Exhibit 10.6
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NISSAN-INFINITI LT,
as Titling Trust,
NILT TRUST,
as UTI Beneficiary,
and
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer,
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2004-A
SERVICING SUPPLEMENT
Dated as of _________, 2004
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TABLE OF CONTENTS
Page
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ARTICLE SEVEN
DEFINITIONS
Section 7.01. Definitions....................................................................... 1
Section 7.02. Interpretative Provisions......................................................... 2
ARTICLE EIGHT
SERVICING OF THE 2004-A LEASES AND 2004-A VEHICLES
Section 8.01. Identification of 2004-A Leases and 2004-A Vehicles; Securitization Value......... 2
Section 8.02. Reallocation and Repurchase of 2004-A Leases and 2004-A Vehicles;
Purchase of Matured Vehicles...................................................... 2
Section 8.03. Collections and Payment Date Advance Reimbursement................................ 4
Section 8.04. Net Deposits...................................................................... 5
Section 8.05. Servicing Compensation............................................................ 6
Section 8.06. Advances.......................................................................... 6
Section 8.07. Third Party Claims................................................................ 6
Section 8.08. Contingent and Excess Liability Insurance Policy.................................. 7
Section 8.09. Reporting by the Servicer; Delivery of Certain Documentation...................... 7
Section 8.10. Accountants' Reports.............................................................. 7
Section 8.11. Annual Officer's Certificates..................................................... 8
Section 8.12. Servicer Defaults; Termination of Servicer........................................ 8
Section 8.13. Servicer Representations and Warranties........................................... 11
ARTICLE NINE
MISCELLANEOUS
Section 9.01. Termination of Servicing Supplement............................................... 11
Section 9.02. Governing Law..................................................................... 11
Section 9.03. Amendment......................................................................... 12
Section 9.04. Relationship of this 2004-A Servicing Supplement to Other Trust Documents......... 12
Section 9.05. Binding Effect.................................................................... 12
Section 9.06. Table of Contents and Headings.................................................... 13
Section 9.07. Counterparts...................................................................... 13
Section 9.08. Further Assurances................................................................ 13
Section 9.09. Third-Party Beneficiaries......................................................... 13
Section 9.10. No Waiver; Cumulative Remedies.................................................... 13
Section 9.11. No Petition....................................................................... 13
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TABLE OF CONTENTS
(continued)
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EXHIBITS
Exhibit A - Schedule of 2004-A Leases and 2004-A Vehicles........................................... A-1
Exhibit B - Form of Settlement Statement............................................................ B-1
ii
2004-A SERVICING SUPPLEMENT
This 2004-A Servicing Supplement, dated as of _________, 2004 (the "2004-A
Servicing Supplement"), is among Nissan-Infiniti LT, a Delaware statutory trust
(the "Titling Trust"), NILT Trust, a Delaware statutory trust, as grantor and
initial beneficiary of the Titling Trust (in such capacities, the "Grantor" and
the "UTI Beneficiary," respectively), and Nissan Motor Acceptance Corporation, a
California corporation ("NMAC"), as servicer (the "Servicer").
RECITALS
A. The Grantor and UTI Beneficiary, the Servicer, NILT, Inc., as trustee
of the Titling Trust (the "Trustee"), Wilmington Trust Company, as Delaware
trustee, and U.S. Bank National Association ("U.S. Bank"), as trust agent, have
entered into the Amended and Restated Trust and Servicing Agreement, dated as of
August 26, 1998 (the "Titling Trust Agreement"), pursuant to which the Titling
Trust was created to, among other things, take assignments and conveyances of
and hold in trust various assets (the "Trust Assets");
B. The parties hereto have entered into the Servicing Agreement, dated as
of March 1, 1999 (the "Basic Servicing Agreement" and, as supplemented hereby,
the "Servicing Agreement"), which provides for certain servicing obligations
with respect to the Trust Assets; and
C. The parties acknowledge that in connection with the execution of the
2004-A SUBI Supplement to the Titling Trust Agreement, dated as of _________,
2004 (the "2004-A SUBI Supplement", and together with the Titling Trust
Agreement, the "SUBI Trust Agreement"), pursuant to which a special unit of
beneficial interest in the Titling Trust (the "2004-A SUBI") will be created, it
is necessary and desirable to enter into a supplemental agreement to the Basic
Servicing Agreement providing for specific servicing obligations in connection
with the Trust Assets allocable to the 2004-A SUBI.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE SEVEN
DEFINITIONS
Section 7.01 Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Agreement of
Definitions, dated as of _________, 2004, by and among Nissan Auto Lease Trust
2004-A, as issuer (the "Issuer"), NILT Trust, as Grantor and UTI Beneficiary,
the Titling Trust, NMAC, in its individual capacity, as Servicer and as
administrative agent (in such capacity, the "Administrative Agent"), Nissan Auto
Leasing LLC II, a Delaware limited liability company ("NALL II"), NILT, Inc., as
Trustee, Wilmington Trust Company, as owner trustee and Delaware trustee (in
such capacity, the "Owner Trustee"
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and the "Delaware Trustee," respectively) and U.S. Bank, as trust agent and
indenture trustee (in such capacity, the "Trust Agent" and the "Indenture
Trustee," respectively).
Section 7.02 Interpretative Provisions. For all purposes of this 2004-A
Servicing Supplement, except as otherwise expressly provided or unless the
context otherwise requires, (i) terms used in this 2004-A Servicing Supplement
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to this 2004-A Servicing Supplement include all Exhibits hereto,
(iii) references to words such as "herein", "hereof", and the like shall refer
to this 2004-A Servicing Supplement as a whole and not to any particular part,
Article, or Section herein, (iv) references to an Article or Section such as
"Article Eight" or "Section 8.01" shall refer to the applicable Article or
Section of this 2004-A Servicing Supplement, (v) the term "include" and all
variations thereof shall mean "include without limitation", (vi) the term "or"
shall include "and/or", (vii) the term "proceeds" shall have the meaning
ascribed to such term in the UCC, (viii) in the computation of a period of time
from a specified date to a later specified date, the word "from" shall mean
"from and including" and the words "to" and "until" shall mean "to but
excluding" and (ix) the phrase "Trustee on behalf of the Trust," or words of
similar import, shall, to the extent required to effectuate the appointment of
any Co-Trustee pursuant to the Titling Trust Agreement, be deemed to refer to
the Trustee (or such Co-Trustee) on behalf of the Titling Trust.
Any reference in this 2004-A Servicing Supplement to any agreement means
such agreement as it may be amended, restated, supplemented (only to the extent
such agreement as supplemented relates to the Notes), or otherwise modified from
time to time. Any reference in this 2004-A Servicing Supplement to any law,
statute, regulation, rule, or other legislative action shall mean such law,
statute, regulation, rule, or other legislative action as amended, supplemented,
or otherwise modified from time to time, and shall include any rule or
regulation promulgated thereunder. Any reference in this 2004-A Servicing
Supplement to a Person shall include the successor or assignee of such Person.
ARTICLE EIGHT
SERVICING OF THE 2004-A LEASES AND 2004-A VEHICLES
Section 8.01 Identification of 2004-A Leases and 2004-A Vehicles;
Securitization Value. The Servicer hereby identifies and allocates as 2004-A
SUBI Assets the Leased Vehicles and the Leases relating to such Leased Vehicles
more particularly described in the Schedule of 2004-A Leases and 2004-A Vehicles
(respectively, the "2004-A Vehicles" and the "2004-A Leases"). The Servicer
shall calculate the Securitization Value for each 2004-A Lease as of the Cutoff
Date.
Section 8.02 Reallocation and Repurchase of 2004-A Leases and 2004-A
Vehicles; Purchase of Matured Vehicles.
(a) (i) If the Servicer grants an extension with respect to any 2004-A
Lease, the Servicer shall, on the related Deposit Date, (A) deposit or cause to
be deposited into the 2004-A SUBI Collection Account an amount equal to the
Repurchase Payment and (B) direct the Trustee
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to either reallocate such 2004-A Lease and the related 2004-A Vehicle from the
2004-A SUBI to the UTI or cause such 2004-A Lease and 2004-A Vehicle to be
conveyed to the Servicer; and (ii) if a Lessee changes the domicile of or title
to a 2004-A Vehicle and such change would be likely to result in the Titling
Trust doing business in a Restricted Jurisdiction, the Titling Trust, or the
Trustee on behalf of the Titling Trust, shall, as an obligation of the Titling
Trust and at the direction of the Servicer, on the related Deposit Date, (A)
deposit or cause to be deposited into the 2004-A SUBI Collection Account, from
amounts held by the Titling Trust, an amount equal to the Repurchase Payment and
(B) either reallocate such 2004-A Lease and the related 2004-A Vehicle from the
2004-A SUBI to the UTI or cause such 2004-A Lease and 2004-A Vehicle to be
conveyed to the Servicer.
(b) The Servicer hereby makes to the other parties hereto and the parties
to the SUBI Trust Agreement the representations and warranties contained in
Section 2.06(a) of the Basic Servicing Agreement as to each 2004-A Lease and
2004-A Vehicle as of the Vehicle Representation Date. The Servicer also hereby
represents and warrants that (i) each 2004-A Lease is an 2004-A Eligible Lease,
(ii) it used no adverse selection procedures in selecting any of the 2004-A
Leases or any of the 2004-A Vehicles for allocation to the 2004-A SUBI and (iii)
it is not aware of any bias in the selection of the 2004-A Leases that would
cause delinquencies or losses on the 2004-A Leases to be worse than any other
Leases held by the Titling Trust; provided, however, that the Servicer can make
no assurance as to the actual delinquencies or losses on the 2004-A Leases or
the 2004-A Vehicles. Upon discovery by the Trustee, the Servicer, the Owner
Trustee, the Indenture Trustee or the Transferor that any representation or
warranty in this Section 8.02(b) was incorrect as of the Cutoff Date in a manner
that materially adversely affects the interest of the Trust in the related
2004-A Lease or 2004-A Vehicle, the entity discovering such incorrectness (if
other than the Servicer) shall give prompt written notice to the Servicer. On or
before the Deposit Date related to the Collection Period in which the Servicer
discovers such incorrectness (whether pursuant to such notice or otherwise), the
Servicer shall cure in all material respects the circumstance or condition with
respect to which the representation or warranty was incorrect as of the Cutoff
Date. If the Servicer is unable or unwilling to cure such circumstance or
condition by such Deposit Date, the Servicer shall (i) deposit (or cause to be
deposited) into the 2004-A SUBI Collection Account an amount equal to the
Repurchase Payment, and (ii) direct the Trustee to either reallocate such 2004-A
Lease and the related 2004-A Vehicle from the 2004-A SUBI to the UTI or cause
such 2004-A Lease and 2004-A Vehicle to be conveyed to the Servicer.
(c) Immediately prior to the sale or disposition of a Matured Vehicle or a
Defaulted Vehicle, the Servicer may reallocate such Matured Vehicle or Defaulted
Vehicle from the 2004-A SUBI to the UTI for purposes of implementing NMAC's like
kind exchange program. In connection with such reallocation, NILT Trust, as the
UTI Beneficiary, will cause to be deposited into the 2004-A SUBI Collection
Account the Reallocation Payments no later than two Business Days after such
reallocation, or, if the Monthly Remittance Condition is met, the Servicer shall
be permitted to retain the Reallocation Payments received during a Collection
Period until such amounts are required to be disbursed on the next Payment Date.
Upon receipt of the Reallocation Payments, the 2004-A SUBI shall have no claim
against or interest in such Matured or Defaulted Vehicle.
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(d) In connection with the purchase by the Servicer of a Matured Vehicle
relating to a 2004-A Lease pursuant to Section 2.06(f) of the Basic Servicing
Agreement, if (i) no Sales Proceeds Advance has been made, the purchase price of
such Matured Vehicle will equal the Securitization Value of such 2004-A Lease as
of the date of expiration and (ii) a Sales Proceeds Advance has been made, (a)
the purchase price will equal the amount of the Sales Proceeds Advance, (b) no
additional amounts need be remitted by the Servicer, and (c) the Servicer shall
be deemed to have been reimbursed for such Sales Proceeds Advance.
(e) If any 2004-A Lease and the related 2004-A Vehicle are reallocated to
the UTI, until such time thereafter, if ever, as such Lease and Leased Vehicle
are allocated to an Other SUBI, the Servicer shall indemnify, defend and hold
harmless the Related Beneficiaries and the Trust from and against any and all
loss or liability with respect to or resulting from such 2004-A Lease or 2004-A
Vehicle (including the reasonable fees and expenses of counsel).
Section 8.03. Collections and Payment Date Advance Reimbursement.
(a) The Servicer shall, with respect to SUBI Collections and amounts in
respect of the 2004-A SUBI Certificate, from time to time, determine the
respective amounts and recipients and:
(i) during each Collection Period, in addition to the deposits
required by Section 2.07 of the Basic Servicing Agreement, deposit into
the 2004-A SUBI Collection Account all Repurchase Payments pursuant to
Section 8.02(a) and Section 8.02(b), and any Reallocation Payments
pursuant to Section 8.02(c);
(ii) on, or prior to each Deposit Date, deposit into the 2004-A SUBI
Collection Account all Advances, any Residual Value Surplus from the sale
of a Matured Vehicle for which the Servicer made a Sales Proceeds Advance
and any Net Auction Proceeds from the disposition of a Matured Vehicle at
auction for which the Servicer was reimbursed during the related
Collection Period pursuant to Section 8.06;
(iii) on or prior to each Payment Date, deposit into the 2004-A SUBI
Collection Account all Cap Payments and/or Cap Termination Payments; and
(iv) on each Payment Date, pursuant to the related Payment Date
Certificate, allocate Available Funds on deposit in the 2004-A SUBI
Collection Account with respect to the related Collection Period and
instruct the Trustee (acting through the Trust Agent) to make, no later
than 11:00 a.m., New York City time, the following deposits and
distributions in the following amounts and order of priority:
(A) to the Servicer the sum of outstanding (1) Sales Proceeds
Advances (x) in respect of 2004-A Vehicles that were sold during the
related Collection Period (other than a sale to the Servicer
pursuant to Section 8.02(d)(ii)), and (y) that have been outstanding
as of the end of that Collection Period for at least 90 days and (2)
Monthly Payment Advances as to which the related Lessee has made all
or a portion of the advanced Monthly Payment or that have been
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outstanding as of the end of the Collection Period for at least 90
days (collectively, the "Payment Date Advance Reimbursement");
(B) to or on behalf of the Servicer, the Servicing Fee in
respect of the related Collection Period, together with any unpaid
Servicing Fees in respect of one or more prior Collection Periods;
and
(C) to the Note Distribution Account, the Reserve Account and
Certificate Distribution Account, such distributions in the amounts
and order of priority as set forth in Sections 8.04(a) and 10.01 of
the Indenture.
(b) Notwithstanding Section 2.07 of the Basic Servicing Agreement, the
Servicer shall be permitted to retain the amounts provided for in such Section
received during a Collection Period until such amounts are required to be
disbursed on the next Payment Date, for so long as no Servicer Default has
occurred and is continuing, and the following requirements are met
(collectively, the "Monthly Remittance Condition"):
(i) (A) NMAC (or its successors pursuant to Section 5.03(b) of the
Basic Servicing Agreement) is the Servicer, and (B) NMAC's short-term
unsecured debt obligations are rated at least "P-1" by Moody's, "A-1" by
Standard & Poor's and "F1" by Fitch (in each case, so long as Moody's,
Standard & Poor's or Fitch is a Rating Agency);
(ii) if (A) the Servicer obtains a Servicer Letter of Credit or
other form of enhancement acceptable to the Rating Agencies under which
demands for payment may be made to secure timely remittance of SUBI
Collections to the 2004-A SUBI Collection Account on a monthly basis and
(B) the Trustee, the Owner Trustee gives prior written notice to each
Rating Agency of the obtaining of such Servicer Letter of Credit;
(iii) the Servicer otherwise satisfies each Rating Agency's
requirements; or
(iv) if the Outstanding Amount is reduced to zero and 100% of the
outstanding Trust Certificates are owned by the Trust, the Transferor, the
Servicer (so long as NMAC or an Affiliate is the Servicer) and their
respective Affiliates.
Pending deposit into the 2004-A SUBI Collection Account, SUBI Collections
may be employed by the Servicer at its own risk and for its own benefit and
shall not be segregated from its own funds.
Section 8.04. Net Deposits. Notwithstanding anything to the contrary
contained in this 2004-A Servicing Supplement, for so long as NMAC is the
Servicer, the Servicer shall be permitted to deposit into the 2004-A SUBI
Collection Account only the net amount distributable to the Trust, as holder of
the 2004-A SUBI Certificate on the related Deposit Date. The Servicer shall,
however, account to the Trust, the Trustee, the Trust Agent, the Indenture
Trustee (or any successor to the duties of the Indenture Trustee), the Owner
Trustee and the Holders of the Securities as if all of the deposits and
distributions described herein were made individually.
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Section 8.05. Servicing Compensation.
(a) As compensation for the performance of its obligations under the
Servicing Agreement, the Servicer shall be entitled to receive the Servicing
Fee.
(b) The Servicer shall also be entitled to additional servicing
compensation with respect to the 2004-A SUBI Assets in the form of, among other
things, Administrative Charges to the extent not required for the payment of
insurance premiums, taxes, or similar charges allocable to the 2004-A Leases.
Section 8.06. Advances.
(a) If during a Collection Period a Lessee makes a Lessee Partial Monthly
Payment, the Servicer shall make, by deposit into the 2004-A SUBI Collection
Account on the related Deposit Date, a Monthly Payment Advance, unless such
Advance is not required to be made pursuant to Section 8.06(c).
(b) On each Deposit Date, the Servicer shall make, by deposit into the
2004-A SUBI Collection Account, Sales Proceeds Advances, unless such Advance is
not required to be made pursuant to Section 8.06(c). After the Servicer has made
a Sales Proceeds Advance with respect to a Matured Vehicle, the Trust shall have
no claim against or interest in such Matured Vehicle or any Net Auction Proceeds
resulting from the sale or other disposition thereof, except with respect to any
related Residual Value Surplus. If the Servicer shall sell or otherwise dispose
of a Matured Vehicle after having made a Sales Proceeds Advance, the Trust may
retain all of such Sales Proceeds Advance, and the Servicer shall retain the
related Net Auction Proceeds up to the Securitization Value of the related
2004-A Lease, and shall deposit the Residual Value Surplus, if any, into the
2004-A SUBI Collection Account. If the Net Auction Proceeds are less than the
Securitization Value of the related 2004-A Lease, the Servicer may deduct the
difference from SUBI Collections in respect of one or more future Collection
Periods. If the Servicer has not sold a Matured Vehicle within 90 days after it
has made a Sales Proceeds Advance, it shall be reimbursed for such Sales
Proceeds Advance from the 2004-A SUBI Collection Account. Within six months of
receiving such reimbursement, if the related 2004-A Vehicle has not been sold,
the Servicer shall, if permitted by applicable law, cause such 2004-A Vehicle to
be sold at auction and shall remit the proceeds associated with such auction
sale to the 2004-A SUBI Collection Account.
(c) Notwithstanding anything to the contrary in the Servicing Agreement,
the Servicer shall be required to make an Advance only to the extent that it
determines that such Advance will be recoverable from future payments on or in
respect of the related 2004-A Lease or 2004-A Vehicle.
Section 8.07. Third Party Claims. In addition to the requirements set
forth in Section 2.14 of the Basic Servicing Agreement, the Servicer shall
immediately notify the Transferor (in the event that NMAC is not acting as
Servicer) and the Indenture Trustee (or any successor to the duties of the
Indenture Trustee) upon learning of a claim or Lien of whatever kind of a third
party
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that would materially and adversely affect the interests of the Transferor or
the Trust with respect to the 2004-A SUBI Assets.
Section 8.08. Contingent and Excess Liability Insurance Policy. So long as
any Securities are outstanding, the Servicer shall maintain and pay when due all
premiums with respect to, and the Servicer may not terminate or cause the
termination of, the Contingent and Excess Liability Insurance Policy unless (i)
a replacement Insurance Policy is obtained that provides coverage against third
party claims that may be raised against the Titling Trust, the Trustee on behalf
of the Titling Trust or the Trust in an amount at least equal to $1 million
combined single limit per occurrence and excess coverage of $15 million combined
single limit each occurrence without limit on the number of occurrences in any
policy period (which Insurance Policy may be a blanket Insurance Policy covering
the Servicer and one or more of its Affiliates) and (ii) in the case of Rated
Securities, each Rating Agency has received prior written notification from the
Owner Trustee of such termination and any replacement insurance. The obligations
of the Servicer pursuant to this Section shall survive any termination of the
Servicer's other obligations under the Servicing Agreement until such time as
claims can no longer be brought that would be covered by such Insurance
Policies, whether as a result of the expiration of relevant statutes of
limitations or otherwise.
Section 8.09. Reporting by the Servicer; Delivery of Certain
Documentation.
(a) On or prior to the Closing Date, and periodically thereafter as
required in order to update the contents thereof upon any changes in the matters
certified therein, the Servicer shall furnish to the Trustee and the Related
Beneficiary an Officer's Certificate listing the officers of the Servicer
involved in, or responsible for, the servicing of the 2004-A Leases.
(b) On each Calculation Date, the Servicer shall furnish to the Trustee
and each Related Beneficiary a Settlement Statement for the related Collection
Period.
Section 8.10. Accountants' Reports. On or before the last day of the third
month after the end of the fiscal year of the Servicer, beginning with June 30,
2005, the Servicer shall deliver or cause to be delivered to the Trust, the
Indenture Trustee, each Rating Agency and the Owner Trustee the following
reports: (a) a report that such firm has audited the consolidated financial
statements of the Servicer in accordance with generally accepted auditing
standards, that such firm is independent of the Servicer within the meaning of
the Code of Professional Ethics of the American Institute of Certified Public
Accountants ("AICPA"), and expressing such firm's opinion thereon; and (b) a
report indicating that such firm has examined, in accordance with standards
established by AICPA, management's assertion about the Servicer's compliance
with the minimum servicing standards identified in the Mortgage Bankers
Association of America's Uniform Single Attestation Program for Mortgage Bankers
("USAP") as such standards relate to automobile and light-duty truck loans
serviced for others, and expressing such firm's opinion on such management
assertion (the "Annual USAP Report") or any similar internal control audit
report that is acceptable to each Rating Agency.
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Section 8.11. Annual Officer's Certificates.
(a) On or before the last day of the third month after the end of the
fiscal year of the Servicer, beginning with June 30, 2005, the Servicer shall
deliver an Officer's Certificate to the Trust, the Indenture Trustee, each
Rating Agency, and the Owner Trustee in accordance with Section 3.01(c) of the
Basic Servicing Agreement.
(b) On or before the last day of the third month after the end of the
fiscal year of the Servicer, beginning with June 30, 2005, for as long as NMAC
continues to act as the Servicer, the Servicer shall deliver an Officer's
Certificate to each Rating Agency, the Owner Trustee and the Indenture Trustee
stating that, with respect to certain ERISA Plans maintained or sponsored by the
Servicer or any of the Servicer's ERISA affiliates: (a) Plan assets will not be
materially less than the present value of accrued benefits under each of the
Plans as of the close of the most recent Plan year, as reported in the most
recent plan financial statements; (b) neither the Servicer nor any of its ERISA
affiliates anticipates that the actuarial value of the assets of any Plan it
maintains would not be materially insufficient to cover the Gateway current
liability (as defined by the Code and demonstrated on the most recent Form 5500
Schedule B that has been filed with the IRS), or is contemplating benefit
improvements that would cause the Servicer or its ERISA affiliates to maintain a
Plan with materially underfunded Gateway current liability; (c) if all of the
Plans (other than a multiemployer Plan) were terminated (disregarding any Plans
with surpluses), the unfunded liabilities with respect to the Plans would have
no material adverse effect on Nissan Motor Co., Ltd. or Nissan North America,
Inc.; and (d) no accumulated funding deficiency or waived funding deficiency as
defined in section 412 of the Code or under any multiemployer Plan or collective
bargaining agreement exists and there is no failure to make any required
contribution under the minimum funding requirements of the Code, as of the close
of the most recent Plan year.
Section 8.12. Servicer Defaults; Termination of Servicer.
(a) Each of the following acts or occurrences constitutes a "Servicer
Default" under the Servicing Agreement with respect to the 2004-A SUBIs:
(i) the Servicer fails to deliver, or cause to be delivered, any
required payment to the Indenture Trustee for distribution to the
Noteholders or to the Owner Trustee for distribution to the Trust
Certificateholders, or fails to deliver to the Trustee (acting through the
Trust Agent) for distribution to the Indenture Trustee and the Owner
Trustee any required payment, which failure continues for five Business
Days after discovery of such failure by an officer of the Servicer or
receipt by the Servicer of notice thereof from the Indenture Trustee, the
Owner Trustee, or holders of Notes or Trust Certificates evidencing not
less than 25% of the aggregate unpaid principal balance of the Securities
(which for this purpose includes Trust Certificates held by the Trust, the
Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer)
and their respective Affiliates), voting together as a single class;
(ii) the Servicer fails to deposit, apply, or distribute any amounts
in the manner and at such time as required pursuant to the Servicing
Agreement, including a
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failure to deliver to the Trustee for distribution to or for the account
of a Holder of the 2004-A SUBI Certificate, any amounts required to be so
distributed pursuant to the Servicing Agreement, and such failure shall
have continued for a period of ten Business Days after either discovery of
such failure by an officer of the Servicer or written notice of such
failure shall have been given to the Servicer by the Trustee or such
Holder;
(iii) the Servicer fails to duly observe or perform in any material
respect any of its covenants or agreements in the Servicing Agreement not
otherwise covered in this Section 8.12(a), which failure materially and
adversely affects the rights of the Titling Trust or a Holder of the
2004-A SUBI Certificate or the holders of the Notes, or Trust
Certificateholders, and which continues unremedied for 90 days after
receipt by the Servicer of written notice thereof from the Trustee or the
related Holder or such default becomes known to the Servicer;
(iv) the Servicer fails to deliver to the Trustee any report
required to be delivered to the Trustee pursuant to the Servicing
Agreement, which failure continues for 30 Business Days after discovery of
such failure by an officer of the Servicer or receipt by the Servicer of
written notice thereof by the Trustee;
(v) the Servicer fails to deliver to the Indenture Trustee any
report required to be delivered to the Indenture Trustee or the Trust
pursuant to the Basic Documents to which the Servicer is a party, which
failure continues for 30 Business Days after discovery of such failure by
an officer of the Servicer or receipt by the Servicer of written notice
thereof by the Indenture Trustee;
(vi) any representation, warranty, or statement of the Servicer made
in the Servicing Agreement, any other Basic Document to which the Servicer
is a party or by which it is bound or any certificate, report or other
writing delivered pursuant to the Servicing Agreement that proves to be
incorrect in any material respect when made, which failure materially and
adversely affects the rights of a Holder of the 2004-A SUBI Certificate or
the holders of the Notes, or the Trust Certificateholders, and, if such
default is of a type that may be corrected, the failure continues
unremedied for 30 days after receipt by the Servicer of written notice
thereof from the Trustee or the related Holder, or such default becomes
known to the Servicer;
(vii) the Servicer fails to maintain, or cause to be maintained, or
pay when due, or cause to be paid when due, the premium in respect of the
Contingent and Excess Liability Insurance Policy, which failure continues
for ten Business Days after discovery of such failure by an officer of the
Servicer or receipt by the Servicer of written notice thereof by the
Trustee or a Holder of the 2004-A SUBI Certificate; or
(viii) (A) the existence of any Proceeding in, or the entry of a
decree or order for relief by, a court or regulatory authority having
jurisdiction over the Servicer in an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, (B) the appointment of a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or other
similar official with respect to the Servicer or of any substantial part
of its property or
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(C) the ordering of the winding up or liquidation of the affairs of the
Servicer, and in each case, the continuance of any such Proceeding
unstayed and in effect for a period of 90 consecutive days, or immediately
upon entry of any decree or order; or
(ix) the Servicer (A) applies for or consents to the appointment of,
or the taking of possession by, a receiver, custodian, trustee, or
liquidator of itself or of all or a substantial part of its property, (B)
is generally unable to pay its debts as they become due, (C) makes a
general assignment for the benefit of creditors, (D) commences a voluntary
case under the federal bankruptcy laws (E) is adjudicated to be bankrupt
or insolvent, (F) files a petition seeking to take advantage of any other
law providing for the relief of debtors, or (G) takes any corporate action
for the purpose of effecting any of the foregoing;
provided, however, that notwithstanding any other provision of the Servicing
Agreement, (i) for the purpose of determining what constitutes a Servicer
Default with respect to the 2004-A SUBI, the provisions contained in this
Section 8.12(a) shall replace in their entirety the provisions contained in
Section 4.01(a) of the Basic Servicing Agreement and (ii) any Servicer Default
with respect to the 2004-A SUBI shall not constitute a Servicing Default with
respect to any other Sub-Trust and any Servicing Default (as such term is
defined in the Basic Servicing Agreement) with respect to any other Sub-Trust
shall constitute a Servicer Default (as such term is defined in the Basic
Servicing Agreement) only with respect to such Sub-Trust and not with respect to
the 2004-A SUBI.
Notwithstanding the foregoing, a delay in or failure of performance under
(a) clauses (i) and (ii) for a period of ten Business Days, (b) clause (iii) for
a period of 120 days, (c) clauses (iv) and (v) for a period of 60 days, or (d)
clause (vi) for a period of 90 days shall not constitute a Servicer Default if
caused by a Force Majeure Event. Upon the occurrence of any Force Majeure Event,
the Servicer will not be relieved from using all commercially reasonable efforts
to perform its obligations in a timely manner in accordance with the terms of
the Servicing Agreement, and the Servicer must provide to the Trustee, the
Indenture Trustee, the Owner Trustee and the Transferor prompt notice of such
failure or delay by it, together with a description of its efforts to so perform
its obligations.
(b) Upon the occurrence of any Servicer Default, the Servicer, in addition
to complying with the notice requirements of Section 4.01(b) of the Basic
Servicing Agreement (except that references therein to Registered Pledgees shall
mean each Registered Pledgee of the 2004-A SUBI Certificate), shall provide to
the Indenture Trustee and the Owner Trustee prompt notice of any (i) Servicer
Default or (ii) event or condition that, with the giving of notice or the
passage of time, or both, would become a Servicer Default, accompanied in each
case by a description of the nature of the default and the Servicer's efforts to
remedy the same.
(c) In addition to the provisions of Section 4.01(c) of the Basic
Servicing Agreement, if a Servicer Default shall have occurred and is continuing
with respect to the 2004-A SUBI, the Trustee, on behalf of the Titling Trust,
shall, at the direction of the Required Related Holders, by notice given to the
Servicer, each Rating Agency, the Related Beneficiary and the holders of the
Rated Securities, terminate the rights and obligations of the Servicer under
this 2004-A Servicing
Servicing Supplement
10
Supplement in accordance with such Section. In the event that the Servicer is
removed as servicer with respect to servicing the 2004-A SUBI Assets, subject to
the consent of the Trustee, the Required Related Holders shall appoint a
successor Servicer. The successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Trustee. Such successor Servicer
shall be approved by the Trustee, such approval not to be unreasonably withheld.
Notwithstanding the provisions of Section 4.01(e) of the Basic Trust Agreement,
with respect to any Servicer Default related to the 2004-A SUBI Assets, the
Trustee, acting on the direction of the Required Related Holders, may waive any
default of the Servicer in the performance of its obligations under the
Servicing Agreement and its consequences with respect to the 2004-A SUBI and,
upon any such waiver, such default shall cease to exist and any Servicer Default
arising therefrom shall be deemed to have been remedied for every purpose of the
Servicing Agreement. No such waiver shall extend to any subsequent or other
default or impair any right consequent thereto. For purposes of this Section, so
long as the Lien of the Indenture is in place, the Required Related Holders
shall be deemed to be the Indenture Trustee (as Registered Pledgee of the 2004-A
SUBI Certificates), acting at the direction of the Required Percentage of the
Noteholders and thereafter, the Owner Trustee, acting at the direction of the
Required Percentage of the Trust Certificateholders (which for this purpose
shall include Trust Certificates owned by the Trust, the Transferor, the
Servicer (so long as NMAC or an Affiliate is the Servicer) and any of their
respective Affiliates) until the Aggregate Certificate Balance has been reduced
to zero.
(d) If the Servicer is removed with respect to servicing the 2004-A SUBI
Assets, the Servicer shall be entitled to reimbursement for any outstanding
Advances made pursuant to this 2004-A Servicing Supplement, to the extent of the
funds available therefor with respect to all Advances made by the Servicer.
Section 8.13. Servicer Representations and Warranties. Effective as of the
date hereof, the Servicer hereby reaffirms the representations and warranties
set forth in Section 2.06(a) and Section 5.01 of the Basic Servicing Agreement,
except that references to "this Agreement" shall be deemed to refer to the
Servicing Agreement, as such term is defined herein.
ARTICLE NINE
MISCELLANEOUS
Section 9.01. Termination of Servicing Supplement. This 2004-A Servicing
Supplement shall terminate upon the earlier to occur of (i) the termination of
the 2004-A SUBI or (ii) the resignation or removal of the Servicer with respect
to the 2004-A SUBI in accordance with the terms of the Servicing Agreement. Any
such termination hereunder shall effect a termination only with respect to the
2004-A SUBI Assets and not as to Trust Assets allocated to any other Sub-Trust,
and shall not effect a termination of the Basic Servicing Agreement or any other
supplement to the Basic Servicing Agreement.
Section 9.02. Governing Law. This 2004-A Servicing Supplement shall be
governed by and construed in accordance with the internal laws of the State of
California, without regard to any otherwise applicable principles of conflict of
laws.
Servicing Supplement
11
Section 9.03. Amendment. Notwithstanding the foregoing, this 2004-A
Servicing Supplement (and, accordingly, the Basic Servicing Agreement, insofar
as it relates to the 2004-A SUBI) may be amended by the parties hereto:
(a) without the consent of the Holders, to cure any ambiguity, correct or
supplement any provision herein that may be inconsistent with any other
provision herein, add any other provision with respect to matters or questions
arising hereunder that is not inconsistent with the Basic Servicing Agreement or
add or amend any provision herein to assure that none of the Titling Trust, the
Trust, or the Transferor will be classified as an association (or a publicly
traded partnership) taxable as a corporation for federal income tax purposes;
provided, that any such action will not, in the good faith judgment of the
parties hereto, materially and adversely affect the interest of any Holder; and
(b) from time to time (including to change the remittance schedule for
depositing SUBI Collections and other amounts into the 2004-A SUBI Collection
Account, or to change the manner in which the Reserve Account is funded),
provided that (A) each Rating Agency has received prior written notification
from the Owner Trustee of such amendment and (B) an Opinion of Counsel is
delivered to the Trustee to the effect that after such amendment, for federal
income tax purposes, the Titling Trust will not be treated as an association (or
a publicly traded partnership) taxable as a corporation and Notes will properly
be characterized as indebtedness that is secured by the assets of the Trust; to
the extent that any such amendment materially affects the UTI or any Other SUBI,
the 2004-A SUBI Certificate or the 2004-A SUBI Assets, such amendment shall
require the consent of the holders affected thereby. In addition, to the extent
that (A) such amendment shall increase or reduce in any manner the amount of, or
accelerate or delay the timing of, collections or payments in respect of a
2004-A SUBI or the 2004-A SUBI Certificate or distributions (or the interest
thereon) required to be made on any Notes, and the Trust Certificates or the
Interest Rate of any Note or (B) reduce the percentage of the aggregate
principal amount of Notes, and Trust Certificates required to consent to any
such amendment, any such amendment shall require the consent of all the Holders
and holders of 100% of all outstanding Notes, and Trust Certificates (which for
this purpose shall include Trust Certificates held by the Trust, the Transferor,
the Servicer and their respective Affiliates), and an Opinion of Counsel as set
forth in clause (B) above.
Section 9.04. Relationship of this 2004-A Servicing Supplement to Other
Trust Documents. Unless the context otherwise requires, this 2004-A Servicing
Supplement and the other Trust Documents shall be interpreted so as to give full
effect to all provisions hereof and thereof. In the event of any actual conflict
between the provisions of this 2004-A Servicing Supplement and (i) the Titling
Trust Agreement, with respect to the servicing of any Trust Assets, the
provisions of this 2004-A Servicing Supplement shall prevail and (ii) the Basic
Servicing Agreement, the provisions of this 2004-A Servicing Supplement shall
control.
Section 9.05. Binding Effect. The provisions of this 2004-A Servicing
Supplement shall be binding upon and inure to the benefit of the parties hereto
and their permitted successors and assigns, and all such provisions shall inure
to the benefit of the Owner Trustee on behalf of the Trust.
Servicing Supplement
12
Section 9.06. Table of Contents and Headings. The Table of Contents and
Article and Section headings herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
Section 9.07. Counterparts. This 2004-A Servicing Supplement may be
executed in any number of counterparts, each of which so executed and delivered
shall be deemed to be an original, but all of which counterparts shall together
constitute but one and the same instrument.
Section 9.08. Further Assurances. Each party will do such acts, and
execute and deliver to any other party such additional documents or instruments,
as may be reasonably requested in order to effect the purposes of this 2004-A
Servicing Supplement and to better assure and confirm unto the requesting party
its rights, powers, and remedies hereunder.
Section 9.09. Third-Party Beneficiaries. The Trust, each Holder of the
2004-A SUBI, each Related Beneficiary, and each Registered Pledgee shall be
third-party beneficiaries of the Servicing Agreement. Except as otherwise
provided in the Servicing Agreement, no other Person shall have any rights
hereunder. For purposes of the Servicing Agreement, this Section replaces
Section 6.12 of the Basic Servicing Agreement in its entirety.
Section 9.10. No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of any party hereto, any right, remedy,
power, or privilege hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power, or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power, or privilege. The rights, remedies, powers, and privileges
herein provided are cumulative and not exhaustive of any rights, remedies,
powers, and privileges provided at law, in equity or otherwise.
Section 9.11. No Petition. Each of the parties hereto, by entering into
this 2004-A Servicing Supplement, in addition to provisions of Section 6.14 of
the Basic Servicing Agreement, hereby covenants and agrees that it will not
institute, or join in instituting, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding, or other Proceeding under federal or state
bankruptcy or similar laws, for a period of one year and a day after payment in
full of the Securities, against any other party hereto, the Transferor or the
Trust. This Section shall survive the complete or partial termination of this
2004-A Servicing Supplement and the complete or partial resignation or removal
of the Servicer under the SUBI Trust Agreement, the Basic Servicing Agreement or
this 2004-A Servicing Supplement.
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13
IN WITNESS WHEREOF, the parties hereto have caused this 2004-A Servicing
Supplement to be duly executed by their respective officers duly authorized as
of the day and year first above written.
NISSAN-INFINITI LT, as Titling Trust
By: NILT, INC.,
as Trustee
By:
---------------------------------
Name:
Title:
NILT TRUST, as UTI Beneficiary
By: U.S. Bank National Association,
as Managing Trustee
By:
---------------------------------
Name:
Title:
NISSAN MOTOR ACCEPTANCE
CORPORATION, as Servicer
By:
-------------------------------------
Name: Steven R. Lambert
Title: President
Servicing Supplement
S-1
EXHIBIT A
SCHEDULE OF 2004-A LEASES AND 2004-A VEHICLES
[Omitted. Copies on file with the Servicer, the Trustee and the Owner Trustee]
Servicing Supplement
A-1
EXHIBIT B
FORM OF SETTLEMENT STATEMENT
Servicing Supplement
B-1