EXHIBIT 10.6
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NISSAN-INFINITI LT,
as Titling Trust,
NILT TRUST,
as UTI Beneficiary,
and
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Servicer,
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2005-A
SERVICING SUPPLEMENT
Dated as of __________, 2005
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ARTICLE SEVEN DEFINITIONS.......................................................................1
Section 7.01 Definitions.......................................................................1
Section 7.02 Interpretative Provisions.........................................................2
ARTICLE EIGHT SERVICING OF THE 2005-A LEASES AND 2005-A VEHICLES................................2
Section 8.01 Identification of 2005-A Leases and 2005-A Vehicles; Securitization Value.........2
Section 8.02 Reallocation and Repurchase of 2005-A Leases and 2005-A Vehicles;
Purchase of Matured Vehicles......................................................2
Section 8.03 Collections and Payment Date Advance Reimbursement................................4
Section 8.04 Net Deposits......................................................................5
Section 8.05 Servicing Compensation............................................................5
Section 8.06 Advances..........................................................................6
Section 8.07 Third Party Claims................................................................6
Section 8.08 Contingent and Excess Liability Insurance Policy..................................6
Section 8.09 Reporting by the Servicer; Delivery of Certain Documentation......................7
Section 8.10 Accountants' Reports..............................................................7
Section 8.11 Annual Officer's Certificates.....................................................7
Section 8.12 Servicer Defaults; Termination of Servicer........................................8
Section 8.13 Servicer Representations and Warranties..........................................10
ARTICLE NINE MISCELLANEOUS....................................................................10
Section 9.01 Termination of Servicing Supplement..............................................10
Section 9.02 Governing Law....................................................................11
Section 9.03 Amendment........................................................................11
Section 9.04 Relationship of this 2005-A Servicing Supplement to Other Trust Documents........12
Section 9.05 Binding Effect...................................................................12
Section 9.06 Table of Contents and Headings...................................................12
Section 9.07 Counterparts.....................................................................12
Section 9.08 Further Assurances...............................................................12
Section 9.09 Third-Party Beneficiaries........................................................12
Section 9.10 No Waiver; Cumulative Remedies...................................................13
Section 9.11 No Petition......................................................................13
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EXHIBITS
Exhibit A - Schedule of 2005-A Leases and 2005-A Vehicles............................................A-1
Exhibit B - Form of Settlement Statement.............................................................B-1
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2005-A SERVICING SUPPLEMENT
This 2005-A Servicing Supplement, dated as of __________, 2005 (as
amended, supplemented or otherwise modified, this "2005-A Servicing
Supplement"), is among Nissan-Infiniti LT, a Delaware statutory trust (the
"Titling Trust"), NILT Trust, a Delaware statutory trust, as grantor and initial
beneficiary of the Titling Trust (in such capacities, the "Grantor" and the "UTI
Beneficiary," respectively), and Nissan Motor Acceptance Corporation, a
California corporation ("NMAC"), as servicer (the "Servicer").
RECITALS
A. The Grantor and UTI Beneficiary, the Servicer, NILT, Inc., as
trustee of the Titling Trust (the "Trustee"), Wilmington Trust Company, as
Delaware trustee, and U.S. Bank National Association ("U.S. Bank"), as trust
agent, have entered into the Amended and Restated Trust and Servicing Agreement,
dated as of August 26, 1998 (the "Titling Trust Agreement"), pursuant to which
the Titling Trust was created to, among other things, take assignments and
conveyances of and hold in trust various assets (the "Trust Assets");
B. The parties hereto have entered into the Servicing Agreement,
dated as of March 1, 1999 (the "Basic Servicing Agreement" and, as supplemented
hereby, the "Servicing Agreement"), which provides for certain servicing
obligations with respect to the Trust Assets; and
C. The parties acknowledge that in connection with the execution
of the 2005-A SUBI Supplement to the Titling Trust Agreement, dated as of
__________, 2005 (the "2005-A SUBI Supplement", and together with the Titling
Trust Agreement, the "SUBI Trust Agreement"), pursuant to which a special unit
of beneficial interest in the Titling Trust (the "2005-A SUBI") will be created,
it is necessary and desirable to enter into a supplemental agreement to the
Basic Servicing Agreement providing for specific servicing obligations in
connection with the Trust Assets allocable to the 2005-A SUBI.
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 SEVEN
DEFINITIONS
Section 7.01 Definitions. 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 Nissan Auto Lease Trust
2005-A, as issuer (the "Issuer"), NILT Trust, as Grantor and UTI Beneficiary,
the Titling Trust, NMAC, in its individual capacity, as Servicer and as
administrative agent (in such capacity, the "Administrative Agent"), Nissan Auto
Leasing LLC II, a Delaware limited liability company ("▇▇▇▇ II"), NILT, Inc., as
Trustee, Wilmington Trust Company, as owner trustee and Delaware trustee (in
such capacity, the "Owner Trustee" and the "Delaware Trustee," respectively) and
U.S. Bank, as trust agent and indenture trustee (in such capacity, the "Trust
Agent" and the "Indenture Trustee," respectively).
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Section 7.02 Interpretative Provisions. For all purposes of this 2005-A
Servicing Supplement, except as otherwise expressly provided or unless the
context otherwise requires, (i) terms used in this 2005-A Servicing Supplement
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to this 2005-A Servicing Supplement include all Exhibits hereto,
(iii) references to words such as "herein", "hereof", and the like shall refer
to this 2005-A Servicing Supplement as a whole and not to any particular part,
Article, or Section herein, (iv) references to an Article or Section such as
"Article Eight" or "Section 8.01" shall refer to the applicable Article or
Section of this 2005-A Servicing Supplement, (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 Trust," or words of
similar import, shall, to the extent required to effectuate the appointment of
any Co-Trustee pursuant to the Titling Trust Agreement, be deemed to refer to
the Trustee (or such Co-Trustee) on behalf of the Titling Trust.
Any reference in this 2005-A Servicing Supplement to any agreement
means such agreement as it may be amended, restated, supplemented (only to the
extent such agreement as supplemented relates to the Notes), or otherwise
modified from time to time. Any reference in this 2005-A Servicing Supplement to
any law, statute, regulation, rule, or other legislative action shall mean such
law, statute, regulation, rule, or other legislative action as amended,
supplemented, or otherwise modified from time to time, and shall include any
rule or regulation promulgated thereunder. Any reference in this 2005-A
Servicing Supplement to a Person shall include the successor or assignee of such
Person.
ARTICLE EIGHT
SERVICING OF THE 2005-A LEASES AND 2005-A VEHICLES
Section 8.01 Identification of 2005-A Leases and 2005-A Vehicles;
Securitization Value. The Servicer hereby identifies as 2005-A SUBI Assets the
Leased Vehicles and the Leases relating to such Leased Vehicles more
particularly described in the Schedule of 2005-A Leases and 2005-A Vehicles
(respectively, the "2005-A Vehicles" and the "2005-A Leases"). The Servicer
shall calculate the Securitization Value for each 2005-A Lease as of the Cutoff
Date.
Section 8.02 Reallocation and Repurchase of 2005-A Leases and 2005-A
Vehicles; Purchase of Matured Vehicles.
(a) (i) If the Servicer grants an extension with respect to any 2005-A
Lease, the Servicer shall, on the related Deposit Date, (A) deposit or cause to
be deposited into the 2005-A SUBI Collection Account an amount equal to the
Repurchase Payment and (B) direct the Trustee to either reallocate such 2005-A
Lease and the related 2005-A Vehicle from the 2005-A SUBI to the UTI or cause
such 2005-A Lease and 2005-A Vehicle to be conveyed to the Servicer; and (ii) if
a Lessee changes the domicile of or title to a 2005-A Vehicle and such change
would be likely to result in the Titling Trust doing business in a Restricted
Jurisdiction, the Titling Trust, or the
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Trustee on behalf of the Titling Trust, shall, as an obligation of the Titling
Trust and at the direction of the Servicer, on the related Deposit Date, (A)
deposit or cause to be deposited into the 2005-A SUBI Collection Account, from
amounts held by the Titling Trust, an amount equal to the Repurchase Payment and
(B) either reallocate such 2005-A Lease and the related 2005-A Vehicle from the
2005-A SUBI to the UTI or cause such 2005-A Lease and 2005-A Vehicle to be
conveyed to the Servicer.
(b) The Servicer hereby makes to the other parties hereto and the
parties to the SUBI Trust Agreement the representations and warranties contained
in Section 2.06(a) of the Basic Servicing Agreement as to each 2005-A Lease and
2005-A Vehicle as of the Vehicle Representation Date. The Servicer also hereby
represents and warrants that (i) each 2005-A Lease is an 2005-A Eligible Lease
and (ii) it used no adverse selection procedures in selecting any of the 2005-A
Leases or any of the 2005-A Vehicles for allocation to the 2005-A SUBI. Upon
discovery by the Trustee, the Servicer, the Owner Trustee, the Indenture Trustee
or the Transferor that any representation or warranty in this Section 8.02(b)
was incorrect as of the Cutoff Date in a manner that materially adversely
affects the interest of the Trust in the related 2005-A Lease or 2005-A Vehicle,
the entity discovering such incorrectness (if other than the Servicer) shall
give prompt written notice to the Servicer. If the Servicer does not cure in all
material respects the circumstance or condition with respect to which the
representation or warranty was incorrect as of the Cutoff Date prior to the end
of the Collection Period which includes the 60th day (or, if the Servicer
elects, an earlier date) after the date that the Servicer discovers such
incorrectness (whether pursuant to such notice or otherwise), then the Servicer
shall (i) deposit (or cause to be deposited) into the 2005-A SUBI Collection
Account an amount equal to the Repurchase Payment on the Deposit Date following
the end of such Collection Period, and (ii) direct the Trustee to either
reallocate such 2005-A Lease and the related 2005-A Vehicle from the 2005-A SUBI
to the UTI or cause such 2005-A Lease and 2005-A Vehicle to be conveyed to the
Servicer.
(c) Immediately prior to the sale or disposition of a Matured Vehicle
or a Defaulted Vehicle, the Servicer may reallocate such Matured Vehicle or
Defaulted Vehicle from the 2005-A SUBI to the UTI for purposes of implementing
NMAC's like kind exchange program. In connection with such reallocation, NILT
Trust, as the UTI Beneficiary, will cause to be deposited into the 2005-A SUBI
Collection Account the Reallocation Payments no later than two Business Days
after such reallocation, or, if the Monthly Remittance Condition is met, the
Servicer shall be permitted to retain the Reallocation Payments received during
a Collection Period until such amounts are required to be disbursed on the next
Payment Date. Upon receipt of the Reallocation Payments, the 2005-A SUBI shall
have no claim against or interest in such Matured or Defaulted Vehicle.
(d) In connection with the purchase by the Servicer of a Matured
Vehicle relating to a 2005-A Lease pursuant to Section 2.06(f) of the Basic
Servicing Agreement, if (i) no Sales Proceeds Advance has been made, the
purchase price of such Matured Vehicle will equal the Securitization Value of
such 2005-A Lease as of the date of expiration and (ii) a Sales Proceeds Advance
has been made, (a) the purchase price will equal the amount of the Sales
Proceeds Advance, (b) no additional amounts need be remitted by the Servicer,
and (c) the Servicer shall be deemed to have been reimbursed for such Sales
Proceeds Advance.
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(e) If any 2005-A Lease and the related 2005-A Vehicle are reallocated
to the UTI, until such time thereafter, if ever, as such Lease and Leased
Vehicle are allocated to an Other SUBI, the Servicer shall indemnify, defend and
hold harmless the Related Beneficiaries and the Trust from and against any and
all loss or liability with respect to or resulting from such 2005-A Lease or
2005-A Vehicle (including the reasonable fees and expenses of counsel).
Section 8.03 Collections and Payment Date Advance Reimbursement.
(a) The Servicer shall, with respect to SUBI Collections and amounts in
respect of the 2005-A SUBI Certificate, from time to time, determine the
respective amounts and recipients and:
(i) during each Collection Period, in addition to the deposits
required by Section 2.07 of the Basic Servicing Agreement, deposit into
the 2005-A SUBI Collection Account all Repurchase Payments pursuant to
Section 8.02(a) and Section 8.02(b), and any Reallocation Payments
pursuant to Section 8.02(c);
(ii) on, or prior to each Deposit Date, deposit into the
2005-A SUBI Collection Account all Advances, any Residual Value Surplus
from the sale of a Matured Vehicle for which the Servicer made a Sales
Proceeds Advance and any Net Auction Proceeds from the disposition of a
Matured Vehicle at auction for which the Servicer was reimbursed during
the related Collection Period pursuant to Section 8.06;
(iii) on or prior to each Payment Date, deposit into the
2005-A SUBI Collection Account all Cap Payments or Cap Termination
Payments; and
(iv) on each Payment Date, pursuant to the related Payment
Date Certificate, allocate Available Funds on deposit in the 2005-A
SUBI Collection Account with respect to the related Collection Period
and instruct the Trustee (acting through the Trust Agent) to make, no
later than 11:00 a.m., New York City time, the following deposits and
distributions in the following amounts and order of priority:
(A) to the Servicer the sum of outstanding (1) Sales
Proceeds Advances (x) in respect of 2005-A Vehicles that were
sold during the related Collection Period (other than a sale
to the Servicer pursuant to Section 8.02(d)(ii)), and (y) that
have been outstanding as of the end of that Collection Period
for at least 90 days and (2) Monthly Payment Advances as to
which the related Lessee has made all or a portion of the
advanced Monthly Payment or that have been outstanding as of
the end of the Collection Period for at least 90 days
(collectively, the "Payment Date Advance Reimbursement");
(B) to or on behalf of the Servicer, the Servicing
Fee in respect of the related Collection Period, together with
any unpaid Servicing Fees in respect of one or more prior
Collection Periods; and
(C) to the Note Distribution Account, the Reserve
Account and Certificate Distribution Account, such
distributions in the amounts and order of priority as set
forth in Sections 8.04(a) and 10.01 of the Indenture.
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(b) Notwithstanding Section 2.07 of the Basic Servicing Agreement, the
Servicer shall be permitted to retain the amounts provided for in such Section
received during a Collection Period until such amounts are required to be
disbursed on the next Payment Date, for so long as no Servicer Default has
occurred and is continuing, and the following requirements are met
(collectively, the "Monthly Remittance Condition"):
(i) (A) NMAC (or its successors pursuant to Section 5.03(b) of
the Basic Servicing Agreement) is the Servicer, and (B) NMAC's
short-term unsecured debt obligations are rated at least "P-1" by
Moody's, "A-1" by Standard & Poor's (in each case, so long as Moody's
or Standard & Poor's is a Rating Agency);
(ii) if (A) the Servicer obtains a Servicer Letter of Credit
or other form of enhancement acceptable to the Rating Agencies under
which demands for payment may be made to secure timely remittance of
SUBI Collections to the 2005-A SUBI Collection Account on a monthly
basis and (B) the Trustee and the Owner Trustee gives prior written
notice to each Rating Agency of the obtaining of such Servicer Letter
of Credit;
(iii) the Servicer otherwise satisfies each Rating Agency's
requirements; or
(iv) if the Outstanding Amount is reduced to zero and 100% of
the outstanding Trust Certificates are owned by the Trust, the
Transferor, the Servicer (so long as NMAC or an Affiliate is the
Servicer) and their respective Affiliates.
Pending deposit into the 2005-A SUBI Collection Account, SUBI
Collections may be employed by the Servicer at its own risk and for its own
benefit and shall not be segregated from its own funds.
Section 8.04 Net Deposits. Notwithstanding anything to the contrary
contained in this 2005-A Servicing Supplement, for so long as NMAC is the
Servicer, the Servicer shall be permitted to deposit into the 2005-A SUBI
Collection Account only the net amount distributable to the Trust, as holder of
the 2005-A SUBI Certificate on the related Deposit Date. The Servicer shall,
however, account to the Trust, the Trustee, the Trust Agent, the Indenture
Trustee (or any successor to the duties of the Indenture Trustee), the Owner
Trustee and the Holders of the Securities as if all of the deposits and
distributions described herein were made individually.
Section 8.05 Servicing Compensation.
(a) As compensation for the performance of its obligations under the
Servicing Agreement, the Servicer shall be entitled to receive the Servicing
Fee.
(b) The Servicer shall also be entitled to additional servicing
compensation with respect to the 2005-A SUBI Assets in the form of, among other
things, Administrative Charges to the extent not required for the payment of
insurance premiums, taxes, or similar charges allocable to the 2005-A Leases.
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Section 8.06 Advances.
(a) If during a Collection Period a Lessee makes a Lessee Partial
Monthly Payment, the Servicer shall make, by deposit into the 2005-A SUBI
Collection Account on the related Deposit Date, a Monthly Payment Advance,
unless such Advance is not required to be made pursuant to Section 8.06(c).
(b) On each Deposit Date, the Servicer shall make, by deposit into the
2005-A SUBI Collection Account, Sales Proceeds Advances, unless such Advance is
not required to be made pursuant to Section 8.06(c). After the Servicer has made
a Sales Proceeds Advance with respect to a Matured Vehicle, the Trust shall have
no claim against or interest in such Matured Vehicle or any Net Auction Proceeds
resulting from the sale or other disposition thereof, except with respect to any
related Residual Value Surplus. If the Servicer shall sell or otherwise dispose
of a Matured Vehicle after having made a Sales Proceeds Advance, the Trust may
retain all of such Sales Proceeds Advance, and the Servicer shall retain the
related Net Auction Proceeds up to the Securitization Value of the related
2005-A Lease, and shall deposit the Residual Value Surplus, if any, into the
2005-A SUBI Collection Account. If the Net Auction Proceeds are less than the
Securitization Value of the related 2005-A Lease, the Servicer may deduct the
difference from SUBI Collections in respect of one or more future Collection
Periods and retain such amount as reimbursement for the outstanding portion of
the related Sales Proceeds Advance. If the Servicer has not sold a Matured
Vehicle within 90 days after it has made a Sales Proceeds Advance, it shall be
reimbursed for such Sales Proceeds Advance from the 2005-A SUBI Collection
Account. Within six months of receiving such reimbursement, if the related
2005-A Vehicle has not been sold, the Servicer shall, if permitted by applicable
law, cause such 2005-A Vehicle to be sold at auction and shall remit the
proceeds associated with such auction sale to the 2005-A SUBI Collection
Account.
(c) Notwithstanding anything to the contrary in the Servicing
Agreement, the Servicer shall be required to make an Advance only to the extent
that it determines that such Advance will be recoverable from future payments on
or in respect of the related 2005-A Lease or 2005-A Vehicle.
Section 8.07 Third Party Claims. In addition to the requirements set
forth in Section 2.14 of the Basic Servicing Agreement, the Servicer shall
immediately notify the Transferor (in the event that NMAC is not acting as
Servicer) and the Indenture Trustee (or any successor to the duties of the
Indenture Trustee) upon learning of a claim or Lien of whatever kind of a third
party that would materially and adversely affect the interests of the Transferor
or the Trust with respect to the 2005-A SUBI Assets.
Section 8.08 Contingent and Excess Liability Insurance Policy. So long
as any Securities are outstanding, the Servicer shall 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 (i)
a replacement Insurance Policy is obtained that provides coverage against third
party claims that may be raised against the Titling Trust, the Trustee on behalf
of the Titling Trust or the Trust 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
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Insurance Policy may be a blanket Insurance Policy covering the Servicer and one
or more of its Affiliates) and (ii) in the case of Rated Securities, each Rating
Agency has received prior written notification from the Owner Trustee of such
termination and any replacement insurance. The obligations of the Servicer
pursuant to this Section shall survive any termination of the Servicer's other
obligations under the Servicing Agreement until such time as claims can no
longer be brought that would be covered by such Insurance Policies, whether as a
result of the expiration of relevant statutes of limitations or otherwise.
Section 8.09 Reporting by the Servicer; Delivery of Certain
Documentation.
(a) On or prior to the Closing Date, and periodically thereafter as
required in order to update the contents thereof upon any changes in the matters
certified therein, the Servicer shall furnish to the Trustee and the Related
Beneficiary an Officer's Certificate listing the officers of the Servicer
involved in, or responsible for, the servicing of the 2005-A Leases.
(b) On the tenth calendar day of each month (or, if the 10th day is not
a Business Day, the next succeeding Business Day), the Servicer shall furnish to
the Trustee and each Related Beneficiary a Settlement Statement for the
immediately preceding Collection Period.
Section 8.10 Accountants' Reports. On or before the last day of the
third month after the end of the fiscal year of the Servicer, beginning with
June 30, 2006, the Servicer shall cause a firm of independent certified public
accountants, who may also render other services to the Servicer or to its
Affiliates, to deliver to the Trust, the Indenture Trustee and each Rating
Agency the following reports: (a) a report that such firm has audited the
consolidated financial statements of the Servicer in accordance with generally
accepted auditing standards, that such firm is independent of the Servicer
within the meaning of the Code of Professional Ethics of the American Institute
of Certified Public Accountants ("AICPA"), and expressing such firm's opinion
thereon; and (b) a report indicating that such firm has examined, in accordance
with standards established by AICPA, management's assertion about the Servicer's
compliance with the minimum servicing standards identified in the Mortgage
Bankers Association of America's Uniform Single Attestation Program for Mortgage
Bankers ("USAP") as such standards relate to automobile and light-duty truck
loans serviced for others, and expressing such firm's opinion on such management
assertion (the "Annual USAP Report"). The certification required by this
paragraph may be replaced by any similar certification using standards other
than USAP which are now or in the future in use by servicers of comparable
assets or which otherwise comply with any rule, regulation, "no action" letter
or similar guidance promulgated by the Commission.
Section 8.11 Annual Officer's Certificates.
(a) On or before the last day of the third month after the end of the
fiscal year of the Servicer, beginning with June 30, 2006, the Servicer shall
deliver an Officer's Certificate to the Trust, the Indenture Trustee, each
Rating Agency, and the Owner Trustee in accordance with Section 3.01(c) of the
Basic Servicing Agreement.
(b) On or before the last day of the third month after the end of the
fiscal year of the Servicer, beginning with June 30, 2006, for as long as NMAC
continues to act as the Servicer, the Servicer shall deliver an Officer's
Certificate to each Rating Agency, the Owner Trustee and the Indenture Trustee
stating that, with respect to certain ERISA Plans maintained or sponsored
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by the Servicer or any of the Servicer's ERISA affiliates: (a) Plan assets will
not be materially less than the present value of accrued benefits under each of
the Plans as of the close of the most recent Plan year, as reported in the most
recent plan financial statements; (b) neither the Servicer nor any of its ERISA
affiliates anticipates that the actuarial value of the assets of any Plan it
maintains would not be materially insufficient to cover the Gateway current
liability (as defined by the Code and demonstrated on the most recent Form 5500
Schedule B that has been filed with the IRS), or is contemplating benefit
improvements that would cause the Servicer or its ERISA affiliates to maintain a
Plan with materially underfunded Gateway current liability; (c) if all of the
Plans (other than a multiemployer Plan) were terminated (disregarding any Plans
with surpluses), the unfunded liabilities with respect to the Plans would have
no material adverse effect on Nissan Motor Co., Ltd. or Nissan North America,
Inc.; and (d) no accumulated funding deficiency or waived funding deficiency as
defined in section 412 of the Code or under any multiemployer Plan or collective
bargaining agreement exists and there is no failure to make any required
contribution under the minimum funding requirements of the Code, as of the close
of the most recent Plan year.
Section 8.12 Servicer Defaults; Termination of Servicer.
(a) Each of the following acts or occurrences constitutes a "Servicer
Default" under the Servicing Agreement with respect to the 2005-A SUBIs:
(i) the Servicer fails to deliver, or cause to be delivered,
any required payment to the Indenture Trustee for distribution to the
Noteholders or to the Owner Trustee for distribution to the Trust
Certificateholders, which failure continues for five Business Days
after discovery of such failure by an officer of the Servicer or
receipt by the Servicer of written notice thereof from the Indenture
Trustee, or Noteholders or Trust Certificateholders, as applicable,
evidencing at least a Majority Interest in the applicable Securities
(which for this purpose includes Trust Certificates held by the Trust,
the Transferor, the Servicer (so long as NMAC or an Affiliate is the
Servicer) and their respective Affiliates), voting together as a single
class;
(ii) the Servicer fails to duly observe or perform in any
material respect any of its covenants or agreements in the Servicing
Agreement not otherwise covered in this Section 8.12(a), which failure
materially and adversely affects the rights of a Holder of the 2005-A
SUBI Certificate, the Noteholders or Trust Certificateholders, as
applicable, and which continues unremedied for 60 days (or for such
longer period not in excess of 90 days as may be reasonably necessary
to remedy such failure; provided that (1) such failure is capable of
remedy within 90 days or less and (2) a Majority Interest in the
applicable Securities consents to such longer cure period) after
receipt by the Servicer of written notice thereof from the Indenture
Trustee or the related holders evidencing at least a Majority Interest
in the applicable Securities or such default becomes known to the
Servicer;
(iii) any representation, warranty, or statement of the
Servicer made in the Servicing Agreement, any other Basic Document to
which the Servicer is a party or by which it is bound or any
certificate, report or other writing delivered pursuant to the
Servicing Agreement that proves to be incorrect in any material respect
when made, which failure materially and adversely affects the rights of
a Holder of the 2005-A SUBI Certificate or the holders of the Notes, or
the Trust Certificateholders, continues unremedied for 60 days (or for
such longer period not in excess of 90 days as may be reasonably
necessary to remedy such failure; provided that (1) such failure is
capable of remedy within 90 days or less and (2) a Majority Interest in
the applicable Securities consents to such longer cure period) after
receipt by the Servicer of written notice thereof from the
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Trustee or the related holders evidencing at least a Majority Interest
in the applicable Securities, or such default becomes known to the
Servicer;
(iv) (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; or
(v) the Servicer (A) applies for or consents 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) is generally unable to pay its debts as they become due,
(C) makes a general assignment for the benefit of creditors, (D)
commences a voluntary case under the federal bankruptcy laws (E) is
adjudicated to be bankrupt or insolvent, (F) files a petition seeking
to take advantage of any other law providing for the relief of debtors,
or (G) takes any corporate action for the purpose of effecting any of
the foregoing;
provided, however, that notwithstanding any other provision of the Servicing
Agreement, (i) for the purpose of determining what constitutes a Servicer
Default with respect to the 2005-A SUBI, the provisions contained in this
Section 8.12(a) shall replace in their entirety the provisions contained in
Section 4.01(a) of the Basic Servicing Agreement and (ii) any Servicer Default
with respect to the 2005-A SUBI shall not constitute a Servicing Default with
respect to any other Sub-Trust and any Servicing Default (as such term is
defined in the Basic Servicing Agreement) with respect to any other Sub-Trust
shall constitute a Servicer Default (as such term is defined in the Basic
Servicing Agreement) only with respect to such Sub-Trust and not with respect to
the 2005-A SUBI.
(b) Upon the occurrence of any Servicer Default, the Servicer, in
addition to complying with the notice requirements of Section 4.01(b) of the
Basic Servicing Agreement (except that references therein to Registered Pledgees
shall mean each Registered Pledgee of the 2005-A SUBI Certificate), shall
provide to the Indenture Trustee and the Owner Trustee 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.
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(c) In addition to the provisions of Section 4.01(c) of the Basic
Servicing Agreement, if a Servicer Default shall have occurred and is continuing
with respect to the 2005-A SUBI, the Trustee, on behalf of the Titling Trust,
shall, at the direction of the Required Related Holders, by notice given to the
Servicer, each Rating Agency, the Related Beneficiary and the holders of the
Rated Securities, terminate the rights and obligations of the Servicer under
this 2005-A Servicing Supplement in accordance with such Section. In the event
that the Servicer is removed as servicer with respect to servicing the 2005-A
SUBI Assets, subject to the consent of the Trustee, the Required Related Holders
shall appoint a successor Servicer. The successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Trustee. Such
successor Servicer shall be approved by the Trustee, such approval not to be
unreasonably withheld. Notwithstanding the provisions of Section 4.01(e) of the
Basic Trust Agreement, with respect to any Servicer Default related to the
2005-A SUBI Assets, the Trustee, acting on the direction of the Required Related
Holders, may waive any default of the Servicer in the performance of its
obligations under the Servicing Agreement and its consequences with respect to
the 2005-A SUBI and, upon any such waiver, such default shall cease to exist and
any Servicer Default arising therefrom shall be deemed to have been remedied for
every purpose of the Servicing Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto. For purposes
of this Section, so long as the Lien of the Indenture is in place, the Required
Related Holders shall be deemed to be the Indenture Trustee (as Registered
Pledgee of the 2005-A SUBI Certificates), acting at the direction of the
Required Percentage of the Noteholders and thereafter, the Owner Trustee, acting
at the direction of the Required Percentage of the Trust Certificateholders
(which for this purpose shall include Trust Certificates owned by the Trust, the
Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) and
any of their respective Affiliates) until the Aggregate Certificate Balance has
been reduced to zero.
(d) If the Servicer is removed with respect to servicing the 2005-A
SUBI Assets, the Servicer shall be entitled to reimbursement for any outstanding
Advances made pursuant to this 2005-A Servicing Supplement, to the extent of the
funds available therefor with respect to all Advances made by the Servicer.
Section 8.13 Servicer Representations and Warranties. Effective as of
the date hereof, the Servicer hereby reaffirms the representations and
warranties set forth in Section 2.06(a) and Section 5.01 of the Basic Servicing
Agreement, except that references to "this Agreement" shall be deemed to refer
to the Servicing Agreement, as such term is defined herein.
ARTICLE NINE
MISCELLANEOUS
Section 9.01 Termination of Servicing Supplement. This 2005-A Servicing
Supplement shall terminate upon the earlier to occur of (i) the termination of
the 2005-A SUBI or (ii) the resignation or removal of the Servicer with respect
to the 2005-A SUBI in accordance with the terms of the Servicing Agreement. Any
such termination hereunder shall effect a termination only with respect to the
2005-A SUBI Assets and not as to Trust Assets allocated to any other Sub-Trust,
and shall not effect a termination of the Basic Servicing Agreement or any other
supplement to the Basic Servicing Agreement.
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Section 9.02 Governing Law. This 2005-A Servicing Supplement shall be
governed by and construed in accordance with the internal laws of the State of
California, without regard to any otherwise applicable principles of conflict of
laws.
Section 9.03 Amendment.
(a) Notwithstanding any provision of the Basic Servicing Agreement, the
Basic Servicing Agreement, as supplemented by this 2005-A SUBI Servicing
Supplement, to the extent that it relates solely to the 2005-A SUBI and the
2005-A SUBI Assets, may be amended in accordance with this Section 9.03.
(b) Any term or provision of this 2005-A SUBI Servicing Supplement may
be amended by the parties hereto, without the consent of any other Person;
provided that (i) either (A) any amendment that materially and adversely affects
the interests of the Noteholders shall require the consent of Noteholders
evidencing not less than a Majority Interest of the Notes voting together as a
single class or (B) such amendment shall not, as evidenced by an Officer's
Certificate of the Servicer delivered to the Indenture Trustee, materially and
adversely affect the interests of the Noteholders, and (ii) any amendment that
adversely affects the interests of the Trust Certificateholder, Titling Trustee,
the Delaware Trustee, the Indenture Trustee or the Owner Trustee shall require
the prior written consent of the Persons whose interests are adversely affected;
provided further, that Opinion of Counsel is delivered to the Trustee to the
effect that after such amendment, for federal income tax purposes, the Titling
Trust will not be treated as an association (or a publicly traded partnership)
taxable as a corporation and Notes will properly be characterized as
indebtedness that is secured by the assets of the Trust. An amendment shall be
deemed not to materially and adversely affect the interests of the Noteholders
if the Rating Agency Condition is satisfied with respect to such amendment and
the Officer's Certificate described in the preceding sentence is provided to the
Indenture Trustee. The consent of the Trust Certificateholder, the Delaware
Trustee or the Owner Trustee shall be deemed to have been given if the Servicer
does not receive a written objection from such Person within 10 Business Days
after a written request for such consent shall have been given. The Titling
Trustee and the Indenture Trustee may, but shall not be obligated to, enter into
any such amendment that affects the Titling Trustee's or the Indenture Trustee's
own rights, duties, liabilities or immunities under this Agreement or otherwise.
(c) Notwithstanding the foregoing, no amendment shall (i) reduce the
interest rate or principal amount of any Note, or change the due date of any
installment of principal of or interest in any Note, or the Redemption Price
with respect thereto, without the consent of the Holder of such Note, or (ii)
reduce the Outstanding Amount, the Holders of which are required to consent to
any matter without the consent of the Holders of at least a Majority Interest of
the Notes which were required to consent to such matter before giving effect to
such amendment.
(d) Notwithstanding anything herein to the contrary, any term or
provision of this 2005-A SUBI Servicing Supplement may be amended by the parties
hereto without the consent of any of the Noteholders or any other Person to add,
modify or eliminate any provisions as may be necessary or advisable in order to
comply with or obtain more favorable treatment under or with respect to any law
or regulation or any accounting rule or principle (whether now or in the future
in effect); it being a condition to any such amendment that the Rating Agency
Condition shall have been satisfied and the Officer's Certificate described in
Section 9.03(b)(i)(B) is delivered to the Indenture Trustee.
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(e) It shall not be necessary for the consent of any Person pursuant to
this Section for such Person to approve the particular form of any proposed
amendment, but it shall be sufficient if such Person consents to the substance
thereof.
(f) Not less than 15 days prior to the execution of any amendment to this
2005-A SUBI Servicing Supplement, the Servicer shall provide each Rating Agency,
the Trust Certificateholder, the Transferor, the Owner Trustee and the Indenture
Trustee with written notice of the substance of such amendment. No later than 10
Business Days after the execution of any amendment to this 2005-A SUBI Servicing
Supplement, the Servicer shall furnish a copy of such amendment to each Rating
Agency, the Trust Certificateholder, Titling Trustee, the Delaware Trustee, the
Indenture Trustee and the Owner Trustee.
(g) None of U.S. Bank National Association, as trustee of NILT Trust
and as Trust Agent, NILT, Inc., nor the Indenture Trustee shall be under any
obligation to ascertain whether a Rating Agency Condition has been satisfied
with respect to any amendment. When the Rating Agency Condition is satisfied
with respect to such amendment, the Servicer shall deliver to a Responsible
Officer of U.S. Bank National Association, NILT, Inc. and the Indenture Trustee
an Officer's Certificate to that effect, and U.S. Bank National Association,
NILT, Inc. and the Indenture Trustee may conclusively rely upon the Officer's
Certificate from the Servicer that a Rating Agency Condition has been satisfied
with respect to such amendment.
Section 9.04 Relationship of this 2005-A Servicing Supplement to Other
Trust Documents. Unless the context otherwise requires, this 2005-A Servicing
Supplement and the other Trust Documents shall be interpreted so as to give full
effect to all provisions hereof and thereof. In the event of any actual conflict
between the provisions of this 2005-A Servicing Supplement and (i) the Titling
Trust Agreement, with respect to the servicing of any Trust Assets, the
provisions of this 2005-A Servicing Supplement shall prevail and (ii) the Basic
Servicing Agreement, the provisions of this 2005-A Servicing Supplement shall
control.
Section 9.05 Binding Effect. The provisions of this 2005-A Servicing
Supplement shall be binding upon and inure to the benefit of the parties hereto
and their permitted successors and assigns, and all such provisions shall inure
to the benefit of the Owner Trustee on behalf of the Trust.
Section 9.06 Table of Contents and Headings. The Table of Contents and
Article and Section headings herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
Section 9.07 Counterparts. This 2005-A Servicing Supplement may be
executed in any number of counterparts, each of which so executed and delivered
shall be deemed to be an original, but all of which counterparts shall together
constitute but one and the same instrument.
Section 9.08 Further Assurances. Each party will do 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 2005-A
Servicing Supplement and to better assure and confirm unto the requesting party
its rights, powers, and remedies hereunder.
Section 9.09 Third-Party Beneficiaries. The Trust, each Holder of the
2005-A SUBI, each Related Beneficiary, and each Registered Pledgee shall be
third-party beneficiaries of the Servicing Agreement. Except as otherwise
provided in the Servicing Agreement, no other Person
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shall have any rights hereunder. For purposes of the Servicing Agreement, this
Section replaces Section 6.12 of the Basic Servicing Agreement in its entirety.
Section 9.10 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 hereunder 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
herein provided are cumulative and not exhaustive of any rights, remedies,
powers, and privileges provided at law, in equity or otherwise.
Section 9.11 No Petition. Each of the parties hereto, by entering into
this 2005-A Servicing Supplement, in addition to provisions of Section 6.14 of
the Basic Servicing Agreement, hereby 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. This Section shall survive the
complete or partial termination of this 2005-A Servicing Supplement and the
complete or partial resignation or removal of the Servicer under the SUBI Trust
Agreement, the Basic Servicing Agreement or this 2005-A Servicing Supplement.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this 2005-A
Servicing Supplement to be duly executed by their respective officers duly
authorized as of the day and year first above written.
NISSAN-INFINITI LT, as Titling Trust
By: NILT, INC.,
as Trustee
By:
-------------------------------
Name:
Title:
NILT TRUST, as UTI Beneficiary
By: U.S. BANK NATIONAL ASSOCIATION,
as Managing Trustee
By:
-------------------------------
Name:
Title:
NISSAN MOTOR ACCEPTANCE
CORPORATION, as Servicer
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
S-1
EXHIBIT A
SCHEDULE OF 2005-A LEASES AND 2005-A VEHICLES
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