Exhibit 10.10
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NISSAN MOTOR ACCEPTANCE CORPORATION,
NISSAN-INFINITI LT,
NILT TRUST,
NISSAN AUTO LEASING LLC II,
NISSAN AUTO LEASE TRUST 2005-A,
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
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BACK-UP SECURITY AGREEMENT
Dated as of___________, 2005
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS................................................................................2
1.01 Definitions....................................................................................2
1.02 Interpretive Provisions........................................................................2
ARTICLE II. SECURITY INTEREST..........................................................................3
2.01 Grant of Security Interest.....................................................................3
2.02 Certificate of Title...........................................................................3
2.03 Filing of Financing Statements.................................................................3
2.04 Use of Collateral..............................................................................3
2.05 Further Description of the Collateral..........................................................4
2.06 Back-Up Rights of Indenture Trustee............................................................4
ARTICLE III. MISCELLANEOUS..............................................................................4
3.01 Amendments.....................................................................................4
3.02 Governing Law..................................................................................5
3.03 Severability of Provisions.....................................................................5
3.04 Counterparts...................................................................................5
3.05 Successors and Assigns.........................................................................5
3.06 Further Assurances.............................................................................5
3.07 Limitation of Liability of Owner Trustee.......................................................6
3.08 Notices........................................................................................6
3.09 No Petition....................................................................................6
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BACK-UP SECURITY AGREEMENT
This Back-Up Security Agreement, dated as of __________, 2005 (as
amended, supplemented or otherwise modified from time to time, this
"Agreement"), is among Nissan Motor Acceptance Corporation, a California
corporation ("NMAC"), Nissan-Infiniti LT, a Delaware statutory trust (the
"Titling Trust"), NILT Trust, a Delaware statutory trust ("NILT Trust"), Nissan
Auto Leasing LLC II, a Delaware limited liability company ("XXXX II"), Nissan
Auto Lease Trust 2005-A, a Delaware statutory trust (the "Trust"), and U.S. Bank
National Association ("U.S. Bank"), as trustee (the "Indenture Trustee") under
the Indenture, dated as of __________, 2005 (the "Indenture"), between the Trust
and the Indenture Trustee.
RECITALS
WHEREAS, NILT Trust, as Grantor and UTI Beneficiary, NMAC, as Servicer,
Wilmington Trust Company, as Delaware Trustee, NILT, Inc., as Trustee, and U.S.
Bank, as Trust Agent, have entered into an amended and restated trust and
servicing agreement, dated as of August 26, 1998 (the "Titling Trust
Agreement"), pursuant to which the Titling Trust was created to, among other
things, take assignments and conveyances of and hold in trust various assets
(the "Trust Assets");
WHEREAS, the parties to the Titling Trust Agreement supplemented the
Titling Trust Agreement with the 2005-A SUBI Supplement, dated as of __________,
2005 (together with the Titling Trust Agreement, the "SUBI Trust Agreement"), to
establish a special unit of beneficial interest, the "2005-A SUBI" ("2005-A
SUBI");
WHEREAS, in connection with the SUBI Trust Agreement a separate
portfolio of leases (the "2005-A Leases"), the vehicles that are leased under
the 2005-A Leases (the "2005-A Vehicles"), and certain other related Trust
Assets have been allocated to the 2005-A SUBI;
WHEREAS, the Titling Trust has issued a certificate evidencing a 100%
beneficial interest in the 2005-A SUBI (the "2005-A SUBI Certificate") to NILT
Trust;
WHEREAS, the Trust was formed pursuant to a trust agreement, dated as
of August 25, 2005, as amended and restated by the Amended and Restated Trust
Agreement, dated as of __________, 2005 (the "Trust Agreement"), each between
XXXX II and Wilmington Trust Company, as Owner Trustee;
WHEREAS, pursuant to the SUBI Certificate Transfer Agreement, dated as
of __________, 2005 (the "SUBI Certificate Transfer Agreement"), between NILT
Trust and XXXX II, NILT Trust has sold, transferred and assigned to XXXX II,
without recourse, all of NILT Trust's right, title and interest in the 2005-A
SUBI Certificate;
WHEREAS, pursuant to the Trust SUBI Certificate Transfer Agreement,
dated as of __________, 2005 (the "Trust SUBI Certificate Transfer Agreement"),
between XXXX II, as transferor (the "Transferor") and the Trust, as transferee,
the Transferor has sold, transferred and
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assigned to the Trust, without recourse, all of the Transferor's right, title
and interest in the 2005-A SUBI Certificate;
WHEREAS, pursuant to the Indenture, the Trust has pledged and granted a
security interest in the 2005-A SUBI Certificate to the Indenture Trustee to
secure payment of the Notes;
WHEREAS, the parties hereto desire to enter into this Agreement to
provide that if, for any reason, the form of any of the transactions
contemplated by the SUBI Trust Agreement, the 2005-A SUBI Certificate, the Trust
Agreement, the SUBI Certificate Transfer Agreement, the Trust SUBI Certificate
Transfer Agreement or the Indenture (collectively, the "Transfer Documents") is
deemed to constitute a loan by any or all of the Securityholders, secured by a
pledge of the 2005-A SUBI Assets or any interest therein (rather than by the
2005-A SUBI Certificate), each of NMAC, the Titling Trust, NILT Trust, the
Transferor and the Trust shall be deemed to have granted to the Indenture
Trustee a first priority security interest in such assets to secure the Notes.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01 Definitions. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Agreement of
Definitions, dated as of __________, 2005, by and among the Trust, as issuer
(the "Issuer"), NILT Trust, as grantor and initial beneficiary (in such
capacity, the "Grantor" and the "UTI Beneficiary," respectively), the Titling
Trust, NMAC, in its individual capacity, as servicer and as administrative agent
(in such capacity, the "Servicer" and the "Administrative Agent," respectively),
XXXX II, NILT, Inc., a Delaware corporation, as trustee to the Titling Trust
(the "Trustee"), Wilmington Trust Company, a Delaware banking corporation, as
owner trustee and Delaware trustee (in such capacity, the "Owner Trustee" and
the "Delaware Trustee," respectively) and U.S. Bank, as Indenture Trustee and
trust agent (in such capacity, the "Trust Agent").
1.02 Interpretive Provisions. For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
(i) terms used herein include, as appropriate, all genders and the plural as
well as the singular, (ii) references to words such as "herein", "hereof" and
the like shall refer to this Agreement as a whole and not to any particular
part, Article or Section herein, (iii) 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, (iv) the term "include" and all variations thereof
shall mean "include without limitation", (v) the term "or" shall include
"and/or" and (vi) the term "proceeds" shall have the meaning ascribed to such
term in the UCC.
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ARTICLE II
SECURITY INTEREST
2.01 Grant of Security Interest.
(a) Each of NMAC, the Titling Trust, NILT Trust, the Transferor
and the Trust hereby grants to the Indenture Trustee a security interest in all
of its present and future right, title and interest in, to and under (but not,
except to the extent required by law, any obligations with respect to) the
following collateral: (i) a 100% beneficial interest in (A) all rights under the
2005-A Leases; (B) to the extent permitted by applicable law, the 2005-A
Vehicles; (C) all other 2005-A SUBI Assets, including the 2005-A SUBI Collection
Account; and (D) all proceeds of the items described in clauses (i) (A), (B) and
(C), including insurance payable by reason of loss or damage to the 2005-A
Vehicles to the extent not applied to making repairs to the related 2005-A
Vehicle or otherwise paid by the Servicer to the Lessee, a third person or
governmental authority as required by law or pursuant to its normal servicing
practices; (ii) the Reserve Account; (iii) all rights and benefits under the
Interest Rate Cap Agreement; and (iv) all proceeds, accounts, money, general
intangibles, instruments, chattel paper, goods, investment property or other
property consisting of, arising from or related to the foregoing (collectively,
the "Collateral"). Such grant is made to secure (i) the payment of all amounts
due on the Securities in accordance with their terms in the priorities of
payment set forth in the Indenture, (ii) the payment of all other sums payable
under the Indenture and (iii) compliance with the provisions of the Indenture.
(b) The Indenture Trustee acknowledges such grant and assignment,
but all parties hereto acknowledge and agree that (i) such grant and assignment
are made solely for protective purposes and without representation or warranty
as to the nature of any of parties' rights in and to the Collateral and (ii)
none of the parties hereto intends to imply in any way that any of the Transfer
Documents should not be interpreted or enforced in accordance with its
respective terms. The Indenture Trustee also acknowledges that it shall have no
claim to any proceeds or assets of the Titling Trust or to any of the Trust
Assets other than the 2005-A SUBI Assets and any present or future proceeds
thereof.
2.02 Certificate of Title. None of the parties hereto, including the
Titling Trust, shall have any obligation or otherwise be required to make
notation on, or cause to be taken any other action with respect to, any
Certificate of Title for any 2005-A Vehicle to reflect the back-up Lien created
hereby.
2.03 Filing of Financing Statements. Each of NMAC, the Titling Trust,
NILT Trust, the Transferor and the Trust will from time to time execute, deliver
and file all financing statements and continuation statements reasonably
required or necessary to maintain, perfect or continue the perfection of the
backup Lien created hereby with respect to the 2005-A Leases and the proceeds
thereof and any other Collateral, the perfection of a security interest in which
may be accomplished and continued by the same filings.
2.04 Use of Collateral. Each of the parties granting a security
interest hereunder may continue to use and deal with its interest in the
Collateral in any lawful manner and may sell
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items of Collateral in the ordinary course of its business, subject only to the
requirements of the Transfer Documents and the Servicing Agreement, as
appropriate.
2.05 Further Description of the Collateral. A description of the 2005-A
Leases and the 2005-A Vehicles appears on the Schedule of 2005-A Leases and
2005-A Vehicles.
2.06 Back-Up Rights of Indenture Trustee. If a Back-Up Event shall have
occurred and be continuing, the Indenture Trustee may exercise the rights and
remedies with respect to the Collateral of a secured party under the UCC to the
extent permitted by applicable law. Notwithstanding any other provision hereof,
the Indenture Trustee shall have recourse only against the Collateral and not
against any Pledgor hereunder (excluding responsibilities of NMAC solely as
Servicer).
ARTICLE III
MISCELLANEOUS
3.01 Amendments.
(a) Any term or provision of this Agreement may be amended by the
parties hereto, without the consent of any other Person; provided that (i)
either (A) any amendment that materially and adversely affects the interests of
the Noteholders shall require the consent of Noteholders evidencing not less
than a Majority Interest of the Notes voting together as a single class or (B)
such amendment shall not, as evidenced by an Officer's Certificate of the
Servicer or the Transferor delivered to the Indenture Trustee, materially and
adversely affect the interests of the Noteholders and (ii) any amendment that
adversely affects the interests of the Trust Certificateholders, the Indenture
Trustee or the Owner Trustee shall require the prior written consent of the
Persons whose interests are adversely affected. An amendment shall be deemed not
to materially and adversely affect the interests of the Noteholders if the
Rating Agency Condition is satisfied with respect to such amendment and the
Officer's Certificate described in the preceding sentence is provided to the
Indenture Trustee. The consent of the Trust Certificateholders or the Owner
Trustee shall be deemed to have been given if the Servicer does not receive a
written objection from such Person within 10 Business Days after a written
request for such consent shall have been given. The Indenture Trustee may, but
shall not be obligated to, enter into or consent to any such amendment that
affects the Indenture Trustee's own rights, duties, liabilities or immunities
under this Agreement or otherwise.
(b) It shall not be necessary for the consent of any Person pursuant to
this Section for such Person to approve the particular form of any proposed
amendment, but it shall be sufficient if such Person consents to the substance
thereof.
(c) Notwithstanding the foregoing, no amendment shall (i) reduce the
interest rate or principal amount of any Note, or change the due date of any
installment of principal of or interest in any Note, or the Redemption Price
with respect thereto, without the consent of the Holder of such Note or (ii)
reduce the Outstanding Amount, the Holders of which are required to consent to
any matter without the consent of the Holders of at least a Majority Interest of
the Notes which were required to consent to such matter before giving effect to
such amendment.
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(d) Notwithstanding anything herein to the contrary, any term or
provision of this Agreement may be amended by the Servicer or the Transferor
without the consent of any of the Noteholders or any other Person to add, modify
or eliminate any provisions as may be necessary or advisable in order to comply
with or obtain more favorable treatment under or with respect to any law or
regulation or any accounting rule or principle (whether now or in the future in
effect); it being a condition to any such amendment that the Rating Agency
Condition shall have been satisfied. The Officer's Certificate described in
Section 3.01(b)(i)(B) is delivered to the Indenture Trustee.
(e) Not less than 15 days prior to the execution of any amendment to
this Agreement, the Servicer shall provide each Rating Agency, the Trust
Certificateholder, the Transferor, the Owner Trustee and the Indenture Trustee
with written notice of the substance of such amendment. No later than 10
Business Days after the execution of any amendment to this Agreement, the
Servicer shall furnish a copy of such amendment to each Rating Agency, the Trust
Certificateholders, the Indenture Trustee and the Owner Trustee.
(f) None of U.S. Bank National Association, as trustee of NILT Trust
and as Trust Agent, NILT, Inc., nor the Indenture Trustee shall be under any
obligation to ascertain whether a Rating Agency Condition has been satisfied
with respect to any amendment. When the Rating Agency Condition is satisfied
with respect to such amendment, the Servicer shall deliver to a Responsible
Officer of the Indenture Trustee and U.S. Bank National Association, an
Officer's Certificate to that effect, and U.S. Bank National Association and the
Indenture Trustee may conclusively rely upon the Officer's Certificate from the
Servicer that a Rating Agency Condition has been satisfied with respect to such
amendment.
3.02 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without reference to its
conflict of law provisions (other than Section 5-1401 of the General Obligations
law of the State of New York).
3.03 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 or unenforceable, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions and terms of this Agreement, as the same may be amended
or supplemented, and shall in no way affect the validity or enforceability of
the other covenants, agreements, provisions or terms of this Agreement.
3.04 Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original, but all of which counterparts shall together constitute but one and
the same instrument.
3.05 Successors and Assigns. All covenants and agreements contained in
this Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and permitted assigns.
3.06 Further Assurances. Each party will perform such acts and execute
and deliver to any other party such additional documents or instruments as may
be reasonably requested in order to effect the purposes of this Agreement and to
better assure and confirm unto the requesting party its rights, powers and
remedies hereunder.
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3.07 Limitation of Liability of Owner Trustee. Notwithstanding anything
contained herein to the contrary, this instrument has been executed by
Wilmington Trust Company not in its individual capacity but solely in its
capacity as Owner Trustee of the Trust and in no event shall Wilmington Trust
Company in its individual capacity or any beneficial owner of the Trust have any
liability for the representations, warranties, covenants, agreements or other
obligations of the Trust hereunder, as to all of which recourse shall be had
solely to the assets of the Trust. For all purposes of this Agreement, in the
performance of any duties or obligations of the Trust hereunder, the Owner
Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles Six, Seven and Ten of the Trust Agreement.
3.08 Notices. All notices, requests and demands under this Agreement
shall be given in accordance with Section 11.04 of the Indenture. The address
for such purpose of the Titling Trust shall be c/o NILT, Inc., as Trustee, 000
Xxxxx XxXxxxx Xxxxxx, Xxxxx 000, Xxxxxxx XX 00000 (telecopier no. (312)
325-8905), Attention: Nissan Auto Lease Trust 2005-A.
3.09 No Petition. Each of the parties hereto covenants and agrees that
prior to the date that is one year and one day after the date upon which all
obligations under each Securitized Financing have been paid in full, it will not
institute against, or join any other Person in instituting against the Grantor,
the Transferor, the Trustee, the Titling Trust, the Issuer, any other Special
Purpose Affiliate or any Beneficiary, any bankruptcy, reorganization,
arrangement, insolvency or liquidation Proceeding or other Proceeding under any
federal or state bankruptcy or similar law.
[Signature Pages to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereto duly authorized, as of the day
and year first above written.
NISSAN MOTOR ACCEPTANCE
CORPORATION
By: ____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
NISSAN-INFINITI LT
By: NILT, INC., as Titling Trustee
By: ____________________________________
Name:
Title:
NILT TRUST
By: U.S. BANK NATIONAL ASSOCIATION,
as Managing Trustee
By: ____________________________________
Name:
Title:
NISSAN AUTO LEASING LLC II
By: ____________________________________
Name: Kazuhiko Kazama
Title: Treasurer
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NISSAN AUTO LEASE TRUST 2005-A
By: Wilmington Trust Company,
not in its individual capacity, but
solely as Owner Trustee
By: ____________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By: ____________________________________
Name:
Title:
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