EXHIBIT 10.7
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NISSAN AUTO LEASE TRUST 2003-A,
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee and
as Secured Party,
and
U.S. BANK NATIONAL ASSOCIATION,
as Securities Intermediary
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CONTROL AGREEMENT
Dated as of October 29, 2003
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TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS
1.01. General Definitions.............................................................. 1
1.02. Incorporation of UCC by Reference................................................ 2
ARTICLE TWO
ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS
2.01. Establishment of Reserve Account................................................. 2
2.02. "Financial Assets" Election...................................................... 2
2.03. Entitlement Orders............................................................... 2
2.04. Subordination of Lien; Waiver of Set-Off......................................... 2
2.05. Notice of Adverse Claims......................................................... 3
ARTICLE THREE
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES
INTERMEDIARY
3.01. Representations, Warranties and Covenants of the Securities Intermediary......... 3
ARTICLE FOUR
MISCELLANEOUS
4.01. Choice of Law.................................................................... 4
4.02. Conflict with Other Agreements................................................... 4
4.03. Amendments....................................................................... 4
4.04. Successors....................................................................... 4
4.05. Notices.......................................................................... 4
4.06. Termination...................................................................... 4
4.07. Counterparts..................................................................... 5
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CONTROL AGREEMENT
This Control Agreement (this "Agreement"), dated as of October 29,
2003, is among Nissan Auto Lease Trust 2003-A, a statutory trust formed pursuant
to the laws of the State of Delaware (the "Trust"), U.S. Bank National
Association ("U.S. Bank"), in its capacity as indenture trustee (the "Indenture
Trustee") on behalf of the holders of the Notes (the "Secured Party") under the
Indenture, dated as of October 29, 2003 (the "Indenture") by and between the
Trust and the Indenture Trustee, and U.S. Bank, in its capacity as securities
intermediary (the "Securities Intermediary").
RECITALS
WHEREAS, pursuant to the Indenture, the Trust has granted to the
Secured Party a security interest in investment property consisting of the
Reserve Account, related Security Entitlements and the financial assets and
other investment property from time to time included therein to secure payment
of the Notes;
WHEREAS, pursuant to the Indenture, on the date on which the lien of
the Indenture is released, rights with respect to the Reserve Account shall be
transferred back to the Trust; and
WHEREAS, the parties hereto desire that the security interest of the
Secured Party be a first priority security interest perfected by "control"
pursuant to Articles Eight and Nine of the UCC.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
1.01. General Definitions. Capitalized terms used herein
that are not otherwise defined shall have the meanings ascribed thereto in the
Agreement of Definitions, dated as of October 29, 2003, by and among the Trust,
as issuer (the "Issuer"), NILT Trust, a Delaware statutory trust, as grantor and
initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary,"
respectively), Nissan-Infiniti LT, a Delaware statutory trust (the "Titling
Trust"), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"),
in its individual capacity, as servicer and as administrative agent (in such
capacity, the "Servicer" and the "Administrative Agent," respectively), Nissan
Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), NILT,
Inc., a Delaware corporation, as trustee to the Titling Trust (the "Titling
Trustee"), Wilmington Trust Company, a Delaware banking corporation, as owner
trustee and Delaware trustee (in such capacity, the "Owner Trustee" and the
"Delaware Trustee," respectively) and U.S. Bank, as Indenture Trustee and trust
agent (in such capacity, the "Trust Agent").
Control Agreement
1.02. Incorporation of UCC by Reference. Except as
otherwise specified herein or as the context may otherwise require, all terms
used in this Agreement not otherwise defined herein which are defined in the UCC
shall have the meanings assigned to them in the UCC.
ARTICLE TWO
ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS
2.01. Establishment of Reserve Account. The Securities
Intermediary hereby confirms that (i) the Trust has established the Reserve
Account at the Securities Intermediary, (ii) the Reserve Account is an account
to which financial assets are or may be credited, (iii) the Securities
Intermediary shall, subject to the terms of this Agreement and the Indenture,
treat the Secured Party as entitled to exercise the rights that comprise any
financial asset credited to the Reserve Account, (iv) all property delivered to
the Securities Intermediary by or on behalf of the Secured Party for deposit to
the Reserve Account will promptly be credited to the Reserve Account and (v) all
securities or other property underlying any financial assets credited to the
Reserve Account shall be registered in the name of the Securities Intermediary,
endorsed to the Securities Intermediary or in blank or credited to another
securities account maintained in the name of the Securities Intermediary and in
no case will any financial asset credited to the Reserve Account be registered
in the name of the Trust, payable to the order of the Trust or specially
endorsed to the Trust except to the extent the foregoing have been specially
endorsed to the Securities Intermediary or in blank.
2.02. "Financial Assets" Election. The Securities
Intermediary hereby agrees that each item of property (whether investment
property, financial asset, security, instrument or cash) credited to the Reserve
Account shall be treated as a "financial asset" within the meaning of Section
8-102(a)(9) of the UCC.
2.03. Entitlement Orders. If at any time the Securities
Intermediary shall receive any Entitlement Order from the Secured Party with
respect to the Reserve Account, the Securities Intermediary shall comply with
such Entitlement Order without further consent by the Trust, the Initial Secured
Party or any other Person. If at any time the Secured Party notifies the
Securities Intermediary in writing that the Lien of the Indenture has been
released, the Securities Intermediary shall thereafter comply with Entitlement
Orders with respect to the Reserve Account from the Initial Secured Party
without further consent by the Trust or any other Person.
2.04. Subordination of Lien; Waiver of Set-Off. If the
Securities Intermediary has or subsequently obtains by agreement, operation of
law or otherwise a security interest in the Reserve Account or any Security
Entitlement credited thereto, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interests of the
Secured Party. The financial assets and other items deposited to the Reserve
Account will not be subject to deduction, set-off, banker's lien or any other
right in favor of any Person or entity other than the Secured Party (except that
the Securities Intermediary may set off against amounts on deposit in the
Reserve Account (i) all amounts due to it in respect of its customary fees and
expenses for the routine maintenance and operation of the Reserve Account, and
(ii) the face amount of any
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checks that have been credited to the Reserve Account but are subsequently
returned unpaid because of uncollected or insufficient funds).
2.05. Notice of Adverse Claims. Except for the claims and
interests of the Secured Party and the Trust in the Reserve Account, the
Securities Intermediary does not know of any claim to, or interest in, the
Reserve Account or in any financial asset credited thereto. If any Person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Reserve Account or in any financial asset carried therein, the Securities
Intermediary will promptly notify the Secured Party and the Trust thereof.
ARTICLE THREE
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SECURITIES INTERMEDIARY
3.01. Representations, Warranties and Covenants of the
Securities Intermediary. The Securities Intermediary hereby represents and
warrants to the Secured Party and the Trust, and covenants that:
(a) The Reserve Account has been established as set forth
in Section 2.01 and the Reserve Account will be maintained in the manner set
forth herein until termination of this Agreement. The Securities Intermediary
shall not change the name or account number of the Reserve Account without the
prior written consent of the Secured Party.
(b) No financial asset carried in the Reserve Account is
or will be registered in the name of the Trust, payable to the order of the
Trust, or specially endorsed to the Trust, except to the extent such financial
asset has been endorsed to the Securities Intermediary or in blank.
(c) This Agreement is the valid and legally binding
obligation of the Securities Intermediary.
(d) The Securities Intermediary has not entered into, and
until the termination of this Agreement will not enter into, any agreement
pursuant to which it agrees to comply with Entitlement Orders of any Person
other than the Secured Party to the extent provided in Section 2.03, with
respect to the Reserve Account.
(e) The Securities Intermediary has not entered into any
other agreement with the Trust or the Secured Party purporting to limit or
condition the obligation of the Securities Intermediary to comply with
Entitlement Orders as set forth in Section 2.03.
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ARTICLE FOUR
MISCELLANEOUS
4.01. Choice of Law. This Agreement and the Reserve Account
shall be governed by the laws of the State of New York, without reference to its
conflict of law provisions (other than Section 5-1401 of the General Obligations
Law of the State of New York). Regardless of any provision in any other
agreement, for purposes of the UCC, New York shall be deemed to be the
Securities Intermediary's location and the Reserve Account (as well as the
Security Entitlements related thereto) shall be governed by the laws of the
State of New York.
4.02. Conflict with Other Agreements. There are no other
agreements entered into between the Securities Intermediary in such capacity and
the Trust with respect to the Reserve Account. In the event of any conflict
between this Agreement (or any portion thereof) and any other agreement now
existing or hereafter entered into, the terms of this Agreement shall prevail.
4.03. Amendments. No amendment or modification of this
Agreement or waiver of any right hereunder shall be binding on any party hereto
unless it is in writing and is signed by all of the parties hereto.
4.04. Successors. The terms of this Agreement shall be
binding upon, and shall inure to the benefit of, the parties hereto and their
respective corporate successors.
4.05. Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to, in the case of (i) the Trust c/o Wilmington Trust Company, at Rodney Square
North, 1100 N. Market Street, Wilmington, Delaware 19890 (telecopier no. (302)
651-8882), Attention: Corporate Trust Administration, with a copy to Nissan
Motor Acceptance Corporation, as Administrative Agent, at 990 West 190th Street,
Torrance, California 90502 (telecopier no. (310) 324-2542), Attention:
Treasurer, (ii) the Secured Party, at U.S. Bank National Association, Wrigley
Building, 400 North Michigan Avenue, 2nd Floor, Chicago IL 60611 (telecopier no.
(312) 836-6701), Attention: Nissan Auto Lease Trust 2003-A, and (iii) the
Securities Intermediary, at U.S. Bank National Association, Wrigley Building,
400 North Michigan Avenue, 2nd Floor, Chicago IL 60611 (telecopier no. (312)
836-6701), Attention: Nissan Auto Lease Trust 2003-A, or as to any of such
parties, at such other address as shall be designated by such party in a written
notice to the other parties.
4.06. Termination. The rights and powers granted herein to
the Secured Party have been granted in order to perfect its security interest in
the Reserve Account, are powers coupled with an interest and will neither be
affected by the bankruptcy of the Trust nor by the lapse of time. The
obligations of the Securities Intermediary hereunder shall continue in effect
with respect to the Reserve Account until the Secured Party shall have notified
the Securities Intermediary in writing that its security interests under the
Indenture has been terminated.
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4.07. Counterparts. This Agreement may be executed in any
number of counterparts, all of which shall constitute one and the same
instrument, and any party hereto may execute this Agreement by signing and
delivering one or more counterparts.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers as of the day and year first above
written.
NISSAN AUTO LEASE TRUST 2003-A
By: WILMINGTON TRUST COMPANY,
not in its individual capacity, but
solely as Owner Trustee
By: /s/ Anita E. Dallago
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Name: Anita E. Dallago
Title: Senior Financial Services Officer
U.S. BANK NATIONAL ASSOCIATION, as Indenture
Trustee and Secured Party
By: /s/ Patricia M. Child
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Name: Patricia M. Child
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, as
Securities Intermediary
By: /s/ Patricia M. Child
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Name: Patricia M. Child
Title: Vice President
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