Exhibit 10.1
NISSAN MASTER OWNER TRUST
RECEIVABLES
SECOND AGREEMENT OF MODIFICATION
TO TRANSACTION DOCUMENTS
This SECOND AGREEMENT OF
MODIFICATION TO TRANSACTION DOCUMENTS, dated as of May 23,
2012 (this “ Agreement” ), is by and among the
signatories hereto.
RECITALS:
WHEREAS , the parties hereto have entered into the
Transaction Documents;
WHEREAS , the parties hereto wish to agree to modify the
Transfer and Servicing Agreement pursuant to Section 8.01(b)
thereof, the Receivables Purchase Agreement pursuant to
Section 7.01(b) thereof, the Indenture pursuant to
Section 10.02 thereof and the Trust Agreement pursuant to
Section 10.01(c) thereof as of the Effective Date in
accordance with the terms and conditions set forth below;
and
NOW, THEREFORE
, in consideration of the mutual
agreements herein contained and other good and valuable
consideration, receipt of which is acknowledged, the parties hereto
agree as follows:
ARTICLE I
RECITALS AND
DEFINITIONS
Section 1.1
Recitals . The foregoing Recitals are hereby
incorporated in and made a part of this Agreement.
Section 1.2
Definitions . Capitalized terms used and not defined
herein have the respective meanings assigned such terms in the
Annex of Definitions attached to the Amended and Restated Transfer
and Servicing Agreement, dated as of October 15, 2003 (as
amended, modified, supplemented, amended or restated or otherwise
modified from time to time, the “ Transfer and Servicing
Agreement ”), by and among Nissan Wholesale Receivables
Corporation II (“ NWRC II ”), as transferor (the
“ Transferor ”), Nissan Master Owner Trust
Receivables, as issuer (the “ Issuer ”), and
Nissan Motor Acceptance Corporation (“ NMAC ”),
as servicer (the “ Servicer ”).
ARTICLE II
MODIFICATIONS
Section 2.1 Agreements
With Respect to the Transfer and Servicing Agreement . As
of the Effective Date:
(a) Section 2.03(c) of the
Transfer and Servicing Agreement shall be modified in its entirety
to read as follows:
“Reassignment upon Breach. If
any breach of any of the representations and warranties set forth
in Section 2.03(a), Section 2.06(f) and
Section 2.08(d) has a material adverse
effect on the Noteholders’
Collateral in Receivables transferred to the Issuer by the
Transferor, then any of the Owner Trustee, the Indenture Trustee or
the Holders of Notes evidencing at least a majority of the
Outstanding Principal Amount of all Notes of all outstanding
Series, by notice then given in writing to the Transferor (and to
the Owner Trustee, the Indenture Trustee, the Servicer and any
Series Enhancer if given by the Noteholders), may direct the
Transferor to accept reassignment of all the Receivables (or, at
the Transferor’s option, redesignation of the Accounts
related to such Receivables and reassignment of all Receivables
under such Accounts) transferred by it to the Issuer within 30 days
of such notice, and the Transferor is obligated to accept such
reassignment on the Determination Date immediately succeeding the
expiration of such 30-day period on the terms and conditions set
forth below; provided, however, that no such reassignment is
required to be made if, by the end of such 30-day period, the
representations and warranties set forth in Section 2.03(a)
are satisfied in all material respects, and any material adverse
effect on the Noteholders’ Collateral in Receivables caused
by the breach has been cured.
In connection with any reassignment
pursuant to this Section, the Transferor will deposit into the
Collection Account in immediately available funds on the Business
Day preceding the Payment Date on which such reassignment
obligation arises, in payment for such reassignment, an amount
equal to the sum of the Reassignment Amounts with respect to each
outstanding Series in the related Indenture Supplement.
Notwithstanding anything to the contrary in this Agreement, such
deposited amount will be distributed to the Noteholders on such
Payment Date in accordance with the Indenture and each Indenture
Supplement in payment of their Notes. The Owner Trustee will
execute such documents and instruments of transfer or assignment
and take such other actions as are reasonably requested by the
Transferor to effect the conveyance of such Receivables (or, at the
Transferor’s option, the redesignation of the Accounts
related to such Receivables and conveyance of all Receivables under
such Accounts) pursuant to this Section. If the Owner Trustee, the
Indenture Trustee or the Noteholders give notice directing the
Transferor to accept reassignment of all the Receivables (or, at
the Transferor’s option, redesignation of the Accounts
related to such Receivables and reassignment of all Receivables
under such Accounts) transferred by the Transferor as provided
above, the obligation of the Transferor to accept such reassignment
and make the required deposit into the Collection Account pursuant
to this Section constitutes the sole remedy with respect to an
event of the type specified in the first sentence of this
Section 2.03(c) available to the Noteholders (or the Owner
Trustee, any Series Enhancer or the Indenture Trustee on behalf of
the Noteholders).”
(b) Section 2.04(c) of the
Transfer and Servicing Agreement shall be modified in its entirety
to read as follows:
“Reassignment upon Breach. If
any representation or warranty under Section 2.04(a) is not
true and correct as of the date specified therein and such breach
has a material adverse effect on a Receivable, then, within 30 days
of the earlier to occur of the discovery of any such breach by the
Transferor, or receipt by the Transferor of written notice of any
such breach given by the Owner Trustee, the Indenture Trustee, the
Servicer or any Series Enhancers, the Transferor will accept
reassignment of such Receivable (or,
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at the Transferor’s option,
redesignation of the Account related to such Receivable and
reassignment of all Receivables under such Account) on the
Determination Date immediately succeeding the expiration of such
30-day period on the terms and conditions set forth in the next
succeeding paragraph; provided, however, that no such reassignment
will be required to be made if, by the end of such 30-day period,
the representations and warranties set forth in
Section 2.04(a) are then true and correct in all material
respects and any material adverse effect caused by the breach has
been cured.
In connection with any reassignment
of a Receivable pursuant to this Section, the Transferor will
direct the Servicer to deduct, subject to the next sentence, the
principal amount of such Receivable from the Pool Balance on or
before the end of the Collection Period in which such reassignment
obligation arises. If such deduction would cause the Adjusted Pool
Balance to fall below the Required Participation Amount, then
(i) pursuant to Section 2.06, the Transferor shall
designate additional Eligible Accounts as Additional Accounts, such
that the Adjusted Pool Balance exceeds the Required Participation
Amount, or (ii) the Transferor shall deposit into the Excess
Funding Account in immediately available funds the Transferor
Deposit Amount; provided, however, that if the Transferor fails to
transfer such Receivable (or, at the Transferor’s option,
redesignate the Account related to such Receivable and transfer all
Receivables under such Account) and Related Security arising in
connection with such Additional Accounts, or if the related
Transferor Deposit Amount is not deposited as required by this
sentence, then the principal amount of such Receivable will not be
deducted from the Pool Balance for purposes of determining whether
the Adjusted Pool Balance has fallen below the Required
Participation Amount and collections in respect of such Receivable
will continue to be included in Interest Collections and Principal
Collections. Upon reassignment of any such Receivable (or, at the
Transferor’s option, redesignation of the Account related to
such Receivable and reassignment of all Receivables under such
Account), but only after the transfer by the Transferor of
Receivables or redesignation of Accounts and transfer of all
Receivables under such Accounts, as applicable, and Related
Security with respect to Additional Accounts or payment by the
Transferor of the Transferor Deposit Amount, if any, the Issuer
will automatically and without further action be deemed to
transfer, assign, set over and otherwise convey to the Transferor,
without recourse, representation or warranty, all the right, title
and interest of the Issuer in and to such Receivable, all Related
Security and all moneys due or to become due with respect thereto
and all proceeds thereof. The Owner Trustee will execute such
documents and instruments of transfer or assignment and take such
other actions as are reasonably requested by the Transferor to
effect the conveyance of such Receivable (or, at the
Transferor’s option, the redesignation of the Account related
to such Receivable and the conveyance of all Receivables under such
Account) pursuant to this Section. The obligation of the Transferor
to accept reassignment of any such Receivable and to pay any
related Transferor Deposit Amount constitutes the sole remedy with
respect to the event of the type specified in the first sentence of
this Section 2.04(c) available to the Noteholders (or the
Owner Trustee, any Series Enhancer or the Indenture Trustee on
behalf of the Noteholders).”
(c) Section 2.08(a) of the
Transfer and Servicing Agreement shall be modified in its entirety
to read as follows:
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“On any date, the Transferor
has the right to redesignate any Eligible Accounts as Redesignated
Accounts and thereby either (x) repurchase from the Issuer the
outstanding related Receivables (or, at the Transferor’s
option, redesignate the Accounts related to such Receivables and
repurchase all Receivables under such Accounts) and all Related
Security in connecti