable state agencies of documents required to be filed on a periodic basis with the Commission and any applicable state agencies (including any summaries thereof required by rules and regulations prescribed thereby), and transmitting of such summaries to the Noteholders (Section 7.03); (R) preparing any Issuer Request and Officer's Certificates and obtaining any Opinions of Counsel and Independent Certificates necessary for the release of the Trust Estate (Section 8.04); (S) preparing Issuer Orders and obtaining Opinions of Counsel with respect to the execution of any supplemental indentures, and mailing notices to the Noteholders with respect thereto (Sections 9.01, 9.02 and 9.03); (T) executing and delivering new Notes conforming to the provisions of any supplemental indenture, as appropriate (Section 9.06); (U) preparing all Officer's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Issuer to the Indenture Trustee to take any action under the Indenture (Section 11.01(a)); (V) preparing and delivering Officer's Certificates and obtaining Independent Certificates, if necessary, for the release of property from the lien of the Indenture (Section 11.01(b)); (W) notifying the Rating Agencies, upon any failure of the Indenture Trustee to give such notification, of the information required pursuant to Section 11.04 of the Indenture (Section 11.04); (X) preparing and delivering to the Noteholders and the Indenture Trustee any agreements with respect to alternate payment and notice provisions (Section 11.06); and (Y) recording the Indenture, if applicable (Section 11.14). (ii) The Administrator shall also: (A) pay the Indenture Trustee from time to time the reasonable compensation provided for in the Indenture with respect to services rendered by the Indenture Trustee under the Indenture (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (B) reimburse the Indenture Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the 4 7 Indenture Trustee in accordance with any provision of the Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel) to the extent the Indenture Trustee is entitled to such reimbursement by the Issuer under the Indenture; (C) indemnify the Indenture Trustee for, and hold it harmless against, any losses, liability or expense incurred without negligence or bad faith on the part of the Indenture Trustee, arising out of or in connection with the acceptance or administration of the trusts and duties contemplated by the Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection therewith to the extent the Indenture Trustee is entitled to such indemnification from the Issuer under the Indenture; (D) indemnify and hold harmless the Owner Trustee, any co-trustee and the Indenture Trustee for any loss, liability, claim, action, suit, cost or expense of the Trust to the extent that the Administrator would be liable if the Trust were a partnership under the Delaware Revised Uniform Limited Partnership Act in which the Administrator were a general partner; provided, however, that the Administrator shall not be liable for any losses incurred by a Certificateholder in the capacity of an investor in the Certificates or a Noteholder in the capacity of an investor in the Notes and will not and shall not be deemed hereby to have indemnified the Owner Trustee, any co-trustee or the Indenture Trustee against any loss liability or expense resulting from such trustee's own willful misfeasance, bad faith or negligence or by reason of a breach of representation or warranty thereof contained in the Trust Agreement or the Indenture, as the case may be. In addition, any third party creditors of the Trust (other than in connection with the obligations described in the provisions in the preceding sentence for which the Administrator shall not be liable) shall be deemed to be third party beneficiaries of this paragraph; and (E) pay the reasonable expense of any examination or investigation by the Owner Trustee undertaken pursuant to Section 7.01(e) of the Trust Agreement, and if such expense is paid by the Owner Trustee, then such expense shall be reimbursed by the Administrator upon demand. (b) Additional Duties. (i) In addition to the duties of the Administrator set forth above, the Administrator shall perform such calculations, and shall prepare for execution by the Issuer or the Owner Trustee or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuer or the Owner Trustee to prepare, file or deliver pursuant to the Basic Documents, and at the request of the Owner Trustee shall take all appropriate action that it is the duty of the Issuer or the Owner Trustee to take pursuant to the Basic Documents. Subject to Section 5 of 5 8 this Agreement, and in accordance with the reasonable written directions of the Owner Trustee, the Administrator shall administer, perform or supervise the performance of such other activities in connection with the Collateral (including the Basic Documents) as are not covered by any of the foregoing provisions and as are expressly requested by the Owner Trustee and are reasonably within the capability of the Administrator. (ii) Notwithstanding anything in this Agreement or the Basic Documents to the contrary, the Administrator shall be responsible for promptly notifying the Owner Trustee in the event that any withholding tax is imposed on the Issuer's payments (or allocations of income) to a Certificateholder as contemplated in Section 5.02(c) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Owner Trustee pursuant to such provision. (iii) The Administrator shall satisfy its obligations with respect to clause (ii) above and under the Trust Agreement by retaining, at the expense of Administrator, a firm of independent public accountants (the "Accountants") which shall perform the obligations of the Administrator thereunder. (iv) The Administrator shall perform the duties of the Administrator specified in Section 10.02 of the Trust Agreement required to be performed in connection with the removal of the Owner Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement. (v) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its Affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Issuer and shall be, in the Administrator's opinion, no less favorable to the Issuer than would be available from unaffiliated parties. (c) Non-Ministerial Matters. (i) With respect to matters that in the reasonable judgment of the Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such action the Administrator shall have notified the Owner Trustee of the proposed action and the Owner Trustee shall not have withheld consent or provided an alternative direction, and all approvals required under the Basic Documents shall have been obtained. For the purpose of the preceding sentence, "non-ministerial matters" shall include, without limitation: (A) the amendment of the Indenture or execution of any supplement to the Indenture; 6 9 (B) the initiation of any claim or lawsuit by the Issuer and the compromise of any action, claim or lawsuit brought by or against the Issuer (other than in connection with the collection of the Receivables); (C) the amendment, change or modification of any of the Basic Documents; (D) the appointment of successor Note Registrars or successor Paying Agents pursuant to the Indenture or the appointment of successor Administrators, or the consent to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of its obligations, in each case under the Indenture; and (E) the removal of the Indenture Trustee. (ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not (x) make any payments to the Noteholders under the Basic Documents, (y) sell the Trust Estate pursuant to Section 5.04 of the Indenture or (z) take any other action that the Issuer directs the Administrator not to take on its behalf. 2. RECORDS. The Administrator shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Issuer, the Owner Trustee and the Indenture Trustee at any time during normal business hours upon reasonable advance written notice. 3. COMPENSATION. As compensation for the performance of the Administrator's obligations under this Agreement and as reimbursement for its expenses related thereto, the Administrator shall be entitled to a fee of $200.00 per month which shall be solely an obligation of the Servicer. 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The Administrator shall furnish to the Issuer from time to time such additional information regarding the Collateral as the Issuer shall reasonably request. 5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Issuer, the Owner Trustee or the Indenture Trustee with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Issuer hereunder or otherwise, the Administrator shall have no authority to act for or represent the Issuer, the Owner Trustee or the Indenture Trustee, and shall not otherwise be or be deemed an agent of the Issuer, the Owner Trustee or the Indenture Trustee. 6. NO JOINT VENTURE. Nothing contained in this Agreement shall (i) constitute the Administrator and any of the Issuer, the Owner Trustee or the Indenture Trustee as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) be construed to impose any liability as such on any of them or (iii) be deemed 7 10 to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others. 7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in its or their sole discretion, from acting as an administrator for any other person or entity, or in a similar capacity therefor, even though such person or entity may engage in business activities similar to those of the Issuer, the Owner Trustee or the Indenture Trustee. 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR. (a) This Agreement shall continue in force until the termination of the Issuer, upon which event this Agreement shall automatically terminate. (b) Subject to Sections 8(e) and 8(f), the Administrator may resign by providing the Issuer with at least 30 days' prior written notice. (c) Subject to Sections 8(e) and 8(f), the Issuer may remove the Administrator without cause by providing the Administrator at least 30 days' prior written notice. (d) Subject to Sections 8(e) and 8(f), at the sole option of the Issuer, the Administrator may be removed immediately upon written notice of termination from the Issuer to the Administrator if any of the following events shall occur: (i) the Administrator shall fail to perform in any material respect any of its duties under this Agreement and, after notice of such default, shall not cure such default within 10 days (or, if such default cannot be cured in such time, shall not give within such 10 days such assurance of timely and complete cure as shall be reasonably satisfactory to the Issuer); (ii) the entry of a decree or order by a court or agency or supervisory authority having jurisdiction in the premises for the appointment of a trustee in bankruptcy, conservator, receiver or liquidator for the Administrator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings, or for the winding up or liquidation of their respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or (iii) the consent by the Administrator to the appointment of a trustee in bankruptcy, conservator or receiver or liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of assets and liabilities or similar proceedings of or relating to the Administrator of or relating to substantially all of their property, or the Administrator shall admit in writing its inability to pay its debts generally as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligations. 8 11 The Administrator agrees that if any of the events specified in clauses (ii) or (iii) of this Section shall occur, it shall give written notice thereof to the Issuer, the Owner Trustee and the Indenture Trustee within seven days after the occurrence of such event. (e) No resignation or removal of the Administrator pursuant to this Section shall be effective until (i) a successor Administrator shall have been appointed by the Issuer and (ii) such successor Administrator shall have agreed in writing to be bound by the terms of this Agreement on substantially the same terms as the Administrator is bound hereunder. (f) The appointment of any successor Administrator shall be effective only after each Rating Agency (other than Moody's) has provided to the Owner Trustee and the Indenture Trustee notice that the proposed appointment will not result in the reduction or withdrawal of any rating, if any, then assigned by such Rating Agency to any Class of Notes or the Certificates. Promptly after the appointment of any successor Administrator, the Owner Trustee will provide notice of such appointment to Moody's (so long as Moody's is then rating any outstanding Notes). (g) Subject to Section 8(e) and 8(f), the Administrator acknowledges that upon the appointment of a Successor Servicer pursuant to the Sale and Servicing Agreement, the Administrator shall immediately resign and such Successor Servicer shall automatically succeed to the rights, duties and obligations of the Administrator under this Agreement. 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon the effective date of termination of this Agreement pursuant to Section 8(a) or the resignation or removal of the Administrator pursuant to Section 8(b) or (c) or (d), the Administrator shall be entitled to be paid all fees and reimbursable expenses accruing to it to the date of such termination, resignation or removal. The Administrator shall forthwith upon such termination pursuant to Section 8(a) deliver to or to the order of the Issuer all property and documents of or relating to the Collateral then in the custody of the Administrator. In the event of the resignation or removal of the Administrator pursuant to Section 8(b) or (c) or (d), the Administrator shall cooperate with the Issuer and take all reasonable steps requested to assist the Issuer in making an orderly transfer of the duties of the Administrator. 10. NOTICES. Any notice, report or other communication given hereunder shall be in writing and addressed as follows: (a) if to the Issuer or the Owner Trustee, to: Nissan Auto Receivables 2000-A Owner Trust In care of: Wilmington Trust Company Rodney Square North 1100 North Market Street Wilmington, Delaware 19890 Attention: Nissan Auto Receivables 2000-A Owner Trust 9 12 with a copy to Nissan Auto Receivables 2000-A Owner Trust In care of: Nissan Motor Acceptance Corporation 990 West 190th Street Torrance, California 90502 Attention: Joy Crose, General Counsel (b) if to the Administrator, to: Nissan Motor Acceptance Corporation 990 West 190th Street Torrance, California 90502 Attention: Joy Crose, General Counsel (c) if to the Indenture Trustee, to: Norwest Bank Minnesota, National Association Corporate Trust Department Norwest Center 6th Street and Marquette Avenue MAC N9311-161 Minneapolis, Minnesota 55479-0070 Attention: Nissan Auto Receivables 2000-A Owner Trust or to such other address as any party shall have provided to the other parties in writing. Any notice required to be in writing hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, or hand delivered to the address of such party as provided above. 11. AMENDMENTS. This Agreement may be amended from time to time by a written amendment duly executed and delivered by the Issuer, the Administrator, and the Indenture Trustee, with the consent of the Owner Trustee but without the consent of any Noteholders or the Certificateholders, for the purpose of adding any provisions to or modifying or changing in any manner or eliminating any of the provisions of this Agreement, provided that such amendment does not and will not, in the Opinion of Counsel satisfactory to the Indenture Trustee, materially and adversely affect the interest of any Noteholder or Certificateholder. This Agreement may also be amended from time to time by the Issuer, the Administrator, and the Indenture Trustee with the consent of the Owner Trustee and (i) the holders of Notes evidencing a majority of the Outstanding Amount of the Notes, voting as a single class; or (ii) in the case of any amendment that does not adversely affect the Indenture Trustee or the Noteholders (as evidenced by an Officer's Certificate of the Servicer and an outside Opinion of Counsel indicating that such amendment will not adversely affect the Indenture Trustee or the Noteholders), the holders of the Certificates evidencing a majority of the outstanding Certificate Balance of the Certificates (but excluding for purposes of calculation and action all Certificates held by the Seller, the Servicer or any of their Affiliates unless at such time all Certificates are then owned by the Seller, the Servicer 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 10 13 or of modifying in any manner the rights of those Noteholders or Certificateholders which are not covered by the immediately preceding sentence. 12. SUCCESSOR AND ASSIGNS. This Agreement may not be assigned by the Administrator unless such assignment is consented to in writing by the Issuer, the Owner Trustee and the Indenture Trustee, and the conditions precedent to appointment of a successor Administrator set forth in Section 8 are satisfied. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the Administrator without the consent of the Issuer, the Owner Trustee and the Indenture Trustee to a corporation or other organization that is a successor (by merger, consolidation or purchase of assets) to the Administrator, provided that such successor organization executes and delivers to the Issuer, the Owner Trustee and the Indenture Trustee an agreement in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrator is bound hereunder. Subject to the foregoing, this Agreement shall bind any successors or assigns of the parties hereto. 13. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the General Obligations Law of the State of New York), and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. 14. NO PETITION. The Administrator, by entering into this Administration Agreement, hereby covenants and agrees that it will not at any time institute against the Issuer, or join in any institution against the Issuer 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 Notes, the Certificates or any of the Basic Documents. 15. HEADINGS. The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement. 16. COUNTERPARTS. This Agreement may be executed in counterparts, each of which when so executed shall together constitute but one and the same agreement. 17. SEVERABILITY OF PROVISIONS. If any one or more of the agreements, provisions or terms of this Agreement shall be for any reason whatsoever held invalid or unenforceable in any jurisdiction, then such 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 the other rights of the parties hereto. 18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES. Nothing in this Agreement shall affect any obligation, right or benefit NMAC may have in any other capacity or under any Basic Document. 11 14 19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE. Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Wilmington Trust Company, not in its individual capacity but solely in its capacity as Owner Trustee of the Issuer, and Norwest Bank Minnesota, National Association, not in its individual capacity but solely in its capacity as Indenture Trustee under the Indenture and in no event shall Wilmington Trust Company in its individual capacity, Norwest Bank Minnesota, National Association, in its individual capacity, or any Certificateholder have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Issuer. 12 15 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written. NISSAN AUTO RECEIVABLES 2000-A OWNER TRUST By: WILMINGTON TRUST COMPANY not in its individual capacity but solely as Owner Trustee By: /s/ James P. Lawler ---------------------------------------- Name: James P. Lawler Title: Vice President NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, not in its individual capacity but solely as Indenture Trustee By: /s/ Marianna C. Stershic ---------------------------------------- Name: Marianna C. Stershic Title: Assistant Vice President NISSAN MOTOR ACCEPTANCE CORPORATION, as Administrator By: /s/ Yoichiro Nagashima ---------------------------------------- Name: Yoichiro Nagashima Title: President and Chairman of the Board of Directors S-1 EX-4.6 7 YIELD SUPPLEMENT AGREEMENT 1 EXHIBIT 4.6 Nissan Auto Receivables Corporation 990 West 190th Street Torrance, California 90502 Dated as of January 27, 2000 YIELD SUPPLEMENT AGREEMENT Norwest Bank Minnesota, National Association Norwest Center 6th Street and Marquette Avenue MAC N9311-161 Minneapolis, Minnesota 55479-0070 Attention: Nissan Auto Receivables 2000-A Owner Trust Ladies and Gentlemen: Nissan Auto Receivables Corporation (the "Company") hereby confirms arrangements made as of the date hereof with you, as Indenture Trustee for the benefit of the Noteholders, to be effective upon (i) receipt by the Company of the enclosed copy of this letter agreement (the "Yield Supplement Agreement"), executed by the Indenture Trustee, (ii) execution of the Purchase Agreement, dated as of the date hereof (the "Purchase Agreement"), between the Company and Nissan Motor Acceptance Corporation ("NMAC"), (iii) receipt by NMAC of the payment by the Company of the purchase price under the Purchase Agreement, and (iv) the receipt by the Company of the capital contribution of NMAC in connection with the payment of the purchase price under the Purchase Agreement. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given to them in the Sale and Servicing Agreement, dated as of the date hereof, among NMAC, as Servicer, the Company, and Nissan Auto Receivables 2000-A Owner Trust, as Issuer (the "Sale and Servicing Agreement"). 1. On or prior to each Determination Date, the Servicer shall notify the Company of the "Yield Supplement Deposit" (as defined below) for the related Distribution Date, the amount on deposit in the Yield Supplement Account (as defined below) and the amount of reinvestment income during the related Collection Period on the Yield Supplement Account. The "Yield Supplement Deposit" means, with respect to any Distribution Date, the amount by which (i) the aggregate amount of interest that would have been due during the related Collection Period on all Yield Supplemented Receivables (as defined below) if such Yield Supplemented Receivables bore interest at the Required Rate (as defined below) exceeds (ii) the amount of interest accrued on such Yield Supplemented Receivables at their respective APRs and due during such Collection Period. "Required Rate" means, with respect to each Collection Period, the sum of (i) the Servicing Rate plus (ii) the Class A-4 Interest Rate. "Yield Supplemented Receivable" means any Receivable that has an APR less than the Required Rate. 2 2. On or before the date hereof, the Company shall establish and maintain with the Securities Intermediary and pledge to the Indenture Trustee for the benefit of the Noteholders a segregated trust account in the name of the Indenture Trustee (the "Yield Supplement Account") in accordance with the Securities Account Control Agreement to secure the payment of interest on the Notes, or such other account as may be acceptable to the Rating Agencies, and the Company hereby grants to the Indenture Trustee for the benefit of the Noteholders a first priority security interest in the monies on deposit and the other property that from time to time comprise the Yield Supplement Account (including the Initial Yield Supplement Amount), and any and all proceeds thereof (collectively, the "Yield Supplement Account Property"). The Relevant Trustee shall possess all of the rights of a secured party under the UCC with respect thereto. The Yield Supplement Account Property and the Yield Supplement Account shall be under the sole dominion and control of the Relevant Trustee. Neither the Company nor any Person claiming by, through or under the Company shall have any right, title or interest in, any control over the use of, or any right to withdraw from amounts from, the Yield Supplement Account Property or the Yield Supplement Account. All Yield Supplement Account Property in the Yield Supplement Account shall be applied by the Relevant Trustee as specified in this Yield Supplement Agreement and the Sale and Servicing Agreement. The Relevant Trustee shall, not later than 5:00 P.M., New York City time on the Business Day preceding each Distribution Date, withdraw from the Yield Supplement Account and deposit in the Collection Account an amount equal to the Yield Supplement Deposit plus the amount of reinvestment income on the Yield Supplement Account for such Distribution Date. On or prior to the date hereof, the Company shall deposit $27,173,860.31 (the "Initial Yield Supplement Amount") into the Yield Supplement Account. The amount required to be on deposit in the Yield Supplement Account on the date of issuance of the Notes and for any Distribution Date (the "Required Yield Supplement Amount"), as determined by the Servicer and notified to the Relevant Trustee, means an amount equal to the lesser of (i) the aggregate amount of each Yield Supplement Deposit that will become due on each future Distribution Date, assuming that payments on the Receivables are made on their scheduled due dates, no Receivable becomes a prepaid Receivable and a discount rate of 2.5%, and (ii) the Initial Yield Supplement Amount. The Required Yield Supplement Amount may decline as a result of prepayments or repayments in full of the Receivables. The Relevant Trustee shall have no duty or liability to determine the Required Yield Supplement Amount and may fully rely on the determination thereof by the Servicer. If, on any Distribution Date, the funds in the Yield Supplement Account are in excess of the Required Yield Supplement Amount for such Distribution Date after giving effect to all distributions to be made on such Distribution Date, the Relevant Trustee shall pay the Company the amount of such excess. The Yield Supplement Account shall not be part of the Trust. It is the intent of the parties that the Yield Supplement Account Property be treated as property of the Company for all federal, state and local income and franchise tax purposes. The provisions of this Yield Supplement Agreement should be interpreted accordingly. Further, the Company shall include in its gross income all income earned on the Yield Supplement Account Property and the Yield Supplement Account. 3. All or a portion of the Yield Supplement Account may be invested and reinvested in the manner specified in Section 5.08 of the Sale and Servicing Agreement in accordance with written instructions from the Servicer. All such investments shall be made in the name of the Relevant Trustee. Earnings on investment of funds in the Yield Supplement Account shall be 2 3 deposited in the Collection Account on each Distribution Date, and losses and any investment expenses shall be charged against the funds on deposit therein. Upon payment in full of the Notes under the Indenture, as directed in writing by the Servicer, the Relevant Trustee will release to the Company any amounts remaining on deposit in the Yield Supplement Account. If for any reason the Yield Supplement Account is no longer an Eligible Deposit Account, the Relevant Trustee shall promptly cause the Yield Supplement Account to be moved to another institution or otherwise changed so that the Yield Supplement Account becomes an Eligible Deposit Account. 4. All payments to the Company pursuant hereto shall be made by federal wire transfer (same day funds) or immediately available funds, to such account as the Company, or any assignee of the Company referred to in Section 6 hereof, may designate in writing to the Relevant Trustee, prior to the relevant Distribution Date. 5. Our agreements set forth in this Yield Supplement Agreement are our primary obligations and such obligations are irrevocable, absolute and unconditional, shall not be subject to any counterclaim, setoff or defense (other than full and strict compliance by us with our obligations hereunder) and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by, any circumstances or condition whatsoever. 6. In order to more fully protect the interests of the Noteholders, the Company will transfer, assign and convey its interest in this Yield Supplement Agreement to the Nissan Auto Receivables 2000-A Owner Trust established under the Trust Agreement (the "Trust"). Following such transfer, assignment and conveyance, this Yield Supplement Agreement shall not be amended, modified or terminated except in accordance with the provisions for amendments, modifications and terminations of the Sale and Servicing Agreement as set forth in Section 10.01 of the Sale and Servicing Agreement. 7. THIS YIELD SUPPLEMENT AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, without reference to its conflict of law provisions (other than Section 5-1401 of the General Obligations Law of the State of New York), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. 8. Except as otherwise provided herein, all notices pursuant to this Yield Supplement Agreement shall be in writing, personally delivered, sent by telecopier, sent by courier or mailed by certified mail, return receipt requested, and shall be effective upon receipt thereof. All notices shall be directed as set forth below, or to such other address or telecopy number or to the attention of such other person as the relevant party shall have designated for such purpose in a written notice. 3 4 The Company: Nissan Auto Receivables Corporation 990 West 190th Street Torrance, California 90502 Attention: Treasurer Facsimile No.: 310-324-2542 Indenture Trustee: Norwest Center 6th Street and Marquette Avenue MAC N9311 - 161 Minneapolis, Minnesota 55479-0070 Attention: Nissan Auto Receivables 2000-A Owner Trust Facsimile No.: 612-667-3464 9. This Yield Supplement Agreement may be executed in one or more counterparts and by the different parties hereto on separate counterparts, all of which shall be deemed to be one and the same document. If the foregoing satisfactorily sets forth the terms and conditions of our agreement, please indicate your acceptance thereof by signing in the space provided below and returning to us the enclosed duplicate original of this letter. 4 5 Very truly yours, NISSAN AUTO RECEIVABLES CORPORATION By: /s/ Tomoaki Shimazu ----------------------------------------- Name: Tomoaki Shimazu Title: Treasurer, Assistant Secretary and Director Agreed and accepted as of January 27, 2000 NISSAN MOTOR ACCEPTANCE CORPORATION By: /s/ Yoichiro Nagashima ----------------------------------------- Name: Yoichiro Nagashima Title: President and Chairman of the Board of Directors NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, AS INDENTURE TRUSTEE By: /s/ Marianna C. Stershic ----------------------------------------- Name: Marianna C. Stershic Title: Assistant Vice President S-1 -----END PRIVACY-ENHANCED MESSAGE-----