EXHIBIT 4.6
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NISSAN-INFINITI LT,
as Origination Trust,
NILT TRUST,
as UTI Beneficiary,
and
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Registered Pledgee and Servicer
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FIRST AMENDMENT TO
SERVICING AGREEMENT
Dated as of January 3, 2001
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FIRST AMENDMENT
TO
SERVICING AGREEMENT
This First Amendment to Servicing Agreement (this "Amendment") is
dated as of January 3, 2001 and entered into by and among Nissan-Infiniti LT, a
Delaware business trust (the "Origination Trust"), NILT Trust, a Delaware
business trust ("NILT Trust"), as initial beneficiary of the Origination Trust
(the "UTI Beneficiary"), and Nissan Motor Acceptance Corporation, a California
corporation ("NMAC"), as registered pledgee of the UTI Certificate (in such
capacity, the "Registered Pledgee") and as servicer (in such capacity, the
"Servicer"), and is made with reference to that certain Servicing Agreement,
dated as of March 1, 1999 (the "Servicing Agreement") by and among the
Origination Trust, NILT Trust and NMAC. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the Servicing
Agreement or the Amended and Restated Trust and Servicing Agreement, dated as of
August 26,1998 (the "Origination Trust Agreement"), by and among NILT Trust, as
UTI Beneficiary, NMAC, as Servicer, NILT, Inc., a Delaware corporation, as
trustee, Wilmington Trust Company, a Delaware banking corporation, as Delaware
trustee, and U.S. Bank National Association, a national banking association, as
trust agent.
RECITALS
WHEREAS, the parties hereto wish to amend and clarify the provisions
of the Servicing Agreement with respect to the treatment and disposition of
Liquidated Vehicles to allow NMAC to implement its like-kind exchange program;
WHEREAS, pursuant to Section 6.02(b) of the Servicing Agreement, the
Servicing Agreement may be amended by the parties thereto without the consent of
any Holder or other Beneficiary provided that an Opinion of Counsel is delivered
to the Trustee to the effect that such amendment shall not materially and
adversely affect the interest of any Holder; and
WHEREAS, an Opinion of Counsel has been delivered to the Trustee as
provided by Section 6.02(b) of the Servicing Agreement.
NOW, THEREFORE, in consideration of the amendments, agreements, and
other provisions 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
AMENDMENT OF THE SERVICING AGREEMENT
SECTION 1.01. Amendment of Section 2.01. Section 2.01(a) is hereby
amended by renumbering subparagraph "(viii)" to read "(ix)," striking the final
occurrence of the word "and" in subparagraph (vii), and adding the following new
subparagraph (viii) after subparagraph (vii), reading in its entirety as
follows:
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"(viii) implementing the LKE Program, including: (A) reallocating
Liquidated Vehicles from the relevant SUBI to the UTI on the books and
records of the Origination Trust, (B) directing the Trustee and/or UTI
Beneficiary to transfer amounts from the UTI to the relevant SUBI in
connection with such reallocation of Liquidated Vehicles, (C) causing the
assignment of the Net Liquidation Proceeds to the QI and directing the
actions of the QI, the Trustee and the Origination Trust in connection
with obtaining Replacement Vehicles and exchanging Replacement Vehicles
for Liquidated Vehicles, (D) assigning and allocating Replacement Vehicles
to the UTI, and (E) taking such other actions as shall be necessary or
advisable in connection with implementing the LKE Program; and
SECTION 1.02. Amendment of Section 2.05. Section 2.05 is hereby
amended by deleting paragraph (b) in its entirety and substituting in lieu
thereof a new paragraph (b), reading in its entirety as follows:
"(b) Except as otherwise prohibited in the applicable Supplement or
Servicing Supplement, the UTI Beneficiary shall make Capital Contributions
or loans to the Origination Trust in the amounts required to pay the
relevant Dealers the purchase price for Leases and Leased Vehicles that
NMAC has caused such Dealers to assign to the Origination Trust from time
to time pursuant to the Assignment Agreement and the related Dealer
Agreements; provided, however, that, with respect to the purchase of
Replacement Vehicles pursuant to the LKE Program, (i) the amount of such
Capital Contributions or loans will be reduced by the amount received by
the QI pursuant to Section 2.11 hereof, and (ii) under the instruction and
with the assistance of NMAC, the QI will use such amounts to pay the
relevant Dealers the purchase price for the Replacement Vehicles that NMAC
has caused the Dealers to assign to the Origination Trust as described in
this Section 2.05. Such Capital Contributions may be funded by a loan made
by NMAC to the UTI Beneficiary secured by a pledge of the UTI Certificate
or by other means. Except in connection with the purchase of Replacement
Vehicles pursuant to the LKE Program, in lieu of paying Capital
Contributions or making loans to the Origination Trust and having the
Origination Trust pay the Dealers, the UTI Beneficiary may, on behalf of
the Origination Trust, pay or cause to be paid the amounts of such Capital
Contributions or loans directly to the Dealers to whom payment is due. For
the purpose of purchasing Replacement Vehicles pursuant to the LKE
Program, in lieu of paying the Capital Contribution or loans to the
Origination Trust and having the Origination Trust transfer such amounts
to the QI, the UTI Beneficiary, on behalf of the Origination Trust, may
transfer or cause to be transferred the amount of such Capital
Contributions or loans directly to the QI."
SECTION 1.03. Amendment of Section 2.07(c). Section 2.07 is hereby
amended by adding at the end to paragraph (c) a new subparagraph (v), reading in
its entirety as follows:
"(v) In connection the LKE Program, if the Servicer has reallocated any
Liquidated Vehicles from the relevant SUBI to the UTI, by the later of the
close of business on (A) the second Business Day after receipt or (B) the
day on which all related Payment Information is received by the Servicer,
the Servicer shall, except as otherwise provided in
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a related Servicing Supplement, cause the Origination Trust to assign the
related Net Liquidation Proceeds or related Net Auction Proceeds from the
UTI to the QI to permit the QI to purchase a Replacement Vehicle."
SECTION 1.04. Amendment of Section 2.07. Section 2.07 further is
hereby amended by adding a new paragraph (g) following paragraph (f), reading in
its entirety as follows:
"(g) In connection with the LKE Program, the Servicer may, from time to
time, in accordance with the Origination Trust Agreement or an applicable
Supplement or Servicing Supplement (including any provision governing the
payment of advances by the Servicer), (i) identify and reallocate or cause
to be identified and reallocated certain Liquidated Vehicles from the
related SUBI to the UTI on the books and records of the Origination Trust,
and (ii) subject to Section 2.11, transfer or cause to be transferred from
the UTI to the relevant SUBI Collection Account an amount equal to the Net
Liquidation Proceeds or Net Auction Proceeds of such Liquidated Vehicles
as payment for such reallocation."
SECTION 1.05. Amendment of Section 2.11. Section 2.11 is hereby
amended by adding a new paragraph (c) following paragraph (b), reading in its
entirety as follows:
"(c) In connection with the LKE Program, the Servicer shall direct or
cause to occur all necessary action under such program, including:
(i) On the same day as and immediately prior to the sale of
any Liquidated Vehicle, the Servicer shall reallocate the interest
in the Liquidated Vehicle and related Lease from the relevant SUBI
to the UTI. At the time of such reallocation, the Origination Trust
will be deemed to have certified that it has sufficient cash
available to acquire such Liquidated Vehicle. If the Origination
Trust does not have sufficient cash available to acquire such
Liquidated Vehicle, the Servicer shall not reallocate such
Liquidated Vehicle and the related Lease from the relevant SUBI to
the UTI. Immediately upon the reallocation of such Liquidated
Vehicle and related Lease, the Servicer shall direct the Origination
Trust to transfer the Liquidated Vehicle to the QI pursuant to the
LKE Program.
(ii) Within two Business Days after the sale of any Liquidated
Vehicle reallocated to the UTI pursuant to Section 2.11(c)(i), the
Servicer shall determine the amount of the Net Liquidation Proceeds
or Net Auction Proceeds and cause, on behalf of the Origination
Trust, such amounts to be transferred from the UTI to the relevant
SUBI as payment for the reallocation of such Liquidated Vehicle to
the UTI. The Servicer shall cause such amounts that are transferred
from the UTI to the relevant SUBI Collection Account in connection
with such reallocation to be identifiable on the books and records
of the UTI and the SUBI effective as of the date of the sale of the
related Liquidated Vehicle.
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(iii) The Servicer shall use the same commercially reasonable
efforts to sell or otherwise dispose of Liquidated Vehicles under
the LKE Program as required by Sections 2.11(a) and 2.11(b) hereof.
(iv) Upon the disposition of a Liquidated Vehicle and the
collection of the proceeds of such disposition by the QI, NMAC shall
direct the QI to use such proceeds, together with any additional
amounts received from the Origination Trust or NILT Trust, on behalf
of the Origination Trust, to acquire a Replacement Vehicle for each
such Liquidated Vehicle. Upon the purchase of such Replacement
Vehicle by the QI, the Servicer shall cause such Replacement Vehicle
to be titled in accordance with Section 2.04 hereof.
(v) If a reallocated Liquidated Vehicle is sold to NMAC or to
an Affiliate of NMAC (including the reallocation of the Liquidated
Vehicle from a SUBI to the UTI) in connection with the LKE Program,
(A) NMAC or such Affiliate, as the case may be, shall be deemed to
have represented and warranted that (i) the sale price to be paid in
respect of such vehicle represents the equivalent amount that NMAC,
as Servicer, would obtain from a third-party purchaser in respect of
such vehicle (unless the Contract Residual is paid for such vehicle,
in which case, the amount that would have been paid by a third-party
purchaser shall be deemed to be the Contract Residual), and (ii) the
costs and expenses of the Servicer to be netted against such
proceeds are no greater than had such vehicle been sold directly to
a third-party purchaser, and (B) the Origination Trust shall be
deemed to have represented and warranted that it has identified
sufficient cash to be transferred to the relevant SUBI in connection
with the reallocation of the Liquidated Vehicle from the relevant
SUBI to the UTI."
SECTION 1.06. Amendment of Article Six. Article Six is hereby
amended by adding at the end thereof a new Section 6.15, reading in its entirety
as follows:
"Section 6.15. Termination of LKE Program. If NMAC is terminated as
Servicer for any reason under this Agreement, the reallocation of
Liquidated Vehicles under the LKE Program shall terminate immediately."
SECTION 1.07. Amendment of Exhibit A. Exhibit A is hereby amended by
adding the following definitions to Exhibit A (Definitions) of the Servicing
Agreement in appropriate alphabetical order:
"`Contract Residual' means, with respect to any Lease, the expected
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 Monthly Payment.
`LKE Program' means the like-kind exchange program pursuant to which
recognition of taxable gain is deferred by exchanging Liquidated Vehicles for
Replacement
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Vehicles pursuant to Section 1031 of the Internal Revenue Code, as amended, or
any statute or regulation of similar effect.
`QI' means the qualified intermediary engaged by NMAC, Nissan
Infiniti Services, Co. and its successors pursuant to the LKE Program.
`Replacement Vehicle' means a Leased Vehicle purchased by the QI to
exchange for a related Liquidated Vehicle, pursuant to Section 1031 of the
Internal Revenue Code, as amended, or any statute or regulation of similar
effect."
ARTICLE TWO
MISCELLANEOUS
SECTION 2.01. Reference to and Effect on the Servicing Agreement.
(a) On or after the date hereof, each reference in the Servicing Agreement
to the "Servicing Agreement," "this Agreement," "hereunder," "hereof," "herein,"
or words of similar import referring the Servicing Agreement shall mean and be a
reference to the Servicing Agreement as amended by this Amendment.
(b) Except as specifically amended by this Amendment, the Servicing
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
SECTION 2.02. Governing Law. This Amendment shall be created under
and governed by and construed in under the internal laws of the State of
California, without regard to any otherwise applicable principles of conflict of
laws.
SECTION 2.03. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when 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.
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IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
duly executed by its authorized officer as of the date first above written.
NISSAN-INFINITI LT
By: NILT, INC.,
as Trustee of Nissan-Infiniti LT
By: /s/ Patricia M. Child
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Name: Patricia M. Child
Title: President
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IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
duly executed by its authorized officer as of the date first above written.
NILT TRUST,
as UTI Beneficiary
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Patricia M. Child
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Name: Patricia M. Child
Title: Vice President
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IN WITNESS WHEREOF, the undersigned has caused this Amendment to be
duly executed by its authorized officer as of the date first above written.
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Registered Pledgee and Servicer
By: /s/ Katsumi Ishii
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Name: Katsumi Ishii
Title: President
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