EXHIBIT 10.8
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NISSAN MOTOR ACCEPTANCE CORPORATION,
as Grantor and Beneficiary,
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee,
NISSAN MOTOR ACCEPTANCE CORPORATION,
as Administrator,
and
WILMINGTON TRUST COMPANY,
as Delaware Trustee
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NILT TRUST
AMENDED AND RESTATED
TRUST AGREEMENT
Dated as of March 1, 1999
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INTERPRETIVE PROVISIONS
Section 1.01. Definitions; Interpretive Provisions.......................................................... 1
ARTICLE TWO
THE TRUST
Section 2.01. General....................................................................................... 2
Section 2.02. Office........................................................................................ 2
Section 2.03. Purposes...................................................................................... 2
Section 2.04. Appointment of Trustee........................................................................ 3
Section 2.05. Capital Contribution to Trust Assets.......................................................... 3
Section 2.06. Declaration of Trust.......................................................................... 3
Section 2.07. Maintenance of Separate Existence; Prohibited Transactions.................................... 3
Section 2.08. Liability of Beneficiary...................................................................... 4
Section 2.09. Title to Trust Property....................................................................... 4
Section 2.10. Situs of Trust................................................................................ 4
Section 2.11. Representations and Warranties of the Beneficiary............................................. 5
Section 2.12. Beneficiary Payment Obligation................................................................ 6
Section 2.13. Beneficial Ownership.......................................................................... 6
Section 2.14. Restrictions on the Beneficiary's Power....................................................... 6
ARTICLE THREE
PAYMENTS; TRUST ACCOUNTS
Section 3.01. Payments from Trust Assets Only............................................................... 7
Section 3.02. Establishment of Trust Account................................................................ 7
Section 3.03. Distribution of Excess Trust Funds............................................................ 7
Section 3.04. No Segregation of Monies; No Interest......................................................... 8
Section 3.05. Accounting and Reports to the Beneficiary, IRS and Others..................................... 8
ARTICLE FOUR
AUTHORITY AND DUTIES OF, AND ACTIONS BY, THE TRUSTEE
Section 4.01. General Authority............................................................................. 9
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Section 4.02. General Duties................................................................................ 9
Section 4.03. Action Upon Instruction....................................................................... 9
Section 4.04. Action by Trustee with Respect to Bankruptcy.................................................. 10
Section 4.05. No Duties Except as Specified in this Agreement or in Instructions............................ 10
Section 4.06. No Action Except Under Specified Documents or Instructions.................................... 11
Section 4.07. Restrictions.................................................................................. 11
ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.01. Acceptance of Trusts and Duties............................................................... 12
Section 5.02. Furnishing of Documents....................................................................... 13
Section 5.03. Representations and Warranties................................................................ 13
Section 5.04. Reliance; Advice of Counsel................................................................... 13
Section 5.05. Not Acting in Individual Capacity............................................................. 14
Section 5.06. Trustee Not Liable for Securities or Leases................................................... 14
Section 5.07. Trustee May Own Securities.................................................................... 14
ARTICLE SIX
COMPENSATION OF TRUSTEE
Section 6.01. Trustee's Fees and Expenses................................................................... 15
Section 6.02. Indemnification............................................................................... 15
ARTICLE SEVEN
THE ADMINISTRATOR
Section 7.01. Appointment of Administrator.................................................................. 16
Section 7.02. Duties of the Administrator................................................................... 16
Section 7.03. Non-Ministerial Matters....................................................................... 17
Section 7.04. Indemnification of Trustee.................................................................... 17
Section 7.05. Administrator's Fees and Expenses............................................................. 17
Section 7.06. Independence of Administrator................................................................. 17
Section 7.07. Other Activities of Administrator............................................................. 18
Section 7.08. Resignation and Removal of Administrator...................................................... 18
Section 7.09. No Joint Venture.............................................................................. 19
Section 7.10. Action Upon Termination, Resignation or Removal............................................... 19
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ARTICLE EIGHT
TERMINATION AND DISSOLUTION
Section 8.01. Termination of Trust Agreement................................................................ 20
Section 8.02. Bankruptcy of Beneficiary..................................................................... 20
ARTICLE NINE
SUCCESSOR AND ADDITIONAL TRUSTEES
Section 9.01. Eligibility Requirements for Trustee.......................................................... 21
Section 9.02. Resignation or Removal of Trustee............................................................. 21
Section 9.03. Successor Trustee............................................................................. 22
Section 9.04. Merger or Consolidation of Trustee............................................................ 22
Section 9.05. Appointment of Co-Trustee or Separate Trustee................................................. 23
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Amendments................................................................................... 25
Section 10.02. No Legal Title to Trust Assets in Beneficiary................................................ 26
Section 10.03. Limitations on Rights of Others.............................................................. 26
Section 10.04. Notices...................................................................................... 26
Section 10.05. Severability of Provisions................................................................... 26
Section 10.06. Counterparts................................................................................. 26
Section 10.07. Successors and Assigns....................................................................... 26
Section 10.08. No Petition.................................................................................. 27
Section 10.09. No Recourse.................................................................................. 27
Section 10.10. Headings..................................................................................... 27
Section 10.11. Governing Law................................................................................ 27
Section 10.12. Integration.................................................................................. 27
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EXHIBITS
Exhibit A -- Definitions ........................................................................... A-1
Exhibit B -- Form of Certificate of Trust........................................................... B-1
Exhibit C -- Form of Power of Attorney.............................................................. C-1
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AMENDED AND RESTATED
TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of March 1, 1999,
is among Nissan Motor Acceptance Corporation, a California corporation ("NMAC"),
as grantor and beneficiary (in such capacities, the "Grantor" and "Beneficiary",
respectively), U.S. Bank Trust National Association, a national banking
association, as trustee (the "Trustee"), NMAC, as administrator (in such
capacity, the "Administrator"), and Wilmington Trust Company, a Delaware banking
corporation, as Delaware trustee (the "Delaware Trustee").
RECITALS
WHEREAS, NILT Trust is a Delaware business trust created pursuant to
(i) a trust agreement, dated as of July 7, 1998, among the Beneficiary, the
Trustee and the Delaware Trustee (the "Original Trust Agreement") and (ii) a
certificate of trust filed with the Secretary of State of the State of Delaware
on July 7, 1998; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety for the purpose of holding in trust various
assets described herein.
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 hereby agree as
follows:
ARTICLE ONE
DEFINITIONS AND INTERPRETIVE PROVISIONS
Section 1.01. Definitions; Interpretive Provisions. For all purposes of
this Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) capitalized terms shall have the meanings ascribed
thereto in Exhibit A, (ii) capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Origination Trust
Agreement, (iii) terms used in this Agreement include, as appropriate, all
genders and the plural as well as the singular, (iv) references to this
Agreement include all Exhibits hereto, (v) 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, (vi) 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, (vii) the term "include" and all
variations thereof shall mean "include without limitation", (viii) the term "or"
shall include "and/or", (ix) the term "proceeds" shall have the meaning ascribed
to such term in the UCC and (x) 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 Section 9.05, be deemed to refer to
the Trustee (or such co-trustee) on behalf of the Trust.
ARTICLE TWO
THE TRUST
Section 2.01. General. The Trust continued hereby shall be known as
"NILT Trust", in which name the Trustee may conduct the business of the Trust,
make and execute contracts and other instruments on behalf of the Trust and ▇▇▇
and be sued.
Section 2.02. Office. The primary office of the Trust shall be in care
of the Administrator at the Trust Office. The Trust shall also have an office at
the address of the Trustee set forth in Section 10.04 and at any other location
as the Trustee may designate from time to time by written notice to the
Beneficiary and the Administrator.
Section 2.03. Purposes. The purposes of the Trust are:
(a) to execute, deliver, enter into and perform its
obligations under the Relevant Documents to which it is a party or by
which it is bound;
(b) to acquire, own, hold and, as permitted under the
Relevant Documents, dispose of or pledge beneficial interests in
Nissan-Infiniti LT Trust Assets, including the UTI Certificate and any
SUBI Certificate, and cause any Excess Trust Funds to be distributed to
or upon the order of the Beneficiary;
(c) subject to compliance with the Trust Documents, to
engage in such activities as may be required to be taken by the UTI
Beneficiary pursuant to the Origination Trust Documents, including,
directing the allocation of Nissan-Infiniti LT Trust Assets to the UTI
and one or more SUBIs and authorizing the issuance of the related UTI
and SUBI Certificates, and such other activities that are necessary or
appropriate to accomplish the foregoing or that are incidental thereto
or connected therewith;
(d) to engage in any of the other activities described or
authorized in any Relevant Document or any document relating to a
Nissan-Infiniti LT Securitized Financing;
(e) subject to compliance with the Relevant Documents, to
engage in such other activities as may be required in connection with
the preservation of the Nissan-Infiniti LT Trust Assets and directing
the making of distributions to or upon the order of Related
Beneficiaries or any related Holder; and
(f) to engage in any and all activities that are
necessary or appropriate to accomplish the foregoing or that are
incidental thereto or connected therewith.
The Trust shall not engage in any activities other than in connection
with the foregoing or other than as required or authorized by applicable law or
the Relevant Documents. Nothing contained herein shall be deemed to authorize
the Trustee, on behalf of the Trust, to engage in any business operations or any
activities other than those set forth above. Additionally, the
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Trustee shall have no discretionary duties other than performing those
ministerial acts that are necessary to accomplish the purposes of the Trust as
set forth in this Section.
Section 2.04. Appointment of Trustee. The Beneficiary hereby confirms
its appointment of the Trustee as trustee of the Trust effective as of the
effective date of the Original Trust Agreement, to have all the rights, powers
and duties set forth herein, and the Trustee hereby confirms its acceptance of
such appointment.
Section 2.05. Capital Contribution to Trust Assets. The Trustee hereby
acknowledges receipt in trust from the Beneficiary, as of the date of the
Original Trust Agreement, of $10.00, which shall constitute part of the initial
Trust Assets. The Beneficiary shall pay the organizational expenses of the Trust
as they may arise or shall, upon the request of the Trustee, promptly reimburse
the Trustee for any such expenses paid by the Trustee.
Section 2.06. Declaration of Trust. The Trustee hereby declares that it
will hold the Trust Assets in trust upon and subject to the conditions set forth
herein for the use and benefit of the Beneficiary, subject to the obligations of
the Trust under the Relevant Documents to which it is a party. It is the
intention of the parties hereto that the Trust constitute a business trust under
the Delaware Act and that this Agreement constitute the governing instrument of
such business trust. It is the intention of the parties hereto that to the
extent permitted by applicable law, the Trust shall not constitute a separate
entity for federal income, State income or franchise Tax purposes and that the
Beneficiary shall be treated for such Tax purposes as if it owned the Trust
Assets directly, rather than through the Trust and to treat the Trust and the
Trust Assets accordingly. Effective as of the date hereof, the Trustee shall
have all rights, powers and duties set forth herein and in the Delaware Act for
the sole purpose and to the extent necessary to accomplish the purposes of the
Trust set forth in Section 2.03.
Section 2.07. Maintenance of Separate Existence; Prohibited
Transactions. The Trust shall maintain operations separate and apart from those
of the Beneficiary and its Affiliates. In furtherance of the maintenance of
separate operations, and without limiting the foregoing sentence, the Trust and
the Beneficiary shall act in accordance with the following:
(a) The Trust shall act solely in its own name and shall
not hold itself out as being an agent for the Beneficiary or any
Affiliate thereof and, except as otherwise provided in the Relevant
Documents, shall not represent to any third party that the credit or
resources of the Beneficiary or any Affiliate thereof will be available
to satisfy the liabilities or obligations of the Trust.
(b) The Trust shall observe all customary business trust
formalities, including keeping books and records and financial
statements separate and apart from those of the Beneficiary and any
Affiliate thereof and taking appropriate business trust actions at the
appropriate times.
(c) The Trust shall maintain a separate office location.
(d) The Trust Assets shall be separately identified and
segregated and shall not be commingled with those of the Beneficiary,
except in the limited manner provided in the Trust Documents. All of
the Trust Assets shall at all times be held by or on behalf
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of the Trust, and, if held on behalf of the Trust by another entity,
shall at all times be kept identifiable (in accordance with customary
usage) as assets owned by the Trust. In no event shall any of the Trust
Assets be held on behalf of or otherwise by the Beneficiary or any
Affiliate thereof, except pursuant to the Relevant Documents. The Trust
shall maintain its own bank accounts, payroll (if applicable) and
separate books of account.
(e) The Beneficiary shall have no right to:
(i) revoke or terminate the Trust;
(ii) commence any voluntary Proceeding with
respect to the Trust under any United States federal or State
bankruptcy or similar law without the prior written consent of
the Trustee, each Holder and, if any Rated Securities are
outstanding, each related Rating Agency; or
(iii) direct the Trustee to take any action that
would cause the Trustee to violate Section 4.07.
(f) Any transaction between the Trust, on the one hand,
and the Beneficiary or any Affiliate thereof, on the other hand, shall
be conducted only on terms and conditions comparable to transactions on
an arm's length basis with unaffiliated Persons.
(g) Except as provided in the Relevant Documents, the
Trust shall directly manage its own liabilities from its own funds,
including paying its own operating expenses and reimbursing the
Beneficiary or any Affiliate thereof, as the case may be.
(h) The Trust shall not merge or consolidate with, or
sell all or substantially all of the Trust Assets to any Person, except
in accordance with the Relevant Documents and with the prior written
consent of each Holder and each Rating Agency currently rating a Rated
Security. Without limiting the generality of the foregoing, the Trustee
shall not delegate any decision with regard to any merger,
consolidation, sale of assets, the filing by the Trust of a voluntary
petition for bankruptcy or consenting to the filing of an involuntary
petition for bankruptcy against the Trust.
Section 2.08. Liability of Beneficiary. The Beneficiary shall be
entitled to the same limitation of personal liability with respect to the
obligations of the Trust extended to stockholders of private corporations for
profit organized under the general corporation law of the State of Delaware,
except as otherwise set forth in the Trust Documents.
Section 2.09. Title to Trust Property. Legal title to all Trust Assets
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Assets to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Trustee, a co-trustee and/or a separate trustee, on
behalf of the Trust, as the case may be.
Section 2.10. Situs of Trust. The Trust will be located and
administered in the States of California, Delaware or Illinois. All bank
accounts maintained by the Trustee on behalf of the Trust shall be located in
the States of California, Delaware, or Illinois. The Trust shall not have
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any employees in any State other than Delaware; provided, however, that nothing
herein shall restrict or prohibit the Trustee from having employees within or
without the State of Delaware. Payments will be received by the Trust only in
the States of California, Delaware or Illinois, and payments will be made by the
Trust only from such States.
Section 2.11. Representations and Warranties of the Beneficiary. The
Beneficiary hereby represents and warrants to the Trustee and the other parties
hereto that:
(i) The Beneficiary is duly organized and validly
existing as a corporation organized and existing and in good standing
under the laws of the State of California, with power and authority to
(A) own its properties and to conduct its business as currently owned
or conducted, (B) execute, deliver and perform this Agreement and any
other document relating hereto to which it is a party and (C) perform
its obligations hereunder and any other document relating hereto to
which it is a party.
(ii) The Beneficiary 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 requires such
qualifications, except in jurisdictions in which the failure to so
qualify would not have a material adverse effect on the ability of the
Beneficiary to perform its obligations under this Agreement.
(iii) The Beneficiary has the power and authority to
execute, deliver and perform this Agreement, to carry out its terms and
to sell and assign the property to be sold and assigned to and
deposited with the Trustee on behalf of the Trust as part of the Trust
Assets and has duly authorized such sale and assignment and deposit
with the Trustee on behalf of the Trust by all necessary corporate
action; and the execution, delivery and performance of this Agreement
have been duly authorized by the Beneficiary by all necessary corporate
action.
(iv) The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof do not conflict
with, result in the breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under,
the articles of incorporation or bylaws of the Beneficiary, or any
indenture, agreement or other instrument to which the Beneficiary is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of the properties of the Beneficiary pursuant to
the terms of any such indenture, agreement or other instrument (other
than pursuant to the Trust Documents); nor violate any law or any
order, rule or regulation applicable to the Beneficiary of any court or
of any federal or State regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Beneficiary
or its properties, which violation would have a material adverse effect
on the ability of the Beneficiary to perform its obligations under this
Agreement.
(v) There are no Proceedings pending, or to knowledge of
the Beneficiary threatened, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Beneficiary: (A) asserting the invalidity of this
Agreement or any other Trust Document; (B) seeking to prevent the
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consummation of any of the transactions contemplated by this Agreement
or any other Trust Document; or (C) seeking any determination or ruling
that might materially and adversely affect the performance by the
Beneficiary of its obligations under, or the validity or enforceability
of, this Agreement or any other Trust Document.
Section 2.12. Beneficiary Payment Obligation. The Beneficiary shall be
responsible for the payment of all fees and expenses of the Administrator, the
Trust and the Trustee, including amounts paid in connection with any of their
respective obligations under the Relevant Documents.
Section 2.13. Beneficial Ownership. To the fullest extent permitted by
law, the Beneficiary shall at all times retain sole ownership of the undivided
beneficial interest in the Trust. In no event shall the Beneficiary voluntarily
transfer, assign, hypothecate, sell, pledge or otherwise convey, in whole or in
part, its beneficial interest in the Trust.
Section 2.14. Restrictions on the Beneficiary's Power. The Beneficiary
shall not direct the Trustee to take or to refrain from taking any action if
such action or inaction would be inconsistent with or contrary to any obligation
of the Trust or the Trustee under this Agreement or any other Trust Document or
to the purpose of the Trust as set forth in Section 2.03.
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ARTICLE THREE
PAYMENTS; TRUST ACCOUNTS
Section 3.01. Payments from Trust Assets Only.
(a) Except as otherwise provided in this Agreement and the other
Trust Documents, all payments, if any, to be made by the Trustee other than
amounts owing by the Trustee arising from its willful misfeasance, bad faith or
negligence, shall be made only from any then-available Trust Assets and only to
the extent that the Trustee shall have received income or proceeds therefrom to
make such payments in accordance with the terms hereof or thereof.
(b) Except as otherwise provided in this Agreement and the other
Trust Documents, all amounts payable to the Beneficiary shall be paid or caused
to be paid by the Trustee to or for the account of the Beneficiary in
immediately available funds by wire transfer.
Section 3.02. Establishment of Trust Account. The Administrator shall
establish and cause the Trustee to maintain (i) such trust accounts (each, a
"Trust Account"), as necessary, for the benefit of the Beneficiary in which all
of the cash capital of the Trust and all proceeds from the Trust Assets shall be
deposited and (ii) such other trust accounts as are necessary or incidental to
the Trust Accounts established pursuant to clause (i) above or as are specified
in an amendment or supplement to this Agreement. Each Trust Account shall be a
segregated depository or trust account established and maintained in the name of
the Trust with an Eligible Institution. Except as provided in this Agreement and
the other Trust Documents, the Beneficiary shall have no right to withdraw any
funds from any Trust Account without the express written consent of the Trustee.
The Trustee may authorize the Beneficiary to make deposits into and
disbursements from any Trust Account in accordance with the terms and provisions
of this Agreement and the other Trust Documents. The Trustee shall possess all
right, title and interest in all funds on deposit from time to time in any Trust
Account and in the proceeds thereof. Except as otherwise provided herein, each
Trust Account shall be under the sole dominion and control of the Trustee for
the benefit of the Beneficiary.
Section 3.03. Distribution of Excess Trust Funds.
(a) Upon receipt of an Officer's Certificate of the Beneficiary
specifying the amount of Excess Trust Funds and the amount of such Excess Trust
Funds to be distributed, the Trustee shall distribute such Excess Trust Funds to
or upon the order of the Beneficiary.
(b) In the event that any withholding Tax is imposed on the
Trust's payment (or allocations of income) to or upon the order of the
Beneficiary, such Tax shall reduce the amount otherwise distributable to the
Beneficiary in accordance with this Section. The Trustee is hereby authorized
and directed to retain from amounts otherwise distributable to the Beneficiary
sufficient funds for the payment of any Tax that is legally owed by the Trust
(but such authorization shall not prevent the Trustee from contesting any such
Tax in appropriate Proceedings, and withholding payment of such Tax, if
permitted by law, pending the outcome of such Proceedings). The amount of any
withholding Tax imposed with respect to the Beneficiary shall be treated as cash
distributed to the Beneficiary at the time it is withheld by the Trust and
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remitted to the appropriate taxing authority. If the Trustee receives an opinion
of counsel that withholding Tax is payable with respect to a distribution, the
Trustee may in its sole discretion withhold such amounts in accordance with this
paragraph (b).
Section 3.04. No Segregation of Monies; No Interest. Subject to
Sections 3.02 and 3.03, monies received by the Trustee hereunder need not be
segregated in any manner except to the extent required by law and may be
deposited under such general conditions as may be prescribed by law, and the
Trustee shall not be liable for any interest thereon.
Section 3.05. Accounting and Reports to the Beneficiary, IRS and
Others. The Trustee shall deliver to the Beneficiary such information, reports
or statements as may be required by the Code and applicable Treasury Regulations
and as may be required to enable the Beneficiary to prepare its federal and
State income tax returns. Consistent with the characterization of the Trust as a
disregarded entity for Tax purposes, no federal income tax return shall be filed
on behalf of the Trust unless either (i) the Trust or the Beneficiary shall
receive the advice of its counsel or accountants that the Code requires such a
filing or (ii) the IRS shall determine that the Trust is required to file such a
return. In the event that the Trust is required to file Tax returns, the
Administrator shall prepare or shall cause to be prepared any Tax returns
required to be filed by the Trust and shall remit such returns to the
Beneficiary at least five days before such returns are due to be filed. The
Beneficiary, or any other such party required by law, shall promptly sign such
returns and deliver such returns after signature to the Administrator and such
returns shall be filed by, or at the direction of, the Administrator with the
appropriate Tax authorities. In no event shall the Trustee or the Beneficiary be
liable for any liabilities, costs or expenses of the Trust arising out of the
application of any Tax law for Taxes, except for any such liability, cost or
expense attributable to any act or omission by the Trustee or the Beneficiary,
as the case may be, in breach of its obligations under this Agreement.
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ARTICLE FOUR
AUTHORITY AND DUTIES OF, AND ACTIONS BY, THE TRUSTEE
Section 4.01. General Authority. Subject to Sections 2.03 and 2.07, the
Trustee is authorized and directed to execute and deliver the Relevant Documents
to which the Trust is to be a party and each certificate or other document
attached as an exhibit to or contemplated thereby and any amendment or other
agreement in such form as the Beneficiary shall approve, as evidenced
conclusively by the Trustee's execution thereof. In addition to the foregoing,
the Trustee is authorized, but shall not be obligated, to take all actions
required of the Trust pursuant to the Relevant Documents. The Trustee is further
authorized from time to time to take such action as the Administrator recommends
with respect to the Trust Documents.
Section 4.02. General Duties. Subject to Sections 2.03 and 2.07, the
Trustee shall discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed with the consent of the Beneficiary) all of
its responsibilities pursuant to the terms of this Agreement and the other Trust
Documents to which the Trust is a party and to administer the Trust in the
interest of the Beneficiary, in accordance with the provisions of this Agreement
and the other Relevant Documents. Without limiting the foregoing, the Trustee
shall on behalf of the Trust file and prove any claim or claims that may exist
against the Beneficiary in connection with any claims-paying procedure as part
of an insolvency or receivership Proceeding involving the Beneficiary.
Notwithstanding the foregoing, the Trustee shall be deemed to have discharged
its duties and responsibilities hereunder and under the other Trust Documents to
the extent the Administrator has agreed herein to perform any act or to
discharge any duty of the Trustee hereunder or under any other Trust Document,
and the Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations hereunder.
Section 4.03. Action Upon Instruction.
(a) Subject to the provisions of Article Two and this Article, in
accordance with the Trust Documents, the Beneficiary may, at any time, by
written instruction direct the Trustee in the management of the Trust.
(b) The Trustee shall not be required to take any action hereunder
or under any other Trust Document if the Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely to
result in liability on the part of the Trustee or is contrary to the terms
hereof or of any other Relevant Document or is otherwise contrary to law.
(c) Subject to Section 4.07 and the Relevant Documents, the
Trustee shall not have the power, except upon receipt of written directions of
the Beneficiary, to (i) remove the Administrator pursuant to Section 7.08, (ii)
appoint a successor Administrator pursuant to Section 7.08, (iii) remove the
Servicer pursuant to the Servicing Agreement, (iv) initiate any claim, suit or
Proceeding by the Trust or compromise any claim, suit or Proceeding brought by
or against the Trust, (v) sell the Trust Assets or (vi) except as required by
law, amend the Certificate of Trust.
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(d) Whenever the Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Trust Document, the Trustee shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Beneficiary requesting
instruction as to the course of action to be adopted, and, to the extent the
Trustee acts in good faith in accordance with any written instruction of the
Beneficiary received, the Trustee shall not be liable on account of such action
to any Person. If the Trustee shall not have received appropriate instruction
within ten days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement and the other Trust
Documents, as it shall deem to be in the best interests of the Beneficiary, and
shall have no liability to any Person for such action or inaction.
(e) In the event that the Trustee is unsure as to the application
of any provision of this Agreement or any other Trust Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Trustee or is silent or is incomplete
as to the course of action that the Trustee is required to take with respect to
a particular set of facts, the Trustee may give notice (in such form as shall be
appropriate under the circumstances) to the Beneficiary requesting instruction
and, to the extent that the Trustee acts or refrains from acting in good faith
in accordance with any such instruction received, the Trustee shall not be
liable, on account of such action or inaction, to any Person. If the Trustee
shall not have received appropriate instruction within ten days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Agreement or the other Trust Documents, as it shall deem to be in the best
interests of the Beneficiary, and shall have no liability to any Person for such
action or inaction.
Section 4.04. Action by Trustee with Respect to Bankruptcy. The Trustee
shall not have the power to commence a voluntary Proceeding with respect to the
Trust under any United States federal or State bankruptcy or similar law without
the prior written consent of each Holder and if any Rated Securities are
outstanding, each related Rating Agency.
Section 4.05. No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, dispose of or otherwise
deal with the Trust Assets, or to otherwise take or refrain from taking any
action under, or in connection with, any document contemplated hereby to which
the Trustee is a party, except as expressly provided by this Agreement or in any
document or written instruction received by the Trustee pursuant to Section
4.03; and no implied duties or obligations shall be read into this Agreement or
any other Trust Document against the Trustee. The Trustee shall have no
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or Lien granted to it hereunder or to prepare or file any
Commission filing for the Trust or to record this Agreement or any other Trust
Document. The Trustee nevertheless agrees that it will, at its own cost and
expense, promptly take all action as may be necessary to discharge any Liens on
any part of the Trust Assets that result from actions by, or claims against, the
Trustee that are not related to the ownership or the administration of the Trust
Assets.
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Section 4.06. No Action Except Under Specified Documents or
Instructions. The Trustee shall not manage, control, use, sell, dispose of or
otherwise deal with any part of the Trust Assets except in accordance with (i)
the powers granted to and the authority conferred upon the Trustee pursuant to
this Agreement, (ii) the other Trust Documents and (iii) any document or
instruction delivered to the Trustee pursuant to Section 4.03.
Section 4.07. Restrictions. The Trustee shall not take any action (i)
that is inconsistent with or contrary to any obligation of the Trust or the
Trustee under this Agreement or any other Trust Document or the purposes of the
Trust set forth in Section 2.03 or (ii) that, to the actual knowledge of the
Trustee, would result in the Trust's becoming taxable as a corporation for
federal or State income tax purposes.
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ARTICLE FIVE
CONCERNING THE TRUSTEE
Section 5.01. Acceptance of Trusts and Duties. The Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Trustee also agrees
to disburse all monies actually received by it constituting part of the Trust
Assets upon the terms of this Agreement and the other Trust Documents. The
Trustee shall not be answerable or accountable hereunder or under any other
Trust Document under any circumstances, except (i) for its own willful
misconduct or negligence, (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 5.03 or (iii) as set forth in
the last sentence of Section 4.05. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of
judgment made by a Responsible Officer in good faith;
(b) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of the Administrator or the Beneficiary in accordance with
this Agreement and the other Trust Documents;
(c) no provision of this Agreement or any other Trust
Document shall require the Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights
or powers hereunder or under any other Trust Document if the Trustee
shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Trustee be liable
for indebtedness evidenced by or arising under any of the Relevant
Documents, including any amounts owed to any Holder or any holder of a
Security issued in a Nissan-Infiniti LT Securitized Financing;
(e) the Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by any other party hereto or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust Assets,
or for or in respect of the validity or sufficiency of the Trust
Documents, and the Trustee shall in no event assume or incur any
liability, duty or obligation to any Holder, any holder of a Security
issued in a Nissan-Infiniti LT Securitized Financing or the
Beneficiary, other than as expressly provided for herein or expressly
agreed to in the other Relevant Documents;
(f) the Trustee shall not be liable for the default or
misconduct of the Beneficiary, the Administrator, the Servicer, the
Origination Trustee, any Indenture Trustee or any Owner Trustee under
any Relevant Document or otherwise and the Trustee shall have no
obligation to perform the obligations of the Trust under this Agreement
or any Relevant Document, the Administrator hereunder or the
Origination Trustee, the
12
Servicer, any Indenture Trustee or any Owner Trustee under any Relevant
Document; and
(g) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Trust Document,
at the request, order or direction of the Beneficiary, unless the
Beneficiary has offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities that may
be incurred by the Trustee therein or thereby; the right of the Trustee
to perform any discretionary act enumerated in this Agreement or in any
other Trust Document shall not be construed as a duty, and the Trustee
shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
Section 5.02. Furnishing of Documents. The Trustee shall furnish to the
Beneficiary promptly upon receipt of a written request therefor, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Trustee under the Relevant
Documents.
Section 5.03. Representations and Warranties. The Trustee hereby
represents and warrants to the Beneficiary and the other parties hereto that:
(a) it is a national banking association duly organized
and validly existing in good standing under the laws of the United
States and has all requisite corporate power and authority to execute,
deliver and perform its obligations under this Agreement;
(b) it has taken all corporate action necessary to
authorize the execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement on its behalf;
and
(c) neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal law, governmental rule or regulation
governing the banking or trust powers of the Trustee or any judgment or
order binding on it, or constitute any default under its charter
documents or bylaws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may
be bound or result in the creation or imposition of any Lien, charge or
encumbrance on the Trust Assets resulting from actions by or claims
against the Trustee individually which are unrelated to this Agreement
or the other Trust Documents.
Section 5.04. Reliance; Advice of Counsel.
(a) The Trustee shall incur no liability to anyone in acting upon
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has
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been duly adopted by such body and that the same is in full force and effect. As
to any fact or matter the method of determination of which is not specifically
prescribed herein, the Trustee may for all purposes hereof rely on an Officer's
Certificate of the relevant party, as to such fact or matter and such Officer's
Certificate shall constitute full protection to the Trustee for any action taken
or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and
in the performance of its duties and obligations under this Agreement and the
other Trust Documents, the Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Trustee
shall not be liable for the conduct or misconduct of such agents or attorneys if
such agents or attorneys shall have been selected by the Trustee with reasonable
care, and (ii) may consult with counsel, accountants and other skilled Persons
to be selected with reasonable care and employed by it. The Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such Persons and not contrary to this Agreement or any other Trust Document.
Section 5.05. Not Acting in Individual Capacity. Except as otherwise
provided in this Article, in accepting the trusts hereby created, U.S. Bank
Trust National Association acts solely as Trustee hereunder and not in its
individual capacity, and all Persons having any claim against the Trustee by
reason of the transactions contemplated by this Agreement or any other Trust
Document shall look only to the Trust Assets for payment or satisfaction
thereof.
Section 5.06. Trustee Not Liable for Securities or Leases. The recitals
contained herein shall be taken as the statements of the Beneficiary, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee makes
no representations as to the validity or sufficiency of this Agreement (except
the representations and warranties in Section 5.03), any other Trust Document,
any Certificate issued pursuant to the Origination Trust Agreement, any Security
issued in connection with a Nissan-Infiniti LT Securitized Financing, any
Origination Trust Document or of any Lease or related documents. The Trustee
shall at no time have any responsibility or liability for or with respect to the
(i) legality, validity and enforceability of any Lease, or the perfection and
priority of any security interest created by any Lease in any Leased Vehicle or
the maintenance of any such perfection and priority, (ii) for or with respect to
the sufficiency of the Trust Assets or their ability to generate the payments to
be distributed to the Beneficiary under this Agreement, (iii) the compliance by
the Beneficiary with any warranty or representation made under any Relevant
Document or in any related document or the accuracy of any such warranty or
representation or (iv) any action of the Administrator taken in the name of the
Trustee.
Section 5.07. Trustee May Own Securities. The Trustee in its individual
or any other capacity may become the owner or pledgee of any Certificate issued
pursuant to the Origination Trust Agreement, any Security issued in connection
with a Nissan-Infiniti LT Securitized Financing and may deal with the
Beneficiary, the Administrator, Nissan-Infiniti LT, any Owner Trustee or
Indenture Trustee and the Servicer in banking transactions with the same rights
as it would have if it were not Trustee.
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ARTICLE SIX
COMPENSATION OF TRUSTEE
Section 6.01. Trustee's Fees and Expenses. The Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Beneficiary and the Trustee, and the
Trustee shall be entitled to be reimbursed by the Beneficiary for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Trustee may employ in connection with the exercise and performance of its rights
and its duties hereunder.
Section 6.02. Indemnification. To the extent funds in cash or cash
equivalents are unavailable from Trust Assets, the Beneficiary shall be liable
as primary obligor for, and shall indemnify the Trustee and its successors,
assigns, agents and servants (collectively, the "Indemnified Parties") from and
against, any and all liabilities, obligations, losses, damages, Taxes, claims,
actions and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by or
asserted against the Trustee or any Indemnified Party in any way relating to or
arising out of this Agreement, the other Trust Documents, the Trust Assets, the
administration of the Trust Assets or the action or inaction of the Trustee
hereunder, except only that the Beneficiary shall not be liable for or required
to indemnify an Indemnified Party from and against Expenses arising or resulting
from any of the matters described in the third sentence of Section 5.01. The
indemnities contained in this Section shall survive the resignation or
termination of the Trustee or the termination of this Agreement. In the event of
any claim or Proceeding for which indemnity will be sought pursuant to this
Section, the Trustee's choice of legal counsel shall be subject to the approval
of the Beneficiary, which approval shall not be unreasonably withheld.
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ARTICLE SEVEN
THE ADMINISTRATOR
Section 7.01. Appointment of Administrator. The Trustee and the
Beneficiary hereby appoint NMAC, and NMAC hereby accepts such appointment, as
Administrator of certain duties of the Trust and the Trustee as set forth
herein.
Section 7.02. Duties of the Administrator.
(a) The Administrator 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 Trustee, all such documents,
reports, filings, instruments, certificates and opinions that it shall be the
duty of the Trust or the Trustee to prepare, file or deliver pursuant to the
Trust Documents or Section 3.05, and at the request of the Trustee shall take
all appropriate action that it is the duty of the Trust or the Trustee to take
pursuant to the Trust Documents. In furtherance thereof, the Trustee shall, on
behalf of itself and of the Trust, execute and deliver to the Administrator and
to each successor Administrator appointed pursuant to the terms hereof, one or
more powers of attorney substantially in the form of Exhibit C hereto,
appointing the Administrator the attorney-in-fact of the Trustee and the Trust
for the purpose of executing on behalf of the Trustee and the Trust all such
documents, reports, filings, instruments, certificates and opinions. Subject to
Article Three, and in accordance with the directions of the Trustee, the
Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Trust Assets (including the Relevant
Documents) as are not covered by any of the foregoing provisions and as are
expressly requested by the Trustee and are reasonably within the capability of
the Administrator.
(b) Notwithstanding anything in this Agreement or the Trust
Documents to the contrary, the Administrator shall be responsible for promptly
notifying the Trustee in the event that any withholding Tax is imposed on the
Trust's payments (or allocations of income) to the Beneficiary as contemplated
in Section 3.03(b). Any such notice shall specify the amount of any withholding
Tax required to be withheld by the Trustee pursuant to such provision.
(c) Notwithstanding anything in this Agreement to the contrary,
the Administrator shall be responsible for performance of the duties of the
Trustee set forth in Section 3.05 (other than the execution of any documents
executed in connection therewith).
(d) The Administrator shall perform the duties of the
Administrator specified in Section 9.02 required to be performed in connection
with the resignation or removal of the Trustee, and any other duties expressly
required to be performed by the Administrator pursuant to this Agreement.
(e) The Administrator 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 at any time during
normal business hours.
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(f) The Administrator shall furnish to the Trust from time to time
such additional information regarding the Trust Assets as the Trust shall
reasonably request.
(g) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator 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 Administrator's opinion, no less
favorable to the Trust than would be available from unaffiliated parties.
Section 7.03. Non-Ministerial Matters.
(a) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any action
unless within a reasonable time before the taking of such action, the
Administrator shall have notified the Trustee of the proposed action and the
Trustee shall not have withheld consent or provided an alternative direction.
For the purpose of the preceding sentence, "non-ministerial matters" shall
include (i) the initiation of any action, claim or Proceeding by the Trust and
the compromise of any action, claim or Proceeding brought by or against the
Trust; (ii) the amendment, change or modification of the Trust Documents; and
(iii) appointment of a successor Administrator.
(b) Notwithstanding anything to the contrary in this Agreement,
the Administrator shall not be obligated to, and shall not, (i) take any action
that the Trust directs the Administrator not to take or (ii) direct the Trustee
to take any action that would cause the Trustee to violate Section 4.07.
Section 7.04. Indemnification of Trustee. The Administrator will
indemnify the Trustee and its agents for, and hold them harmless against, any
loss, liability or expense incurred without negligence, bad faith or willful
misconduct on their part, arising out of or in connection with the acceptance or
administration of the transactions contemplated by this Agreement, including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their powers
or duties under this Agreement.
Section 7.05. Administrator's Fees and Expenses. The Administrator
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Beneficiary and the
Administrator, and the Administrator shall be entitled to be reimbursed by the
Beneficiary for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Administrator may employ in
connection with the exercise and performance of its rights and its duties
hereunder.
Section 7.06. Independence of Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Trust or the Trustee with respect to the
manner in which it accomplishes the performance of its obligations hereunder.
Unless expressly authorized by the Trust, the Administrator shall have no
authority to act for or represent the Trust or the Trustee in any way and shall
not otherwise be deemed an agent of the Trust or the Trustee.
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Section 7.07. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person or entity even though such Person or entity
may engage in business activities similar to those of the Trust, the Trustee or
Nissan-Infiniti LT.
Section 7.08. Resignation and Removal of Administrator.
(a) The obligations of the Administrator pursuant to this Article
shall continue until the dissolution of the Trust, upon which event such
obligations will terminate.
(b) Subject to Section 7.08(d), (i) the Administrator may resign
its duties hereunder by providing the Trust with at least 60 days' prior written
notice and (ii) the Trust may remove the Administrator without cause at any
time.
(c) Subject to Section 7.08(d), at the sole option of the Trust,
the Administrator may be removed immediately upon written notice of termination
from the Trust to the Administrator if any of the following events shall occur:
(i) the Administrator 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) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall not
have been vacated within 60 days, in respect of the Administrator in
any involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts as they become due.
The Administrator 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, if any Rated Securities are outstanding, each related Rating Agency,
within seven days after the happening of such event.
(d) No resignation or removal of the Administrator pursuant to
this Section shall be effective until (i) a successor Administrator shall have
been appointed by the Trust and (ii) such successor Administrator shall have
agreed in writing to be bound by the terms of this Agreement in the same manner
as the Administrator is bound hereunder.
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(e) The appointment of any successor Administrator shall be
effective only after satisfaction of the Rating Agency Condition with respect to
the proposed appointment.
(f) Subject to Sections 7.08(d) and 7.08(e), the Administrator
acknowledges that upon the appointment of a successor Servicer pursuant to the
Servicing Agreement, the Administrator shall immediately resign and such
successor Servicer shall automatically become the Administrator under this
Agreement; provided however that this provision shall not apply at such times as
the Origination Trustee shall be the successor Servicer.
Section 7.09. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either the Trust or the 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 7.10. Action Upon Termination, Resignation or Removal. Promptly
upon the effective date of termination of this Agreement pursuant to Section
8.01(b) or the resignation or removal of the Administrator pursuant to Section
7.08(b) or (c), respectively, the Administrator shall be entitled to be paid all
fees and reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon the termination
pursuant to Section 8.01(b) deliver to the Trust all property and documents of
or relating to the Trust Assets then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
7.08(b) or (c), the Administrator 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 Administrator.
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ARTICLE EIGHT
TERMINATION AND DISSOLUTION
Section 8.01. Termination of Trust Agreement.
(a) The Trust shall continue in full force and effect until the
termination of Nissan-Infiniti LT in accordance with the Relevant Documents,
including the payment to each Holder, or its designee, of all amounts required
to be paid to it pursuant to the Origination Trust Agreement and the related
Certificates and the expiration or termination of all Nissan-Infiniti LT
Securitized Financings by their respective terms.
(b) Upon occurrence of the events described in Section 8.01(a) the
Trust shall dissolve and, after satisfaction of all obligations to creditors, if
any, of the Trust, the Trustee shall (i) distribute the Trust Assets to the
Beneficiary or its designee and (ii) file or cause to be filed a certificate of
cancellation with the Delaware Secretary of State pursuant to Section 3810(d) of
the Delaware Act. Upon the filing described in clause (ii), this Agreement shall
terminate, the Trust shall terminate and the Trustee shall be discharged from
all duties and obligations hereunder.
(c) The Beneficiary shall not be entitled to revoke or terminate
the Trust.
Section 8.02. Bankruptcy of Beneficiary. The bankruptcy, liquidation or
dissolution of the Beneficiary shall not (i) operate to terminate or revoke this
Agreement or the Trust, (ii) entitle such Beneficiary's legal representatives or
heirs to claim an accounting or to take any Proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Assets or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto.
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ARTICLE NINE
SUCCESSOR AND ADDITIONAL TRUSTEES
Section 9.01. Eligibility Requirements for Trustee.
(a) Except as otherwise provided in this Agreement, the Trustee
shall at all times: (i) be a corporation organized under the laws of the United
States or any State (which corporation shall not be the Beneficiary or any
Affiliate thereof); (ii) be authorized to exercise corporate trust powers; (iii)
have a combined capital and surplus of at least $50,000,000 and be subject to
supervision or examination by federal or State authorities; and (iv) have (or
have a parent that has) a rating of at least Baa3 by Moody's (if ▇▇▇▇▇'▇ is a
Rating Agency) and A-1 by Standard & Poor's (if Standard & Poor's is a Rating
Agency). If such corporation shall publish reports of condition at least
annually pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 9.02.
(b) In the event the Trustee complies with Section 9.01(a) but has
its principal place of business outside of the State of Delaware, then there
shall at all times be a co-trustee appointed to act as the Delaware Trustee
pursuant to Section 3807 of the Delaware Act. The Delaware Trustee shall serve
as such for the sole purpose of satisfying the requirement of Section 3807 of
the Delaware Act that the Trust have at least one trustee with a principal place
of business in Delaware. It is understood and agreed by the parties hereto that
the Delaware Trustee shall have none of the duties or liabilities of the
Trustee. The duties of the Delaware Trustee shall be limited to (i) accepting
legal process served on the Trust in the State of Delaware and (ii) the
execution of any certificates required to be filed with the Delaware Secretary
of State which the Delaware Trustee is required to execute under Section 3811 of
the Delaware Act. To the extent that, at law or in equity, the Delaware Trustee
has duties (including fiduciary duties) or liabilities relating thereto to the
Trust, it is hereby understood and agreed by the parties hereto that such duties
and liabilities are replaced by the duties and liabilities of the Delaware
Trustee expressly set forth in this Agreement.
Section 9.02. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Administrator and the Beneficiary. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor Trustee. If
no successor Trustee shall have been so appointed and have accepted appointment
within 30 days after the giving of such notice of resignation, the resigning
Trustee or the Beneficiary may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If at any time the Trustee shall cease to be eligible in accordance
with the provisions of Section 9.01 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Trustee shall be
legally unable to act, or shall be adjudged bankrupt or insolvent, or
21
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, then the
Administrator may remove the Trustee. If the Administrator shall remove the
Trustee under the authority of the immediately preceding sentence, the
Administrator shall promptly appoint a successor Trustee by written instrument,
in duplicate, one copy of which instrument shall be delivered to the outgoing
Trustee so removed and one copy to the successor Trustee, and shall pay all fees
owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to any of the provisions of this Section shall not
become effective until acceptance of appointment by the successor Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Trustee. The Administrator shall provide notice of such resignation or
removal of the Trustee to each Rating Agency.
Section 9.03. Successor Trustee. Any successor Trustee appointed
pursuant to Section 9.02 shall execute, acknowledge and deliver to the
Administrator and to its predecessor Trustee an instrument accepting such
appointment under this Agreement, and thereupon the resignation or removal of
the predecessor Trustee shall become effective, and such successor Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Trustee. The predecessor
Trustee shall, upon payment of its fees and expenses, deliver to the successor
Trustee all documents and statements and monies held by it under this Agreement;
and the Administrator and the predecessor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully and
certainly vesting and confirming in the successor Trustee all such rights,
powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible pursuant to Section 9.01.
If any Rated Securities are outstanding at the time a successor Trustee
accepts its appointment as such pursuant to this Section, the Administrator
shall mail notice thereof to each related Rating Agency. If the Administrator
shall fail to mail such notice within ten days after acceptance of such
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Administrator.
The successor Trustee shall file an amendment to the Certificate of
Trust with the Delaware Secretary of State identifying the name and principal
place of business in the State of Delaware, if applicable, of such successor
Trustee.
Section 9.04. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, without the execution
or filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding; provided, that such
corporation shall be eligible pursuant to
22
Section 9.01 and, provided, further, that the Trustee shall mail notice of such
merger or consolidation to each Rating Agency.
Section 9.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Assets may at the time be located, the Administrator and the
Trustee acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Administrator and
Trustee to act as co-trustee, jointly with the Trustee, or as separate trustee
or separate trustees, of all or any part of the Trust Assets, and to vest in
such Person, in such capacity, such title to the Trust or any part thereof and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Trustee may consider
necessary or desirable. If the Administrator shall not have joined in such
appointment within 15 days after the receipt by it of a request so to do, the
Trustee alone shall have the power to make such appointment. With the exception
of the Delaware Trustee, no co-trustee or separate trustee under this Agreement
shall be required to meet the terms of eligibility as a successor Trustee
pursuant to Section 9.01, except that each such co-trustee or separate trustee
shall have (or have a parent that has) a rating of at least Baa3 by Moody's (if
▇▇▇▇▇'▇ is a Rating Agency) and A-1 by Standard & Poor's (if Standard & Poor's
is a Rating Agency), and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 9.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred upon and exercised or
performed by the Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Trustee joining in such
act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed, the Trustee shall
be incompetent or unqualified to perform such act or acts, in which
event such rights, powers, duties and obligations (including the
holding of title to the Trust Assets or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate
trustee or co-trustee, but solely at the direction of the Trustee;
(b) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(c) the Administrator and the Trustee acting jointly may
at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided
23
therein, subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of or affording protection to, the Trustee. Each such instrument shall
be filed with the Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee
as its agent or attorney-in-fact with full power and authority, to the extent
not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor co-trustee or separate trustee.
24
ARTICLE TEN
MISCELLANEOUS
Section 10.01. Amendments.
(a) This Agreement may be amended by the parties hereto to cure
any ambiguity, to correct or supplement any provisions in this Agreement or to
add any other provisions with respect to matters or questions arising under this
Agreement that shall not be inconsistent with the provisions of this Agreement;
provided, however, that (i) the parties hereto may not modify the purposes and
restrictions of the Trust set forth in Sections 2.03 and 2.07 or amend the
termination provisions set forth in Article Eight and (ii) any such action shall
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any Holder.
(b) This Agreement may also be amended from time to time by the
parties hereto with the prior written consent of each Holder (which consent
shall be conclusive and binding on such Holder and all future Holders of any
Certificate) and subject to satisfaction of the Rating Agency Condition, for the
purpose of adding any provisions to or changing in any manner or eliminating any
provisions of this Agreement.
(c) Prior to the execution of any such amendment or consent, the
Trustee shall furnish written notification of the substance of such amendment or
consent, together with a copy thereof, to the Administrator, each Holder and, if
any Rated Securities are outstanding, each related Rating Agency.
(d) Promptly after the execution of any such amendment or consent,
the Trustee shall furnish written notification of the substance of such
amendment or consent to the Administrator, each Holder and, if any Rated
Securities are outstanding, each related Rating Agency. It shall not be
necessary for the consent of the Holders or any Rating Agency pursuant to this
Section to approve the particular form of any proposed amendment or consent, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents (and any other consents of Holders provided
for in this Agreement) and of evidencing the authorization of the execution
thereof by Holders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Trustee shall cause the filing of such amendment with
the Delaware Secretary of State.
(f) In connection with the execution of any amendment to this
Agreement or any other Trust Document to which the Trust is a party and for
which amendment the Trustee's consent is sought, the Trustee shall be entitled
to receive and conclusively rely upon an Opinion of Counsel to the effect that
such amendment is authorized or permitted by the Trust Documents and that all
conditions precedent in the Trust Documents for the execution and delivery
thereof by the Trust or the Trustee, as the case may be, have been satisfied.
The Trustee may, but shall not be obligated to, enter into any such amendment
that affects the Trustee's own rights, duties or immunities under this Agreement
or otherwise.
25
Section 10.02. No Legal Title to Trust Assets in Beneficiary. The
Beneficiary shall not have legal title to any part of the Trust Assets. The
Beneficiary shall be entitled to receive distributions with respect to its
undivided ownership interest therein only in accordance with Articles Three and
Eight. No transfer, by operation of law or otherwise, of any right, title or
interest of the Beneficiary to and in its ownership interest in the Trust Assets
shall operate to terminate this Agreement or the trusts hereunder or entitle any
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Assets.
Section 10.03. Limitations on Rights of Others. Except for Section
2.09, the provisions of this Agreement are solely for the benefit of the Trustee
and the Beneficiary and to the extent expressly provided herein, the
Administrator and the Delaware Trustee, and nothing in this Agreement (other
than Section 2.09), whether express or implied, shall be construed to give to
any other Person any legal or equitable right, remedy or claim in the Trust
Assets or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section 10.04. Notices. All demands, notices and communications under
this Agreement shall be in writing personally delivered or mailed by certified
mail, return receipt requested, and shall be deemed to have been duly given upon
receipt in the case of (a) the Trustee, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (b) the Beneficiary, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; (c) the Administrator, at ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Treasurer; (d) the
Delaware Trustee, at Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; (e) Standard & Poor's if Standard &
Poor's is a Rating Agency, at ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Asset Backed Surveillance Group; (f) Moody's if ▇▇▇▇▇'▇ is a Rating Agency, at
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS Monitoring
Department; (g) a Holder, at the address set forth in the Certificate Register
as provided in Section 3.05 of the Origination Trust Agreement; or (h) as to
each party, at such other address as shall be designated by such party in a
written notice to each other party. Delivery shall occur only upon actual
receipt 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.
Section 10.05. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement 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 and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 10.06. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 10.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
parties hereto and their respective successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by the Beneficiary shall bind the successors and assigns of
the Beneficiary. Notwithstanding the foregoing, the Trustee may not assign or
delegate any of
26
its rights or obligations under this Agreement, except as provided herein
without the consent of the Beneficiary.
Section 10.08. No Petition.
(a) Each of the Beneficiary and the Administrator will not at any
time institute against the Trust any bankruptcy Proceedings under any United
States federal or State bankruptcy or similar law in connection with any
obligations relating to this Agreement or any Trust Document.
(b) Each of the Trustee and Delaware Trustee, by entering into
this Agreement, hereby covenants and agrees that they will not at any time
institute against the Beneficiary, the Administrator or the Trust, or join in
any institution against the Beneficiary, the Administrator or the Trust of, any
bankruptcy Proceedings under any United States federal or State bankruptcy or
similar law in connection with any obligations relating to this Agreement or any
Trust Document; provided, however, that upon receipt of the written consent of
each Holder and, if any Rated Securities are outstanding, each related Rating
Agency, each of the Trustee and the Delaware Trust may file such a Proceeding
against the Trust.
Section 10.09. No Recourse. The Beneficiary by entering into this
Agreement acknowledges that it holds a beneficial interest in the Trust only and
not interests in or obligations of the Beneficiary, the Administrator, the
Trustee, the Delaware Trustee or any of their respective Affiliates and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement or the other Trust
Documents.
Section 10.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 10.11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 10.12. Integration. This Agreement represents the agreement of
the Beneficiary and the other parties hereto with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Beneficiary or the parties hereto relating to the subject matter hereof
not expressly set forth or referred to herein.
27
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
NISSAN MOTOR ACCEPTANCE
CORPORATION,
as Grantor and Beneficiary
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Finance and
Corporate Planning
NISSAN MOTOR ACCEPTANCE
CORPORATION,
as Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President, Finance and
Corporate Planning
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Child
---------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Child
Title: Vice President
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Financial Services Officer
28
EXHIBIT A
DEFINITIONS
"Administrator" means NMAC in its capacity as administrator of the
Trust pursuant to the Agreement.
"Agreement" means the Amended and Restated Trust Agreement, as the same
may be amended, restated or supplemented from time to time.
"Beneficiary" means NMAC, the holder of the undivided beneficial
interest in the Trust.
"Capital Contribution" means any capital contribution to the Trust made
by the Beneficiary or any of its Affiliates.
"Certificate of Trust" means the certificate of trust for the Trust,
substantially in the form of Exhibit B to the Agreement, filed for the Trust
with the office of the Delaware Secretary of State pursuant to Section 3810 of
the Delaware Act, as supplemented, amended or restated from time to time.
"Commission" means the Securities and Exchange Commission, and its
successors.
"Co-Trustee Agreement" means any instrument or agreement pursuant to
which the Trustee and the Beneficiary appoint a co-trustee pursuant to Section
9.05 of the Agreement.
"Delaware Act" means the Delaware Business Trust Act, specifically, the
provisions of 12 Del. C. Section 3801 et seq., as amended.
"Delaware Co-Trustee Agreement" means the Co-Trustee Agreement, dated
as of July 7, 1998, among the Grantor and Beneficiary, the Trustee and the
Delaware Trustee, as amended, restated or supplemented from time to time.
"Delaware Secretary of State" means the Secretary of State of the State
of Delaware.
"Delaware Trustee" means the trustee meeting the requirements of
Section 3807 of the Delaware Act and designated in the Certificate of Trust, and
its successors, in such capacity as set forth in the Certificate of Trust and
the Delaware Co-Trustee Agreement, and shall initially be Wilmington Trust
Company.
"Eligible Institution" means a depository institution or trust company
that (i) is organized under the laws of the United States or any State and (ii)
has the Required Deposit Rating.
"Excess Trust Funds" means, for purposes of the calculation set forth
in Section 3.04(c) of the Origination Trust Agreement at a time when the Trust
is the UTI Beneficiary, the amount on deposit in the Trust Accounts or otherwise
owned by the Trust which, combined with all other Trust Assets other than the
UTI Certificate (and any related SUBI Certificate, to the extent required by a
related Supplement), exceeds the lesser of (i) 5% of the net Capital
Contributions
A-1
then made by the Trust, as UTI Beneficiary, to the UTI, and any SUBI to the
extent required by a related Supplement, and (ii) $100,000,000.
"Expenses" has the meaning set forth in Section 6.02 of the Agreement.
"Grantor" means NMAC, in its capacity as a grantor of the Trust.
"Indemnified Parties" has the meaning set forth in Section 6.02 of the
Agreement.
"Indenture Trustee" means the indenture trustee of any indenture
entered into by a Special Purpose Affiliate and a Nissan-Infiniti LT Securitized
Financing Trust in connection with a Nissan-Infiniti LT Securitized Financing.
"IRS" means the Internal Revenue Service, and its successors.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors.
"Nissan-Infiniti LT" means Nissan-Infiniti LT, the Delaware business
trust, formed and continued by the Origination Trust Agreement.
"Nissan-Infiniti LT Beneficiary" means Nissan-Infiniti LT, the
Beneficiary or any of their respective Affiliates.
"Nissan-Infiniti LT Securitized Financing" means any (i) financing
transaction undertaken by or on behalf of a Nissan-Infiniti LT Beneficiary or a
Special Purpose Affiliate that is secured, directly or indirectly, by
Nissan-Infiniti Trust Assets or the UTI, a SUBI or any interest therein and any
financing undertaken in connection with the issuance, pledge or assignment of
the UTI or a SUBI and the related UTI Certificate or SUBI Certificate, as the
case may be, (ii) sale, lease or other transfer by a Nissan-Infiniti LT
Beneficiary or a Special Purpose Affiliate of an interest in the UTI or a SUBI
or (iii) other asset securitization, secured loan or similar transaction
involving Nissan-Infiniti Trust Assets or any beneficial interest therein or in
Nissan-Infiniti LT.
"Nissan-Infiniti LT Securitized Financing Trust" means any trust formed
pursuant to a trust agreement entered into by a Special Purpose Affiliate in
connection with a Nissan-Infiniti LT Securitized Financing.
"Nissan-Infiniti LT Trust Assets" means beneficial interests in "Trust
Assets," as such term is defined in the Origination Trust Agreement.
"NMAC" means Nissan Motor Acceptance Corporation, a California
corporation, and its permitted successors and assigns.
"Opinion of Counsel" means a written opinion of counsel who may be
counsel for the Beneficiary or any of its Affiliates (including, in each such
case, in-house counsel), which counsel, in the case of opinions delivered to the
Trustee, shall be reasonably satisfactory to the Trustee.
A-2
"Original Trust Agreement" has the meaning set forth in the Recitals.
"Origination Trust Agreement" means that certain trust agreement, dated
as of July 7, 1998, among the Trust, NILT, Inc. and Wilmington Trust Company, as
amended and restated by the amended and restated trust agreement, dated as of
August 26, 1998, among the Trust, NMAC, NILT, Inc., Wilmington Trust Company and
U.S. Bank National Association, as such agreement may be amended, restated and
supplemented from time to time.
"Origination Trust Documents" means the Origination Trust Agreement and
all agreements executed in connection therewith and with any Nissan-Infiniti LT
Securitized Financing.
"Origination Trustee" means NILT, Inc., a Delaware corporation, and its
permitted successor and assigns, in its capacity as trustee of Nissan-Infiniti
LT.
"Owner Trustee" means the trustee of any Nissan-Infiniti LT Securitized
Financing Trust.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given ten Business Days (or such shorter period as
is acceptable to each Rating Agency) prior notice thereof and that each Rating
Agency shall have notified the Beneficiary in writing that such action will not
result in a Ratings Effect.
"Relevant Documents" means the Trust Documents and the Origination
Trust Documents.
"Responsible Officer" means, when used with respect to the Trustee, the
corporate trust office of the Trustee, including any president, vice president,
assistant vice president, trust officer, secretary, assistant secretary or any
other officer thereof customarily performing functions similar to those
performed by the individuals who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of or familiarity with the particular subject.
"Special Purpose Affiliate" means a special purpose entity that is an
Affiliate of a Nissan-Infiniti LT Beneficiary and was created for the purpose of
one or more Nissan-Infiniti LT Securitized Financings.
"Standard & Poor's" means Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code; references herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"Trust" means NILT Trust, the Delaware business trust established by
the Agreement.
"Trust Account" means any Trust Account established pursuant to Section
3.02 of the Agreement.
A-3
"Trust Assets" means: (i) cash; (ii) the UTI Certificate; (iii) all
such other assets as may be acquired by the Trust from time to time; and (iv)
all proceeds of the items described in clauses (i) through (iii).
"Trust Documents" means the Agreement, any Co-Trustee Agreement and the
Certificate of Trust.
"Trustee" means U.S. Bank Trust National Association, a national
banking association, not in its individual capacity but solely as trustee under
the Agreement, and any successor Trustee hereunder.
"Trust Office" means the principal office of the Trust, which initially
shall be ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"UTI Beneficiary" means the Trust in its capacity as Holder of the UTI
Certificate pursuant to the Origination Trust Agreement.
"UTI Certificate" means the Certificate evidencing the 100% beneficial
ownership interest in the undivided trust interest of Nissan-Infiniti LT.
A-4
EXHIBIT B
CERTIFICATE OF TRUST OF NILT TRUST
This Certificate of Trust of NILT Trust (the "Trust"), is being duly
executed and filed by Wilmington Trust Company, a Delaware banking corporation,
as Delaware trustee, and U.S. Bank Trust National Association, a national
banking association, as managing trustee, to form a business trust under the
Delaware Business Trust Act (12 Del. Code, Section 3801 et seq.) (the "Act").
1. Name. The name of the business trust formed hereby is NILT
Trust.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Company, ▇▇▇▇▇▇ Square
North, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be effective
upon its filing with the Delaware Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned have executed this Certificate of
Trust in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST COMPANY, as Trustee
By: ________________________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: ________________________________________
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ OF __________ ]
]
COUNTY OF _________ ]
KNOW ALL MEN BY THESE PRESENTS, that U.S. Bank Trust National
Association, a national banking association, not in its individual capacity but
solely as trustee (the "Trustee") for NILT Trust (the "Trust"), does hereby
make, constitute and appoint Nissan Motor Acceptance Corporation, a California
corporation ("NMAC"), as administrator under the trust agreement, dated as of
July 7, 1998, as amended and restated as of _______, 1999 (the "Trust
Agreement"), among NMAC, U.S. Bank Trust National Association and Wilmington
Trust Company as the same may be amended from time to time, and its agents and
attorneys, as Attorneys-in-Fact to execute on behalf of the Trustee or the Trust
any and all such documents, reports, filings, instruments, certificates and
opinions as it should be the duty of the Trustee or the Trust to prepare, file
or deliver pursuant to the Trust Documents, or pursuant to Section 4.01 of the
Trust Agreement, including, without limitation, to appear for and represent the
Trustee and the Trust in connection with the preparation, filing and audit of
federal, State and local tax returns pertaining to the Trust, if any, and with
full power to perform any and all acts associated with such returns and audits,
if any, that the Trustee could perform, including without limitation, the right
to distribute and receive confidential information, defend and assert positions
in response to audits, initiate and defend litigation, and to execute waivers of
restrictions on assessments of deficiencies, consents to the extension of any
statutory or regulatory time limit, and settlements.
All powers of attorney for this purpose heretofore filed or executed by
the Trustee are hereby revoked.
Capitalized terms that are used and not otherwise defined herein shall
have the meanings ascribed thereto in the Trust Agreement.
EXECUTED this ___ day of _____________, 1999.
U.S. BANK TRUST NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Trustee
________________________________________
Name:
Title:
C-1