NISSAN MOTOR ACCEPTANCE CORPORATION, NISSAN-INFINITI LT, NILT TRUST, NISSAN AUTO LEASING LLC II, NISSAN AUTO LEASE TRUST 2008-A, and U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee BACK-UP SECURITY AGREEMENT Dated as of April 23, 2008
EXHIBIT 10.6
NISSAN MOTOR ACCEPTANCE CORPORATION,
NILT TRUST,
NISSAN AUTO LEASING LLC II,
NISSAN AUTO LEASE TRUST 2008-A,
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
as Indenture Trustee
Dated as of April 23, 2008
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 | ||||||
| 3.10 | No Recourse |
6 | ||||||
-i-
This Back-Up Security Agreement, dated as of April 23, 2008 (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 2008-A, a Delaware statutory trust (the “Issuing Entity”), and U.S. Bank
National Association (“U.S. Bank”), as trustee (the “Indenture Trustee”) under the
Indenture, dated as of April 23, 2008 (the “Indenture”), between the Issuing Entity 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 2008-A SUBI Supplement, dated as of April 23, 2008 (together with the Titling Trust
Agreement, the “SUBI Trust Agreement”), to establish a special unit of beneficial interest,
the “2008-A SUBI” (“2008-A SUBI”);
WHEREAS, in connection with the SUBI Trust Agreement a separate portfolio of leases (the
“2008-A Leases”), the vehicles that are leased under the 2008-A Leases (the “2008-A
Vehicles”), and certain other related Trust Assets have been allocated to the 2008-A SUBI;
WHEREAS, the Titling Trust has issued a certificate evidencing a 100% beneficial interest in
the 2008-A SUBI (the “2008-A SUBI Certificate”) to NILT Trust;
WHEREAS, the Issuing Entity was formed pursuant to a trust agreement, dated as of February 13,
2008, as amended and restated by the Amended and Restated Trust Agreement, dated as of April 23,
2008 (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 April 23, 2008 (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 2008-A SUBI Certificate;
WHEREAS, pursuant to the Trust SUBI Certificate Transfer Agreement, dated as of April 23, 2008
(the “Trust SUBI Certificate Transfer Agreement”), between XXXX II, as
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depositor (the “Depositor”) and the Issuing Entity, as transferee, the Depositor has
sold, transferred and assigned to the Issuing Entity, without recourse, all of the Depositor’s
right, title and interest in the 2008-A SUBI Certificate;
WHEREAS, pursuant to the Indenture, the Issuing Entity has pledged and granted a security
interest in the 2008-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 2008-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 2008-A
SUBI Assets or any interest therein (rather than by the 2008-A SUBI Certificate), each of NMAC, the
Titling Trust, NILT Trust, the Depositor and the Issuing Entity 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 April 23, 2008, by
and among the Issuing Entity, as 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 Depositor and the Issuing Entity 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
2008-A Leases; (B) to the extent permitted by applicable law, the 2008-A Vehicles; (C) all other
2008-A SUBI Assets, including the 2008-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 2008-A Vehicles to the extent not applied to making repairs to the related 2008-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 Swap Agreements; 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 2008-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 2008-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
Depositor and the Issuing Entity 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 2008-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 2008-A Leases and the
2008-A Vehicles appears on the Schedule of 2008-A Leases and 2008-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 Depositor
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. Notwithstanding the foregoing, this Agreement may not
be amended in any way that would materially and adversely affect the rights of the Swap
Counterparty without notice to the Rating Agencies and the consent of the Swap Counterparty;
provided that the Swap Counterparty’s consent to any such amendment shall not be unreasonably
withheld, and provided, further that the Swap Counterparty’s consent will be deemed to have been
given if the Swap Counterparty does not object in writing within 10 days of receipt of a written
request for such consent.
(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.
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(c) Notwithstanding the foregoing, no amendment shall (i) reduce the interest rate or
principal amount of any Note, or change the due date of any installment of principal of or interest
in any Note, or the Redemption Price with respect thereto, without the consent of the Holder of
such Note or (ii) reduce the Outstanding Amount, the Holders of which are required to consent to
any matter without the consent of the Holders of at least a Majority Interest of the Notes which
were required to consent to such matter before giving effect to such amendment.
(d) Notwithstanding anything herein to the contrary, any term or provision of this Agreement
may be amended by the Servicer or the Depositor 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 Depositor, 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.
5
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.
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 Issuing Entity and in no
event shall Wilmington Trust Company in its individual capacity or any beneficial owner of the
Issuing Entity have any liability for the representations, warranties, covenants, agreements or
other obligations of the Issuing Entity hereunder, as to all of which recourse shall be had solely
to the assets of the Issuing Entity. For all purposes of this Agreement, in the performance of any
duties or obligations of the Issuing Entity 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. (000) 000-0000), Attention: Nissan Auto Lease Trust 2008-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 Depositor, the Trustee, the Titling Trust, the Issuing Entity,
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.
3.10 No Recourse.
(a) It is expressly understood and agreed by the parties hereto that (i) this Agreement is
executed and delivered by U.S. Bank, not individually or personally, but solely as trustee of NILT
Trust, in the exercise of the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings, and agreements herein made on the part of NILT Trust, is made and
intended not as personal representations, undertakings, and agreements by U.S. Bank, but is made
and intended for the purpose of binding only NILT Trust, (iii) nothing herein contained shall be
construed as creating any liability on U.S. Bank, individually or personally, to perform any
covenant, either expressed or implied, contained herein, all such liability, if any, being expressly
waived by the parties hereto and by any Person claiming by, through or under the
parties hereto, and (iv) under no circumstances shall U.S. Bank be personally liable for the
payment of any indebtedness or expenses of NILT Trust under this Agreement or any other related
documents.
6
(b) It is expressly understood and agreed by the parties hereto that (i) this Agreement is
executed and delivered by NILT, INC., not individually or personally, but solely as Titling Trustee
of Nissan-Infiniti LT, in the exercise of the powers and authority conferred and vested in it, (ii)
each of the representations, undertakings, and agreements herein made on the part of
Nissan-Infiniti LT, is made and intended not as personal representations, undertakings, and
agreements by NILT INC., but is made and intended for the purpose of binding only Nissan-Infiniti
LT, (iii) nothing herein contained shall be construed as creating any liability on NILT, INC.,
individually or personally, to perform any covenant, either expressed or implied, contained herein,
all such liability, if any, being expressly waived by the parties hereto and by any Person claiming
by, through or under the parties hereto, and (iv) under no circumstances shall NILT, INC. be
personally liable for the payment of any indebtedness or expenses of Nissan-Infiniti LT under this
Agreement or any other related documents.
[Signature Pages to Follow]
7
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: | ||||||||
| Title: | ||||||||
| 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: | ||||||||
| Title: | ||||||||
S-1
| NISSAN AUTO LEASE TRUST 2008-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: | ||||||||
Back-Up Security Agreement
S-2
