EXHIBIT 4.3
EXECUTION COPY
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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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NISSAN-INFINITI LT
AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
Dated as of August 26, 1998
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INTERPRETIVE PROVISIONS
Section 1.01. Definitions; Interpretive Provisions............................. 1
ARTICLE TWO
THE TRUST
Section 2.01. General.......................................................... 2
Section 2.02. Offices.......................................................... 2
Section 2.03. Purposes......................................................... 2
Section 2.04. Conveyance of Trust Assets....................................... 2
Section 2.05. Document Execution and Performance............................... 3
ARTICLE THREE
BENEFICIAL INTERESTS IN THE TRUST
Section 3.01. Allocation of Trust Assets to UTI and SUBIs; Sub-Trusts.......... 4
Section 3.02. SUBI Certificates................................................ 4
Section 3.03. UTI Certificates................................................. 5
Section 3.04. Transfer and Assignment of Certificates; Minimum Net Worth....... 6
Section 3.05. Registration and Transfer of Certificates; Validity.............. 7
Section 3.06. Beneficiaries; Action Upon Instruction........................... 7
Section 3.07. Filings.......................................................... 7
Section 3.08. Allocation of Expenses and Indemnification....................... 8
Section 3.09. Insurance Policies............................................... 9
ARTICLE FOUR
PAYMENTS; TRUST ACCOUNTS
Section 4.01. Payments from Trust Assets Only.................................. 10
Section 4.02. Trust Accounts................................................... 10
Section 4.03. Distribution of Funds............................................ 11
Section 4.04. Default in UTI Pledge............................................ 11
Section 4.05. SUBI Lease Accounts.............................................. 11
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ARTICLE FIVE
THE TRUSTEE
Section 5.01. Duties and Powers of Trustee..................................... 12
Section 5.02. Duty of Care..................................................... 13
Section 5.03. Certain Matters Affecting the Trustee............................ 14
Section 5.04. Trustee Not Liable for Certificates or Leases.................... 15
Section 5.05. Indemnification of Trustee and Trust Agents...................... 16
Section 5.06. Trustee's Right Not to Act....................................... 16
Section 5.07. Qualification of Trustee......................................... 17
Section 5.08. Resignation or Removal of Trustee................................ 17
Section 5.09. Successor Trustee................................................ 18
Section 5.10. Merger or Consolidation of Trustee............................... 18
Section 5.11. Co-Trustees, Separate Trustees, Nominees and Trust Agents........ 18
Section 5.12. Representations, Warranties and Covenants of Trustee............. 20
Section 5.13. Trustee's Fees and Expenses...................................... 21
Section 5.14. Trustee Stock.................................................... 22
Section 5.15. Limitation of Liability of Trustee............................... 23
ARTICLE SIX
THE SERVICER
Section 6.01. Duties and Powers of Servicer.................................... 24
Section 6.02. Liability of Servicer; Indemnities............................... 25
Section 6.03. Merger of Servicer; Appointment of Nominee....................... 26
Section 6.04. Limitation on Liability of Servicer and Others................... 26
Section 6.05. Servicer Not to Resign; Delegation of Duties..................... 26
Section 6.06. Servicing Compensation........................................... 27
Section 6.07. Powers of Attorney............................................... 27
Section 6.08. Protection of Title to Trust..................................... 27
ARTICLE SEVEN
TERMINATION AND DISSOLUTION
Section 7.01. Dissolution of the Trust......................................... 29
Section 7.02. Termination of Sub-Trusts........................................ 29
Section 7.03. Beneficiary or Special Purpose Affiliate Bankruptcy.............. 30
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ARTICLE EIGHT
MISCELLANEOUS
Section 8.01. Amendment........................................................ 31
Section 8.02. Governing Law.................................................... 31
Section 8.03. Notices.......................................................... 31
Section 8.04. Securitization Holders........................................... 32
Section 8.05. Severability of Provisions....................................... 32
Section 8.06. Counterparts..................................................... 32
Section 8.07. Successors and Assigns........................................... 32
Section 8.08. No Petition...................................................... 32
Section 8.09. Table of Contents and Headings................................... 33
Section 8.10. Tax Reporting and Characterization............................... 33
Section 8.11. Certificates Nonassessable and Fully Paid........................ 33
Section 8.12. Effect of Agreement; Delaware Co-Trustee Agreement............... 33
ARTICLES NINE AND TEN
[Reserved]
EXHIBITS
Exhibit A - Definitions ..................................................... A-1
Exhibit B - Form of Certificate of Trust..................................... B-1
Exhibit C - Form of UTI Certificate.......................................... C-1
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AMENDED AND RESTATED
TRUST AND SERVICING AGREEMENT
This Amended and Restated Trust and Servicing Agreement, dated as of
August 26, 1998, is among NILT Trust, a Delaware business trust, as initial
beneficiary (the "UTI Beneficiary"), Nissan Motor Acceptance Corporation, a
California corporation, as servicer (in such capacity, the "Servicer"), NILT,
Inc., a Delaware corporation, as trustee (in such capacity, the "Trustee"),
Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee
(in such capacity, 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
WHEREAS, Nissan-Infiniti LT is a Delaware business trust created
pursuant to (i) a trust agreement, dated as of July 7, 1998, among the UTI
Beneficiary, the Trustee and the Delaware Trustee (the "Original Trust
Agreement"), and (ii) a certificate of trust filed with the Secretary of State
of the State of Delaware on July 7, 1998; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety for the purpose of taking assignments and
conveyances of and holding in trust various assets described herein.
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 ONE
DEFINITIONS AND INTERPRETIVE PROVISIONS
Section 1.01. Definitions; Interpretive Provisions. For all purposes of
this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) capitalized terms shall have the meanings ascribed
thereto in Exhibit A, (ii) terms used in this Agreement include, as appropriate,
all genders and the plural as well as the singular, (iii) references to this
Agreement include all Exhibits hereto, (iv) references to words such as
"herein", "hereof" and the like shall refer to this Agreement as a whole and not
to any particular part, Article or Section herein, (v) references to an Article
or Section such as "Article One" or "Section 1.01" shall refer to the applicable
Article or Section of this Agreement, (vi) the term "include" and all variations
thereof shall mean "include without limitation", (vii) the term "or" shall
include "and/or", (viii) the term "proceeds" shall have the meaning ascribed to
such term in the UCC 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 Section 5.11, be deemed to refer to
the Trustee (or such co-trustee) on behalf of the Trust.
ARTICLE TWO
THE TRUST
Section 2.01. General. The Trust continued hereby shall be known as
"Nissan-Infiniti LT", in which name the Trustee may conduct the business of the
Trust. The Trustee may engage, in the name of the Trust or in its own name on
behalf of the Trust, in the activities of the Trust, make and execute contracts
and other instruments on behalf of the Trust and sue and be sued. The parties
hereto intend that the Trust be a business trust under the Delaware Act and that
this Agreement shall constitute the governing instrument of the Trust. The
Trustee shall have all rights, powers and duties set forth herein and in the
Delaware Act with respect to accomplishing the purposes of the Trust.
Section 2.02. Offices. The principal office of the Trust, and such
additional offices as the Trustee may establish, shall be located at such place
or places, inside or outside of the State of Delaware, as the Trustee may
designate from time to time by written notice to each Beneficiary, each Holder,
each Registered Pledgee and the Servicer. Initially, the principal office shall
be at the Trust Office.
Section 2.03. Purposes. The purposes of the Trust are: (i) at the
direction of the UTI Beneficiary, to take assignments and conveyances of, hold
in trust and release its ownership interest in, the Trust Assets as nominee
holder of legal title for the benefit of the Beneficiaries and the Holders, (ii)
enter into and perform its obligations under the Trust Documents, (iii) to
engage in any of the other activities described or authorized in this Agreement,
any Supplement or any amendment hereto or thereto and (iv) to engage in any and
all activities that are necessary or appropriate to accomplish the foregoing or
that are incidental thereto or connected therewith. The Trust shall not engage
in any activity other than the foregoing or other than as required or authorized
by applicable law or the Trust Documents.
Section 2.04. Conveyance of Trust Assets.
(a) The UTI Beneficiary shall from time to time direct Dealers
pursuant to the related Lease Agreements to assign to the Trust or the Trustee
on behalf of the Trust, in trust, Eligible Leases, Leased Vehicles and other
Trust Assets. In connection therewith, the Leased Vehicles shall be titled in
the name of the Trust or the Trustee on behalf of the Trust and the Trustee
shall accept such designation and, subject to the other terms of this Agreement
(including each relevant Supplement), shall permit the related Certificates of
Title to be issued in the name of the Trust or the Trustee on behalf of the
Trust. If so provided in an applicable Supplement, all or part of the Leased
Vehicles allocated to a Sub-Trust may be titled in the name of the Trust or the
Trustee on behalf of the Trust during a Titling Grace Period. Legal title to all
Trust Assets shall be vested in the Trust or the Trustee on behalf of the Trust
as a separate legal entity except to the extent otherwise specifically provided
herein or in any other Trust Document or where applicable state law requires any
Trust Asset to be vested otherwise, in which case the Trustee shall, at the
direction of the UTI Beneficiary or the Servicer, cause legal title to be held
as required thereby.
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(b) The Trustee hereby accepts and agrees to hold in trust all
Trust Assets conveyed to it hereunder, for the use and benefit of, and as
nominee holder of legal title for, the Beneficiaries and the Holders and their
respective successors and assigns as may be designated pursuant to the terms
hereof or as may otherwise succeed to the rights of a Beneficiary or Holder
hereunder.
Section 2.05. Document Execution and Performance. The Grantor and the
Beneficiaries hereby authorize and direct the Trustee, and the Trustee hereby
agrees, to: (i) at the request of the Servicer or the UTI Beneficiary, execute
and deliver all agreements, instruments or documents necessary or advisable to
accept the designation as nominee holder of legal title to Leases, Leased
Vehicles and other Trust Assets as described herein and cause the related
Certificates of Title to be issued in the name of the Trust or the Trustee on
behalf of the Trust; (ii) enter into and perform its obligations under the Trust
Documents; (iii) take action that is required or authorized to be taken by the
Trustee or the Trust pursuant to applicable law as specified in the Trust
Documents; (iv) exercise its rights and perform its duties as Trustee as
specified in the Trust Documents; (v) at the direction of the Related
Beneficiary and the Servicer (and, with respect to Trust Assets that are the
subject of a Securitized Financing, subject to any additional requirements
imposed by the related Securitized Financing Documents), (A) release, discharge,
sell, assign, transfer, pledge, convey or otherwise dispose of any right, title
or interest in and to any portion of the Related Trust Assets, (B) amend or
revoke the terms hereof with respect to all or any portion of the Related Trust
Assets and (C) enter into any and all agreements or instruments affecting all or
any portion of the Related Trust Assets or affecting any other provision hereof;
and (v) appoint the Servicer as the attorney-in-fact for the Trust as
contemplated hereby or by any Servicing Agreement and direct the Servicer to
perform such administrative duties on behalf of the Trust as are set forth
herein and therein.
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ARTICLE THREE
BENEFICIAL INTERESTS IN THE TRUST
Section 3.01. Allocation of Trust Assets to UTI and SUBIs; Sub-Trusts.
(a) Subject to Section 3.02, as directed in writing by the UTI
Beneficiary, from time to time, the Trustee shall establish one or more "special
units of beneficial interest" in the Trust (each, a "SUBI") and allocate or
cause to be allocated to each such SUBI on the books and records of the Trust
such Trust Assets (the "SUBI Assets") as shall be identified by the UTI
Beneficiary. Each SUBI shall be established pursuant to a SUBI Supplement and
shall have the name and initial Related Beneficiary designated by the UTI
Beneficiary. Each SUBI Supplement shall amend this Agreement only with respect
to the SUBI to which it relates. The Trustee shall hold the related SUBI Assets
for the benefit of the Holders from time to time of the related SUBI
Certificates. All Trust Assets that have not been allocated from time to time to
a SUBI (collectively, the "UTI Assets") shall be identified on the books and
records of the Trust as being allocated to the beneficial interest in the Trust
constituting the "undivided trust interest" (the "UTI"). The Trustee shall hold
the UTI Assets for the benefit of the Holders from time to time of the UTI
Certificates.
(b) The UTI and each SUBI and their Related Assets, shall each
constitute a separate series of the Trust pursuant to Section 3806(b)(2) of the
Delaware Act (each, a "Sub-Trust"). The Servicer shall maintain separate records
for each Sub-Trust, and the Related Trust Assets shall be held and accounted for
separately from Trust Assets allocated to any other Sub-Trust. Subject to the
right of the Trustee to allocate certain Liabilities, costs, charges and
reserves as may be provided in the Supplements, and in accordance with Section
3804(a) of the Delaware Act or to the extent otherwise permitted by applicable
law, all debts, Liabilities and obligations incurred, contracted for or
otherwise existing with respect to a Sub-Trust shall be enforceable against the
Related Trust Assets only, and not against Trust Assets allocated to any other
Sub-Trust and the Related Trust Assets of a Sub-Trust shall not be subject to
the debts, Liabilities or obligations of any other Sub-Trust. Every note, bond,
contract or other undertaking issued by or on behalf of a Sub-Trust (including
each related Certificate) shall include a recitation limiting the obligation
represented thereby to the related Sub-Trust and the Related Trust Assets. The
Certificate of Trust shall include notice of the limitation of liabilities of
each Sub-Trust in accordance with Section 3804(a) of the Delaware Act. Except as
otherwise provided for in this Agreement or in a Supplement, all payments made
on or in respect of the Trust Assets allocated to each Sub-Trust shall be paid
to or upon the order of the Holders of the Certificates related to such
Sub-Trust.
Section 3.02. SUBI Certificates.
(a) Upon allocation to a SUBI, the related SUBI Assets shall no
longer be UTI Assets unless and until specifically reallocated to the UTI from
the SUBI. Each SUBI shall constitute a beneficial interest solely in the related
SUBI Assets and shall be represented by one or more Certificates (each, a "SUBI
Certificate") issued pursuant to a SUBI Supplement. The Trustee shall deliver
each SUBI Certificate to or upon the order of the UTI Beneficiary. Each SUBI
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Certificate and the interest in the SUBI evidenced thereby shall constitute a
"certificated security" within the meaning of Section 8-102(15) of the UCC.
(b) Notwithstanding anything to the contrary contained in this
Section, if a UTI Pledge exists, the Trustee shall create a new SUBI and issue
to or upon the order of the UTI Beneficiary a new SUBI and one or more related
SUBI Certificates only (i) upon receipt of an Officer's Certificate of the UTI
Beneficiary, dated as of the date of issuance of the related SUBI Certificate,
to the effect that after giving effect to the creation of such SUBI, the
transfer to the Related Beneficiary (and, if applicable, a Special Purpose
Affiliate) of any SUBI Certificate in connection therewith and the application
by such Related Beneficiary (and, if applicable, a Special Purpose Affiliate) of
any net proceeds from any Securitized Financing involving such SUBI and SUBI
Certificate, no Event of Default under any Securitized Financing secured by a
UTI Pledge has occurred and is continuing, and (ii) provided that, as of the
date of issuance of such SUBI Certificate, the Trustee has not received a UTI
Pledge Default Notice.
(c) Each SUBI Certificate shall contain (i) an express waiver of
any Claim by the Holder thereof to any proceeds or assets of the Trustee and to
all Trust Assets other than those from time to time allocated to the related
SUBI as SUBI Assets and proceeds thereof, and (ii) an express subordination in
favor of the Holder of any Other SUBI Certificate or a UTI Certificate by the
Holder of such SUBI Certificate of any Claim to any Other SUBI Asset or UTI
Asset, respectively, that, notwithstanding such waiver, may be determined to
exist.
Section 3.03. UTI Certificates. The UTI shall constitute a beneficial
interest solely in the UTI Assets and shall initially be represented by one
Certificate (the "UTI Certificate") registered in the name of NILT Trust,
representing a 100% ownership interest in the UTI. The Trustee shall deliver to
or upon the order of the UTI Beneficiary its UTI Certificate. Notwithstanding
the foregoing and subject to Section 3.04(a), at the request of the UTI
Beneficiary (but only with the consent of the Registered Pledgee of any UTI
Pledge), the UTI may be represented by one or more additional Certificates that,
in the aggregate, represent the entire UTI. Any such additional Certificates
shall be issued pursuant to a UTI Supplement, which may specify any terms or
conditions relevant to the issuance thereof. Each UTI Certificate shall be
substantially in the form of Exhibit C hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required by this Agreement,
and may have such letters, numbers or other marks of identification and such
legends and endorsements consistent with this Agreement as may be directed by
the UTI Beneficiary. Each UTI Certificate and the interest in the UTI evidenced
thereby shall constitute a "certificated security" within the meaning of Section
8-102(15) of the UCC. Any portion of a UTI Certificate may be set forth on the
reverse thereof, in which case the following text shall be inserted on the face
thereof, in relative proximity to and prior to the signature of the Trustee
executing such UTI Certificate:
"Reference is hereby made to the further provisions of this
UTI Certificate set forth on the reverse hereof, which
provisions shall for all purposes have the same effect as if
set forth at this place".
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Each UTI Certificate shall be printed, lithographed, typewritten, mimeographed,
photocopied or otherwise produced or may be produced in any other manner
consistent with this Agreement as may be determined by the UTI Beneficiary.
Section 3.04. Transfer and Assignment of Certificates; Minimum Net
Worth.
(a) Except as provided in Section 7.03(b), neither the UTI nor any
UTI Certificate shall be transferred or assigned and, to the fullest extent
permitted by applicable law, any such purported transfer or assignment shall be
deemed null, void and of no effect under this Agreement. Notwithstanding the
foregoing, (i) the UTI or one or more UTI Certificates may be pledged in
connection with a Securitized Financing, and a security interest therein
granted, and may be transferred or assigned absolutely to or by the pledgee
thereof solely in connection with the exercise of remedies with respect to an
Event of Default under or with respect to such Securitized Financing; provided,
that any such pledgee must (A) give a non-petition covenant substantially
similar to that set forth in Section 8.08 and (B) execute an agreement in favor
of the Holders from time to time of any SUBI Certificates to release all Claims
to the related SUBI Assets and, in the event that such release is not given
effect, to subordinate fully all Claims such pledgee may be deemed to have
against such SUBI Assets and (ii) the UTI Beneficiary may transfer a 1%
ownership interest in the UTI to a Relevant Bankruptcy Entity, provided that
such Relevant Bankruptcy Entity shall be bound by all terms and conditions of
this agreement as a UTI Beneficiary.
(b) No SUBI or SUBI Certificate shall be transferred or assigned
except to the extent specified in this 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 this Agreement. Notwithstanding 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. Notwithstanding the
foregoing, 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 and (ii) execute an agreement in favor of each Holder from time to time of
a UTI Certificate and any Other SUBI Certificate to release all Claims to the
UTI Assets and the related Other SUBI Assets, respectively, and, in the event
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.
(c) The UTI Beneficiary shall at all times maintain a minimum net
worth (excluding the value of any UTI Certificates of which the UTI Beneficiary
is a Holder) equal to 10% of the net Capital Contributions made by the UTI
Beneficiary to the UTI. Each Related Beneficiary and related Special Purpose
Affiliate shall maintain such minimum collective net worth or interest in a SUBI
as may be required by the related SUBI Supplement. For the purposes of this
paragraph, all Trust Assets that are conveyed as, or acquired with the proceeds
of, Capital Contributions pursuant to Section 2.04(a) shall be deemed Capital
Contributions to the Sub-Trust, to which such Trust Assets are allocated as of
the date on which the related net worth calculation is made.
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Section 3.05. Registration and Transfer of Certificates; Validity.
(a) The Trustee shall keep or cause to be kept at the corporate
trust office of the Trustee (or the Trust Agent, if applicable) sufficient books
for the registration of transfer or pledge of Certificates (the "Certificate
Register"), which shall at all times be open to inspection by the Related
Beneficiaries and the related Holders. Subject to Sections 3.02(b) and 3.04 and
any other restrictions on transfer or pledge specified in a related Certificate
or related Supplement, upon presentation for such purpose, provided that the
requirements of Section 8-401 of the UCC have been met, the Trustee shall, under
such reasonable regulations as it may prescribe, register or cause to be
registered on the Certificate Register the transfer or pledge of such
Certificate, accompanied by a written instrument of transfer or pledge
conforming to the requirements specified in such Certificate or Supplement,
presented for registration of transfer or pledge by the Holder thereof in
conformity with such additional requirements as may be specified in such
Certificate or Supplement.
(b) A Certificate bearing the manual or facsimile signatures of
individuals who were, at the time such signatures were affixed, authorized to
sign on behalf of the Trust, shall be validly issued and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such Certificate or did not hold such offices at the date of such
Certificate.
Section 3.06. Beneficiaries; Action Upon Instruction.
(a) A Beneficiary may be a Holder of a Certificate relating to any
Sub-Trust and thereby acquire all rights accorded to a Holder under this
Agreement, any related Supplement or any other applicable Trust Document,
subject to such restrictions on voting or other rights as may be contained
therein.
(b) Subject to Article Five, each Beneficiary may direct the
Trustee to take action or refrain from taking action with respect to the Related
Trust Assets, except to the extent such action or inaction would conflict with
any other provision of this Agreement, the other Trust Documents or any related
Securitized Financing Documents. Such direction shall be accompanied by an
Officer's Certificate of such Beneficiary delivered to the Trustee certifying
that such direction is authorized by or not in conflict with this Agreement, the
other Trust Documents or any related Securitized Financing Documents. Such
action may include, among other things, delivering or distributing to or upon
the order of the Related Beneficiary all or any number of related Leases or
Leased Vehicles or other Related Trust Assets.
Section 3.07. Filings. The Grantor, the Beneficiaries and the Trustee
shall undertake all other and future actions and activities as may be deemed
reasonably necessary by the Servicer or a Related Beneficiary to perfect (or
evidence) and confirm the foregoing allocations of Trust Assets to the UTI and
any SUBIs, including filing or causing to be filed UCC financing statements and
executing and delivering any related filings, documents or writings hereunder or
under the other Trust Documents or any related Securitized Financing Documents.
Notwithstanding the foregoing, except as otherwise provided in a Supplement or
any related Securitized Financing Documents, in no event shall the Grantor, any
Beneficiary or the Trustee
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be required to take any action to perfect (i) any allocation of UTI Assets in
connection with a UTI Pledge or (ii) any security interest that may be deemed to
be held by any Person in any UTI Leased Vehicle. The Grantor and the
Beneficiaries each hereby revocably makes and appoints each of the Trustee and
the Servicer, and any of their respective officers, employees or agents, as its
true and lawful attorney-in-fact (which appointment is coupled with an interest
and is revocable but, in the case of the Servicer, only for so long as such
Servicer is acting in such capacity) with power to sign on behalf of the Grantor
or the Beneficiaries 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 3.08. Allocation of Expenses and Indemnification.
(a) Except as otherwise provided in a Supplement, the UTI
Beneficiary shall be liable for all Liabilities arising with respect to the UTI
Assets or the operation of the UTI; provided, however, that any Liability of the
Grantor with respect to any Securitized Financing shall be as set forth in the
related Securitized Financing Documents. To the extent that the Grantor shall
have paid or suffered any Liability with respect to the UTI Assets or the
operation of the UTI, and to the extent such Liability was not caused by the
willful misconduct or bad faith of the Grantor, the Grantor shall be
indemnified, defended and held harmless out of the UTI Assets in accordance with
Section 3.08(b) against any such Liability (including reasonable attorneys' and
other professionals' fees and expenses).
(b) Notwithstanding any other provision of this Agreement or any
other Trust Document, to the extent that a Liability shall be incurred or
suffered with respect to, or is attributable to, any Trust Assets (the "Affected
Trust Assets") allocated to one or more Sub-Trusts, each such Sub-Trust shall,
from and to the extent of monies from time to time on deposit in the related
Collection Accounts, bear in full such Liability pro rata in the ratio of the
aggregate Cash Value of the Affected Trust Assets in all such Sub-Trusts and, in
accordance with Section 3804(a) of the Delaware Act, all other Sub-Trusts shall
bear none of such Liability; provided, however, that to the extent any such
Liability is suffered with respect to all Trust Assets generally, each Sub-Trust
shall, from and to the extent of monies from time to time on deposit in the
related Collection Accounts, bear such Liability in proportion to the ratio of
the aggregate Cash Value of the Trust Assets in such Sub-Trust to the aggregate
Cash Value of all Trust Assets. In each case in which more than one Sub-Trust is
to bear any such Liability, the Trustee shall, at the direction of the Servicer,
transfer periodically from each related Collection Account to the UTI Collection
Account or such Trust Account as may be designated by a related SUBI Supplement,
as the case may be, the share of such Liability borne by each such Sub-Trust.
(c) If, notwithstanding the provisions of this Agreement and
Section 3804 of the Delaware Act, a third party Claim against the Trust Assets
is satisfied out of the Trust Assets in proportions other than as provided in
Section 3.08(b), then, notwithstanding anything to the contrary contained
herein, the Servicer shall promptly identify and reallocate (or cause the
Trustee to identify and reallocate) the remaining Trust Assets among each
Sub-Trust such that each Sub-Trust shall bear the expense of such Claim as
nearly as possible as if such Claim had been allocated as provided in Section
3.08(b).
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Section 3.09. Insurance Policies.
(a) Except as otherwise provided in a Supplement, the Related
Beneficiary (or Special Purpose Affiliate, if applicable) shall cause to be
maintained, and no Beneficiary or Special Purpose Affiliate shall, without the
prior written consent of the Servicer of the Related Trust Assets, which consent
may not be unreasonably withheld, cause the termination of one or more
contingent liability, excess liability or umbrella Insurance Policies providing
coverage against third party Claims that may be raised against the Trust, the
Trustee on behalf of the Trust or the Trust Agent with respect to each Leased
Vehicle, including automotive vehicle liability coverage in an amount at least
equal to $5 million per occurrence (which policy may be a blanket Insurance
Policy covering the Related Beneficiary or Special Purpose Affiliate, as
applicable, and one or more Affiliates).
(b) The Related Beneficiary or Special Purpose Affiliate, as
applicable, shall cause each Insurance Policy required to be maintained by it
pursuant to this Section to name the Trust or the Trustee on behalf of the Trust
as an additional insured or loss payee.
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ARTICLE FOUR
PAYMENTS; TRUST ACCOUNTS
Section 4.01. Payments from Trust Assets Only.
(a) Except as otherwise provided in this Agreement and the other
Trust Documents, all payments, if any, to be made by the Trustee other than
amounts (i) owing by the Trustee arising from its willful misfeasance, bad faith
or negligence or (ii) advanced by the Servicer, shall be made only from any then
available Trust Assets and only to the extent the Trustee shall have received
income or proceeds therefrom to make such payments in accordance with the terms
hereof.
(b) Except as otherwise provided in this Agreement and the other
Trust Documents, all amounts payable to a Holder shall be paid or caused to be
paid by the Trustee or the Servicer, as the case may be, to or for the account
of such Holder in immediately available funds by wire transfer.
Section 4.02. Trust Accounts.
(a) Except as otherwise provided in any Supplement or Servicing
Agreement, the Trustee shall establish and maintain with respect to the UTI and
each SUBI, a Collection Account, a Payahead Account and a Residual Value Surplus
Account. The Trustee shall establish and maintain with respect to the UTI or any
SUBI such other accounts as may be specified in a related Supplement or any
Servicing Agreement. Except as otherwise provided in a related Supplement or
Servicing Agreement, each of such Trust Accounts shall be a segregated trust
account established and maintained with the Trustee or the Trust Agent in the
name of the Trustee, provided that the Trustee or the Trust Agent, as the case
may be, maintains the Required Deposit Rating. Except as otherwise provided in
this Agreement, the other Trust Documents and any related Securitized Financing
Documents, none of the Grantor, the Servicer, the Beneficiaries, any Special
Purpose Affiliate or any Holder shall have any right to withdraw funds from any
Trust Account without the express written consent of the Trustee; provided,
however, that the Trustee, with the express written consent of the Related
Beneficiary or a Special Purpose Affiliate (if applicable), shall so consent as
to each Trust Account to the extent provided for in any Supplement, Servicing
Supplement or related Securitized Financing Documents. The Trustee may authorize
the Related Beneficiary, any Special Purpose Affiliate (if applicable) or any
Servicer to make deposits into and disbursements from any Trust Account in
accordance with the terms and provisions of this Agreement, the other Trust
Documents and any related Securitized Financing Documents. All amounts held in
the Trust Accounts shall be invested by the Trustee at the direction of the
Servicer in Permitted Investments until distributed or otherwise applied in
accordance with this Agreement, the other Trust Documents or any related
Securitized Financing Documents. Except as otherwise provided herein or in a
related Supplement or Servicing Agreement, all earnings from the investment of
monies in a Trust Account shall be deposited upon receipt into such Trust
Account and any Loss on such investment shall be charged to such Trust Account.
If the Trustee or the Trust Agent, as the case may be, at any time does not have
the Required Deposit Rating, the Servicer shall, with the assistance of the
Trustee
10
or the Trust Agent, as necessary, cause the related Trust Account to be moved to
a depository institution or trust company that (i) is organized under the laws
of the United States or any State and (ii) has the Required Deposit Rating.
(b) Each SUBI Account shall relate solely to the related SUBI and
each UTI Account shall relate solely to the UTI, and any funds therein shall not
be commingled with any other monies, except as otherwise provided for or
contemplated in this Agreement, the other Trust Documents or any related
Securitized Financing Documents. The Trustee shall account for and record
separately all amounts received by the Trustee relating to each Trust Account
from the Related Trust Assets and proceeds relating thereto.
Section 4.03. Distribution of Funds. Except as otherwise provided in
any Servicing Agreement, the Trustee, promptly upon receipt of an Officer's
Certificate of the Servicer as to the amount of Excess Funds, shall pay to, or
upon the order of, the Holder of the UTI Certificate, upon the request of the
Holder, any or all Excess Funds so requested.
Section 4.04. Default in UTI Pledge. In the event of a UTI Pledge
Default Notice, the Trustee shall (i) not create any new SUBI and (ii) direct
the Servicer to ensure that no additional Leases or Leased Vehicles are assigned
to the Trust (other than (A) as provided for in Section 4.05 or (B) those Leases
and Leased Vehicles the initial net investment value of which on the books of
the Trust does not exceed the sum of any capital contributions made to the
Grantor (and Capital Contributions made by the Grantor) specifically to fund the
acquisition by the Trust of such Leases and Leased Vehicles for allocation to
the UTI).
Section 4.05. SUBI Lease Accounts. In the event that for any reason
(i)(a) one or more different Servicers shall be engaged to service one or more
Sub-Trusts or (b) circumstances with respect to any Securitized Financing
secured by a UTI Pledge are such that (1) there has been a UTI Pledge Default
Notice or (2) the Trustee has given the Servicer notice that a Trust Asset
Transfer into one or more SUBIs would cause an Event of Default to occur in any
Securitized Financing secured by such UTI Pledge and (ii) at such time the
Trustee, acting pursuant to any SUBI Supplement and at the direction of the
Related Beneficiary, would otherwise be causing the Servicer to effect Trust
Asset Transfers from the UTI into one or more SUBIs: (A) the Trustee shall
establish and maintain in its name for each SUBI a separate "SUBI Lease
Account", each of which shall be a Trust Account and a SUBI Account; (B) to the
extent that the Trustee would, but for clause (i) above, cause the transfer of
funds from any SUBI Collection Account to the UTI Collection Account in
connection with any Trust Asset Transfer, the Trustee shall instead cause the
transfer of such funds from such SUBI Collection Account to the related SUBI
Lease Account; (C) the Trustee shall direct the Servicer then servicing the
related SUBI to acquire on behalf of the Trust, for the account of such SUBI
rather than for the UTI, Leases and Leased Vehicles; and (D) the Trustee shall
apply any such funds in any such SUBI Lease Account directly to reimburse the
Servicer then servicing such SUBI for any payments made by it to honor drafts of
Dealers in respect of such Leases and Leased Vehicles. In the event that Leases
and Leased Vehicles are being acquired by any Servicer(s) on behalf of the Trust
both with respect to the UTI and any SUBI simultaneously, the Trustee shall
first allocate all such Leases and Leased Vehicles to such SUBI until funds
available for such purpose in the related SUBI Lease Accounts are exhausted and
shall then allocate all remaining Leases and Leased Vehicles to the UTI.
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ARTICLE FIVE
THE TRUSTEE
Section 5.01. Duties and Powers of Trustee.
(a) The Trustee undertakes to perform such duties and engage in
such activities, and only such duties and activities, as are specified in this
Agreement, in any other Trust Document or as may be directed from time to time
by the Related Beneficiary in a manner not contrary to the terms hereof or
thereof from time to time, including in connection with (i) a Securitized
Financing; (ii) sales or pledges of Leases, Leased Vehicles and other Trust
Assets to the extent permitted by the terms of the related Securitized
Financings (provided that the Certificate of Title to any Leased Vehicle so sold
is amended to reflect the transfer of ownership thereof from the Trust or the
Trustee on behalf of the Trust, unless applicable law permits the transfer of
ownership of a vehicle without an amendment to such vehicle's Certificate of
Title); and (iii) activities ancillary thereto. The Trustee shall have such
powers as are necessary and appropriate to the conduct of its duties as set
forth in this Agreement and any Supplement.
(b) Except as otherwise provided in this Agreement and the other
Trust Documents, neither the Trust nor the Trustee shall: (i) issue interests in
or securities of the Trust, other than the UTI, the UTI Certificate, one or more
SUBIs and any SUBI Certificates; (ii) borrow money (except from NMAC or the UTI
Beneficiary or their Affiliates in connection with the acquisition of Leases and
Leased Vehicles); (iii) make loans; (iv) invest in or underwrite securities; (v)
offer securities in exchange for Trust Assets (other than Certificates); (vi)
repurchase or otherwise reacquire any Certificate (other than for purposes of
cancellation) except as permitted by or in connection with any Securitized
Financing; or (vii) grant any security interest in or Lien upon any Trust
Assets.
(c) At the direction of the Servicer or the Related Beneficiary,
the Trustee shall undertake the following ministerial activities: (i) apply for
and maintain (or cause to be applied for and maintained) all licenses, permits
and authorizations necessary or appropriate to carry on its duties as Trustee
hereunder in each jurisdiction that the Servicer or the Related Beneficiary, as
applicable, deems appropriate; (ii) file (or cause to be filed) in each
jurisdiction that the Servicer or Related Beneficiary, as applicable, deems
appropriate (A) notice reports and other required filings and (B) applications
for Certificates of Title so as to cause the Trust or the Trustee on behalf of
the Trust to be recorded as the holder of legal title of the Leased Vehicles
(and execute and deliver to each Dealer a power of attorney sufficient to allow
such Dealer to so record the Trust or the Trustee on behalf of the Trust as the
holder of legal title to such Leased Vehicles); (iii) to the extent that the
Related Beneficiary or the Servicer, as applicable, deems it necessary or useful
to have an Administrative Lien recorded on Certificates of Title, file (or cause
to be filed) in each jurisdiction that the Related Beneficiary or the Servicer,
as applicable, reasonably deems appropriate such applications as are necessary
or appropriate to record upon each Certificate of Title an Administrative Lien
in favor of an Administrative Lienholder; (iv) be the assignee of the
Dealer/initial lessor with respect to the Leases in the event that the Trust
cannot be such assignee; and (v) pay (or cause to be paid) all applicable Taxes
and fees properly due and owing in connection with the Trustee's activities
under this Agreement and the other Trust Documents to
12
which it is a party (other than Taxes in respect of income earned by the
Trustee). The Servicer or the Related Beneficiary, as applicable, shall pay, or
make an advance to the Trustee to pay, the costs and expenses of the foregoing,
subject to reimbursement to the extent provided in a related Servicing
Agreement.
(d) The Trustee shall establish accounts and receive, maintain,
invest and disburse funds in accordance with Article Four and the other Trust
Documents.
(e) The Trustee, upon receipt of each resolution, certificate,
statement, opinion, report, document, order or other instrument furnished to the
Trustee as shall be specifically required to be furnished pursuant to any
provision of the Trust Documents, shall examine such instrument to determine
whether it conforms to the requirements of the Trust Documents.
(f) Neither the Servicer nor any Beneficiary shall take, or direct
the Trustee to take, any action that (i) is inconsistent with the purposes of
the Trust as set forth in Section 2.03 or (ii) would result in the treatment of
the Trust for federal income tax purposes as an association (or a publicly
traded partnership) taxable as a corporation.
(g) The Trustee agrees to perform or cause to be performed the
obligations of the Trust, the Trustee and the Trustee on behalf of the Trust as
set forth in any Servicing Agreement or other Trust Document to which the Trust
is a party on the terms and subject to the conditions specified therein.
Section 5.02. Duty of Care.
(a) Except during the continuance of an Event of Default, the
Trustee need perform only those duties specifically set forth in this Agreement
and the other Trust Documents. During the continuance of an Event of Default,
the Trustee shall exercise such of the rights and powers vested in it by this
Agreement and the other Trust Documents and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such prudent person's own affairs. No provision
of this Agreement shall be construed to relieve the Trustee from Liability for
its own negligent action, its own negligent failure to act, its own bad faith or
its own willful misconduct; provided, however, that the Trustee shall not be
personally liable:
(i) for any action taken, suffered or omitted by it or any
error of judgment, in each case made in good faith by any Responsible
Officer of the Trustee or the Trust Agent customarily performing
functions similar to those performed by such officers or to whom any
corporate trust matter is referred because of such individual's
knowledge of or familiarity with the particular subject, unless it
shall be proved that the Trustee or Trust Agent was negligent or acted
with bad faith or willful misconduct in performing its duties in
accordance with the terms of this Agreement; and
(ii) with respect to any action taken, suffered or omitted to
be taken in good faith in accordance with the express direction of (A)
to the extent relating to the UTI, the UTI Beneficiary or any
Registered Pledgee of a UTI Pledge (to the extent that such
13
Registered Pledgee is authorized to give such directions) or (B) to the
extent relating to a SUBI, the Holder or Registered Pledgee of a
related SUBI Certificate (in each case only to the extent such
Registered Pledgee is authorized to give such direction) in connection
with a Securitized Financing relating to the exercise of any power
conferred upon the Trustee under this Agreement.
(b) Notwithstanding Section 5.02(a), the Trustee shall not be
required to expend or risk its own funds or otherwise incur Liability in the
performance of any of its duties under this Agreement or the other Trust
Documents, or in the exercise of any of its rights or powers, if there shall be
reasonable grounds for believing that the repayment of such funds or adequate
indemnity against such risk or Liability is not reasonably assured to it, and
none of the provisions contained herein or therein shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of a Servicer hereunder or under any Servicing Agreement
except during such time, if any, as the Trustee shall be successor to, and be
vested with the rights, duties, powers and privileges of, the Servicer in
accordance with this Agreement or any other Trust Document.
(c) Except as otherwise authorized by the Trust Documents, the
Trustee shall take no action as to which it has been notified by a Beneficiary
or a Special Purpose Affiliate, or has actual knowledge, that such action would
impair the beneficial interests in the Trust, impair the value of any Trust
Asset or adversely affect the rating of any Rated Securities.
(d) All information obtained by the Trustee regarding the other
parties hereto or any of their respective Affiliates, or regarding the
administration of the Trust, the Lessees, the Leased Vehicles or the Leases,
whether upon the exercise of its rights under this Agreement, any other Trust
Document or otherwise, shall be maintained by the Trustee in confidence and
shall not be disclosed to any Person other than to the Trust Agent, the Grantor,
the Beneficiaries, the Servicer or any Special Purpose Affiliate, unless such
disclosure is required by applicable law or regulation or pursuant to valid
legal process, or unless such information is already otherwise publicly
available.
Section 5.03. Certain Matters Affecting the Trustee. Except as
otherwise provided in this Agreement:
(a) The Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document reasonably believed by it to be genuine
and to have been signed or presented by the proper party or parties;
provided that it shall be obligated to examine each such item
specifically required to be furnished to it pursuant to the Trust
Documents to determine whether they conform to the requirements of this
Agreement or the other Trust Documents, as applicable. In particular,
whenever any Trust Document provides that the Trustee shall receive or
may rely upon the instructions or directions of a Beneficiary or a
Holder, any written instruction or direction purporting to bear the
signature of any authorized signatory of such Beneficiary or Holder
reasonably
14
believed by the Trustee to be genuine may be deemed by the Trustee to
have been signed or presented by the proper party.
(b) The Trustee may consult with counsel, and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such Opinion of Counsel.
(c) Subject to Section 5.02(a), the Trustee shall be
under no obligation to exercise any of the discretionary rights or
powers vested in it by this Agreement or by any other Trust Document,
or to institute, conduct or defend any litigation hereunder or in
relation hereto or thereto, at the request, order or direction of one
or more Beneficiaries or Holders pursuant to this Agreement or any
other Trust Document, unless the Person or Persons making such request
shall have offered the Trustee reasonable security or indemnity against
any Liability, including reasonable fees and expenses of counsel, that
may be incurred therein or thereby.
(d) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond or other paper or document, unless
requested in writing to do so by one or more Beneficiaries or Holders.
Notwithstanding the foregoing, if the payment within a reasonable time
to the Trustee of the Liability likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to it by the security afforded it by the terms of
this Agreement or any other Trust Document, the Trustee may require
reasonable indemnity against such Liability as a condition to so
proceeding. The reasonable Liability relating to each such examination
shall be paid by the Person(s) requesting such examination or, if paid
by the Trustee, shall be reimbursed as a Trust Expense.
(e) The Trustee may execute any of the trusts or powers
or perform any duties under this Agreement or under the other Trust
Documents either directly or by or through agents, attorneys, Trust
Agents or custodians and shall not be liable for the negligence or
willful misconduct of such agents, attorneys, Trust Agents or
custodians appointed with due care.
(f) The Trustee shall make a copy of this Agreement
available for examination by the Holders and the Beneficiaries during
normal business hours at the address specified in Section 8.03(iii), or
at such other address as shall be designated by the Trustee in a
written notice in accordance with Section 8.03(x).
Section 5.04. Trustee Not Liable for Certificates or Leases. The
Trustee shall not have any obligation to perform any of the duties of the
Grantor or the Servicer unless explicitly set forth in this Agreement or any
other Trust Document to which the Trustee is a party. The Trustee shall not at
any time have any responsibility or Liability for or with respect to: (i) the
legality, validity and enforceability of any security interest in any Trust
Asset; (ii) the perfection or priority of such a security interest or the
maintenance of any such perfection and priority; (iii) the
15
efficacy of the Trust or its ability to generate the payments to be distributed
to the Holders under the Trust Documents, including the existence, condition,
location and ownership of any Trust Asset; (iv) the existence and enforceability
of any Insurance Policy; (v) the existence and contents of any Lease or any
computer or other record thereof; (vi) the validity of the assignment of any
Trust Asset to the Trust or the Trustee on behalf of the Trust or of any
intervening assignment; (vii) the completeness, performance or enforcement of
any Lease; (viii) the compliance by the Grantor or the Servicer with any
covenant or the breach by the Grantor, any Beneficiary or the Servicer of any
warranty or representation in any Trust Document and the accuracy of any such
warranty or representation prior to the Trustee's receipt of notice or other
discovery of any noncompliance therewith or any breach thereof; (ix) any
investment of monies at the direction of the Servicer or any Loss resulting
therefrom; (x) the acts or omissions of any Dealer or other Person in connection
with the origination of any Lease; (xi) any action of the Servicer taken in the
name of the Trustee; or (xii) any action by the Trustee taken at the instruction
of the Servicer; provided, however, that the foregoing shall not relieve the
Trustee of its obligation to perform its duties under this Agreement or the
other Trust Documents to which the Trustee is a party. Except with respect to a
Claim based on the Trustee's willful misconduct, bad faith or negligence, (i) no
recourse shall be had against the institution serving as Trustee in its
individual capacity for any Claim based on any provision of this Agreement or
any such other Trust Document, a Certificate or any Trust Asset or assignment
thereof and (ii) the Trustee shall not have any personal obligation, Liability
or duty whatsoever to any Holder or any other Person with respect to any such
Claim, and any such Claim shall be asserted solely against the Trust Assets or
any indemnitor that shall furnish indemnity as provided for in this Agreement or
in the other Trust Documents. The Trustee shall not be accountable for the use
or application by a Holder or a Special Purpose Affiliate of any Certificate(s)
or the proceeds thereof, or for the use or application of any funds properly
paid to the Servicer pursuant to any Servicing Agreement.
Section 5.05. Indemnification of Trustee and Trust Agents. The Trustee
(and the Trust Agent, as applicable) shall be indemnified and held harmless out
of and to the extent of the Trust Assets with respect to any Loss incurred by
the Trustee arising out of or incurred in connection with (i) any Trust Assets
(including any Loss relating to Leases, Leased Vehicles, consumer fraud,
consumer leasing act violations, misrepresentation, deceptive and unfair trade
practices and any other Loss arising in connection with any Lease, personal
injury or property damage Claims arising with respect to any Leased Vehicle or
any Loss with respect to any Tax arising with respect to any Trust Asset) or
(ii) the acceptance or performance by the Trustee of the trusts and duties
contained in this Agreement or any other Trust Document, with any allocation of
such indemnification among the Trust Assets to be made as provided for in
Section 3.08 or in a Supplement; provided, however, that the Trustee shall not
be indemnified or held harmless out of the Trust Assets as to any such Loss (i)
for which the Servicer shall be liable pursuant to Section 6.02 or a
corresponding section of any Supplement (unless (A) the Servicer would be
entitled to reimbursement of such Loss from Trust Assets pursuant to a related
Servicing Agreement or (B) the Servicer shall not have paid such Loss upon the
final determination of its liability therefor), (ii) incurred by reason of the
Trustee's willful misconduct, bad faith or negligence or (iii) incurred by
reason of the Trustee's breach of Section 5.07(a)(i), Section 5.12 or its
representations and warranties pursuant to any Servicing Agreement. To the
extent that Trust Assets are employed to pay any Loss incurred by the Trustee
for which the Servicer is
16
determined to be liable pursuant to Section 6.02 or a corresponding section of
any Supplement, the Trust shall be subrogated to all rights of the Trustee to
recover such Loss from the Servicer.
Section 5.06. Trustee's Right Not to Act. Notwithstanding anything to
the contrary contained herein, the Trustee shall have the right to decline to
act in any particular manner otherwise provided for herein or in the other Trust
Documents if the Trustee, being advised in writing by counsel, determines in
good faith that such action may not lawfully be taken or would subject it to
personal Liability or be unduly prejudicial to the rights of any Holder; and
provided further, that nothing in this Agreement shall impair the right of the
Trustee to take any action deemed proper by it that is not inconsistent with
such otherwise required acts.
Section 5.07. Qualification of Trustee.
(a) Except as otherwise provided in this Agreement, the Trustee
shall at all times be (i) a corporation organized under the laws of the United
States or any State (which corporation shall not be a Beneficiary or any
Affiliate thereof), (ii) qualified to do business in the States requested in
writing by the Servicer and (iii) otherwise acceptable to each Rating Agency.
(b) In the event the Trustee complies with Section 5.07(a) but has
its principal place of business outside of the State of Delaware, then there
shall at all times be a co-trustee appointed to act as the Delaware Trustee
pursuant to Section 3807 of the Delaware Act. The Delaware Trustee shall serve
as such for the sole purpose of satisfying the requirement of Section 3807 of
the Delaware Act that the Trust have at least one trustee with a principal place
of business in Delaware. It is understood and agreed by the parties hereto and
the Holders that the Delaware Trustee shall have none of the duties or
Liabilities of the Trustee. The duties of the Delaware Trustee shall be limited
to (i) accepting legal process served on the Trust in the State of Delaware and
(ii) the execution of any certificates required to be filed with the Delaware
Secretary of State which the Delaware Trustee is required to execute under
Section 3811 of the Delaware Act. To the extent that, at law or in equity, the
Delaware Trustee has duties (including fiduciary duties) or Liabilities relating
thereto to the Trust or the Holders, it is hereby understood and agreed by the
parties hereto and the Holders that such duties and Liabilities are replaced by
the duties and Liabilities of the Delaware Trustee expressly set forth in this
Agreement.
Section 5.08. Resignation or Removal of Trustee.
(a) The Trustee may not at any time resign without the express
written consent of the UTI Beneficiary, which consent shall not be unreasonably
withheld.
(b) The UTI Beneficiary may remove the Trustee (i) if (A) at any
time the Trustee shall cease to be qualified in accordance with Section 5.07,
(B) any representation or warranty made by the Trustee pursuant to Section 5.12
shall prove to have been untrue in any material respect when made, but the
Trustee shall fail to resign after written request therefor by the UTI
Beneficiary, (C) at any time the Trustee shall be legally unable to act, or
shall be adjudged bankrupt or insolvent, (D) a receiver of the Trustee or of its
property shall be appointed or (E) any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation or (ii) at its discretion, subject
to
17
Section 5.14(b). Upon the removal of the Trustee, the UTI Beneficiary shall
promptly appoint a successor Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor Trustee, together with payment of all fees and expenses
owed to the outgoing Trustee.
(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Article shall not become effective until
acceptance of appointment by the successor Trustee.
Section 5.09. Successor Trustee. Any successor Trustee appointed as
provided in Section 5.08 shall execute, acknowledge and deliver to the Servicer,
the predecessor Trustee, and each Beneficiary an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
such predecessor Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement and the other Trust Documents to which the Trustee is a party, with
like effect as if originally named as Trustee. The predecessor Trustee shall
deliver to the successor Trustee all documents held by it under this Agreement
and the other Trust Documents, and the predecessor Trustee and the other parties
to the Trust Documents shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations. No successor Trustee shall accept appointment as provided in this
Section unless, at the time of such acceptance, such successor Trustee shall be
eligible under Section 5.07. Upon acceptance of appointment by a successor
Trustee as provided in this Section, the successor Trustee shall mail notice of
its appointment under this Agreement to each Notice Party. The UTI Beneficiary
shall mail notice of the successor of such Trustee under this Agreement to each
related Holder. If the UTI Beneficiary fails to mail such notice within ten days
after acceptance of appointment by the successor Trustee, such successor Trustee
shall cause such notice to be mailed at the expense of UTI Beneficiary.
Section 5.10. Merger or Consolidation of Trustee. The Trustee shall not
merge or consolidate with, or sell all or any substantial part of its assets to,
any other entity or Person without the express written consent of the UTI
Beneficiary. Any such entity (i) into which the Trustee may be merged or
consolidated, (ii) which may result from any merger, conversion or consolidation
to which the Trustee shall be a party or (iii) which may succeed to the
corporate trust business of the Trustee, and in each case which executes an
agreement of assumption to perform every obligation of the Trustee under this
Agreement, shall be the successor of the Trustee hereunder, provided such entity
shall be eligible pursuant to Section 5.07, without the execution or filing of
any instrument or any further act on the part of any of the parties hereto other
than the written consent of the UTI Beneficiary. The Trustee shall give notice
to each Rating Agency prior to effecting any merger, conversion, consolidation
or other transaction described in this Section.
Section 5.11. Co-Trustees, Separate Trustees, Nominees and Trust
Agents.
(a) Notwithstanding any other provision of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any Trust Assets may at
18
the time be located or within which such Trust Assets are to be acquired, the
UTI Beneficiary and the Trustee, acting jointly, shall have the power to execute
and deliver all instruments to appoint one or more Persons to act as co-trustee,
jointly with the Trustee, or as a separate trustee or nominee holder of legal
title, of all or any part of such Trust Assets, and to vest in such Person, in
such capacity and for the benefit of the Related Beneficiary, the Holders and
their permitted assigns, such title to such Trust Assets, or any part thereof,
and, subject to the other provisions of this Section, such rights, powers,
duties, obligations, rights and trusts as the UTI Beneficiary and the Trustee
may consider necessary or desirable. No such co-trustee, separate trustee or
nominee holder of legal title shall be required to meet the terms of eligibility
as a successor Trustee pursuant to Section 5.09, except that no such co-trustee,
separate trustee or nominee holder of legal title under this Agreement may be a
Beneficiary or any Affiliate thereof.
(b) Each co-trustee, separate trustee and nominee holder of legal
title shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred upon and exercised or
performed by the Trustee and such co-trustee, separate trustee or
nominee holder of legal title jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed (whether as Trustee under this Agreement or as
successor to the Servicer under this Agreement or any Servicing
Agreement), the Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Assets or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such co-trustee, separate trustee or nominee holder
of legal title, but solely at the direction of the Trustee;
(ii) no trustee or nominee holder of legal title hereunder
shall be personally liable by reason of any act or omission of any
other trustee or nominee holder of legal title hereunder; and
(iii) the UTI Beneficiary and the Trustee, acting jointly, may
at any time accept the resignation of or remove any co-trustee,
separate trustee or nominee holder of legal title.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each co-trustee, separate trustee and
nominee holder of legal title, as effectively as if given to each of them. Every
instrument appointing any co-trustee, separate trustee or nominee holder of
legal title shall refer to this Agreement and the conditions of this Section.
Each co-trustee, separate trustee and nominee holder of legal title, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all provisions of this
Agreement, specifically including every provision relating to the conduct of,
affecting the Liability of or affording protection to, the Trustee. Each such
instrument shall be filed with the Trustee and a copy thereof given to the
Servicer and each Related Beneficiary.
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Any co-trustee, separate trustee or nominee holder of legal title may
at any time, and shall, at the request of the Trustee, appoint the Trustee, the
Trust Agent or the Servicer its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any co-trustee,
separate trustee or nominee holder of legal title shall die, become incapable of
acting, resign or be removed, then all of its estates, properties, rights,
remedies and trusts relating to this Agreement and the Trust Assets shall vest
in and be exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee. Notwithstanding anything to the
contrary in this Agreement, the appointment of any co-trustee, separate trustee
or nominee holder of legal title shall not relieve the Trustee of its
obligations and duties under this Agreement.
(d) The Trustee may enter from time to time into one or more Trust
Agency Agreements with a Trust Agent that is by experience and expertise
qualified to act in a trustee capacity and otherwise acceptable to the UTI
Beneficiary. The Trustee shall provide prompt notice of the appointment of each
Trust Agent (other than the initial Trust Agent) to each Notice Party. Except as
otherwise provided herein or in any related Trust Agency Agreement, the Trust
Agent shall be responsible for all duties and obligations of the Trustee
hereunder and under each other Trust Document to which the Trustee is a party,
and the Trustee hereby delegates to the Trust Agent all power and authority
delegable by the Trustee hereunder and thereunder in order better to be able to
carry out its duties as Trust Agent. Each Trust Agency Agreement shall specify
the duties, powers, Liabilities, obligations and compensation of the Trust Agent
to carry out on behalf of the Trustee all of its obligations as Trustee arising
under this Agreement or the other Trust Documents to which the Trustee is a
party and shall contain a non-petition covenant substantially identical to that
set forth in Section 8.08; provided, however, that nothing contained in any
Trust Agency Agreement shall excuse, limit or otherwise affect any power, duty,
obligation, Liability or compensation otherwise applicable to the Trustee
hereunder. Notwithstanding the foregoing or the provisions of any Trust Agency
Agreement, the Trustee shall replace any Trust Agent if (i) in the judgment of
the Related Beneficiary, the compensation or level of service of such Trust
Agent shall no longer be reasonably competitive with those of any alternative
agent reasonably proposed by the Related Beneficiary, (ii) the Trust Agent has
materially breached its obligations under the related Trust Agency Agreement and
the UTI Beneficiary or any Holder have given written notice to the Trustee and
the Trust Agent of such breach and the Trust Agent has not cured such breach in
all material respects within 30 Business Days thereafter or (iii) any Rating
Agency shall require the replacement of such Trust Agent. The Trustee hereby
engages U.S. Bank as the initial Trust Agent, the UTI Beneficiary hereby
consents to such appointment and U.S. Bank hereby accepts such engagement, with
all provisions of this Section relating to Trust Agents, together with Section
8.08, constituting a Trust Agency Agreement between U.S. Bank and the Trustee,
subject to any amendment or supplement thereto between such parties not
inconsistent herewith. So long as the Trustee is a Subsidiary of the Trust
Agent, the Trustee shall pay the Trust Agent reasonable compensation for its
services and shall provide such reimbursement of expenses as are separately
agreed to by the Trustee and the Trust Agent.
The Trust Agent shall be entitled to all of the benefits, protections,
indemnities and rights of reliance set forth in this Agreement with regard to
the Trustee. The Trust Agent may resign
20
hereunder upon giving 30 days' prior written notice to each Notice Party.
Notwithstanding the foregoing, unless otherwise agreed to by the Trustee and the
UTI Beneficiary, such resignation shall be effective only upon the appointment
of a successor Trust Agent in accordance with the terms hereof.
Section 5.12. Representations, Warranties and Covenants of Trustee. The
Trustee hereby makes the following representations, warranties and covenants on
which the other parties hereto, their respective permitted assignees and
pledgees, each Holder (and beneficial owner of any portion of the related
Certificate in connection with a Securitized Financing) and each Beneficiary may
rely:
(i) The Trustee is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware
and is qualified to do business as a foreign corporation and is in good
standing in each State identified in an Officer's Certificate of the
Servicer delivered on the Effective Date. The Trustee shall promptly
take or cause to be taken all such actions and execute and file or
cause to be executed and filed all such instruments and documents, the
cost of which shall be a Trust Expense, as may reasonably be required
in order for the Trustee to qualify to do business and be in good
standing in each other State identified in writing from time to time by
a Beneficiary or the Servicer.
(ii) The Trustee has full power, authority and right to
execute, deliver and, assuming that the filings set forth on an
Officer's Certificate of the Servicer delivered on the Effective Date
are sufficient to allow the Trustee to act as a trustee with respect to
the Trust Assets, perform this Agreement in all material respects and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement.
(iii) This Agreement has been duly executed and delivered by
the Trustee, and is a legal, valid and binding instrument enforceable
against the Trustee in accordance with its terms.
(iv) Neither the execution and delivery of this Agreement or
the other Trust Documents to which the Trustee is a party, the
consummation of the transactions herein or therein contemplated, nor
compliance with the provisions hereof or thereof, will conflict with or
result in a breach of, or constitute a default (with notice or passage
of time or both) under any provision of any judgment, decree or order
binding upon the Trustee or the certificate of incorporation or bylaws
of the Trustee or any provision of any material indenture, contract,
agreement or other instrument to which the Trustee is a party or by
which it is bound.
(v) The Trustee has not engaged, is not currently engaged and
will not engage during the term of this Agreement in any activity other
than serving as Trustee and in such ancillary activities as are
necessary and proper in order to act as Trustee pursuant to this
Agreement and the other Trust Documents.
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Section 5.13. Trustee's Fees and Expenses. Except as otherwise provided
in the other Trust Documents, the Servicer shall, subject to reimbursement to
the extent provided in a related Servicing Agreement (i) pay the Trustee, the
Delaware Trustee and any other co-trustee reasonable compensation as shall be
agreed upon from time to time by the Trustee, the Delaware Trustee or any other
co-trustee, as the case may be, and the Servicer (and which shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by the Trustee, the Delaware Trustee or any
other co-trustee, as the case may be, in the execution of the Trust and in the
exercise and performance of any of the powers and duties under this Agreement
and the other Trust Documents to which it is a party and (ii) reimburse the
Trustee, the Delaware Trustee and any other co-trustee for all reasonable
expenses (including reasonable attorneys' fees) for the Trustee's, the Delaware
Trustee's or any other co-trustee's costs of qualification, periodic maintenance
of corporate franchises and qualifications (excluding Taxes payable in respect
of income earned by the Trustee, the Delaware Trustee or any other co-trustee),
annual board of directors' meetings and all necessary corporate filings.
Section 5.14. Trustee Stock. U.S. Bank hereby makes the following
representations, warranties and covenants on which the other parties hereto,
their respective permitted pledgees and assigns and each Holder (and beneficial
owner of any portion of the related Certificate in connection with a Securitized
Financing) and Beneficiary may rely:
(i) All of the Trustee Stock is owned by U.S. Bank, free and
clear of any Lien or other restriction, agreement or commitment of any
kind (other than as provided for in this Agreement) that would in any
way restrict its ability freely to transfer, convey and assign the
Trustee Stock. All such Trustee Stock currently outstanding is (and any
Trustee Stock that may be issued in the future will be) validly issued,
fully paid and nonassessable and has not been (and will not be) issued
in violation of any preemptive, first refusal or other subscription
rights of any Person. There are no outstanding options, warrants,
conversion rights, subscription rights, preemptive rights, exchange
rights or other rights, agreements or commitments of any kind
obligating U.S. Bank to sell any Trustee Stock or to issue any
additional Trustee Stock to any Person. No additional Trustee Stock may
be issued without the express written consent of the UTI Beneficiary.
(ii) For so long as U.S. Bank is acting as a Trust Agent
pursuant to this Agreement or any Trust Agency Agreement, but subject
to any applicable legal or regulatory requirements, it shall retain
ownership of all of the Trustee Stock. If at any time (and for any
reason, including U.S. Bank's resignation or termination as Trust Agent
or the dissolution of the Trust) U.S. Bank either is no longer acting
as a Trust Agent or is no longer able, due to legal or regulatory
changes, to own the Trustee Stock or the Trustee would have to be
removed pursuant to Section 5.08(b) as a result of its being owned by
U.S. Bank, U.S. Bank shall (A) notify the UTI Beneficiary of such event
and (B) sell to the designee of the UTI Beneficiary (which shall not be
a Beneficiary or an Affiliate thereof), at the option of the UTI
Beneficiary, without recourse except with respect to the
representations, warranties and covenants contained herein, all of the
Trustee Stock for the sum of $10 plus all Liquid Trustee Assets. Such
designee shall have 120 days from the date of receipt of such notice in
which to exercise such option and to consummate such acquisition,
during which time U.S. Bank shall not offer for sale or sell any
Trustee
22
Stock to any other Person. If such designee does not consummate such
acquisition within such period, U.S. Bank may offer for sale or sell to
any Person any or all of the Trustee Stock or may dissolve the Trustee;
provided, however, that if, upon or in connection with U.S. Bank no
longer being a Trust Agent, a successor Trust Agent shall be appointed
by the Trustee, U.S. Bank shall next grant to such successor Trust
Agent an option for it or its designee to buy the Trustee Stock without
recourse except with respect to the representations, warranties and
covenants contained herein, for the sum specified above. Such successor
Trust Agent or its designee shall have 120 days from the date of
receipt of such offer in which to exercise such option and consummate
such acquisition, during which time no Trustee Stock may be offered for
sale or sold to any Person other than such successor Trust Agent or its
designee. Upon any timely exercise of the foregoing option to acquire
the Trustee Stock, U.S. Bank shall promptly tender all Trustee Stock to
such buyer at a time and place determined by the buyer, duly endorsed
in blank or with duly endorsed stock powers attached, against payment
of the purchase price. U.S. Bank shall pay any transfer or similar
taxes arising from a transfer of the Trustee Stock as contemplated
herein; provided, however, that the UTI Beneficiary shall pay such
amounts if the Trustee is removed pursuant to Section 5.08(b)(ii).
Section 5.15. Limitation of Liability of Trustee.
(a) Notwithstanding anything contained herein to the contrary, in
no event shall NILT, Inc., in its individual capacity, or any Trust Agent
appointed hereunder have any Liability for the representations, warranties,
covenants, agreements or other obligations of the Trust hereunder (other than
any certificate of authentication), as to all of which recourse shall be had
solely to the Trust Assets.
(b) For all purposes of this Agreement, in the performance of any
duties or obligations of the Trust hereunder, the Trustee and the Trust Agent
shall be subject to, and entitled to the benefits of, the terms and provisions
of Article Five.
(c) Except as otherwise indicated by context, any reference herein
to actions taken or amounts received in trust by the Trustee shall be deemed to
mean the Trustee, acting on behalf of the Trust and all Beneficiaries.
(d) The Trustee hereby acknowledges and agrees that NMAC owns all
rights to the name NILT, Inc.
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ARTICLE SIX
THE SERVICER
Section 6.01. Duties and Powers of Servicer. The Servicer is hereby
appointed and authorized to act as attorney-in-fact for the Trust, and in such
capacity shall manage, service, administer, dispose of and make collections on
the Trust Assets with reasonable care, using that degree of skill and attention
that it exercises with respect to comparable assets that it services for itself
or others. The Trustee shall enter into any and all agreements as a Beneficiary
may, with the consent of the Servicer, direct in order to add, delete or amend
any or all of the obligations of the Servicer hereunder in respect of all or any
portion of the Related Trust Assets. The Servicer may retain subservicers or
agents to assist the Servicer in performing its servicing functions; provided,
however, that any delegation of duties to any subservicer or agent shall not
relieve the Servicer of any of its obligations hereunder. The Servicer shall
follow its customary standards, policies and procedures, as the same may change
from time to time, and, unless otherwise indicated herein or in any Servicing
Agreement, shall have full power and authority, acting alone, to take any action
in connection with such managing, servicing, administering, disposing of and
collecting that it may deem necessary or desirable in the interest of the Trust.
Without limiting the generality of the foregoing, the Servicer is hereby
authorized and empowered by the Beneficiaries and the Trust (i) to execute and
deliver, on behalf of the Trust, any and all instruments, certificates or other
documents necessary or advisable to record and maintain title to the Leased
Vehicles in the name of the Trust or the Trustee on behalf of the Trust and to
release interests of the Trust, the Trustee and the Beneficiaries in any Leased
Vehicle in connection with the sale or other disposition of such Leased Vehicle
as contemplated by this Agreement and the other Trust Documents, (ii) to give
all directions permitted to be given by the Servicer pursuant to this Agreement
and (iii) to apply for and maintain the licenses, permits and authorizations and
make the filings described in Section 5.01(c). The Servicer also shall be
responsible for creating, maintaining and amending the Schedule of Leases and
Leased Vehicles. The Servicer shall deliver to the Trustee (i) with respect to
the UTI, upon request, and (ii) with respect to any SUBI, as specified in the
related Supplement, a revised Schedule of Leases and Leased Vehicles. The
Servicer is hereby authorized, in its own name, in the name of the Trust or in
the name of the Trustee on behalf of the Trust, to commence, defend against or
otherwise participate in a Proceeding relating to or involving the protection or
enforcement of the interests of the Trust, the Trustee on behalf of the Trust, a
Beneficiary or a Holder in any Lease, Leased Vehicle or other Trust Asset. If
the Servicer shall commence, defend against or otherwise participate in a
Proceeding in its own name, then the Trust, the Trustee on behalf of the Trust,
such Holder or such Beneficiary shall thereupon be deemed to have automatically
assigned its interest in (including legal title to) each related Lease, Leased
Vehicle or other Trust Asset, as applicable, to the Servicer to the extent
necessary for purposes of such Proceeding. The Servicer is authorized and
empowered by the Trust to execute and deliver in the Servicer's name any
notices, demands, claims, complaints, responses, affidavits or other documents
or instruments in connection with any such Proceeding. The Trustee shall furnish
the Servicer with any powers of attorney and other documents and take any other
steps the Servicer may deem necessary or appropriate to enable it to carry out
its duties under this Agreement and the other Trust Documents. If in any
Proceeding it shall be held that the Servicer may not enforce the rights of the
Trust, the Trustee
24
on behalf of the Trust, a Holder or a Beneficiary in any Lease, Leased Vehicle
or other Trust Asset on the grounds that it is not the real party in interest or
a holder entitled to enforce such Lease or other relevant document or
instrument, then the Trustee, on behalf of the Trust, shall, at the direction of
the Servicer, take steps to enforce the interest of the Trust, the Trustee on
behalf of the Trust, a Holder or a Beneficiary in such Lease, Leased Vehicle or
other Trust Asset, including bringing suit in its own name or in the name of the
Related Beneficiary or related Holder. The Servicer shall advance the costs or
expenses of any such action to the Trustee, subject to reimbursement to the
extent provided in any related Servicing Agreement.
Section 6.02. Liability of Servicer; Indemnities.
(a) The Servicer shall be liable in accordance with this Agreement
and the other Trust Documents only to the extent of the obligations specifically
undertaken by the Servicer and shall have no other obligations or Liabilities
hereunder or thereunder. Such obligations shall include, with respect to this
Agreement, the obligation to indemnify, defend and hold harmless the following
parties; provided, that the Trustee and the Trust Agent shall not receive
payments hereunder to the extent they have been otherwise reimbursed for such
amounts:
(i) the Trust, the Trustee and the Trust Agent from and
against (A) any and all Loss arising out of or resulting from the use
or operation of any Leased Vehicle by the Servicer or any Affiliate
thereof and (B) any Taxes that may at any time be asserted against the
Trust, the Trustee or the Trust Agent with respect to the transactions
contemplated by this Agreement (other than Taxes based on income
payable to such Persons hereunder), including any sales, gross
receipts, general corporation, tangible personal property, privilege or
license Taxes and costs and expenses in defending against the same;
(ii) the Trust, the Trustee, the Trust Agent, the
Beneficiaries and the Holders from and against any and all Loss to the
extent such Loss arose out of, or was imposed upon, such Persons by
reason of (A) the performance by the Servicer of its duties hereunder
or (B) the disregard by the Servicer of its obligations and duties in
each case hereunder or under any Servicing Agreement; and
(iii) the Trustee and the Trust Agent, from and against any
Loss arising out of or incurred in connection with their acceptance or
performance of the trusts and duties contained in this Agreement or any
other Trust Document, except to the extent that any such Loss (A) is
due to the willful misfeasance, bad faith or negligence (except for
good faith errors in judgment) of the Trustee or the Trust Agent, (B)
arises from the material breach by the Trustee or the Trust Agent of
any of its obligations, representations or warranties set forth in this
Agreement or in any Trust Agency Agreement or (C) arises out of or is
incurred in connection with the performance by the Trustee of the
duties of successor Servicer hereunder or under any Servicing
Agreement.
(b) If the Servicer has made any indemnity payments pursuant to
this Section and the recipient thereafter collects any such amounts from others,
the recipient shall promptly repay such amounts collected to the Servicer,
without interest. Indemnification under this Section shall
25
survive (i) any transaction described in Section 6.03 with respect to any Trust
Assets as of the date of such transaction and any act, occurrence or transaction
related thereto, whether arising before or after the date of such transaction
and (ii) the termination of this Agreement and the other Trust Documents.
Section 6.03. Merger of Servicer; Appointment of Nominee. Any
corporation (i) into which the Servicer may be merged or consolidated, (ii)
resulting from any merger, conversion or consolidation to which the Servicer
shall be a party, (iii) succeeding to the business of the Servicer or (iv) more
than 50% of the voting stock of which is owned directly or indirectly by NMAC or
any Affiliate thereof and which is otherwise servicing motor vehicle leases or
retail installment sales contracts, which corporation in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Servicer, shall be the successor to the Servicer without the execution or filing
of any paper or any further act on the part of any of the parties to this
Agreement.
Section 6.04. Limitation on Liability of Servicer and Others.
(a) Except as otherwise provided in this Agreement and the other
Trust Documents, neither the Servicer nor any of its directors, officers,
employees or agents shall have any Liability to the Trust, the Trustee, the
Trust Agent, any Beneficiary, any Holder, any Registered Pledgee or any Special
Purpose Affiliate, for any action taken or for refraining from the taking of any
action pursuant hereto or thereto, or for any error in judgment. Notwithstanding
the foregoing, this provision shall not protect the Servicer or any such Person
against any Liability that would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence (except errors in judgment) in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder or thereunder. The Servicer and its directors, officers,
employees and agents may rely in good faith on the advice of counsel or on any
document of any kind prima facie properly executed and submitted by any Person
respecting any matters arising hereunder or thereunder, and in so doing, shall
not be acting in bad faith or with negligence, willful misfeasance or reckless
disregard.
(b) Except as otherwise provided in this Agreement and the other
Trust Documents, the Servicer shall be under no obligation to appear in,
prosecute or defend any Proceeding that is not incidental to its duties to
service the Trust Assets in accordance herewith or therewith and that in its
opinion may involve it in any Liability. Notwithstanding the foregoing, the
Servicer may undertake any reasonable action that it may deem necessary or
desirable in respect of this Agreement and the other Trust Documents and the
rights and duties of the parties hereto or thereto and the interests of any
Beneficiary hereunder or thereunder. In such event, any Loss resulting from such
action shall be (i) a Trust Expense of the related Sub-Trust and (ii) a
Reimbursable Expense to the extent paid by the Servicer, and in each case shall
be allocated to the Related Trust Assets.
Section 6.05. Servicer Not to Resign; Delegation of Duties.
(a) Subject to Section 6.03, the Servicer shall not resign from
the obligations and duties imposed on it by this Agreement as Servicer except
upon a determination that the
26
performance of its duties under this Agreement is no longer permissible under
applicable law. Any such determination permitting the resignation of the
Servicer shall be evidenced by an Opinion of Counsel to such effect delivered to
the Trustee. No such resignation shall become effective until a successor
servicer shall have assumed the responsibilities and obligations of the
Servicer. Neither the Trustee nor the Trust Agent shall be obligated to serve as
successor servicer under this Agreement except upon its prior written consent.
(b) Except as otherwise provided in this Agreement and the other
Trust Documents, the Servicer may not assign any of its rights, powers, duties
or obligations under this Agreement. Notwithstanding the foregoing, the Servicer
may make such an assignment in connection with a consolidation, merger,
conversion or other event made in compliance with Section 6.03.
(c) Except as otherwise provided in this Agreement and the other
Trust Documents, the duties and obligations of the Servicer under this Agreement
shall continue until this Agreement has been terminated as provided in Section
7.01, and shall survive the exercise by the Trustee of any right or remedy
under, or the enforcement by the Trustee of any provision of, this Agreement or
any other Trust Document.
Section 6.06. Servicing Compensation. The Servicer shall receive such
fees and reimbursement for expenses with respect to the Trust Assets relating to
the UTI or a SUBI, as applicable, as may be agreed to from time to time between
the Servicer and the Related Beneficiary.
Section 6.07. Powers of Attorney. The Servicer is hereby designated by
each of the Trust and the Trustee as its true and lawful attorney-in-fact, with
full power and authority to perform any and all acts related to managing,
servicing, administering, disposing of and collecting all or any part of the
Trust Assets and any and all acts otherwise required or permitted to be
performed by the Servicer under this Agreement and the other Trust Documents.
The Servicer is hereby authorized and empowered to execute and deliver, on
behalf and in the name of the Trustee or the Trust, any and all instruments,
certificates or other documents relating thereto. The Servicer shall also have
the right, power and authority to designate in writing other Persons as true and
lawful attorneys-in-fact for and on behalf of the Trustee and the Trust to do
anything that the Servicer has the power to do under this Agreement and the
other Trust Documents. Without limiting the generality of the foregoing, the
Servicer or any such Person designated by the Servicer is hereby authorized and
empowered by the Trustee and the Trust to (i) apply for and maintain the
licenses, permits and authorizations and make the filings described in Section
5.01(c) and (ii) execute and deliver, on behalf of the Trustee and the Trust,
any applications for or duplicates of Certificates of Title in the name of the
Trust or the Trustee on behalf of the Trust, any applications for registration
of Leased Vehicles or license plates, any applications for transfers of
Certificates of Title or transfers of registration for Leased Vehicles or
license plates and any other instruments, certificates or other documents which
the Servicer deems necessary or advisable to record, hold or release title to or
registration of Leased Vehicles in the manner provided for herein.
27
Section 6.08. Protection of Title to Trust.
(a) The Servicer shall maintain accounts and records as to legal
title to the Trust Assets (including records identifying the Sub-Trust to which
each Trust Asset is allocated) and any other assets held by the Trust accurately
and in sufficient detail to permit the reader thereof to know at any time the
status of such legal title.
(b) The Servicer shall maintain its computer systems such that its
master computer records (including any back-up archives) that refer to any
Leased Vehicle indicate clearly that legal title to such Leased Vehicle is held
by the Trust or the Trustee on behalf of the Trust as nominee holder of legal
title for the Related Beneficiary or the related Holders. Any reference to such
legal title shall be deleted from or modified on such computer systems when, and
only when, such legal title is no longer so held.
(c) If at any time the Servicer or a Related Beneficiary proposes
to sell, grant a security interest in or otherwise transfer any interest in any
Leased Vehicle to any prospective purchaser, lender or other transferee, all
computer tapes, records or print-outs (including any restored from back-up
archives) delivered by the Trustee to such prospective purchaser, lender or
other transferee that refer in any manner whatsoever to such Leased Vehicle
shall indicate clearly that legal title to such Leased Vehicle is held in the
name of the Trust or the Trustee on behalf of the Trust for the benefit of the
Related Beneficiary or the related Holder.
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ARTICLE SEVEN
TERMINATION AND DISSOLUTION
Section 7.01. Dissolution of the Trust.
(a) Subject to Section 7.03(b), the Trust shall continue in full
force and effect until the payment to each Holder or its designee of all amounts
required to be paid to it pursuant to this Agreement and the related
Certificates and the expiration or termination of all Securitized Financings by
their respective terms.
(b) Upon the occurrence of the events described in Section
7.01(a), after satisfaction of all obligations to creditors, if any, of the
Trust, the Trustee shall (i) distribute the Trust Assets to the Related
Beneficiary or its designee in accordance with this Agreement and the
Supplements; (ii) together with the Related Beneficiary, cause the Certificates
of Title to any Leased Vehicles so distributed to such Related Beneficiary to be
issued in the name of, or at the direction of, such Related Beneficiary and such
Related Beneficiary shall pay or cause to be paid all applicable titling and
registration fees and taxes; (iii) take such action as may be requested by a
Related Beneficiary in connection with the transfer of Related Trust Assets to
such Related Beneficiary or its designee, including the execution and delivery
of assignment forms appearing on the Certificates of Title or any other
instruments of transfer or assignment with respect to the related Leased
Vehicles; and (iv) file or cause to be filed a certificate of cancellation with
the Delaware Secretary of State pursuant to Section 3810(d) of the Delaware Act.
Upon the filing described in clause (iv), this Agreement shall terminate and the
Trustee shall be discharged from all duties and obligations hereunder.
Section 7.02. Termination of Sub-Trusts.
(a) Subject to Section 7.03, this Agreement shall terminate with
respect to the Trust Assets allocated to a Sub-Trust, and not, except as
otherwise provided in a Supplement, as to any Trust Assets allocated to any
other Sub-Trust, upon the written direction by the Related Beneficiary to the
Trustee to revoke and terminate such Sub-Trust, following the satisfaction of
all obligations to creditors, if any, of such Sub-Trust, the payment to each
related Holder or its designee of all amounts required to be paid to it pursuant
to this Agreement and such Holder's Certificate, and the expiration or
termination of all related Securitized Financings by their respective terms.
Following such direction with respect to a Sub-Trust and the delivery of the
related Certificates to the Trustee for cancellation, the Trustee shall
distribute to the Related Beneficiary or its designee all Related Trust Assets
and shall cause the Certificates of Title to the related Leased Vehicles to be
issued in the name of, or at the direction of, such Related Beneficiary (which,
in the case of a SUBI, may include reallocation of the related SUBI Assets to
the UTI). The Related Beneficiary to which such Trust Assets are distributed
shall pay or cause to be paid all applicable titling and registration fees and
taxes.
(b) Upon the revocation and termination of a Sub-Trust, the
related Certificates shall be returned to the Trustee for cancellation. Such
revocation and termination shall not effect a
29
revocation or termination of any other Sub-Trust in existence at the time of
such revocation and termination.
Section 7.03. Beneficiary or Special Purpose Affiliate Bankruptcy.
(a) The bankruptcy, insolvency, dissolution or similar occurrence
of a Beneficiary or a Special Purpose Affiliate shall not, except as otherwise
provided in Section 7.03(b) or a related Supplement, (i) cause the dissolution
of the Trust or the termination of this Agreement with respect to the Trust or
any Sub-Trust, (ii) entitle the legal representatives of such Beneficiary or
Special Purpose Affiliate to claim an accounting or to take any action in any
court for a partition or winding up of the Trust or any Trust Assets other than
the Related Trust Assets or (iii) otherwise affect the rights, obligations or
Liabilities of the parties hereto.
(b) Upon the bankruptcy, insolvency, dissolution or similar
occurrence of the UTI Beneficiary, the UTI Sub-Trust shall dissolve with respect
to the UTI and the UTI Assets, but not with respect to any SUBI Sub-Trust or
SUBI Assets; provided however, that if pursuant to Section 3.04, the UTI
Beneficiary transfers a 1% ownership interest in the UTI to a Relevant
Bankruptcy Entity, the bankruptcy, insolvency, dissolution or similar occurrence
of the UTI Beneficiary shall not, except as otherwise provided in a related
Supplement, (i) cause the dissolution of the Trust or the termination of this
Agreement with respect to the Trust or any Sub-Trust, (ii) entitle the legal
representatives of such Beneficiary or Special Purpose Affiliate to claim an
accounting or to take any action in any court for a partition or winding up of
the Trust or any Trust Assets other than the Related Trust Assets or (iii)
otherwise affect the rights, obligations or Liabilities of the parties hereto.
Provided the UTI Beneficiary transfers a 1% ownership in the UTI to a Relevant
Bankruptcy Entity, upon the bankruptcy, insolvency, dissolution or similar
occurrence of such Relevant Bankruptcy Entity, the UTI Sub-Trust shall dissolve
with respect to the UTI and the UTI Assets, but not with respect to any SUBI
Sub-Trust or SUBI Assets, unless, within 90 days of such bankruptcy, insolvency,
dissolution or similar occurrence, (i) the UTI Beneficiary, in writing, (A)
agrees that the UTI shall not be dissolved and (B) designates an additional UTI
Beneficiary to serve as the Relevant Bankruptcy Entity, transfers to such
additional UTI Beneficiary a 1% ownership interest in the UTI and presents the
UTI Certificate evidencing its ownership interest in the UTI to the Trustee for
registration of transfer to such additional UTI Beneficiary of a 1% ownership
interest in the UTI, (ii) the Trustee registers such transfer and issues new UTI
Certificates to such Relevant Bankruptcy Entity evidencing their respective
interests and (iii) the additional Relevant Bankruptcy Entity delivers to the
Servicer, the Trustee and the UTI Beneficiary an agreement in form and substance
satisfactory to such Persons. In such event, the UTI Sub-Trust shall not
terminate with respect to the UTI or any UTI Assets.
30
ARTICLE EIGHT
MISCELLANEOUS
Section 8.01. Amendment. This Agreement, including the terms of the UTI
Certificates, may be amended or supplemented by written agreement among the UTI
Beneficiary, the Servicer, the Trustee, the Delaware Trustee (if such amendment
affects its rights or obligations hereunder as Delaware Trustee) and the Trust
Agent (if such amendment affects its rights or obligations hereunder as Trust
Agent), with the consent of each Beneficiary and Holder affected thereby;
provided, however, that the consent of a Holder shall not be required if (i) (A)
the purpose of such amendment or supplement is to cure any ambiguity, to correct
or supplement any provision of this Agreement that may be inconsistent with any
other provision of this Agreement, to add any provision that provides additional
rights to Holders or to ensure that none of the Trust or one or more
Beneficiaries is classified as an association (or a publicly traded partnership)
taxable as a corporation for federal income tax purposes and (B) such amendment
or supplement will not, in the good faith judgment of the UTI Beneficiary and
the Servicer, materially and adversely affect the interest of any Holder or (ii)
an Opinion of Counsel is delivered to the Trustee to the effect that such
amendment or supplement will not materially and adversely affect the interest of
any Holder. After the first Securitized Financing, any such amendment shall
require such additional approvals, if any, as may be required under each related
Securitized Financing.
Section 8.02. Governing Law. This Agreement shall be created under and
governed by and construed under the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflicts of laws.
Section 8.03. Notices. All demands, notices and communications under
this Agreement or any Supplement shall be in writing and shall be delivered or
mailed by registered or certified first class United States mail, postage
prepaid, return receipt requested, hand delivery, prepaid courier service or
telecopier, and addressed in each case as follows: (i) if to NILT Trust, as UTI
Beneficiary, at 990 West 190th Street, Suite 500, Torrance, California 90502
(telecopier no. (310) 324-2542), Attention: Treasurer, Nissan Motor Acceptance
Corporation, as Grantor of NILT Trust; (ii) if to the Servicer, at 990 West
190th Street, Torrance, California 90502 (telecopier no. (310) 719-6750),
Attention: Treasurer; (iii) if to the Trustee, in care of the Trust Agent at 111
East Wacker Drive, Suite 3000, Chicago, Illinois 60601 (telecopier no. (312)
228-9401), Attention: NILT, Inc.; (iv) if to the Delaware Trustee, at Wilmington
Trust Company, Rodney Square North, 1100 N. Market Street, Wilmington, Delaware
19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust
Administration; (v) if to the Trust Agent, at 111 East Wacker Drive, Suite 3000,
Chicago, Illinois 60601 (telecopier no. (312) 228-9401), Attention: NILT, Inc.;
(vi) if to a Holder, at its address set forth in the related Certificate
Register; (vii) if to a Beneficiary (to the extent not duplicative of any of
clauses (i) through (vii) above, at its address set forth in the related SUBI
Supplement; (viii) if to Standard & Poor's and Standard & Poor's is a Rating
Agency, to 25 Broadway, New York, New York 10004, Attention: Asset Backed
Surveillance Group (telecopier no. (212) 208-0030); (ix) if to Moody's and
Moody's is a Rating Agency, to 99 Church Street, New York, New York 10007,
Attention: ABS Monitoring Department (telecopier no. (212) 553-7820); or (x)
with respect to any of the foregoing Persons,
31
at such other address or telecopier number as shall be designated by such Person
in a written notice to the other parties hereto. Delivery shall occur only upon
actual receipt or rejected tender of such communication by an officer of the
recipient entitled to receive such notices located at the address or telecopier
number of such recipient for notices hereunder. A copy of all notices to the
Trustee shall be delivered to the Trust Agent.
Section 8.04. Securitization Holders. To the extent that any entity
becomes a Securitization Holder, (i) such Securitization Holder shall exercise
its rights as a Holder hereunder only as directed or authorized pursuant to the
related Securitized Financing Documents and (ii) except with respect to a Claim
based on such Securitization Holder's willful misconduct, bad faith or
negligence, or to the extent otherwise expressly provided in such Securitized
Financing Documents, no recourse shall be had against the institution serving as
such Securitization Holder.
Section 8.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement (including any
amendment or Supplement hereto) shall be for any reason whatsoever held invalid
or unenforceable, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions and terms
of this Agreement, as the same may be amended or supplemented, and shall in no
way affect the validity or enforceability of the other covenants, agreements,
provisions or terms of this Agreement or any amendment or Supplement hereto or
of any Certificate or the rights of any Holder.
Section 8.06. Counterparts. This Agreement 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 8.07. Successors and Assigns. All covenants and agreements
contained in this Agreement shall be binding upon, and inure to the benefit of,
the parties hereto, the Holders, the Beneficiaries and their respective
permitted successors and assigns. Any request, notice, direction, consent,
waiver or other instrument or action by a Holder or Beneficiary shall bind the
successors and assigns of such Holder or Beneficiary, as applicable.
Notwithstanding the foregoing, the Trustee may not assign or delegate any of its
rights or obligations under this Agreement, except as provided herein, without
the prior written consent of the UTI Beneficiary.
Section 8.08. No Petition. Each of the parties hereto covenants and
agrees that prior to the date which 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 Trust, any Special Purpose
Affiliate, any Beneficiary, any general partner of a Beneficiary or of a Special
Purpose Affiliate that is a partnership, any member of a Beneficiary or Special
Purpose Affiliate (or any of their respective general partners) that is a
limited liability company or any trustee of a Beneficiary or Special Purpose
Affiliate that is a trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding or other Proceeding under any federal or
state bankruptcy or similar law.
32
This Section shall survive the complete or partial termination of this
Agreement, the resignation or removal of the Trustee and the complete or partial
resignation or removal of the Servicer.
Section 8.09. 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 8.10. Tax Reporting and Characterization.
(a) Consistent with the treatment of the Trust and each Sub-Trust
for tax purposes as a mere nominee holder of legal title, unless otherwise
required by appropriate taxing authorities, neither the Trust nor any Sub-Trust
shall file or cause to be filed any annual or other tax returns. In the event
the Trust, any Sub-Trust or the Trustee on behalf of the Trust is required to
file any tax returns, the Servicer shall prepare or cause to be prepared such
returns and shall deliver such returns to the Trustee for signature, unless
applicable law requires one or more Beneficiaries to sign such returns, in which
case the Servicer shall deliver such returns to such Beneficiaries for
signature.
(b) The parties hereto (i) intend that neither the Trust nor any
Sub-Trust shall constitute a separate entity for federal income or state income
or franchise tax purposes and that each Beneficiary shall be treated for such
tax purposes as if it owned the Related Trust Assets directly, rather than
through the Trust and (ii) agree to treat the Trust, each Sub-Trust and the
Related Trust Assets accordingly for federal income and state income and
franchise tax purposes. However, in the event the Trust or any Sub-Trust is
characterized as a separate entity for federal income or state income or
franchise tax purposes, the parties hereto intend that the Trust or such
Sub-Trust, as the case may be, shall qualify as a partnership for such tax
purposes that has elected out of partnership status under Section 761 of the
Code (and analogous state law tax provisions).
Section 8.11. Certificates Nonassessable and Fully Paid. Except as
otherwise provided in a Supplement, the interests represented by the
Certificates shall be nonassessable for any Loss of the Trust or for any reason
whatsoever and, upon authentication thereof by the Trustee, each Certificate
shall be deemed fully paid.
Section 8.12. Effect of Agreement; Delaware Co-Trustee Agreement. As of
the Effective Date, the Original Trust Agreement is amended and restated in its
entirety. The UTI Beneficiary, the Servicer, the Trustee and the Delaware
Trustee hereby agree that commencing on the Effective Date, all references in
the Delaware Co-Trustee Agreement to "Trust Agreement" shall be deemed to refer
to this Agreement and that the Delaware Co-Trustee Agreement, as so amended,
shall continue in full force and effect provided that this Agreement shall not
affect the Initial Beneficiary's and Servicer's obligations of indemnity until
such time as this Agreement is again amended and restated.
33
ARTICLES NINE AND TEN
[Reserved]
34
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 5.03(e), 5.11(d), 5.14, 5.15, 8.01, 8.03 and 8.08, the Trust Agent,
have caused this Agreement 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 TRUST 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/ Yasuro Osawa
------------------------
Name: Yasuro Osawa
Title: Vice President, Finance
NILT, INC.,
as Trustee
By: /s/ Patricia M. Child
------------------------
Name: Patricia M. Child
Title: Vice President
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ James P. Lawler
------------------------
Name: James P. Lawler
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
By: /s/ Patricia M. Child
------------------------
Name: Patricia M. Child
Title: Vice President
EXHIBIT A
DEFINITIONS
"Adjusted Capitalized Cost" means, with respect to any Lease and the
related Leased Vehicle, the Gross Capitalized Cost less the Capitalized Cost
Reduction, which amount is used in calculating the Monthly Payment.
"Adjusted Lease Balance" means, with respect to any Lease and the
related Leased Vehicle as of any date, the Adjusted Capitalized Cost minus the
aggregate principal actually paid by or on behalf of the related Lessee on or
prior to such date; provided that the Lease Principal component of Payments
Ahead received but not yet applied shall not be considered to have been paid by
such Lessee.
"Administrative Charge" means, with respect to any Lease, any payment
(whether or not part of the fixed monthly payment) payable to the related Lessor
representing a late payment fee, an Extension Fee, an Excess Mileage Fee, an
allocation to the related Lessee of insurance premiums, sales, personal property
or excise taxes or any other similar charge.
"Adjusted Residual Value" means, with respect to any Extended Lease,
the value of the related Leased Vehicle at the Maturity Date as established or
assigned by the Servicer at the time of such extension.
"Administrative Lien" means a first lien upon any Certificate of Title
deemed necessary and useful by the Servicer or by the UTI Beneficiary and the
Servicer solely to provide for delivery of title documentation to the Trustee or
its designee.
"Administrative Lienholder" means each Person (other than a
Beneficiary), identified as such from time to time to the Trustee by the
Servicer, in whose name an Administrative Lien will be recorded.
"Affected Trust Assets" has the meaning set forth in Section 3.08(b).
"Affiliate" of any Person means any other Person that (i) directly or
indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer, director,
member or partner of such Person. For purposes of this definition, a Person
shall be deemed to be "controlled by" another Person if such other Person
possesses, directly or indirectly, the power (i) to vote 5% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors, members or managing partners of such Person or (ii) to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Agreement" means this Amended and Restated Trust and Servicing
Agreement, as amended, restated or supplemented from time to time.
A-1
"Assignment Agreement" means an agreement between NMAC and the Trust
pursuant to which NMAC assigns to the Trust its rights under each Dealer
Agreement described therein.
"Beneficiaries" means, collectively, the Related Beneficiaries of all
Sub-Trusts, and "Beneficiary" means any of such Beneficiaries.
"Book Value" means, with respect to any Lease and the related Leased
Vehicle as of any date, the Adjusted Capitalized Cost minus the aggregate Lease
Principal scheduled to have been received on or prior to such date.
"Booked Residual Value" means, with respect to any Lease, the value of
the related Leased Vehicle at the Maturity Date as established or assigned by
the Servicer at the time of origination of such Lease in accordance with its
customary practices for the purpose of determining the Monthly Payment.
"Business Day" means any day other than a Saturday, Sunday or day on
which commercial banking institutions in Torrance, California, Wilmington,
Delaware, Chicago, Illinois, New York, New York or the city in which the Trust
Office is located are authorized or obligated by law, executive order or
government decree to be closed.
"Capital Contribution" means any capital contribution to the Trust made
by a Beneficiary, the Servicer or any of their respective Affiliates.
"Capitalized Cost Reduction" means, with respect to any Lease and the
related Leased Vehicle, the total amount of any rebate, cash payment, net
trade-in allowance and non-cash credits that reduced the Gross Capitalized Cost
at the time of origination of such Lease.
"Cash Value" means, with respect to any or all Trust Assets, as the
context may require, on any date, the sum of all cash and the aggregate Adjusted
Lease Balance of the Leases comprising such Trust Assets on such date.
"Certificate" means a UTI Certificate or a SUBI Certificate, as the
context may require.
"Certificate of Title" means a certificate of title or other evidence
of ownership of a Leased Vehicle issued by the Registrar of Titles in the
jurisdiction in which such Leased Vehicle is registered.
"Certificate of Trust" means the certificate of trust for the Trust,
substantially in the form of Exhibit B, filed for the Trust with the office of
the Delaware Secretary of State pursuant to Section 3810 of the Delaware Act, as
supplemented, amended or restated from time to time.
"Certificate Register" has the meaning set forth in Section 3.05.
"Claims" means all liabilities, claims and expenses (including
reasonable legal and other professional fees and expenses).
"Code" means the Internal Revenue Code of 1986, as amended.
A-2
"Collection Account" means, with respect to any Sub-Trust, the account
created, designated and maintained as such pursuant to Section 4.02(a).
"Collection Period" means with respect to (i) the UTI, each calendar
month, beginning with the month prior to the month in which the Effective Date
occurs, and (ii) a SUBI, "Collection Period" as defined in the related SUBI
Servicing Supplement.
"Co-Trustee Agreement" means any instrument or agreement pursuant to
which the Trustee and the UTI Beneficiary appoint a co-trustee pursuant to
Section 5.11.
"Control" has the meaning set forth in Section 8-106 of the UCC.
"Cutoff Date" shall have the meaning set forth in the related
Supplement.
"Dealer" means a motor vehicle dealer that is a party to a Dealer
Agreement.
"Dealer Agreement" means a lease plan agreement between a Dealer and
NMAC, which sets forth the respective rights and obligations of the parties with
respect to the origination of lease contracts by the Dealer.
"Delaware Act" means the Delaware Business Trust Act, specifically, the
provisions of 12 Del. C. Section 3801 et seq., as amended.
"Delaware Co-Trustee Agreement" means the Co-Trustee Agreement, dated
as of July 7, 1998, among the Grantor and UTI Beneficiary, the Servicer, the
Trustee and the Delaware Trustee, as amended pursuant to Section 8.12.
"Delaware Secretary of State" means the Secretary of State of the State
of Delaware.
"Delaware Trustee" means the trustee meeting the requirements of
Section 3807 of the Delaware Act and designated in the Certificate of Trust, and
its successors, in such capacity as set forth in the Certificate of Trust, and
shall initially be Wilmington Trust Company.
"Effective Date" means August 26, 1998.
"Eligible Lease" means a Lease, except as otherwise set forth in the
related Supplement or Servicing Agreement, having the characteristics set forth
in a letter from the UTI Beneficiary or a Related Beneficiary to the Trustee, as
amended from time to time.
"Entitlement Holder" has the meaning set forth in Section 8-102(a)(7)
of the UCC.
"Event of Default" means any event of default (after the expiration of
any applicable notice or cure periods), as such term (or similar term) is
defined in any Servicing Agreement or any Securitized Financing Document.
"Excess Funds" means, as of any date of determination, the amount of
monies on deposit in all UTI Accounts or otherwise held by the Trustee in
respect of the UTI in excess of the amount required to (i) meet all existing
Liabilities of the Trust to be paid by or on behalf of the
A-3
Holder of the UTI Certificate or the UTI Beneficiary (after taking into account
any transfers from one or more SUBI Accounts to the UTI Collection Account to be
made on such date) and (ii) be retained as reserves for reasonably anticipated
Liabilities of the Trust (after taking into account all transfers to be made
from any such SUBI Accounts to the UTI Collection Account in respect of such
SUBI's proportionate share of such anticipated Liability).
"Excess Mileage Fee" means, with respect to any Lease or Leased
Vehicle, any applicable charge for excess mileage or excess wear and use.
"Extended Lease" means any Lease that has had its original Maturity
Date extended by the Servicer.
"Extension Fee" means, with respect to any Extended Lease, any payment
required to be made by the Lessee in connection with the extension of such
Lease.
"FDIC" means the Federal Deposit Insurance Corporation, and its
successors.
"FNMA" means the Federal National Mortgage Association, and its
successors.
"Grantor" means NILT Trust, in its capacity as a grantor of the Trust.
"Gross Capitalized Cost" means, with respect to any Lease and the
related Leased Vehicle, the amount agreed to by the Lessee at the time of
origination of such Lease as the value of the Leased Vehicle and any items that
are capitalized during the term of such Lease, including acquisition fees,
taxes, insurance, service agreements and any outstanding balance from a prior
motor vehicle loan or lease contract.
"Holder" means, with respect to any Certificate, the Person listed in
the Certificate Register as the registered owner thereof; provided, that a
Registered Pledgee shall be entitled to exercise any or all of the rights or
powers of a Holder of a Certificate hereunder, including receiving
distributions, providing notices or giving consents, to the extent such
entitlement is set forth in such Holder's registration of pledge or the
documents relating to such pledge.
"Insurance Costs" means, with respect to any Insurance Policy, the
premiums therefor, any deductibles, the cost of self-insurance and any
coinsurance payments.
"Insurance Policy" means any insurance policy (including any
self-insurance), including any residual value insurance policy, guaranteed
automobile protection policy, comprehensive, collision, public liability,
physical damage, personal liability, contingent and excess liability, accident,
health, credit, life or unemployment insurance or any other form of insurance or
self-insurance, to the extent that any such policy or self-insurance covers or
applies to the Trust, any Sub-Trust, any Lease, any Leased Vehicle or the
ability of a Lessee to make required payments with respect to the related Lease
or the related Leased Vehicle.
"Insurance Proceeds" means, with respect to any Leased Vehicle, Lease
or Lessee, recoveries paid to the Servicer, the Trust or the Trustee on behalf
of the Trust under an Insurance Policy and any rights thereunder or proceeds
therefrom (including any self-insurance).
A-4
"Issuer" shall have the meaning set forth in the related Securitized
Financing Documents.
"Lease" means any lease contract for a Leased Vehicle assigned to the
Trust or to the Trustee on behalf of the Trust.
"Lease Agreement" means with respect to any Lease, the related Dealer
Agreement or Assignment Agreement.
"Lease Charge" means, with respect to any Lease and any month, the
portion of the Monthly Payment equal to the product of (i) the Book Value as of
the end of the immediately preceding month (or, in the case of the first month,
as of the date of origination of such Lease) and (ii) 1/12 of the related Lease
Factor.
"Lease Factor" means, with respect to any Lease, a per annum yield
determined by the Servicer at the time of origination of such Lease in
accordance with its customary practices.
"Lease Principal" means, with respect to any Lease, that portion of the
Monthly Payment that is not a Lease Charge.
"Leased Vehicle" means a new or used Nissan or Infiniti automobile,
sport utility vehicle, minivan or light-duty truck, together with all
accessories, parts and additions constituting a part thereof, and all accessions
thereto, leased to a Lessee pursuant to a Lease.
"Lessee" means each Person that is a lessee under a Lease, including
any Person that executes a guarantee on behalf of such lessee.
"Lessor" means each Person that is the lessor under a Lease or the
assignee thereof, including the Trust.
"Liability" means any liability or expense, including any
indemnification obligation.
"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens, any liens that
attach to property by operation of law and statutory purchase liens to the
extent not past due.
"Liquid Trustee Assets" means the face value of any cash or cash
equivalents held by the Trustee for its own account, up to but not exceeding its
net worth as set forth on its financial books and records.
"Liquidation Proceeds" means gross amounts received by the Servicer in
connection with the attempted realization of the full amounts due or to become
due under any Lease, whether from the sale or other disposition of the related
Leased Vehicle (irrespective of whether or not such proceeds exceed the related
Residual Value), the proceeds of repossession or any collection effort, the
proceeds of recourse or similar payments payable under the related Lease
Agreement, receipt of Insurance Proceeds, application of the related Security
Deposit or otherwise.
A-5
"Loss" means any loss, liability, claim, damage or reasonable expense,
including reasonable fees and expenses of counsel and reasonable expenses of
litigation.
"Maturity Date" means, with respect to any Lease, the date on which
such Lease is scheduled to terminate as set forth in such Lease at its date of
origination or, in the case of an Extended Lease, the revised termination date.
"Monthly Payment" means, with respect to any Lease, the amount of each
fixed monthly payment payable to the Lessor in accordance with the terms
thereof, net of any portion of such fixed monthly payment that represents an
Administrative Charge.
"Moody's" means Moody's Investors Service, Inc., and its successors.
"NMAC" means Nissan Motor Acceptance Corporation, a California
corporation, and its permitted successors and assigns.
"Notice Party" means, with respect to any notice, each notice party
specified in Section 8.03 at the address and in the manner provided for therein.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of any specified
Person (which, in the case of a (i) limited liability company, shall be any of
the foregoing officers of a member, (ii) partnership, shall be any of the
foregoing officers of the managing general partner or, if there is no managing
general partner, any general partner or (iii) trust, shall be any of the
foregoing officers of the owner of the trust) and delivered to any other
specified Person.
"Opinion of Counsel" means a written opinion of counsel who may, except
as otherwise expressly provided in the Trust Documents or related Securitized
Financing Documents, be counsel for a Beneficiary, the Servicer or any of their
respective Affiliates (including, in each such case, in-house counsel), which
counsel, in the case of opinions delivered to the Trustee, shall be reasonably
satisfactory to the Trustee.
"Original Trust Agreement" has the meaning set forth in the Recitals.
"Other SUBI" means, with respect to a SUBI, any SUBI other than such
SUBI.
"Other SUBI Assets" means all Trust Assets allocated to an Other SUBI.
"Other SUBI Certificate" means a SUBI Certificate relating to an Other
SUBI.
"Payahead Account" means, with respect to any Sub-Trust, the account
created, designated and maintained as such pursuant to Section 4.02(a).
"Payment Ahead" means any payment of all or a part of one or more
Monthly Payments remitted by a Lessee with respect to a Lease in excess of the
Monthly Payment due with respect
A-6
to such Lease, which amount the Lessee has instructed the Servicer to apply to
Monthly Payments due in one or more subsequent Collection Periods.
"Payment Date" means, as to each Lease, the date each month on which
Monthly Payments are due under the terms of the Lease.
"Permitted Investments" means, at any time with respect to a Sub-Trust,
any one or more of the following obligations, instruments or securities:
(i) obligations of, and obligations fully guaranteed as
to timely payment of principal and interest by, the United States or
any agency thereof, provided such obligations are backed by the full
faith and credit of the United States;
(ii) general obligations of or obligations guaranteed by
FNMA or any State; provided that, if any related Rated Securities are
outstanding, such obligations have the highest available credit rating
from each Rating Agency for such obligations;
(iii) securities bearing interest or sold at a discount
issued by any corporation incorporated under the laws of the United
States or of any State; provided, that if any related Rated Securities
are outstanding, at the time of such investment or contractual
commitment providing for such investment, either (a) the long-term
unsecured debt of such corporation has the highest available rating
from each Rating Agency for such obligations or (b) the commercial
paper or other short-term debt of such corporation that is then rated
has the highest available credit rating of each Rating Agency for such
obligations;
(iv) certificates of deposit issued by any depository
institution or trust company (including the Trust Agent or, if there is
no Trust Agent, the Trustee) incorporated under the laws of the United
States or any State and subject to supervision and examination by
banking authorities of one or more of such jurisdictions; provided
that, if any related Rated Securities are outstanding, the short-term
unsecured debt obligations of such depository institution or trust
company has the highest available credit rating of each Rating Agency
for such obligations;
(v) certificates of deposit that are issued by any bank,
trust company, savings bank or other savings institution and fully
insured by the FDIC;
(vi) investments in money market funds (including funds
for which the Trustee, the Trust Agent or any of their respective
Affiliates is investment manager or advisor) having a rating from
Standard & Poor's of AAA-m or AAAm-G and from Moody's of Aaa;
(vii) repurchase obligations held by the Trustee or, if
there is a Trust Agent, by the Trust Agent, with respect to any
obligation or security described in clauses (i), (ii) or (viii) hereof
or any other obligation or security issued or guaranteed by any other
agency or instrumentality of the United States, in either case entered
into with a federal agency or
A-7
a depository institution or trust company (acting as principal)
described in clause (iv) above; and
(viii) such other obligations, instruments or securities as
may be directed by the Servicer; provided, that if any Rated Securities
are outstanding, such obligations, instruments or securities shall be
acceptable to each relevant Rating Agency, as evidenced by a letter
from such Rating Agency to the Trustee to the effect that investments
of such type will not result in a Ratings Effect;
provided, that except as provided in a related Supplement or Servicing Agreement
(including any related Servicing Supplement), each of the foregoing obligations,
instruments and securities shall mature no later than the Business Day prior to
the date on which such funds are required to be available for application
pursuant to any related Trust Document or Securitized Financing Document (other
than in the case of the investment of monies in obligations, instruments or
securities of which the entity at which the related account is located is the
obligor, which may mature on such date), and shall be required to be held to
such maturity.
Notwithstanding the foregoing, (i) no Permitted Investment may be
purchased at a premium and (ii) no obligation or security may be a "Permitted
Investment" unless (a) the Trustee has Control over such obligation or security
and (b) at the time such obligation or security was delivered to the Trustee or
the Trustee became the related Entitlement Holder, the Trustee did not have
notice of any adverse claim with respect thereto within the meaning of Section
8-105 of the UCC.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating) or
such lower credit rating (as approved in writing by each Rating Agency) as will
not result in a Rating Event.
"Person" means any legal person, including any individual, corporation,
partnership, joint venture, association, limited liability company, joint stock
company, trust, business trust, bank, trust company, estate (including any
beneficiaries thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Proceeding" means any suit or action at law or in equity or any other
judicial or administrative proceeding, including any bankruptcy proceeding.
"Rated Securities" means, with respect to a Securitized Financing, each
class or series of Securities that has been rated by one or more Rating Agencies
at the request of the Grantor, a Beneficiary or any of their respective
Affiliates.
"Rating Agency" means each nationally recognized rating agency
identified in a related Supplement that issues a rating on Rated Securities at
the request of the Grantor, a Beneficiary or any of their respective Affiliates.
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"Ratings Effect" means, with respect to any Rated Securities, the
qualification, downgrading or withdrawal of the rating then assigned to such
Rated Securities by a related Rating Agency.
"Registered Pledgee" means, with respect to any Certificate, the Person
listed in the Certificate Register as the registered pledgee of such
Certificate.
"Registrar of Titles" means the applicable department, agency or
official in a State responsible for accepting applications and maintaining
records relating to Certificates of Title and Liens thereupon.
"Reimbursable Expense" means an amount paid or incurred or advanced by
the Servicer to pay fees, costs or other sums for which the Servicer may be
reimbursed from Trust Assets.
"Relevant Bankruptcy Entity" means the Special Purpose Affiliate to
which the UTI Beneficiary transfers a 1% beneficial ownership of the UTI
pursuant to Section 3.04 or Section 7.03(b).
"Related Beneficiary" means, with respect to (i) the UTI, the UTI
Beneficiary, and (ii) a SUBI, the Person or Persons designated as a Beneficiary
of such SUBI in the related SUBI Supplement, in each case together with their
permitted successors and assigns.
"Related Trust Assets" means, with respect to a Sub-Trust, the related
Leases, Leased Vehicles and other Trust Assets held by the Trust as nominee
holder of legal title for the benefit of the Related Beneficiary and the Holders
of the related Certificates.
"Required Deposit Rating" means, with respect to any entity and Trust
Account, that (i) the short-term unsecured debt obligations of such entity are
rated in the highest short-term rating category by each Rating Agency (excluding
any "+" signs associated with such rating) or (ii) such entity is a depository
institution or trust company having a long-term unsecured debt rating acceptable
to each Rating Agency and corporate trust powers and the related Trust Account
is maintained in a segregated trust account in the corporate trust department of
the related entity.
"Residual Value" means, with respect to any Lease, its Booked Residual
Value or Adjusted Residual Value, as the case may be.
"Residual Value Surplus Account" means, with respect to any Sub-Trust,
the account created, designated and maintained as such pursuant to Section
4.02(a).
"Responsible Officer" means, when used with respect to the Trustee or a
Trust Agent, any officer in the corporate trust office of the Trust Agent or, if
there is no Trust Agent, the corporate trust office of the Trustee, including
any president, vice president, assistant vice president, trust officer,
secretary, assistant secretary or any other officer thereof customarily
performing functions similar to those performed by the individuals who at the
time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of his or her knowledge of or familiarity with the
particular subject.
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"Schedule of Leases and Leased Vehicles" means the microfiche,
microfilm, paper or computer list of Leases and the related Leased Vehicles that
are included as Trust Assets, as such list may be revised and supplemented from
time to time pursuant to Section 6.01, and which shall set forth the following
information with respect to each such Lease and Leased Vehicle in separate
columns:
Lease Number Residual Value
Date of Origination Security Deposit
Maturity Date Sub-Trust to which Lease is assigned
Monthly Payment Vehicle Identification Number
Payment Date Model Year
Adjusted Capitalized Cost Make
Adjusted Lease Balance as of the last day of the Model
immediately preceding month
Lessee Name
Lessee Address
"Securitization Holder" means any entity that, in connection with a
Securitized Financing, becomes a Holder by being, pursuant to the related
Securitized Financing Documents, the Holder (or a Registered Pledgee authorized
to exercise certain rights of a Holder) of a Certificate solely in a trust
capacity.
"Securitized Financing" means any (i) financing transaction undertaken
by a Beneficiary or a Special Purpose Affiliate that is secured, directly or
indirectly, by Trust Assets or the UTI, a SUBI or any interest therein and any
financing undertaken in connection with the issuance, pledge or assignment of
the UTI or a SUBI and the related UTI Certificate or SUBI Certificate, as the
case may be, (ii) any sale, lease or other transfer by a Beneficiary or a
Special Purpose Affiliate of an interest in the UTI or a SUBI or (iii) any other
asset securitization, secured loan or similar transaction involving Trust Assets
or any beneficial interest therein or in the Trust.
"Securitized Financing Documents" means, with respect to a Securitized
Financing, each indenture, trust agreement, pooling and servicing agreement,
administration agreement, servicing agreement, program operating lease,
assignment or transfer agreement and each other operative document related to
such Securitized Financing.
"Security" means, with respect to a Securitized Financing, any security
issued by or on behalf of the related Issuer.
"Security Deposit" means, with respect to any Lease, the refundable
security deposit specified in such Lease.
"Servicer" means NMAC (or any successor entity named as such in a
Servicing Agreement), and its successors and permitted assigns.
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"Servicing Agreement" means any servicing agreement among the Trust,
the Servicer and one or more Beneficiaries, as amended, supplemented or modified
from time to time.
"Servicing Supplement" means either a UTI Servicing Supplement or a
SUBI Servicing Supplement, as the context may require.
"Special Purpose Affiliate" means a special purpose entity that is an
Affiliate of a Beneficiary and was created for the purpose of one or more
Securitized Financings.
"Standard & Poor's" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc., and its successors.
"State" means any state of the United States, Puerto Rico or the
District of Columbia.
"Sub-Trust" has the meaning set forth in Section 3.01(b).
"SUBI" has the meaning set forth in Section 3.01(a).
"SUBI Account" means each Trust Account created with respect to a
particular SUBI.
"SUBI Assets" has the meaning set forth in Section 3.01(a).
"SUBI Certificate" has the meaning set forth in Section 3.02(a).
"SUBI Collection Account" means, with respect to a SUBI, the related
Collection Account created, designated and maintained as such pursuant to
Section 4.02(a).
"SUBI Lease" means a Lease that has been allocated to a SUBI pursuant
to a Securitized Financing.
"SUBI Lease Account" has the meaning set forth in Section 4.05.
"SUBI Servicing Supplement" means any supplement or amendment to a
Servicing Agreement entered into from time to time relating to a particular SUBI
or SUBI Certificate and the servicing of the related SUBI Assets which
supplement or amendment sets forth any special responsibilities or obligations
the Servicer may be required to undertake in connection therewith.
"SUBI Supplement" means any supplement or amendment to this Agreement
executed from time to time in connection with the creation and issuance of a
particular SUBI.
"SUBI Leased Vehicle" means a Leased Vehicle that has been allocated to
a SUBI pursuant to a Securitized Financing.
"Subsidiary" means any corporation or other entity, with respect to
which capital stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors, members or other Persons performing
similar functions, is at the time directly or indirectly owned by the Trust
Agent either directly or through Subsidiaries.
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"Supplement" means either a UTI Supplement or a SUBI Supplement.
"Tax" or "Taxes" means any and all taxes, including but not limited to,
net income, franchise, value added, ad valorem, gross income, gross receipts,
sales, use, property (personal and real and tangible and intangible), stamp
taxes, levies, imposts, duties, charges, assessments or withholdings of any
nature whatsoever, together with any and all penalties, fines, additions to tax
and interest imposed by any federal, state, local or foreign government or
political subdivision thereof.
"Titling Grace Period" means, with respect to a Sub-Trust, the period
of time by the end of which any related Leased Vehicles that are not yet titled
in the name of the Trust or the Trustee on behalf of the Trust must be titled in
the name of the Trust or in the name of the Trustee on behalf of the Trust as
set forth in the related Supplement in order to be included in such Sub-Trust.
If a Supplement does not contain a Titling Grace Period, no such grace period
shall apply with respect to the related Sub-Trust and the Related Trust Assets.
"Trust" means Nissan-Infiniti LT and its successors.
"Trust Account" means a Collection Account, a Residual Value Surplus
Account, a Payahead Account, a SUBI Lease Account or such other account as may
be specified in a related Supplement or Servicing Agreement, as the context may
require.
"Trust Agency Agreement" means an agency agreement entered into
pursuant to Section 5.11(d) between the Trustee and a Trust Agent pursuant to
which the Trustee appoints a Trust Agent.
"Trust Agent" means U.S. Bank, in its capacity as initial Trust Agent,
and any other Person with which the Trustee contracts to act as its agent with
respect to carrying out its duties pursuant to a Trust Agency Agreement.
"Trust Assets" means: (i) cash capital; (ii) the Leases; (iii) the
Leased Vehicles and all proceeds thereof, including (A) payments made in respect
of the Residual Values thereof, (B) proceeds of the sale or other disposition of
the Leased Vehicles to Lessees or others upon expiration or termination of the
Leases and (C) payments in respect of the Leased Vehicles under any Insurance
Policy; (iv) the Certificates of Title; (v) all rights (but not obligations) of
the Trust, NMAC and the related Lessors or Dealers with respect to the Leases
and the Leased Vehicles, including rights to (A) any incentive or other payments
made by any Person to fund a portion of the payments made related to a Lease or
a Leased Vehicle and (B) proceeds arising from any repurchase obligations
arising under any Lease Agreement; (vi) any Security Deposit related to a Lease
to the extent not payable to the Lessee pursuant to such Lease; (vii) all
Insurance Proceeds and Liquidation Proceeds; (viii) such other assets as may be
designated "Trust Assets" in a Supplement; and (ix) all proceeds of the items
described in clauses (i) through (viii).
"Trust Asset Transfer" means the allocation, in connection with a
Securitized Financing and in accordance with the terms of the related
Securitized Financing Documents, of any Leases and Leased Vehicles from
previously unallocated Trust Assets to a SUBI after such SUBI's
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initial creation; provided, that such allocation will not, in and of itself,
cause or result in an Event of Default under such Securitized Financing
Documents.
"Trust Documents" means this Agreement, any Co-Trustee Agreement, the
Certificate of Trust, any Supplement, any Servicing Agreement, any Servicing
Supplement, each Assignment Agreement and any Trust Agency Agreement.
"Trust Expenses" means, for any period, all expenses of the Trust other
than servicing compensation payable to and expenses incurred by the Servicer,
including fees and expenses of the Trustee, any co-trustee, separate trustee or
nominee holder of legal title, the Trust Agent and the Delaware Trustee
(excluding Taxes payable in respect of income earned by any thereof), and, if
not paid by the Servicer, Insurance Costs and Taxes relating to Trust Assets, in
each case incurred during or with respect to such period.
"Trust Office" means the principal office of the Trust, which initially
shall be 990 West 190th Street, Suite 500, Torrance, California 90502.
"Trustee" means NILT, Inc., a Delaware corporation, as trustee of the
Trust, and its successors.
"Trustee Stock" means the issued and outstanding capital stock of the
Trustee as of the Effective Date, together with any additional capital stock of
the Trustee that may be issued from time to time thereafter.
"UCC" means the Uniform Commercial Code as in effect in the applicable
jurisdiction.
"United States" means the United States of America, its territories and
possessions and areas subject to its jurisdiction.
"U.S. Bank" has the meaning set forth in the Preamble.
"UTI" has the meaning set forth in Section 3.01(a).
"UTI Account" means each Trust Account created with respect to the UTI.
"UTI Assets" has the meaning set forth in Section 3.01(a).
"UTI Beneficiary" means (i) NILT Trust in its capacity as initial
beneficiary of the Trust and its permitted successors and assigns or (ii) any
other UTI Beneficiary that becomes a party to this Agreement pursuant to
Sections 3.04(a)(ii) and 7.03(b).
"UTI Certificate" has the meaning set forth in Section 3.03.
"UTI Collection Account" means, with respect to the UTI, the account
created, designated and maintained as such pursuant to Section 4.01(a).
"UTI Lease" means a Lease that has not been allocated to a SUBI.
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"UTI Pledge" means a pledge of, and a grant of a security interest in,
the UTI, a UTI Certificate or any interest therein, in connection with a
Securitized Financing.
"UTI Pledge Default Notice" means the Trustee has actual knowledge or
has received notice from the Servicer or the Registered Pledgee of a UTI Pledge
to the effect that there is a default with respect to a Securitized Financing
secured by such UTI Pledge.
"UTI Servicing Supplement" means any supplement or amendment to the
Servicing Agreement entered into from time to time relating to the UTI or a
particular UTI Certificate and the servicing of the related UTI Assets.
"UTI Supplement" means any supplement or amendment to this Agreement
entered into from time to time in connection with the UTI or a UTI Pledge
pursuant to Section 3.03.
"UTI Leased Vehicle" means a Leased Vehicle that has not been allocated
to a SUBI.
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EXHIBIT B
CERTIFICATE OF TRUST OF NISSAN-INFINITI LT
This Certificate of Trust of Nissan-Infiniti LT (the "Trust"), is being
duly executed and filed by Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee, and NILT, Inc., a Delaware corporation, as
managing trustee, to form a business trust under the Delaware Business Trust Act
(12 Del. C. Section 3801 et seq.).
(a) Name. The name of the business trust formed hereby is
Nissan-Infiniti LT.
(b) Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 N. Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
(c) Series Trust. The Trust shall be a series trust and the debts,
liabilities, obligations and expenses incurred, contracted for or otherwise
existing with respect to a particular series shall be enforceable against the
assets of such series only, and not against the assets of the Trust generally or
any other series.
(d) Effective Date. This Certificate of Trust shall be effective
upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Trust in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST COMPANY, as Trustee
By: ________________________________
Name:
Title:
NILT, INC., as Trustee
By: ________________________________
Name:
Title:
B-1
EXHIBIT C
THIS UTI CERTIFICATE MAY NOT BE TRANSFERRED OR
ASSIGNED EXCEPT UPON THE TERMS AND SUBJECT TO THE
CONDITIONS SPECIFIED HEREIN.
NISSAN-INFINITI LT
UNDIVIDED TRUST INTEREST CERTIFICATE
evidencing a fractional undivided interest in the UTI Assets of
Nissan-Infiniti LT, a business trust organized pursuant to the Delaware
Business Trust Act (the "Trust").
(This Certificate does not represent any interest in the SUBI Assets of
the Trust or an obligation of, or an interest in, NILT Trust, Nissan
Motor Acceptance Corporation, NILT, Inc., or any of their respective
Affiliates.)
Percentage Interest: 100%
Number - U-1
THIS CERTIFIES THAT NILT Trust is the registered owner of a
nonassessable, fully-paid, fractional undivided 100% interest in the UTI Assets
of the Trust. The Trust was created pursuant to a trust agreement, dated as of
July 7, 1998, among NILT Trust, a Delaware business trust, as grantor (the
"Grantor") and initial beneficiary (the "UTI Beneficiary"), NILT, Inc., a
Delaware corporation, as trustee (the "Trustee") and Wilmington Trust Company, a
Delaware banking corporation, as Delaware trustee (the "Delaware Trustee"), as
amended and restated as of August 26, 1998, among the Grantor and UTI
Beneficiary, the Trustee, the Delaware Trustee, Nissan Motor Acceptance
Corporation, a California corporation, as Servicer (the "Servicer") and for the
limited purposes set forth therein, U.S. Bank National Association, a national
banking association, as trust agent (the "Trust Agent") as amended, restated or
supplemented from time to time (the "Agreement"). A summary of certain
provisions of the Agreement is set forth below. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Agreement.
This UTI Certificate is one of the duly authorized Certificates issued
under the Agreement and designated as "Nissan-Infiniti LT Undivided Trust
Interest Certificates" (the "UTI Certificates"). This UTI Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement, a
copy of which may be examined by the Holder hereof during normal business hours
at the principal office of the Trustee, or at such other place as may be
designated by the Trustee. By acceptance of this UTI Certificate, the Holder
hereof assents to the terms and conditions of the Agreement and agrees to be
bound thereby.
This UTI Certificate represents an ownership interest in the "undivided
trust interest" (the "UTI") in the Trust. The UTI constitutes an undivided
beneficial interest in all Trust Assets that have not been allocated from time
to time to a special unit of beneficial interest (each, a "SUBI") in the Trust
(the "UTI Assets"). The UTI does not evidence a direct interest in the UTI
Assets,
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nor does it represent a beneficial interest in any Trust Assets other
than the UTI Assets. The rights of the Holder of this UTI Certificate with
respect to the UTI Assets, including distributions in respect thereof, are set
forth in the Agreement.
The Trust Assets consist generally of cash capital, Leases of Leased
Vehicles that have been assigned to the Trust or the Trustee on behalf of the
Trust, the related Leased Vehicles, such other assets as may from time to time
be designated as "Trust Assets" under the Agreement and all proceeds of the
foregoing.
Pursuant to the Agreement, the Trustee shall from time to time, at the
direction of the UTI Beneficiary and subject to the satisfaction of certain
conditions, establish one or more SUBIs and allocate or cause to be allocated to
each such SUBI on the books and records of the Trust such Trust Assets (the
"SUBI Assets") as shall have been identified to such SUBI by the UTI
Beneficiary. Upon allocation to a SUBI, the related SUBI Assets shall no longer
be UTI Assets unless and until specifically reallocated to the UTI from the
SUBI. Each SUBI shall be represented by one or more Certificates (each, a "SUBI
Certificate") distributed to or upon the order of the UTI Beneficiary.
The UTI and each SUBI their Related Assets shall each constitute a
separate series of the Trust pursuant to Section 3806(b)(2) of the Delaware Act
for which separate and distinct records shall be maintained. Each UTI
Certificate and interest in the UTI represented therein shall constitute a
"certificated security" within the meaning of Section 8-102(15) of the UCC.
The UTI Certificates are limited in right of payment to certain
collections and recoveries in respect of Trust Assets not allocated to any SUBI,
all to the extent and as more specifically set forth in the Agreement. By
accepting this UTI Certificate, the Holder hereof expressly (i) waives any Claim
to any proceeds or assets of the Trustee and to all Trust Assets other than UTI
Assets and proceeds thereof and (ii) subordinates in favor of each Holder of a
SUBI Certificate any Claim to any related SUBI Asset that, notwithstanding
clause (i) of this sentence may be determined to exist.
The Agreement, including the terms of this UTI Certificate, may be
amended or supplemented by written agreement upon the terms and subject to the
conditions set forth in the Agreement. If approval by the Holder of this UTI
Certificate is required for any amendment or supplement to the Agreement or this
UTI Certificate, any such approval shall be conclusive and binding upon such
Holder and all future Holders hereof and upon the Holders of any UTI Certificate
issued upon the permitted transfer or exchange hereof, whether or not notation
of such consent is made on this UTI Certificate or on any UTI Certificate issued
upon any such permitted transfer or exchange.
Neither the UTI nor any UTI Certificate may be transferred or assigned,
except upon the terms and subject to the conditions set forth in the Agreement.
To the fullest extent permitted by applicable law, any purported transfer or
assignment of the UTI or any UTI Certificate not complying with such
requirements shall be deemed null, void and of no effect under the Agreement.
Without limitation of the foregoing, (i) the UTI or one or more UTI Certificates
may be pledged in connection with a Securitized Financing, and a security
interest therein granted,
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and may be transferred or assigned absolutely to or by the pledgee thereof
solely in connection with the exercise of remedies with respect to an Event of
Default under or with respect to such Securitized Financing; provided, that any
such pledgee must (A) give a non-petition covenant as provided in the Agreement
and (B) execute an agreement in favor of the Holders from time to time of any
SUBI Certificates to release all Claims to the related SUBI Assets and, in the
event that such release is not given effect, to subordinate fully all Claims it
may be deemed to have against the related SUBI Assets and (ii) the UTI
Beneficiary may transfer a 1% ownership interest in the UTI to a Relevant
Bankruptcy Entity, provided that such Relevant Bankruptcy Entity shall be bound
by all terms and conditions of the Agreement as a UTI Beneficiary.
Any permitted transfer of this UTI Certificate is registrable upon
surrender of this UTI Certificate for registration of 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 hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new UTI Certificates of a like aggregate
fractional undivided interest will be issued to the designated permitted
transferee.
Prior to due presentation of this UTI Certificate for registration of a
permitted transfer, the Trustee, the certificate registrar and any of their
respective agents may treat the Person in the name of which this UTI Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes, and, except as otherwise provided in the Agreement,
neither the Trustee, the certificate registrar nor any such agent shall be
affected by any notice to the contrary.
The Trust or the UTI may terminate upon the terms and subject to the
conditions set forth in the Agreement. The UTI Certificates will be cancelled
upon delivery to the Trustee following termination of the UTI.
Unless this UTI Certificate shall have been executed and authenticated
by an authorized officer of the Trustee, by manual signature, this UTI
Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
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IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this UTI Certificate to be duly executed.
Dated: __________, ____
NISSAN-INFINITI LT
By: NILT, Inc.,
as Trustee
By: _______________________________________
Name:
Title:
This is one of the UTI Certificates referred to in the within-mentioned
Agreement.
NILT, Inc.,
as Trustee
By: __________________________________
Name:
Title:
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