ADMINISTRATION AGREEMENT among NISSAN AUTO RECEIVABLES OWNER TRUST, as Issuer NISSAN MOTOR ACCEPTANCE CORPORATION, as Administrator WELLS FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee and WILMINGTON TRUST COMPANY, as Owner Trustee Dated as of...
EXHIBIT 4.5
among
NISSAN AUTO RECEIVABLES OWNER TRUST,
as Issuer
as Issuer
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator
as Administrator
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
as Indenture Trustee
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
as Owner Trustee
Dated as of , 200_
TABLE OF
CONTENTS
Page | ||||
1. DUTIES OF THE ADMINISTRATOR |
2 | |||
2. RECORDS |
7 | |||
3. COMPENSATION |
8 | |||
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER |
8 | |||
5. INDEPENDENCE OF THE ADMINISTRATOR |
8 | |||
6. NO JOINT VENTURE |
8 | |||
7. OTHER ACTIVITIES OF ADMINISTRATOR |
8 | |||
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR |
8 | |||
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL |
10 | |||
10. NOTICES |
10 | |||
11. AMENDMENTS |
11 | |||
12. SUCCESSOR AND ASSIGNS |
11 | |||
13. GOVERNING LAW |
12 | |||
14. NO PETITION |
12 | |||
15. HEADINGS |
12 | |||
16. COUNTERPARTS |
12 | |||
17. SEVERABILITY OF PROVISIONS |
12 | |||
18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES |
12 | |||
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE |
12 |
(Nissan ___ Administration Agreement) |
This
ADMINISTRATION AGREEMENT, dated as of , 200___ (this “Agreement”), among NISSAN
AUTO RECEIVABLES OWNER TRUST, a Delaware statutory trust (the “Issuer”), NISSAN MOTOR
ACCEPTANCE CORPORATION, a California corporation, as administrator (the “Administrator”), and XXXXX
FARGO BANK, NATIONAL ASSOCIATION, a national banking association, not in its individual capacity
but solely as Indenture Trustee (as defined below), and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, not in its individual capacity but solely as Owner Trustee (as defined below).
(Nissan ___ Administration Agreement) |
(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);
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(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);
(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);
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(P) preparing and mailing the notification of the Indenture Trustee and
Noteholders with respect to special payment dates, if any (Section 5.04(d));
(Q) [Intentionally Blank]
(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 or
securities from the lien of the Indenture (Section 11.01(c));
(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 Indenture
Trustee in accordance with any provision of the Indenture
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(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; and
(D) 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.
(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 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) Notwithstanding anything in this Agreement or the Basic Documents to the
contrary, the Administrator shall be responsible for performance of the duties of
the Administrator set forth in Section 5.04(a), (b), (c), (d), (e) and (f) of the
Trust Agreement with respect to, among other things,
(Nissan ___ Administration Agreement) |
5
accounting and reports to the Certificateholders; provided, however, that the
Owner Trustee shall remain exclusively responsible for the mailing of the Schedule
K-1s necessary to enable each Certificateholder to prepare its federal and state
income tax returns.
(iv) If the Certificateholder is not the Administrator or any of its
Affiliates, the Administrator shall satisfy its obligations with respect to clauses
(ii) and (iii) above and under the Trust Agreement by retaining, at the expense of
the Administrator, a firm of independent public accountants (the “Accountants”)
which shall perform the obligations of the Administrator thereunder.
In connection with paragraph (ii) above, the Administrator will cause the
Accountants to provide, prior to December 1 of each year, a letter in form and
substance satisfactory to the Owner Trustee as to whether any tax withholding is
then required and, if required, the procedures to be followed with respect thereto
to comply with the requirements of the Code; provided, however, that the
Certificateholder is not the Administrator or any of its Affiliates. The Accountants
shall be required to update the letter in each instance that any additional tax
withholding is subsequently required or any previously required tax withholding
shall no longer be required.
(v) 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 resignation or removal of the Owner Trustee, and any other duties expressly
required to be performed by the Administrator under the Trust Agreement.
(vi) The Administrator shall advise the Owner Trustee in all regards with
respect to its duties pursuant to any Swap Agreement into which the Trust enters
pursuant to Section 5.02(d) of the Trust Agreement, including the recommendation of
and retention, at its expense, of any such agents or advisors that are deemed by the
Owner Trustee to be reasonably necessary to undertake its duties pursuant to any
such Swap Agreement. Pursuant to Section 5.02(d) of the Trust Agreement, if the
Certificateholders notify the Administrator with respect to the Trust’s election to
enter into such a Swap Agreement, the Administrator will prepare all necessary and
appropriate documentation and take all of the necessary and appropriate actions to
cause the Issuer to enter into such a Swap Agreement on behalf of the Trust.
(vii) The Administrator shall perform all duties and obligations applicable to
or required of the Issuer set forth in Appendix A to the Sale and Servicing
Agreement in accordance with the terms and conditions thereof.
(viii) 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.
(Nissan ___ Administration Agreement) |
6
(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 (x) the
Administrator shall have notified the Owner Trustee of the proposed action and the
Owner Trustee shall have consented thereto or provided an alternative direction, and
(y) 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;
(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.
(d) Swap Agreement. As set forth in Section 5.11 of the Sale and Servicing
Agreement, the Issuer may enter into a currency Swap Agreement with a Swap
Counterparty to swap amounts payable to Certificateholders from U.S. dollars to
Japanese yen, according to the terms set forth in Section 5.11 of the Sale and
Servicing Agreement and Section 5.02(d) of the Trust Agreement.
(Nissan ___ Administration Agreement) |
7
(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);
(Nissan ___ Administration Agreement) |
8
(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.
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 Xxxxx’x 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.
(Nissan ___ Administration Agreement) |
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(a) | if to the Issuer or the Owner Trustee, to: | ||
Nissan Auto Receivables Owner Trust In care of: Wilmington Trust Company Xxxxxx Square North 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxxxxx, Xxxxxxxx 00000 Attention: Nissan Auto Receivables Owner Trust |
|||
with a copy to: | |||
Nissan Auto Receivables Owner Trust In care of: Nissan Motor Acceptance Corporation XxxxXxxxx Xxxxx 000 Xxxxxxxx Xxxxxx 00xx Xxxxx, X-00-X Xxxxxxxxx, XX 00000-0000 Attention: Treasurer |
|||
(b) | if to the Administrator, to: | ||
Nissan Motor Acceptance Corporation XxxxXxxxx Xxxxx 000 Xxxxxxxx Xxxxxx 00xx Xxxxx, X-00-X Xxxxxxxxx, XX 00000-0000 Attention: Treasurer |
(Nissan ___ Administration Agreement) |
10
(c) | if to the Indenture Trustee, to: | ||
Xxxxx Fargo Bank, National Association Xxxxx Fargo Center Sixth and Marquette Avenue, MAC N9311-161 Xxxxxxxxxxx, XX 00000 Attn: Asset Backed Securities Department |
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.
(Nissan ___ Administration Agreement) |
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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.
(Nissan ___ Administration Agreement) |
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NISSAN AUTO RECEIVABLES OWNER TRUST |
||||
By: | WILMINGTON TRUST COMPANY, | |||
not in its individual capacity but solely as | ||||
Owner Trustee | ||||
By: | ||||
Name: | ||||
Title: | ||||
XXXXX FARGO BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as Indenture Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
NISSAN MOTOR ACCEPTANCE CORPORATION, as Administrator |
||||
By: | ||||
Name: | ||||
Title: | ||||
WILMINGTON TRUST COMPANY, not in its individual capacity but solely as Owner Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
(Nissan ___ Administration Agreement) |
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