EXECUTION COPY
EXHIBIT 4.5
NISSAN-INFINITI LT,
as Origination Trust,
NILT TRUST,
as UTI Beneficiary,
and
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer
------------------------------------
SERVICING AGREEMENT
Dated as of March 1, 1999
------------------------------------
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INTERPRETIVE PROVISIONS
Section 1.01. General Definitions......................................................................... 2
Section 1.02. Interpretation.............................................................................. 2
ARTICLE TWO
ADMINISTRATION AND SERVICING OF LEASES
Section 2.01. Duties of Servicer.......................................................................... 3
Section 2.02. Records..................................................................................... 5
Section 2.03. Custodial Duties of Servicer................................................................ 6
Section 2.04. Certificates of Title....................................................................... 6
Section 2.05. Initial Funding of Payments to Dealers...................................................... 7
Section 2.06. Servicer's Repurchase Obligations and Option................................................ 7
Section 2.07. Collections, Security Deposits and Other Receipts........................................... 9
Section 2.08. Settlement of Accounts...................................................................... 10
Section 2.09. Servicing Compensation...................................................................... 11
Section 2.10. Servicing Expenses and Reimbursement........................................................ 12
Section 2.11. Repossession, Recovery and Sale of Leased Vehicles.......................................... 12
Section 2.12. Servicer to Act on Behalf of Trustee........................................................ 13
Section 2.13. Liability of Servicer; Indemnities.......................................................... 13
Section 2.14. Third Party Claims.......................................................................... 15
Section 2.15. Insurance................................................................................... 15
ARTICLE THREE
STATEMENTS AND REPORTS
Section 3.01. Reporting by the Servicer; Delivery of Certain Documentation................................ 16
ARTICLE FOUR
SERVICER DEFAULTS
Section 4.01. Servicer Defaults; Termination of Servicer.................................................. 18
Section 4.02. No Effect on Other Parties.................................................................. 21
i
Page
----
ARTICLE FIVE
THE SERVICER
Section 5.01. Representations and Warranties.............................................................. 22
Section 5.02. Limitation on Liability of Servicer......................................................... 23
Section 5.03. Merger...................................................................................... 24
Section 5.04. Servicer Not to Resign; Assignment.......................................................... 24
ARTICLE SIX
MISCELLANEOUS
Section 6.01. Termination of Agreement; Transfer of Servicing Materials to Successor Servicer............. 26
Section 6.02. Amendment................................................................................... 26
Section 6.03. Governing Law............................................................................... 27
Section 6.04. Relationship of this Agreement to Other Trust Documents..................................... 27
Section 6.05. Notices..................................................................................... 27
Section 6.06. Severability of Provisions.................................................................. 28
Section 6.07. Inspection and Audit Rights................................................................. 28
Section 6.08. Binding Effect.............................................................................. 28
Section 6.09. Table of Contents and Headings.............................................................. 28
Section 6.10. Counterparts................................................................................ 28
Section 6.11. Further Assurances.......................................................................... 28
Section 6.12. Third-Party Beneficiaries................................................................... 29
Section 6.13. No Waiver; Cumulative Remedies.............................................................. 29
Section 6.14. No Petition................................................................................. 29
ARTICLES SEVEN, EIGHT AND NINE
[RESERVED]
SCHEDULES
Schedule I - Lease Document Locations .................................................................... SI-1
EXHIBITS
Exhibit A - Definitions................................................................................... A-1
Exhibit B - Leased Vehicle Power of Attorney.............................................................. B-1
Exhibit C - Filings Power of Attorney..................................................................... C-1
ii
SERVICING AGREEMENT
This Servicing Agreement, dated as of March 1, 1999, is 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 ("NMAC"), a California corporation, as servicer (the "Servicer").
RECITALS
WHEREAS, NILT Trust, as grantor (the "Grantor") and UTI Beneficiary,
the Servicer, NILT, Inc., a Delaware corporation, as trustee of the Origination
Trust (the "Trustee"), Wilmington Trust Company, a Delaware banking corporation,
as Delaware trustee (the "Delaware Trustee"), and U.S. Bank National
Association, as trust agent (the "Trust Agent"), have entered into the Amended
and Restated Trust and Servicing Agreement, dated as of August 26, 1998 (the
"Origination Trust Agreement"), pursuant to which the Origination Trust was
created to, among other things, take assignments and conveyances of and hold in
trust various assets (the "Trust Assets");
WHEREAS, the Origination Trust will be comprised of an undivided trust
interest (the "UTI") and one or more special units of beneficial interest (each,
a "SUBI"), each of which will constitute a separate series of the Origination
Trust under Delaware law, and each of which will have allocated to it certain
specified Trust Assets;
WHEREAS, the parties desire to provide for, among other things, the
servicing of the Trust Assets by the Servicer; and
WHEREAS, the parties acknowledge that, in connection with, among other
things, the creation of the UTI and one or more SUBIs, it may be necessary or
desirable to enter into supplemental agreements hereto, providing for specific
servicing obligations in connection therewith.
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
1.01 General Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Origination
Trust Agreement, except that references therein to the Trust shall be deemed to
refer to the Origination Trust. Whenever used in this Agreement, unless the
context otherwise requires, capitalized terms shall have the meanings ascribed
thereto in Exhibit A.
1.02 Interpretation. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, (i) terms
used in this Agreement include, as appropriate, all genders and the plural as
well as the singular, (ii) references to this Agreement include all Exhibits and
Schedules hereto, (iii) 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, (iv) 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, (v) the term "include" and all variations thereof shall mean
"include without limitation", (vi) the term "or" shall include "and/or", (vii)
the term "proceeds" shall have the meaning ascribed to such term in the UCC,
(viii) in the computation of a period of time from a specified date to a later
specified date, the word "from" shall mean "from and including" and the words
"to" and "until" shall mean "to but excluding" and (ix) the phrase "Trustee on
behalf of the Origination Trust," or words of similar import, shall, to the
extent required to effectuate the appointment of any Co-Trustee pursuant to the
Origination Trust Agreement, be deemed to refer to the Trustee (or such
Co-Trustee) on behalf of the Origination Trust.
2
ARTICLE Two
ADMINISTRATION AND SERVICING OF LEASES
2.01 Duties of Servicer.
(a) The Servicer shall service, administer and collect under the Leases
and in respect of the Leased Vehicles in accordance with this Agreement and
shall have full power and authority, acting alone and subject only to the
specific requirements and prohibitions of this Agreement, to do any and all
things in connection with such servicing, administration and collection that it
may reasonably deem necessary or desirable in the interests of the Origination
Trust. The duties of the Servicer shall include, among other things, in
accordance with this Agreement, the Origination Trust Agreement and any
applicable Supplement or Servicing Supplement:
(i) performing on behalf of the Origination Trust all
obligations on the part of the Lessor under the Leases;
(ii) collecting and processing payments, responding to
inquiries of Lessees, investigating delinquencies, sending payment
statements and reporting tax information to Lessees, paying costs of
the sale or other disposition of Leased Vehicles related to Liquidated
Leases and paying all state and local personal property, use, excise
and sales taxes on the Leased Vehicles (to the extent required to be
paid by the Lessor under applicable State law) as and when such taxes
become due;
(iii) negotiating with the Lessees of Leases nearing their
respective Maturity Dates and arranging for extensions of the related
Lease or the sale (to the Lessee, a Dealer or any other Person) or
other disposition of the related Leased Vehicle in accordance with the
Servicer's customary practices;
(iv) executing and delivering, in its own name or in the name
of the Origination Trust or the Trustee on behalf of the Origination
Trust, as the case may be, any and all instruments, certificates or
other documents necessary or advisable in connection with the servicing
or administering of or collecting under the Leases and in respect of
the Leased Vehicles, including: (A) bills of sale; (B) applications for
originals or duplicates of Certificates of Title in the name of the
Origination Trust or the Trustee on behalf of the Origination Trust,
applications for registrations of Leased Vehicles or license plates,
applications for transfers of Certificates of Title or registrations
for Leased Vehicles or license plates and any instruments, certificates
or other documents which the Servicer deems necessary or advisable to
record, maintain or release title to or registration of Leased Vehicles
in the manner contemplated hereby; (C) consents, amendments, extensions
or modifications to any of the Leases; and (D) all other instruments,
certificates or other documents similar to the foregoing;
(v) servicing the Leases, including: (A) accounting for
collections and furnishing periodic statements to the Trustee with
respect to distributions as set forth herein or in the applicable
Supplements or Servicing Supplements, (B) generating or
3
causing to be generated federal and state tax information and returns
on behalf of the Origination Trust and (C) filing periodic sales and
use tax or property (real or personal) tax reports;
(vi) in connection with the creation and maintenance of each
Sub-Trust, creating, maintaining and amending the Schedule of Leases
and Leased Vehicles, and delivering to the Trustee, from time to time,
as provided in a related Servicing Supplement, a Schedule of Leases and
Leased Vehicles that is current as of a date not more than ten days
prior to the date of such delivery;
(vii) applying for and maintaining the licenses, permits and
authorizations and making the filings described in Section 5.01(c) of
the Origination Trust Agreement; and
(viii) such other activities as shall be necessary or
advisable in connection with the foregoing.
For the purpose of servicing the Trust Assets, the servicing provisions
contained in this Agreement shall replace in their entirety the servicing
provisions contained in the Origination Trust Agreement.
(b) The Servicer shall service, administer and collect with respect to
the Leases and the Leased Vehicles using the same degree of care and diligence
as (i) NMAC employs in servicing leases and leased vehicles in NMAC's Portfolio
that are not assigned to the Origination Trust, or (ii) if NMAC is no longer the
Servicer, is customarily exercised by prudent servicers employed to service
retail leases of automobiles, sport utility vehicles, minivans or light-duty
trucks, as applicable, for themselves or others. The Servicer's procedures are
set forth in the Credit and Collection Policy. The Servicer shall maintain a
copy of the Credit and Collection Policy on behalf of the Origination Trust at
the Trust Office and shall promptly incorporate into such copy all material
changes thereto.
(c) The Servicer may retain subservicers or agents by agreement, power
of attorney or otherwise 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.
(d) The Servicer is authorized to, in its own name, in the name of the
Origination Trust or in the name of the Trustee (or a Co-Trustee) on behalf of
the Origination Trust, commence, defend against or otherwise participate in a
Proceeding relating to or involving the protection or enforcement of the
interests of the Origination Trust, the Trustee (or a Co-Trustee) on behalf of
the Origination Trust, a Holder or a Beneficiary 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 or in the name of the Origination
Trust or the Trustee (or a Co-Trustee) on behalf of the Origination Trust, a
relevant Holder or a Beneficiary, each such Person shall thereupon be deemed to
have automatically assigned its interest in (including legal title to) the
related Lease, Leased Vehicle or other Trust Asset, as applicable, to the
Servicer to the extent necessary for the purposes of such Proceeding. If in any
Proceeding it is held that the Servicer may not enforce the
4
rights of the Origination Trust, the Trustee (or a Co-Trustee) on behalf of the
Origination Trust, a relevant Holder or a relevant Beneficiary in a 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, the Trustee shall, at the direction of the Servicer,
take steps to enforce the interest of each related entity in such Lease, Leased
Vehicle or other Trust Asset, including bringing suit in its own name or in the
name of any of the foregoing.
(e) The Trustee shall furnish the Servicer with all powers of attorney
and other documents necessary or appropriate to enable the Servicer to carry out
its servicing, administration and collection duties hereunder and under each
applicable Supplement or Servicing Supplement.
2.02 Records.
(a) Except as otherwise provided in a related Servicing Supplement, the
Servicer shall maintain accurate and complete accounts, records and computer
systems with respect to (i) all funds and other receipts with respect to the UTI
and the SUBIs, (ii) the Trust Assets and (iii) all matters related directly to
the servicing of the Leases in each case, as are consistent with the customary
servicing procedures of the Servicer. Such accounts, records and computer
systems shall indicate the Sub-Trust to which each Lease, Leased Vehicle or
other Trust Asset is allocated and reflect the interest of the Related
Beneficiary therein. Except where otherwise noted in the definition of "Lease
Documents", the Servicer may maintain each Lease Document as an image, fiche or
electronic record rather than in original form. The Servicer shall not be
required to physically segregate the Lease Documents and related accounts,
records and computer systems from leases, vehicle information and related
documentation for other leases or vehicles in NMAC's Portfolio. The Servicer
shall conduct, or cause to be conducted, periodic examinations of a
representative sample of the Lease Documents for the Leases and of the related
accounts, records and computer systems to verify compliance with the Credit and
Collection Policy.
(b) The Servicer shall make available to the Trustee or its duly
authorized representatives, attorneys or auditors the Lease Documents and the
related accounts, records and computer systems maintained by the Servicer or any
subservicer or agent of the Servicer at such times as the Trustee shall
reasonably instruct at the locations where maintained pursuant to this
Agreement.
(c) The Servicer shall promptly report to the Trustee any material
failure on the part of the Servicer to hold or retain possession of the Lease
Documents and maintain its accounts, records and computer systems in accordance
with the requirements of this Agreement. The Servicer shall promptly take
appropriate action to remedy any such failure.
(d) To the extent that the Servicer has Lease Documents in its
possession, the Servicer shall hold such Lease Documents, as agent and bailee
for the benefit of the Origination Trust and all present and future Holders and
Beneficiaries.
(e) In the exercise of its duties and powers hereunder, the Servicer
may release any Lease Document to the Trustee (or any related Co-Trustee) on
behalf of the Origination Trust or its
5
agent or designee, as the case may be, at such place or places as the Trustee
(or such Co-Trustee) may designate. The Servicer shall not be responsible for
any Loss occasioned by the failure of the Trustee (or any related Co-Trustee) to
return any document or for any delay in doing so.
2.03 Custodial Duties of Servicer. The Servicer shall serve as
custodian of the Lease Documents for the benefit of the Origination Trust. The
Lease Documents are hereby constructively delivered to the Origination Trust
with respect to each Lease and Leased Vehicle. In its capacity as custodian, the
Servicer shall maintain possession of the Lease Documents as agent and bailee
for the benefit of the Origination Trust and all present and future Holders and
Beneficiaries. The Servicer shall hold such Lease Documents at the locations
specified in Schedule I or at such other location or locations as shall be
specified by the Servicer to the Trustee by 30 days' prior written notice.
2.04 Certificates of Title.
(a) In connection with the filing of the application for each
Certificate of Title, the Servicer shall arrange for the related Registrar of
Titles to issue and deliver to or upon the order of the Servicer a Certificate
of Title identifying the Origination Trust or the Trustee (or a Co-Trustee) on
behalf of the Origination Trust as the owner of the related Leased Vehicle. The
Certificates of Title shall be held by the Servicer. The Servicer shall direct
each Dealer or other entity assigning Leases or causing Leases to be assigned to
the Origination Trust or the Trustee (or a Co-Trustee) on behalf of the
Origination Trust to cause each Certificate of Title to identify (i) the owner
of the Leased Vehicle as "Nissan-Infiniti LT", "SunTrust Bk Atlanta", "NILT c/o
[Lessee's Name]", "NILT, Inc., as Trustee for Nissan-Infiniti LT", "NILT, Inc.",
the name of a co-trustee as may be required under applicable State law or such
other designation as may be agreed upon by the Servicer and the Related
Beneficiary from time to time that is acceptable to the related Registrar of
Titles, and (ii) if Administrative Liens are used, such first lienholder as may
be agreed upon by the Servicer and the Related Beneficiary from time to time and
that is acceptable to the applicable Registrar of Titles.
(b) Except as otherwise required by applicable law, the related
Registrar of Titles or the Servicer's customary servicing procedures, the
Servicer shall direct each Dealer to include the address of the Principal
Service Facility as the mailing address for the Certificate of Title, the
address of the related Lessee as the mailing address for the vehicle
registration, and, where applicable, the address of the Principal Service
Facility, as the address of the first lienholder, and otherwise to comply with
the Servicer's normal requirements under the Dealer Agreements with respect to
each Lease and Certificate of Title. Except as otherwise required by applicable
law or the applicable Registrar of Titles, so long as a Leased Vehicle is owned
by the Origination Trust, the Servicer shall not permit the related Certificate
of Title to identify any entity other than in compliance with Section 2.04(a).
(c) Upon transfer to or from the Origination Trust or the Trustee (or a
Co-Trustee) on behalf of the Origination Trust of legal title to any Leased
Vehicle, the Servicer shall cause all applicable Taxes to be paid and will
comply with all applicable federal and State law requirements related to the
transfer of title to such Leased Vehicle.
6
2.05 Initial Funding of Payments to Dealers.
(a) In the ordinary course of its business, NMAC shall maintain or
enter into Dealer Agreements with Dealers eligible to generate Eligible Leases.
Pursuant to the Assignment Agreement, NMAC shall direct each Dealer (i) to
assign to the Origination Trust or the Trustee (or a Co-Trustee) on behalf of
the Origination Trust all Eligible Leases and the related Leased Vehicles and
(ii) to apply for the Certificates of Title to the Leased Vehicles related to
Leases originated by such Dealer to be issued with the name on the Certificate
of Title as specified by the Servicer in accordance with Section 2.04. Pursuant
to the Assignment Agreement, NMAC will instruct each Dealer to deliver the
applicable Lease Documents to or upon the order of the Servicer. The obligations
of the Servicer pursuant to this Section shall survive any partial or complete
termination of the Servicer pursuant to this Agreement.
(b) Except as otherwise prohibited in the applicable Supplement or
Servicing Supplement, the UTI beneficiary shall make Capital Contributions to
the Origination Trust in the amounts required to pay to 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. 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. In lieu of paying Capital Contributions 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 directly to the Dealers to whom payment is
due.
2.06 Servicer's Repurchase Obligations and Option.
(a) The Servicer hereby represents and warrants to the other parties
hereto and the parties to the Origination Trust Agreement that, as to each Lease
and the related Leased Vehicle as of the relevant Vehicle Representation Date,
the Servicer has satisfied, or has directed the related Dealer to satisfy, the
provisions of Section 2.04 with respect to such Lease and the application for
the related Certificate of Title. The Origination Trust shall rely on such
representation and warranty in accepting each Lease and Leased Vehicle. Such
representation and warranty shall survive the transfer of each Lease and the
related Leased Vehicle, and delivery of the related Lease Documents to the Trust
pursuant to the Origination Trust Agreement and this Agreement.
(b) Upon discovery by the Trustee, the Servicer, the Related
Beneficiary or a related Holder that the representation or warranty in Section
2.06(a) was incorrect as of the related Vehicle Representation Date in a manner
that materially adversely affects the interest of the Origination Trust in the
related Lease or a Leased Vehicle, the Person discovering such incorrectness (if
other than the Servicer) shall give prompt written notice to the Servicer.
Except as otherwise prohibited in the applicable Supplement or Servicing
Supplement, on or before the Payment Date related to the Collection Period in
which the Servicer discovers such incorrectness (whether pursuant to such notice
or otherwise), the Servicer shall cure in all material respects the circumstance
or condition with respect to which the representation or warranty was incorrect
as of the related Vehicle Representation Date. If the Servicer will be unable or
unwilling to cure such circumstance or condition by such Payment Date, on the
Deposit Date for the related
7
Collection Period, the Servicer shall (i) deposit (or cause to be deposited)
into the Collection Account an amount equal to the Repurchase Amount, and (ii)
direct the Trustee to cause such Lease and Leased Vehicle to be conveyed to the
Servicer or Dealer as described below. If the Servicer receives funds from a
Dealer pursuant to such Dealer's obligation under a Dealer Agreement or
otherwise to repurchase a Lease and Leased Vehicle that is required to be
repurchased or reallocated pursuant to this Section, the Servicer shall deposit
such funds within two Business Days of receipt to the Collection Account and
return to such Dealer the Lease and any Certificate of Title that has been
issued with respect to the related Leased Vehicle.
(c) If a Lessee changes the domicile of or title to a Leased Vehicle
and such change would be likely to result in the Origination Trust doing
business in a Restricted Jurisdiction, then on the Deposit Date related to the
Collection Period in which the Servicer discovers or is notified of such change,
the Servicer shall purchase such Lease and the related Leased Vehicle by either
(i) depositing to the Collection Account an amount equal to the Repurchase
Amount or (ii) appropriately segregating and designating an amount equal to the
Repurchase Amount on its records, pending application thereof pursuant to this
Agreement.
(d) The purchase by the Servicer or a Dealer of a Lease and the related
Leased Vehicle pursuant to this Section shall be deemed to cure the breach of
representation or warranty or other situation giving rise to the repurchase
obligation for purposes of this Agreement. Upon any such purchase, the
Origination Trust or the Trustee (or a Co-Trustee) on behalf of the Origination
Trust, as applicable, shall be deemed to transfer, assign, set over and
otherwise convey to the Servicer (or the related Dealer, as applicable), without
recourse, representation or warranty, all of the Origination Trust's interest in
the repurchased Lease and Leased Vehicle, including all monies due or to become
due with respect thereto after the date of such repurchase and all proceeds
thereof. The Trustee shall, at the expense of the Servicer, execute such
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by the Servicer to effect the conveyance of
such Lease and Leased Vehicle pursuant to this Section. Such actions shall
include executing and filing with the related Registrar of Titles an application
for transfer of ownership of the related Leased Vehicle to the Servicer or the
Dealer, as applicable.
(e) Except as otherwise set forth herein or in the related Supplement
or Servicing Supplement, the sole remedy of the Origination Trust, the Related
Beneficiary and the related Holders with respect to a change of domicile by a
Lessee resulting in the Origination Trust doing business in a Restricted
Jurisdiction shall be to require the Servicer to deposit the applicable
Repurchase Amount in the Collection Account and thereby purchase the applicable
Lease and Leased Vehicle as provided in this Section. The obligations of the
Servicer under this Section shall survive any partial or complete termination of
the Servicer hereunder.
(f) Notwithstanding the foregoing, the Servicer may purchase a Matured
Vehicle at any time. If such Leased Vehicle is allocated to (i) the UTI, the
purchase price shall equal the Lease Book Balance of such Lease as of the
related Maturity Date or (ii) a Sub-Trust, the purchase price shall be
determined as set forth in the related Servicing Supplement.
8
2.07 Collections, Security Deposits and Other Receipts.
(a) The Servicer shall use commercially reasonable efforts to (i)
collect all payments required under each Lease and (ii) cause each Lessee to
make all payments required under its Lease, accompanied by an invoice, payment
coupon or electronic funds transfer notice bearing the lease number to which
such payment relates. Consistent with the foregoing, the Servicer may in its
discretion waive any late payment charge, in whole or in part, in connection
with delinquent payments on a Lease. The Servicer shall account to the
Origination Trust for the Trust Assets related to each Sub-Trust separately in
accordance with this Agreement, the Origination Trust Agreement and the related
Servicing Supplement or Supplement.
(b) To the extent required by a related Supplement or Servicing
Supplement, the Servicer shall transfer from the related Collection Account (or
a SUBI Lease Account, as applicable) such funds as are required to be so
transferred in connection with any Trust Asset Transfer.
(c) With respect to any Collections received by the Servicer:
(i) Within two Business Days after receiving any check or
other receipt related to a Lease, the Servicer shall enter into its
computer system the following information, to the extent available: (A)
the amount of the receipt, (B) the lease number to which such receipt
relates, (C) the nature of the payment (i.e., whether a Monthly
Payment, a Payment Ahead, a Payoff, proceeds of Dealer Recourse, Net
Auction Proceeds, Net Liquidation Proceeds, Insurance Proceeds or
Administrative Charge (and type thereof)), (D) the date of receipt of
such payment and (E) the Sub-Trust to which such Lease has been
allocated (collectively, the "Payment Information").
(ii) As to any such funds received by the Servicer for which
the Servicer does not have all Payment Information, the Servicer shall
enter into its computer system all available Payment Information and
use its commercially reasonable efforts to obtain all missing Payment
Information as soon as practicable and shall enter the remaining
Payment Information into its computer system upon receipt thereof.
(iii) The Servicer shall cause the portions of the
Administrative Charge representing allocations of taxes to pay all such
amounts as are contemplated by the related Lease.
(iv) 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 a related Servicing Supplement, either (1)
deposit into the related Collection Account all such funds other than
(x) Administrative Charges and (y) Disposition Expenses, Liquidation
Expenses and Insurance Expenses to be reimbursed to the Servicer
pursuant to Section 2.11, or (2) appropriately segregate and designate
such funds on its records, pending application thereof pursuant to this
Agreement.
(d) With respect to Security Deposits:
9
(i) Subject to Section 6.01(b), the Servicer shall treat all
Security Deposits remitted to it (or deemed remitted to it) in
accordance with its customary servicing procedures as agent, custodian
and bailee for the Origination Trust and as proceeds of the Leases,
pending application of the proceeds thereof pursuant to clause (ii)
below.
(ii) The Servicer shall apply the proceeds of each Security
Deposit in accordance with applicable law and the terms of the related
Lease, including payment of shortfalls resulting from the related
Lessee's default or failure to make payments required by the related
lease or from damage to the related Leased Vehicle. Upon termination of
a Lease, the Servicer shall return to the related Lessee any portion of
the related Security Deposit remaining after deducting any amounts
permitted under applicable law and the related Lease. To the extent
permitted by applicable law and the related Lease, if a Lease becomes a
Liquidated Lease, then the related Security Deposit shall become
Liquidation Proceeds, which the Servicer shall apply (net of any
Liquidation Expenses) to amounts owed by the related Lessee under such
Lease.
(iii) The Servicer shall not be required to segregate Security
Deposits from its own funds (except for Security Deposits paid in
connection with Leases originated in the state of New York, which
Security Deposits must be segregated). Any income earned from any
investment on the Security Deposits by the Servicer shall be for the
account of the Servicer as additional compensation (except for income
earned on Security Deposits paid in connection with Leases originated
in the state of New York, which income, if any, must be reserved for
the lessee who initially paid the Security Deposit).
(e) With respect to any other funds received by the Servicer or the
Trustee related to any Trust Asset, upon receipt the Servicer shall either (i)
deposit such funds to the related Collection Account or (ii) appropriately
segregate and designate such funds on its records, pending application thereof
pursuant to this Agreement.
(f) The Servicer shall from time to time, in accordance with the
Origination Trust Agreement or an applicable Supplement or Servicing Supplement,
(i) identify and allocate on the books and records of the Origination Trust
certain Leases and Leased Vehicles into one or more SUBIs, either upon the
initial creation of such SUBI or periodically following its creation, and (ii)
direct the Trustee to transfer periodically from and to the related Trust
Accounts (A) such funds as are provided for in such Supplement or Servicing
Supplement in connection with any Trust Asset Transfer and (B) such SUBI's
appropriate share of the Liabilities of the Origination Trust, as determined in
accordance with the Origination Trust Agreement and such Supplement or Servicing
Supplement.
2.08 Settlement of Accounts.
(a) On or before each Calculation Date, the Servicer shall, with
respect to (i) the UTI and (ii) the SUBI, deliver to the Trustee, each UTI
Holder, SUBI Holder and each Registered Pledgee, a Settlement Statement
documenting, as applicable, (A) all advances to be made to, and distributions
(including Servicer reimbursement) to be made from, the related Collection
10
Account, or (B) the manner in which the Servicer will apply all related UTI
Collections or SUBI Collections received by the Servicer on or prior to the next
ensuing Payment Date.
(b) The Servicer shall, from time to time, determine the respective
amounts and recipients and:
(i) as and when required by and as provided in this Agreement
or a related Servicing Supplement, transfer from the related Collection
Account to the Servicer any due and unpaid Servicing Fees;
(ii) as and when required by the Origination Trust Agreement,
this Agreement or a related Supplement or Servicing Supplement,
transfer from the UTI Collection Account any Trust Expenses,
Reimbursable Expenses or Liabilities for which reimbursement is
authorized hereunder or thereunder to the Person entitled thereto;
(iii) as and when required by a related Supplement or
Servicing Supplement, transfer from the related SUBI Collection Account
to the UTI Collection Account funding for each SUBI's share of any
allocable Trust Expenses, Reimbursable Expenses or Losses for which
reimbursement is authorized by the Origination Trust Agreement or such
Supplement or Servicing Supplement to the extent not otherwise provided
for in this Section;
(iv) as and when required in connection with a Securitized
Financing, transfer from the related Collection Account to the related
Distribution Account such amounts as are required to be distributed
from time to time in connection with such Securitized Financing;
(v) as and when required by the Origination Trust Agreement or
a related Supplement or Servicing Supplement, transfer between the
related Collection Accounts (or a SUBI Lease Account, as applicable)
any other funds as provided for in the Origination Trust Agreement or
any such Supplement or Servicing Supplement; and
(c) Anything to the contrary notwithstanding, the Servicer shall be
entitled to make any of the foregoing transfers by appropriately segregating and
designating the relevant funds on its records, pending application thereof in
accordance with this Agreement.
2.09 Servicing Compensation.
(a) As compensation for the performance of its obligations under this
Agreement, and subject to any applicable Servicing Supplement, the Servicer
shall be entitled to receive with respect to (i) the UTI, the Servicing Fee and
(ii) a SUBI, such Servicing Fee and such additional compensation as may be
provided for in the related SUBI Servicing Supplement. If at any time the
Servicer shall service only the Trust Assets allocated to a particular
Sub-Trust, any servicing compensation shall be calculated based only on such
Trust Assets and shall be deemed to be an expense incurred only with respect to
such Sub-Trust. The Servicing Fee shall be deemed to be an expense incurred with
respect to and allocated to the related Trust Assets, rather than all Trust
11
Assets generally, and shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
(b) Unless otherwise provided in a Servicing Supplement, the Servicer
shall be entitled to additional servicing compensation with respect to the
related Trust Assets in the form of Administrative Charges to the extent not
required for the payment of insurance premiums, taxes or similar charges
allocable to the Leases.
2.10 Servicing Expenses and Reimbursement.
(a) Subject to any applicable Servicing Supplement, the Servicer shall
pay all expenses incurred by it in connection with its servicing activities and
shall not be entitled to reimbursement of such expenses except for unpaid
Disposition Expenses, Insurance Expenses, Liquidation Expenses and Reimbursable
Expenses. The Servicer shall advance Insurance Expenses, Disposition Expenses,
Liquidation Expenses and Reimbursable Expenses to the extent required to service
the related Trust Assets. The Servicer shall be entitled to be reimbursed for
Insurance Expenses, Disposition Expenses and Liquidation Expenses to which it is
entitled by depositing only Net Insurance Proceeds, Net Auction Proceeds and Net
Liquidation Proceeds to the related Collection Account or by appropriately
segregating and designating such funds on its records, pending application
thereof.
(b) Except as otherwise provided in a Supplement or Servicing
Supplement, the Servicer may obtain on any day from the Origination Trust, out
of each Collection Account, reimbursement for any Reimbursable Expenses for the
related Sub-Trust for any or all prior Collection Periods; provided, that (i)
the Servicer shall have delivered to the Trustee an Officer's Certificate
setting forth the calculation of such Reimbursable Expenses and (ii) any such
reimbursement may not exceed the excess, if any, as of the date immediately
preceding the date of such Officer's Certificate, of the related Collection
Account Balance over the Required Collection Account Balance.
2.11 Repossession, Recovery and Sale of Leased Vehicles.
(a) Subject to Section 2.11(b), the Servicer shall use commercially
reasonable efforts to sell or otherwise dispose of any Matured Vehicle not
purchased by the Lessee and to repossess or recover and sell or otherwise
dispose of any Liquidated Vehicle. In accordance with the foregoing standards,
the Servicer shall follow such practices and procedures as are consistent with
the standards set forth in Section 2.01(b), which may include (i) engaging in
self-help repossession to the extent permitted under applicable law, (ii)
exercising reasonable efforts to realize upon Dealer Recourse, (iii) consigning
a Leased Vehicle to a Dealer for resale or re-lease (to the extent permitted by
applicable law), (iv) selling a Leased Vehicle at public or private sale in a
commercially reasonable manner or (v) commencing and prosecuting Proceedings
with respect to such Lease or the related Leased Vehicle, in each case in
compliance with the related Lease and all applicable laws.
(b) The Servicer shall not be required to expend its own funds in
repairing a Leased Vehicle that has been damaged unless the Servicer shall
reasonably determine that such
12
expenditure is likely to enhance Net Auction Proceeds or Net Liquidation
Proceeds, as applicable. The Servicer shall expend funds in connection with the
repossession, recovery or sale of any Leased Vehicle (and such expense shall be
deemed a Liquidation Expense) only to the extent that it reasonably determines
that anticipated Liquidation Expenses will not exceed anticipated Liquidation
Proceeds. Except as otherwise provided in the related Servicing Supplement, the
Servicer shall be reimbursed for Disposition Expenses and Liquidation Expenses
as provided in Section 2.10. The Trustee on behalf of the Origination Trust
shall grant to the Servicer a Leased Vehicle Power of Attorney, and the
Servicer, as "Grantee" thereunder, with full power of substitution, shall give
prompt notice to the Trustee upon any such substitution.
2.12 Servicer to Act on Behalf of Trustee.
(a) The Servicer shall be deemed to have received proper instructions
with respect to any of the books and records relating to the Trust Assets,
including any Lease Document, upon receipt of written instructions by a
Responsible Officer of the Trustee (or a Co-Trustee) or the Trust Agent. A
certified copy of a bylaw or a Board Resolution of the Trustee or the Trust
Agent shall constitute conclusive evidence of the authority of any such
Responsible Officer to act and shall be considered in full force and effect
until receipt by the Servicer of written notice to the contrary given by the
Trustee or the Trust Agent, as the case may be.
(b) The Servicer shall identify from time to time all (i) UCC financing
statements reflecting certain interests in Leases allocated to a particular
Sub-Trust and all related rights, (ii) periodic sales and use tax, income or
franchise tax or property (real or personal) tax reports for the Origination
Trust and the Trustee, (iii) periodic renewals of licenses and permits, (iv)
periodic renewals of qualifications to act as a business trust and trustee of a
business trust and (v) other periodic governmental filings, returns,
registrations or approvals (collectively, "Filings") arising with respect to or
required of the Trustee or the Origination Trust, including (in the case of
clauses (iii) and (v)) such licenses, permits and other Filings as are required
for the Origination Trust or the Trustee on behalf of the Origination Trust, as
the case may be, to accept assignments of Leases or Leased Vehicles and to be
identified and maintained as the owner of the Leased Vehicles on the related
Certificates of Title, as contemplated by Sections 2.04 and 2.05(a). The
Servicer shall also identify any surety bonds or other ancillary undertakings
required of the Origination Trust or the Trustee in respect of any Filing. The
Servicer, with, to the extent applicable, the cooperation of the UTI
Beneficiary, the Trustee or the Origination Trust, shall timely prepare and file
or cause to be filed, with the appropriate Person each Filing and each such
ancillary undertaking, and shall pay any and all fees, Taxes or expenses
required to be paid in connection with the foregoing. The Servicer shall provide
to the Trustee a copy of each such Filing or undertaking upon request, other
than Consolidated Tax Filings. In connection with this Section, the Trustee
shall grant to the Servicer such authority, including any necessary power of
attorney (including a Filings Power of Attorney), as it may require to effect
each such Filing or ancillary undertaking. If the Servicer receives notice, or
has actual knowledge, of material non-compliance with any Filing requirement, it
shall promptly so notify the Trustee. The Servicer shall not be required to
perform any of the actions specified in this Section in connection with any
requirements that may be applicable to any Co-Trustee, except to the extent
provided for in an applicable Co-Trustee Agreement to which the Servicer is a
party.
13
2.13 Liability of Servicer; Indemnities.
(a) The Servicer shall be liable under this Agreement only to the
extent of the obligations specifically undertaken by it and shall have no other
obligations or liabilities hereunder.
(b) The Servicer shall indemnify, defend and hold harmless the
following parties:
(i) the Origination Trust, the Trustee, any Co-Trustees, the
Trust Agent, the Beneficiaries, the Holders and any Registered
Pledgees, and their respective officers, directors, shareholders,
Affiliates, employees and agents, from and against any and all Losses
arising out of or resulting from the use or operation of any Leased
Vehicle by the Servicer or any Affiliate thereof;
(ii) the Origination Trust, the Trustee, any Co-Trustees, the
Trust Agent, the Beneficiaries, the Holders and any Registered Pledgees
from and against any and all Losses to the extent that such Losses
arose out of, or were imposed upon, such Persons by reason of the
performance by the Servicer of its duties under this Agreement, the
Trust Agreement or a Servicing Supplement (excluding credit and
residual Losses) or by reason of its disregard of its obligations and
duties hereunder or thereunder;
(iii) the Origination Trust, the Trustee, any Co-Trustees and
the Trust Agent from and against any Taxes that may at any time be
asserted against the Origination Trust, the Trustee, any Co-Trustee or
the Trust Agent with respect to the transactions contemplated by this
Agreement, the Origination Trust Agreement or a Servicing Supplement
(other than Taxes based on income payable to such Persons hereunder and
thereunder), including any sales, gross receipts, general corporation,
tangible personal property, privilege or license Taxes and costs and
expenses in defending against the same; and
(iv) the Trustee, any Co-Trustees and the Trust Agent from and
against all Losses arising out of or incurred in connection with their
acceptance or performance of the trusts and duties contained in this
Agreement, a Servicing Supplement or any other Trust Document, except
to the extent that any such Loss (A) is due to the willful misconduct,
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, any Co-Trustee or the Trust Agent of any of its
obligations, representations or warranties in this Agreement, a
Servicing Supplement or in any Trust Agency Agreement or (C) arises out
of or is incurred in connection with the performance by the Trust Agent
of the duties of Successor Servicer hereunder.
(c) If the Servicer has made any indemnity payment pursuant to this
Section, it shall be a condition of such payment that if the recipient
thereafter collects from the Origination Trust, the Trust Assets or third
parties any amounts with respect to which the Servicer has made an indemnity
payment to the recipient hereunder, the Servicer shall be entitled to be
reimbursed by the recipient to the extent of such amounts collected, without
interest.
14
(d) The obligations of the Servicer under this Section shall survive
(i) any transaction described in Section 5.04 and any acts, occurrences or
transactions related thereto whether arising before or after the date of such
transaction, (ii) the resignation or removal of the Servicer or the Trustee and
(iii) the termination of this Agreement, any related Servicing Supplement and
the other Trust Documents.
(e) This Section supercedes Section 6.02(a) of the Origination Trust
Agreement.
2.14 Third Party Claims. The Servicer shall immediately notify the UTI
Beneficiary, each Related Beneficiary, each related Holder and the Trustee, upon
learning of a Claim or Lien of whatever kind of a third party that would be
likely to have a material adverse impact (not reasonably expected to be covered
by insurance) on the Origination Trust, any Sub-Trust or any Trust Assets
allocated to a particular Sub-Trust. The Servicer shall be responsible for the
defense of any Claim against the Trustee arising pursuant to or in connection
with a Claim or Proceeding (i) contemplated by Sections 2.13(b)(i), (ii) and
(iii), subject to the qualifications described therein, (ii) originally
commenced by the Servicer to enforce a Lease or (iii) with respect to the
servicing of a Lease. If the Servicer is responsible for the defense of such a
Proceeding or Claim, the Servicer will provide such information with respect
thereto as is reasonably requested by the UTI Beneficiary, a Related
Beneficiary, a related Holder (including any Registered Pledgees entitled to
such information) or the Trustee, as applicable.
2.15 Insurance.
(a) At the inception of each Lease, the Servicer shall (i) require each
Lessee to execute and deliver to the Servicer, on behalf of the Origination
Trust, an Agreement to Provide Insurance and (ii) in States where so required by
the issuer of the Contingent and Excess Liability Insurance Policy, obtain
confirmation of the issuance to the Lessee of automotive liability insurance
meeting the requirements of such issuer. If a Lessee fails to obtain or maintain
required insurance, the Servicer may deem the related Lease to be in default,
and the Servicer shall determine whether to repossess or recover the related
Leased Vehicle in accordance with Section 2.11 or otherwise to seek enforcement
of such Lease.
(b) The Servicer will maintain and pay when due all premiums with
respect to, and the Servicer may not terminate or cause the termination of, the
Contingent and Excess Liability Insurance Policy unless a replacement insurance
policy or policies is obtained providing coverage against third party claims
that may be raised against the Origination Trust or the Trustee on behalf of the
Origination Trust and, except as otherwise provided in a Servicing Supplement
relating to a Securitized Financing, against any trust created in connection
with such Securitized Financing that issues securities, in each case with
respect to any Leased Vehicle (or, in the case of any such securitization trust,
against the Leased Vehicles allocated to the related UTI or SUBI, as the case
may be), in an amount at least equal to $1 million combined single limit per
occurrence and excess coverage of $15 million combined single limit each
occurrence without limit on the number of occurrences in any policy period
(which policy or policies may be a blanket insurance policy or policies covering
the Servicer and one or more of its Affiliates). On or before March 31 of each
year, commencing March 31, 2001, the Servicer shall provide to the Trustee an
Officer's Certificate certifying that the Insurance Policy the Servicer is
required to
15
maintain pursuant to this Section is in full force and effect. The obligations
of the Servicer pursuant to this Section with respect to the Trust Assets shall
survive any termination of the Servicer's other obligations under this Agreement
until such time as Claims can no longer be brought which would be covered by
such policies, whether as a result of the expiration of relevant statutes of
limitations or otherwise.
16
ARTICLE Three
STATEMENTS AND REPORTS
3.01 Reporting by the Servicer; Delivery of Certain Documentation.
(a) Except as otherwise provided in any Servicing Supplement, on each
Calculation Date, the Servicer shall deliver to the Trustee, each Beneficiary
and each Holder (including any Registered Pledgee entitled thereto) a Settlement
Statement for the related Collection Period.
(b) Within 90 days after the end of each fiscal year (commencing June
30, 2000), the Servicer shall cause the Independent Accountants of the Servicer
to deliver an agreed-upon procedures letter for the preceding year (or shorter
period, with respect to the first such letter) ended March 31, addressed to the
Trustee, the Servicer, the Related Beneficiaries, the related Holders (including
any Registered Pledgee entitled thereto) and if any Rated Securities are
outstanding, each Rating Agency, confirming that such Independent Accountants
have performed the outlined procedures and such other auditing procedures as
they considered necessary in the circumstances and stating that nothing came to
the attention of such Independent Accountants that caused them to believe that
the servicing of the Leases was not being conducted, or that distributions on
the Rated Securities (if any) were not being made, in each case in accordance
with this Agreement and any applicable Servicing Supplement, except for such
exceptions as such firm shall believe to be immaterial and such other exceptions
as shall be set forth in such statement. In the event such Independent
Accountants require the Trustee to agree to the outlined procedures, the
Servicer shall direct the Trustee in writing to so agree; it being understood
and agreed that the Trustee will deliver such letter of agreement in conclusive
reliance upon the direction of the Servicer, and that the Trustee has not made
any independent inquiry or investigation as to, and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures.
(c) Within 90 days after the end of each fiscal year (commencing June
30, 2000), the Servicer shall deliver an Officer's Certificate to the Trustee,
the Related Beneficiaries and each UTI Holder (including any Registered Pledgee
entitled thereto) to the effect that a review of the activities of the Servicer
during the preceding year (or shorter period, with respect to the first such
certificate) ended March 31 has been made under the supervision of the officer
executing such Officer's Certificate with a view to determining whether during
such year (or shorter period, as applicable) a Servicer Default has occurred,
and (i) stating that, to the best knowledge of such officer, no Servicer Default
has occurred or (ii) if a Servicer Default has occurred, specifying the nature
of such default and the status thereof.
(d) On or before each Calculation Date, the Servicer shall, with
respect to (i) the UTI, upon request and (ii) each SUBI, as specified in a
related Servicing Supplement, cause to be delivered to (A) the Trustee, upon
request, a revised Schedule of Leases and Leased Vehicles, containing data as of
the last day of the related Collection Period, (B) the Trustee and the Related
Beneficiary, a report in respect of such Collection Period setting forth any
information required to be set forth therein by the related Servicing Supplement
and (C) the Trustee, to the extent reimbursement is requested pursuant to
Section 2.10, an Officer's Certificate of the Servicer
17
identifying all related Leases and Vehicles acquired by the Origination Trust
during such Collection Period, the aggregate cost of such acquisitions, the
amount transferred by the Servicer during such Collection Period to fund such
acquisitions, the amount of all Reimbursable Expenses paid by the Servicer
during such Collection Period, the amount of all Capital Contributions made by
the Related Beneficiary during such Collection Period, the amount of any
transfer during such Collection Period into the related Collection Account and
the balance due the Servicer with respect to any unreimbursed advances.
18
ARTICLE Four
SERVICER DEFAULTS
4.01 Servicer Defaults; Termination of Servicer.
(a) Any of the following acts or occurrences shall constitute a
"Servicer Default":
(i) the Servicer shall fail to deposit, apply or distribute
Collections in the manner and at such time as required hereunder,
including, without limitation, failing to deliver to the Trustee for
distribution to or for the account of a Holder any amounts required to
be so distributed pursuant to this Agreement (including a related
Servicing Supplement), and such failure shall have continued for a
period of ten Business Days after either discovery by an officer of the
Servicer of such failure or written notice of such failure shall have
been given to the Servicer by the Trustee or such Holder; provided,
however, that any such failure with respect to any Sub-Trust shall be a
Servicer Default only with respect to such Sub-Trust and not with
respect to any other Sub-Trust;
(ii) the Servicer shall fail to duly observe or perform in any
material respect any of its covenants or agreements in this Agreement
or a Servicing Supplement not otherwise covered in this Section
4.01(a), which failure materially and adversely affects the rights of
the Origination Trust or a related Holder, Registered Pledgee or a
holder of a Security, and such default shall have continued for a
period of 90 days after the earlier of the time (A) written notice
thereof shall have been given to the Servicer by the Trustee or such
Holder or Registered Pledgee or (B) such default becomes known to the
Servicer; provided, however, that (1) any such default with respect to
any Sub-Trust shall be a Servicer Default only with respect to such
Sub-Trust and not with respect to any other Sub-Trust, and (2) the
determination of materiality with respect to any Sub-Trust shall be
made by reference to the related Holder and not by reference to any
other Holder;
(iii) (A) the existence of any Proceeding in, or the entry of
a decree or order for relief by, a court or regulatory authority having
jurisdiction over the Servicer in an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, (B) the appointment of
a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official with respect to the Servicer or of any
substantial part of its property or (C) the ordering of the winding up
or liquidation of the affairs of the Servicer, and in each case, the
continuance of any such Proceeding unstayed and in effect for a period
of 90 consecutive days or immediately upon entry of any decree or
order;
(iv) the Servicer shall (A) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its
property, (B) admit in writing its inability, or be generally unable,
to pay its debts as they become due, (C) make a general assignment for
the benefit of creditors, (D) commence a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, (E) be
adjudicated a bankrupt or insolvent, (F) file a petition seeking to
19
take advantage of any other law providing for the relief of debtors or
(G) take any corporate action for the purpose of effecting any of the
foregoing;
(v) any representation, warranty or statement of the Servicer
made in this Agreement or in a related Servicing Supplement (excluding
those contemplated by Section 2.06(a)) or any certificate, report or
other writing delivered pursuant to this Agreement or a related
Servicing Supplement, shall prove to have been incorrect in any
material respect when made and has a material adverse effect on a
related Holder, Registered Pledgee or a holder of a Security and, if
such default is of a type that may be corrected, the failure to correct
the default within 30 days after the earlier of the time (A) written
notice thereof shall have been given to the Servicer by the Trustee or
such Holder or Registered Pledgee or (B) such incorrectness becomes
known to the Servicer; provided, however, that (1) any such incorrect
representation, warranty or statement made with respect to any
Sub-Trust shall be a Servicer Default only with respect to such
Sub-Trust and not with respect to any other Sub-Trust and (2) the
determination of a material adverse effect with respect to any
Sub-Trust shall be made only by reference to the related Holder and not
to any other Holder;
(vi) the Servicer shall have failed to perform its obligations
under Section 2.15(b) with respect to the Contingent and Excess
Liability Insurance Policy and such failure shall continue for a period
of ten Business Days after the earlier of the time (A) written notice
thereof shall have been given to the Servicer by the Trustee, a Holder
or Registered Pledgee or (B) such failure becomes known to the
Servicer; or
(vii) the Servicer shall fail to deliver to the Trustee any
report required to be delivered to the Trustee pursuant to this
Agreement or a Servicing Supplement within 60 Business Days after the
date such report is due; provided, however, that any such failure with
respect to any Sub-Trust shall be a Servicer Default only with respect
to such Sub-Trust and not with respect to any other Sub-Trust.
Notwithstanding the foregoing, a delay in or failure of performance under clause
(i) for a period of ten Business Days, under clause (ii) for a period of 120
days, under clause (v) for a period of 90 days or under clause (vii) for a
period of 60 days, shall not constitute a Servicer Default if caused by a Force
Majeure Event. Upon the occurrence of a Force Majeure Event, the Servicer shall
(i) make commercially reasonable efforts to perform its obligations hereunder in
a timely manner in accordance with the terms of this Agreement and (ii) provide
to the Trustee, the UTI Beneficiary each Related Beneficiary and each related
Holder prompt notice of such Force Majeure Event and the resulting delay or
failure in performance to which such Force Majeure Event relates, together with
a description of its efforts to so perform its obligations hereunder.
(b) The Servicer shall provide to the Trustee and each related Holder
and Registered Pledgee prompt notice of any (i) Servicer Default or (ii) event
or condition that, with the giving of notice or the passage of time, or both,
would become a Servicer Default, accompanied in each case by a description of
the nature of the default and the Servicer's efforts to remedy the same.
20
(c) If a Servicer Default shall have occurred and be continuing with
respect to one or more Sub-Trusts, the Trustee may remedy such Servicer Default,
or at the direction of the Required Related Holders (which, with respect to a
Servicer Default relating to a SUBI, shall not include the UTI Beneficiary and
which, with respect to a Servicer Default relating only to the UTI, shall only
include the UTI Beneficiary), or, if applicable, the holders of Rated Securities
(in the manner provided for in the related Servicing Supplement) by notice to
the Servicer, the UTI Beneficiary and the related Holders (and, if applicable,
the holders of Rated Securities), terminate all (or, if such Servicer Default
relates only to a particular Sub-Trust, the applicable portion) of the rights
and obligations of the Servicer under this Agreement and the related Servicing
Supplement, including all or a portion (allocable to the rights and obligations
terminated) of the rights of the Servicer to receive the servicing compensation
provided for in Section 2.09 (or the applicable portion thereof) with respect to
such Sub-Trust following the assumption by a successor of the Servicer's duties
hereunder. Upon any such termination, the Servicer shall continue to perform its
functions as Servicer until the earlier of the date specified in the termination
notice or, if no such date is specified therein, the date of the Servicer's
receipt of such notice, at which time all rights, powers, duties, obligations
and responsibilities of the Servicer under this Agreement and the related
Servicing Supplement, whether with respect to the Servicing Fee or otherwise, so
terminated with respect to one or more Sub-Trusts shall, as applicable, vest in
and be assumed by a Successor Servicer appointed by the Trustee pursuant to a
servicing agreement with the Origination Trust and the Related Beneficiary,
containing substantially the same provisions as this Agreement in respect of the
related Sub-Trust (including those with respect to the compensation of such
Successor Servicer). The Trustee is hereby irrevocably authorized and empowered
to execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments (including any notices to Lessees
deemed necessary or advisable by the Trustee), and to do or accomplish all other
acts or things necessary or appropriate to effect such vesting and assumption.
Such action shall include, directing any or all of the related Lessees to remit
payments on or in respect of the related Leases and Leased Vehicles to an
account or address designated by the Trustee or the Successor Servicer. The
Servicer shall comply with its obligations under Section 6.01(b) in connection
with any such termination.
(d) All reasonable costs and expenses incurred in connection with
transferring the servicing of the related Leases and Leased Vehicles to the
Successor Servicer and amending this Agreement to reflect such succession as
Servicer pursuant to this Section shall be paid by the predecessor Servicer (or,
if the predecessor Servicer is the Trust Agent, the initial Servicer) upon
presentation of reasonable documentation of such costs and expenses. In the
event that a Servicer fails to pay costs and expenses for which it is
responsible under this Section within a reasonable time after presentation of
such documentation, the Successor Servicer shall be entitled to reimbursement
therefor as a Liability payable from Trust Assets in accordance with Section
3.08 of the Origination Trust Agreement, and the Origination Trust shall be
subrogated to the reimbursement rights of the Successor Servicer against the
departing Servicer.
(e) At the direction of the Registered Pledgee, or if there is none,
the Required Related Holders, the Trustee shall waive default by the Servicer in
the performance of its obligations hereunder and its consequences with regard to
any Sub-Trust, except that any such waiver in respect of a Sub-Trust created
pursuant to a Supplement may only be given in accordance with
21
such Supplement or the related Servicing Supplement. Upon any such waiver by the
Trustee of a past default, such default shall cease to exist, and any Servicer
Default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement and the related Servicing Supplement. No such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
(f) If the Servicer resigns or is terminated as Servicer hereunder, the
Trustee, acting at the direction of the Required Related Holders, shall appoint
a Successor Servicer hereunder. If a Successor Servicer is not appointed by the
effective date of the predecessor Servicer's termination hereunder or
resignation pursuant to Section 5.04, the Trust Agent shall act as Successor
Servicer with respect to the Sub-Trust or Sub-Trusts affected hereby. If the
Origination Trust Agent is unwilling or legally unable to so act, then the
Origination Trust shall promptly appoint or petition a court of competent
jurisdiction to appoint as Successor Servicer with respect to such Sub-Trust or
Sub-Trusts any established entity the regular business of which includes the
servicing of motor vehicle leases or retail installment sale contracts.
(g) In the event of the partial termination by the Trustee of any, but
not all, of the Servicer's rights and powers hereunder, the Servicer (and,
except with respect to UTI Assets, unless otherwise directed by the Trustee)
shall continue to service, administer and collect Leases and Leased Vehicles in
unaffected Sub-Trusts and shall have the right to receive servicing compensation
in accordance with Section 2.09 with respect to all such unaffected Sub-Trusts.
(h) Any compensation payable to a Successor Servicer may not be in
excess of that permitted the predecessor Servicer unless the related Holders
bear such excess costs exclusively.
4.02 No Effect on Other Parties. Upon any complete or partial
termination of the rights and powers of the Servicer pursuant to Section 6.01 or
upon any appointment of a Successor Servicer with respect to all or a portion of
the Trust Assets, all rights, powers, duties and obligations of the Origination
Trust and the Trustee under this Agreement or any other Trust Document shall
remain in full force and effect, except as otherwise expressly provided in this
Agreement or in any other Trust Document.
22
ARTICLE Five
THE SERVICER
5.01 Representations and Warranties. As of the date hereof, the
Servicer makes the following representations and warranties with respect to each
Sub-Trust to the Origination Trust, each Related Beneficiary and each Holder:
(a) Organization and Good Standing. The Servicer has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of California, with corporate power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted, and had at all relevant times, and has corporate power,
authority and legal right to acquire, own, sell and service the Leases
and the Leased Vehicles and to serve as custodian hereunder, except
where failure to do so will not have a material adverse effect on the
Servicer's ability to perform its obligations under this Agreement.
(b) Due Qualification. The Servicer is duly qualified to do
business as a foreign corporation in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business
(including the servicing of the Leases and Leased Vehicles as required
by this Agreement) requires such qualifications except when the failure
to have any such license, approval or qualification would not be likely
to have a material adverse effect on the condition, financial or
otherwise, of the Servicer or would not be likely to have a material
adverse effect on the ability of the Servicer to perform its
obligations under this Agreement.
(c) Power and Authority. The Servicer has the power and
authority to execute and deliver this Agreement and to carry out its
terms; and the execution, delivery and performance of this Agreement
has been duly authorized by the Servicer by all necessary corporate
action.
(d) Binding Obligation. This Agreement has been duly executed
and delivered by the Servicer and constitutes a legal, valid and
binding obligation of the Servicer enforceable against the Servicer in
accordance with its terms, except as such enforceability may be subject
to or limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity or public policy, regardless of whether such enforceability
shall be considered in a proceeding in equity or in law.
(e) No Violation. The consummation of the transactions
contemplated by, and the fulfillment of the terms of, this Agreement
will not (i) conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice or lapse of
time) a default under the articles of incorporation or bylaws of the
Servicer, (ii) conflict with or breach any of the material terms or
provisions of, or constitute (with or without
23
notice or lapse of time) a default under, any material indenture,
agreement or other instrument to which the Servicer is a party or by
which it is bound, (iii) result in the creation or imposition of any
material lien upon any properties of the Servicer pursuant to the terms
of any such indenture, agreement or other instrument (other than this
Agreement or a related Servicing Supplement) or (iv) violate any law or
any order, rule or regulation applicable to the Servicer of any court
or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Servicer or its properties, in each case which breach, default,
conflict, lien or violation would be likely to have a material adverse
effect on the financial condition of the Servicer.
(f) No Proceedings. There are no Proceedings in which the
Servicer has been served, or to the Servicer's knowledge, Proceedings
which are pending or threatened, in each case, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer: (i) asserting
the invalidity of this Agreement; (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement;
(iii) seeking any determination or ruling that would be likely to
materially and adversely affect the performance by the Servicer of its
obligations under, or the validity or enforceability of, this
Agreement; or (iv) relating to the Servicer and that would be likely to
adversely affect the federal income tax attributes of the Origination
Trust or any Sub-Trust.
(g) Permits, Licenses, Approvals, Consents. The Servicer has
obtained any and all permits, licenses, approvals, orders and consents
of and made all necessary registrations with, each Governmental
Authority and each other Person required in connection with the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
5.02 Limitation on Liability of Servicer.
(a) Neither the Servicer nor any of its directors, officers, employees
or agents shall be under any liability to the Origination Trust, the Trustee,
any Beneficiary, any Holder, any Registered Pledgee or any third party
beneficiary of this Agreement or any other Trust Document, except as otherwise
provided in the applicable Trust Document, for any action taken or for
refraining from the taking of any action pursuant to this Agreement or any other
Trust Document, or for errors in judgment; provided, however, that this
provision shall not protect the Servicer or any such individual against any
liability that would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of reckless
disregard of obligations or duties under this Agreement or any other Trust
Document.
(b) Except as otherwise provided in this Agreement or any other Trust
Document, the Servicer shall not be under any obligation to appear in, prosecute
or defend any Proceeding not incidental to its duties to service the Leases in
accordance with this Agreement, and that in its opinion may involve it in any
Liability; provided, however, that the Servicer may undertake any reasonable
action it may deem necessary or desirable in respect of this Agreement and the
rights
24
and duties of the parties hereto and the interests of the Origination Trust, and
any reasonable expense related to any such undertaking by the Servicer shall be
a Reimbursable Expense.
(c) The Servicer and any director, officer, employee or agent of the
Servicer 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 under this Agreement or any other Trust Document.
5.03 Merger.
(a) The Servicer shall not consolidate with or merge into any other
corporation or convey, transfer or lease all or substantially all of its assets
as an entirety to any Person unless (i) the entity formed by such consolidation
or into which the Servicer is to be merged or the Person that is to acquire by
conveyance, transfer or lease all or substantially all of the assets of the
Servicer as an entirety (A) is an entity organized and existing under the laws
of the United States or any State and (B) either executes and delivers to the
Origination Trust an agreement, in form and substance reasonably satisfactory to
the Trustee and the Registered Pledgee, if any, containing an assumption by such
successor entity of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Servicer under this
Agreement and the other Trust Documents or will be so bound by operation of law
or (ii) the Servicer will be the surviving corporation resulting from such
consolidation or merger.
(b) Any corporation (i) into which the Servicer may be merged or
consolidated, (ii) that may result from any merger, conversion or consolidation
to which the Servicer shall be a party, (iii) that may succeed to all or
substantially all of the business of the Servicer or (iv) more than 50% of the
voting stock of which is directly or indirectly owned by NMAC or any Affiliate
thereof and that is otherwise servicing motor vehicle leases or retail
installment sale contracts, which corporation in any of the foregoing cases
executes an agreement of assumption to perform every obligation of the Servicer
under the Trust Documents, shall be the successor to the Servicer under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement. The Servicer shall provide notice
of any merger, consolidation or succession pursuant to this Section to the
Trustee and each Holder and Registered Pledgee. The Servicer may appoint one or
more nominees to hold title to any or all of the Trust Assets in the name of
such nominee title holder for the sole and exclusive benefit of the Origination
Trust and, upon the appointment of such a nominee title holder, the Origination
Trust or the Trustee (or a Co-Trustee) on behalf of the Origination Trust, as
applicable, shall transfer title to all or such portion of the Trust Assets as
directed by the Servicer.
5.04 Servicer Not to Resign; Assignment.
(a) Except as provided in Section 4.01(c) or 6.01, the Servicer shall
not resign from the duties and obligations imposed on it hereby as Servicer
except upon a determination by its Board of Directors that by reason of a change
in applicable legal requirements, the continued performance by the Servicer of
its duties as Servicer under this Agreement would cause it to be in violation of
such legal requirements in a manner that would be likely to result in a material
adverse effect on the Servicer or its financial condition, such determination to
be evidenced by
25
the delivery to the Trustee of a Board Resolution to such effect. No such
resignation shall become effective until the date upon which the Servicer
becomes unable to act as Servicer, as specified in such notice, unless a
Successor Servicer has assumed the duties of the Servicer hereunder. If the
Servicer is so required to resign, the Servicer shall assist the Trustee in
finding a Successor Servicer, which Person shall enter into a new servicing
agreement with the Origination Trust, having substantially the same provisions
as this Agreement. The Trustee shall not unreasonably withhold its consent to
such a servicing agreement.
(b) The Servicer may not assign this Agreement or any of its rights,
powers, duties or obligations hereunder; provided, however, that the Servicer
may assign this Agreement in connection with a consolidation, merger,
conveyance, transfer or lease made in compliance with Section 5.03.
(c) Except as otherwise provided in this Section, the duties and
obligations of the Servicer under this Agreement shall continue until the
Servicer is replaced pursuant to Section 4.01 or until this Agreement shall have
been terminated as provided in Section 6.01 and shall survive the exercise by
the Trustee of any right or remedy under this Agreement or the enforcement by
the Trustee of any provision of the other Trust Documents.
26
ARTICLE Six
MISCELLANEOUS
6.01 Termination of Agreement; Transfer of Servicing Materials to
Successor Servicer.
(a) This Agreement shall terminate, completely or in part with respect
to one or more Sub-Trusts, upon the earlier of (i) the dissolution of the
Origination Trust, (ii) with respect to the Servicer, but not as to the
applicable Successor Servicer, the discharge of the Servicer in accordance with
the terms of this Agreement (completely or with regard to any of (A) the
Servicer's obligation to cause the assignment of Leases, Leased Vehicles and
related Trust Assets to the Origination Trust or (B) the Servicer's servicing
obligations with regard to one or more Sub-Trusts) or (iii) the mutual written
determination of the parties hereto (completely or in any part as set forth in
clause (ii) above). Upon any termination of the Servicer's servicing obligations
hereunder with regard to any Sub-Trust, upon payment of all amounts due to the
Servicer hereunder with respect to such Sub-Trust (including related accrued
Servicing Fees and additional servicing compensation payable in respect of such
Sub-Trust and reimbursement of any advances), the Servicer shall pay to or upon
the order of the Trustee or any other Person entitled thereto all monies held by
the Servicer on behalf of the Origination Trust or the Trustee with respect to
such Sub-Trust. Any termination of the Servicer with respect to one Sub-Trust
shall not thereby effect a termination of the Servicer with respect to any other
Sub-Trust in existence at the time of such termination.
(b) If the rights of the Servicer are terminated hereunder with regard
to any Sub-Trust, the Servicer shall, upon demand of the Trustee, deliver to the
Trustee or the applicable Successor Servicer copies of all books and records
necessary for the servicing of the related Leases and Leased Vehicles, all
monies collected by it and required to be deposited in any Trust Account or
other account relating to the Sub-Trust (including the transfer of applicable
Security Deposits being held by the Servicer), and any related Leased Vehicle in
its possession that has been repossessed or recovered and is part of Matured
Vehicle Inventory and in either case has not yet been sold or otherwise disposed
of pursuant to this Agreement. In addition, the Servicer shall use commercially
reasonable efforts to effect the orderly and efficient transfer of the servicing
of the applicable Leases to the Successor Servicer. As promptly as practicable,
the Servicer shall provide to the Successor Servicer a current computer tape
containing all information required for the servicing of such Leases, together
with documentation containing any and all information necessary for use of such
computer tape.
6.02 Amendment.
(a) Subject to Section 6.02(b), this Agreement may be amended as it
relates to (i) the Origination Trust, by written agreement among the Origination
Trust, the UTI Beneficiary, the Servicer and any additional Persons required by
any Servicing Supplement or (ii) a particular Sub-Trust, by one or more
Servicing Supplements among the Origination Trust, the UTI Beneficiary, the
Servicer and any additional Persons required by the related Servicing
Supplement. A Servicing Supplement may provide, among other things, for further
specific servicing obligations with respect to the related Sub-Trust. Such
Servicing Supplements may
27
permit the termination of this Agreement insofar as it applies to the related
Sub-Trust, upon the terms and conditions set forth therein; provided, that no
SUBI Servicing Supplement shall be effective to authorize or effect the
termination of this Agreement insofar as it relates to the UTI or any Other
SUBI, and no UTI Servicing Supplement shall be effective to authorize or effect
the termination of this Agreement insofar as it relates to any SUBI.
(b) This Agreement may be amended at any time by the UTI Beneficiary,
the Origination Trust and the Servicer, without the consent of any Holder or
other Beneficiary, (i) to (A) cure any ambiguity, (B) correct or supplement any
provision herein that may be inconsistent with any other provision herein, (C)
add any provision that provides additional rights to the Holders or (D) ensure
that none of the Origination Trust, the Beneficiaries or the Holders is
classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes, as evidenced by an Opinion of
Counsel; provided, in each case, that such amendment will not, in the good faith
judgment of the parties thereto, materially and adversely affect the interest of
any Holder or (ii) for any other purpose, provided that 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.
(c) Any amendment or supplement effected contrary to the provisions of
this Section shall be void.
6.03 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of California, without giving
effect to otherwise applicable principles of conflicts of law.
6.04 Relationship of this Agreement to Other Trust Documents. Unless
the context otherwise requires, this Agreement and the other Trust Documents
shall be interpreted so as to give full effect to all provisions hereof and
thereof. The provisions of this Agreement supersede the servicing provisions of
the Origination Trust Agreement. In the event of any actual conflict between the
provisions of this Agreement and (i) the Origination Trust Agreement, with
respect to the servicing of any Trust Assets, the provisions of this Agreement
shall prevail and (ii) any Servicing Supplement with respect to the servicing of
any Related Trust Assets, the provisions of such Servicing Supplement shall
control with respect to the related Sub-Trust.
6.05 Notices. All demands, notices and communications hereunder shall
be in writing and shall be delivered or mailed by registered or certified first-
class United States mail, postage prepaid, hand delivery, prepaid courier
service, or facsimile transmission, and addressed in each case as follows: (i)
if to the Servicer, at βββ ββββ βββββ ββββββ, ββββββββ, ββββββββββ βββββ
(telecopier no. (βββ) βββ-ββββ), Attention: Treasurer; (ii) if to NILT Trust, at
One Illinois Center, βββ ββββ ββββββ βββββ, βββββ ββββ, βββββββ, ββββββββ βββββ
(telecopier: (βββ) βββ-ββββ), Attention: NILT, Inc.; (iii) if to the Trustee, at
One Illinois Center, βββ ββββ ββββββ βββββ, βββββ ββββ, βββββββ, ββββββββ βββββ
(telecopier no. (βββ) βββ-ββββ), Attention: NILT, Inc., with a copy (which shall
not constitute notice) to the UTI Beneficiary; (iv) if to the Origination Trust,
at the Trust Office (telecopier no. (βββ) βββ-ββββ); or (v) with respect to any
of the foregoing Persons, 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 receipt
28
or rejected tender of such communication by an officer of the recipient entitled
to receive such notices located at the address of such recipient for notices
hereunder. A copy of all notices to the Trustee shall be delivered to the Trust
Agent.
6.06 Severability of Provisions. If any one or more of the covenants,
agreements, provisions or terms of this Agreement or any Servicing Supplement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement, as supplemented or
amended, and shall in no way affect the validity or enforceability of the other
covenants, agreements, provisions or terms of this Agreement or any Servicing
Supplement.
6.07 Inspection and Audit Rights. The Servicer agrees that, on
reasonable prior notice, it will permit any representative or designee of the
Trustee, the UTI Beneficiary, a UTI Holder or Registered Pledgee during the
normal business hours of the Servicer, to examine all books of account, records,
reports and other papers of the Servicer relating to the Trust Assets, to make
copies and extracts therefrom, to cause such books to be audited by Independent
Accountants selected by the Trustee, UTI Beneficiary, UTI Holder or Registered
Pledgee, as applicable, and to discuss the affairs, finances and accounts
related to the Trust Assets with its officers and employees, all at such
reasonable times and as often as may be reasonably requested. Such rights shall
include, but shall not be limited to, any offsite storage facilities at which
any data (including, without limitation, computerized records), together with
all operating software and appropriate documentation, may be held. The Trustee,
the UTI Beneficiary and each UTI Holder and Registered Pledgee agree to keep
confidential all confidential information of the Servicer acquired during any
such examination as if such information were its own confidential information,
except to the extent necessary for the purposes of this Agreement or the
enforcement thereof. Unless a Servicer Default has occurred and is continuing,
any expense incident to the exercise by the Trustee, the UTI Beneficiary, a UTI
Holder or the Registered Pledgee of any right under this Section shall be paid
as a Trust Expense of the UTI.
6.08 Binding Effect. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their permitted
successors and assigns.
6.09 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.
6.10 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.
6.11 Further Assurances. Each party shall take such acts, and execute
and deliver to any other party such additional documents or instruments as may
be reasonably requested in order to effect the purposes of this Agreement and to
better assure and confirm unto the requesting party its rights, powers and
remedies hereunder.
29
6.12 Third-Party Beneficiaries. The UTI Beneficiary and each UTI Holder
and Registered Pledgee shall be third party beneficiaries of this Agreement. The
related Beneficiary, the related Holders and any other Person designated as a
third party beneficiary in a servicing Supplement shall be third party
beneficiaries of this Agreement as supplemented by such Servicing Supplement.
Except as otherwise provided in this Agreement or a Servicing Supplement, no
other Person shall have any rights hereunder.
6.13 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any party hereto, any right, remedy, power
or privilege under this Agreement or any Servicing Supplement shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges provided in this Agreement and any Servicing
Supplement are cumulative and not exhaustive of any rights, remedies, powers or
privileges provided at law, in equity or otherwise.
6.14 No Petition. Each of the parties hereto covenants and agrees that
prior to the date that is one year and one day after the date on which all
obligations under each Securitized Financing have been paid in full, it will not
institute against, or join any other Person in instituting against the Grantor,
the UTI Beneficiary, the Trustee, the Origination 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 of a
Special Purpose Affiliate (or any of their respective general partners) that is
a limited liability company or any trustee of a Beneficiary or of a Special
Purpose Affiliate which is a trust, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding or other Proceeding under any federal or
State bankruptcy or similar law. This Section shall survive the complete or
partial termination of this Agreement or the complete or partial resignation or
removal of the Servicer.
30
ARTICLES SEVEN, EIGHT AND NINE
[RESERVED]
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
NISSAN-INFINITI LT
By: NILT, INC.,
as Trustee of Nissan-Infiniti LT
By: /s/ ββββββ β. βββββ
-------------------
Name: ββββββ β. βββββ
Title: Vice President
NILT TRUST,
as UTI Beneficiary
By: U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ ββββββ β. βββββ
-------------------
Name: ββββββ β. βββββ
Title: Vice President
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer
By: /s/βββββ β. ββββββ
-------------------
Name: βββββ β. ββββββ
Title: Vice President
32
SCHEDULE I
LEASE DOCUMENT LOCATIONS
Nissan Motor Acceptance Corporation facilities locations:
ββββ βββββββ βββββββ
ββββββ, βββββ βββββ-ββββ
βββ ββββ βββββ ββββββ
ββββββββ, ββββββββββ βββββ-ββββ
Location of Offsite Records:
Iron Mountain
ββββ β. βββββ βββββ
ββββββ, βββββ βββββ
Iron Mountain
ββββ ββββββ βββββ
ββ βββββ, ββββββββββ βββββ
SI-1
EXHIBIT A
DEFINITIONS
"Accountant" means a firm of public accountants of nationally
recognized standing.
"Adjusted Capitalized Cost" means, with respect to any leased vehicle,
the Gross Capitalized Cost less the Capitalized Cost Reduction, which amount is
used in calculating the Monthly Payment.
"Administrative Charge" has the meaning set forth in the Origination
Trust Agreement, plus any disposition fee, with respect to any Lease or Lease
Vehicle.
"Administrative Lien" has the meaning set forth in the Origination
Trust Agreement.
"Affiliate" has the meaning set forth in the Origination Trust
Agreement.
"Agreement" means this Servicing Agreement, as amended or supplemented
from time to time; provided, however, that except as otherwise provided therein,
a supplement hereto with respect to the UTI or a SUBI will only supplement this
Servicing Agreement as it relates to the UTI or such SUBI, as the case may be.
"Agreement to Provide Insurance" means the agreement of such name
required to be executed by each Lessee as a condition to its Lease in accordance
with the Credit and Collection Policy, or any successor to such agreement.
"Assignment Agreement" has the meaning set forth in the Origination
Trust Agreement.
"Assignment Date" means, with respect to any Lease or Leased Vehicle,
the date such Lease or Leased Vehicle is transferred to the Origination Trust.
"Auction Proceeds" means, with respect to a Collection Period, all
amounts received by the Servicer in connection with the sale or disposition of
any Vehicle which is sold at auction or otherwise disposed of by the Servicer
during such Collection Period, other than Insurance Proceeds.
"Beneficiaries" has the meaning set forth in the Origination Trust
Agreement.
"Board of Directors" means, with respect to any Person (which, in the
case of a partnership, shall be its managing general partner or, if there is no
managing general partner, any general partner thereof and in the case of a trust
shall be its beneficiary), either its Board of Directors or any duly authorized
committee thereof.
"Board Resolution" means, with respect to any Person (which, in the
case of a partnership, shall be its managing general partner or, if there is no
managing general partner, any general partner thereof and in the case of a trust
shall be its beneficiary), a copy of a resolution certified by its Secretary or
an Assistant Secretary to have been duly adopted by the Board of
A-1
Directors of such Person and to be in full force and effect on the date of such
certification and delivered to the entity to which such resolution is required
to be delivered.
"Business Day" has the meaning set forth in the Origination Trust
Agreement.
"Calculation Date" means, with respect to any Collection Period, the
fifteenth calendar day of the immediately succeeding Collection Period, or if
such day is not a Business Day, the Business Day immediately preceding such
calendar day.
"Capital Contribution" has the meaning set forth in the Origination
Trust Agreement.
"Capitalized Cost Reduction" has the meaning set forth in the
Origination Trust Agreement.
"Certificate of Title" has the meaning set forth in the Origination
Trust Agreement.
"Claim" has the meaning set forth in the Origination Trust Agreement.
"Collection Account" means with respect to (i) the UTI, the Collection
Account established and maintained with respect to the UTI pursuant to the
related UTI Supplement and (ii) a SUBI, the Collection Account established and
maintained with respect to a SUBI pursuant to the related SUBI Supplement.
"Collection Account Balance" means, with respect to each Collection
Account, as of any date, the balance on deposit in such Collection Account as of
the close of business on the immediately preceding date.
"Collection Period" means, except as otherwise provided in the
Servicing Supplement relating to a Sub-Trust, each calendar month.
"Collections" means, with respect to any Collection Period and
Sub-Trust, all collections received on or with respect to the related Leases and
Leased Vehicles in respect of such Collection Period, including the following:
(i) Monthly Payments (including Payments Ahead when received), Payoffs,
Administrative Charges and any other payments under the Leases; (ii) Net Auction
Proceeds; (iii) Net Liquidation Proceeds not included in Net Auction Proceeds;
(iv) any Net Insurance Proceeds; and (iv) any proceeds of Dealer Recourse.
"Consolidated Tax Filings" means periodic sales and use tax, income or
franchise tax or property (real or personal) tax reports for the Origination
Trust and the Trustee prepared for Nissan North America, Inc. or NMAC and their
respective Affiliates on a consolidated basis.
"Contingent and Excess Liability Insurance Policy" means the policy
numbered ACV70334G-0, issued to the Servicer and the Trustee, on behalf of the
Origination Trust, by Yasuda Fire and Marine of America, plus all contingent,
excess or umbrella policies from time to time issued with the Trustee or the
Origination Trust named as an additional insured or loss payee, in each case to
the extent applicable to any Lease or Leased Vehicle and, in each case, all
replacement or successor policies.
A-2
"Co-Trustee" means any Person appointed to serve as a co-trustee or a
separate trustee or nominee holder of legal title of all or any part of a Trust
Asset pursuant to Section 5.11(a) of the Origination Trust Agreement.
"Credit and Collection Policy" means the credit and collection policy
related to the Leases and Leased Vehicles maintained by the Servicer on behalf
of the Origination Trust pursuant to Section 2.01(b).
"Dealer" has the meaning set forth in the Origination Trust Agreement.
"Dealer Agreement" has the meaning set forth in the Origination Trust
Agreement.
"Dealer Recourse" means, with respect to any Lease, all rights arising
under the related Dealer Agreement or otherwise against the Dealer which
originated such Lease.
"Delaware Trustee" has the meaning set forth in the recitals.
"Deposit Date" means, with respect to a Collection Period, the Business
Day immediately preceding the related Payment Date.
"Disposition Expenses" means reasonable out-of-pocket expenses incurred
by the Servicer in connection with the sale at auction or other disposition of a
Leased Vehicle by the Servicer.
"Distribution Account" means such account as may be established
pursuant to a Supplement, a Servicing Supplement or related Securitized
Financing Documents into which distributions to holders of Securities are
required to be deposited.
"Dollar" and the sign "$" mean lawful money of the United States of
America.
"Eligible Lease" has the meaning set forth in the Origination Trust
Agreement.
"Filings" has the meaning set forth in Section 2.12(b).
"Filings Power of Attorney" means a power of attorney granted by the
Trustee on behalf of the Origination Trust to the Servicer pursuant to Section
2.12(b), substantially in the form of Exhibit C.
"Force Majeure Event" means an act beyond the reasonable control of the
Servicer, including acts of God, war, vandalism or sabotage, rioting, accidents,
fires, floods, earthquakes, hurricanes, strikes, labor disputes, mechanical
breakdowns, shortages or delays in obtaining suitable parts, equipment,
material, labor or transportation, acts of subcontractors, interruption of
utility services, acts of any unit of government or any governmental agency or
any event similar to the foregoing.
"Grantor" has the meaning set forth in the recitals.
"Gross Capitalized Cost" has the meaning set forth in the Origination
Trust Agreement.
A-3
"Holder" has the meaning set forth in the Origination Trust Agreement.
"Independent" when used with respect to any Accountant, means such an
Accountant, who may also be the Accountant who audits a Beneficiary, NMAC, the
Servicer or any of their respective Affiliates, who is Independent with respect
to such entity as contemplated by Rule 101 of the Code of Professional Conduct
of the American Institute of Certified Public Accountants.
"Insurance Expenses" means any Insurance Proceeds (i) applied to the
repair of the related Leased Vehicle, (ii) released to the related Lessee in
accordance with applicable law or the customary servicing procedures of the
Servicer or (iii) representing other related expenses incurred by the Servicer
not otherwise included in Liquidation Expenses or Disposition Expenses and
recoverable by the Servicer under this Agreement or any Servicing Supplement.
"Insurance Policy" has the meaning set forth in the Origination Trust
Agreement.
"Insurance Proceeds" has the meaning set forth in the Origination Trust
Agreement.
"Lease" has the meaning set forth in the Origination Trust Agreement.
"Lease Book Balance" means, with respect to any Lease as of any day,
the Adjusted Capitalized Cost of such Lease minus accumulated depreciation of
the related Leased Vehicle.
"Lease Documents" means, with respect to each Lease, (i) the original,
fully executed Lease, (ii) the Agreement to Provide Insurance and any other
documentation of the Lessee's insurance coverage customarily maintained by the
Servicer, (iii) a copy of the application or application information of the
related Lessee, together with supporting information customarily maintained by
the Servicer which may include factory invoices related to new vehicles, credit
scoring information or Dealer purchase documentation and odometer statements
required by applicable law, (iv) the original Certificate of Title (or a copy of
the application therefor if the Certificate of Title has not yet been delivered
by the applicable Registrar of Titles) or such other documents, if any, that the
Servicer keeps on file in accordance with its customary practices indicating
that title to the related Leased Vehicle is in the name of the Origination Trust
(or such other name as directed by the Servicer pursuant to Section 2.04(a)) and
noting thereon any Administrative Lien, if required, and (v) any and all other
documents that the Servicer keeps on file in accordance with its customary
practices related to such Lease or the related Leased Vehicle or Lessee,
including any written agreements modifying such Lease (including any extension
agreements).
"Leased Vehicle" has the meaning set forth in the Origination Trust
Agreement.
"Leased Vehicle Power of Attorney" means a power of attorney granted by
the Trustee (or a Co-Trustee) on behalf of the Origination Trust to the Servicer
pursuant to Section 2.11(b), substantially in the form of Exhibit B.
"Lessee" has the meaning set forth in the Origination Trust Agreement.
"Lessor" has the meaning set forth in the Origination Trust Agreement.
A-4
"Liability" has the meaning set forth in the Origination Trust
Agreement.
"Liquidated Lease" means a Lease (i) which is terminated by the
Servicer prior to its Maturity Date following a default thereunder or (ii) with
respect to which the related Lessee is no longer obligated to make Monthly
Payments.
"Liquidated Vehicle" means the Leased Vehicle related to a Liquidated
Lease.
"Liquidation Expenses" means reasonable out-of-pocket expenses incurred
by the Servicer in connection with the attempted realization of the full amounts
due or to become due under any Liquidated Lease, including expenses of any
collection effort (whether or not resulting in a lawsuit against the Lessee
under such Lease) or other expenses incurred prior to repossession, recovery or
return of the Liquidated Vehicle, expenses incurred in connection with the sale
or other disposition of a Liquidated Vehicle that has been repossessed or
recovered or has reached its Maturity Date, expenses incurred in connection with
making claims under any related Insurance Policy and expenses incurred in
connection with making claims for any Liquidation Expenses.
"Liquidation Proceeds" means all amounts received by the Servicer with
respect to a Liquidated Lease and the related Liquidated Vehicle in connection
with the attempted realization of the full amounts due or to become due under
the Lease, including Net Auction Proceeds related to such Liquidated Vehicle,
but excluding Insurance Proceeds.
"Loss" has the meaning set forth in the Origination Trust Agreement.
"Matured Vehicle" as of any date means any Leased Vehicle the related
Lease of which has reached its Maturity Date or has been terminated by the
related Lessee prior to the Maturity Date (and the Lessee is not in default
under such Lease), which Leased Vehicle has been returned to the Servicer on
behalf of the Origination Trust.
"Matured Vehicle Inventory" means, as of any date, all Matured Vehicles
that have not yet been sold or otherwise disposed of by the Servicer pursuant to
this Agreement and the related Servicing Supplement.
"Maturity Date" has the meaning set forth in the Origination Trust
Agreement.
"Monthly Payment" has the meaning set forth in the Origination Trust
Agreement.
"Net Auction Proceeds" means Auction Proceeds net of related
Disposition Expenses.
"Net Insurance Proceeds" means Insurance Proceeds net of related
Insurance Expenses.
"Net Liquidation Proceeds" means Liquidation Proceeds net of related
Liquidation Expenses.
"NILT Trust" has the meaning set forth in the preamble.
A-5
"NMAC" means Nissan Motor Acceptance Corporation, a California
corporation, and its successors.
"NMAC's Portfolio" means, as of any date, all new or used Nissan or
Infiniti automobiles, sport utility vehicles, minivans or light-duty trucks
leased to lessees under lease contracts that are serviced by NMAC for itself or
others, whether or not such lease contracts have been assigned to the
Origination Trust.
"Officer's Certificate" has the meaning set forth in the Origination
Trust Agreement.
"Origination Trust" has the meaning set forth in the preamble.
"Origination Trust Agreement" has the meaning set forth in the
recitals.
"Payment Ahead" has the meaning set forth in the Origination Trust
Agreement.
"Payment Date" means, except as otherwise set forth in a Servicing
Supplement, the twentieth day of each month, or, if such day is not a Business
Day, the immediately succeeding Business Day, commencing with the first Payment
Date specified in the related Servicing Supplement.
"Payment Information" has the meaning set forth in Section 2.07(c)(i).
"Payoff" means amounts paid to the Servicer to purchase a Leased
Vehicle.
"Person" has the meaning set forth in the Origination Trust Agreement.
"Principal Service Facility" means the principal servicing facility of
the Servicer, located, as of the date hereof, at ββββ βββββββ βββββββ, ββββββ,
βββββ βββββ-ββββ (P.O. βββ ββββββ, ββββββ, βββββ 75266-0368) or such other
address as specified by the Servicer in writing to the other parties hereto.
"Proceeding" has the meaning set forth in the Origination Trust
Agreement.
"Registered Pledgee" has the meaning set forth in the Origination Trust
Agreement.
"Registrar of Titles" has the meaning set forth in the Origination
Trust Agreement.
"Reimbursable Expense" means an amount advanced by the Servicer to pay
the allocable share of the Sub-Trust's (i) costs or expenses associated with a
Proceeding pursuant to Section 2.01(d) or 5.02(b) hereof or (ii) fees or
expenses of the Trustee and any Co-Trustees pursuant to Section 5.13 of the
Origination Trust Agreement.
"Related Beneficiary" has the meaning set forth in the Origination
Trust Agreement.
"Related Trust Assets" has the meaning set forth in the Origination
Trust Agreement.
A-6
"Repurchase Amount" means, with respect to any (i) UTI Lease to be
repurchased by the Servicer pursuant to Section 2.06(b) or 2.06(c), the Lease
Book Balance of such Lease as of the end of the Collection Period preceding the
Collection Period in which (a) the cure period ended with respect to Section
2.06(b) or (b) the Servicer discovers or receives notice of such change with
respect to Section 2.06(c) and (ii) SUBI Lease to be repurchased by the Servicer
pursuant to Section 2.06(b) or 2.06(c), the purchase price as set forth in the
related SUBI Servicing Supplement.
"Required Collection Account Balance" means, except as otherwise
required by the related Servicing Supplement, with respect to each Collection
Account as of the last day of a Collection Period, an amount equal to the
related Sub-Trust's share of all accrued but unpaid Reimbursable Expenses and
Trust Expenses as of such date.
"Required Related Holders" means, with respect to (i) the UTI, the
Holders of UTI Certificates representing beneficial ownership of 51% of the UTI
(excluding any UTI Certificates held by the UTI Beneficiary, but only if any are
not held by the UTI Beneficiary, the Servicer (so long as NMAC or an Affiliate
is the Servicer) or any of their respective Affiliates) and (ii) any SUBI, the
Holders of SUBI Certificates representing 51% of the related ownership interest
in the SUBI (excluding any SUBI Certificates held by the UTI Beneficiary, the
Related Beneficiary, the Servicer (so long as NMAC or an Affiliate is the
Servicer) or any of their respective Affiliates).
"Residual Value" has the meaning set forth in the Origination Trust
Agreement.
"Responsible Officer" has the meaning set forth in the Origination
Trust Agreement.
"Restricted Jurisdiction" means, with respect to (i) the UTI, any
jurisdiction in which the Origination Trust is not qualified and licensed to do
business and (ii) a SUBI, any jurisdiction in which the Origination Trust is not
qualified and licensed to do business and such other jurisdictions as may be
specified in the related SUBI Servicing Supplement.
"Schedule of Leases and Leased Vehicles" has the meaning set forth in
the Origination Trust Agreement.
"Securitized Financing" has the meaning set forth in the Origination
Trust Agreement.
"Securitized Financing Documents" has the meaning set forth in the
Origination Trust Agreement.
"Security" has the meaning set forth in the Origination Trust
Agreement.
"Security Deposit" has the meaning set forth in the Origination Trust
Agreement.
"Servicer Default" has the meaning set forth in Section 4.01.
"Servicer" means NMAC, in its capacity as servicer under this
Agreement, and each Person succeeding to the duties of the Servicer hereunder
pursuant to Section 4.01(f) or 5.03(b).
A-7
"Servicing Fee" means the fee payable on each Payment Date equal to,
with respect to each Collection Period, with respect to (i) the UTI, one-twelfth
of the product of (A) 1.00% and (B) the Lease Book Balance of the UTI Leases as
of the first day of such Collection Period and (ii) a SUBI, the amount described
in the related SUBI Servicing Supplement.
"Servicing Supplement" means either a UTI Servicing Supplement or a
SUBI Servicing Supplement, as the context may require.
"Settlement Statement" has the meaning set forth in the related
Servicing Supplement.
"State" has the meaning set forth in the Origination Trust Agreement.
"Sub-Trust" has the meaning set forth in the Origination Trust
Agreement.
"SUBI" has the meaning set forth in the recitals.
"SUBI Collections" shall have the meaning set forth in the related
Servicing Supplement.
"SUBI Lease Account" has the meaning set forth in the Origination Trust
Agreement.
"SUBI Servicing Supplement" has the meaning set forth in the
Origination Trust Agreement.
"SUBI Supplement" has the meaning set forth in the Origination Trust
Agreement.
"SUBI Vehicle" means a Leased Vehicle allocated to a SUBI.
"Successor Servicer" means an entity that accepts an appointment by the
Trustee or a court to serve as successor Servicer hereunder pursuant to Section
4.01(f), or, if no such entity accepts an appointment by the effective date of a
Servicer's termination hereunder, the Trust Agent until such time as a Successor
Servicer accepts an appointment hereunder.
"Supplement" has the meaning set forth in the Origination Trust
Agreement.
"Tax" has the meaning set forth in the Origination Trust Agreement.
"Trust Agent" has the meaning set forth in the recitals.
"Trust Asset Transfer" has the meaning set forth in the Origination
Trust Agreement.
"Trust Assets" has the meaning set forth in the Origination Trust
Agreement.
"Trust Document" has the meaning set forth in the Origination Trust
Agreement.
"Trust Maintenance Fees" means fees of the Trustee and of the Delaware
Trustee and any other co-trustees appointed by the Trustee allocable to the UTI.
"Trust Office" has the meaning set forth in the Origination Trust
Agreement.
A-8
"Trustee" has the meaning set forth in the recitals.
"UCC" means the Uniform Commercial Code in effect in the applicable
jurisdiction.
"UTI" has the meaning set forth in the Origination Trust Agreement.
"UTI Assets" has the meaning set forth in the recitals.
"UTI Beneficiary" has the meaning set forth in the preamble.
"UTI Collections" means, with respect to any Collection Period, all
funds collected or received by the Servicer in respect of the UTI Assets during
such Collection Period.
"UTI Holder" means a Holder of a UTI Certificate.
"UTI Servicing Supplement" has the meaning set forth in the Origination
Trust Agreement.
"UTI Supplement" has the meaning set forth in the Origination Trust
Agreement.
"UTI Vehicle" means a Leased Vehicle allocated to the UTI.
"Vehicle Representation Date" means, with respect to the Servicer's
representations and warranties in Section 2.06(a), with respect to (i) the UTI,
the Assignment Date of each related Lease and (ii) a SUBI, the "Vehicle
Representation Date" as defined in the related SUBI Servicing Supplement.
A-9
EXHIBIT B
LEASED VEHICLE POWER OF ATTORNEY PURSUANT TO
SECTION 2.11(b) OF THE SERVICING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that NILT, Inc., a Delaware corporation
(the "Grantor") located at One Illinois Center, βββ ββββ ββββββ βββββ, βββββ
ββββ, βββββββ, ββββββββ βββββ, as trustee, of Nissan-Infiniti LT, a Delaware
business trust (the "Trust"), does hereby appoint Nissan Motor Acceptance
Corporation, a California corporation located at βββ ββββ βββββ ββββββ,
ββββββββ, ββββββββββ βββββ (the "Grantee"), as its attorney-in-fact with full
power of substitution and hereby authorizes and empowers the Grantee, in the
name of and on behalf of the Grantor or the Trust, to take the following actions
from time to time with respect to the motor vehicles referred to as "Leased
Vehicles" in each Servicing Agreement, dated as of March 1, 1999 (the "Servicing
Agreement"), among the Trust, NILT Trust, a Delaware business trust ("NILT
Trust"), as UTI Beneficiary, and the Grantee, such Leased Vehicles being more
particularly described in the currently effective "Schedule of Leases and Leased
Vehicles", as defined in the Servicing Agreement (such motor vehicles, the
"Leased Vehicles"), a copy of which "Schedule of Leases and Leased Vehicles" is
maintained by the Grantee and is incorporated herein by this reference as though
fully set forth herein, for the purpose of enabling the Grantee in the name of
the Grantor or the Trust to transfer, liquidate or dispose of the Leased
Vehicles, upon such terms and conditions as the Grantee deems advisable, namely
to:
(a) sign the Grantor's or the Trust's name to any bills
of sale, certificates of title, assignments of title, transfers of
title or registration, applications for title or registration,
application for transfer of title or registration, notices of sale,
odometer statements or similar forms with respect to the repossession,
repair, recovery, sale or other disposition of any of the Leased
Vehicles; and
(b) execute and deliver any and all instruments and take
any and all further action in the name of or on behalf of the Grantor
or the Trust as may be required or deemed desirable to accomplish any
and all of the foregoing and carry out the purposes of this Power of
Attorney.
The Grantee is hereby empowered to do any and all lawful acts necessary
or desirable to effect the repair or transfer of the Leased Vehicles and the
Grantor hereby ratifies and confirms any and all lawful acts that the Grantee
shall undertake pursuant to and in conformity with this Power of Attorney.
This Power of Attorney is revocable in whole or in part as to the
powers herein granted with respect to the Leased Vehicles related to one or more
Sub-Trusts upon notice by the Grantor. If not earlier revoked, this Power of
Attorney shall expire, completely or, if so indicated, in part, upon the earlier
of (i) the termination of that certain amended and restated trust and servicing
agreement, dated as of August 26, 1998 (the "Origination Trust Agreement"),
among NILT Trust, as UTI Beneficiary, Grantee, as Servicer, Grantor, as trustee,
Wilmington Trust Company, as Delaware trustee, and for certain limited purposes
set forth therein, U.S. Bank
B-1
National Association, a national banking association, as trust agent, and (ii)
the termination of the Servicing Agreement (completely or with respect to the
Servicer's servicing obligations relating to one or more Sub-Trusts), as each
may be amended, restated or supplemented from time to time. Capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
thereto in the Origination Trust Agreement or the Servicing Agreement, as the
case may be.
This Power of Attorney shall be created under and governed and
construed under the internal laws of the State of California.
The Grantor executes this Power of Attorney with the intent to be
legally bound hereby, and with the intent that such execution shall have the
full dignity afforded by the accompanying witnessing and notarization and all
lesser dignity resulting from the absence of such witnessing and notarization or
any combination thereof.
Dated as of the first day of March, 1999.
NILT, INC.,
as Trustee of Nissan-Infiniti LT
By: ________________________________________
Name:
Title:
B-2
EXHIBIT C
FILINGS POWER OF ATTORNEY PURSUANT TO
SECTION 2.12(b) OF THE SERVICING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS, that NILT, Inc., a Delaware corporation
(the "Grantor") located at One Illinois Center, βββ ββββ ββββββ βββββ, βββββ
ββββ, βββββββ, ββββββββ βββββ, as trustee, of Nissan-Infiniti LT, a Delaware
business trust (the "Trust"), does hereby appoint Nissan Motor Acceptance
Corporation, a California corporation, located at βββ ββββ βββββ ββββββ,
ββββββββ, ββββββββββ βββββ (the "Grantee"), as its attorney-in-fact, with full
power of substitution and hereby authorizes and empowers the Grantee, in the
name of and on behalf of the Grantor or the Trust, to take the following actions
from time to time with respect to certain filings referred to in each Servicing
Agreement, dated as of March 1, 1999 (the "Servicing Agreement"), among the
Trust, NILT Trust, a Delaware business trust, and the Grantee, for the purposes
of enabling the Grantee in the name of the Grantor or the Trust to:
(a) sign the Grantor's or the Trust's name to any (i)
periodic sales and use tax, income or franchise tax or property (real
or personal) tax reports, (ii) periodic renewals of licenses and
permits, (iii) periodic renewals of qualification to act as a trust or
a business trust or (iv) other periodic governmental filings,
registrations, returns or approvals (collectively, "Filings") arising
with respect to or required of the Grantor or the Trust; and
(b) identify any surety bonds or other ancillary
undertakings required of the Grantor or the Trust in respect of any
Filing, execute and deliver any and all instruments and take any and
all further action in the name of and on behalf of the Grantor or the
Trust as may be required or deemed desirable to accomplish any and all
of the foregoing and carry out the purposes of this Power of Attorney.
The Grantee is hereby empowered to do any and all lawful acts necessary
or desirable to effect such Filings and the payment of such fees, costs and
taxes as necessary to complete these actions and the Grantor hereby ratifies and
confirms any and all lawful acts that the Grantee shall do pursuant to and in
conformity with this Power of Attorney.
This Power of Attorney is revocable in whole or in part as to the
powers herein granted with respect to the Filings related to one or more
Sub-Trusts (as defined in the Origination Trust Agreement described below) upon
notice by the Grantor. If not earlier revoked, this Power of Attorney shall
expire, completely or, if so indicated, in part, upon the earlier of (i) the
termination of that certain amended and restated trust and servicing agreement,
dated as of August 26, 1998 (the "Origination Trust Agreement") among NILT
Trust, as UTI Beneficiary, the Grantee, as Servicer, the Grantor, as trustee,
Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee,
and for certain limited purposes only, U.S. Bank National Association, a
national banking association, as trust agent, and (ii) the termination of the
Servicing Agreement (completely or with respect to the Servicer's servicing
obligations relating to one or more Sub-Trusts), as each may be amended,
restated or supplemented from time to time. Capitalized terms
C-1
used herein that are not otherwise defined shall have the meanings ascribed
thereto in the Origination Trust Agreement.
This Power of Attorney shall be created under and governed and
construed under the internal laws of the State of California.
The Grantor executes this Power of Attorney with the intent to be
legally bound hereby, and with the intent that such execution shall have the
full dignity afforded by the accompanying witnessing and notarization and all
lesser dignity resulting from the absence of such witnessing and notarization or
any combination thereof.
Dated as of the first day of March, 1999.
NILT, INC.,
as Trustee of Nissan-Infiniti LT
By: ________________________________________
Name:
Title:
C-2