EXHIBIT 4.5
ADMINISTRATION AGREEMENT
among
NISSAN AUTO RECEIVABLES 2002-B OWNER TRUST,
as Issuer
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee
Dated as of April 17, 2002
TABLE OF CONTENTS
PAGE
----
1. DUTIES OF THE ADMINISTRATOR ........................................... 2
2. RECORDS ............................................................... 7
3. COMPENSATION .......................................................... 7
4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER .................. 7
5. INDEPENDENCE OF THE ADMINISTRATOR ..................................... 7
6. NO JOINT VENTURE ...................................................... 7
7. OTHER ACTIVITIES OF ADMINISTRATOR ..................................... 8
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR ........... 8
9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL ....................... 9
10. NOTICES ............................................................... 9
11. AMENDMENTS ............................................................ 10
12. SUCCESSOR AND ASSIGNS ................................................. 11
13. GOVERNING LAW ......................................................... 11
14. NO PETITION ........................................................... 11
15. HEADINGS .............................................................. 11
16. COUNTERPARTS .......................................................... 11
17. SEVERABILITY OF PROVISIONS ............................................ 11
18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES ............................ 11
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE ........ 12
(Nissan 2002-B Administration Agreement)
This ADMINISTRATION AGREEMENT, dated as of April 17, 2002 (this
"Agreement"), among NISSAN AUTO RECEIVABLES 2002-B OWNER TRUST, a Delaware
business trust (the "Issuer"), NISSAN MOTOR ACCEPTANCE CORPORATION, a California
corporation, as administrator (the "Administrator"), and Xxxxx Fargo Bank
Minnesota, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity but solely as Indenture 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 2002-B 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 April 17, 2002
(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 2002-B Owner
Trust 2.09000% Asset Backed Notes Class A-1, the Nissan Auto Receivables 2002-B
Owner Trust 3.07000% Asset Backed Notes Class A-2, the Nissan Auto Receivables
2002-B Owner Trust 3.99000% Asset Backed Notes Class A-3, and the Nissan Auto
Receivables 2002-B Owner Trust 4.60000% Asset Backed Notes Class A-4
(collectively, the "Notes") pursuant to the Indenture, dated as of April 17,
2002 (as amended and supplemented from time to time, the "Indenture"), between
the Issuer and Xxxxx Fargo Bank Minnesota, 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 April 17, 2002, 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 April 17, 2002 (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, 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 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
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);
(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);
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(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);
(P) preparing and mailing the notification of the
Indenture Trustee and Noteholders with respect to special
payment dates, if any (Section 5.04(d));
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(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 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
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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 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),
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(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 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 (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;
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(B) the initiation of any claim or lawsuit by the Issuer
and the compromise of any action, claim or lawsuit brought by
or against the Issuer (other than in connection with the
collection of the Receivables);
(C) the amendment, change or modification of any of the
Basic Documents;
(D) the appointment of successor Note Registrars or
successor Paying Agents pursuant to the Indenture or the
appointment of successor Administrators, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations, in each case under the Indenture;
and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not (x) make any payments to the Noteholders under the Basic
Documents, (y) sell the Trust Estate pursuant to Section 5.04 of the
Indenture or (z) take any other action that the Issuer directs the
Administrator not to take on its behalf.
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
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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.
(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.
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The Administrator agrees that if any of the events specified
in clauses (ii) or (iii) of this Section shall occur, it shall give
written notice thereof to the Issuer, the Owner Trustee and the Indenture
Trustee within seven days after the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have
been appointed by the Issuer and (ii) such successor Administrator shall
have agreed in writing to be bound by the terms of this Agreement on
substantially the same terms as the Administrator is bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after each Rating Agency (other than Moody's) has provided
to the Owner Trustee and the Indenture Trustee notice that the proposed
appointment will not result in the reduction or withdrawal of any rating,
if any, then assigned by such Rating Agency to any Class of Notes or the
Certificates. Promptly after the appointment of any successor
Administrator, the Owner Trustee will provide notice of such appointment
to Moody's (so long as Xxxxx'x is then rating any outstanding Notes).
(g) Subject to Section 8(e) and 8(f), the Administrator acknowledges
that upon the appointment of a Successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
Successor Servicer shall automatically succeed to the rights, duties and
obligations of the Administrator under this Agreement.
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 2002-B Owner Trust
In care of: Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Nissan Auto Receivables 2002-B Owner Trust
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with a copy to:
Nissan Auto Receivables 2002-B 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:
Xxxxx Fargo Bank Minnesota, 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
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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 (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.
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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
Minnesota, 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 Minnesota,
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.
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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 2002-B OWNER
TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Authorized Signer
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, not in its individual
capacity but solely as Indenture Trustee
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Corporate Trust Officer
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
S-1
