EXHIBIT 10.2
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NILT TRUST,
as Grantor and UTI Beneficiary,
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer,
NILT, INC.,
as Trustee,
WILMINGTON TRUST COMPANY,
as Delaware Trustee,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
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2004-A SUBI
SUPPLEMENT
Dated as of October 28, 2004
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TABLE OF CONTENTS
PAGE
ARTICLE ELEVEN
DEFINITIONS
Section 11.01. Definitions............................................................ 2
Section 11.02. Interpretive Provisions................................................ 2
Section 11.03. Rights in Respect of the 2004-A SUBI................................... 3
ARTICLE TWELVE
CREATION OF THE 2004-A SUBI
Section 12.01. Creation of 2004-A SUBI Assets and the 2004-A SUBI..................... 3
Section 12.02. Transfer of 2004-A SUBI Interests...................................... 4
Section 12.03. Issuance and Form of 2004-A SUBI Certificate........................... 4
Section 12.04. Actions and Filings.................................................... 6
Section 12.05. Termination of the 2004-A SUBI......................................... 6
Section 12.06. Representations and Warranties of Trustee.............................. 7
Section 12.07. Transfer and Assignment of Certificates................................ 7
ARTICLE THIRTEEN
2004-A SUBI PLEDGE
Section 13.01. Registration of the 2004-A SUBI Pledge................................. 7
ARTICLE FOURTEEN
2004-A SUBI ACCOUNTS
Section 14.01. 2004-A SUBI Collection Account......................................... 8
Section 14.02. 2004-A Reserve Account................................................. 8
Section 14.03. Investment of Monies in 2004-A SUBI Accounts........................... 8
Section 14.04. No Residual Value Account or Payahead Account.......................... 9
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Amendment.............................................................. 9
Section 15.02. Governing Law.......................................................... 10
Section 15.03. Notices................................................................ 10
Section 15.04. Severability of Provisions............................................. 10
Section 15.05. Effect of Supplement on Titling Trust Agreement........................ 10
Section 15.06. No Petition............................................................ 11
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TABLE OF CONTENTS
(CONTINUED)
PAGE
EXHIBITS
Exhibit A - Schedule of 2004-A Leases and 2004-A Leased Vehicles........................... A-1
Exhibit B - Form of 2004-A SUBI Certificate................................................ B-1
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2004-A SUBI SUPPLEMENT
This 2004-A SUBI Supplement, dated as of October 28, 2004, is among
NILT Trust, a Delaware statutory trust ("NILT Trust"), as grantor and initial
beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary,"
respectively), Nissan Motor Acceptance Corporation, a California corporation
("NMAC"), as servicer (in such capacity, the "Servicer"), NILT, Inc., a Delaware
corporation, as trustee (the "Trustee"), Wilmington Trust Company, a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee"), and U.S. Bank
National Association, a national banking association ("U.S. Bank"), as trust
agent (in such capacity, the "Trust Agent").
RECITALS
A. Pursuant to the Amended and Restated Trust and Servicing Agreement,
dated as of August 26, 1998 (the "Titling Trust Agreement"), among the parties
hereto, Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"),
was formed to take assignments and conveyances of and hold in trust various
assets (the "Trust Assets");
B. The UTI Beneficiary, the Servicer and the Titling Trust have entered
into the SUBI Servicing Agreement, dated as of March 1, 1999 (the "Basic
Servicing Agreement"), by and among the UTI Beneficiary, the Servicer, and the
Titling Trust, which provides for, among other things, the servicing of the
Trust Assets by the Servicer;
C. Pursuant to the Titling Trust Agreement, from time to time the
Trustee, on behalf of the Titling Trust and at the direction of the UTI
Beneficiary, will identify and allocate on the books and records of the Titling
Trust certain Trust Assets and create and issue one or more special units of
beneficial interest (each, a "SUBI"), the beneficiaries of which generally will
be entitled to the net cash flows arising from such Trust Assets;
D. The parties hereto desire to supplement the Titling Trust Agreement
(as so supplemented by this 2004-A SUBI Supplement, the "SUBI Trust Agreement")
to create a SUBI (the "2004-A SUBI");
E. The parties hereto desire to identify and allocate to the 2004-A
SUBI a separate portfolio of Trust Assets consisting of leases (the "2004-A
Leases"), the vehicles that are leased under the 2004-A Leases (the "2004-A
Vehicles"), and certain other related assets;
F. The parties hereto also desire to issue to NILT Trust a certificate
evidencing a 100% beneficial interest in the 2004-A SUBI (the "2004-A SUBI
Certificate").
G. NILT Trust will transfer the 2004-A SUBI Certificate to Nissan Auto
Leasing LLC II ("NALL II") pursuant to the SUBI Certificate Transfer Agreement,
dated as of October 28, 2004 (the "SUBI Certificate Transfer Agreement"). NALL
II will further transfer the 2004-A SUBI Certificate to Nissan Auto Lease Trust
2004-A (the "Trust") pursuant to the Trust SUBI Certificate Transfer Agreement,
dated as of October 28, 2004 (the "Trust SUBI Certificate Transfer Agreement"),
between NALL II, as transferor (the "Transferor") and the Trust, as transferee.
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H. Pursuant to the Indenture, dated as of October 28, 2004 (the
"Indenture"), by and between the Trust, as issuer (the "Issuer") and U.S. Bank,
as Indenture Trustee (the "Indenture Trustee"), the Issuer will (i) issue
$265,000,000 aggregate principal amount of 2.10563% Asset Backed Notes, Class
A-1 (the "Class A-1 Notes"), $260,000,000 aggregate principal amount of 2.55000%
Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $357,000,000 aggregate
principal amount of 2.90000% Asset Backed Notes, Class A-3 (the "Class A-3
Notes"), $488,000,000 aggregate principal amount of Floating Rate Asset Backed
Notes, Class A-4a (the "Class A-4a Notes"), and $100,000,000 aggregate principal
amount of 3.18000% Asset Backed Notes, Class A-4b (the "Class A-4b Notes," and
together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and
the Class A-4a Notes, the "Notes"); and (ii) pledge the 2004-A SUBI Certificate
to the Indenture Trustee for the benefit of the holders of the Notes.
I. The parties hereto also desire to register a pledge of the 2004-A
SUBI Certificate to the Indenture Trustee for the benefit of the holders of the
Notes.
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 ELEVEN
DEFINITIONS
Section 11.01. Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Agreement of
Definitions, dated as of October 28, 2004, by and among 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"), NALL II, NILT, Inc., as Trustee, Wilmington Trust
Company, as Delaware Trustee and owner trustee (in such capacity, the "Owner
Trustee") and U.S. Bank, as Trust Agent and Indenture Trustee.
Section 11.02. Interpretive Provisions. For all purposes of this 2004-A
SUBI Supplement, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used herein include, as appropriate, all genders
and the plural as well as the singular, (ii) references to this 2004-A SUBI
Supplement include all Exhibits hereto, (iii) references to words such as
"herein," "hereof" and the like shall refer to this 2004-A SUBI Supplement as a
whole and not to any particular part, Article, or Section herein, (iv)
references to an Article or Section such as "Article Twelve" or "Section 12.01"
shall refer to the applicable Article or Section of this 2004-A SUBI Supplement,
(v) the term "include" and all variations thereof shall mean "include without
limitation," (vi) the term "or" shall include "and/or", and (vii) the term
"proceeds" shall have the meaning ascribed to such term in the UCC.
Any reference in this 2004-A SUBI 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 SUBI Supplement to any law, statute,
regulation, rule, or other legislative action shall mean such law, statute,
regulation, rule, or other legislative action as amended,
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supplemented, or otherwise modified from time to time, and shall include any
rule or regulation promulgated thereunder. Any reference in this 2004-A SUBI
Supplement to a Person shall include the successor or assignee of such Person.
Section 11.03. Rights in Respect of the 2004-A SUBI. Each Holder and
Registered Pledgee of the 2004-A SUBI Certificate (including the Trust) is a
third-party beneficiary of the SUBI Trust Agreement insofar as the Titling Trust
Agreement and this 2004-A SUBI Supplement apply to the 2004-A SUBI, the Holders
of the 2004-A SUBI Certificate, and the Registered Pledgees of the 2004-A SUBI
Certificate. Therefore, to that extent, references in the SUBI Trust Agreement
to the ability of a "Holder," "Related Beneficiary," or a "Registered Pledgee"
of a SUBI Certificate to take any action shall be deemed to refer to the Trust
acting at its own instigation or upon the instruction of the requisite voting
percentage of holders of Securities or Rated Securities, as specified in the
Indenture or the Trust Agreement, as applicable.
ARTICLE TWELVE
CREATION OF THE 2004-A SUBI
Section 12.01. Creation of 2004-A SUBI Assets and the 2004-A SUBI.
(a) Pursuant to Section 3.01(a) of the Titling Trust Agreement, the UTI
Beneficiary directs the Trustee to create, and the Trustee hereby creates, one
Sub-Trust which shall be known as the "2004-A SUBI." The 2004-A SUBI shall
represent a special unit of beneficial interest solely in the 2004-A SUBI
Assets.
(b) Pursuant to Section 3.01(a) of the Titling Trust Agreement, the UTI
Beneficiary hereby directs the Trustee to identify and allocate or to cause to
be identified and allocated to the 2004-A SUBI on the books and records of the
Titling Trust a separate Sub-Trust of Trust Assets consisting of 2004-A Eligible
Leases and the related Leased Vehicles and other associated Trust Assets owned
by the Titling Trust and not allocated to any Other SUBI or reserved for
allocation to any Other SUBI (or owned or acquired by the Trustee on behalf of
the Titling Trust but not yet allocated to, or reserved for allocation to, any
specific Sub-Trust). Such Trust Assets (the "2004-A SUBI Assets") shall be
accounted for and held in trust independently from all other Trust Assets within
the Titling Trust. Based upon their identification and allocation by the
Servicer pursuant to the 2004-A Servicing Supplement, the Trustee hereby
identifies and allocates as 2004-A SUBI Assets the 2004-A Leases and 2004-A
Vehicles more particularly described on the Schedule of 2004-A Leases and 2004-A
Vehicles and the related Trust Assets described above, each such 2004-A SUBI
Asset to be identified on the books and accounts of the Titling Trust as being
allocated to the 2004-A SUBI.
(c) The Titling Trust is hereby granted the power and authority and is
authorized, and the Trustee is authorized on behalf of the Titling Trust, to
execute, deliver and perform its obligations under the Basic Documents.
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Section 12.02. Transfer of 2004-A SUBI Interests.
(a) Interests in the 2004-A SUBI may not be transferred or assigned by
the UTI Beneficiary, and any such purported transfer or assignment shall be
deemed null, void, and of no effect herewith; provided, however, that the 2004-A
SUBI Certificate and the interests in the 2004-A SUBI represented thereby may be
(i) sold to the Transferor pursuant to the SUBI Certificate Transfer Agreement,
(ii) sold, transferred and assigned by the Transferor absolutely, or transferred
and assigned or a security interest therein granted, in connection with a
Securitized Financing, (iii) transferred to the Indenture Trustee or any
subsequent Registered Pledgee to itself or any other Person following the
occurrence of an Indenture Default (which has not been rescinded) or any similar
term in any subsequent Securitized Financing secured by the 2004-A SUBI
Certificate or any interest therein and (iv) transferred to each direct or
indirect permitted transferee of the Indenture Trustee or such subsequent
Registered Pledgee, in each case in the circumstances contemplated in, and
subject to the conditions set forth in, Section 3.04(b) of the Titling Trust
Agreement. Each such transfer shall be registrable upon surrender of the 2004-A
SUBI Certificate to be transferred for registration of the transfer at the
corporate trust office of the Trustee (or the Trust Agent, if applicable),
accompanied by a written instrument of transfer in form satisfactory to the
Trustee duly executed by the Holder thereof or such Holder's attorney duly
authorized in writing, and thereupon a new 2004-A SUBI Certificate of a like
aggregate fractional undivided interest will be issued to the designated
permitted transferee.
(b) For any transfer of the 2004-A SUBI Certificate or an interest
therein to be effective, on or prior to the date of any absolute sale, transfer,
or assignment, the related transferee must execute and deliver to the Trustee
the non-petition covenant and the agreement required pursuant to Section 3.04(b)
of the Titling Trust Agreement.
Section 12.03. Issuance and Form of 2004-A SUBI Certificate.
(a) The 2004-A SUBI shall be represented by a 2004-A SUBI Certificate
that shall represent a 100% beneficial interest in the 2004-A SUBI and the
2004-A SUBI Assets, as further set forth herein. The 2004-A SUBI Certificate
shall, upon transfer to the Trust, be registered in the name of the Trust,
representing the beneficial interest in the 2004-A SUBI Assets allocated from
the UTI. The Trustee shall register a pledge of the 2004-A SUBI Certificate in
favor of the Indenture Trustee (for the benefit of the holders of the Notes), as
provided in Article Thirteen, and shall deliver the 2004-A SUBI Certificate to
the Indenture Trustee. The 2004-A SUBI Certificate shall be substantially in the
form of Exhibit B attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required by this 2004-A SUBI
Supplement and may have such letters, numbers or other marks of identification
and such legends and endorsements placed thereon as may, consistently herewith
and with the Titling Trust Agreement, be directed by the UTI Beneficiary. Any
portion of any 2004-A SUBI Certificate may be set forth on the reverse thereof,
in which case the following reference to the portion of the text on the reverse
shall be inserted on the face thereof, in relative proximity to and prior to the
signature of the Trustee executing such 2004-A SUBI Certificate:
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Reference is hereby made to the further provisions of this
certificate set forth on the reverse hereof, which provisions
shall for all purposes have the same effect as if set forth at
this place.
In addition, the 2004-A SUBI Certificate will bear a legend to the
following effect:
THIS 2004-A SUBI CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE
SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE
HOLDER HEREOF, BY PURCHASING THIS 2004-A SUBI CERTIFICATE, AGREES THAT
THIS 2004-A SUBI CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS, INCLUDING PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A
QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED,
IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A AND IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTIONS.
The 2004-A SUBI Certificate shall be printed, lithographed,
typewritten, mimeographed, photocopied, or otherwise produced or may be produced
in any other manner as may, consistently herewith and with the Titling Trust
Agreement, be determined by the UTI Beneficiary. The 2004-A SUBI Certificate and
the interest in the 2004-A SUBI evidenced thereby shall constitute a "security"
within the meaning of Section 8-102(a)(15) of the UCC and a "certificated
security" within the meaning of Section 8-102(a)(4) of the UCC.
(b) If (i) the 2004-A SUBI Certificate is mutilated and surrendered to
the Trustee, or the Trustee receives evidence to its satisfaction of the
destruction, loss, or theft of the 2004-A SUBI Certificate, and (ii) there is
delivered to the Trustee such security or indemnity as may reasonably be
required by it to hold the Trust and the Trustee, as applicable, harmless, then
the Trustee shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost, or stolen 2004-A SUBI Certificate, a replacement
2004-A SUBI Certificate. Every 2004-A SUBI Certificate issued pursuant to this
Section 12.03(b) in replacement of any mutilated, destroyed, lost, or stolen
2004-A SUBI Certificate shall constitute an original additional contractual
obligation of the Trust, whether or not the mutilated, destroyed, lost, or
stolen 2004-A SUBI Certificate shall be at any time enforceable by anyone, and
shall be entitled to all of the benefits of the SUBI Trust Agreement equally and
proportionately with any and all other 2004-A SUBI Certificates duly issued
hereunder. The provisions of this Section 12.03(b) are exclusive and preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost, or stolen 2004-A SUBI
Certificates.
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Section 12.04. Actions and Filings. The UTI Beneficiary and the Trustee
shall undertake all other and future actions and activities as may be deemed
reasonably necessary by the Servicer pursuant to the Servicing Agreement to
perfect (or evidence) and confirm the foregoing allocations of Trust Assets to
the 2004-A SUBI, including filing or causing to be filed UCC financing
statements and executing and delivering all related filings, documents or
writings as may be deemed reasonably necessary by the Servicer or the Registered
Pledgee hereunder or under any other Basic Document. The UTI Beneficiary hereby
irrevocably makes and appoints each of the Trustee and the Servicer, and any of
their respective officers, employees, or agents, as the true and lawful
attorney-in-fact of the UTI Beneficiary (which appointment is coupled with an
interest and is irrevocable) with power to sign on behalf of the UTI Beneficiary
any financing statements, continuation statements, security agreements,
mortgages, assignments, affidavits, letters of authority, notices, or similar
documents necessary or appropriate to be executed or filed pursuant to this
Section.
Section 12.05. Termination of the 2004-A SUBI.
(a) In connection with any purchase by the Servicer of the corpus of
the Trust pursuant to Article Nine of the Trust Agreement, the succession of the
Servicer to the interest in the 2004-A SUBI represented by the 2004-A SUBI
Certificate, or should all of the interest in the 2004-A SUBI thereafter be held
by the UTI Beneficiary or the Holders of the UTI Certificates, whether by
transfer, sale, or otherwise, then upon the direction of such Holders, the
2004-A SUBI shall be terminated, the 2004-A SUBI Certificate shall be returned
to the Trustee and canceled, and the Servicer shall reallocate all 2004-A SUBI
Assets to the UTI.
(b) So long as the Notes are Outstanding, the 2004-A SUBI shall not be
dissolved unless (a) required by law or (b) at the direction of the Holder of
the 2004-A SUBI Certificate (but only with the consent of the Registered
Pledgee); provided, however, that upon the sale of the Trust Estate pursuant to
Section 5.04 of the Indenture, this 2004-A SUBI Supplement shall terminate and
the 2004-A SUBI shall be terminated; provided further, that such termination
shall affect the Titling Trust only insofar as such termination relates to the
2004-A SUBI. Such termination shall not entitle the legal representatives of the
2004-A SUBI or any Holder of a 2004-A SUBI Certificate to take any action for a
partition or winding up of the Titling Trust or any Trust Assets except with
respect to the 2004-A SUBI Assets and the rights, obligations and Liabilities of
the parties hereto shall not otherwise be affected. In connection with the sale
of the Trust Estate pursuant to Section 5.04 of the Indenture, the Registered
Pledgee shall have the right to direct the Holder of the 2004-A SUBI Certificate
to dissolve the 2004-A SUBI in accordance with the provisions of the Indenture,
and the 2004-A SUBI Assets shall be distributed out of the Titling Trust at the
direction of the Holder of the 2004-A SUBI Certificate acting in accordance with
instructions from the Registered Pledgee, and the purchaser shall take delivery
of such 2004-A SUBI Assets. The Trustee and the other parties hereto shall
cooperate with the Owner Trustee or the Trustee, as applicable, to cause the
related 2004-A Vehicles to be retitled as directed by the purchaser. The
proceeds of such sale shall be distributed in the following amounts and
priority:
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(i) to the Indenture Trustee, all amounts required to be paid
under Section 6.07 of the Indenture, or to the Owner Trustee, all
amounts required to be paid under Section 8.01 of the Trust Agreement,
as the case may be;
(ii) to the Servicer, any Payment Date Advance Reimbursement;
(iii) to the Servicer, amounts due in respect of unpaid
Servicing Fees; and
(iv) to the Certificate Distribution Account (or, if the Lien
of the Indenture is outstanding, the Note Distribution Account) to be
distributed pursuant to Section 5.04(b) of the Indenture.
Section 12.06. Representations and Warranties of Trustee. The Trustee
hereby reaffirms, as of the Cutoff Date, the representations, warranties and
covenants set forth in Section 5.12 of the Titling Trust Agreement, on which the
Grantor and UTI Beneficiary, each of its permitted assignees, and each Holder or
Related Beneficiary of a 2004-A SUBI Certificate (and beneficial owner of any
portion thereof, including the Trust and the Trust Certificateholders) may rely.
For purposes of this Section, any reference in Section 5.12 of the Titling Trust
Agreement to the Titling Trust Agreement shall be deemed to constitute
references to the SUBI Trust Agreement.
Section 12.07. Transfer and Assignment of Certificates. For purposes of
the SUBI Trust Agreement, the third sentence of Section 3.04(b) of the Titling
Trust Agreement is hereby amended to read as follows:
Notwithstanding the foregoing, prior to becoming the Registered Pledgee
or Holder of a SUBI Certificate or otherwise becoming entitled to distributions
or any other rights hereunder, the related transferee, assignee, or pledgee in
each case must (i) give a non-petition covenant substantially similar to that
set forth in Section 8.08 of the Titling Trust Agreement and (ii) execute an
agreement in favor of each Holder from time to time of a UTI Certificate and any
certificate evidencing an Other SUBI to release all Claims to the UTI Assets and
the related Other SUBI Assets, respectively, and, if such release is not given
effect, to subordinate fully all Claims it may be deemed to have against the UTI
Assets or such Other SUBI Assets, as the case may be.
For so long as the 2004-A SUBI Certificate remains outstanding, each
Supplement shall contain a similar amendment with respect to such Section.
ARTICLE THIRTEEN
2004-A SUBI PLEDGE
Section 13.01. Registration of the 2004-A SUBI Pledge. The parties
hereto hereby acknowledge the Trust's pledge, assignment, and grant to the
Indenture Trustee, for the benefit of the holders of the Notes, under the
Indenture of a security interest in the 2004-A SUBI Certificate together with
all rights appurtenant thereto and proceeds thereof, to secure the Notes. The
Trustee hereby acknowledges such pledge, assignment, and grant of security
interest, and the
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Trustee agrees to cause the Indenture Trustee to be listed in the Certificate
Register as the Registered Pledgee of the Trust's 2004-A SUBI Certificate. The
Trust has caused the Trustee to deliver the 2004-A SUBI Certificate to the
Indenture Trustee, as Registered Pledgee, who shall have the rights with respect
thereto described herein and in the Indenture.
ARTICLE FOURTEEN
2004-A SUBI ACCOUNTS
Section 14.01. 2004-A SUBI Collection Account.
(a) With respect to the 2004-A SUBI, the Trustee, at the direction of
the Servicer, shall establish, and the Trust Agent shall maintain, in the name
of the Trustee, for the exclusive benefit of the holders of interests in the
2004-A SUBI, the 2004-A SUBI Collection Account, which account shall constitute
a SUBI Collection Account. The 2004-A SUBI Collection Account initially shall be
established with U.S. Bank, as Trust Agent, so long as the Trust Agent has the
Required Deposit Rating. If the Trust Agent at any time does not have the
Required Deposit Rating, the Servicer shall, with the assistance of the Trust
Agent, as necessary, cause such 2004-A SUBI Collection Account to be moved as
described in Section 4.02(a) of the Titling Trust Agreement. The 2004-A SUBI
Collection Account shall relate solely to the 2004-A SUBI and the 2004-A SUBI
Assets, and funds therein shall not be commingled with any other monies, except
as otherwise provided for in, or contemplated by, the SUBI Trust Agreement or in
the Servicing Agreement. All deposits into the 2004-A SUBI Collection Account
shall be made as described in the Servicing Agreement.
(b) On each Deposit Date and Payment Date, pursuant to the instructions
from the Servicer, the Trustee (acting through the Trust Agent) shall make
deposits and withdrawals from the 2004-A SUBI Collection Account as set forth in
the 2004-A Servicing Supplement.
(c) Any transfer of funds to a Holder of a 2004-A SUBI Certificate
shall be made as directed pursuant to the Basic Documents.
Section 14.02. 2004-A Reserve Account.
(a) Pursuant to Section 5.01 of the Trust Agreement, the Servicer, on
behalf of the Trust, shall establish and maintain the Reserve Account (i) with
the Indenture Trustee, until the Outstanding Amount is reduced to zero, and (ii)
thereafter with the Owner Trustee. Deposits and withdrawals from the Reserve
Account shall be made as directed pursuant to the Basic Documents, including
Section 8.04(b) of the Indenture, Section 10.01 of the Indenture, Section 8.04
of the Servicing Agreement and Section 14.03 of this 2004-A SUBI Supplement.
Section 14.03. Investment of Monies in 2004-A SUBI Accounts. All
amounts held in the 2004-A SUBI Collection Account and the Reserve Account shall
be invested in Permitted Investments in accordance with Section 4.02(a) of the
Titling Trust Agreement. Any investment earnings on the 2004-A SUBI Collection
Account and the Reserve Account will be taxable to the Transferor.
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Section 14.04. No Residual Value Surplus Account or Payahead Account.
The parties hereby acknowledge that there shall be no Residual Value Surplus
Account or Payahead Account (as defined in the Titling Trust Agreement).
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
Section 15.01. Amendment.
(a) This 2004-A SUBI Supplement (and, accordingly, the Titling Trust
Agreement as it relates to the 2004-A SUBI) may be amended by the parties
hereto:
(i) without the consent of the Holders, to cure any ambiguity,
to correct or supplement any provision herein that may be inconsistent
with any other provision herein, to add any other provision with
respect to matters or questions arising hereunder that is not
inconsistent with the SUBI Trust Agreement, or to 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
(ii) from time to time (including to change the manner in
which the Reserve Account is funded or to eliminate the Reserve
Account, or to change the remittance schedule for depositing SUBI
Collections and other amounts into the 2004-A SUBI Collection Account),
provided that (A) each Rating Agency receives prior written notice 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 the 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 the 2004-A SUBI or the 2004-A SUBI Certificate or distributions (or
the interest thereon) required to be made on any Notes or the Trust
Certificates or reduce the Interest Rate of any Note or (B) reduce the
percentage of the aggregate principal amount of the 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.
SUBI Supplement
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(b) Any amendment to this 2004-A SUBI Supplement shall amend the
Titling Trust Agreement only insofar as such amendment relates to the 2004-A
SUBI.
Section 15.02. Governing Law. This 2004-A SUBI Supplement shall be
created under and governed by and construed under the internal laws of the State
of Delaware, without reference to its conflicts of law provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Section 15.03. Notices. The notice provisions of Section 8.03 of the
Titling Trust Agreement shall apply equally to this 2004-A SUBI Supplement. A
copy of each notice or other writing required to be delivered to the Trustee
pursuant to the SUBI Trust Agreement also shall be delivered to (i) the Owner
Trustee at Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882), Attention:
Corporate Trust Administration; (ii) the Servicer at 990 West 190th Street,
Torrance, California 90502 (telecopier no. (310) 324-2542), Attention:
Treasurer; and (iii) the Trust Agent at 209 South LaSalle Street, Suite 300,
Chicago, IL 60604, Attention: NILT Inc. (telecopier no. (312) 325-8905).
Section 15.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions, or terms of this 2004-A SUBI Supplement
(including any amendment hereto) shall be for any reason whatsoever held
invalid, then such covenants, agreements, provisions, or terms shall be deemed
severable from the remaining covenants, agreements, provisions, or terms of this
2004-A SUBI Supplement, as the same may be amended, and shall in no way affect
the validity or enforceability of the other provisions of the SUBI Trust
Agreement or of the 2004-A SUBI Certificate or the rights of the Registered
Pledgees thereof. To the extent permitted by applicable law, the parties hereto
waive any provision of law that renders any covenant, agreement, provision, or
term of this 2004-A SUBI Supplement invalid or unenforceable in any respect.
Section 15.05. Effect of Supplement on Titling Trust Agreement.
(a) Except as otherwise specifically provided herein or unless the
context otherwise requires, (i) the parties hereto shall continue to be bound by
all provisions of the Titling Trust Agreement, (ii) all references in the
Titling Trust Agreement to the Titling Trust Agreement shall be to the SUBI
Trust Agreement and (iii) the provisions set forth herein shall operate either
as additions to or modifications of the extant obligations of the parties under
the Titling Trust Agreement, as the context may require. In the event of any
conflict between this 2004-A SUBI Supplement and the Titling Trust Agreement in
respect of the 2004-A SUBI, the provisions of this 2004-A SUBI Supplement shall
prevail.
(b) For purposes of determining the obligations of the parties hereto
under this 2004-A SUBI Supplement with respect to the 2004-A SUBI, except as
otherwise indicated by the context, general references in the Titling Trust
Agreement to (i) a SUBI Account shall be deemed to refer more specifically to a
2004-A SUBI Account, (ii) a SUBI shall be deemed to refer more specifically to
the 2004-A SUBI, (iii) a SUBI Collection Account shall be deemed to refer more
specifically to the 2004-A SUBI Collection Account, (iv) a SUBI Asset shall be
deemed to refer
SUBI Supplement
10
more specifically to a 2004-A SUBI Asset, (v) a SUBI Supplement shall be deemed
to refer more specifically to this 2004-A SUBI Supplement and (vi) a Servicing
Supplement shall be deemed to refer more specifically to the 2004-A Servicing
Supplement.
Section 15.06. No Petition. Each of the parties hereto and each Holder
of a 2004-A SUBI Certificate, and each Registered Pledgee, by acceptance of a
2004-A SUBI Certificate, covenants and agrees that prior to the date that is one
year and one day after the date upon which all obligations under each
Securitized Financing have been paid in full, it will not (and, to the fullest
extent permitted by applicable law, the Trustee shall not have the power to)
institute against, or join any other Person in instituting against, the Grantor,
the Trustee, the Titling Trust, any Special Purpose Affiliate or any
Beneficiary, any bankruptcy, reorganization, arrangement, insolvency or
liquidation Proceeding or other Proceeding under any federal or state bankruptcy
or similar law. This Section shall survive the complete or partial termination
of this 2004-A SUBI Supplement, the resignation or removal of the Trustee under
the SUBI Trust Agreement and the complete or partial resignation or removal of
the Servicer under the SUBI Trust Agreement or the Servicing Agreement.
SUBI Supplement
11
IN WITNESS WHEREOF, the Grantor and UTI Beneficiary, the
Servicer, the Trustee, the Delaware Trustee and, solely for the limited purposes
set forth in Sections 14.01, 14.02, 14.03 and 14.04, the Trust Agent, have
caused this 2004-A SUBI Supplement to be duly executed by their respective
officers as of the day and year first above written.
NILT TRUST, as Grantor and
UTI Beneficiary
By: U.S. BANK NATIONAL ASSOCIATION,
as Managing Trustee
By: /s/ Patricia M. Child
-----------------------------
Name: Patricia M. Child
Title: Vice President
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer
By: /s/ Steven R. Lambert
---------------------------------
Name: Steven R. Lambert
Title: President
NILT, INC., as Trustee
By: /s/ Patricia M. Child
---------------------------------
Name: Patricia M. Child
Title President
WILMINGTON TRUST COMPANY, as Delaware
Trustee
By: /s/ Joann A. Rozell
---------------------------------
Name: Joann A. Rozell
Title: Financial Services Officer
U.S. BANK NATIONAL ASSOCIATION, as
Trust Agent
By: /s/ Patricia M. Child
---------------------------------
Name: Patricia M. Child
Title: Vice President
(SUBI Supplement)
S-1
Receipt of this original counterpart of this 2004-A SUBI Supplement is
hereby acknowledged on this 28th day of October, 2004 .
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: /s/ Patricia M. Child
---------------------------------
Name: Patricia M. Child
Title: Vice President
SUBI Supplement
S-2
EXHIBIT A
SCHEDULE OF 2004-A LEASES AND 2004-A VEHICLES
[Omitted. Copies on file with the Servicer, the Trustee and the Owner Trustee.]
(SUBI Supplement)
A-1
EXHIBIT B
FORM OF 2004 - A SUBI CERTIFICATE
THIS 2004-A SUBI CERTIFICATE MAY NOT BE TRANSFERRED OR ASSIGNED
EXCEPT UPON THE TERMS AND SUBJECT TO THE CONDITIONS SPECIFIED HEREIN
NISSAN - INFINITI LT
2004-A SPECIAL UNIT OF BENEFICIAL INTEREST CERTIFICATE
evidencing a fractional undivided interest in the 2004-A SUBI
Assets of Nissan-Infiniti LT, a statutory trust organized
pursuant to the Delaware Statutory Trust Act (the "Trust").
(This Certificate does not represent any interest in the UTI
Assets or any Other SUBI Assets of the Trust or an obligation,
of, or interest in, NILT Trust, Nissan Motor Acceptance
Corporation, NILT, Inc., or any of their respective
Affiliates.)
THIS 2004-A SUBI CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT"), OR
UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY
PURCHASING THIS 2004-A SUBI CERTIFICATE, AGREES THAT THIS 2004-A SUBI
CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS,
INCLUDING PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")
TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A
"QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE
ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTIONS.
No. R-___
evidencing a 100% interest in all 2004-A SUBI Assets (as defined below).
This 2004-A Special Unit of Beneficial Interest Certificate does not
represent an interest in or obligation of Nissan Motor Acceptance Corporation,
NILT, Inc. or any of their respective affiliates.
THIS CERTIFIES THAT ________________ is the registered owner of a
nonassessable, fully-paid, 100% beneficial interest in the 2004-A SUBI Assets
owned by Nissan-Infiniti LT (the "Titling Trust").
(SUBI Supplement)
B-1
The Titling Trust was created pursuant to the Amended and Restated
Trust and Servicing Agreement, dated as of August 26, 1998, as amended,
supplemented, or restated from time to time (the "Titling Trust Agreement"),
among NILT Trust, as grantor and initial beneficiary (in such capacities, the
"Grantor" and the "UTI Beneficiary," respectively), NILT, Inc., as trustee (the
"Trustee"), Nissan Motor Acceptance Corporation, as servicer (the "Servicer"),
Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee"), and U.S.
Bank National Association, as trust agent (the "Trust Agent").
This certificate is a duly authorized 2004-A SUBI Certificate, and is
issued under and is subject to the terms, provisions and conditions of the
Titling Trust Agreement and the 2004-A SUBI Supplement thereto, dated as of
October 28, 2004 (the "2004-A SUBI Supplement" and, together with the Titling
Trust Agreement, the "SUBI Trust Agreement"). Capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the
Agreement of Definitions, dated as of October 28, 2004, by and among Nissan Auto
Lease Trust 2004-A, as issuer, NILT Trust, as Grantor and UTI Beneficiary, the
Titling Trust, Nissan Motor Acceptance Corporation, in its individual capacity,
as servicer and administrative agent, Nissan Auto Leasing LLC II, NILT, Inc., as
trustee to the Titling Trust, Wilmington Trust Company, as owner trustee and
Delaware trustee, and U.S. Bank National Association, as trust agent and
indenture trustee. By acceptance of this 2004-A SUBI Certificate, the Holder
hereof assents to the terms and conditions of the SUBI Trust Agreement and
agrees to be bound thereby. A summary of certain of the pertinent provisions of
the SUBI Trust Agreement is set forth below.
The assets of the Titling Trust allocated to the 2004-A SUBI will
generally consist of (i) cash capital, (ii) the 2004-A Leases (iii) the 2004-A
Vehicles, (iv) certain related Trust Assets and (v) all of the Titling Trust's
rights thereunder, including the right to proceeds arising therefrom or in
connection therewith.
Under the Titling Trust Agreement, from time to time the UTI
Beneficiary may direct the Trustee to issue to or upon the order of the UTI
Beneficiary one or more certificates (each, a "SUBI Certificate") representing a
beneficial interest in certain specified Leased Vehicles, Leases and related
Trust Assets (such assets, the "SUBI Assets"). Upon the issuance of the SUBI
Certificates relating to the SUBI Assets, the beneficial interest in the Trust
and the Trust Assets represented by the UTI shall be reduced by the amount of
the Trust Assets represented by such SUBI Certificates. This certificate was
issued pursuant to the 2004-A SUBI Supplement and represents a 100% beneficial
interest in the 2004-A SUBI Assets.
The UTI and the 2004-A SUBI shall each constitute a separate series of
the Titling Trust pursuant to Section 3806(b)(2) of the Delaware Statutory Trust
Act for which separate and distinct records shall be maintained. The 2004-A SUBI
Certificate and the interest in the 2004-A SUBI represented thereby constitutes
a "security" within the meaning of Section 8-102(a)(15) of the Delaware UCC and
a "certificated security" within the meaning of Section 8-102(a)(4) of the
Delaware UCC.
The 2004-A SUBI Supplement may be amended by the parties thereto upon
the terms and subject to the conditions set forth in the 2004-A SUBI Supplement.
SUBI Supplement
B-2
The Holder, by acceptance of this 2004-A SUBI Certificate, covenants
and agrees that prior to the date that is one year and one day after the date
upon which all obligations under each Securitized Financing have been paid in
full, it will not institute against, or join any other Person in instituting
against, the Grantor, the Trustee, the Titling Trust, any Beneficiary or a
Special Purpose Affiliate, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding or other Proceedings under any federal or
state bankruptcy or similar law. Such covenant shall survive the termination of
the SUBI Trust Agreement, the resignation or removal of the Trustee under the
SUBI Trust Agreement or the complete or partial resignation of the Servicer
under the SUBI Trust Agreement or the Servicing Agreement.
The Holder hereof hereby (i) expressly waives any claim it may have to
any proceeds or assets of the Trustee and to all of the Trust Assets other than
those from time to time included within the 2004-A SUBI as 2004-A SUBI Assets
and those proceeds or assets derived from or earned by such 2004-A SUBI Assets
and (ii) expressly subordinates in favor of the Holder of any certificate
evidencing an Other SUBI or a UTI Certificate any claim to any Other SUBI or UTI
Assets that, notwithstanding the waiver contained in clause (i), may be
determined to exist.
The Trustee shall keep the certificate register with respect to this
2004-A SUBI Certificate, and the Holder of this 2004-A SUBI Certificate shall
notify the Trustee of any change of address or instructions on the distribution
of funds.
The 2004-A SUBI shall be deemed dissolved solely with respect to the
2004-A SUBI Assets, and not as to any Trust Assets allocated to any other
Sub-Trust, upon the written direction to the Trustee by the Holder of the 2004-A
SUBI Certificate to revoke and dissolve the 2004-A SUBI. So long as the Notes
are outstanding, the 2004-A SUBI shall not be dissolved except (a) as required
by law or (b) at the direction of the Holder of the 2004-A SUBI Certificate (but
only with the consent of the Registered Pledgee); provided, however, upon any
sale of the Trust Estate pursuant to Section 5.04 of the Indenture, the
Registered Pledgee shall have the right to direct the Holder of the 2004-A SUBI
Certificate to dissolve the 2004-A SUBI in accordance with the provisions of the
Indenture. Upon such dissolution of the Titling Trust with respect to the 2004-A
SUBI and delivery of the 2004-A SUBI Certificate to the Trustee for
cancellation, the Trustee shall distribute to the Holder of the 2004-A SUBI
Certificate or its designee all 2004-A SUBI Assets and shall cause the
Certificates of Title to the 2004-A Vehicles to be issued in the name of, or at
the direction of, the Holder of the 2004-A SUBI Certificate (which may include
reallocation of the 2004-A SUBI Assets relating to the 2004-A Vehicles to the
UTI). The Holder of the 2004-A SUBI Certificate to whom such 2004-A SUBI Assets
relating to the 2004-A Vehicles are distributed shall pay or cause to be paid
all applicable titling and registration fees and taxes.
The Titling Trust or the UTI may terminate upon the terms and subject
to the conditions set forth in the SUBI Trust Agreement.
No SUBI or SUBI Certificate shall be transferred or assigned except to
the extent specified in the SUBI Trust Agreement or in any related Supplement
and, to the fullest extent permitted by applicable law, any such purported
transfer or assignment other than as so specified shall be deemed null, void,
and of no effect under the SUBI Trust Agreement. Notwithstanding
SUBI Supplement
B-3
the foregoing, any SUBI Certificate and the interest in the SUBI evidenced
thereby may be (i) transferred, assigned or pledged to any Special Purpose
Affiliate or (ii) transferred, assigned or pledged by the Related Beneficiary or
a Special Purpose Affiliate to or in favor of (A) a trustee for one or more
trusts or (B) one or more other entities, in either case solely for the purpose
of securing or otherwise facilitating one or more Securitized Financings.
This 2004-A SUBI Certificate shall be governed by and construed under
the internal laws of the State of Delaware, without reference to its conflicts
of law provisions.
Unless this 2004-A SUBI Certificate shall have been executed by an
authorized officer of the Trustee, by manual signature, this 2004-A SUBI
Certificate shall not entitle the holder hereof to any benefit under the SUBI
Trust Agreement or be valid for any purpose.
SUBI Supplement
B-4
IN WITNESS WHEREOF, NILT, Inc., as Trustee of the Titling Trust and not
in its individual capacity, has caused this 2004-A SUBI Certificate to be duly
executed.
Dated: October 28, 2004
NISSAN-INFINITI LT
By: NILT, INC.,
as Trustee
(SEAL) By: _____________________________________
Name:
Title:
ATTEST:
This is the 2004-A SUBI Certificate referred to in the within-mentioned
Supplement.
NILT, INC., as Trustee
By: _____________________________________
Authorized Officer
SUBI Supplement
B-5
FOR VALUE RECEIVED, the undersigned hereby sells, transfers and assigns
unto ______________ the within 2004-A SUBI Certificate, and all rights
thereunder, hereby irrevocably constituting and appointing _____________ as
attorney to transfer said 2004-A SUBI Certificate on the books of the
certificate registrar, with full power of substitution in the premises.
Dated: ___________________ By: _________________________________
Name:
Title:
SUBI Supplement
B-6