EXHIBIT 4.5
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 [__________]
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
ADMINISTRATION AGREEMENT, dated as of [__________], among NISSAN AUTO
RECEIVABLES [_________-___________] OWNER TRUST, a Delaware statutory 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).
WITNESSETH:
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 II ("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 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 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
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);
2
(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);
3
(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).
4
(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);
5
(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
6
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
7
or any of its Affiliates. In connection with paragraph (ii)
above, the Accountants will provide prior to [December 1 of
each year], a letter in form and substance satisfactory to the
Owner Trustee as to whether any tax withholding is then
required and, if required, the procedures to be followed with
respect thereto to comply with the requirements of the Code;
provided, however that the Certificateholder is not the
Administrator or any of its Affiliates. The Accountants shall
be required to update the letter in each instance that any
additional tax withholding is subsequently required or any
previously required tax withholding shall no longer be
required.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust
Agreement required to be performed in connection with the
resignation or removal of the Owner Trustee, and any other
duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) [The Administrator shall advise the Owner
Trustee in all regards with respect to its duties pursuant to
any Swap Agreement into which the Trust enters pursuant to
Section 5.02(d) of the Trust Agreement, including the
recommendation of and retention, at its expense, of any such
agents or advisors that are deemed by the Owner Trustee to be
reasonably necessary to undertake its duties pursuant to any
such Swap Agreement. Pursuant to Section 5.02(d) of the Trust
Agreement, if the Certificateholders notify the Administrator
with respect to the Trust's election to enter into such a Swap
Agreement, the Administrator will prepare all necessary and
appropriate documentation and take all of the necessary and
appropriate actions to cause the Issuer to enter into such a
Swap Agreement on behalf of the Trust.]
(vii) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator
may enter into transactions with or otherwise deal with any of
its Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any
directions received from the Issuer and shall be, in the
Administrator's opinion, no less favorable to the Issuer than
would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a
reasonable time before the taking of such action (x) the
Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall have consented
thereto or provided an alternative direction, and (y) all
approvals required under the Basic Documents shall have been
obtained. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
8
(A) the amendment of the Indenture or
execution of any supplement to the Indenture;
(B) the initiation of any claim or lawsuit
by the Issuer and the compromise of any action, claim
or lawsuit brought by or against the Issuer (other
than in connection with the collection of the
Receivables);
(C) the amendment, change or modification of
any of the Basic Documents;
(D) the appointment of successor Note
Registrars, or successor Paying Agents pursuant to
the Indenture or the appointment of successor
Administrators, or the consent to the assignment by
the Note Registrar, Paying Agent or Indenture Trustee
of its obligations, in each case under the Indenture;
[and]
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and
shall not (x) make any payments to the Noteholders under the
Basic Documents, (y) sell the Trust Estate pursuant to Section
5.04 of the Indenture or (z) take any other action that the
Issuer directs the Administrator not to take on its behalf.
(d) [Swap Agreement. As set forth in Section 5.11 of the Sale
and Servicing Agreement, the Issuer may enter into a currency Swap
Agreement with a Swap Counterparty to swap amounts payable to
Certificateholders from U.S. dollars to Japanese yen, according to the
terms set forth in Section 5.11 of the Sale and Servicing Agreement and
Section 5.02(d) of the Trust Agreement.]
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
9
supervision of the Issuer, the Owner Trustee or the Indenture Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer hereunder or
otherwise, the Administrator shall have no authority to act for or represent the
Issuer, the Owner Trustee or the Indenture Trustee, and shall not otherwise be
or be deemed an agent of the Issuer, the Owner Trustee or the Indenture Trustee.
6. NO JOINT VENTURE. Nothing contained in this Agreement shall (i)
constitute the Administrator and any of the Issuer, the Owner Trustee or the
Indenture Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) be construed
to impose any liability as such on any of them or (iii) be deemed to confer on
any of them any express, implied or apparent authority to incur any obligation
or liability on behalf of the others.
7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its or
their sole discretion, from acting as an administrator for any other person or
entity, or in a similar capacity therefor, even though such person or entity may
engage in business activities similar to those of the Issuer, the Owner Trustee
or the Indenture Trustee.
8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
(a) This Agreement shall continue in force until the
termination of the Issuer, upon which event this Agreement shall
automatically terminate.
(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
10
affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days; or
(iii) the consent by the Administrator to the
appointment of a trustee in bankruptcy, conservator or
receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Administrator of or
relating to substantially all of their property, or the
Administrator shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors,
or voluntarily suspend payment of its obligations.
The Administrator agrees that if any of the events
specified in clauses (ii) or (iii) of this Section shall occur, it
shall give written notice thereof to the Issuer, the Owner Trustee and
the Indenture Trustee within seven days after the occurrence of such
event.
(e) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator
shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of
this Agreement on substantially the same terms as the Administrator is
bound hereunder.
(f) The appointment of any successor Administrator shall be
effective only after each Rating Agency (other than Moody's) has
provided to the Owner Trustee and the Indenture Trustee notice that the
proposed appointment will not result in the reduction or withdrawal of
any rating, if any, then assigned by such Rating Agency to any Class of
Notes or the [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 8(c) or
8(d), the Administrator shall be entitled to be paid all fees and reimbursable
expenses accruing to it to the date of such termination, resignation or removal.
The Administrator shall forthwith upon such termination pursuant to Section 8(a)
deliver to or to the order of the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
8(b) or 8(c) or 8(d), the
11
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: Treasurer
(b) if to the Administrator, to:
Nissan Motor Acceptance Corporation
000 Xxxx 000xx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Treasurer
(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
12
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,
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
13
join in any institution against the Issuer of any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any United States federal or state bankruptcy or similar law, in connection with
any obligations relating to the Notes, the Certificates or any of the Basic
Documents.
15. HEADINGS. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when so executed shall together constitute but one and the same
agreement.
17. SEVERABILITY OF PROVISIONS. If any one or more of the agreements,
provisions or terms of this Agreement shall be for any reason whatsoever held
invalid or unenforceable in any jurisdiction, then such agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or the other rights of
the parties hereto.
18. NOT APPLICABLE TO NMAC IN OTHER CAPACITIES. Nothing in this
Agreement shall affect any obligation, right or benefit NMAC may have in any
other capacity or under any Basic Document.
19. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE.
Notwithstanding anything contained herein to the contrary, this instrument has
been countersigned by [_________________], 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.
14
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:
15
[_________________________________],
not in its individual capacity but
solely as Owner Trustee
By:
------------------------------------
Name:
Title:
16
