Exhibit 10.9
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NISSAN AUTO LEASE TRUST 2005-A,
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrative Agent,
NISSAN AUTO LEASING LLC II,
as Transferor,
and
U.S. Bank National Association,
as Indenture Trustee
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TRUST ADMINISTRATION AGREEMENT
Dated as of __________, 2005
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TABLE OF CONTENTS
PAGE
Section 1.01 Capitalized Terms; Interpretive Provisions............................1
Section 1.02 Duties of the Administrative Agent....................................1
Section 1.03 Records...............................................................6
Section 1.04 Compensation..........................................................6
Section 1.05 Additional Information to be Furnished to the Trust...................6
Section 1.06 Independence of the Administrative Agent..............................6
Section 1.07 No Joint Venture......................................................7
Section 1.08 Other Activities of Administrative Agent..............................7
Section 1.09 Term of Agreement; Resignation and Removal of Administrative Agent....7
Section 1.10 Action Upon Termination, Resignation or Removal.......................8
Section 1.11 Notices...............................................................8
Section 1.12 Amendments............................................................9
Section 1.13 Successors and Assigns................................................9
Section 1.14 Governing Law.........................................................9
Section 1.15 Headings.............................................................10
Section 1.16 Counterparts.........................................................10
Section 1.17 Severability.........................................................10
Section 1.18 Limitation of Liability of Owner Trustee and Indenture Trustee.......10
Section 1.19 Third-Party Beneficiary..............................................10
Section 1.20 No Petition..........................................................10
-i-
TRUST ADMINISTRATION AGREEMENT
This Trust Administration Agreement, dated as of __________, 2005 (as
amended, supplemented or otherwise modified from time to time, this
"Agreement"), is among Nissan Auto Lease Trust 2005-A, a Delaware statutory
trust (the "Trust"), Nissan Motor Acceptance Corporation, a California
corporation ("NMAC"), as administrative agent (in such capacity, the
"Administrative Agent"), Nissan Auto Leasing LLC II, a Delaware limited
liability company ("▇▇▇▇ II"), as transferor (the "Transferor"), and U.S. Bank
National Association, a national banking association ("U.S. Bank"), as indenture
trustee (the "Indenture Trustee").
RECITALS
WHEREAS, the Trust was formed pursuant to a trust agreement, dated as
of August 25, 2005, as amended and restated by the amended and restated trust
agreement, dated as of __________, 2005 (the "Trust Agreement"), between the
Transferor and Wilmington Trust Company, as trustee (the "Owner Trustee"); and
WHEREAS, the parties desire to enter into this agreement to provide
for, among other things, the Administrative Agent's provision of certain
services to the Trust and the Owner Trustee.
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:
Section 1.01 Capitalized Terms; Interpretive Provisions.
(a) Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Agreement of Definitions, dated as of
__________, 2005, by and among the Trust, as issuer (the "Issuer"), NILT Trust,
a Delaware statutory trust, as grantor and initial beneficiary (in such
capacity, the "Grantor" and the "UTI Beneficiary," respectively),
Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), NMAC, in
its individual capacity, as Administrative Agent and as servicer (in such
capacity, the "Servicer"), ▇▇▇▇ II, NILT, Inc., a Delaware corporation, as
trustee to the Titling Trust (the "Titling Trustee"), Wilmington Trust Company,
as Owner Trustee and Delaware trustee (in such capacity, the "Delaware Trustee")
and U.S. Bank, as Indenture Trustee and trust agent (in such capacity, the
"Trust Agent").
(b) 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 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 within this Agreement, (iii) the term "include" and all variations
thereof shall mean "include without limitation" and (iv) the term "or" shall
include "and/or".
Section 1.02 Duties of the Administrative Agent.
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(a) The Administrative Agent agrees to perform all its duties as
Administrative Agent and the duties of the Trust and the Owner Trustee under the
Related Documents. In addition, the Administrative Agent shall consult with the
Owner Trustee regarding the duties of the Trust or the Owner Trustee under the
Related Documents. The Administrative Agent shall monitor the performance of the
Trust and shall advise the Owner Trustee when action is necessary to comply with
the respective duties of the Trust and the Owner Trustee under the Related
Documents. The Administrative Agent shall prepare for execution by the Trust, or
shall cause the preparation by other appropriate persons of, all such documents,
reports, notices, filings, instruments, certificates and opinions that it shall
be the duty of the Trust or the Owner Trustee to prepare, file or deliver
pursuant to the Related Documents. In addition, the Administrative Agent or the
Transferor shall execute and deliver any filings, certificates, affidavits or
other instruments required under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, to the extent
permitted by applicable law. In furtherance of the foregoing, the Administrative
Agent shall take (or, in the case of the immediately preceding sentence, cause
to be taken) all appropriate action that the Trust or the Owner Trustee is
required to take pursuant to the Indenture, including, without limitation, such
of the foregoing as are required with respect to the following matters under the
Indenture (references are to Sections of the Indenture):
(i) the preparation of or obtaining of the documents and
instruments required for execution and authentication of the Notes and delivery
of the same to the Indenture Trustee (Section 2.02);
(ii) the duty to cause the Note Register to be kept and to
give the Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section 2.04);
(iii) preparation of, obtaining of or filing of all
instruments, opinions and certificates or other documents required for the
release of Collateral (Sec. 2.08);
(iv) the maintenance of an office in the Borough of Manhattan,
The City of New York, for registration of transfer or exchange of Notes (Section
3.02);
(v) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.03);
(vi) the direction to the Indenture Trustee to deposit monies
with Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(vii) the obtaining and preservation of the Trust's
qualifications to do business (Section 3.04);
(viii) the preparation of all supplements and amendments to
the Indenture and all financing statements, continuation statements, instruments
of further assurance and other instruments and the taking of such other action
as are necessary or advisable to protect the Owner Trust Estate (Section 3.05);
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(ix) the delivery of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel, if requested, as to the
Owner Trust Estate, and the annual delivery of the Officer's Certificate and
certain other statements as to compliance with the Indenture (Sections 3.06 and
3.09);
(x) the identification to the Indenture Trustee in an
Officer's Certificate of any Person with whom the Trust has contracted to
perform its duties under the Indenture (Section 3.07(b));
(xi) the notification of the Indenture Trustee and each Rating
Agency of a Servicer Default under the Servicing Agreement and, if such Servicer
Default arises from the failure of the Servicer to perform any of its duties or
obligations under the Servicing Agreement with respect to the 2005-A SUBI
Assets, the taking of all reasonable steps available to remedy such failure
(Section 3.07(d));
(xii) the delivery of written notice to the Indenture Trustee
and each Rating Agency of each Indenture Default (Section 3.11);
(xiii) the delivery of prior written notice to each Rating
Agency of the Issuer's consolidation or merger with or into any other Person
(Section 3.15(a));
(xiv) the delivery of prior written notice to each Rating
Agency of the Issuer's conveyance or transfer of any of its properties or assets
to any Person (Section 3.15(b));
(xv) the preparation and obtaining of documents and
instruments required for the release of the Trust from its obligations under the
Indenture (Section 4.01);
(xvi) the monitoring of the Trust's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an Officer's
Certificate and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 4.01);
(xvii) the preparation and delivery of notice to the Rating
Agencies of the removal of the Indenture Trustee and the appointment of a
successor Indenture Trustee (Section 6.08);
(xviii) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or removal of
the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and
6.10);
(xix) the furnishing of the Indenture Trustee with the names
and addresses of Noteholders during any period when the Indenture Trustee is not
the Note Registrar (Section 7.01);
(xx) the furnishing of certain reports with the Indenture
Trustee (Section 7.03);
(xxi) the taking of all other actions necessary with respect
to the investment of funds in the Note Distribution Account (Sections 8.02 and
8.05);
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(xxii) the preparation of an Issuer Request for the release of
the Owner Trust Estate (Section 8.06);
(xxiii) the preparation of Issuer Requests and the obtaining
of Opinions of Counsel with respect to the execution of supplemental indentures
(Sections 9.01 and 9.02);
(xxiv) the execution of new Notes conforming to any
supplemental indenture (Section 9.05);
(xxv) the duty to notify each Rating Agency of redemption of
the Notes or to cause the Indenture Trustee to provide such notification
(Section 10.02);
(xxvi) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with respect to
any requests by the Trust to the Indenture Trustee to take any action under the
Indenture (Section 11.01(a), (b));
(xxvii) the preparation and delivery of Officer's Certificates
and the obtaining of Independent Certificates, if necessary, for the release of
property from the Lien of the Indenture (Section 11.01(b));
(xxviii) the notification of each Rating Agency, upon the
failure of the Trust, the Owner Trustee or the Indenture Trustee to give such
notification, of any information required pursuant to Section 11.04 of the
Indenture (Section 11.04); and
(xxix) the preparation of Definitive Notes in accordance with
the instructions of the Clearing Agency (Section 2.11).
(b) The Administrative Agent shall:
(i) pay the Owner Trustee from time to time reasonable
compensation for all services rendered by the Owner Trustee under the Trust
Agreement (which compensation shall not be limited by any provision of law in
regard to the compensation for a trustee of an express trust); and
(ii) except as otherwise expressly provided in the Trust
Agreement, reimburse the Owner Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Owner Trustee in
accordance with any provision of the Trust Agreement (including reasonable
compensation, expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its negligence
or bad faith.
(c) In addition to the duties set forth above in Sections 1.02(a) and
(b), the Administrative Agent shall perform such calculations and shall prepare
or shall cause the preparation by other appropriate Persons of, and shall
execute on behalf of the Trust or the Owner Trustee, all such documents,
notices, reports, filings, instruments, certificates and opinions that the Trust
or the Owner Trustee is required to prepare, file or deliver pursuant to the
Related Documents, and at the request of the Owner Trustee shall take all
appropriate action that the Trust or the Owner
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Trustee is required to take pursuant to the Related Documents. Subject
to Section 1.06 of this Agreement, and in accordance with the directions of the
Owner Trustee, the Administrative Agent shall administer, perform or supervise
the performance of such other activities in connection with the Collateral
(including the Related Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Owner Trustee and are
reasonably within the capability of the Administrative Agent.
(d) Notwithstanding anything in this Agreement or the Related Documents
to the contrary, the Administrative Agent shall be responsible for promptly
notifying the Owner Trustee if any withholding tax is imposed on the Trust's
payments (or allocations of income) to a Trust Certificateholder as contemplated
in Section 5.02(d) of the Trust Agreement. Any such notice shall specify the
amount of any withholding tax required to be withheld by the Owner Trustee
pursuant to such provision.
(e) Notwithstanding anything in this Agreement or the Related Documents
to the contrary, the Administrative Agent shall be responsible for performance
of the duties of the Owner Trustee set forth in Sections 5.03 and 9.01(c) of the
Trust Agreement with respect to notifying the Trust Certificateholders of the
Payment Date on which their Trust Certificates will be repaid and Section
5.04(a) of the Trust Agreement with respect to accounting and reports to Trust
Certificateholders; provided, however, that the Owner Trustee shall retain
responsibility for the distribution of the documentation necessary to enable
each Trust Certificateholder to prepare its federal and state income tax
returns.
(f) The Administrative Agent shall satisfy its obligations with respect
to clauses (d) and (e) above by retaining, at the expense of the Trust, payable
by the Administrative Agent, Accountants acceptable to the Owner Trustee, which
shall perform the obligations of the Administrative Agent thereunder.
(g) The Administrative Agent shall perform any duties expressly
required to be performed by the Administrative Agent under the Trust Agreement.
(h) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrative Agent may enter into
transactions or otherwise deal with any of its Affiliates; provided, however,
that the terms of any such transactions or dealings shall be in accordance with
any directions received from the Trust and shall be, in the Administrative
Agent's opinion, no less favorable to the Trust than would be available from
unaffiliated parties.
(i) With respect to matters that in the reasonable judgment of the
Administrative Agent are non-ministerial, the Administrative Agent shall not
take any action unless within a reasonable time before the taking of such action
the Administrative Agent shall have notified the Owner Trustee of the proposed
action and the Owner Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
(i) amendment of or any supplement to the Indenture;
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(ii) the initiation of any claim or lawsuit by the Trust and
the compromise of any action, claim or lawsuit brought by or against the Trust
(other than in connection with the collection of the Leases);
(iii) the amendment, change or modification of the Related
Documents;
(iv) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrative Agents or successor Servicers, or the
consent to the assignment by the Note Registrar, any Paying Agent or Indenture
Trustee of its obligations under the Indenture;
(v) the removal of the Indenture Trustee; and
(vi) the provision to the Rating Agencies copies of any
amendment or supplement to the Interest Rate Cap Agreement and the notification
of the Interest Rate Cap Counterparty of any proposed amendment or supplement to
any of the Basic Documents.
Notwithstanding anything to the contrary in this Agreement, the
Administrative Agent shall not be obligated to, and shall not, (i) make any
payments to the Noteholders under the Related Documents, (ii) sell the Owner
Trust Estate pursuant to Section 5.02 of the Indenture, (iii) take any other
action that the Trust directs the Administrative Agent not to take on its behalf
or (iv) take any other action which may be construed as having the effect of
varying the investment of the Trust Certificateholders.
Section 1.03 Records. The Administrative Agent shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall be accessible for inspection
by the Trust and the Transferor at any time during normal business hours.
Section 1.04 Compensation. As compensation for the performance
of the Administrative Agent's obligations under this Agreement and as
reimbursement for its expenses related thereto, the Administrative Agent shall
be entitled to an annual payment of compensation in an amount to be agreed to
between the Administrative Agent and the Servicer which shall be solely an
obligation of the Servicer.
Section 1.05 Additional Information to be Furnished to the
Trust. The Administrative Agent shall furnish to the Trust from time to time
such additional information regarding the Collateral as the Trust shall
reasonably request.
Section 1.06 Independence of the Administrative Agent. For all
purposes of this Agreement, the Administrative Agent shall be an independent
contractor and shall not be subject to the supervision of the Trust or the Owner
Trustee with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Trust, the
Administrative Agent shall have no authority to act for or represent the Trust
or the Owner Trustee in any way and shall not otherwise be deemed an agent of
the Trust or the Owner Trustee.
6
Section 1.07 No Joint Venture. Nothing contained in this
Agreement (i) shall constitute the Administrative Agent and either of the Trust
or the Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) shall be
construed to impose any liability as such on any of them or (iii) shall be
deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
Section 1.08 Other Activities of Administrative Agent. Nothing
herein shall prevent the Administrative Agent or its Affiliates from engaging in
other businesses or, in its sole discretion, from acting in a similar capacity
as an Administrative Agent for any other Person or entity, even though such
person or entity may engage in business activities similar to those of the
Trust, the Owner Trustee or the Indenture Trustee.
Section 1.09 Term of Agreement; Resignation and Removal of
Administrative Agent. This Agreement shall continue in force until the
dissolution of the Trust, upon which event this Agreement shall automatically
terminate.
(a) Subject to Sections 1.09(d) and 1.09(e) of this Agreement, the
Administrative Agent may resign its duties hereunder by providing the Trust with
at least 60 days' prior written notice.
(b) Subject to Sections 1.09(d) and 1.09(e) of this Agreement, the
Trust may remove the Administrative Agent without cause by providing the
Administrative Agent with at least 60 days' prior written notice.
(c) Subject to Sections 1.09(d) and 1.09(e) of this Agreement, at the
sole option of the Trust, the Administrative Agent may be removed immediately
upon written notice of termination from the Trust to the Administrative Agent if
any of the following events shall occur:
(i) the Administrative Agent shall default in the performance
of any of its duties under this Agreement and, after notice of such default,
shall not cure such default within ten days (or, if such default cannot be cured
in such time, shall not give within ten days such assurance of cure as shall be
reasonably satisfactory to the Trust);
(ii) the existence of any proceeding or action, or the entry
of a decree or order for relief by a court or regulatory authority having
jurisdiction over the Administrative Agent in an involuntary case under the
federal bankruptcy laws, as now or hereafter in effect, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Administrative Agent or of any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Administrative Agent and the continuance of any such action, proceeding, decree
or order unstayed and, in the case of any such order or decree, in effect for a
period of 90 consecutive days; or
(iii) the commencement by the Administrative Agent of a
voluntary case under the federal bankruptcy laws, as now or hereafter in effect,
or the consent by the Administrative Agent to the appointment of or taking of
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Administrative Agent or of any substantial
7
part of its property or the making by the Administrative Agent of an assignment
for the benefit of creditors or the failure by the Administrative Agent
generally to pay its debts as such debts become due or the taking of corporate
action by the Administrative Agent in furtherance of any of the foregoing.
The Administrative Agent agrees that if any of the events specified in
clauses (ii) or (iii) above shall occur, it shall give written notice thereof to
the Trust and the Indenture Trustee within seven days after the occurrence of
such event.
(d) No resignation or removal of the Administrative Agent pursuant to
this Section shall be effective until (i) a successor Administrative Agent shall
have been appointed by the Trust and (ii) such successor Administrative Agent
shall have agreed in writing to be bound by the terms of this Agreement in the
same manner as the Administrative Agent is bound hereunder.
(e) The appointment of any successor Administrative Agent shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
(f) Subject to Sections 1.09(d) and 1.09(e), the Administrative Agent
acknowledges that upon the appointment of a successor Servicer pursuant to the
Servicing Agreement, the Administrative Agent shall immediately resign and such
successor Servicer shall automatically become the Administrative Agent under
this Agreement; provided, however, that this paragraph shall not apply at such
times as the Titling Trustee shall be the successor Servicer.
Section 1.10 Action Upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of this Agreement pursuant to
the first sentence of Section 1.09 or the resignation or removal of the
Administrative Agent pursuant to Section 1.09(a), (b) or (c), respectively, the
Administrative Agent shall be entitled to be paid all fees and reimbursable
expenses accruing to it to the date of such termination, resignation or removal.
The Administrative Agent shall forthwith upon such termination pursuant to the
first sentence of Section 1.09 deliver to the Trust all property and documents
representing or relating to the Collateral then in the custody of the
Administrative Agent. In the event of the resignation or removal of the
Administrative Agent pursuant to Section 1.09(a), (b) or (c), respectively, the
Administrative Agent shall cooperate with the Trust and take all reasonable
steps requested to assist the Trust in making an orderly transfer of the duties
of the Administrative Agent.
Section 1.11 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 by telecopier, and addressed in each case as
follows: (i) if to the Trust or the Administrative Agent, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
Treasurer; (ii) if to the Owner Trustee, at Wilmington Trust Company, ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no.
(▇▇▇) ▇▇▇-▇▇▇▇), Attention: Corporate Trust Administration; (iii) if to the
Indenture Trustee, at U.S. Bank National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇); (iv) if to
Moody's, to ▇▇▇▇▇'▇ Investors Service, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: ABS Monitoring Group; (iv) if
to Standard & Poor's, to Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., 55
▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Asset Backed Surveillance Group; or (v) at such other address as
shall be designated by any of the foregoing in a written notice to the other
parties hereto. Delivery shall occur only upon receipt or reported 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.
Section 1.12 Amendments. This Agreement may be amended from
time to time by a written amendment duly executed and delivered by the parties
hereto, with the written consent of the Owner Trustee but without the consent of
the Securityholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Securityholders; provided, that such
amendment will not, as evidenced by an Officer's Certificate of the
Administrative Agent or the Transferor delivered to the Indenture Trustee,
materially and adversely affect the interest of any Noteholder or Trust
Certificateholder. This Agreement may also be amended by the parties hereto with
the written consent of the Owner Trustee and the holders of Notes evidencing at
least a majority of the Outstanding Amount and the holders of Trust Certificates
evidencing at least a majority of the Certificate Balance for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of
Securityholders; provided, however, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the 2005-A Leases or distributions that are required
to be made for the benefit of the Securityholders or (ii) reduce the aforesaid
percentage of the holders of Notes and Trust Certificates which are required to
consent to any such amendment, without the consent of the holders of all
outstanding Notes and Trust Certificates (provided, that if the Transferor and
its Affiliates do not hold all of the Trust Certificates, then the Trust
Certificates held by the Transferor and its Affiliates shall not be deemed
Outstanding for purposes of this provision). Notwithstanding the foregoing, the
Administrative Agent may not amend this Agreement without the permission of the
Transferor, which permission shall not be unreasonably withheld.
Section 1.13 Successors and Assigns. This Agreement may not be
assigned by the Administrative Agent unless such assignment is previously
consented to in writing by the Trust and the Owner Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof. An assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrative Agent is bound
hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the
Administrative Agent without the consent of the Trust or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrative Agent; provided, that such
successor organization executes and delivers to the Trust, the Owner Trustee and
the Indenture Trustee an agreement, in form and substance reasonably
satisfactory to the Owner Trustee and the Indenture Trustee, in which such
corporation or other organization agrees to be bound hereunder by the terms of
said assignment in the same manner as the Administrative Agent is bound
hereunder. Subject to the foregoing, this Agreement shall bind any successors or
assigns of the parties hereto.
Section 1.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS
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CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK).
Section 1.15 Headings. The headings of the various Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 1.16 Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 1.17 Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 1.18 Limitation of Liability of Owner Trustee and
Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company in its capacity as
Owner Trustee of the Trust and in no event shall Wilmington Trust Company in its
individual capacity or any beneficial owner of the Trust have any liability for
the representations, warranties, covenants, agreements or other obligations of
the Trust hereunder, as to all of which recourse shall be had solely to the
assets of the Trust. For all purposes of this Agreement, in the performance of
any duties or obligations of the Trust hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles Six, Seven and Eight of the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed by U.S. Bank as Indenture Trustee and in no event
shall U.S. Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Trust hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Trust.
Section 1.19 Third-Party Beneficiary. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a party
hereto.
Section 1.20 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
upon 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 Transferor, the Trustee, the Titling Trust, the Issuer,
any other Special Purpose Affiliate or any Beneficiary, any bankruptcy,
reorganization, arrangement, insolvency or liquidation Proceeding or other
Proceeding under any federal or state bankruptcy or similar law.
[Signature Page to Follow]
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
NISSAN AUTO LEASE TRUST 2005-A, as Trust
By: WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely as Owner
Trustee
By: _____________________________________________
Name:
Title:
NISSAN AUTO LEASING LLC II, as Transferor
By: _____________________________________________
Name: Kazuhiko Kazama
Title: Treasurer
U.S. BANK NATIONAL ASSOCIATION, as
Indenture Trustee
By: _____________________________________________
Name:
Title:
NISSAN MOTOR ACCEPTANCE
CORPORATION, as
Administrative Agent
By: _____________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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