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EXHIBIT 4.6
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 [__________]
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TABLE OF CONTENTS
1. DUTIES OF THE ADMINISTRATOR............................................2
2. RECORDS................................................................9
3. COMPENSATION...........................................................9
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER...................9
5. INDEPENDENCE OF THE ADMINISTRATOR......................................9
6. NO JOINT VENTURE.......................................................9
7. OTHER ACTIVITIES OF ADMINISTRATOR......................................9
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR...........10
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.......................11
10. NOTICES...............................................................11
11. AMENDMENTS............................................................12
12. SUCCESSOR AND ASSIGNS.................................................13
13. GOVERNING LAW.........................................................13
14. NO PETITION...........................................................13
15. HEADINGS..............................................................13
16. COUNTERPARTS..........................................................13
17. SEVERABILITY OF PROVISIONS............................................13
18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES............................14
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE........14
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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][Nissan Auto Receivables Corporation II] ("[NARC][NARC
II]"), 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, [Floating
Rate Asset Backed Variable Pay Term Notes issued from time to time] 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][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[, the VPTNs] and the Notes, including the
Purchase Agreement, dated as of [__________] (the "Purchase Agreement"), between
NMAC, as seller, and [NARC][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 Certificate Depository
Agreement, [the Interest Rate Swap Agreement] and the Sale and Servicing
Agreement (collectively, the "Basic Documents");
WHEREAS, pursuant to the Basic Documents, the Issuer is required to
perform certain duties in connection with the Certificates, the Notes[, the
VPTNs] 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
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consistent with the terms of this Agreement and the Basic Documents as the
Issuer may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer on the
terms set forth herein;
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[, the Interest Rate Swap Agreement] 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);
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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 (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);
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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) 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).
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(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 (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.
[(iii) With respect to the issuance of the VPTNs and the
Interest Rate Swap Agreement, the Administrator agrees to perform
the following duties (references are to sections of the
Indenture):
(A) subject to conditions set forth in Section 2.02
of the Indenture, causing the Issuer to offer each VPTN
that may be issued on the Targeted Scheduled Distribution
Date for a subclass of the Class A Notes to
[_______________] and, if [______________] is unable or
unwilling to purchase such VPTN, using reasonable efforts
to locate another purchaser and causing the Issuer to
offer such VPTN to such purchaser;
(B) preparing the Issuer Order, including
determining or obtaining all necessary information to be
included thereto, for signature by one of the Issuer's
Authorized Officers and delivering the same to the
Indenture Trustee (Section 2.02);
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(C) if the Swap Counterparty is required to
collateralize any Interest Rate Swap transaction, sending
written instructions to the Indenture Trustee to establish
individual collateral accounts and to hold any securities
deposited therein in trust and to invest any cash amounts
therein in accordance with the provisions of the Interest
Rate Swap Agreement (Section 6.14(iii));
(D) calculating and providing written notification
to the Swap Counterparty and to the Indenture Trustee of
the notional amount of the Interest Rate Swap as of each
Distribution Date on or before the twelfth day of the
month of the related Distribution Date (Section 6.1(iv));
(E) obtaining the calculation of LIBOR from the
Calculation Agent and calculating the amount of all Swap
Payments, Swap Receipts and Swap Termination Payments
payable on each Distribution Date, and providing written
notification of such amounts to the Swap Counterparty and
to the Indenture Trustee prior to such Distribution Date
(Section 6.1(iv));
(F) providing the Rating Agencies with a copy of
any amendment or supplement to the Interest Rate Swap
Agreement at least five days prior to the effective date
of such proposed amendment or supplement (Section
6.14(iv));
(G) promptly following the early termination of
the Interest Rate Swap Agreement due to a Termination
Event or an Event of Default (as such terms are defined in
the Interest Rate Swap Agreement), using its reasonable
efforts to cause the Issuer to enter into a replacement
Interest Rate Swap Agreement with an eligible Swap
Counterparty (Section 6.14(v));
(H) upon the occurrence of a downgrade of the Swap
Counterparty by the Rating Agencies or of a suspension or
withdrawal of its ratings, within 30 days of such
downgrade, suspension or withdrawal, causing the Issuer to
require that the Swap Counterparty either (1) post
collateral acceptable to the Issuer in amounts sufficient
to secure its obligations under the Interest Rate Swap
Agreement, (2) assign its rights and obligations under the
Interest Rate Swap Agreement to a replacement counterparty
acceptable to the Issuer or (3) establish other
arrangements necessary, if any, in each case so that the
Rating Agencies confirm the ratings of the Class A Notes
and the VPTNs that were in effect immediately prior to
such downgrade, suspension or withdrawal (Section
6.14(vi)); and
(I) notifying the Swap Counterparty of any proposed
amendment or supplement to any of the Basic Documents,
including
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obtaining consents from the Swap Counterparty prior to the
adoption of such amendment or supplement if such proposed
amendment or supplement would adversely affect such Swap
Counterparty's rights or obligations under the Interest
Rate Swap Agreement or modify the obligations of, or
impair the ability of the Issuer to fully perform any of
its obligations under the Interest Rate Swap Agreement
(Section 6.14(vii)).
(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 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
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or any of its Affiliates. 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 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) In carrying out the foregoing duties or any of its
other obligations under this Agreement, the Administrator may
enter into transactions with or otherwise deal with any of its
Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a
reasonable time before the taking of such action the
Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld
consent or provided an alternative direction and all approvals
required under the Basic Documents shall have been obtained. For
the purpose of the preceding sentence, "non-ministerial matters"
shall include, without limitation:
(A) the amendment of the Indenture or execution of
any supplement to the Indenture;
(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
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Administrators, or the consent to the assignment by the
Note Registrar, Paying Agent or Indenture Trustee of its
obligations, in each case under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not (x) make any payments to the Noteholders under the Basic
Documents, (y) sell the Trust Estate pursuant to Section 5.04 of
the Indenture or (z) take any other action that the Issuer
directs the Administrator not to take on its behalf.
2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer, the Owner
Trustee and the Indenture Trustee at any time during normal business hours upon
reasonable advance written notice.
3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a fee of
$200.00 per month which shall be solely an obligation of the Servicer.
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer, the Owner Trustee or the Indenture
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Issuer hereunder
or otherwise, the Administrator shall have no authority to act for or represent
the Issuer, the Owner Trustee or the Indenture Trustee, and shall not otherwise
be or be deemed an agent of the Issuer, the Owner Trustee or the Indenture
Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement shall (i)
constitute the Administrator and any of the Issuer, the Owner Trustee or the
Indenture Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) be construed
to impose any liability as such on any of them or (iii) be deemed 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.
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8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the termination
of the Issuer, upon which event this Agreement shall automatically
terminate.
(b) Subject to Sections 8(e) and 8(f), the Administrator may
resign by providing the Issuer with at least 30 days' prior written
notice.
(c) Subject to Sections 8(e) and 8(f), the Issuer may remove the
Administrator without cause by providing the Administrator at least 30
days' prior written notice.
(d) Subject to Sections 8(e) and 8(f), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice
of termination from the Issuer to the Administrator if any of the
following events shall occur:
(i) the Administrator shall fail to perform in any
material respect any of its duties under this Agreement and,
after notice of such default, shall not cure such default within
10 days (or, if such default cannot be cured in such time, shall
not give within such 10 days such assurance of timely and
complete cure as shall be reasonably satisfactory to the Issuer);
(ii) the entry of a decree or order by a court or agency
or supervisory authority having jurisdiction in the premises for
the appointment of a trustee in bankruptcy, conservator, receiver
or liquidator for the Administrator in any bankruptcy,
insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding up or
liquidation of their respective affairs, and the continuance of
any such decree or order unstayed and in effect for a period of
90 consecutive days; or
(iii) the consent by the Administrator to the appointment
of a trustee in bankruptcy, conservator or receiver or liquidator
in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating
to the Administrator of or relating to substantially all of their
property, or the Administrator shall admit in writing its
inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or
reorganization statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its obligations.
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
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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 Class C 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 (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
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(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:
[_________________________________]
[_________________________________]
[_________________________________]
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
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
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
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 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 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.
[Upon any proposed amendment or supplement to this Agreement
pursuant to this Section 11, if such proposed amendment or supplement would
adversely affect any of the Swap Counterparty's rights or obligations under the
Interest Rate Swap Agreement or modify the obligations of, or impair the ability
of the Issuer to fully perform any of its obligations under the Interest Rate
Swap Agreement, then the Administrator shall obtain the consent of the Swap
Counterparty prior to the adoption of such amendment or supplement, provided the
Swap Counterparty's consent shall not be unreasonably withheld, and provided,
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further, the Swap Counterparty's consent will be deemed to have been given if
the Swap Counterparty does not object in writing within ten Business Days of
receipt of a written request for such consent.]
12. SUCCESSOR AND ASSIGNS. This Agreement may not be assigned by the
Administrator unless such assignment is consented to in writing by the Issuer,
the Owner Trustee and the Indenture Trustee, and the conditions precedent to
appointment of a successor Administrator set forth in Section 8 are satisfied.
An assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer, the Owner Trustee and
the Indenture Trustee to a corporation or other organization that is a successor
(by merger, consolidation or purchase of assets) to the Administrator, provided
that such successor organization executes and delivers to the Issuer, the Owner
Trustee and the Indenture Trustee an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions (other than Section 5-1401 of the General Obligations
Law of the State of New York), and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
14. NO PETITION. The Administrator, by entering into this Administration
Agreement, hereby covenants and agrees that it will not at any time institute
against the Issuer, or join in any institution against the Issuer of any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any United States federal or state bankruptcy or
similar law, in connection with any obligations relating to the Notes, the
Certificates or any of the Basic Documents.
15. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
17. SEVERABILITY OF PROVISIONS. If any one or more of the agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid or unenforceable in any jurisdiction, then such agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the other rights of
the parties hereto.
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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 [_________________], 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.
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
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By: ____________________________________
Name:
Title:
[_________________________________],
not in its individual capacity but
solely as Owner Trustee
By: ____________________________________
Name:
Title:
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