EXHIBIT 10.7
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NISSAN AUTO LEASE TRUST 2004-A,
U.S. Bank National Association,
as Indenture Trustee and
as Secured Party,
and
U.S. Bank National Association,
as Securities Intermediary
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CONTROL AGREEMENT
Dated as of October 28, 2004
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TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS
1.01. General Definitions............................................................................... 1
1.02. Incorporation of UCC by Reference................................................................. 2
ARTICLE TWO
ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS
2.01. Establishment of Reserve Account.................................................................. 2
2.02. "Financial Assets" Election....................................................................... 2
2.03. Entitlement Orders................................................................................ 2
2.04. Subordination of Lien; Waiver of Set-Off.......................................................... 2
2.05. Notice of Adverse Claims.......................................................................... 3
ARTICLE THREE
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY
3.01. Representations, Warranties and Covenants of the Securities Intermediary.......................... 3
ARTICLE FOUR
MISCELLANEOUS
4.01. Choice of Law..................................................................................... 4
4.02. Conflict with Other Agreements.................................................................... 4
4.03. Amendments........................................................................................ 4
4.04. Successors........................................................................................ 4
4.05. Notices........................................................................................... 4
4.06. Termination....................................................................................... 4
4.07. Counterparts...................................................................................... 5
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CONTROL AGREEMENT
This Control Agreement (this "Agreement"), dated as of October 28, 2004,
is among Nissan Auto Lease Trust 2004-A, a statutory trust formed pursuant to
the laws of the State of Delaware (the "Trust"), U.S. Bank National Association
("U.S. Bank"), in its capacity as indenture trustee (the "Indenture Trustee") on
behalf of the holders of the Notes (the "Secured Party") under the Indenture,
dated as of October 28, 2004 (the "Indenture") by and between the Trust and the
Indenture Trustee, and U.S. Bank, in its capacity as securities intermediary
(the "Securities Intermediary").
RECITALS
WHEREAS, pursuant to the Indenture, the Trust has granted to the Secured
Party a security interest in investment property consisting of the Reserve
Account, related Security Entitlements and the financial assets and other
investment property from time to time included therein to secure payment of the
Notes;
WHEREAS, pursuant to the Indenture, on the date on which the lien of the
Indenture is released, rights with respect to the Reserve Account shall be
transferred back to the Trust; and
WHEREAS, the parties hereto desire that the security interest of the
Secured Party be a first priority security interest perfected by "control"
pursuant to Articles Eight and Nine of the UCC.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
1.01. General 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 Trust, as issuer
(the "Issuer"), NILT Trust, a Delaware statutory trust, as grantor and initial
beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary,"
respectively), Nissan-Infiniti LT, a Delaware statutory trust (the "Titling
Trust"), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"),
in its individual capacity, as servicer and as administrative agent (in such
capacity, the "Servicer" and the "Administrative Agent," respectively), Nissan
Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), NILT,
Inc., a Delaware corporation, as trustee to the Titling Trust (the "Titling
Trustee"), Wilmington Trust Company, a Delaware banking corporation, as owner
trustee and Delaware trustee (in such capacity, the "Owner Trustee" and the
"Delaware Trustee," respectively) and U.S. Bank, as Indenture Trustee and trust
agent (in such capacity, the "Trust Agent").
Control Agreement
1.02. Incorporation of UCC by Reference. Except as otherwise
specified herein or as the context may otherwise require, all terms used in this
Agreement not otherwise defined herein which are defined in the UCC shall have
the meanings assigned to them in the UCC.
ARTICLE TWO
ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS
2.01. Establishment of Reserve Account. The Securities Intermediary
hereby confirms that (i) the Trust has established the Reserve Account at the
Securities Intermediary, (ii) the Reserve Account is an account to which
financial assets are or may be credited, (iii) the Securities Intermediary
shall, subject to the terms of this Agreement and the Indenture, treat the
Secured Party as entitled to exercise the rights that comprise any financial
asset credited to the Reserve Account, (iv) all property delivered to the
Securities Intermediary by or on behalf of the Secured Party for deposit to the
Reserve Account will promptly be credited to the Reserve Account and (v) all
securities or other property underlying any financial assets credited to the
Reserve Account shall be registered in the name of the Securities Intermediary,
endorsed to the Securities Intermediary or in blank or credited to another
securities account maintained in the name of the Securities Intermediary and in
no case will any financial asset credited to the Reserve Account be registered
in the name of the Trust, payable to the order of the Trust or specially
endorsed to the Trust except to the extent the foregoing have been specially
endorsed to the Securities Intermediary or in blank.
2.02. "Financial Assets" Election. The Securities Intermediary
hereby agrees that each item of property (whether investment property, financial
asset, security, instrument or cash) credited to the Reserve Account shall be
treated as a "financial asset" within the meaning of Section 8-102(a)(9) of the
UCC.
2.03. Entitlement Orders. If at any time the Securities Intermediary
shall receive any Entitlement Order from the Secured Party with respect to the
Reserve Account, the Securities Intermediary shall comply with such Entitlement
Order without further consent by the Trust, the Initial Secured Party or any
other Person. If at any time the Secured Party notifies the Securities
Intermediary in writing that the Lien of the Indenture has been released, the
Securities Intermediary shall thereafter comply with Entitlement Orders with
respect to the Reserve Account from the Initial Secured Party without further
consent by the Trust or any other Person.
2.04. Subordination of Lien; Waiver of Set-Off. If the Securities
Intermediary has or subsequently obtains by agreement, operation of law or
otherwise a security interest in the Reserve Account or any Security Entitlement
credited thereto, the Securities Intermediary hereby agrees that such security
interest shall be subordinate to the security interests of the Secured Party.
The financial assets and other items deposited to the Reserve Account will not
be subject to deduction, set-off, banker's lien or any other right in favor of
any Person or entity other than the Secured Party (except that the Securities
Intermediary may set off against amounts on deposit in the Reserve Account (i)
all amounts due to it in respect of its customary fees and expenses for the
routine maintenance and operation of the Reserve Account, and (ii) the face
amount of any
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checks that have been credited to the Reserve Account but are subsequently
returned unpaid because of uncollected or insufficient funds).
2.05. Notice of Adverse Claims. Except for the claims and interests
of the Secured Party and the Trust in the Reserve Account, the Securities
Intermediary does not know of any claim to, or interest in, the Reserve Account
or in any financial asset credited thereto. If any Person asserts any lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against the Reserve Account or in
any financial asset carried therein, the Securities Intermediary will promptly
notify the Secured Party and the Trust thereof.
ARTICLE THREE
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SECURITIES INTERMEDIARY
3.01. Representations, Warranties and Covenants of the Securities
Intermediary. The Securities Intermediary hereby represents and warrants to the
Secured Party and the Trust, and covenants that:
(a) The Reserve Account has been established as set forth in
Section 2.01 and the Reserve Account will be maintained in the manner set forth
herein until termination of this Agreement. The Securities Intermediary shall
not change the name or account number of the Reserve Account without the prior
written consent of the Secured Party.
(b) No financial asset carried in the Reserve Account is or
will be registered in the name of the Trust, payable to the order of the Trust,
or specially endorsed to the Trust, except to the extent such financial asset
has been endorsed to the Securities Intermediary or in blank.
(c) This Agreement is the valid and legally binding obligation
of the Securities Intermediary.
(d) The Securities Intermediary has not entered into, and
until the termination of this Agreement will not enter into, any agreement
pursuant to which it agrees to comply with Entitlement Orders of any Person
other than the Secured Party to the extent provided in Section 2.03, with
respect to the Reserve Account.
(e) The Securities Intermediary has not entered into any other
agreement with the Trust or the Secured Party purporting to limit or condition
the obligation of the Securities Intermediary to comply with Entitlement Orders
as set forth in Section 2.03.
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ARTICLE FOUR
MISCELLANEOUS
4.01. Choice of Law. This Agreement and the Reserve Account shall be
governed by the laws of the State of New York, without reference to its conflict
of law provisions (other than Section 5-1401 of the General Obligations Law of
the State of New York). Regardless of any provision in any other agreement, for
purposes of the UCC, New York shall be deemed to be the Securities
Intermediary's location and the Reserve Account (as well as the Security
Entitlements related thereto) shall be governed by the laws of the State of New
York.
4.02. Conflict with Other Agreements. There are no other agreements
entered into between the Securities Intermediary in such capacity and the Trust
with respect to the Reserve Account. In the event of any conflict between this
Agreement (or any portion thereof) and any other agreement now existing or
hereafter entered into, the terms of this Agreement shall prevail.
4.03. Amendments. No amendment or modification of this Agreement or
waiver of any right hereunder shall be binding on any party hereto unless it is
in writing and is signed by all of the parties hereto.
4.04. Successors. The terms of this Agreement shall be binding upon,
and shall inure to the benefit of, the parties hereto and their respective
corporate successors.
4.05. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to, in the
case of (i) the Trust c/o Wilmington Trust Company, at Rodney Square North, 1100
N. Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882),
Attention: Corporate Trust Administration, with a copy to Nissan Motor
Acceptance Corporation, as Administrative Agent, at 990 West 190th Street,
Torrance, California 90502 (telecopier no. (310) 324-2542), Attention:
Treasurer, (ii) the Secured Party, at U.S. Bank National Association, Wrigley
Building, 400 North Michigan Avenue, 2nd Floor, Chicago IL 60611 (telecopier no.
(312) 836-6701), Attention: Nissan Auto Lease Trust 2004-A, and (iii) the
Securities Intermediary, at U.S. Bank National Association, 209 South LaSalle,
Suite 300, Chicago IL 60604 (telecopier no. (312) 325-8905), Attention: Nissan
Auto Lease Trust 2004-A, or as to any of such parties, at such other address as
shall be designated by such party in a written notice to the other parties.
4.06. Termination. The rights and powers granted herein to the
Secured Party have been granted in order to perfect its security interest in the
Reserve Account, are powers coupled with an interest and will neither be
affected by the bankruptcy of the Trust nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
with respect to the Reserve Account until the Secured Party shall have notified
the Securities Intermediary in writing that its security interests under the
Indenture has been terminated.
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4.07. Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing and delivering one or more
counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
NISSAN AUTO LEASE TRUST 2004-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ Joann A. Rozell
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Name: Joann A. Rozell
Title: Financial Services Officer
U.S. BANK NATIONAL
ASSOCIATION, as Indenture
Trustee and Secured Party
By: /s/ Patricia M. Child
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Name: Patricia M. Child
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Securities Intermediary
By: /s/ Patricia M. Child
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Name: Patricia M. Child
Title: Vice President
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