EXHIBIT 4.5
ADMINISTRATION AGREEMENT
among
NISSAN AUTO RECEIVABLES 2004-C OWNER TRUST,
as Issuer
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of September 16, 2004
TABLE OF CONTENTS
PAGE
----
1. DUTIES OF THE ADMINISTRATOR................................................... 2
2. RECORDS....................................................................... 8
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 2004-C Administration Agreement)
This ADMINISTRATION AGREEMENT, dated as of September 16, 2004 (this
"Agreement"), among NISSAN AUTO RECEIVABLES 2004-C 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).
W I T N E S S E T H:
WHEREAS, beneficial ownership interests in the Issuer represented by
the Nissan Auto Receivables 2004-C 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 September 16,
2004 (the "Trust Agreement"), between Nissan Auto Receivables Corporation II
("NARC II"), 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 2004-C Owner
Trust 1.9300% Asset Backed Notes Class A-1, the Nissan Auto Receivables 2004-C
Owner Trust 2.4300% Asset Backed Notes Class A-2, the Nissan Auto Receivables
2004-C Owner Trust 2.8500% Asset Backed Notes Class A-3, and the Nissan Auto
Receivables 2004-C Owner Trust Floating Rate Asset Backed Notes Class A-4
(collectively, the "Notes") pursuant to the Indenture, dated as of September 16,
2004 (as amended and supplemented from time to time, the "Indenture"), between
the Issuer and Xxxxx Fargo Bank, 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 September 16, 2004, among the Issuer,
Nissan Motor Acceptance Corporation ("NMAC"), as servicer, and NARC II, 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 September 16, 2004 (the "Purchase Agreement"), between
NMAC, as seller, and NARC II, as purchaser, the Trust Agreement, the Indenture,
this Agreement, the Securities Account Control Agreement, the Yield Supplement
Agreement, the Note Depository Agreement, the Sale and Servicing Agreement and
the Interest Rate Cap 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
(Nissan 2004-C Administration Agreement)
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;
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);
(Nissan 2004-C Administration Agreement)
2
(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);
(Nissan 2004-C Administration Agreement)
3
(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) 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 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
(Nissan 2004-C Administration Agreement)
4
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 (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) 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 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
(Nissan 2004-C Administration Agreement)
5
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, 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) 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; provided, however, that the
Certificateholder is not the Administrator or any of its
Affiliates.
In connection with paragraph (ii) above, the
Accountants will 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.
(Nissan 2004-C Administration Agreement)
6
(vii) 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 (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;
(E) the removal of the Indenture
Trustee; and
(F) the provision to the Rating
Agencies of copies of any amendment or supplement to
the Interest Rate Cap Agreement and the notification
of the Cap Provider of any proposed amendment or
supplement to any of the Basic Documents.
(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.
(Nissan 2004-C Administration Agreement)
7
(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.
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 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.
(Nissan 2004-C Administration Agreement)
8
(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.
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
(Nissan 2004-C Administration Agreement)
9
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.
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 8(c)
or 8(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 8(c) or 8(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 2004-C Owner Trust
In care of: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Nissan Auto Receivables 2004-C Owner Trust
with a copy to:
Nissan Auto Receivables 2004-C Owner Trust
In care of: Nissan Motor Acceptance Corporation
000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
(b) if to the Administrator, to:
Nissan Motor Acceptance Corporation
000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
(Nissan 2004-C 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.
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 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
(Nissan 2004-C Administration Agreement)
11
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.
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 Xxxxx Fargo Bank, 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, Xxxxx Fargo Bank,
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.
(Nissan 2004-C Administration Agreement)
12
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 2004-C OWNER
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Indenture Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Financial Services Officer
(Nissan 2004-C Administration Agreement)
S-1
