ADMINISTRATION AGREEMENT
among
NISSAN AUTO RECEIVABLES [____-___] OWNER TRUST,
as Issuer
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator
[____________________],
as Indenture Trustee
and
[____________________],
as Owner Trustee
Dated as of [__________]
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. HEADINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15. COUNTERPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16. SEVERABILITY OF PROVISIONS. . . . . . . . . . . . . . . . . . . . . 12
17. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES. . . . . . . . . . . . . 12
18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE. . . 12
-i-
ADMINISTRATION AGREEMENT, dated as of [__________], among NISSAN AUTO
RECEIVABLES [_________-___________] OWNER TRUST, a Delaware business trust (the
"Issuer"), NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation, as
administrator (the "Administrator"), [____________________], a
[______________________], not in its individual capacity but solely as Indenture
Trustee (as defined below), and [____________________], a
[__________________________], 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 [_________-_________] Owner Trust Asset Backed
Certificates, Class C and Class D (the "Certificates") have been issued in
connection with the formation of the Issuer pursuant to the Trust Agreement,
dated as of [__________] (the "Trust Agreement"), between Nissan Auto
Receivables Corporation ("NARC"), a Delaware corporation, as depositor, and
[____________________], as owner trustee (the "Owner Trustee") to the owners
thereof (the "Owners");
WHEREAS, the Issuer is issuing the Nissan Auto Receivables [___-__] Owner
Trust [___]% Asset Backed Notes Class A-1, the Nissan Auto Receivables [___-__]
Owner Trust [___]% Asset Backed Notes Class A-2, the Nissan Auto Receivables
[___-__] Owner Trust [___]% Asset Backed Notes Class A-3, and the Nissan Auto
Receivables [___-__] Owner Trust [___]% Asset Backed Notes Class B
(collectively, the "Notes") pursuant to the Indenture, dated as of [__________]
(as amended and supplemented from time to time, the "Indenture"), between the
Issuer and [_________], 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 [__________], 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 [__________] (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, the Certificate Depository Agreement,
and the Sale and Servicing Agreement (collectively, the "Basic Documents");
WHEREAS, pursuant to the Basic Documents, the Issuer, the Owner Trustee and
the Indenture Trustee are required to perform certain duties in connection with
the Certificates, the Notes and the Collateral;
WHEREAS, the Issuer, the Owner Trustee and the Indenture Trustee desire to
appoint NMAC as administrator to perform certain of the duties of the Issuer,
the Owner Trustee and the Indenture Trustee under the Basic Documents and to
provide such additional services consistent
with the terms of this Agreement and the Basic Documents as the Issuer and
the Owner Trustee 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, the
Owner Trustee and the Indenture Trustee 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 and the duties of the Issuer under the Note Depository
Agreement. In addition, the Administrator shall consult with the
Owner Trustee regarding the duties of the Issuer under the
Indenture and the 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 or 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);
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(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);
(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
(Section 3.05);
(J) furnishing the required Opinions of Counsel on the
Closing Date and at such other times, in accordance with Section
3.06 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 and 3.09);
(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);
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(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) fixing or causing to be fixed any specified record
date and the notification of the Indenture Trustee and
Noteholders with respect to special payment dates, if any
(Section 5.04(d));
(Q) removing the Indenture Trustee and petitioning a court
of competent jurisdiction for the appointment of a successor
Indenture Trustee (Section 6.08);
(R) furnishing the Indenture Trustee with the names and
addresses of the Noteholders during any period when the Indenture
Trustee is not the Note Registrar (Section 7.01);
(S) 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);
(T) 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);
(U) 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);
(V) executing and delivering new Notes conforming to the
provisions of any supplemental indenture, as appropriate
(Section 9.06);
(W) notifying Noteholders of any redemption of the Notes
or causing the Indenture Trustee to provide such notice (Sections
10.01 and 10.02);
(X) 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));
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(Y) 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));
(Z) 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);
(AA) preparing and delivering to the Noteholders and the
Indenture Trustee any agreements with respect to alternate
payment and notice provisions (Section 11.06); and
(BB) recording the Indenture, if applicable (Section 11.14).
(ii) The Administrator also will:
(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
lal 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; and
(D) indemnify the Owner Trustee for, and hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Owner Trustee,
arising out of or in connection with the acceptance or
administration of the transactions contemplated by the Basic
Documents, including the reasonable costs and expenses of
defending themselves against any claim or liability in
connection with the exercise or performance of any of their
powers or duties under the Trust Agreement.
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(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 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 Owner Trustee set forth in Section
5.04(a), (b), (c) and (d) of the Trust Agreement with respect to,
among other things, accounting and reports to the Certificate Owners;
PROVIDED, HOWEVER, that the Owner Trustee shall remain exclusively
responsible for the distribution of the Schedule K-1s necessary to
enable each Certificate Owner to prepare its federal and state income
tax returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense
of the Issuer payable by the Administrator, a firm of independent
public accountants (the "Accountants") acceptable to the Owner Trustee
which shall perform the obligations of the Administrator thereunder.
In connection with paragraph (ii) above, the Accountants will provide
prior to [_________________], 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
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to comply with the requirements of the Code. 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) 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. 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,
successor Paying Agents or successor Indenture Trustees pursuant
to the Indenture or the appointment of successor Administrators
or Successor Servicers, 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.
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(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 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 dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
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(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 has provided to the Owner Trustee and the
Indenture Trustee
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written notice that the proposed appointment will not result in the
reduction or withdrawal of any rating then assigned by such
Rating Agency to any Class of Notes or the Class C Certificates.
(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 [_____-___] Owner Trust
In care of: ________________________
[_________________________________]
Attention: Nissan Auto Receivables [_____-___] Owner Trust
with a copy to
Nissan Auto Receivables [_____-___] Owner Trust
In care of: Nissan Motor Acceptance Corporation
000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxx, General Counsel
(b) if to the Administrator, to:
Nissan Motor Acceptance Corporation
000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxx, General Counsel
(c) if to the Indenture Trustee, to:
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[_________________________________]
[_________________________________]
[_________________________________]
Attention: Nissan Auto Receivables [___-___] 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,
the Owner Trustee and the Indenture Trustee, 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, the Owner Trustee and the Indenture Trustee with the consent of
(i) the holders of Notes evidencing a majority of the Outstanding Amount of the
Controlling Class of Notes; or (ii) in the case of any amendment that does not
adversely affect the Indenture Trustee or the Noteholders (as evidenced by an
Opinion of Counsel satisfactory to the Indenture Trustee), the holders of the
Certificates evidencing a majority of the outstanding Certificate Balance of the
Controlling Class of Certificates (but excluding for purposes of calculation
and action all Certificates 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 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, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
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14. 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.
15. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which when so executed shall together constitute but one and the same agreement.
16. 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.
17. 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.
18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by [_________________], not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer, and [_________________],
not in its individual capacity but solely in its capacity as Indenture Trustee
under the Indenture and in no event shall [_________________] in its individual
capacity, [________________], 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
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 [____-___]
OWNER TRUST
By: [ ]
----------------------------
not in its individual capacity but solely as Owner
Trustee
By:
-----------------------------
Name:
Title:
[ ], not in its
------------------------------
individual capacity but solely as Indenture Trustee
By:
----------------------------
Name:
Title:
NISSAN MOTOR ACCEPTANCE
CORPORATION,
as Administrator
By:
----------------------------
Name:
Title:
S-1
[ ]
------------------------------
, not in its individual capacity but solely as Owner
Trustee
By:
------------------------------
Name:
Title:
S-2
