-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BFP75zMP+YkkF/F4irHqkmU1ao6TNt3T/6E4rwFRRDwfb3uxA97igStssGGUIss2 nIsb/SOeaUsTP40mHvCHOQ== 0000950129-04-008268.txt : 20041101 0000950129-04-008268.hdr.sgml : 20041101 20041029175529 ACCESSION NUMBER: 0000950129-04-008268 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 11 CONFORMED PERIOD OF REPORT: 20041029 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20041101 DATE AS OF CHANGE: 20041029 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NISSAN AUTO LEASING LLC II CENTRAL INDEX KEY: 0001244832 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 954885574 STATE OF INCORPORATION: DE FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-106763 FILM NUMBER: 041107692 BUSINESS ADDRESS: STREET 1: 990 W 190TH STREET CITY: TORRANCE STATE: CA ZIP: 90502 BUSINESS PHONE: 3107198583 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NILT TRUST CENTRAL INDEX KEY: 0001244824 IRS NUMBER: 526935346 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-106763-02 FILM NUMBER: 041107691 BUSINESS ADDRESS: STREET 1: C/O NISSAN NORTH AMERICA, INC. STREET 2: 990 WEST 190TH STREET, MAILSTOP M8A CITY: TORRANCE STATE: CA ZIP: 90502 BUSINESS PHONE: 3107198584 MAIL ADDRESS: STREET 1: C/O NISSAN NORTH AMERICA, INC. STREET 2: 990 WEST 190TH STREET, MAILSTOP M8A CITY: TORRANCE STATE: CA ZIP: 90502 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NISSAN-INFINITI LT CENTRAL INDEX KEY: 0001244827 IRS NUMBER: 336226449 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-106763-01 FILM NUMBER: 041107690 BUSINESS ADDRESS: STREET 1: C/O NISSAN NORTH AMERICA, INC. STREET 2: 990 WEST 190TH STREET, MAILSTOP M8A CITY: TORRANCE STATE: CA ZIP: 90502 BUSINESS PHONE: 3107198235 MAIL ADDRESS: STREET 1: C/O NISSAN NORTH AMERICA, INC. STREET 2: 990 WEST 190TH STREET, MAILSTOP M8A CITY: TORRANCE STATE: CA ZIP: 90502 FORMER COMPANY: FORMER CONFORMED NAME: NISSAN INFINITI LT DATE OF NAME CHANGE: 20030620 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Nissan Auto Lease Trust 2004-A CENTRAL INDEX KEY: 0001300197 STANDARD INDUSTRIAL CLASSIFICATION: ASSET-BACKED SECURITIES [6189] IRS NUMBER: 516557795 STATE OF INCORPORATION: DE FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-118256 FILM NUMBER: 041107689 BUSINESS ADDRESS: STREET 1: C/O NISSAN NORTH AMERICA, INC. STREET 2: 990 WEST 190TH STREET CITY: TORANCE STATE: CA ZIP: 90502 BUSINESS PHONE: 310-719-8509 MAIL ADDRESS: STREET 1: C/O NISSAN NORTH AMERICA, INC. STREET 2: 990 WEST 190TH STREET CITY: TORANCE STATE: CA ZIP: 90502 8-K 1 a02810e8vk.htm NISSAN AUTO LEASE TRUST 2004-A - OCTOBER 29, 2004 e8vk
Table of Contents

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES AND EXCHANGE ACT OF 1934

Date of Report: October 29, 2004
(Date of earliest event reported)

NISSAN AUTO LEASE TRUST 2004-A

(Issuer with respect to the Notes)
(Exact name of registrant as specified in its charter)

NISSAN AUTO LEASING LLC II
(Originator of the Note Issuer and Transferor of the SUBI Certificate to the Note Issuer)
(Exact name of registrant as specified in its charter)

NILT TRUST
(Transferor of the SUBI Certificate to Nissan Auto Leasing LLC II)
(Exact name of registrant as specified in its charter)

NISSAN-INFINITI LT
(Issuer with respect to the SUBI Certificate)
(Exact name of registrant as specified in its charter)
         
DELAWARE   333-118256   Nissan Auto Lease Trust 2004-A
      51-6557795
  333-118256-02   Nissan Auto Leasing LLC II 95-4885574
  333-118256-01   NILT Trust 52-6935346
  333-118256-03   Nissan-Infiniti LT 33-6466449
(State or Other Jurisdiction   (Commission File Number)   (I.R.S. Employer Identification No.)
of Incorporation)        
990 WEST 190TH STREET
TORRANCE, CALIFORNIA 90502

(Address of principal executive offices)

Registrant’s telephone number, including area code: (310) 719-8583

       Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

    o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
    o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
    o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
    o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

ITEM 1.01 Entry into a Definitive Material Agreement
ITEM 9.01 Financial Statements and Exhibits
EXHIBIT INDEX
EXHIBIT 4.1
EXHIBIT 10.1
EXHIBIT 10.2
EXHIBIT 10.3
EXHIBIT 10.4
EXHIBIT 10.5
EXHIBIT 10.6
EXHIBIT 10.7
EXHIBIT 10.8
EXHIBIT 10.9

Table of Contents

ITEM 1.01 Entry into a Definitive Material Agreement

     On October 28, 2004, pursuant to an Amended and Restated Trust and Servicing Agreement for Nissan-Infiniti LT, a Delaware statutory trust (“Nissan-Infiniti LT”), dated as of August 26, 1998, by and among NILT Trust, as grantor and initial beneficiary, Nissan Motor Acceptance Corporation (“NMAC”), as servicer, NILT, Inc., as trustee to Nissan-Infiniti LT (the “Trustee”), Wilmington Trust Company, a Delaware banking corporation (“Wilmington Trust”), as Delaware trustee, and U.S. Bank National Association (“U.S. Bank”), as trust agent, as supplemented by a 2004-A SUBI Supplement, dated as of October 28, 2004 (the “2004-A SUBI Supplement”), NILT Inc., as Trustee, created a special unit of beneficial interest (the “2004-A SUBI”) in specified assets of Nissan-Infiniti LT, including certain closed-end retail vehicle lease contracts (the “Leases”), the related Nissan vehicles leased under the Leases and related property (collectively, the “2004-A SUBI Assets”). Also on October 28, 2004, NMAC, as servicer, Nissan-Infiniti LT and NILT Trust entered into a 2004-A Servicing Supplement, dated as of October 28, 2004 (the “2004-A Servicing Supplement”) and supplementing the Servicing Agreement, dated as of March 1, 1999, to provide for the servicing obligations of the 2004-A SUBI Assets. On October 28, 2004, Nissan-Infiniti LT issued to NILT Trust a certificate evidencing a 100 percent beneficial interest in the 2004-A SUBI (the “2004-A SUBI Certificate”). NILT Trust sold the 2004-A SUBI Certificate to Nissan Auto Leasing LLC II, a Delaware limited liability company (“NALL II”), pursuant to a SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the “SUBI Certificate Transfer Agreement”), by and between NILT Trust, as transferor, and NALL II, as transferee. NALL II further sold the 2004-A SUBI Certificate to Nissan Auto Lease Trust 2004-A, a Delaware statutory trust (the “Trust”), pursuant to a Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the “Trust SUBI Certificate Transfer Agreement”), by and between NALL II, as transferor, and the Trust, as transferee. The Trust was created pursuant to a Trust Agreement, dated as of May 13, 2004, as amended and restated by the Amended and Restated Trust Agreement, dated as of October 28, 2004 (the “Amended and Restated Trust Agreement”), by and between NALL II, as transferor, and Wilmington Trust, as owner trustee (the “Owner Trustee”). On October 28, 2004, the Trust caused the issuance, pursuant to an Indenture, dated as of October 28, 2004 (the “Indenture”), by and between the Trust, as issuer, and U.S. Bank, as indenture trustee (the “Indenture Trustee”), of notes in the following classes: Class A-1, Class A-2, Class A-3, Class A-4a and Class A-4b (collectively, the “Notes”). The Trust, NMAC, as administrative agent, NALL II, as transferor, and U.S. Bank, as Indenture Trustee, entered into that certain Trust Administration Agreement, dated as of October 28, 2004 (the “Trust Administration Agreement”), relating to the provision by NMAC of certain services relating to the Notes. On October 28, 2004, NMAC, Nissan-Infiniti LT, NILT Trust, NALL II, the Trust, and the Indenture Trustee entered into a Back-Up Security Agreement, dated as of October 28, 2004 (the “Back-Up Security Agreement”), relating to the security interest of the Indenture Trustee in the 2004-A SUBI Assets. Also on October 28, 2004, the Trust, the Indenture Trustee, and U.S. Bank, in its capacity as securities intermediary (the “Securities Intermediary”), entered into a Control Agreement, dated as of October 28, 2004 (the “Control Agreement”), relating to the reserve account established for the benefit of the holders of the Notes. The Notes, with an aggregate principal balance of $1,470,000,000, were sold to J.P. Morgan Securities Inc., as the representative of several underwriters (the “Underwriters”), pursuant to an Underwriting Agreement, dated October 19, 2004, by and among NALL II, NMAC and J.P. Morgan Securities Inc., on behalf of itself and as a representative of the Underwriters. The Notes have been registered pursuant to the Securities Act of 1933, as amended, under a Registration Statement on Form S-1, as amended (Commission File Nos. 333-118256, 333-118256-01, 333-118256-02, 333-118256-03). With respect to the foregoing transactions, the Trust, as issuer, NILT Trust, as grantor and initial beneficiary (in such capacity, the “UTI Beneficiary”), Nissan-Infiniti LT, NMAC, in its individual capacity, as servicer and as administrative agent, NALL II, NILT Inc., as Trustee, Wilmington Trust, as Owner Trustee and Delaware trustee, and U.S. Bank, as trust agent and Indenture Trustee, entered into that certain Agreement of Definitions, dated as of October 28, 2004 (the “Agreement of Definitions”).

     Attached as Exhibit 4.1 is the Indenture, as Exhibit 10.1 is the Agreement of Definitions, as Exhibit 10.2 is the 2004-A SUBI Supplement, as Exhibit 10.3 is the 2004-A Servicing Supplement, as Exhibit 10.4 is the Amended and Restated Trust Agreement for the Trust, as Exhibit 10.5 is the Trust Administration Agreement, as Exhibit 10.6 is the Back-Up Security Agreement, as Exhibit 10.7 is the Control Agreement, as Exhibit 10.8 is the SUBI Certificate Transfer Agreement, and as Exhibit 10.9 is the Trust SUBI Certificate Transfer Agreement.

 

Table of Contents

ITEM 9.01 Financial Statements and Exhibits

(a)   Not applicable.
 
(b)   Not applicable.
 
(c)   Exhibits

         
    Exhibit No.
   Description
  Exhibit 4.1   Indenture, dated as of October 28, 2004, by and between the Trust, as issuer, and U.S. Bank, as Indenture Trustee.
 
        
  Exhibit 10.1   Agreement of Definitions, dated as of October 28, 2004, by and among the Trust, as issuer, NILT Trust, as grantor and UTI Beneficiary, Nissan-Infiniti LT, NMAC, in its individual capacity, as servicer and as administrative agent , NALL II, NILT Inc., as Trustee, Wilmington Trust, as Owner Trustee and Delaware trustee, and U.S. Bank, as trust agent and Indenture Trustee.
 
        
  Exhibit 10.2   2004-A SUBI Supplement, dated as of October 28, 2004, by and among NILT Trust, as grantor and UTI Beneficiary, NMAC, as servicer, NILT, Inc., as Trustee, Wilmington Trust, as Delaware trustee, and U.S. Bank, as trust agent.
 
        
  Exhibit 10.3   2004-A Servicing Supplement, dated as of October 28, 2004, by and among Nissan-Infiniti LT, as titling trust, NILT Trust, as UTI Beneficiary, and NMAC, as servicer.
 
        
  Exhibit 10.4   Amended and Restated Trust Agreement for the Trust, dated as of October 28, 2004, by and between NALL II, as transferor, and Wilmington Trust, as Owner Trustee.
 
        
  Exhibit 10.5   Trust Administration Agreement, dated as of October 28, 2004, by and among the Trust, NMAC, as administrative agent, NALL II, as transferor, and U.S. Bank, as Indenture Trustee.
 
        
  Exhibit 10.6   Back-Up Security Agreement, dated as of October 28, 2004, by and among NMAC, Nissan-Infiniti LT, NILT Trust, NALL II, as transferor, the Trust, and U.S. Bank, as Indenture Trustee.
 
        
  Exhibit 10.7   Control Agreement, dated as of October 28, 2004, by and among the Trust, U.S. Bank, as Indenture Trustee and secured party, and U.S. Bank, as Securities Intermediary.
 
        
  Exhibit 10.8   SUBI Certificate Transfer Agreement, dated as of October 28, 2004, by and between NILT Trust, as transferor, and NALL II, as transferee.
 
        
  Exhibit 10.9   Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004, by and between NALL II, as transferor, and the Trust, as transferee.

 

Table of Contents

     Pursuant to the requirements of the Securities Exchange Act of 1934, the Co-Registrants have duly caused this report to be signed on their behalf by the undersigned thereunto duly authorized.

Date: October 29, 2004

             
    NISSAN AUTO LEASE TRUST 2004-A
 
            
  By:   Nissan Auto Leasing LLC II, solely as originator of    
      Nissan Auto Lease Trust 2004-A    
 
            
    By: /s/ Steven R. Lambert    
     
   
      Name: Steven R. Lambert    
      Title:    President    
 
            
    NISSAN AUTO LEASING LLC II
 
            
    By: /s/ Steven R. Lambert    
     
   
      Name: Steven R. Lambert    
      Title:    President    
 
            
    NILT TRUST
 
            
  By:   Nissan Motor Acceptance Corporation, solely as    
      grantor and beneficiary    
 
            
    By: /s/ Steven R. Lambert    
     
   
      Name: Steven R. Lambert    
      Title:    President    
 
            
    NISSAN-INFINITI LT
 
            
  By:   Nissan Motor Acceptance Corporation, solely as    
      originator of Nissan-Infiniti LT    
 
            
    By: /s/ Steven R. Lambert    
     
   
      Name: Steven R. Lambert    
      Title:    President    

 

Table of Contents

EXHIBIT INDEX

     
Exhibit No.
   Description
Exhibit   4.1   Indenture, dated as of October 28, 2004, by and between the Trust, as issuer, and U.S. Bank, as Indenture Trustee.
     
Exhibit 10.1   Agreement of Definitions, dated as of October 28, 2004, by and among the Trust, as issuer, NILT Trust, as grantor and UTI Beneficiary, Nissan-Infiniti LT, NMAC, in its individual capacity, as servicer and as administrative agent , NALL II, NILT Inc., as Trustee, Wilmington Trust, as Owner Trustee and Delaware trustee, and U.S. Bank, as trust agent and Indenture Trustee.
     
Exhibit 10.2   2004-A SUBI Supplement, dated as of October 28, 2004, by and among NILT Trust, as grantor and UTI Beneficiary, NMAC, as servicer, NILT, Inc., as Trustee, Wilmington Trust, as Delaware trustee, and U.S. Bank, as trust agent.
     
Exhibit 10.3   2004-A Servicing Supplement, dated as of October 28, 2004, by and among Nissan-Infiniti LT, as titling trust, NILT Trust, as UTI Beneficiary, and NMAC, as servicer.
     
Exhibit 10.4   Amended and Restated Trust Agreement for the Trust, dated as of October 28, 2004, by and between NALL II, as transferor, and Wilmington Trust, as Owner Trustee.
     
Exhibit 10.5   Trust Administration Agreement, dated as of October 28, 2004, by and among the Trust, NMAC, as administrative agent, NALL II, as transferor, and U.S. Bank, as Indenture Trustee.
     
Exhibit 10.6   Back-Up Security Agreement, dated as of October 28, 2004, by and among NMAC, Nissan-Infiniti LT, NILT Trust, NALL II, as transferor, the Trust, and U.S. Bank, as Indenture Trustee.
     
Exhibit 10.7   Control Agreement, dated as of October 28, 2004, by and among the Trust, U.S. Bank, as Indenture Trustee and secured party, and U.S. Bank, as Securities Intermediary.
     
Exhibit 10.8   SUBI Certificate Transfer Agreement, dated as of October 28, 2004, by and between NILT Trust, as transferor, and NALL II, as transferee.
     
Exhibit 10.9   Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004, by and between NALL II, as transferor, and the Trust, as transferee.

 

EX-4.1 2 a02810exv4w1.txt EXHIBIT 4.1 EXHIBIT 4.1 ================================================================================ NISSAN AUTO LEASE TRUST 2004-A $265,000,000 2.10563% Asset Backed Notes, Class A-1 $260,000,000 2.55000% Asset Backed Notes, Class A-2 $357,000,000 2.90000% Asset Backed Notes, Class A-3 $488,000,000 Floating Rate Asset Backed Notes, Class A-4a $100,000,000 3.18000% Asset Backed Notes, Class A-4b NISSAN AUTO LEASE TRUST 2004-A and U.S. Bank National Association, as Indenture Trustee, --------------------------------- INDENTURE Dated as of October 28, 2004 --------------------------------- ================================================================================ TABLE OF CONTENTS
PAGE ARTICLE ONE DEFINITIONS....................................................................... 1 SECTION 1.01 Capitalized Terms............................................................... 1 SECTION 1.02 Interpretation.................................................................. 2 SECTION 1.03 Incorporation by Reference Trust Indenture Act.................................. 2 ARTICLE TWO THE NOTES......................................................................... 3 SECTION 2.01 Form............................................................................ 3 SECTION 2.02 Execution, Authentication and Delivery.......................................... 3 SECTION 2.03 Temporary Notes................................................................. 4 SECTION 2.04 Registration; Registration of Transfer and Exchange............................. 4 SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes...................................... 5 SECTION 2.06 Persons Deemed Owners........................................................... 6 SECTION 2.07 Cancellation.................................................................... 6 SECTION 2.08 Release of Collateral........................................................... 7 SECTION 2.09 Book-Entry Notes................................................................ 7 SECTION 2.10 Notices to Clearing Agency...................................................... 7 SECTION 2.11 Definitive Notes................................................................ 8 SECTION 2.12 Authenticating Agents........................................................... 8 SECTION 2.13 The Interest Rate Cap Agreement................................................. 9 SECTION 2.14 Tax Treatment................................................................... 10 ARTICLE THREE COVENANTS......................................................................... 10 SECTION 3.01 Payments to Noteholders, Trust Certificateholders and Transferor................ 10 SECTION 3.02 Maintenance of Office or Agency................................................. 10 SECTION 3.03 Money for Payments to be Held in Trust.......................................... 10 SECTION 3.04 Existence....................................................................... 12 SECTION 3.05 Protection of Trust Estate...................................................... 12 SECTION 3.06 Opinions as to Trust Estate..................................................... 13 SECTION 3.07 Performance of Obligations; Servicing of the 2004-A SUBI Assets................. 13 SECTION 3.08 Negative Covenants.............................................................. 14
-i- TABLE OF CONTENTS (CONTINUED)
PAGE SECTION 3.09 Trust Certificates and Reports.................................................. 15 SECTION 3.10 Restrictions on Certain Other Activities........................................ 16 SECTION 3.11 Notice of Defaults.............................................................. 16 SECTION 3.12 Further Instruments and Acts.................................................... 16 SECTION 3.13 Delivery of the 2004-A SUBI Certificate......................................... 16 SECTION 3.14 Compliance with Laws............................................................ 17 SECTION 3.15 Issuer May Consolidate, etc., Only on Certain Terms............................. 17 SECTION 3.16 Successor or Transferee......................................................... 19 SECTION 3.17 Removal of the Administrative Agent............................................. 19 ARTICLE FOUR SATISFACTION AND DISCHARGE........................................................ 19 SECTION 4.01 Satisfaction and Discharge of Indenture......................................... 19 SECTION 4.02 Application of Trust Money...................................................... 20 SECTION 4.03 Repayment of Monies Held by Paying Agent........................................ 20 ARTICLE FIVE INDENTURE DEFAULT................................................................. 21 SECTION 5.01 Indenture Defaults.............................................................. 21 SECTION 5.02 Acceleration of Maturity; Waiver of Indenture Default........................... 22 SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee....... 23 SECTION 5.04 Remedies; Priorities............................................................ 25 SECTION 5.05 Optional Preservation of the Trust Estate....................................... 26 SECTION 5.06 Limitation of Suits............................................................. 27 SECTION 5.07 Unconditional Rights of Noteholders to Receive Principal and Interest........... 27 SECTION 5.08 Restoration of Rights and Remedies.............................................. 28 SECTION 5.09 Rights and Remedies Cumulative.................................................. 28 SECTION 5.10 Delay or Omission Not a Waiver.................................................. 28 SECTION 5.11 Control by Noteholders.......................................................... 28 SECTION 5.12 [Reserved]...................................................................... 29 SECTION 5.13 Undertaking for Costs........................................................... 29 SECTION 5.14 Waiver of Stay or Extension Laws................................................ 29
-ii- TABLE OF CONTENTS (CONTINUED)
PAGE SECTION 5.15 Action on Notes................................................................. 29 SECTION 5.16 Performance and Enforcement of Certain Obligations.............................. 29 SECTION 5.17 Sale of Trust Estate............................................................ 30 ARTICLE SIX THE INDENTURE TRUSTEE............................................................. 31 SECTION 6.01 Duties of Indenture Trustee..................................................... 31 SECTION 6.02 Rights of Indenture Trustee..................................................... 32 SECTION 6.03 Individual Rights of Indenture Trustee.......................................... 33 SECTION 6.04 Indenture Trustee's Disclaimer.................................................. 33 SECTION 6.05 Notice of Defaults.............................................................. 34 SECTION 6.06 Reports by Indenture Trustee to Noteholders..................................... 34 SECTION 6.07 Compensation and Indemnity...................................................... 34 SECTION 6.08 Replacement of Indenture Trustee................................................ 35 SECTION 6.09 Successor Indenture Trustee by Merger........................................... 36 SECTION 6.10 Appointment of Co-Trustee or Separate Trustee................................... 37 SECTION 6.11 Eligibility; Disqualification................................................... 38 SECTION 6.12 Trustee as Holder of the 2004-A SUBI Certificate................................ 38 SECTION 6.13 Representations and Warranties of Indenture Trustee............................. 39 SECTION 6.14 Furnishing of Documents......................................................... 39 SECTION 6.15 Interest Rate Cap Agreement Provisions.......................................... 39 SECTION 6.16 Preferred Collection of Claims Against Issuer................................... 40 ARTICLE SEVEN NOTEHOLDERS' LISTS AND REPORTS.................................................... 40 SECTION 7.01 Note Registrar to Furnish Noteholder Names and Addresses................................................................... 40 SECTION 7.02 Preservation of Information; Communications to Noteholders...................... 41 SECTION 7.03 Reports by Issuer............................................................... 41 SECTION 7.04 Reports by Indenture Trustee.................................................... 42 ARTICLE EIGHT ACCOUNTS, DISBURSEMENTS AND RELEASES.............................................. 42 SECTION 8.01 Collection of Money............................................................. 42 SECTION 8.02 Accounts........................................................................ 42
-iii- TABLE OF CONTENTS (CONTINUED)
PAGE SECTION 8.03 Payment Date Certificate........................................................ 43 SECTION 8.04 Disbursement of Funds........................................................... 44 SECTION 8.05 General Provisions Regarding Accounts........................................... 48 SECTION 8.06 Release of Trust Estate......................................................... 48 SECTION 8.07 Release of Interest In 2004-A Leases and 2004-A Vehicles Upon Purchase or Reallocation by the Servicer.................................................... 49 SECTION 8.08 Opinion of Counsel.............................................................. 49 ARTICLE NINE SUPPLEMENTAL INDENTURES........................................................... 50 SECTION 9.01 Supplemental Indentures Without Consent of Noteholders.......................... 50 SECTION 9.02 Supplemental Indentures With Consent of Noteholders............................. 51 SECTION 9.03 Execution of Supplemental Indentures............................................ 52 SECTION 9.04 Effect of Supplemental Indenture................................................ 53 SECTION 9.05 Reference in Notes to Supplemental Indentures................................... 53 ARTICLE TEN REDEMPTION OF NOTES............................................................... 53 SECTION 10.01 Redemption...................................................................... 53 SECTION 10.02 Form of Redemption Notice....................................................... 54 SECTION 10.03 Notes Payable on Redemption Date................................................ 54 ARTICLE ELEVEN MISCELLANEOUS..................................................................... 54 SECTION 11.01 Compliance Certificates and Opinions............................................ 54 SECTION 11.02 Form of Documents Delivered to Indenture Trustee................................ 56 SECTION 11.03 Acts of Noteholders............................................................. 57 SECTION 11.04 Notices......................................................................... 58 SECTION 11.05 Notices to Noteholders; Waiver.................................................. 58 SECTION 11.06 Effect of Headings and Table of Contents........................................ 59 SECTION 11.07 Successors and Assigns.......................................................... 59 SECTION 11.08 Severability.................................................................... 59 SECTION 11.09 Benefits of Indenture........................................................... 59 SECTION 11.10 Legal Holidays.................................................................. 59 SECTION 11.11 Governing Law................................................................... 59 SECTION 11.12 Counterparts.................................................................... 59
-iv- TABLE OF CONTENTS (CONTINUED)
PAGE SECTION 11.13 Recording of Indenture.......................................................... 59 SECTION 11.14 Trust Obligation................................................................ 60 SECTION 11.15 No Petition..................................................................... 60 SECTION 11.16 No Recourse..................................................................... 60 SECTION 11.17 Inspection...................................................................... 61 SECTION 11.18 Limitation of Liability of Owner Trustee........................................ 61 SECTION 11.19 Assignment of the Interest Rate Cap Agreement................................... 61 SECTION 11.20 Conflict with Trust Indenture Act............................................... 63 EXHIBITS Exhibit A - Form of Notes......................................................................... A-1 Exhibit B - Form of Depository Agreement.......................................................... B-1
-v- Reconciliation and tie between the Trust Indenture Act of 1939 and Indenture
TIA Indenture Section Section - ------- ---------- 310 (a) (1)....................................... 6.11 (a) (2)....................................... 6.11 (a) (3)....................................... 6.10(b)(i) (a) (4)....................................... 6.12 (a) (5)....................................... 6.11 (b)........................................... 6.08 6.11 11.04 (c)........................................... N.A. 311 (a) .......................................... 6.16 (b) .......................................... 6.16 (c) .......................................... N.A. 312 (a) .......................................... 7.01 (b) .......................................... 7.02(b) (c) .......................................... 7.02(c) 313 (a) .......................................... 7.04 (b) (1)....................................... 7.04 (b) (2)....................................... 7.04 (c) .......................................... 7.04 11.04 (d) .......................................... 7.04 314 (a) .......................................... 7.03 3.09 11.04 (b) .......................................... 11.13 (c) (1) ...................................... 11.01 6.02 8.06(a) (c) (2) ...................................... 11.01 3.06 3.15 6.02 8.06(a) 8.08 (c) (3)....................................... 11.01 (d) .......................................... 11.01(b) (e) .......................................... 11.01 (f) .......................................... N.A.
-i- 315 (a) .......................................... 6.01 (b) .......................................... 6.05 (c) .......................................... N.A. (d) .......................................... 6.01(c) (e) .......................................... 5.13 316 (a)(1) (A).................................... 5.11 6.01(c) (a) (1) (B)................................... 5.12 (a) (2)....................................... N.A. (b) .......................................... 5.07 (c) .......................................... N.A. 317 (a) (1) ...................................... 5.04 (a) (2) ...................................... 5.03(c) 5.03(d) (b) .......................................... 3.03 318 (a) .......................................... 11.20
- ------------------ (1) This reconciliation table and tie shall not, for any purpose be deemed to be part of the Indenture. (2) N.A. means not applicable. -ii- INDENTURE This Indenture, dated as of October 28, 2004 (the "Indenture"), is between the Nissan Auto Lease Trust 2004-A, a Delaware statutory trust (the "Issuer"), and U.S. Bank National Association a national banking association ("U.S. Bank"), as trustee (the "Indenture Trustee"). Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the holders of the Issuer's 2.10563% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), 2.55000% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), 2.90000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), Floating Rate Asset Backed Notes, Class A-4a (the "Class A-4a Notes"), 3.18000% Asset Backed Notes, Class A-4b (the "Class A-4b Notes" and, together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4a Notes, the "Notes"): GRANTING CLAUSE The Issuer, hereby Grants in trust to the Indenture Trustee on the Closing Date, as trustee for the benefit of the Noteholders and the Trust Certificateholders all of the Issuer's right, title and interest, whether now owned or hereafter acquired, in and to (i) the Trust Estate and (ii) all present and future claims, demands, causes and choses in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds of the conversion, voluntary or involuntary, into cash or other liquid property, all cash proceeds, accounts, accounts receivable, notes, drafts, acceptances, chattel paper, checks, deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments, securities, financial assets and other property that at any time constitute all or part of or are included in the proceeds of any of the foregoing (collectively, the "Collateral"), in each case as such terms are defined herein. The Indenture Trustee, as trustee on behalf of the Noteholders, acknowledges the foregoing Grant, accepts the trusts under this Indenture in accordance with the provisions of this Indenture and agrees to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Noteholders may be adequately and effectively protected. ARTICLE ONE DEFINITIONS SECTION 1.01 Capitalized Terms. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Agreement of Definitions, dated as of October 28, 2004, by and among the Issuer, NILT Trust, a Delaware statutory trust, as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary," respectively), Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), in its individual capacity, as servicer and as administrative agent (in such capacity, the "Servicer" and the "Administrative Agent," respectively), Nissan Auto Leasing LLC II, a Delaware limited liability company Indenture ("NALL II"), NILT, Inc., a Delaware corporation, as trustee to the Titling Trust (the "Titling 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"). SECTION 1.02 Interpretation. For all purposes of this Indenture, 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 this Indenture include all Exhibits hereto, (iii) references to words such as "herein," "hereof" and the like shall refer to this Indenture as a whole and not to any particular part, Article or Section within this Agreement, (iv) references to an Article or Section such as "Article Twelve" or "Section 12.01" shall refer to the applicable Article or Section of this Indenture, (v) the term "include" and all variations thereof shall mean "include without limitation," (vi) the term "or" shall include "and/or," (vii) the term "proceeds" shall have the meaning ascribed to such term in the UCC. Any reference in this Indenture to any agreement means such agreement as it may be amended, restated, supplemented (only to the extent such agreement as supplemented relates to the Notes), or otherwise modified from time to time. Any reference in this Indenture to any law, statute, regulation, rule, or other legislative action shall mean such law, statute, regulation, rule or other legislative action as amended, supplemented, or otherwise modified from time to time, and shall include any rule or regulation promulgated thereunder. Any reference in this Indenture to a Person shall include the successors or assignee of such Person. SECTION 1.03 Incorporation by Reference Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the Securities and Exchange Commission. "indenture securities" means the Notes. "indenture security holder" means a Noteholder. "indenture to be qualified" means this Indenture. "indenture trustee or "institutional trustee" means the Indenture Trustee. "obligor" on the indenture securities means the Issuer and any other obligor on the indenture securities. All other TIA terms used in this Indenture that are defined in the TIA, defined in the TIA by reference to another statute or defined by Commission rule have the meanings so assigned to them. Indenture 2 ARTICLE TWO THE NOTES SECTION 2.01 Form. The Notes, together with the Indenture Trustee's certificate of authentication, shall be in substantially the form set forth as Exhibit A hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of such Note. The terms of the Notes set forth in Exhibit A hereto are part of the terms of this Indenture. SECTION 2.02 Execution, Authentication and Delivery. The Notes shall be executed by the Owner Trustee on behalf of the Issuer. The signature of any authorized officer of the Owner Trustee on the Notes may be manual or by facsimile. Notes bearing the manual or facsimile signature of individuals who were at any time authorized officers of the Owner Trustee shall bind the Issuer, notwithstanding that any such individuals have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes. The Indenture Trustee shall, upon receipt of a Issuer Order, authenticate and deliver for original issue the following aggregate principal amounts of the Notes: (i) $265,000,000 of Class A-1 Notes, (ii) $260,000,000 of Class A-2 Notes, (iii) $357,000,000 of Class A-3 Notes, (iv) $488,000,000 of Class A-4a Notes and (v) $100,000,000 of Class A-4b Notes. The aggregate principal amount of Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4a Notes and Class A-4b Notes outstanding at any time may not exceed such respective amounts, except as provided in Section 2.05. Each Note shall be dated the date of its authentication. The Notes shall be issuable as registered notes in book-entry form in minimum denominations of $100,000 and in integral multiples of $1,000 in excess thereof. No Note may be sold, pledged or otherwise transferred to any Person except in accordance with Section 2.03 and any attempted sale, pledge or transfer in violation of such Section shall be null and void. No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Indenture 3 SECTION 2.03 Temporary Notes. Pending the preparation of Definitive Notes, the Owner Trustee may execute, on behalf of the Issuer, and upon receipt of a Issuer Order, the Indenture Trustee shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed or otherwise produced, substantially of the tenor of the Definitive Notes in lieu of which they are issued and with such variations not inconsistent with the terms of this Indenture as the officers executing such Notes may determine, as evidenced by their execution of such Notes. If temporary Notes are issued, the Issuer shall cause Definitive Notes to be prepared without unreasonable delay. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of such temporary Notes at the office or agency of the Issuer to be maintained as provided in Section 3.02, without charge to the related Noteholder. Upon surrender for cancellation of any one or more temporary Notes, the Owner Trustee shall execute, on behalf of the Issuer, and the Indenture Trustee shall authenticate and deliver in exchange therefor, a like principal amount of Definitive Notes of authorized denominations. Until so exchanged, such temporary Notes shall in all respects be entitled to the same benefits under this Indenture as Definitive Notes. SECTION 2.04 Registration; Registration of Transfer and Exchange. (a) The Issuer shall cause to be kept a register (the "Note Register") in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers of Notes by the Note Registrar. The Indenture Trustee is hereby initially appointed the "Note Registrar" for the purpose of registering Notes and transfers of Notes as herein provided. In the event, subsequent to the Closing Date, the Indenture Trustee notifies the Issuer that it is unable to act as Note Registrar, the Issuer shall appoint another bank or trust company, having an office located in the Borough of Manhattan, The City of New York, agreeing to act in accordance with the provisions of this Indenture applicable to it, and otherwise acceptable to the Indenture Trustee, to act as successor Note Registrar under this Indenture. Upon any resignation of any Note Registrar, the Issuer shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of Note Registrar. If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt written notice of such appointment and the location, and any change in such location, of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to rely upon a certificate executed on behalf of the Note Registrar by an Executive Officer as to the names and addresses of the Noteholders and the principal amounts and number of such Notes. (b) Upon the proper surrender for registration of transfer of any Note at the office or agency of the Issuer to be maintained as provided in Section 3.02, if the requirements of Section 8-401 of the UCC are met, the Owner Trustee shall execute, on behalf of the Issuer, and the Indenture Trustee shall authenticate and the related Noteholder shall obtain from the Indenture Trustee, in the name of the designated transferee, one or more new Notes in any authorized denominations, of a like aggregate principal amount. Indenture 4 (c) At the option of the related Noteholder, Notes may be exchanged for other Notes in any authorized denominations, of a like aggregate principal amount, upon surrender of such Notes at such office or agency. Whenever any Notes are so surrendered for exchange, if the requirements of Section 8-401 of the UCC are met, the Owner Trustee shall execute, on behalf of the Issuer, the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee the Notes that the Noteholder making such exchange is entitled to receive. Every Note presented or surrendered for registration of transfer or exchange shall (if so required by the Issuer or the Indenture Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form and substance satisfactory to the Issuer and the Indenture Trustee, including appropriate tax documentation, duly executed by the Noteholder thereof or its attorney-in-fact duly authorized in writing. (d) All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange. (e) No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith, other than exchanges pursuant to Sections 2.03 or 9.05 not involving any transfer. The preceding provisions of this Section notwithstanding, the Issuer shall not be required to make, and the Note Registrar need not register, transfers or exchanges of any Note (i) selected for redemption or (ii) for a period of 15 days preceding the due date for any payment with respect to such Note. SECTION 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be required by it to hold the Issuer, the Owner Trustee and the Indenture Trustee harmless, then, in the absence of notice to the Owner Trustee, the Note Registrar or the Indenture Trustee that such Note has been acquired by a "protected purchaser" (as contemplated by Article Eight of the UCC), and provided that the requirements of Section 8-405 of the UCC are met, the Owner Trustee shall execute, on behalf of the Issuer, and upon receipt of a Issuer Request the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note; provided, however, that if any such destroyed, lost or stolen Note (but not a mutilated Note) shall have become or within seven days shall become due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so due or payable or upon the Redemption Date without the surrender thereof. If, after the delivery of such replacement Note or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence, a "protected purchaser" (as contemplated by Article Eight of the UCC) of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was Indenture 5 delivered or any assignee of such Person, except a "protected purchaser" (as contemplated by Article Eight of the UCC), and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith. Upon the issuance of any replacement Note under this Section, the Issuer or the Indenture Trustee may require the payment by the related Noteholder of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee or the Note Registrar) connected therewith. Every replacement Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes. SECTION 2.06 Persons Deemed Owners. Prior to due presentment for registration of transfer of any Note, the Issuer, the Indenture Trustee and their respective agents may treat the Person in whose name any Note is registered (as of the date of determination) as the owner of such Note for the purpose of receiving payments of principal of and interest, if any, on such Note and for all other purposes whatsoever, and none of the Issuer, the Indenture Trustee or any of their respective agents shall be affected by notice to the contrary. SECTION 2.07 Cancellation. All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes may be held or disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuer shall direct by a Issuer Order that they be destroyed or returned to it; provided, that such Issuer Order is timely and that such Notes have not been previously disposed of by the Indenture Trustee. SECTION 2.08 Release of Collateral. Subject to Section 11.01 and the terms of the Basic Documents, the Indenture Trustee shall release property from the Lien of this Indenture only upon receipt of a Issuer Request, accompanied by an Officer's Certificate, an Opinion of Counsel and Independent Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or Indenture 6 an Opinion of Counsel in lieu of such Independent Certificates to the effect that the TIA does not require any such Independent Certificates. SECTION 2.09 Book-Entry Notes. Unless otherwise specified, the Notes, upon original issuance, will be issued in the form of one or more typewritten Notes representing the Book-Entry Notes, to be delivered to the Indenture Trustee, as agent for DTC, the initial Clearing Agency, or a custodian therefor, by, or on behalf of, the Issuer. One fully registered Note shall be issued with respect to each $500 million in principal amount of each Class of Notes or such lesser amount as necessary. Such Notes shall initially be registered on the Note Register in the name of Cede & Co., the nominee of the initial Clearing Agency, and no Note Owner shall receive a Definitive Note representing such Note Owner's interest in such Note except as provided in Section 2.11. Unless and until Definitive Notes have been issued to Note Owners pursuant to Section 2.11: (a) the provisions of this Section shall be in full force and effect; (b) the Note Registrar and the Indenture Trustee shall be entitled to deal with the Clearing Agency for all purposes of this Indenture (including the payment of principal of and interest on the Notes and the giving of instructions or directions hereunder) as the sole Noteholder, and shall have no obligation to Note Owners; (c) to the extent that the provisions of this Section conflict with any other provisions of this Indenture, the provisions of this Section shall control; (d) the rights of Note Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between or among such Note Owners and the Clearing Agency or Clearing Agency Participants; pursuant to the Depository Agreement, unless and until Definitive Notes are issued pursuant to Section 2.11, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments of principal of and interest on the Notes to such Clearing Agency Participants; and (e) whenever this Indenture requires or permits actions to be taken based upon instructions or directions of Noteholders evidencing a specified percentage of the Outstanding Amount, the Clearing Agency shall be deemed to represent such percentage only to the extent that it has received instructions to such effect from Note Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in the Notes and has delivered such instructions to the Indenture Trustee. SECTION 2.10 Notices to Clearing Agency. Whenever a notice or other communication to Noteholders is required under this Indenture, unless and until Definitive Notes shall have been issued to Note Owners pursuant to Section 2.11, the Indenture Trustee shall give all such notices and communications specified herein to be given to Noteholders to the Clearing Agency, and shall have no obligation to the Note Owners. SECTION 2.11 Definitive Notes. If (i) (A) the Transferor, the Owner Trustee or the Administrative Agent advises the Indenture Trustee in writing that the Clearing Agency is no Indenture 7 longer willing or able to properly discharge its responsibilities as described in the Depository Agreement and (B) the Transferor, the Indenture Trustee or the Administrative Agent is unable to locate a qualified successor (and if the Administrative Agent has made such determination, the Administrative Agent has given written notice thereof to the Indenture Trustee), (ii) the Transferor, the Indenture Trustee or the Administrative Agent at its option advises the Indenture Trustee in writing that it elects to terminate the book-entry system through the Clearing Agency or (iii) after an Indenture Default, Note Owners representing in the aggregate not less than 51% of the Outstanding Amount, voting as a single class, advise the Indenture Trustee through the Clearing Agency and Clearing Agency Participants in writing that the continuation of a book-entry system through the Clearing Agency or its successor is no longer in the best interest of Note Owners, the Indenture Trustee shall be required to notify all Note Owners, through the Clearing Agency, of the occurrence of such event and the availability through the Clearing Agency of Definitive Notes to Note Owners requesting the same. Upon surrender to the Indenture Trustee by the Clearing Agency of the Note or Notes representing the Book-Entry Notes and the receipt of instructions for re-registration, the Indenture Trustee shall issue Definitive Notes to Note Owners, who thereupon shall become Noteholders for all purposes of this Indenture. None of the Issuer, Owner Trustee, the Note Registrar or the Indenture Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. The Indenture Trustee, the Issuer and the Administrative Agent shall not be liable if the Indenture Trustee or the Administrative Agent is unable to locate a qualified successor Clearing Agency. The Definitive Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of such methods (with or without steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes. From and after the date of issuance of Definitive Notes, all notices to be given to Noteholders shall be mailed to their addresses of record in the Note Register as of the relevant Deposit Date. Such notices shall be deemed to have been given as of the date of mailing. If Definitive Notes are issued and the Indenture Trustee is not the Note Registrar, the Owner Trustee shall furnish or cause to be furnished to the Indenture Trustee a list of the names and addresses of the Noteholders (i) as of each Deposit Date, within five days thereafter and (ii) as of not more than ten days prior to the time such list is furnished, within 30 days after receipt by the Owner Trustee of a written request therefor. SECTION 2.12 Authenticating Agents. Upon the request of the Issuer, the Indenture Trustee shall, and if the Indenture Trustee so chooses the Indenture Trustee may, appoint one or more Authenticating Agents with power to act on its behalf and subject to its direction in the authentication of Notes in connection with issuance, transfers and exchanges under Sections 2.02, 2.04, 2.05 and 9.05, as fully to all intents and purposes as though each such Authenticating Agent had been expressly authorized by such Sections to authenticate such Notes. For all purposes of this Indenture, the authentication of Notes by an Authenticating Agent pursuant to this Section shall be deemed to be the authentication of Notes by the Indenture Trustee. Indenture 8 Any corporation into which any Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, consolidation or conversion to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate trust business of any Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, without the execution or filing of any further act on the part of the parties hereto or such Authenticating Agent or such successor corporation. Any Authenticating Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuer. The Indenture Trustee may at any time terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and the Issuer. Upon receiving such notice of resignation or upon such termination, the Indenture Trustee shall promptly appoint a successor Authenticating Agent and shall give written notice of such appointment to the Issuer. The Indenture Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services and reimbursement for its reasonable expenses relating thereto, and the Indenture Trustee shall be entitled to be reimbursed for all such payments, subject to Section 6.07. The provisions of Sections 2.07 and 6.04 shall be applicable to any Authenticating Agent. SECTION 2.13 The Interest Rate Cap Agreement. (a) On the Closing Date, the Issuer shall execute and deliver the Interest Rate Cap Agreement. (b) Subject to Section 11.19 hereof, the Indenture Trustee shall take all steps necessary to enforce the Issuer's rights under the Interest Rate Cap Agreement, including receiving payments from the Cap Provider when due and exercising the Issuer's rights under the Interest Rate Cap Agreement including, without limitation, if either the long-term senior unsecured debt rating of JPMorgan Chase Bank is downgraded below "A1" by Moody's or "A+" by Standard & Poor's or the short-term debt rating of JPMorgan Chase Bank is reduced below "P-1 by Moody's or below "A-1" by Standard & Poor's, the right to require the Cap Provider to obtain a guarantee of its obligations or to substitute a replacement cap provider (subject to the assumption by the replacement cap provider of the Cap Provider's obligations under the Interest Rate Cap Agreement) within 30 days of the occurrence of such reduction, or in certain circumstances, post collateral, in each case in accordance with the terms of the Interest Rate Cap Agreement. (c) Pursuant to the Interest Rate Cap Agreement, U.S. Bank will be designated calculation agent ("Calculation Agent"), and in such capacity, on each Interest Determination Date, will calculate the interest rate with respect to the Class A-4a Notes. All determinations of interest by the Calculation Agent shall, in the absence of manifest error, be conclusive for all purposes and binding on Class A-4a Noteholders. SECTION 2.14 Tax Treatment. The Issuer has entered into this Indenture, and the Notes will be issued, with the intention that, for federal, state and local income, single business and franchise tax purposes, the Notes will qualify as indebtedness. The Issuer, by entering into Indenture 9 this Indenture, and each Noteholder, by its acceptance of a Note (and each Note Owner by its acceptance of an interest in the applicable Book-Entry Note), agrees to treat the Notes for federal, state and local income, single business and franchise tax purposes as indebtedness. ARTICLE THREE COVENANTS SECTION 3.01 Payments to Noteholders, Trust Certificateholders and Transferor. The Issuer shall duly and punctually (i) pay the principal of and interest on the Notes in accordance with the terms of the Notes and this Indenture and (ii) cause the Servicer to direct the Indenture Trustee to release from the Note Distribution Account all other amounts distributable or payable from the Owner Trust Estate (including distributions to be made to the Trust Certificateholders on any Payment Date) under the Trust Agreement and Servicing Agreement. Without limiting the foregoing, subject to Section 8.04, the Issuer shall cause the Servicer to direct the Indenture Trustee to apply all amounts on deposit in the Note Distribution Account on each Payment Date that have been deposited therein for the benefit of the Notes. Amounts properly withheld under the Code by any Person from a payment to any Noteholder or Trust Certificateholder of interest or principal (or other amounts) shall be considered to have been paid by the Issuer to such Noteholder or Trust Certificateholder for all purposes of this Indenture. SECTION 3.02 Maintenance of Office or Agency. The Note Registrar, on behalf of the Issuer, shall maintain at the Corporate Trust Office or at such other location in the Borough of Manhattan, The City of New York, chosen by the Note Registrar, acting for the Issuer, an office or agency where Notes may be surrendered for registration of transfer or exchange, and where notices to and demands upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands. The Issuer shall give prompt written notice to the Indenture Trustee of the location, and of any change in the location, of any such office or agency. If at any time the Issuer shall fail to maintain any such office or agency or shall fail to furnish the Indenture Trustee with the address thereof, such surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee as its agent to receive all such surrenders, notices and demands. SECTION 3.03 Money for Payments to be Held in Trust. As provided in Sections 5.04(b) and 8.04, all payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from the Note Distribution Account and Reserve Account shall be made on behalf of the Issuer by the Indenture Trustee or by another Paying Agent, and no amounts so withdrawn therefrom for payments on Notes shall be paid over to the Issuer except as provided in this Section. All payments of amounts due and payable with respect to any Notes or Trust Certificates that are to be made from amounts withdrawn from the Note Distribution Account or Reserve Account pursuant to Sections 3.01, 4.02 and 4.03 shall be made on behalf of the Issuer by the Indenture Trustee or by a Paying Agent, and no amounts so withdrawn from such accounts for payments of Notes or Trust Certificates shall be paid over to the Issuer or the Owner Trustee, except as provided by this Section. Indenture 10 On each Payment Date and Redemption Date, the Issuer shall deposit or cause to be deposited (including the provision of instructions to the Indenture Trustee to make any required withdrawals from the Reserve Account) into the Note Distribution Account an aggregate sum sufficient to pay the amounts then becoming due under the Notes, and the Paying Agent shall hold such sum in trust for the benefit of the Persons entitled thereto and (unless the Paying Agent is the Indenture Trustee) shall promptly notify the Indenture Trustee of any failure by the Issuer to effect such deposit. The Indenture Trustee, as Paying Agent, hereby agrees with the Issuer that it will, and the Issuer will cause each Paying Agent other than the Indenture Trustee, as a condition to its acceptance of its appointment as Paying Agent, to execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee, subject to the provisions of this Section, that such Paying Agent shall: (a) hold all sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided; (b) give the Indenture Trustee notice of any default by the Issuer of which it has actual knowledge (or any other obligor upon the Notes, if any) in the making of any payment required to be made with respect to the Notes; (c) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all sums so held in trust by such Paying Agent; (d) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee all sums held by it in trust for the payment of Notes if at any time it ceases to meet the standards required to be met by a Paying Agent at the time of its appointment; and (e) comply with all requirements of the Code with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith. The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, by Issuer Order direct any Paying Agent to pay to the Indenture Trustee all sums held in trust by such Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts as those upon which such sums were held by such Paying Agent; and upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such money. Subject to applicable laws with respect to escheat of funds, any money held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed after such amount has become due and payable and after the Indenture Trustee has taken the steps described in this paragraph shall be discharged from such Indenture 11 trust and be paid to Children's Hospital Los Angeles upon presentation thereto of an Issuer, and the related Noteholder shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, and all liability of the Indenture Trustee or such Paying Agent with respect to such trust money shall thereupon cease. If any Noteholder shall not surrender its Notes for retirement within six months after the date specified in the written notice of final payment described in Section 8.04(d), the Indenture Trustee will give a second written notice to the registered Noteholders that have not surrendered their Notes for final payment and retirement. If within one year after such second notice any Notes have not been surrendered, the Indenture Trustee shall, at the expense and direction of the Issuer, cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be paid to Children's Hospital Los Angeles. The Indenture Trustee shall also adopt and employ, at the expense and direction of the Issuer, any other reasonable means of notification of such repayment specified by the Issuer or the Administrative Agent. SECTION 3.04 Existence. The Issuer shall keep in full effect its existence, rights and franchises as a trust under the laws of the State of Delaware (unless it becomes, or any successor Issuer hereunder is or becomes, organized under the laws of any other state or of the United States, in which case the Issuer shall keep in full effect its existence, rights and franchises under the laws of such other jurisdiction) and shall obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Indenture, the Notes, the Collateral and each other instrument or agreement included in the Trust Estate. SECTION 3.05 Protection of Trust Estate. The Issuer intends the security interest Granted pursuant to this Indenture in favor of the Indenture Trustee on behalf of the Noteholders to be prior to all other liens in respect of the Trust Estate, and the Issuer shall take all actions necessary to obtain and maintain, for the benefit of the Indenture Trustee on behalf of the Noteholders, a first lien on and a first priority, perfected security interest in the Trust Estate. The Issuer shall from time to time execute and deliver all such supplements and amendments hereto and all such financing statements, continuation statements, instruments of further assurance and other instruments, all as prepared by the Administrative Agent and delivered to the Issuer, and shall take such other action necessary or advisable to: (a) Grant more effectively all or any portion of the Trust Estate; (b) maintain or preserve the lien and security interest (and the priority thereof) created by this Indenture or carry out more effectively the purposes hereof; (c) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture; (d) enforce any of the Collateral (including all rights under the Interest Rate Cap Agreement); Indenture 12 (e) preserve and defend title to the Trust Estate and the rights of the Indenture Trustee and the Noteholders in the Trust Estate against the claims of all Persons; or (f) pay all taxes or assessments levied or assessed upon the Trust Estate when due. The Issuer hereby designates the Indenture Trustee its agent and attorney-in-fact to execute all financing statements, continuation statements or other instruments required to be executed pursuant to this Section. SECTION 3.06 Opinions as to Trust Estate. (a) On the Closing Date, the Issuer shall furnish or cause to be furnished to the Indenture Trustee, an Opinion of Counsel to the effect that, in the opinion of such counsel, the execution and delivery of the Indenture and the delivery for value to and taking of physical possession in the State of New York by the Indenture Trustee of the 2004-A SUBI Certificate, endorsed or registered in the name of the Indenture Trustee, will create a valid first priority perfected security interest, for the benefit of the Indenture Trustee on behalf of the holders of the Notes, in the Issuer's right, title and interest in the 2004-A SUBI Certificate. (b) Upon written request by the Indenture Trustee, on or before June 30 of each calendar year, beginning with June 30, 2005, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel to the effect that in the opinion of such counsel, either (i) all financing statements and continuation statements have been executed and filed that are necessary to continue the lien and security interest of the Indenture Trustee in the Collateral and reciting the details of such filings or referring to prior Opinions of Counsel in which such details are given, or (ii) no such action is necessary to continue such lien and security interest. SECTION 3.07 Performance of Obligations; Servicing of the 2004-A SUBI Assets. (a) The Issuer shall not take any action and shall use its best efforts not to permit any action to be taken by others, including the Administrative Agent, that would release any Person from any of such Person's material covenants or obligations under any instrument or agreement included in the Trust Estate or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in the Basic Documents or such other instrument or agreement. (b) The Issuer may contract with other Persons, to assist it in performing its duties under this Indenture, and any performance of such duties by a Person identified to the Indenture Trustee in an Officer's Certificate of the Issuer shall be deemed to be action taken by the Issuer. Initially, the Issuer has contracted with the Administrative Agent, and the Administrative Agent has agreed, to assist the Issuer in performing its duties under this Indenture. (c) The Issuer shall, and, shall cause the Administrative Agent and the Servicer to, punctually perform and observe all of its obligations and agreements contained in this Indenture, the other Basic Documents and the instruments and agreements included in the Trust Estate, including filing or causing to be filed all UCC financing statements and continuation statements Indenture 13 required to be filed by the terms of this Indenture and the other Basic Documents in accordance with and within the time periods provided for herein and therein. Except as otherwise expressly provided therein, the Issuer, as a party to the Basic Documents and as Holder of the 2004-A SUBI Certificate, shall not, and shall cause the Servicer and the Administrative Agent not to, modify, amend, supplement, waive or terminate any Basic Document or any provision thereof without the consent of the Indenture Trustee or the Noteholders of at least a Majority Interest of the Notes or such greater percentage as may be specified in the particular provision or Basic Document. (d) If the Indenture Trustee or an Authorized Officer of the Issuer shall have knowledge of the occurrence of a Servicer Default, such entity shall promptly notify the other entity and each Rating Agency thereof, and shall specify in such notice the action, if any, the other entity is taking in respect of such default. If a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Servicing Agreement with respect to the 2004-A SUBI Assets, the Issuer shall take all reasonable steps available to it to remedy such failure. Upon the occurrence of a Servicer Default with respect to the 2004-A SUBI or the Trust Assets allocated thereto, the Indenture Trustee may terminate all of the rights and obligations of the Servicer with respect to the 2004-A SUBI and the Trust Assets allocated thereto only, and a successor Servicer shall be appointed pursuant to the Servicing Agreement. (e) Upon any termination of the Servicer's rights and powers or resignation of the Servicer pursuant to the Servicing Agreement, the Issuer or the Indenture Trustee shall promptly notify the other entity thereof. As soon as a successor Servicer is appointed pursuant to the Servicing Agreement, the Issuer or the Indenture Trustee shall notify the other entity of such appointment, specifying in such notice the name and address of such successor Servicer. SECTION 3.08 Negative Covenants. So long as any Notes are Outstanding, the Issuer shall not: (a) engage in any activities other than financing, acquiring, owning, pledging and managing the 2004-A SUBI Certificate as contemplated by this Indenture and the other Basic Documents; (b) except as expressly permitted herein and in the other Basic Documents, sell, transfer, exchange or otherwise dispose of any of the assets of the Issuer, including those assets included in the Trust Estate, unless directed to do so by the Indenture Trustee; (c) claim any credit on or make any deduction from the principal or interest payable in respect of the Notes (other than amounts properly withheld from such payments under the Code or applicable state law) or assert any claim against any present or former Noteholder by reason of the payment of the taxes levied or assessed upon any part of the Trust Estate; (d) except as may be permitted expressly hereby (i) permit the validity or effectiveness of this Indenture to be impaired, permit the lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged or permit any Person to be released from any covenants or obligations under this Indenture, except as may be expressly permitted hereby, (ii) permit any Indenture 14 lien, charge, excise, claim, security interest, mortgage or other encumbrance (other than the lien of this Indenture) to be created on or extend to or otherwise arise upon or burden the Trust Estate, any part thereof or any interest therein or the proceeds thereof (other than tax liens, mechanics' liens and other liens that arise by operation of law, in each case on any 2004-A SUBI Asset and arising solely as a result of an action or omission of the related Lessee) or (iii) except as otherwise provided in the Basic Documents, permit the lien of this Indenture not to constitute a valid first priority (other than with respect to any such tax, mechanics' or other lien) security interest in the Trust Estate; (e) incur, assume or guarantee any indebtedness other than indebtedness incurred in accordance with the Basic Documents; or (f) except as otherwise permitted by the Basic Documents, dissolve or liquidate in whole or in part. SECTION 3.09 Trust Certificates and Reports. (a) The Issuer shall deliver to the Indenture Trustee and each Rating Agency, on or before the last day of the third month after the end of each fiscal year of the Issuer, beginning with June 30, 2005, an Officer's Certificate stating, as to the Authorized Officer signing such Officer's Certificate, that: (i) a review of the activities of the Issuer during the 12 months of the prior fiscal year of the Issuer ended such calendar year (or such shorter period in the case of the first such Officer's Certificate) and of the Issuer's performance under this Indenture has been made under such Authorized Officer's supervision; (ii) to the best of such Authorized Officer's knowledge, based on such review: (A) all the dispositions of Collateral and cash payments out of the Accounts described in clauses (A) and (B) of Section 11.01(b)(v) that occurred during the preceding 12 month period (or shorter period in the case of the first such Officer's Certificate) were made in the ordinary course of the Issuer's business and the proceeds thereof were applied in accordance with the Basic Documents; and (B) the Issuer has complied with all conditions and covenants under this Indenture throughout 12 month period of the prior fiscal year of the Issuer ended such calendar year (or such shorter period in the case of the first such Officer's Certificate), or, if there has been a Default in the compliance of any such condition or covenant, specifying each such Default known to such Authorized Officer and the nature and status thereof. (b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on March 31 of each year unless the fiscal year of the Servicer ends on some other date, in which case, the fiscal year of the Issuer shall be the same as the fiscal year of the Servicer Indenture 15 SECTION 3.10 Restrictions on Certain Other Activities. Except as otherwise provided in the Basic Documents, unless and until the Issuer shall have been released from its duties and obligations hereunder, the Issuer shall not: (i) engage in any activities other than financing, acquiring, owning, leasing (subject to the lien of this Indenture), pledging and managing the 2004-A SUBI Certificate in the manner contemplated by the Basic Documents and activities incidental thereto; (ii) issue, incur, assume, guarantee or otherwise become liable, directly or indirectly, for any indebtedness; (iii) make any loan, advance or credit to, guarantee (directly or indirectly or by an instrument having the effect of assuring another's payment or performance on any obligation or capability of so doing or otherwise), endorse or otherwise become contingently liable, directly or indirectly, in connection with the obligations, stocks or dividends of, or own, purchase, repurchase or acquire (or agree contingently to do so) any stock, obligations, assets or securities of, or any other interest in, or make any capital contribution to, any other Person; or (iv) make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty). SECTION 3.11 Notice of Defaults. The Issuer agrees to give the Indenture Trustee and each Rating Agency prompt written notice of each Indenture Default hereunder on the part of the Administrative Agent and each Cap Event of Default on the part of the Cap Provider under the Interest Rate Cap Agreement. In addition, on (i) any Payment Date on which the Issuer has not received from the Cap Provider any amount due from the Cap Provider on such Payment Date, (ii) the Business Day following any such Payment Date if the Issuer has not yet received such amount due from the Cap Provider or (iii) the Business Day on which such failure to pay by the Cap Provider becomes a Cap Event of Default under the Interest Rate Cap Agreement, the Issuer shall give immediate notice thereof to the Cap Provider, the Indenture Trustee and each Rating Agency. SECTION 3.12 Further Instruments and Acts. Upon request of the Indenture Trustee, the Issuer shall execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture. SECTION 3.13 Delivery of the 2004-A SUBI Certificate. On the Closing Date, the Issuer shall deliver or cause to be delivered to the Indenture Trustee as security for its obligations hereunder, the 2004-A SUBI Certificate. The Indenture Trustee shall take possession of the 2004-A SUBI Certificate in the Borough of Manhattan in the City of New York and shall at all times during the period of this Indenture maintain custody of the 2004-A SUBI Certificate in the Borough of Manhattan in the City of New York. SECTION 3.14 Compliance with Laws. The Issuer shall comply with the requirements of all applicable laws, the non-compliance with which would, individually or in the aggregate, materially and adversely affect the ability of the Issuer to perform its obligations under the Notes, this Indenture or any other Basic Document. SECTION 3.15 Issuer May Consolidate, etc., Only on Certain Terms. (a) The Issuer shall not consolidate or merge with or into any other Person, unless: Indenture 16 (i) the Person (if other than the Issuer) formed by or surviving such consolidation or merger shall be a Person organized and existing under the laws of the United States of America or any State or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the duty to make due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein; (ii) immediately after giving effect to such transaction, no Default or Indenture Default shall have occurred and be continuing; (iii) the Issuer shall have provided each Rating Agency 10 days' prior written notice thereof, and no Rating Agency shall have notified the Indenture Trustee, the Administrative Agent or the Owner Trustee that such transaction might or would result in the removal or reduction of the rating then assigned thereby to any Class of Notes; (iv) the Issuer shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such transaction will not (A) affect the treatment of the Notes as debt for federal income tax purposes, (B) be deemed to cause a taxable exchange of the Notes for federal income tax purposes or (C) cause the Issuer, the Transferor or the Titling Trust to be taxable as an association (or publicly traded partnership) taxable as a corporation for federal income tax purposes; (v) any action that is necessary to maintain each lien and security interest created by the Trust Agreement or this Indenture shall have been taken; and (vi) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each stating that such consolidation or merger and any related supplemental indenture complies with this Article III and that all conditions precedent provided in this Indenture relating to such transaction have been complied with (including any filing required by the Exchange Act). (b) The Issuer shall not convey or transfer any of its properties or assets, including those included in the Trust Estate, to any Person, unless: (i) the Person that acquires by conveyance or transfer such properties and assets of the Issuer shall (A) be a United States citizen or a Person organized and existing under the laws of the United States of America or any state or the District of Columbia, (B) expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the duty to make due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein, (C) expressly agrees by means of such supplemental indenture that all right, title and interest so conveyed or transferred shall be subject and subordinate to the rights of Holders of the Notes, (D) unless otherwise Indenture 17 provided in such supplemental indenture, expressly agrees to indemnify, defend and hold harmless the Issuer, the Owner Trustee and the Indenture Trustee against and from any loss, liability or expense arising under or related to this Indenture and the Notes, and (E) expressly agrees by means of such supplemental indenture that such Person (or if a group of Persons, then one specified Person) shall make all filings that counsel satisfactory to such purchaser or transferee and the Indenture Trustee determines must be made with (1) the Commission (and any other appropriate Person) required by the Exchange Act or the appropriate authorities in any state in which the Notes have been sold pursuant to any qualification or exemption under the securities or "blue sky" laws of such state, in connection with the Notes or (2) the Internal Revenue Service or the relevant state or local taxing authorities of any jurisdiction; (ii) immediately after giving effect to such transaction, no Default or Indenture Default shall have occurred and be continuing; (iii) the Issuer shall have provided each Rating Agency 10 days' prior written notice thereof, no Rating Agency shall have notified the Indenture Trustee, the Administrative Agent or the Owner Trustee that such transaction might or would result in the removal or reduction of the rating then assigned thereby to any Class of Notes; (iv) the Issuer shall have received an Opinion of Counsel (and shall have delivered copies thereof to the Indenture Trustee) to the effect that such transaction will not (A) affect the treatment of the Notes as debt for federal income tax purposes, (B) be deemed to cause a taxable exchange of the Notes for federal income tax purposes or (C) cause the Issuer, the Transferor or the Titling Trust to be taxable as an association (or publicly traded partnership) taxable as a corporation for federal income tax purposes; (v) any action that is necessary to maintain each lien and security interest created by the Trust Agreement or this Indenture shall have been taken; and (vi) the Issuer shall have delivered to the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each stating that such conveyance or transfer and such supplemental indenture comply with this Article III and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing required by the Exchange Act). SECTION 3.16 Successor or Transferee. (a) Upon any consolidation or merger of the Issuer in accordance with Section 3.15(a), the Person formed by or surviving such consolidation or merger (if other than the Issuer) shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture with the same effect as if such Person had been named as the Issuer herein. (b) Upon a conveyance or transfer of all the assets and properties of the Issuer pursuant to Section 3.15(b), Nissan Auto Lease Trust 2004-A will be released from every covenant and agreement of this Indenture to be observed or performed on the part of the Issuer with respect to Indenture 18 the Notes and the Trust Certificates immediately upon the delivery of written notice to the Indenture Trustee stating that Nissan Auto Lease Trust 2004-A is to be so released. SECTION 3.17 Removal of the Administrative Agent. So long as any Notes are Outstanding, the Issuer shall not remove the Administrative Agent without cause unless so instructed by the Owner Trustee or the Indenture Trustee and unless each Rating Agency shall have received 10 days' written notice thereof and shall not have notified the Indenture Trustee, the Administrative Agent or the Owner Trustee that such removal might or would result in the removal or reduction of the rating, if any, then assigned thereby to any Class of Notes or the Trust Certificates. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 4.01 Satisfaction and Discharge of Indenture. This Indenture shall discharge with respect to the Collateral securing the Notes and cease to be of further effect with respect to the Notes except as to (a) rights of registration of transfer and exchange, (b) substitution of mutilated, destroyed, lost or stolen Notes, (c) rights of Noteholders to receive payments of principal thereof and interest thereon, (d) Sections 3.03, 3.04, 3.05, 3.08, 3.10(i), 3.10(ii) and 3.15, (e) the rights, obligations and immunities of the Indenture Trustee hereunder (including the rights of the Indenture Trustee under Section 6.07 and the obligations of the Indenture Trustee under Sections 3.03 and 4.02) and (f) the rights of Noteholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand and at the expense and on behalf of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when: (i) either (A) all Notes theretofore authenticated and delivered (other than (1) Notes that have been mutilated, destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.05 and (2) Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter paid to the Persons entitled thereto or discharged from such trust, as provided in Section 3.03) have been delivered to the Indenture Trustee for cancellation; or (B) all Notes not theretofore delivered to the Indenture Trustee for cancellation (1) have become due and payable, (2) will become due and payable on the applicable Note Final Scheduled Payment Date within one year or (3) are to be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption by the Indenture Trustee in the name, and at the expense, of the Issuer, and the Issuer, in the case of clauses (1), (2) or (3) above, has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or direct obligations of or obligations guaranteed by the United States (that will mature prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to pay and discharge the entire indebtedness on such Notes (including interest and any fees due and payable to the Owner Trustee or the Indenture Trustee) not theretofore delivered to the Indenture Trustee for cancellation, when due, to the applicable Note Final Scheduled Indenture 19 Payment Date for each Class, or to the Redemption Date (if Notes shall have been called for redemption pursuant to Section 10.01), as the case may be; (ii) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and (iii) the Issuer has delivered to the Indenture Trustee an Officer's Certificate, (if required by the TIA or the Indenture Trustee) an Opinion of Counsel and (if required by the TIA or the Indenture Trustee) an Independent Certificate from a firm of certified public accountants, each meeting the applicable requirements of Section 11.01 and, subject to Section 11.02, stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with and stating that the Rating Agency Condition has been satisfied. SECTION 4.02 Application of Trust Money. All monies deposited with the Indenture Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent, as the Indenture Trustee may determine, to the Noteholders of the particular Notes for the payment or redemption of which such monies have been deposited with the Indenture Trustee of all sums due and to become due thereon for principal and interest. Such monies need not be segregated from other funds except to the extent required herein or in the Servicing Agreement or as required by law. SECTION 4.03 Repayment of Monies Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to the Notes, all monies then held by any Paying Agent other than the Indenture Trustee under the provisions of this Indenture with respect to such Notes shall, upon demand of the Issuer, be paid to the Indenture Trustee to be held and applied according to Section 3.03 and such Paying Agent shall thereupon be released from all further liability with respect to such monies. ARTICLE FIVE INDENTURE DEFAULT SECTION 5.01 Indenture Defaults. Any one of the following events (whatever the reason for such Indenture Default and whether it shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) shall constitute a default under this Indenture (each, an "Indenture Default"): (a) default in the payment of any interest on any Note when the same becomes due and payable, and such default shall continue for a period of five days or more; (b) default in the payment of principal of any Note on the related Note Final Scheduled Payment Date or the Redemption Date; Indenture 20 (c) a termination of the Interest Rate Cap Agreement without the execution by the Issuer and a replacement Cap Provider of a replacement Interest Rate Cap Agreement and acceptable to the Issuer and Indenture Trustee and the assignment of such replacement Interest Rate Cap Agreement to the Indenture Trustee; (d) default in the observance or performance of any covenant or agreement of the Issuer made in this Indenture (other than a covenant or agreement, a default in the observance or performance of which is elsewhere in this Section specifically dealt with), or any representation or warranty of the Issuer made in this Indenture or in any certificate or other writing delivered pursuant hereto or in connection herewith proving to have been inaccurate in any material respect as of the time when the same shall have been made, which default or inaccuracy materially and adversely affects the interests of the Noteholders and such default or inaccuracy shall continue or not be cured, or the circumstance or condition in respect of which such misrepresentation or warranty was inaccurate shall not have been eliminated or otherwise cured, for a period of 60 days or in the case of a materially inaccurate representation or warranty, 30 days, after there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by Noteholders representing at least 25% of the Outstanding Amount, voting as single class, a written notice specifying such default or inaccurate representation or warranty and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; (e) the filing of a petition seeking entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Issuer or any substantial part of the Trust Estate in an involuntary case under any applicable federal or state bankruptcy, liquidation, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of the Trust Estate, or ordering the winding up or liquidation of the Issuer's affairs, and such proceeding shall remain unstayed, undismissed and in effect for a period of 90 consecutive days or immediately upon entry of any such decree or order; or (f) the commencement by the Issuer of a voluntary case under any applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect or the consent by the Issuer to the entry of an order for relief in an involuntary case under any such law, the consent by the Issuer to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Issuer or for any substantial part of the Trust Estate, the making by the Issuer of any general assignment for the benefit of creditors, the failure by the Issuer generally to pay its debts as such debts become due or the taking of action by the Issuer in furtherance of any of the foregoing. The Issuer shall deliver to the Indenture Trustee, each Rating Agency, each Noteholder and the Cap Provider (except as to clause (c)) within five Business Days after the occurrence thereof written notice in the form of an Officer's Certificate of any event that with the giving of notice and the lapse of time would become an Indenture Default under clauses (c), (d) or (e), its status and what action the Issuer is taking or proposes to take with respect thereto. Indenture 21 Subject to the provisions herein relating to the duties of the Indenture Trustee, if an Indenture Default occurs and is continuing, the Indenture Trustee shall be under no obligation to exercise any of the rights or powers under this Indenture at the request or direction of any Noteholder, if the Indenture Trustee reasonably believes that it will not be adequately indemnified against the costs, expenses and liabilities that might be incurred by it in complying with such request. Subject to such provisions for indemnification and certain limitations contained herein, Noteholders holding not less than a Majority Interest of the Notes voting as a single class shall have the right to direct the time, method and place of conducting any proceeding or any remedy available to the Indenture Trustee or exercising any trust power conferred on the Indenture Trustee. SECTION 5.02 Acceleration of Maturity; Waiver of Indenture Default. If an Indenture Default should occur and be continuing, the Indenture Trustee or Noteholders representing a Majority Interest voting as a single class may declare the principal of the Notes to be immediately due and payable. Upon such declaration, the Indenture Trustee shall promptly provide written notice to each Rating Agency. Such declaration may be rescinded by Noteholders holding a Majority Interest voting as a single class before a judgment or decree for payment of the amount due has been obtained by the Indenture Trustee if (a) the Issuer has deposited with the Indenture Trustee an amount sufficient to pay (i) all interest on and principal of the Notes and all other amounts that would then be due hereunder as if the Indenture Default giving rise to such declaration had not occurred and (ii) all amounts advanced by the Indenture Trustee and its costs and expenses and (b) all Indenture Defaults (other than the nonpayment of principal of the Notes that has become due solely by such acceleration) have been cured or waived. Prior to the acceleration of the maturity of the Notes as provided in this Section 5.02, Noteholders holding not less than a Majority Interest of the Notes voting as a single class may waive any past Indenture Default and its consequences except an Indenture Default (i) in payment of principal of or interest on the Notes or (ii) in respect of a covenant or provision hereof that cannot be modified or amended without the consent of each Noteholder. In the case of any such waiver, the Issuer, the Indenture Trustee and the Noteholders shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent or other Indenture Default or impair any right consequent thereto. Upon any such waiver, such Indenture Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Indenture Default arising therefrom shall be deemed to have been cured and not to have occurred for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Indenture Default or impair any right consequent thereto. If the Notes have been declared due and payable following an Indenture Default, the Indenture Trustee may institute proceedings to collect amounts due, exercise remedies as a secured party (including foreclosure or sale of the Trust Estate) or elect to maintain the Trust Estate and continue to apply the proceeds from the Trust Estate as if there had been no declaration of acceleration. Any sale of the Trust Estate by the Indenture Trustee will be subject to the terms and conditions of Section 5.04. Indenture 22 SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee. (a) The Issuer covenants that if there is a default in the payment of (i) any interest on the Notes when the same becomes due and payable, and such default continues for a period of five days or (ii) the principal of any Notes at the related Note Final Scheduled Payment Date or the Redemption Date, the Issuer shall, upon demand of the Indenture Trustee, pay to the Indenture Trustee, for the benefit of such Noteholders, the entire amount then due and payable on such Notes for principal and interest, with interest on the overdue principal, and, to the extent payment at such rate of interest shall be legally enforceable, upon overdue installments of interest, at the Overdue Interest Rate and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents, attorneys and counsel. (b) In case the Issuer shall fail forthwith to pay amounts described in Section 5.03(a) upon demand, the Indenture Trustee, in its own name and as trustee of an express trust, may institute a Proceeding for the collection of the sums so due and unpaid, and may prosecute such Proceeding to judgment or final decree, and may enforce the same against the Issuer or other obligor upon such Notes and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Notes, wherever situated, the monies adjudged or decreed to be payable. (c) If an Indenture Default occurs and is continuing, the Indenture Trustee may, in its discretion, proceed to protect and enforce its rights and the rights of the Noteholders, by such appropriate Proceedings as the Indenture Trustee shall deem most effective to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy or legal or equitable right vested in the Indenture Trustee by this Indenture or by law. (d) In case there shall be pending, relative to the Issuer or any other obligor upon the Notes or any Person having or claiming an ownership interest in the Trust Estate, Proceedings under the Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor or Person, or in case of any other comparable judicial Proceedings relative to the Issuer or other obligor upon the Notes, or to the creditors or property of the Issuer or such other obligor, the Indenture Trustee, irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such Proceedings or otherwise: (i) to file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and Indenture 23 each predecessor Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances and disbursements made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence or bad faith) and of the Noteholders allowed in such Proceedings; (ii) unless prohibited by applicable law and regulations, to vote on behalf of the Noteholders in any election of a trustee, a standby trustee or Person performing similar functions in any such Proceedings; to collect and receive any monies or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders or the Cap Provider and the Indenture Trustee on their behalf; and (iii) to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Noteholders allowed in any judicial proceedings relative to the Issuer, its creditors and its property; and any trustee, receiver, liquidator, custodian or other similar official in any such Proceeding is hereby authorized by each Noteholder to make payments to the Indenture Trustee and, if the Indenture Trustee shall consent to the making of payments directly to such Noteholders to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred and all advances and disbursements made by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence or bad faith, and any other amounts due the Indenture Trustee under Section 6.07. (e) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder or to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person. (f) All rights of action and of asserting claims under this Indenture, or under the Notes or the Interest Rate Cap Agreement, may be enforced by the Indenture Trustee without the possession of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, advances, disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel shall be for the ratable benefit of the Noteholders in respect of which such judgment has been recovered. (g) In any Proceedings brought by the Indenture Trustee (and also any Proceedings involving the interpretation of any provision of this Indenture to which the Indenture Trustee shall be a party), the Indenture Trustee shall be held to represent all the Noteholders, and it shall not be necessary to make any Noteholder a party to any such Proceedings. Indenture 24 SECTION 5.04 Remedies; Priorities. (a) If an Indenture Default shall have occurred and be continuing, the Indenture Trustee may do one or more of the following (subject to Sections 5.02 and 5.05): (i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Issuer, the Cap Provider and any other obligor upon such Notes monies adjudged due; (ii) institute Proceedings from time to time for the complete or partial foreclosure of this Indenture with respect to the Trust Estate; (iii) exercise any remedies of a secured party under the UCC and take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Noteholders; and (iv) subject to Section 5.17, after an acceleration of the maturity of the Notes pursuant to Section 5.02, sell the Trust Estate or any portion thereof or rights or interest therein, at one or more public or private sales called and conducted in any manner permitted by law; provided, however, that the Indenture Trustee may not sell or otherwise liquidate the Trust Estate following an Indenture Default, other than an Indenture Default described in Section 5.01 (a) or (b), unless (A) Noteholders holding 100% of the Outstanding Amount consent thereto, (B) the proceeds of such sale are sufficient to discharge in full all amounts then due and unpaid upon all outstanding Notes or (C) the Indenture Trustee determines that the Trust Estate will not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable and the Indenture Trustee obtains the consent of Noteholders holding not less than 66 2/3% of the Outstanding Amount, voting together as a single class; and provided further, that the Indenture Trustee may not sell the Trust Estate, unless it shall first have obtained an Opinion of Counsel that such sale will not cause the Titling Trust or an interest therein or portion thereof to be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes. In determining such sufficiency or insufficiency with respect to clauses (B) and (C) of the preceding sentence, the Indenture Trustee may but need not obtain (at the expense of the Issuer) and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose. (b) If the Indenture Trustee collects any money or property pursuant to this Article Five upon sale of the Trust Estate, it shall pay out such money or property held as Collateral (together with available monies on deposit in the Reserve Account) and deposited in the Note Distribution Account pursuant to Section 12.05(b) of the SUBI Trust Agreement, after giving effect to the Indenture 25 distributions set forth in such Section, for the benefit of the Securityholders in the following order: (i) to the Noteholders for the payments of interest which is due and unpaid on the Notes (including any overdue interest, and to the extent permitted under applicable law, interest on any overdue interest at the applicable Overdue Interest Rate); (ii) first, to the Class A-1 Noteholders, on a pro rata basis, in payment of the principal amount due and unpaid on the Class A-1 Notes (until the Class A-1 Notes have been paid in full), and second, to the Holders of the other Notes in payment of the principal amount due and unpaid on the Class A-2 Notes, the Class A-3, the Class A-4a Notes and the Class A-4b Notes pro rata (based on the amount due and unpaid of each such Class), until all Notes have been paid in full; (iii) to the Certificate Distribution Account for distribution to the Trust Certificateholders for amounts due and unpaid in respect of the principal amount of the Trust Certificates, until the Trust Certificates have been paid in full; and (iv) any remaining amounts to the Transferor. (c) The Indenture Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this Section. At least 15 days before such record date, the Issuer shall mail to each Noteholder and the Indenture Trustee a notice that states the record date, the payment date and the amount to be paid. SECTION 5.05 Optional Preservation of the Trust Estate. If the Notes have been declared to be due and payable under Section 5.02 following an Indenture Default and such declaration and its consequences have not been rescinded and annulled, the Indenture Trustee may, but need not, elect to maintain possession of the Trust Estate and continue to apply the proceeds thereof in accordance with Sections 3.01 and 8.04. It is the intent of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of and interest on the Notes, and the Indenture Trustee shall take such intent into account when determining whether or not to maintain possession of the Trust Estate. In determining whether to maintain possession of the Trust Estate, the Indenture Trustee may but need not obtain (at the expense of the Issuer) and rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Trust Estate for such purpose. SECTION 5.06 Limitation of Suits. (a) No Holder of any Note shall have any right to institute any Proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (i) such Noteholder previously has given to the Indenture Trustee written notice of a continuing Indenture Default, (ii) Noteholders holding not less than 25% of the Outstanding Amount, voting together as a single class, have made written request to the Indenture Trustee to institute such Proceeding in respect of such Indenture Default in its own Indenture 26 name as Indenture Trustee, (iii) such Noteholder has offered the Indenture Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in complying with such request, (iv) the Indenture Trustee has for 60 days after receipt of such notice failed to institute such Proceedings and (v) no direction inconsistent with such written request has been given to the Indenture Trustee during such 60-day period by Noteholders holding at least a Majority Interest, voting together as a single class. No Noteholder or group of Noteholders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholders or to obtain or to seek to obtain priority or preference over any other Noteholder or to enforce any right under this Indenture, except in the manner herein provided. In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Noteholders, each representing less than a Majority Interest of the Notes, the Indenture Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture. (b) No Noteholder shall have any right to vote except as provided pursuant to this Indenture and the Notes, nor any right in any manner to otherwise control the operation and management of the Issuer. SECTION 5.07 Unconditional Rights of Noteholders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, any Noteholder shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest on, if any, such Note on or after the respective due dates thereof expressed in such Note or this Indenture (or, in the case of redemption, on or after the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Noteholder. SECTION 5.08 Restoration of Rights and Remedies. If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or such Noteholder, then and in every such case the Issuer, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted. SECTION 5.09 Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Indenture Trustee or the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law, in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Indenture 27 SECTION 5.10 Delay or Omission Not a Waiver. No delay or omission of the Indenture Trustee or any Noteholder to exercise any right or remedy accruing upon any Default or Indenture Default shall impair any such right or remedy or constitute a waiver of any such Default or Indenture Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Indenture Trustee or the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be. SECTION 5.11 Control by Noteholders. Subject to the provisions of Sections 5.04, 5.06, 6.02(d) and 6.02(e), Noteholders holding at least a Majority Interest voting as a single class shall have the right to direct the time, method and place of conducting any Proceeding or any remedy available to the Indenture Trustee with respect to the Notes or with respect to the exercise of any trust or power conferred on the Indenture Trustee, provided that: (a) such direction shall not be in conflict with any rule of law or this Indenture; (b) subject to Section 5.04, any direction to the Indenture Trustee to, sell or liquidate the Trust Estate shall be made by Noteholders holding not less than 100% of the Outstanding Amount; (c) if the conditions set forth in Section 5.05 have been satisfied and the Indenture Trustee elects to retain the Trust Estate pursuant to such Section, and then any direction to the Indenture Trustee by Noteholders holding less than 100% of the Outstanding Amount to sell or liquidate the Trust Estate shall be of no force and effect; and (d) the Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction. Notwithstanding the rights of Noteholders set forth in this Section, subject to Section 6.01, the Indenture Trustee need not take any action it determines might expose it to personal liability or might materially adversely affect or unduly prejudice the rights of any Noteholders not consenting to such action. SECTION 5.12 [Reserved]. SECTION 5.13 Undertaking for Costs. All parties to this Indenture agree, and each Noteholder by such Noteholder's acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant, but the provisions of this Section shall not apply to (i) any suit instituted by the Indenture Trustee, (ii) any suit instituted by any Noteholder or group of Noteholders, in each case holding Notes evidencing more than 10% of the Outstanding Amount, voting together as a single class, or (iii) any suit Indenture 28 instituted by any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the related due dates expressed in such Note and in this Indenture (or, in the case of redemption, on or after the Redemption Date). SECTION 5.14 Waiver of Stay or Extension Laws. The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner whatsoever, claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture, and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. SECTION 5.15 Action on Notes. The Indenture Trustee's right to seek and recover judgment on the Notes or the Interest Rate Cap Agreement or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the Lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Trust Estate or upon any of the assets of the Issuer. Any money or property collected by the Indenture Trustee shall be applied in accordance with Section 5.04(b). SECTION 5.16 Performance and Enforcement of Certain Obligations. (a) Promptly following a request from the Indenture Trustee to do so, the Issuer shall take all such lawful action as the Indenture Trustee may request to compel or secure the performance and observance by the Transferor, the Servicer and the Cap Provider, as applicable, of each of their obligations to the Issuer under or in connection with the Servicing Agreement and the Interest Rate Cap Agreement, respectively, in accordance with the terms thereof, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with each such agreement to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default on the part of the Servicer thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Servicer of its obligations under the Servicing Agreement. (b) If an Indenture Default has occurred and is continuing, the Indenture Trustee may, and at the direction (which direction shall be in writing or by telephone (confirmed in writing promptly thereafter)) of Noteholders holding not less than a Majority Interest of the Notes voting as a single class, shall, exercise all rights, remedies, powers, privileges and claims of the Issuer against the Transferor, the Titling Trustee, the Servicer and the Cap Provider under or in connection with the Servicing Agreement and the Interest Rate Cap Agreement, including the right or power to take any action to compel or secure performance or observance by the Servicer of its obligations to the Issuer thereunder and to give any consent, request, notice, direction, approval, extension or waiver under the Servicing Agreement, and any right of the Issuer to take such action shall be suspended. Indenture 29 SECTION 5.17 Sale of Trust Estate. If the Indenture Trustee acts to sell the Trust Estate or any part thereof, pursuant to Section 5.04(a), the Indenture Trustee shall effect such a sale at one or more public or private sales called and conducted in any manner permitted by law in a commercially reasonable manner and on commercially reasonable terms, which shall include the solicitation of competitive bids. Unless otherwise prohibited by applicable law from any such action, the Indenture Trustee shall sell the Trust Estate or any part thereof, in such manner to the highest bidder, provided, however, that the Indenture Trustee may from time to time postpone any sale. The Indenture Trustee shall give notice to the Transferor and Servicer of any proposed sale, and the Transferor and Servicer shall be permitted to bid for the Trust Estate at any such sale. The Indenture Trustee may obtain a prior determination from a conservator, receiver or trustee in bankruptcy of the Issuer that the terms and manner of any proposed sale are commercially reasonable. The power to effect any sale of any portion of the Trust Estate pursuant to Section 5.04 and this Section shall not be exhausted by any one or more sales as to any portion of the Trust Estate remaining unsold, but shall continue unimpaired until the entire Trust Estate shall has been sold or all amounts payable on the Notes shall have been paid. ARTICLE SIX THE INDENTURE TRUSTEE SECTION 6.01 Duties of Indenture Trustee. (a) If an Indenture Default has occurred and is continuing, the Indenture Trustee shall exercise the rights and powers vested in it by this Indenture and in the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of such Person's own affairs. (b) Except during the continuance of an Indenture Default: (i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and (ii) in the absence of bad faith on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; however, the Indenture Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture and the other Basic Documents to which the Indenture Trustee is a party. (c) The Indenture Trustee shall not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful, misconduct, except that: (i) this paragraph does not limit the effect of paragraph (b); Indenture 30 (ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts; and (iii) the Indenture Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.11. (d) Every provision of this Indenture that in any way relates to the Indenture Trustee is subject to paragraphs (a), (b) and (c). (e) The Indenture Trustee shall not be liable for interest on any money received by it except as the Indenture Trustee may agree in writing with the Issuer. (f) Money held in trust by the Indenture Trustee need not be segregated from other funds except to the extent required by law or the terms of this Indenture or the Servicing Agreement. (g) No provision of this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayments of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (h) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to the provisions of this Section. (i) The Indenture Trustee shall not be deemed to have knowledge of any Indenture Default or other event unless a Responsible Officer has actual knowledge thereof or has received written notice thereof in accordance with the provisions of this Indenture. SECTION 6.02 Rights of Indenture Trustee. (a) Except as provided by the second succeeding sentence, the Indenture Trustee may conclusively rely and shall be protected in acting upon or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, note, direction, demand, election or other paper or document believed by it to be genuine and to have been signed or presented by the proper person. The Indenture Trustee need not investigate any fact or matter stated in the document. Notwithstanding the foregoing, the Indenture Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Indenture Trustee that shall be specifically required to be furnished pursuant to any provision of this Indenture, shall examine them to determine whether they comply as to form to the requirements of this Indenture. (b) Before the Indenture Trustee acts or refrains from acting, it may require an Officer's Certificate (with respect to factual matters) or an Opinion of Counsel, as applicable. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer's Certificate or Opinion of Counsel. Indenture 31 (c) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys or a custodian or nominee, and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of, or for the supervision of, the Administrative Agent, any co-trustee or separate trustee appointed in accordance with the provisions of Section 6.10 or any other such agent, attorney, custodian or nominee appointed with due care by it hereunder. (d) The Indenture Trustee will be liable for any loss, liability or expense incurred by it through its own willful misconduct, negligence or bad faith, except that the Indenture Trustee shall not be liable for (i) any error of judgment made by it in good faith, unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts, (ii) any action it takes or omits to take in good faith in accordance with a direction received by it from the Noteholders in accordance with the terms of the Indenture or (iii) interest on any money received by it except as the Indenture Trustee and the Issuer may agree in writing. (e) The Indenture Trustee may consult with counsel, and the advice of such counsel or any Opinion of Counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel. (f) The Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture or to institute, conduct or defend any litigation under this Indenture or in relation to this Indenture or to honor the request or direction of any of the Noteholders pursuant to this Indenture unless such Noteholders shall have offered to the Indenture Trustee reasonable security or indemnity against the reasonable costs, expenses, disbursements, advances and liabilities that might be incurred by it, its agents and its counsel in compliance with such request or direction; provided, however, that the Indenture Trustee shall, upon the occurrence of an Indenture Default (that has not been cured), exercise the rights and powers vested in it by this Indenture with reasonable care and skill. (g) The Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond or other paper or document, unless requested in writing to do so by the holders of Notes evidencing not less than 25% of the Outstanding Amount voting together as a single class; provided, however, that if the payment within a reasonable time to the Indenture Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Indenture Trustee, not reasonably assured to the Indenture Trustee by the security afforded to it by the terms of this Indenture, the Indenture Trustee may require reasonable indemnity against such cost, expense or liability as a condition to so proceeding. The reasonable expense of each such investigation shall be paid by the Person making such request, or, if paid by the Indenture Trustee, shall be reimbursed by the Person making such request upon demand. (h) Any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request. Indenture 32 (i) The Indenture Trustee shall, for so long as any Notes are outstanding, be entitled to exercise all of the rights and powers of a Beneficiary under the Basic Documents. SECTION 6.03 Individual Rights of Indenture Trustee. The Indenture Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar, co-paying agent, co-trustee or separate trustee may do the same with like rights. The Indenture Trustee must, however, comply with Section 6.11. SECTION 6.04 Indenture Trustee's Disclaimer. The Indenture Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Trust Estate, the Interest Rate Cap Agreement or the Notes (other than the certificate of authentication on the Notes), shall not be accountable for the Issuer's use of the proceeds from the Notes and shall not be responsible for any statement in the Indenture, the Interest Rate Cap Agreement or in any document issued in connection with the sale of the Notes or in the Notes, all of which shall be taken as the statements of the Issuer, other than the Indenture Trustee's certificate of authentication. SECTION 6.05 Notice of Defaults. If a Default occurs and is continuing, and if it is known to a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail to each Noteholder, the Cap Provider and each Rating Agency notice of such Indenture Default within 60 days after it occurs. Except in the case of a Default with respect to payment of principal of or interest on any Note (including payments pursuant to the redemption of Notes), the Indenture Trustee may withhold such notice if and so long as a committee of its Responsible Officers in good faith determines that withholding such notice is in the interests of the Noteholders; provided, however, that in the case of any Indenture Default of the character specified in Section 5.01(e), no such notice shall be given until at least 30 days after the occurrence thereof. SECTION 6.06 Reports by Indenture Trustee to Noteholders. The Indenture Trustee, at the expense of the Issuer, shall deliver to each Noteholder, not later than the latest date permitted by law, such information as may be reasonably requested (and reasonably available to the Indenture Trustee) to enable such holder to prepare its federal and state income tax returns. The Indenture Trustee shall also deliver or cause to be delivered annually to each Noteholder of record a report relating to its eligibility and qualification to continue as Indenture Trustee under this Indenture, any amounts advanced by it under this Indenture, the amount, interest rate and maturity date of certain indebtedness owed by the Trust to the Indenture Trustee, in its individual capacity, the property and funds physically held by the Indenture Trustee in its capacity as such, and any action taken by it that materially affects the Notes and that has not been previously reported. SECTION 6.07 Compensation and Indemnity. The Servicer shall (i) pay to the Indenture Trustee from time to time reasonable compensation for its services, (ii) reimburse the Indenture Trustee for all reasonable expenses, advances and disbursements reasonably incurred by it and (iii) indemnify the Indenture Trustee for, and hold it harmless against, any and all loss, Indenture 33 liability or expense (including reasonable attorneys' fees) incurred by it in connection with the administration of the Issuer or the performance of its duties. The Indenture Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Indenture Trustee shall notify the Issuer and the Servicer promptly of any claim for which it may seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the Servicer shall not relieve the Issuer or the Servicer of its obligations hereunder. The Servicer shall defend any such claim, and the Indenture Trustee may have separate counsel and the Servicer shall pay the fees and expenses of such counsel. The Indenture Trustee shall not be indemnified by the Servicer against any loss, liability or expense incurred by it through its own willful misconduct, negligence or bad faith, except that the Indenture Trustee shall not be liable (i) for any error of judgment made by it in good faith unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts, (ii) with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from the Noteholders in accordance with the terms of this Indenture and (iii) for interest on any money received by it except as the Indenture Trustee and the Issuer may agree in writing. The Indenture Trustee shall not be deemed to have knowledge of any event unless an officer of the Indenture Trustee has actual knowledge thereof or has received written notice thereof. The Servicer's payment obligations to the Indenture Trustee pursuant to this Section shall survive the discharge of this Indenture. When the Indenture Trustee incurs expenses after the occurrence of an Indenture Default set forth in Section 5.01(e) or (f) with respect to the Issuer, the expenses are intended to constitute expenses of administration under the Bankruptcy Code or any other applicable federal or state bankruptcy, insolvency or similar law. SECTION 6.08 Replacement of Indenture Trustee. Noteholders holding not less than a Majority Interest of the Notes, voting together as a single class, may remove the Indenture Trustee without cause by so notifying the Indenture Trustee and the Issuer, and following such removal may appoint a successor Indenture Trustee. The Issuer shall give prompt written notice to each Rating Agency of such removal. The Indenture Trustee may resign at any time by so notifying the Issuer, the Servicer and each Rating Agency. The Issuer shall remove the Indenture Trustee if: (i) the Indenture Trustee fails to comply with Section 6.11; (ii) a court having jurisdiction in the premises in respect of the Indenture Trustee in an involuntary case or proceeding under federal or state banking or bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, shall have entered a decree or order granting relief or appointing a receiver, liquidator, assignee, custodian, trustee, conservator, sequestrator (or similar official) for the Indenture Trustee or for any substantial part of the Indenture Trustee's property, or ordering the winding-up or liquidation of the Indenture Trustee's affairs, provided any such decree or order shall have continued unstayed and in effect for a period of 30 consecutive days; (iii) the Indenture Trustee commences a voluntary case under any federal or state banking or bankruptcy laws, as now or hereafter constituted, or any other applicable Indenture 34 federal or state bankruptcy, insolvency or other similar law, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, conservator, sequestrator or other similar official for the Indenture Trustee or for any substantial part of the Indenture Trustee's property, or makes any assignment for the benefit of creditors or fails generally to pay its debts as such debts become due or takes any corporate action in furtherance of any of the foregoing; or (iv) the Indenture Trustee otherwise becomes incapable of acting. Upon the resignation or required removal of the Indenture Trustee, or the failure of the Noteholders to appoint a successor Indenture Trustee following the removal without cause of the Indenture Trustee (the Indenture Trustee in any such event being referred to herein as the retiring Indenture Trustee), the Issuer shall be required promptly to appoint a successor Indenture Trustee. Any successor Indenture Trustee must at all times have a combined capital and surplus of at least $50,000,000, a long-term debt rating of "A" or better by Standard & Poor's and Moody's or be otherwise acceptable to each Rating Agency and satisfy the requirements of Section 310(a) of the TIA. Additionally, prior to the appointment of any successor Indenture Trustee, the Rating Agency Condition must be satisfied with respect to such successor Indenture Trustee. A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective and the successor Indenture Trustee, without any further act, deed or conveyance, shall have all the rights, powers and duties of the Indenture Trustee under this Indenture, subject to satisfaction of the Rating Agency Condition. The successor Indenture Trustee shall mail a notice of its succession to the Noteholders and the Cap Provider. The retiring Indenture Trustee shall promptly transfer all property held by it as Indenture Trustee to the successor Indenture Trustee. If a successor Indenture Trustee does not take office within 30 days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuer or Noteholders holding not less than a Majority Interest of the Notes, voting together as a single class, may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee. If the Indenture Trustee fails to comply with Section 6.11, any Noteholder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee. Any resignation or removal of the Indenture Trustee and appointment of a successor Indenture Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Indenture Trustee pursuant to this Section and payment of all fees and expenses owed to the outgoing Indenture Trustee. Notwithstanding the replacement of the Indenture Trustee pursuant to this Section, the retiring Indenture Trustee shall be entitled to payment or reimbursement of such amounts as such Person is entitled pursuant to Section 6.07. Indenture 35 SECTION 6.09 Successor Indenture Trustee by Merger. If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to another corporation or depository institution the resulting, surviving or transferee corporation, without any further act, shall be the successor Indenture Trustee; provided, that such corporation or depository institution shall be otherwise qualified and eligible under Section 6.11. The Indenture Trustee shall provide each Rating Agency prior written notice of any such transaction. In case at the time such successor or successors by merger, conversion or consolidation to the Indenture Trustee shall succeed to the trusts created by this Indenture, the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor trustee and deliver such Notes so authenticated, and in case at that time the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Indenture Trustee, and in all such cases such certificates shall have the full force that it is anywhere in the Notes or in this Indenture provided that the certificate of the Indenture Trustee shall have. SECTION 6.10 Appointment of Co-Trustee or Separate Trustee. (a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Trust Estate may at the time be located, the Indenture Trustee and the Administrative Agent acting jointly shall have the power and may execute and deliver all instruments to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the Collateral, and to vest in such Person or Persons, in such capacity and for the benefit of the Noteholders, such title to the Trust Estate or any part hereof and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Indenture Trustee and the Administrative Agent may consider necessary or desirable. If the Administrative Agent shall not have joined in such appointment within 15 days after it received a request that it so join, the Indenture Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee under Section 6.11 and no notice to Noteholders or the Cap Provider of the appointment of any co-trustee or separate trustee shall be required under Section 6.08. (b) Every separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions: (i) all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being intended that such separate trustee or co-trustee is not authorized to act separately without the Indenture 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 Indenture 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 Collateral or any Indenture 36 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 Indenture Trustee; (ii) no separate trustee or co-trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and (iii) the Indenture Trustee and the Administrative Agent may at any time accept the resignation of or remove any separate trustee or co-trustee. (c) Any notice, request or other writing given to the Indenture 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 Indenture 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 Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture and specifically including every provision of this Indenture relating to the conduct of, affecting the liability of or affording protection to the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee and a copy thereof given to the Administrative Agent. (d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee, 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 Indenture on its behalf and in its name. If any separate trustee or co-trustee shall die, become incapable of acting, resign or be removed, then all of its estates, properties, rights, remedies and trusts shall vest in and be exercised by the Indenture Trustee to the extent permitted by law, without the appointment of a new or successor trustee. Notwithstanding anything to the contrary in this Indenture, the appointment of any separate trustee or co-trustee shall not relieve the Indenture Trustee of its obligations and duties under this Indenture. SECTION 6.11 Eligibility; Disqualification. The Indenture Trustee shall at all times satisfy the requirements of Section 310(a) of the TIA and shall in addition have a combined capital and surplus of at least $50,000,000 (as set forth in its most recent published annual report of condition) and a long-term debt rating of "A" or better by Standard & Poor's and Moody's or be otherwise acceptable to each Rating Agency. The Indenture Trustee shall satisfy the requirements of Section 310(b) of the TIA, including the optional provision permitted by the second sentence of TIA Section 310(b)(9); provided, however, that there shall be excluded form the operation of TIA Section 310(b)(1) any indenture or indentures under which other securities of the Issuer are outstanding if the requirements for such exclusions set forth in TIA Section 310(b)(1) are met. The Transferor, the Administrative Agent, the Servicer and their respective Affiliates may maintain normal commercial banking relationships with the Indenture Trustee and its Affiliates, but neither the Issuer nor any Affiliate of the Issuer may serve as Indenture Trustee. SECTION 6.12 Trustee as Holder of the 2004-A SUBI Certificate. So long as any Notes are Outstanding, to the extent that the Owner Trustee or the Issuer has rights as a Holder of the 2004-A SUBI Certificate, including rights to distributions and notice, or is entitled to consent Indenture 37 to any actions taken by the Transferor, the Owner Trustee or the Issuer may initiate such action or grant such consent only with consent of the Indenture Trustee. To the extent that the Indenture Trustee has rights as a Holder of the 2004-A SUBI Certificate or has the right to consent or withhold consent with respect to actions taken by the Transferor, the Owner Trustee or the Issuer, such rights shall be exercised or consent granted (or withheld) upon the written direction of Holders not less than a Majority Interest of the Notes voting together as a single class; provided, however, that subject to Section 3.07, any direction to the Indenture Trustee to remove or replace the Servicer upon a Servicer Default shall be made by Noteholders holding not less than 66 2/3% of the Outstanding Amount, voting together as a single class, and with respect to Section 11.15, such direction shall require the written direction of Noteholders holding 100% of the Outstanding Amount. SECTION 6.13 Representations and Warranties of Indenture Trustee. The Indenture Trustee hereby makes the following representations and warranties on which the Issuer and Noteholders shall rely: (i) the Indenture Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States; and (ii) the Indenture Trustee has full power, authority and legal right to execute, deliver, and, perform this Indenture and shall have taken all necessary action to authorize the execution, delivery and performance by it of this Indenture. SECTION 6.14 Furnishing of Documents. The Indenture Trustee shall furnish to any Noteholder promptly upon receipt of a written request by such Noteholder (at the expense of the requesting Noteholder) therefor, duplicates or copies of all reports, notices, requests, demands, certificates and any other instruments furnished to the Indenture Trustee under the Basic Documents. SECTION 6.15 Interest Rate Cap Agreement Provisions. The Issuer has entered into the Interest Rate Cap Agreement, in the form satisfactory to the Rating Agencies, to hedge the floating rate interest expense on the Class A-4a Notes. The Issuer may, from time to time, enter into one or more replacement Interest Rate Cap Agreements if any Interest Rate Cap Agreement is terminated prior to its scheduled expiration pursuant to a Cap Event of Default or a Cap Termination Event. (a) Except as provided in Section 8.03 of the Servicing Agreement, the Indenture Trustee will be responsible for collecting Cap Payments and any Cap Termination Payments payable by the Cap Provider. (b) Upon the occurrence of (i) any Cap Event of Default arising from any action taken, or failure to act, by the Cap Provider, or (ii) any Cap Termination Event (except as described in the following sentence) with respect to which the Cap Provider is an "Affected Party" (as defined in the Interest Rate Cap Agreement), the Indenture Trustee may and will, at the direction of Noteholders holding not less than a Majority Interest of the Notes, voting together as a single class, by notice to the Cap Provider, designate an "Early Termination Date" (as defined in the Indenture 38 Interest Rate Cap Agreement) with respect to the Interest Rate Cap Agreement. If a Cap Termination Event occurs as a result of the insolvency or bankruptcy of the Cap Provider, which event has not been otherwise cured under the terms of the Interest Rate Cap Agreement, the Indenture Trustee will terminate the Interest Rate Cap Agreement. (c) The Indenture Trustee, as assignee of the rights of the Issuer under the Interest Rate Cap Agreement, may enter into any amendment or supplement to the Interest Rate Cap Agreement (i) to cure any ambiguity or mistake, (ii) to correct any defective provisions or to correct or supplement any provision therein that may be inconsistent with any other provision therein or with the Indenture or (iii) to add any other provisions with respect to matters or questions arising under the Interest Rate Cap Agreement; provided, in the case of clause (iii), that such amendment will not adversely affect in any material respect the interest of any Noteholder. Any such amendment shall be deemed not to adversely affect in any material respect the interests of any Noteholder if Standard & Poor's deliver a letter to the Indenture Trustee to the effect that the amendment will not result in a Rating Event, and if the Indenture Trustee has provided Moody's with 10 days prior written notice of the amendment and Moody's shall not have notified the Indenture Trustee or the Owner Trustee that the amendment might or would result in a Rating Event. (d) The Indenture Trustee shall notify the Cap Provider of any proposed amendment or supplement to any of the Basic Documents. If such proposed amendment or supplement would adversely affect any of the Cap Provider's rights or obligations under the Interest Rate Cap Agreement, the Indenture Trustee shall obtain the consent of the Cap Provider prior to the adoption of such amendment or supplement; provided, that the Cap Provider's consent to any such amendment or supplement shall not be unreasonably withheld, and provided, further, that the Cap Provider's consent will be deemed to have been given if the Cap Provider does not object in writing within 10 days of receipt of a written request for such consent. SECTION 6.16 Preferred Collection of Claims Against Issuer. The Indenture Trustee shall comply with TIA 311(a), excluding any creditor relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated. ARTICLE SEVEN NOTEHOLDERS' LISTS AND REPORTS SECTION 7.01 Note Registrar to Furnish Noteholder Names and Addresses. The Note Registrar shall furnish or cause to be furnished to the Indenture Trustee, the Owner Trustee, the Servicer or the Administrative Agent, within 15 days after receipt by the Note Registrar of a written request therefrom, a list of the names and addresses of the Noteholders of any Class as of the most recent Deposit Date. If three or more Noteholders, or one or more Holders evidencing not less than 25% of the Outstanding Amount of the Notes (hereinafter referred to as "Applicants"), apply in writing to the Indenture Trustee, and such application states that the Applicants desire to communicate with other Noteholders with respect to their rights under this Indenture or under the Notes and such application is accompanied by a copy of the Indenture 39 communication that such Applicants propose to transmit, then the Indenture Trustee shall, within five Business Days after the receipt of such application, afford such Applicants access, during normal business hours, to the current list of Noteholders. The Indenture Trustee may elect not to afford the requesting Noteholders access to the list of Noteholders if it agrees to mail the desired communication by proxy, on behalf of and at the expense of the requesting Noteholders, to all Noteholders. Every Noteholder, by receiving and holding a Note, agrees with the Indenture Trustee and the Issuer that none of the Indenture Trustee, the Owner Trustee, the Issuer, the Servicer or the Administrative Agent shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Noteholders under this Indenture, regardless of the source from which such information was derived. If the Indenture Trustee shall cease to be the Note Registrar, then thereafter the Issuer shall furnish or cause to be furnished to the Indenture Trustee (i) not more than five days after each Deposit Date a list, in such form as the Indenture Trustee may reasonably require, of the names and addresses of the Noteholders as of such Deposit Date and (ii) at such other times as the Indenture Trustee may request in writing, within 30 days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than ten days prior to the time such list is furnished. Notwithstanding the foregoing, so long as the Indenture Trustee is the Note Registrar no such list shall be required to be furnished to the Indenture Trustee, and so long as the Notes are issued as Book-Entry Notes, no such list shall be required to furnished to the Indenture Trustee, Owner Trustee, Servicer or Administrative Agent. SECTION 7.02 Preservation of Information; Communications to Noteholders. (a) The Indenture Trustee shall preserve in as current a form as is reasonably practicable the names and addresses of the Noteholders contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.01 and the names and addresses of Noteholders received by the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished. (b) Noteholders may communicate pursuant to TIA Section 312(b) with other Noteholders with respect to their rights under this Indenture or under the Notes. (c) The Issuer, the Indenture Trustee and the Note Registrar shall have the protection of TIA Section 3.12(c). SECTION 7.03 Reports by Issuer. (a) The Issuer shall: (i) file with the Indenture Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by the rules and regulations prescribe) that the Issuer Indenture 40 may be required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act; (ii) file with the Indenture Trustee and the Commission in accordance with the rules and regulations prescribed from time to time by the Commission such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and (iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders described in TIA Section 313(c)) such summaries of any information, documents and reports required to be filed by the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) and by rules and regulations prescribed from time to time by the Commission. (b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on March 31 of each year, unless the fiscal year of the Servicer ends on some other date, in which case, the fiscal year of the Issuer shall be the same as the fiscal year of the Servicer. SECTION 7.04 Reports by Indenture Trustee. If required by TIA Section 313(a), within 60 days after each March 31, beginning with March 31, 2005, the Indenture Trustee shall mail to each Noteholder as required by TIA Section 313(c) a brief report dated as of such date that complies with TIA Section 313(a). The Indenture Trustee also shall comply with TIA Section 313(b). A copy of each report at the time of its mailing to Noteholders shall be filed by the Indenture Trustee with the Commission and each stock exchange, if any, on which the Notes are listed. The Issuer shall notify the Indenture Trustee if and when the Notes are listed on any stock exchange. ARTICLE EIGHT ACCOUNTS, DISBURSEMENTS AND RELEASES SECTION 8.01 Collection of Money. Except as otherwise expressly provided herein, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all money and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply all such money received by it as provided in this Indenture. Except as otherwise expressly provided in this Indenture, if any default occurs in the making of any payment or performance under any agreement or instrument that is part of the Trust Estate, the Indenture Trustee may take such action as may be appropriate to enforce such payment or performance, including the institution and prosecution of appropriate Proceedings. Any such action shall be without prejudice to any right to claim an Indenture Default under this Indenture and any right to proceed thereafter as provided in Article Five. Indenture 41 SECTION 8.02 Accounts. (a) Pursuant to Section 5.01 of the Trust Agreement, there has been established and there shall be maintained an Eligible Account (initially at U.S. Bank) in the name of the Indenture Trustee until the Outstanding Amount is reduced to zero, and thereafter, in the name of the Owner Trustee, which is designated as the "Reserve Account". The Reserve Account shall be held for the benefit of the Securityholders, and shall bear a designation clearly indicating that the funds on deposit therein are held for the benefit of the Securityholders. The Reserve Account shall be under the sole dominion and control of the Indenture Trustee until the Outstanding Amount has been reduced to zero, and thereafter under the sole dominion and control of the Owner Trustee. (b) The Issuer shall cause the Transferor, prior to the Closing Date, establish and maintain an Eligible Account in the name of the Indenture Trustee on behalf of the Noteholders, which shall be designated as the "Note Distribution Account". The Note Distribution Account shall be held in trust for the benefit of the Noteholders. The Note Distribution Account shall be under the sole dominion and control of the Indenture Trustee. (c) All monies deposited from time to time in the Accounts pursuant to this Indenture or the 2004-A Servicing Supplement shall be held by the Indenture Trustee as part of the Collateral and shall be applied to the purposes herein provided. If any Account shall cease to be an Eligible Account, the Indenture Trustee, until the Outstanding Amount has been reduced to zero, and thereafter with respect to the Reserve Account, the Owner Trustee shall, as necessary, assist the Servicer in causing each Account to be moved to an institution at which it shall be an Eligible Account. SECTION 8.03 Payment Date Certificate. (a) Prior to 3:00 p.m., New York City time on the second Business Day preceding each Payment Date, the Issuer shall cause the Servicer, to deliver to the Indenture Trustee, the Owner Trustee and each Paying Agent hereunder or under the Trust Agreement, a certificate (the "Payment Date Certificate") including, among other things, the following information with respect to such Payment Date and the related Collection Period and Accrual Period: (i) the amount of SUBI Collections allocable to the 2004-A SUBI Certificate; (ii) Available Funds, including amounts with respect to each of items (i) through (iv) of the definition thereof; (iii) the amount of interest accrued during such Accrual Period on each Class of the Notes; (iv) the Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4a Note Balance, the Class A-4b Balance, the Certificate Balance, in each case on the day immediately preceding such Payment Date; Indenture 42 (v) (A) the Reserve Account Requirement, (B) the Reserve Account Deposit Amount, if any, (C) the Reserve Account Draw Amount, if any, (D) the balance on deposit in the Reserve Account on such Payment Date after giving effect to withdrawals therefrom and deposits thereto in respect of such Payment Date and (E) the change in such balance from the immediately preceding Payment Date; (vi) the Note Distribution Amount for each Class of Notes and the Certificate Distribution Amount; (vii) the amount of the Note Distribution Amount allocable to interest on and principal of the Notes and any Principal Carryover Shortfall for each Class of the Notes; (viii) the amount of any principal paid on, and Principal Carryover Shortfall for, the Trust Certificates; (ix) the Monthly Principal Distributable Amount and the Optimal Principal Distributable Amount; (x) the Note Factor for each Class of the Notes and the Certificate Factor for the Trust Certificates after giving effect to the distribution of the Note Distribution Amount and the Certificate Distribution Amount, respectively; (xi) the aggregate amount of Residual Value Losses and Residual Value Surplus for such Collection Period; (xii) the amount of Sales Proceeds Advances and Monthly Payment Advances included in Available Funds; (xiii) the amount of any Payment Date Advance Reimbursement for such Collection Period; (xiv) the Cap Payments and/or any Cap Termination Payment received by the Issuer from the Cap Provider; and (xv) the Servicing Fee for such Collection Period. Each amount set forth pursuant to clauses (iii), (iv), (vi), (vii) and (viii) above shall be expressed in the aggregate and as a dollar amount per $1,000 of original principal balance of a Note or Trust Certificate, as applicable. (b) The Indenture Trustee shall have no duty or obligation to verify or confirm the accuracy of any of the information or numbers set forth in the Payment Date Certificate delivered to the Indenture Trustee in accordance with this Section, and the Indenture Trustee shall be fully protected in relying upon such Payment Date Certificate. Indenture 43 SECTION 8.04 Disbursement of Funds. (a) On each Payment Date, prior to 11:00 a.m., New York City time, the Titling Trustee (acting through the Trust Agent) shall, in accordance with the related Payment Date Certificate and pursuant to the instructions of the Servicer, transfer from the 2004-A SUBI Collection Account all Securityholder Available Funds and apply such amount, in accordance with the following priorities: (i) to the Note Distribution Account, for payment to the Noteholders, an amount equal to the interest accrued at the applicable Interest Rate for such Class of Notes during the related Accrual Period on the applicable Outstanding Amount (plus any accrued and unpaid interest with respect to any prior Accrual Period) for such Class (and, to the extent permitted by applicable law, interest on any overdue interest at the Overdue Interest Rate), on a pro rata basis; (ii) to the related Distribution Account the Monthly Principal Distributable Amount distributable to each Class of Notes and the Trust Certificates, in the following order of priority: (A) on any Payment Date (so long as the maturity of the Notes has not been accelerated pursuant to Section 5.02): (1) to the Class A-1 Notes until the Class A-1 Notes have been paid in full; (2) after the principal amount of the Class A-1 Notes is reduced to zero, to the Class A-2 Notes until the Class A-2 Notes have been paid in full; (3) after the principal amount of the Class A-2 Notes is reduced to zero, to the Class A-3 Notes until the Class A-3 Notes have been paid in full; (4) after the principal amount of the Class A-3 Notes is reduced to zero, to the Class A-4a Notes and the Class A-4b Notes pro rata based on the principal balances of the Class A-4a Notes and the Class A-4b Notes until the Class A-4a Notes and Class A-4b Notes have been paid in full; (5) after the principal amount of the Class A-4a Notes and the Class A-4b Notes is reduced to zero, to the Certificate Distribution Account for distribution of principal to the Trust Certificateholders, until the Trust Certificates have been paid in full; and (B) on any Payment Date after the maturity of the Notes has been accelerated pursuant to Section 5.02: Indenture 44 (1) to the Class A-1 Noteholders (until the Class A-1 Notes have been paid in full) and second, to the other Noteholders pro rata (based on the Outstanding Amount of each such Class on such Payment Date), until all Notes have been paid in full, and (2) to the Certificate Distribution Account, for distribution to the Trust Certificateholders for amounts due and unpaid in respect of the principal amount of the Trust Certificates, until the Trust Certificates have been paid in full; (iii) until all Class of Notes have been paid in full, to the Reserve Account, any remaining funds, until the Reserve Account Requirement has been satisfied; and (iv) to the Certificate Distribution Account for the Transferor. (b) On each Payment Date, after taking into account amounts to be distributed to Securityholders from the 2004-A SUBI Collection Account, the Servicer will allocate the Reserve Account Draw Amount, if any, reflected in the Payment Date Certificate, with respect to the related Collection Period and will instruct the Indenture Trustee to make the following deposits and distributions in the following amounts and order of priority, prior to 11:00 a.m., New York City time: (i) to the Note Distribution Account, to pay any remaining interest due on the outstanding Notes on such Payment Date (and, to the extent permitted under applicable law, interest on any overdue interest at the Overdue Interest Rate); and (ii) to the Note Distribution Account, to pay principal of the Notes in the amounts and order of priority set forth in Section 8.04(a)(ii). (c) If on any Payment Date, after giving effect to all deposits to and withdrawals from the Reserve Account, the amount on deposit in the Reserve Account exceeds the Reserve Account Requirement, the Indenture Trustee shall distribute any such excess amounts to the Transferor. Upon any such distributions, the Securityholders will have no further rights in, or claims to such amounts. (d) On each Payment Date or Redemption Date, from the amounts on deposit in the Note Distribution Account, the Indenture Trustee shall duly and punctually distribute payments of principal and interest on the Notes due and by check mailed to the Person whose name appears as the registered holder of a Note (or one or more Predecessor Notes) on the Note Register as of the close of business on the related Deposit Date, except that with respect to Notes registered on the Deposit Date in the name of (i) the nominee of DTC (initially, such nominee to be Cede & Co.), and (ii) a Person (other than the nominee of DTC) that holds Notes with original denominations aggregating at least $1 million and has given the Indenture Trustee appropriate written instructions at least five Business Days prior to the related Deposit Date (which instructions, until revised, shall remain operative for all Payment Dates thereafter), payments will be made by wire transfer in immediately available funds to the account designated by such nominee or Indenture 45 Person. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Deposit Date without requiring that the Note be submitted for notation of payment. Any reduction in the principal amount of any Note (or any one or more Predecessor Notes) affected by any payments made on any Payment Date or Redemption Date shall be binding upon all future holders of any Note issued upon the registration of transfer thereof or in exchange hereof or in lieu hereof, whether or not noted thereon. Amounts properly withheld under the Code by any Person from payment to any Noteholder of interest or principal shall be considered to have been paid by the Indenture Trustee to such Noteholder for purposes of this Indenture. If funds are expected to be available, pursuant to the notice delivered to the Indenture Trustee, for payment in full of the remaining unpaid principal amount of the Notes on a Payment Date or Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify each Person who was the registered holder of a Note as of the Deposit Date preceding the most recent Payment Date or Redemption Date by notice mailed not less than 15 but no more than 30 days of such Payment Date or Redemption Date and the amount then due and payable shall be payable only upon presentation and surrender of the Note at the Corporate Trust Office of the Indenture Trustee or at the office of the Indenture Trustee's agent appointed for such purposes located in The Borough of Manhattan in The City of New York. (e) On each Payment Date, the Indenture Trustee shall send by first class mail an unaudited report (which may be or may be based upon the Payment Date Certificate prepared by the Servicer) to each Person that was a Noteholder as of the close of business on the related Deposit Date (which shall be Cede & Co. as the nominee of DTC unless Definitive Notes are issued under the limited circumstances described herein), and each Rating Agency setting forth the following information with respect to such Payment Date or the related Deposit Date or Collection Period, as the case may be: (i) the amount of SUBI Collections allocable to the 2004-A SUBI Certificate; (ii) the amount of Available Funds; (iii) the amount of interest accrued during such Accrual Period on each Class of the Notes; (iv) the Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4a Note Balance, the Class A-4b Note Balance, the Outstanding Amount of the Certificate Balance, in each case before giving effect to payments on such Payment Date; (v) (A) the Reserve Account Requirement, (B) the Reserve Account Deposit Amount, if any, (C) the Reserve Account Draw Amount, if any, (D) the balance on deposit in the Reserve Account on such Payment Date after giving effect to withdrawals therefrom and deposits thereto in respect of such Payment Date and (E) the change in such balance from the immediately preceding Payment Date; Indenture 46 (vi) the Note Distribution Amount for each Class of Notes and the Certificate Distribution Amount; (vii) the amount of the Note Distribution Amount allocable to interest on and principal of the Notes and any Principal Carryover Shortfall for each Class of the Notes; (viii) the amount of any principal paid on, and Principal Carryover Shortfall for, the Trust Certificates; (ix) the Note Factor for each Class of the Notes and the Certificate Factor for the Trust Certificates after giving effect to the distribution of the Note Distribution Amount and the Certificate Distribution Amount, respectively; (x) the aggregate amount of Residual Value Losses and Residual Value Surplus for such Collection Period; (xi) the amount of Sales Proceeds Advances and Monthly Payment Advances included in Available Funds; (xii) the amount of any Payment Date Advance Reimbursement for such Collection Period; (xiii) the Cap Payments and/or any Cap Termination Payment; and (xiv) the Servicing Fee for such Collection Period. Each amount set forth pursuant to clauses (iii), (iv), (vi), (vii) and (viii) above shall be expressed in the aggregate and as a dollar amount per $1,000 of original principal balance of a Note or Trust Certificate, as applicable. Note Owners may obtain copies of such reports upon a request in writing to the Indenture Trustee at the Corporate Trust Office. SECTION 8.05 General Provisions Regarding Accounts. (a) For so long as no Default or Indenture Default shall have occurred and be continuing, all of the funds in the Reserve Account shall be invested and reinvested by the Indenture Trustee, until the Outstanding Amount of the Notes has been reduced to zero and thereafter by the Owner Trustee, at the direction of the Administrative Agent in Permitted Investments as set forth in Section 4.02(a) of the Titling Trust Agreement, which mature no later than the Deposit Date succeeding the date of such investment, including those offered by the Indenture Trustee or an Affiliate thereof. No such investment shall be sold prior to maturity. Any investment earnings on the Reserve Account will be taxable to the Transferor. On each Payment Date, net investment earnings on the Reserve Account shall be deposited in the Reserve Account. (b) Subject to Section 6.01(c), the Indenture Trustee shall not in any way be held liable by reason of any insufficiency in the Reserve Account resulting from any loss on any Permitted Investment included therein, except for losses attributable to the Indenture Trustee's failure to Indenture 47 make payments on any such Permitted Investments issued by the Indenture Trustee in its commercial capacity as principal obligor and not as trustee, in accordance with their terms. (c) If (i) the Administrative Agent shall have failed to give investment directions for any funds on deposit in the Reserve Account to the Indenture Trustee by 3:00 p.m., New York City time (or such other time as may be agreed by the Administrative Agent and Indenture Trustee), on any Business Day or (ii) a Default or Indenture Default shall have occurred and be continuing with respect to the Notes but the Notes shall not have been declared due and payable pursuant to Section 5.02 or (iii) if the Notes shall have been declared due and payable following an Indenture Default, amounts collected or receivable from the Trust Estate are being applied in accordance with Section 5.05 as if there had not been such a declaration, then the Indenture Trustee shall, to the fullest extent practicable, invest and reinvest funds in investments that are Permitted Investments as set forth in paragraph (vi) of the definition thereof. SECTION 8.06 Release of Trust Estate. (a) Subject to the payment of its fees and expenses pursuant to Section 6.07, the Indenture Trustee may, and when required by the provisions of this Indenture shall, execute instruments to release property from the lien of this Indenture, or convey the Indenture Trustee's interest in the same, in a manner and under circumstances that are not inconsistent with the provisions of this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article shall be bound to ascertain the Indenture Trustee's authority, inquire into the satisfaction of any conditions precedent or see to the application of any monies. (b) The Indenture Trustee shall, at such time as there are no Notes Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have been paid, release any remaining portion of the Trust Estate that secured the Notes from the lien of this Indenture and release to the Issuer or any other Person entitled thereto any funds then on deposit in the Trust Accounts. Such release shall include delivery to the Issuer or its designee of the 2004-A SUBI Certificate and delivery to the Securities Intermediary under the Control Agreement of a certificate evidencing the release of the lien of this Indenture and transfer of dominion and control over the Reserve Account to the Owner Trustee. The Indenture Trustee shall release property from the lien of this Indenture pursuant to this Section only upon receipt of a Issuer Request. SECTION 8.07 Release of Interest In 2004-A Leases and 2004-A Vehicles Upon Purchase or Reallocation by the Servicer. (a) Upon the reallocation or purchase of any 2004-A Lease and related 2004-A Leased by the Servicer pursuant to Section 8.02 of the Servicing Agreement, the Indenture Trustee, on behalf of the Noteholders, shall, without further action, be deemed to release from the lien of this Indenture any and all rights to receive monies due or to become due with respect to such purchased or reallocated 2004-A Lease and related 2004-A Vehicle and all proceeds thereof and the other property with respect to such 2004-A Lease and related 2004-A Vehicle, and all security and any documents relating thereto, and such 2004-A Lease and related 2004-A Vehicle and all such related security and documents shall be free of any further obligation to the Issuer, the Indenture Trustee or the Noteholders. Indenture 48 (b) The Indenture Trustee shall execute such documents and instruments and take such other actions as shall be reasonably requested by the Servicer to effect the release of such rights with respect to such 2004-A Lease and related 2004-A Vehicle pursuant hereto and the assignment of such 2004-A Lease and 2004-A Vehicle by the Issuer. SECTION 8.08 Opinion of Counsel. The Indenture Trustee shall receive at least seven day notice when requested by the Issuer to take any action pursuant to Section 8.06(a), accompanied by copies of any instruments involved, and the Indenture Trustee may also require (and shall require, to the extent required by the TIA), except in connection with any action contemplated by Section 8.06(b), as a condition to such action, an Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee, stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action will not materially and adversely impair the security for the Notes or the rights of the Noteholders in contravention of the provisions of this Indenture; provided, however, that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Trust Estate. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 9.01 Supplemental Indentures Without Consent of Noteholders. (a) Without the consent of the Noteholders, but with prior notice to each Rating Agency and subject to the satisfaction of the Rating Agency Condition, the Issuer and the Indenture Trustee, when so requested by a Issuer Request, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Indenture Trustee, for any of the following purposes: (i) to correct or amplify the description of any property at any time subject to the Lien of this Indenture, or better to assure, convey or confirm unto the Indenture Trustee any property subject or required to be subjected to the lien of this Indenture, or to subject additional property to the lien of this Indenture; (ii) to evidence the succession, in compliance with the applicable provisions hereof, of another Person to the Issuer and the assumption by any such successor of the covenants of the Issuer contained herein and in the Notes; (iii) to add to the covenants of the Issuer for the benefit of the Noteholders or to surrender any right or power herein conferred upon the Issuer; (iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee; Indenture 49 (v) to cure any ambiguity, correct or supplement any provision herein or in any supplemental indenture that may be defective or inconsistent with any other provision herein or in any supplemental indenture or make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture that shall not be inconsistent with the provisions of this Indenture; provided that such other provisions shall not adversely affect the interests of the Noteholders; or (vi) to evidence and provide for the acceptance of the appointment hereunder by a successor trustee with respect to the Notes or to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Article Six. The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations as may be therein contained. (b) The Issuer and the Indenture Trustee, when requested by a Issuer Request, may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or for the purpose of modifying in any manner (other than the modifications set forth in Section 9.02, which require consent of the Holder of each Note affected thereby) the rights of the Noteholders under this Indenture; provided, however, that (i) such action shall not materially adversely affect the interests of any Noteholder, (ii) the Rating Agency Condition shall have been satisfied with respect to such action and (iii) such action shall not, as evidenced by an Opinion of Counsel, (A) affect the treatment of the Notes as debt for federal income tax purposes, (B) be deemed to cause a taxable exchange of the Notes for federal income tax purposes or (C) cause the Issuer, the Transferor or the Titling Trust to be taxable as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes. SECTION 9.02 Supplemental Indentures With Consent of Noteholders. The Issuer and the Indenture Trustee, when requested by a Issuer Request, also may, with the consent of Noteholders holding not less than a Majority Interest of the Notes voting together as a single class, by Act of such Noteholders delivered to the Issuer and the Indenture Trustee, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or of modifying in any manner the rights of the Noteholders under this Indenture subject to the satisfaction of the Rating Agency Condition and provided that no such supplemental indenture shall, without the consent of the Noteholder of each Outstanding Note affected thereby: (a) change the Note Final Scheduled Payment Date of or the date of payment of any installment of principal of or interest on any Note, or reduce the principal amount thereof, the interest rate thereon or the Redemption Price with respect thereto, change the provision of this Indenture relating to the application of collections on, or the proceeds of the sale of, the Trust Estate to payment of principal of or interest on the Notes, or change any place of payment where, or the coin or currency in which, any Note or the interest thereon is payable, or impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of Indenture 50 funds available therefor, as provided in Article Five, to the payment of any such amount due on the Notes on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date); (b) reduce the percentage of the Outstanding Amount, the consent of the Noteholders of which is required for any such supplemental indenture or the consent of the Noteholders of which is required for any waiver of compliance with provisions of this Indenture or Indenture Defaults hereunder and their consequences provided for in this Indenture; (c) modify or alter the provisions of the proviso to the definition of the term "Outstanding"; (d) reduce the percentage of the Outstanding Amount required to direct the Indenture Trustee to direct the Owner Trustee to sell the Trust Estate pursuant to Section 5.04, if the proceeds of such sale would be insufficient to pay the Outstanding Amount plus accrued but unpaid interest on the Notes; (e) modify any provision of this Section, except to increase any percentage specified herein or to provide that certain additional provisions of this Indenture or the other Basic Documents cannot be modified or waived without the consent of the Noteholder of each Outstanding Note affected thereby; (f) modify any of the provisions of this Indenture in such manner as to affect the calculation of the amount of any payment of interest or principal due on any Note on any Payment Date (including the calculation of any of the individual components of such calculation); (g) permit the creation of any lien ranking prior to or on a parity with the lien of this Indenture with respect to any part of the Trust Estate or, except as otherwise permitted or contemplated herein, terminate the lien of this Indenture on any property at any time subject hereto or deprive any Noteholder of the security provided by the lien of this Indenture; or (h) impair the right to institute suit for the enforcement of payment as provided in Section 5.07. Any such supplemental indenture shall be executed only upon delivery of an Opinion of Counsel to the same effect as in Section 9.01(b). The Indenture Trustee may in its discretion determine whether or not any Notes would be affected by any supplemental indenture and any such determination shall be conclusive upon all Noteholders, whether theretofore or thereafter authenticated and delivered hereunder. The Indenture Trustee shall not be liable for any such determination made in good faith. It shall not be necessary for any Act of Noteholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Indenture 51 Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this Section, the Indenture Trustee shall mail to the Noteholders to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture. SECTION 9.03 Execution of Supplemental Indentures. In executing, or permitting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Indenture Trustee may but shall not be obligated to enter into any such supplemental indenture that affects the Indenture Trustee's own rights, duties, liabilities or indemnities under this Indenture or otherwise. SECTION 9.04 Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and shall be deemed to be modified and amended in accordance therewith with respect to the Notes affected thereby, and the respective rights, limitations of rights, obligations, duties, liabilities and immunities under this Indenture of the Indenture Trustee, the Issuer, the Owner Trustee and the Noteholders shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental indenture shall be and shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 9.05 Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuer or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes. ARTICLE TEN REDEMPTION OF NOTES SECTION 10.01 Redemption. (a) Pursuant to Section 9.01 of the Trust Agreement, the Servicer shall be permitted at its option to purchase the 2004-A SUBI Certificate from the Issuer on any Redemption Date relating to the exercise of an Optional Purchase. In connection with the exercise of an Optional Purchase, the Servicer will deposit the Optional Purchase Price into the 2004-A SUBI Collection Account on the Deposit Date relating to the Redemption Date. In connection with an Optional Purchase, Indenture 52 the Notes shall be redeemed on the Redemption Date in whole, but not in part, for the Redemption Price and the 2004-A SUBI Certificate shall be delivered to or upon the order of the Servicer. (b) In connection with the exercise of an Optional Purchase, on the Redemption Date, prior to 11:00 a.m., New York City time, the Servicer shall transfer the Optional Purchase Price as part of the Available Funds from the 2004-A SUBI Collection Account as follows: (i) to the Note Distribution Account, the Redemption Price and (ii) to the Certificate Distribution Account, the Repayment Price. (c) If the Notes are to be redeemed pursuant to this Section, the Administrative Agent or the Issuer shall provide at least 20 days' prior notice of the redemption of the Notes to the Indenture Trustee, the Owner Trustee and the Cap Provider, and the Indenture Trustee shall provide at least 15 days' (but no more than 30 days') notice thereof to the Noteholders. SECTION 10.02 Form of Redemption Notice. Notice of redemption under Section 10.01 shall be given by the Indenture Trustee by first-class mail, postage prepaid, mailed to each Holder of Notes as of the close of business on the Deposit Date preceding the applicable Redemption Date at such Holder's address appearing in the Note Register. In addition, the Administrative Agent shall notify each Rating Agency upon the redemption of the Notes, pursuant to the Trust Administration Agreement. All notices of redemption shall state: (a) the Redemption Date; (b) the Redemption Price; (c) the place where the Notes to be redeemed are to be surrendered for payment of the Redemption Price (which shall be the office or agency of the Issuer to be maintained as provided in Section 3.02); and (d) that on the Redemption Date, the Redemption Price will become due and payable upon each such Note and that interest thereon shall cease to accrue from and after the Redemption Date. Notice of redemption of the Notes shall be given by the Indenture Trustee in the name and at the expense of the Issuer. Failure to give notice of redemption (or any defect therein) to any Noteholder shall not impair or affect the validity of the redemption of any other Note. SECTION 10.03 Notes Payable on Redemption Date. The Notes to be redeemed shall, following notice of redemption as required by Section 10.02, become due and payable on the Redemption Date at the Redemption Price and (unless the Issuer shall default in the payment of the Redemption Price) no interest shall accrue on the Redemption Price for any period after the date to which accrued interest is calculated for purposes of calculating the Redemption Price. Indenture 53 ARTICLE ELEVEN MISCELLANEOUS SECTION 11.01 Compliance Certificates and Opinions. (a) Upon any application or request by the Issuer to the Indenture Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Indenture Trustee and each Rating Agency (i) an Officer's Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with (ii) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (iii) if required by the TIA, an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (i) a statement that each signatory of such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (iii) a statement that, in the opinion of each such signatory, such signatory has made such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with. (b) In addition to any obligation imposed in Section 11.01(a) or elsewhere in this Indenture: (i) Prior to the deposit of any Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of any property or securities subject to the lien of this Indenture, the Issuer shall furnish to the Indenture Trustee (if so requested by the Indenture Trustee or required by the TIA) an Officer's Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such deposit) to the Issuer of the Collateral or other property or securities to be so deposited. Indenture 54 (ii) Whenever the Issuer would be required to furnish to the Indenture Trustee an Officer's Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (i) above if such an Officer's Certificate had been required by the Indenture Trustee or required by the TIA, regardless of whether such an Officer's Certificate was so requested or required, the Issuer shall deliver to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value of the property or securities to be so deposited and of all other such securities made the basis of any such withdrawal or release since the commencement of the then-current calendar year of the Issuer, as set forth in the Officer's Certificate delivered pursuant to clause (i) above, is 10% or more of the Outstanding Amount; provided, however, such Independent Certificate need not be furnished with respect to any securities so deposited, if the fair value thereof to the Issuer as set forth in the related Officer's Certificate is less than $25,000 or less than 1% of the Outstanding Amount. (iii) Other than with respect to any release described in clause (A) or (B) of Section 11.01(b)(v), whenever any property or securities are to be released from the lien of this Indenture, the Issuer shall also furnish to the Indenture Trustee (if so requested by the Indenture Trustee or required by the TIA) an Officer's Certificate certifying or stating the opinion of each Person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such Person, the proposed release will not impair the security under this Indenture in contravention of the provisions hereof. (iv) Whenever the Issuer would be required to furnish to the Indenture Trustee an Officer's Certificate certifying or stating the opinion of any signer thereof as to the matters described in clause (iii) above if such an Officer's Certificate had been required by the Indenture Trustee or required by the TIA, regardless of whether such an Officer's Certificate was so requested or required, the Issuer shall furnish to the Indenture Trustee an Independent Certificate as to the same matters, if the fair value of the property or securities and of all other property, or securities (other than property described in clauses (A) or (B) of Section 11.01(b)(v)) released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in the Officer's Certificates required by clause (iii) above and this clause, equals 10% or more of the Outstanding Amount, but such Officer's Certificate need not be furnished in the case of any release of property or securities if the fair value thereof as set forth in the related Officer's Certificate is less than $25,000 or less than 1% of the Outstanding Amount. (v) Notwithstanding Section 2.08 or any other provision of this Section, the Issuer may (A) collect, liquidate, sell or otherwise dispose of the Collateral as and to the extent permitted or required by the Basic Documents and (B) make cash payments out of the Accounts as and to the extent permitted or required by the Basic Documents. SECTION 11.02 Form of Documents Delivered to Indenture Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Indenture 55 Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an Authorized Officer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of or representations by an officer or officers of the Administrative Agent, the Transferor or the Issuer, stating that the information with respect to such factual matters is in the possession of the Administrative Agent, the Transferor or the Issuer, unless such officer or counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Whenever in this Indenture, in connection with any application or certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuer's compliance with any terms hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustee's right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article Six. SECTION 11.03 Acts of Noteholders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Noteholders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner that the Indenture Trustee deems sufficient. Indenture 56 (c) The ownership of Notes shall be proved by the Note Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the holder of any Note shall bind the holder of every Note issued upon the registration thereof or in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note. SECTION 11.04 Notices. All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, or by telecopier, and addressed in each case as follows: (i) if to the Issuer c/o the Owner Trustee, at Rodney Square North, 1100 N. Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust Administration with a copy to the Administrative Agent, at 990 West 190th Street, Torrance, California, 90502 (telecopier no. (310) 324-2542), Attention: Treasurer; (ii) if to the Indenture Trustee, at 209 South LaSalle Street, Suite 300, Chicago, IL 60604 (telecopier no. (312) 325-8905), Attention: Nissan Auto Lease Trust 2004-A; (iii) if to Moody's, to 99 Church Street, New York, New York 10007 (telecopier no. (212) 553-7820), Attention: ABS Monitoring Group; (iv) if to Standard & Poor's, to Standard & Poor's, a division of The McGraw-Hill Companies, Inc., 55 Water Street, New York, New York, 10041 (telecopier no. (212) 208-0030), Attention: Asset Backed Monitoring Group; or (v) at such other address as shall be designated by any of the foregoing in a written notice to the other parties hereto. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder. SECTION 11.05 Notices to Noteholders; Waiver. Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first class, postage prepaid to each Noteholder affected by such event, at its address as it appears on the Note Register, not later than the latest and not earlier than the earliest date prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice nor any defect in any notice so mailed to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given. Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver. In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or similar activity, it shall be impractical to mail notice of any event of Noteholders when such notice is required to be given pursuant to any provision of this Indenture, then any Indenture 57 manner of giving such notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a sufficient giving of such notice. Where this Indenture provides for notice to each Rating Agency, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute an Indenture Default. SECTION 11.06 Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 11.07 Successors and Assigns. All covenants and agreements in this Indenture and the Notes by the Issuer shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors. SECTION 11.08 Severability. If any one or more of the covenants, agreement, provisions or terms of this Indenture shall be for any reason whatsoever held invalid or unenforceable in any jurisdiction, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements provisions or terms of this Indenture and shall in no way affect the validity or enforceability of the other provisions of this Indenture or of the Notes, the Interest Rate Cap Agreement or the Trust Certificates or the rights of the Holders thereof. SECTION 11.09 Benefits of Indenture. Nothing in this Indenture or the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the Noteholders (and, with respect to Sections 8.03 and 8.04, the Trust Certificateholders), any other party secured hereunder, and any other Person with an ownership interest in any part of the Trust Estate, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 11.10 Legal Holidays. In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue for the period from and after any such nominal date. SECTION 11.11 Governing Law. THIS INDENTURE SHALL BE 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), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. SECTION 11.12 Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Indenture 58 SECTION 11.13 Recording of Indenture. If this Indenture is subject to recording in any appropriate public recording offices, such recording is to be effected by the Issuer accompanied by an Opinion of Counsel (who may be counsel to the Indenture Trustee or any other counsel reasonably acceptable to the Indenture Trustee) to the effect that such recording is necessary either for the protection of the Noteholders or any other Person secured hereunder or for the enforcement of any right or remedy granted to the Indenture Trustee under this Indenture. SECTION 11.14 Trust Obligation. No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any Trust Certificateholder, (iii) any owner of a beneficial interest in the Issuer or (iv) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Owner Trustee in its individual capacity, any Trust Certificateholder, the Owner Trustee or of the Indenture Trustee or any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Owner Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. SECTION 11.15 No Petition. The Indenture Trustee, by entering into this Indenture, and each Noteholder or Note Owner, by accepting a Note or in the case of a Note Owner, a beneficial interest in a Note, hereby covenant and agree that they will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under federal or State bankruptcy or similar laws for a period of one year and a day after: (a) payment in full of all amounts due to each Holder in respect of the UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the Titling Trust and the Titling Trustee, without the consent of 100% of the Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary, the Transferor or any of their respective Affiliates); and (b) payment in full of the Notes, against the Transferor or the Issuer; provided, however, that 100% of the Noteholders, or, if no Notes are then outstanding, 100% of the Trust Certificateholders (in each case excluding the Transferor and any of its Affiliates) may at any time institute or join in instituting any bankruptcy, reorganization, insolvency or liquidation proceeding against the Transferor or the Issuer. SECTION 11.16 No Recourse. Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Indenture 59 Owner Trustee in its individual capacity or any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. SECTION 11.17 Inspection. The Issuer agrees that on reasonable prior notice it will permit any representative of the Indenture Trustee, during the Issuer's normal business hours, to examine all the books of account, records, reports and other papers of the Issuer, to make copies and extracts therefrom, to cause such books to be audited by Independent certified public accountants and to discuss the Issuer's affairs, finances and accounts with the Issuer's officers, employees and Independent certified public accountants, all at such reasonable times and as often as may be reasonably requested. The Indenture Trustee shall and shall cause its representatives to hold in confidence all such information, except to the extent disclosure may be required by law (and all reasonable applications for confidential treatment are unavailing) and except to the extent the Indenture Trustee may reasonably determine that such disclosure is consistent with its obligations hereunder. SECTION 11.18 Limitation of Liability of Owner Trustee. Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Wilmington Trust COMPANY not in its individual capacity but solely in its capacity as Owner Trustee of the Issuer and in no event shall Wilmington Trust Company in its individual capacity or any beneficial owner of the Issuer have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder, as to all of which recourse shall be had solely to the assets of the Issuer. For all purposes of this Indenture, in the performance of any duties or obligations of the Issuer 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. SECTION 11.19 Assignment of the Interest Rate Cap Agreement. (a) The Issuer, in furtherance of the covenants of this Indenture and as security for the Notes and the performance and observance of the provisions hereof, hereby assigns, transfers, conveys and sets over to the Indenture Trustee, for the benefit of the Noteholders, all of the Issuer's estate, right, title and interest in, to and under the Interest Rate Cap Agreement, including, without limitation, (i) all of the Issuer's interest in all securities, monies and proceeds held by the Cap Provider thereunder, (ii) the right to give all notices, consents and releases thereunder, (iii) the right to give all notices of termination and to take any legal action upon the breach of an obligation of the Cap Provider, thereunder, including the commencement, conduct and consummation of proceedings at law or in equity, (iv) the right to receive all notices, accountings, consents, releases and statements thereunder and (v) the right to do any and all other things whatsoever that the Issuer is or may be entitled to do thereunder; provided so long as no Indenture Default has occurred and is continuing hereunder, the Indenture Trustee hereby grants the Issuer a license to exercise all of the Issuer's rights pursuant to the Interest Rate Cap Agreement without notice to or the consent of the Indenture Trustee (except as otherwise Indenture 60 expressly required by this Indenture), which license shall be and is hereby deemed to be automatically revoked upon the occurrence of any Indenture Default until such time, if any, as the Indenture Default is cured or waived. The Indenture Trustee shall have no liability with respect to any act or failure to act by the Issuer under the Interest Rate Cap Agreement (provided that this sentence shall not limit or relieve the Indenture Trustee from any responsibility it may have under this Indenture upon the occurrence of and during the continuance of any Indenture Default hereunder). (b) The assignment made hereby is executed as collateral security, and the execution and delivery hereby shall not in any way impair or diminish the obligations of the Issuer under the provisions of the Interest Rate Cap Agreement, nor shall any of the obligations contained in the Interest Rate Cap Agreement be imposed on the Indenture Trustee. (c) Upon the retirement of the Notes and the release of the Trust Estate from the lien of this Indenture, this assignment and all rights herein assigned to the Indenture Trustee for the benefit of the Noteholders shall cease and terminate and all the estate, right, title and interest of the Indenture Trustee and the Noteholders in, to and under the Interest Rate Cap Agreement shall revert to the Issuer and no further instrument or act shall be necessary to evidence such termination and reversion. (d) The Issuer represents that the Issuer has not executed any other assignment of the Interest Rate Cap Agreement. (e) The Issuer agrees that this assignment is irrevocable, and that it will not take any action which is inconsistent with this assignment or make any other assignment inconsistent herewith. The Issuer will, upon the request of the Indenture Trustee, execute all instruments of further assurance and all such supplemental instruments with respect to this assignment as the Indenture Trustee may specify. (f) The Issuer further agrees, with respect to the Interest Rate Cap Agreement, as follows: (i) The Issuer will obtain on or before the Closing Date the acknowledgement by Cap Provider that the Issuer is assigning all of its right, title and interest in, to and under the Interest Rate Cap Agreement to the Indenture Trustee for the benefit of the Noteholders. (ii) Prior to the occurrence of an Indenture Default the Issuer will deliver to the Indenture Trustee copies of all notices and communications delivered or required to be delivered to the Issuer pursuant to the Interest Rate Cap Agreement, but only if such notice or communication relates to any (i) default under, (ii) early termination or (iii) amendment of, the Interest Rate Cap Agreement. (iii) The Issuer will not enter into any agreement amending, modifying or terminating the Interest Rate Cap Agreement, without prior written consent of the Noteholders holding not less than a Majority Interest of the Notes, voting together as a single class, and written confirmation by the Rating Agencies that such amendment, Indenture 61 modification or termination would not cause the ratings of any Class of Notes to be reduced or withdrawn; provided (A) that the consent of Noteholders holding not less than a Majority Interest of the Notes, voting together as a single class, and confirmation by the Rating Agencies shall not be required for an amendment or modification to cure any ambiguity or to correct or supplement any provision with respect to matters or questions arising under the Interest Rate Cap Agreement which shall not be inconsistent with the provisions thereof or of this Indenture, in each case so long as such amendment or modification does not affect in any material respects the interests of any Noteholder (as evidenced by an Opinion of Counsel acceptable to the Indenture Trustee) and (B) neither the consent of Noteholders holding not less than a Majority Interest of the Notes, voting together as a single class, confirmation by the Rating Agencies nor an Opinion of Counsel shall be required with respect to any amendment or modification that either only corrects a manifest error or is principally and manifestly for the benefit of the Noteholders. SECTION 11.20 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. Indenture 62 IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this Indenture to be duly executed by their respective officers, thereunto duly authorized, all as of the day and year first above written. NISSAN AUTO LEASE TRUST 2004-A By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee By: /s/ Joann A. Rozell --------------------------------- Name: Joann A. Rozell Title: Financial Services Officer U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee By: /s/ Patricia M. Child ------------------------------------- Name: Patricia M. Child Title: Vice President Receipt of this original counterpart of this Agreement is hereby acknowledged on this 28th day of October, 2004. NILT, INC., as Titling Trustee By: /s/ Patricia M. Child ------------------------------------- Name: Patricia M. Child Title: President Indenture S-1 STATE OF DELAWARE COUNTY OF NEW CASTLE BEFORE ME, the undersigned authority, a Notary Public in and for said county and state, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said WILMINGTON TRUST COMPANY, not in its individual capacity but as Owner Trustee of the NISSAN AUTO LEASE TRUST 2004-A, a Delaware statutory trust, and that such person executed the same as the act of said statutory trust for the purpose and consideration therein expressed, and in the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 15th day of October, 2004. /s/ Michele Lauren Centrella -------------------------------------------------- Notary Public in and for the State of DELAWARE (Seal) My commission expires: Michele Lauren Centrella Notary Public- Delaware My Comm. Expires May 17, 2006 Indenture STATE OF ILLINOIS COUNTY OF COOK BEFORE ME, the undersigned authority, a Notary Public in and for said county and state, on this day personally appeared , known to me to be the person and officer whose name is subscribed to the foregoing instrument and acknowledged to me that the same was the act of the said U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but as Indenture Trustee of the NISSAN AUTO LEASE TRUST 2004-A, a Delaware statutory trust, and that such person executed the same as the act of said statutory trust for the purpose and consideration therein expressed, and in the capacities therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 28th day of October, 2004. /s/ Phyllis Cloud ---------------------------------------------- Notary Public in and for the State of ILLINOIS (Seal) My commission expires: 1/8/05 Indenture EXHIBIT A FORM OF CLASS A-1 NOTE SEE REVERSE FOR CERTAIN DEFINITIONS UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE INDENTURE. THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE AGREED TO TREAT THE NOTES AS DEBT FOR UNITED STATES FEDERAL AND STATE INCOME TAX PURPOSES. THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO LEASING LLC II, NISSAN MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO., LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE RESERVE ACCOUNT. Indenture A-1 NISSAN AUTO LEASE TRUST 2004-A _____ % ASSET BACKED NOTE, CLASS A-1 REGISTERED $_________ No. R-___ CUSIP NO. _________ Nissan Auto Lease Trust 2004-A, a statutory trust organized and existing under the laws of the State of Delaware (including any permitted successors and assigns, the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of _______________________ ($_____________) in monthly installments on the 15th day of each month, or if such day is not a Business Day, on the immediately succeeding Business Day, commencing on November 15, 2004 (each, a "Payment Date"), until the principal of this Note is paid or made available for payment, and to pay interest on each Payment Date on the Class A-1 Note Balance as of the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), or as of the Closing Date in the case of the first Payment Date or if no interest has yet been paid, at the rate per annum shown above (the "Interest Rate"), in each case as and to the extent described below; provided, however, that the entire Class A-1 Note Balance shall be due and payable on the earlier of _________ (the "Note Final Scheduled Payment Date") and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. The Issuer shall pay interest on overdue installments of interest at the Interest Rate to the extent lawful. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof. The principal of and interest on this Note are payable in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note. Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note. Unless the certificate of authentication hereon has been executed by the Indenture Trustee the name of which appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose. Indenture IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or by facsimile, by its Authorized Officer as of the date set forth below. Dated:___________, 2004 NISSAN AUTO LEASE TRUST 2004-A, By: WILMINGTON TRUST COMPANY, as Owner Trustee By: _____________________________________ Name: Title: INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Notes designated above and referred to in the within-mentioned Indenture. Dated: _________, 2004 U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee By: _____________________________________ Name: Title: Indenture [REVERSE OF NOTE] This Note is one of a duly authorized issue of Notes of the Issuer, designated as its "____% Asset Backed Notes, Class A-1" (herein called the "Notes") issued under an Indenture, dated as of October 28, 2004 (such indenture, as supplemented or amended, is herein called the "Indenture"), between the Issuer and U.S. Bank National Association, as trustee (the "Indenture Trustee", which term includes any successor Indenture Trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended. The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4a Notes, and the Class A-4b Notes are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture. However, to the extent provided in the Indenture, each Class will receive principal payment sequentially so that, except as otherwise provided in the Indenture, no principal payments shall be made in respect of (i) the Class A-2 Notes until the Class A-1 Notes have been paid in full, (ii) the Class A-3 Notes until the Class A-2 Notes have been paid in full and (ii) the Class A-4a Notes and the Class A-4b Notes until the Class A-3 Notes have been paid in full. Principal payments on the Class A-4a Notes and Class A-4b Notes shall be made pro rata based on the principal balances of the Class A-4a Notes and the Class A-4b Notes until they are paid in full. Principal payable on the Notes will be paid on each Payment Date in the amount specified in the Indenture. As described above, the entire unpaid principal amount of this Note will be payable on the earlier of the Note Final Scheduled Payment Date and the Redemption Date, if any, selected pursuant to the Indenture. Notwithstanding the foregoing, under certain circumstances, the entire unpaid principal amount of the Notes shall be due and payable following the occurrence and continuance of an Indenture Default, as described in the Indenture. In such an event, first, principal payments on the Class A-1 Notes shall be made, and second, principal payments on the Class A-2 Notes, Class A-3 Notes, Class A-4a Notes and Class A-4b Notes shall be made pro rata to the Noteholders entitled thereto. Payments of principal and interest on this Note due and payable on each Payment Date or Redemption Date shall be made by check mailed to the Person whose name appears as the registered holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on the related Deposit Date, except that with respect to Notes registered on the Deposit Date in the name of (i) the nominee of DTC (initially, such nominee to be Cede & Co.), and (ii) a Person (other than the nominee of DTC) that holds Notes with original denominations aggregating at least $1 million and has given the Indenture Trustee appropriate written instructions at least five Business Days prior to the related Deposit Date (which instructions, until revised, shall remain operative for all Payment Dates thereafter), payments will be made by wire transfer in immediately available funds to the account designated by such nominee or Person. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Deposit Date without requiring that this Indenture Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any Payment Date or Redemption Date shall be binding upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the registered holder hereof as of the Deposit Date preceding such Payment Date or Redemption Date by notice mailed within five days of such Payment Date or Redemption Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the Indenture Trustee or at the office of the Indenture Trustee's agent appointed for such purposes located in The City of New York. As provided in the Indenture, the Servicer will be permitted at its option to purchase the 2004-A SUBI Certificate from the Issuer on any Payment Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Securities Balance is less than or equal to 10% of the Initial Securities Balance. The purchase price (the "Optional Purchase Price") for the 2004-A SUBI Certificate shall equal the Securitization Value of the 2004-A SUBI Assets plus the appraised value of any other property (other than cash, in which case such value shall be amount of such funds held in cash) held as part the Trust Assets (less liquidation expenses). The Redemption Price for the Notes will equal the aggregate Note Balance, plus accrued and unpaid interest thereon at the related Interest Rate (including to the extent allowed by law, interest on overdue interest, if applicable), to but not including the Redemption Date, which amount, with such additional amounts constituting in the aggregate the Optional Purchase Price, shall be deposited by the Servicer into the 2004-A SUBI Collection Account on the Deposit Date relating to the Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon and the 2004-A SUBI Certificate shall be delivered to the Servicer. As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture. No service charge will be charged for any registration of transfer or exchange of this Note, but the Transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange. Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in Indenture its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Transferor, the UTI Beneficiaries or any of their respective Affiliates. Each Noteholder by acceptance of a Note, or in the case of a Note Owner, by acceptance of a beneficial interest in the Notes, hereby covenants and agrees that it will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under federal or State bankruptcy or similar laws for a period of one year and a day after: (a) payment in full of all amounts due to each Holder in respect of the UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the Titling Trust and the Titling Trustee, without the consent of 100% of the Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary, the Transferor or any of their respective Affiliates); and (b) payment in full of the Notes, against the Transferor or the Issuer; provided, however, that 100% of the Noteholders, or, if no Notes are then outstanding, 100% of the Trust Certificateholders (in each case excluding the Transferor and any of its Affiliates) may at any time institute or join in instituting any bankruptcy, reorganization, insolvency or liquidation proceeding against the Transferor or the Issuer. Prior to the due presentment for registration of transfer of this Note, the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Owner Trustee, the Indenture Trustee nor any such agent shall be affected by notice to the contrary. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Noteholders under the Indenture at any time by the Issuer with the consent of Noteholders representing not less than a Majority Interest of the Notes. The Indenture also contains provisions permitting Noteholders representing specified percentages of the Outstanding Amount, on behalf of all Noteholders, to waive compliance by the Issuer with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such consent or waiver by the Noteholder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders. Indenture The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth. This Note and the Indenture shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws. No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed. Indenture ASSIGNMENT Social Security or taxpayer I.D. or other identifying number of assignee: ____________________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto _______________________________________________________________________ _______________________________________________________________________ (name and address of assignee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. Dated:(1) Signature Guaranteed: _______________________________ - --------------------- (1) The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Indenture FORM OF CLASS A-[2] [3] [4b] NOTE SEE REVERSE FOR CERTAIN DEFINITIONS UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE INDENTURE. THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE AGREED TO TREAT THE NOTES AS DEBT FOR UNITED STATES FEDERAL AND STATE INCOME TAX PURPOSES. THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO LEASING LLC II, NISSAN MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO., LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE RESERVE ACCOUNT. Indenture NISSAN AUTO LEASE TRUST 2004-A _____ % ASSET BACKED NOTE, CLASS A-[2] [3] [4b] REGISTERED $_________ No. R-___ CUSIP NO. _________ Nissan Auto Lease Trust 2004-A, a statutory trust organized and existing under the laws of the State of Delaware (including any permitted successors and assigns, the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of _______________________ ($_____________) in monthly installments on the 15th day of each month, or if such day is not a Business Day, on the immediately succeeding Business Day, commencing on November 15, 2004 (each, a "Payment Date"), until the principal of this Note is paid or made available for payment, and to pay interest on each Payment Date on the Class A-[2] [3] [4b] Note Balance as of the period from and including the 15th day of each month (after giving effect to all payments of principal made on the preceding Payment Date) to but excluding the 15th day of the immediately succeeding month, or as of the Closing Date in the case of the first Payment Date or if no interest has yet been paid, at the rate per annum shown above (the "Interest Rate"), in each case as and to the extent described below; provided, however, that the entire Class A-[2] [3] [4b] Note Balance shall be due and payable on the earlier of _________ (the "Note Final Scheduled Payment Date") and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. The Issuer shall pay interest on overdue installments of interest at the Interest Rate to the extent lawful. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof. The principal of and interest on this Note are payable in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note. Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note. Unless the certificate of authentication hereon has been executed by the Indenture Trustee the name of which appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose. Indenture IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or by facsimile, by its Authorized Officer as of the date set forth below. Dated: ________, 2004 NISSAN AUTO LEASE TRUST 2004-A, By: WILMINGTON TRUST COMPANY, as Owner Trustee By: _____________________________________ Name: Title: INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Notes designated above and referred to in the within-mentioned Indenture. Dated: _________, 2004 U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee By: _____________________________________ Name: Title: Indenture [REVERSE OF NOTE] This Note is one of a duly authorized issue of Notes of the Issuer, designated as its "____% Asset Backed Notes, Class A-[2] [3] [4b] (herein called the "Notes") issued under an Indenture, dated as of October 28, 2004 (such indenture, as supplemented or amended, is herein called the "Indenture"), between the Issuer and U.S. Bank National Association, as trustee (the "Indenture Trustee", which term includes any successor Indenture Trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended. The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4a Notes and Class A-4b Notes are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture. However, to the extent provided in the Indenture, each Class will receive principal payment sequentially so that, except as otherwise provided in the Indenture, no principal payments shall be made in respect of (i) the Class A-2 Notes until the Class A-1 Notes have been paid in full, (ii) the Class A-3 Notes until the Class A-2 Notes have been paid in full and (iii) the Class A-4a Notes and the Class A-4b Notes until the Class A-3 Notes have been paid in full. Principal payments on the Class A-4a Notes and Class A-4b Notes shall be made pro rata based on the principal balances of the Class A-3, Class A-4a Notes and the Class A-4b Notes until they are paid in full. Principal payable on the Notes will be paid on each Payment Date in the amount specified in the Indenture. As described above, the entire unpaid principal amount of this Note will be payable on the earlier of the Note Final Scheduled Payment Date and the Redemption Date, if any, selected pursuant to the Indenture. Notwithstanding the foregoing, under certain circumstances, the entire unpaid principal amount of the Notes shall be due and payable following the occurrence and continuance of an Indenture Default, as described in the Indenture. In such an event, first, principal payments on the Class A-1 Notes shall be made, and second, principal payments on the Class A-2 Notes, Class A-3 Notes, Class A-4a Notes and Class A-4b Notes shall be made pro rata to the Noteholders entitled thereto. Payments of principal and interest on this Note due and payable on each Payment Date or Redemption Date shall be made by check mailed to the Person whose name appears as the registered holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on the related Deposit Date, except that with respect to Notes registered on the Deposit Date in the name of (i) the nominee of DTC (initially, such nominee to be Cede & Co.), and (ii) a Person (other than the nominee of DTC) that holds Notes with original denominations aggregating at least $1 million and has given the Indenture Trustee appropriate written instructions at least five Business Days prior to the related Deposit Date (which instructions, until revised, shall remain operative for all Payment Dates thereafter), payments will be made by wire transfer in immediately available funds to the account designated by such nominee or Person. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Deposit Date without requiring that this Indenture Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any Payment Date or Redemption Date shall be binding upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the registered holder hereof as of the Deposit Date preceding such Payment Date or Redemption Date by notice mailed within five days of such Payment Date or Redemption Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the Indenture Trustee or at the office of the Indenture Trustee's agent appointed for such purposes located in The City of New York. As provided in the Indenture, the Servicer will be permitted at its option to purchase the 2004-A SUBI Certificate from the Issuer on any Payment Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Securities Balance is less than or equal to 10% of the Initial Securities Balance. The purchase price (the "Optional Purchase Price") for the 2004-A SUBI Certificate shall equal the Securitization Value of the 2004-A SUBI Assets plus the appraised value of any other property (other than cash, in which case such value shall be amount of such funds held in cash) held as part the Trust Assets (less liquidation expenses). The Redemption Price for the Notes will equal the aggregate Note Balance, plus accrued and upaid interest thereon at the related Interest Rate (including to the extent allowed by law, interest on overdue interest, if applicable), to but not including the Redemption Date, which amount, with such additional amounts constituting in the aggregate the Optional Purchase Price, shall be deposited by the Servicer into the 2004-A SUBI Collection Account on the Deposit Date relating to the Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the 2004-A SUBI Certificate shall be delivered to the Servicer. As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture. No service charge will be charged for any registration of transfer or exchange of this Note, but the Transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange. Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee in Indenture its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Transferor, the UTI Beneficiaries or any of their respective Affiliates. Each Noteholder by acceptance of a Note, or in the case of a Note Owner, by acceptance of a beneficial interest in the Notes, hereby covenants and agrees that it will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under federal or State bankruptcy or similar laws for a period of one year and a day after: (a) payment in full of all amounts due to each Holder in respect of the UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the Titling Trust and the Titling Trustee, without the consent of 100% of the Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary, the Transferor or any of their respective Affiliates); and (b) payment in full of the Notes, against the Transferor or the Issuer; provided, however, that 100% of the Noteholders, or, if no Notes are then outstanding, 100% of the Trust Certificateholders (in each case excluding the Transferor and any of its Affiliates) may at any time institute or join in instituting any bankruptcy, reorganization, insolvency or liquidation proceeding against the Transferor or the Issuer. Prior to the due presentment for registration of transfer of this Note, the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Owner Trustee, the Indenture Trustee nor any such agent shall be affected by notice to the contrary. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Noteholders under the Indenture at any time by the Issuer with the consent of Noteholders representing not less than a Majority Interest of the Notes. The Indenture also contains provisions permitting Noteholders representing specified percentages of the Outstanding Amount, on behalf of all Noteholders, to waive compliance by the Issuer with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such consent or waiver by the Noteholder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders. Indenture The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth. This Note and the Indenture shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws. No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed. Indenture ASSIGNMENT Social Security or taxpayer I.D. or other identifying number of assignee: ______________________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto _______________________________________________________________________ _______________________________________________________________________ (name and address of assignee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. Dated:(1) Signature Guaranteed: ____________________________ - --------------------- (1) The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Indenture FORM OF CLASS A-4a NOTE SEE REVERSE FOR CERTAIN DEFINITIONS UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THE PRINCIPAL OF THIS NOTE IS PAYABLE AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. TRANSFERS OF THE NOTES MUST GENERALLY BE ACCOMPANIED BY APPROPRIATE TAX TRANSFER DOCUMENTATION AND ARE SUBJECT TO RESTRICTIONS AS PROVIDED IN THE INDENTURE. THE HOLDER, BY ACCEPTANCE OF THIS NOTE, SHALL BE DEEMED TO HAVE AGREED TO TREAT THE NOTES AS DEBT FOR UNITED STATES FEDERAL AND STATE INCOME TAX PURPOSES. THIS NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE INSURED OR GUARANTEED BY, ANY GOVERNMENTAL AGENCY OR NISSAN AUTO LEASING LLC II, NISSAN MOTOR ACCEPTANCE CORPORATION, NISSAN NORTH AMERICA, INC., NISSAN MOTOR CO., LTD., ANY TRUSTEE OR ANY OF THEIR AFFILIATES. THE PRINCIPAL AND INTEREST ON THIS NOTE IS PAYABLE SOLELY FROM PAYMENTS ON THE RECEIVABLES AND AMOUNTS ON DEPOSIT IN THE RESERVE ACCOUNT. Indenture NISSAN AUTO LEASE TRUST 2004-A FLOATING RATE ASSET BACKED NOTE, CLASS A-4a REGISTERED $_________ No. R-___ CUSIP NO. _________ Nissan Auto Lease Trust 2004-A, a statutory trust organized and existing under the laws of the State of Delaware (including any permitted successors and assigns, the "Issuer"), for value received, hereby promises to pay to CEDE & CO., or registered assigns, the principal sum of _______________________ ($_____________) in monthly installments on the 15th day of each month, or if such day is not a Business Day, on the immediately succeeding Business Day, commencing on November 15, 2004 (each, a "Payment Date"), until the principal of this Note is paid or made available for payment, and to pay interest on each Payment Date on the Class A-4a Note Balance as of the preceding Payment Date (after giving effect to all payments of principal made on the preceding Payment Date), or as of the Closing Date in the case of the first Payment Date or if no interest has yet been paid, at the rate of one-month LIBOR/plus 0.07000% (the "Interest Rate"), in each case as and to the extent described below; provided, however, that the entire Class A-4a Note Balance shall be due and payable on the earlier of _________ (the "Note Final Payment Scheduled Date") and the Redemption Date, if any, pursuant to Section 10.01 of the Indenture. The Issuer shall pay interest on overdue installments of interest at the Interest Rate to the extent lawful. Such principal of and interest on this Note shall be paid in the manner specified on the reverse hereof. The principal of and interest on this Note are payable in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts. All payments made by the Issuer with respect to this Note shall be applied first to interest due and payable on this Note as provided above and then to the unpaid principal of this Note. Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note. Unless the certificate of authentication hereon has been executed by the Indenture Trustee the name of which appears below by manual signature, this Note shall not be entitled to any benefit under the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose. Indenture IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed, manually or by facsimile, by its Authorized Officer as of the date set forth below. Dated: ________, 2004 NISSAN AUTO LEASE TRUST 2004-A, By: WILMINGTON TRUST COMPANY, as Owner Trustee By: _____________________________________ Name: Title: INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Notes designated above and referred to in the within-mentioned Indenture. Dated: _________, 2004 U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee By: _____________________________________ Name: Title: Indenture A-19 [REVERSE OF NOTE] This Note is one of a duly authorized issue of Notes of the Issuer, designated as its "Floating Rate Asset Backed Notes, Class A-4a" (herein called the "Notes") issued under an Indenture, dated as of October 28, 2004 (such indenture, as supplemented or amended, is herein called the "Indenture"), between the Issuer and U.S. Bank National Association, as trustee (the "Indenture Trustee", which term includes any successor Indenture Trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights and obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders. The Notes are subject to all terms of the Indenture. All terms used in this Note that are defined in the Indenture, as supplemented or amended, shall have the meanings assigned to them in or pursuant to the Indenture, as so supplemented or amended. The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4a Notes and Class A-4b Notes are and will be equally and ratably secured by the Collateral pledged as security therefor as provided in the Indenture. However, to the extent provided in the Indenture, each Class will receive principal payment sequentially so that, except as otherwise provided in the Indenture, no principal payments shall be made in respect of (i) the Class A-2 Notes until the Class A-1 Notes have been paid in full, (ii) the Class A-3 Notes until the Class A-2 Notes have been paid in full, and (iii) the Class A-4a Notes and the Class A-4b Notes until the Class A-3 Notes have been paid in full. Principal payments on the Class A-4a Notes and Class A-4b Notes shall be made pro rata based on the principal balances of the Class A-4a Notes and the Class A-4b Notes until they are paid in full. Principal payable on the Notes will be paid on each Payment Date in the amount specified in the Indenture. As described above, the entire unpaid principal amount of this Note will be payable on the earlier of the Note Final Scheduled Payment Date and the Redemption Date, if any, selected pursuant to the Indenture. Notwithstanding the foregoing, under certain circumstances, the entire unpaid principal amount of the Notes shall be due and payable following the occurrence and continuance of an Indenture Default, as described in the Indenture. In such an event, first, principal payments on the Class A-1 Notes shall be made, and second, principal payments on the Class A-2 Notes, Class A-3 Notes, Class A-4a Notes and Class A-4b Notes shall be made pro rata to the Noteholders entitled thereto. Payments of principal and interest on this Note due and payable on each Payment Date or Redemption Date shall be made by check mailed to the Person whose name appears as the registered holder of this Note (or one or more Predecessor Notes) on the Note Register as of the close of business on the related Deposit Date, except that with respect to Notes registered on the Deposit Date in the name of (i) the nominee of DTC (initially, such nominee to be Cede & Co.), and (ii) a Person (other than the nominee of DTC) that holds Notes with original denominations aggregating at least $1 million and has given the Indenture Trustee appropriate written instructions at least five Business Days prior to the related Deposit Date (which instructions, until revised, shall remain operative for all Payment Dates thereafter), payments will be made by wire transfer in immediately available funds to the account designated by such nominee or Person. Such checks shall be mailed to the Person entitled thereto at the address of such Person as it appears on the Note Register as of the applicable Deposit Date without requiring that this Indenture Note be submitted for notation of payment. Any reduction in the principal amount of this Note (or any one or more Predecessor Notes) affected by any payments made on any Payment Date or Redemption Date shall be binding upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not noted hereon. If funds are expected to be available, as provided in the Indenture, for payment in full of the remaining unpaid principal amount of this Note on a Payment Date or Redemption Date, then the Indenture Trustee, in the name of and on behalf of the Issuer, will notify the Person who was the registered holder hereof as of the Deposit Date preceding such Payment Date or Redemption Date by notice mailed within five days of such Payment Date or Redemption Date and the amount then due and payable shall be payable only upon presentation and surrender of this Note at the Corporate Trust Office of the Indenture Trustee or at the office of the Indenture Trustee's agent appointed for such purposes located in The City of New York. As provided in the Indenture, the Servicer will be permitted at its option to purchase the 2004-A SUBI Certificate from the Issuer on any Payment Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, the Securities Balance is less than or equal to 10% of the Initial Securities Balance. The purchase price (the "Optional Purchase Price") for the 2004-A SUBI Certificate shall equal the Securitization Value of the 2004-A SUBI Assets plus the appraised value of any other property (other than cash, in which case such value shall be amount of such funds held in cash) held as part the Trust Assets (less liquidation expenses). The Redemption Price for the Notes will equal the aggregate Note Balance, plus accrued and upaid interest thereon at the related Interest Rate (including to the extent allowed by law, interest on overdue interest, if applicable), to but not including the Redemption Date, which amount, with such additional amounts constituting in the aggregate the Optional Purchase Price, shall be deposited by the Servicer into the 2004-A SUBI Collection Account on the Deposit Date relating to the Payment Date fixed for redemption. In connection with an Optional Purchase, the Notes will be redeemed on such Payment Date in whole, but not in part, for the Redemption Price and thereupon the 2004-A SUBI Certificate shall be delivered to the Servicer. As provided in the Indenture and subject to certain limitations set forth therein, the transfer of this Note may be registered on the Note Register upon surrender of this Note for registration of transfer at the office or agency designated by the Issuer pursuant to the Indenture. No service charge will be charged for any registration of transfer or exchange of this Note, but the Transferor may be required to pay a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such registration of transfer or exchange. Each Noteholder or Note Owner, by acceptance of a Note or, in the case of a Note Owner, a beneficial interest in a Note, covenants and agrees that no recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer, the Owner Trustee or the Indenture Trustee on the Notes or under the Indenture or any certificate or other writing delivered in connection therewith against (i) the Indenture Trustee or the Owner Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or employee of the Indenture Trustee or the Owner Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Owner Trustee Indenture in its individual capacity, except as any such Person may have expressly agreed and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. The Notes represent obligations of the Issuer only and do not represent interests in, recourse to or obligations of the Transferor, the UTI Beneficiaries or any of their respective Affiliates. Each Noteholder by acceptance of a Note, or in the case of a Note Owner, by acceptance of a beneficial interest in the Notes, hereby covenants and agrees that it will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under federal or State bankruptcy or similar laws for a period of one year and a day after: (a) payment in full of all amounts due to each Holder in respect of the UTI, the 2004-A SUBI or any Other SUBIs, against the UTI Beneficiary, the Titling Trust and the Titling Trustee, without the consent of 100% of the Holders of the 2004-A SUBI and any Other SUBI (excluding the UTI Beneficiary, the Transferor or any of their respective Affiliates); and (b) payment in full of the Notes, against the Transferor or the Issuer; provided, however, that 100% of the Noteholders, or, if no Notes are then outstanding, 100% of the Trust Certificateholders (in each case excluding the Transferor and any of its Affiliates) may at any time institute or join in instituting any bankruptcy, reorganization, insolvency or liquidation proceeding against the Transferor or the Issuer. Prior to the due presentment for registration of transfer of this Note, the Owner Trustee, the Indenture Trustee and any agent of the Owner Trustee or the Indenture Trustee may treat the Person in whose name this Note (as of the day of determination or as of such other date as may be specified in the Indenture) is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Owner Trustee, the Indenture Trustee nor any such agent shall be affected by notice to the contrary. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Noteholders under the Indenture at any time by the Issuer with the consent of Noteholders representing not less than a Majority Interest of the Notes. The Indenture also contains provisions permitting Noteholders representing specified percentages of the Outstanding Amount, on behalf of all Noteholders, to waive compliance by the Issuer with certain provisions of the Indenture and certain past Defaults under the Indenture and their consequences. Any such consent or waiver by the Noteholder of this Note (or any one or more Predecessor Notes) shall be conclusive and binding upon such Noteholder and upon all future Noteholders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note. The Indenture also permits the Indenture Trustee to amend or waive certain terms and conditions set forth in the Indenture without the consent of the Noteholders. Indenture The Notes are issuable only in registered form in denominations as provided in the Indenture, subject to certain limitations therein set forth. This Note and the Indenture shall be construed in accordance with the laws of the State of New York, and the obligations, rights and remedies of the parties hereunder and thereunder shall be determined in accordance with such laws. No reference herein to the Indenture and no provision of this Note or the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, place and rate and in the coin or currency herein prescribed. Indenture ASSIGNMENT Social Security or taxpayer I.D. or other identifying number of assignee: ____________________________ FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto _______________________________________________________________________ _______________________________________________________________________ (name and address of assignee) the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said Note on the books kept for registration thereof, with full power of substitution in the premises. Dated:(1) Signature Guaranteed: ___________________________ - ------------------------ (1) The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever. Indenture EXHIBIT B FORM OF DEPOSITORY AGREEMENT [Omitted.] Indenture B-1 EX-10.1 3 a02810exv10w1.txt EXHIBIT 10.1 EXHIBIT 10.1 AGREEMENT OF DEFINITIONS by and among NISSAN MOTOR ACCEPTANCE CORPORATION NISSAN AUTO LEASING LLC II NISSAN AUTO LEASE TRUST 2004-A NISSAN-INFINITI LT NILT TRUST NILT, INC. WILMINGTON TRUST COMPANY U.S. BANK NATIONAL ASSOCIATION Dated as of October 28, 2004 AGREEMENT OF DEFINITIONS This Agreement of Definitions ("Agreement of Definitions"), dated as of October 28, 2004, is by and among Nissan Auto Lease Trust 2004-A, as issuer (the "Issuer"), NILT Trust, a Delaware statutory trust, as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary," respectively), Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), in its individual capacity, as servicer and as Administrative Agent (in such capacity, the "Servicer" and the "Administrative Agent," respectively), Nissan Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), NILT, Inc., a Delaware corporation, as trustee to the Titling Trust (the "Titling 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 National Association, a national banking association ("U.S. Bank"), as trust agent and indenture trustee (in such capacity, the "Trust Agent" and the "Indenture Trustee," respectively). RECITALS A. Pursuant to the Amended and Restated Trust and Servicing Agreement, dated as of August 26, 1998 (the "Titling Trust Agreement"), among the Grantor, the Servicer, the Trustee, the Owner Trustee, and the Trust Agent, the Titling Trust was formed to take assignments and conveyances of and hold in trust various assets (the "Trust Assets"); B. The UTI Beneficiary, the Servicer, and the Titling Trust have entered into the SUBI Servicing Agreement, dated as of March 1, 1999 (the "Basic Servicing Agreement"), by and among the UTI Beneficiary, the Servicer, and the Issuer, which provides for, among other things, the servicing of the Trust Assets by the Servicer; C. Pursuant to the Titling Trust Agreement, from time to time the Trustee, on behalf of the Titling Trust and at the direction of the UTI Beneficiary, will identify and allocate on the books and records of the Titling Trust certain Trust Assets and create and issue one or more special units of beneficial interest (each, a "SUBI"), the beneficiaries of which generally will be entitled to the net cash flows arising from such Trust Assets; D. The parties hereto desire to supplement the Titling Trust Agreement (as so supplemented by the 2004-A SUBI Supplement, the "SUBI Trust Agreement") to create a SUBI (the "2004-A SUBI"); E. The parties hereto desire to identify and allocate to the 2004-A SUBI a separate portfolio of Trust Assets consisting of leases (the "2004-A Leases") and certain other related Trust Assets and the vehicles that are leased under the 2004-A Leases (the "2004-A Vehicles"); F. The parties hereto also desire that the Titling Trust issue to NILT Trust a certificate evidencing a 100% beneficial interest in the 2004-A SUBI (the "2004-A SUBI Certificate"); G. NILT Trust will transfer the 2004-A SUBI Certificate and the 2004-A SUBI Assets evidenced thereby to NALL II pursuant to the SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the "SUBI Certificate Transfer Agreement"). NALL II will further transfer the 2004-A SUBI Certificate and the 2004-A SUBI Assets evidenced thereby to the Issuer pursuant to the Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the "Trust SUBI Certificate Transfer Agreement"). 1 H. Pursuant to the Indenture, dated as of October 28, 2004 (the "Indenture"), by and between the trust and the Indenture Trustee, the Issuer will (i) issue $265,000,000 aggregate principal amount of 2.10563% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $260,000,000 aggregate principal amount of 2.55000% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $357,000,000 aggregate principal amount of 2.90000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), $488,000,000 aggregate principal amount of Floating Rate Asset Backed Notes, Class A-4a (the "Class A-4a Notes"), and $100,000,000 aggregate principal amount of 3.18000% Asset Backed Notes, Class A-4b (the "Class A-4b Notes," and, together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes and the Class A-4a Notes, the "Notes"); and (ii) pledge the 2004-A SUBI Certificate and the 2004-A SUBI Assets evidenced thereby to the Indenture Trustee for the benefit of the holders of the Notes; I. The parties hereto also desire to register a pledge of the 2004-A SUBI Certificate to the Indenture Trustee for the benefit of the holders of the Notes; J. The parties hereto have agreed to enter into this Agreement of Definitions in an effort to establish and agree upon a single set of definitions for any capitalized term used and not otherwise defined in any documents executed in connection with the 2004-A SUBI if such document references this Agreement of Definitions. NOW, THEREFORE, in consideration of the parties' mutual agreement to rely upon the definitions contained herein in the interpretation of certain of the Basic Documents (as defined herein), the parties hereto agree as follows: Section 1.01. Definitions. In the event of any conflict or inconsistency between a definition set forth both herein and in any of the Basic Documents, the definitions set forth in each such Basic Document shall prevail with respect to such Basic Document. For all purposes of this Agreement of Definitions, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Agreement of Definitions include, as appropriate, all genders and the plural as well as the singular, (ii) the term "include" and all variations thereof mean "include without limitation," (iii) the term "or" means "and/or," (iv) the term "proceeds" has the meaning ascribed to such term in the UCC, (v) any reference herein to an agreement includes any amendment, supplement or restatement thereof, (vi) any reference herein to any person includes, as applicable, any successors and permitted assigns of that person, and (vii) any reference herein to any statute means that statute, as it has been amended, and including all rules and regulations promulgated thereunder. Whenever any agreement relates to the Basic Documents or to the transactions contemplated by the Basic Documents, subject to the preceding paragraph, the capitalized terms used without definition in such agreement shall have the following meanings: "Accountant" means a firm of public accountants of nationally recognized standing. "Accounts" means the Note Distribution Account and the Reserve Account. "Accrual Period" means (i) with respect to any Payment Date and the Class A-1 Notes and the Class A-4a Notes, the period from and including the immediately preceding Payment Date to but excluding the current Payment Date, or, in the case of the first Payment Date or if no interest has yet been paid, from and including the Closing Date to, but excluding, the first Payment Date and (ii) with respect to any Payment Date and the Class A-2 Notes, the Class A-3 Notes and the Class A-4b Notes, the period from and including the 15th day of each month to but excluding the 15th day of the 2 immediately succeeding month, or with respect to the first Payment Date, from and including the Closing Date to, but excluding, the first Payment Date. "Act" has the meaning set forth in Section 11.03(a) of the Indenture. "Administrative Agent" means NMAC, as Administrative Agent under the Trust Administration Agreement. "Administrative Charge" means, with respect to any Lease, any payment (whether or not part of the fixed monthly payment) payable to the related Lessor representing a late payment fee, an Extension Fee, an allocation to the related Lessee of insurance premiums, sales, personal property or excise taxes or any other similar charge, plus any disposition fee, with respect to any Lease or Leased Vehicle. "Administrative Lien" means a first lien upon any Certificate of Title deemed necessary and useful by the Servicer or by the UIT Beneficiary and the Servicer solely to provide for delivery of title documentation to the Titling Trustee or its designee. "Advance" means a Sales Proceeds Advance or a Monthly Payment Advance, as the context may require. "Affiliate" of any Person means any other Person that (i) directly or indirectly controls, is controlled by or is under common control with such Person (excluding any trustee under, or any committee with responsibility for administering, any employee benefit plan) or (ii) is an officer, director, member or partner of such Person. For purposes of this definition, a Person shall be deemed to be "controlled by" another Person if such Person possesses, directly or indirectly, the power (i) to vote 5% or more of the securities (on a fully diluted basis, having ordinary voting power for the election of directors, members or managing partners of such Person) or (ii) to direct or cause the direction of the management and policies of such Person, whether by contract or otherwise. "Aggregate Certificate Balance" means, as of any date, the aggregate principal amount of the Trust Certificates as of such date. "Agreement of Definitions" means this Agreement of Definitions. "Assets" has the meaning set forth in Section 2.01 to the SUBI Certificate Transfer Agreement. "Assignee-Secured Party" U.S. Bank, acting in such capacity under the Control Agreement. "Auction Proceeds" means, with respect to a Collection Period, all amounts received by the Servicer in connection with the sale or disposition of any vehicle which is sold at auction or otherwise disposed of by the Servicer during such Collection Period, other than Insurance Proceeds. "Authenticating Agent" means any Person authorized by the Indenture Trustee to act on behalf of the Indenture Trustee to authenticate and deliver the Notes or any Person authorized by the Owner Trustee to act on behalf of the Owner Trustee to authenticate and deliver the Trust Certificates, as the context may require. 3 "Authorized Newspaper" means a newspaper of general circulation in The City of New York, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays, and holidays. "Authorized Officer" means (a) with respect to the Issuer, (i) any officer of the Owner Trustee who is authorized to act for the Owner Trustee in matters relating to the Issuer and who is identified on the list of Authorized Officers delivered by the Owner Trustee to the Indenture Trustee on the Closing Date and (ii) so long as the Trust Administration Agreement is in effect, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, and any Assistant Secretary of the Administrative Agent, and (b) with respect to the Servicer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, and any Assistant Secretary of the Servicer. "Automotive Lease Guide" means the publication of such name, which includes residual factors, or any successor publication. "Available Funds" means, for any Payment Date and the related Collection Period, the sum of the following amounts: (i) SUBI Collections, (ii) Advances, (iii) in the case of an Optional Purchase, the Optional Purchase Price and (iv) Cap Payments and Cap Termination Payments made by the Cap Provider to the Issuer. "Available Funds Shortfall Amount" means, for any Payment Date and the related Collection Period, the amount, if any, by which Available Funds are less than (i) the Servicer Monthly Payment and (ii) the amount necessary to make the distributions in clauses (i) through (ii) of Section 8.04(a) of the Indenture, except that the Optimal Principal Distributable Amount rather than the Monthly Principal Distributable Amount shall be used for purposes of clause (ii). "Available Principal Distribution Amount" means, for any Payment Date and the related Collection Period, an amount equal to the sum of the amount of (i) Available Funds remaining after the Servicer has been paid the Payment Date Advance Reimbursement and the Servicing Fee (together with any unpaid Servicing Fees in respect of one or more prior Collection Periods) and accrued interest has been paid on the Notes and (ii) the Reserve Account Draw Amount remaining after accrued interest has been paid on the Notes. "Back-Up Event" means that a court of competent jurisdiction has made a determination or ruling that has the effect of allowing realization on the security intended to be provided to the Indenture Trustee by the Transfer Documents only if such transactions are deemed to constitute a loan by any or all of the Securityholders, secured directly by a pledge of the 2004-A SUBI Assets or any interest therein (rather than by the 2004-A SUBI Certificate and the beneficial interest in the 2004-A SUBI Assets represented thereby). "Back-up Security Agreement" means the security agreement, dated as of October 28, 2004, among NMAC, the Titling Trust, NILT Trust, the Transferor, the Issuer, and the Indenture Trustee. "Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. Section 101 et seq. "Basic Documents" means the Servicing Agreement, the SUBI Trust Agreement, the Trust Agreement, the Trust Administration Agreement, the Indenture, the SUBI Certificate Transfer Agreement, the Trust SUBI Certificate Transfer Agreement, the Control Agreement, the Underwriting 4 Agreement, the Back-up Security Agreement, the 2004-A SUBI Certificate, the Interest Rate Cap Agreement, and the Securities. "Basic Servicing Agreement" means the servicing agreement, dated as of March 1, 1999, among the Titling Trust, NILT Trust, the UTI Beneficiary, and NMAC, as servicer. "Beneficiaries" means, collectively, the Related Beneficiaries of all Sub-Trusts, and "Beneficiary" means any of such Beneficiaries. "Benefit Plan" means (i) an employee benefit plan, as defined in Section 3(3) of ERISA, that is subject to Title I of ERISA, (ii) a "plan" as defined in Section 4975(e)(1) of the Code that is subject to Section 4975 of the Code or (iii) an entity whose underlying assets include "plan assets" by reason of a plan's investment in the entity (within the meaning of Department of Labor Regulation 29 C.F.R. Section 2510.3-101) or otherwise (including, for purposes of this clause, any insurance company general account). "Book-Entry Notes" means a beneficial interest in the Notes, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 2.09 of the Indenture. "Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in the states of Delaware, California, Illinois or New York are authorized or obligated by law, executive order, or government decree to be closed. "Calculation Agent" means U.S. Bank, acting in such capacity under the Indenture. "Calculation Date" means, with respect to any Collection Period, the 15th calendar day of the immediately succeeding Collection Period, or if such day is not a Business Day, the Business Day immediately preceding such calendar day. "Cap Event of Default" means (i) the failure of the Cap Provider to pay any amount when due under the Interest Rate Cap Agreement after giving effect to any applicable grace period; (ii) the occurrence of certain events of insolvency or bankruptcy of the Cap Provider as specified in the Interest Rate Cap Agreement; and (iii) certain other standard events of default as specified in the Interest Rate Cap Agreement. "Cap Payments" means on any Payment Date the amount, if any, then payable by the Cap Provider to the Issuer, excluding any Cap Termination Payments. "Cap Provider" means JPMorgan Chase Bank, as Cap Provider under the Interest Rate Cap Agreement, or any successor or replacement Cap Provider from time to time under the Interest Rate Cap Agreement. "Cap Termination Event" means any Termination Event specified in the Interest Rate Cap Agreement. "Cap Termination Payment" means any termination payment payable by the Cap Provider to the Issuer under the Interest Rate Cap Agreement. "Casualty Termination" as of any date means any Lease that has been terminated prior to its Maturity Date if the related Leased Vehicle has been lost, stolen or damaged beyond economic repair. 5 "Certificate Balance" means, as of any date, the aggregate principal amount of the Trust Certificates as of such date. "Certificate Distribution Account" means the account established pursuant to Section 5.01(a) to the Trust Agreement. "Certificate Distribution Amount" means, as of any Payment Date, the amount being distributed to the Trust Certificateholders on such Payment Date. "Certificate Factor" means, with respect to the Trust Certificates on any Payment Date, the seven digit decimal equivalent of a fraction, the numerator of which is the Certificate Balance on such Payment Date (after giving effect to any payment of principal on such Payment Date), and the denominator of which is the Certificate Balance on the Closing Date. "Certificate of Title" has the meaning set forth in the Titling Trust Agreement. "Certificate of Trust" means the Certificate of Trust filed for the Issuer pursuant to Section 3810(a) of the Statutory Trust Statute. "Certificate Register" and "Certificate Registrar" mean the register mentioned in and the registrar appointed pursuant to Section 3.04 of the Trust Agreement. "Claims" means all liabilities, claims and expenses (including reasonable legal and other professional fees and expenses). "Class" means a group of Notes the form of which is identical except for variation in denomination, principal amount or owner, and references to "each Class" means each of the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4a Notes, and the Class A-4b Notes. "Class A-1 Interest Rate" means 2.10563% per annum (computed on the basis of the actual number of days elapsed, but assuming a 360-day year). "Class A-1 Note Balance" means, as of any date, the Initial Class A-1 Note Balance reduced by all payments of principal made on or prior to such date on the Class A-1 Notes. "Class A-1 Noteholder" means, as of any date, the Person in whose name a Class A-1 Note is registered on the Note Register on such date. "Class A-1 Notes" has the meaning set forth in the preamble to the Indenture. "Class A-2 Interest Rate" means 2.55000% per annum (computed on the basis of a 360-day year of twelve 30-day months). "Class A-2 Note Balance" means, as of any date, the Initial Class A-2 Note Balance reduced by all payments of principal made on or prior to such date on the Class A-2 Notes. "Class A-2 Noteholder" means, as of any date, the Person in whose name a Class A-2 Note is registered on the Note Register on such date. "Class A-2 Notes" has the meaning set forth in the preamble to the Indenture. 6 "Class A-3 Interest Rate" means 2.90000% per annum (computed on the basis of a 360-day year of twelve 30-day months). "Class A-3 Note Balance" means, as of any date, the Initial Class A-3 Note Balance reduced by all payments of principal made on or prior to such date on the Class A-3 Notes. "Class A-3 Noteholder" means, as of any date, the Person in whose name a Class A-3 Note is registered on the Note Register on such date. "Class A-3 Notes" has the meaning set forth in the preamble to the Indenture. "Class A-4a Interest Rate" means LIBOR plus 0.07% per annum (computed on the basis of the actual number of days elapsed, but assuming a 360-day year). "Class A-4a Note Balance" means, as of any date, the Initial Class A-4a Note Balance reduced by all payments of principal made on or prior to such date on the Class A-4a Notes. "Class A-4a Noteholder" means, as of any date, the Person in whose name a Class A-4a Note is registered on the Note Register on such date. "Class A-4a Notes" means has the meaning set forth in the preamble to the Indenture. "Class A-4b Interest Rate" means 3.18000% per annum (computed on the basis of a 360-day year of twelve 30-day months). "Class A-4b Note Balance" means, as of any date, the Initial Class A-4b Note Balance reduced by all payments of principal made on or prior to such date on the Class A-4b Notes. "Class A-4b Noteholder" means, as of any date, the Person in whose name a Class A-4b Note is registered on the Note Register on such date. "Class A - 4b Notes" has the meaning set forth in the preamble to the Indenture. "Class Balance" means, as of any date, the Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4a Note Balance, or the Class A-4b Note Balance, as applicable. "Clearing Agency" means an organization registered as a "clearing agency" pursuant to Section 17A of the Exchange Act and shall initially be DTC. "Clearing Agency Participant" means a broker, dealer, bank, or other financial institution or other Person for which from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency. "Closing Date" means October 28, 2004. "Code" means the Internal Revenue Code of 1986. "Collateral" has the meaning set forth in Section 2.01(a) of the Back-up Security Agreement and in the Granting Clause of the Indenture, as the context may requires. 7 "Collection Account" means, with respect to any Sub-Trust, the account created, designated and maintained as such pursuant to Section 4.02 of the Titling Trust Agreement. "Collection Period" has the meaning set forth in the Servicing Agreement. "Commission" means the Securities and Exchange Commission. "Contingent and Excess Liability Insurance Policy" has the meaning set forth in the Basic Servicing Agreement. "Contract Residual" means, with respect to any Lease, the expected value of the related Leased Vehicle at the Maturity Date as established or assigned by the Servicer at the time of origination of such Lease in accordance with its customary practices for the purpose of determining the Monthly Payment. "Control Agreement" means the control agreement, dated as of October 28, 2004, among the Issuer, the Indenture Trustee, as Indenture Trustee and as Secured Party, and U.S. Bank, as Securities Intermediary. "Co-Trustee" has the meaning set forth in the Basic Servicing Agreement. "Credit and Collection Policy" has the meaning set forth in the Basic Servicing Agreement. "Corporate Trust Office" means the office of the Indenture Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of the execution of this Indenture is located at Wrigley Building, 209 South LaSalle Street, Suite 300, Chicago, Illinois 60604; or at such other address as the Indenture Trustee may designate from time to time by notice to the Noteholders and the Issuer, or the principal corporate trust office of any successor Indenture Trustee (the address of which the successor Indenture Trustee shall notify the Noteholders and the Issuer). "Cutoff Date" means the close of business on August 31, 2004. "Dealer" has the meaning set forth in the Titling Trust Agreement. "Default" means any occurrence that is, or with notice or lapse of time or both would become, an Indenture Default. "Defaulted Lease" means any Lease that (a) by its terms, is delinquent more than 120 days, (b) by its terms is delinquent less than 120 days and the Servicer has (i) determined, in accordance with the Credit and Collection Policy, that eventual payment in full is unlikely or (ii) repossessed the related Leased Vehicle (including, but not limited to, as a result of the Lessee's failure to maintain insurance coverage required by the Lease, the failure of the Lessee to timely or properly perform any obligation under the Lease, or any other act by the Lessee constituting a default under applicable law), or (c) received notification that the related Lessee is subject to bankruptcy proceedings under Chapter 13 under the Bankruptcy Code. "Defaulted Vehicle" means the Leased Vehicle related to a Defaulted Lease. "Definitive Note" means a definitive fully registered Note. 8 "Delaware Trustee" has the meaning set forth in the preamble to this Agreement of Definitions. "Deposit Date" means, with respect to a Payment Date or Redemption Date, the close of business on the day immediately preceding such Payment Date or Redemption Date, as the case may be. "Depository Agreement" means the agreement among the Issuer, the Indenture Trustee and DTC, as the initial Clearing Agency, dated as of the Closing Date, substantially in the form of Exhibit B to the Indenture. "Designated LIBOR Page" means the display on Bridge Telerate, Inc. or any successor service or any page as may replace the designated page on that service or any successor service that displays the London interbank rates on major banks for U.S. dollars. "Disposition Expenses" means reasonable out-of-pocket expenses incurred by the Servicer in connection with the sale at auction or other disposition of a Leased Vehicle by the Servicer. "Distribution Account" means either the Note Distribution Account or the Certificate Distribution Account, as the context may require. "Distribution Statement" has the meaning set forth in Section 5.02(c) of the Trust Agreement between NALL II and the Owner Trustee. "DTC" means The Depository Trust Company. "Early Termination Charge" means, with respect to any 2004-A Lease that is terminated prior to its Maturity Date, an amount equal to the lesser of (i) the difference, if any, between (a) the sum of (1) the present value of all remaining Monthly Payments and (2) the Contract Residual of the related 2004-A Vehicle and (b) a wholesale value assigned to such 2004-A Vehicle by the Servicer in accordance with accepted practices in the automobile industry (or by written agreement between the Servicer, on behalf of the Titling Trust, and the Lessee) and (ii) the remaining Monthly Payments. "Early Termination Purchase Option Price" means, with respect to any 2004-A Lease that is terminated prior to its Maturity Date, the amount paid by the related Lessee or a Dealer to purchase the related 2004-A Vehicle. "Eligible Account" means an account maintained with a depository institution or trust company (i) (a) the short-term unsecured debt obligations of which have the Required Deposit Rating or (b) having a long-term unsecured debt rating acceptable to each Rating Agency and corporate trust powers and (ii) which is maintained in a segregated trust account in the corporate trust department of such depository institution or trust company. "Entitlement Holder" means, with respect to any financial asset, a Person identified in the records of the Securities Intermediary as the Person having a Security Entitlement against the Securities Intermediary with respect to such financial asset. "Entitlement Order" means a notification directing the Securities Intermediary to transfer or redeem a financial asset. "ERISA" means the Employee Retirement Income Security Act of 1974. 9 "Excess Amounts" means, as of any Payment Date, the amount remaining in the 2004-A SUBI Collection Account after the distributions provided for in clauses (i) through (ii) of Section 8.04(a) of the Indenture have been made. "Excess Mileage and Excess Wear and Tear Charges" or "Excess Mileage Fee" means, with respect to any 2004-A Lease or 2004-A Vehicle, any applicable charge for excess mileage or excess wear and tear. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Executive Officer" means, with respect to any (i) corporation or depository institution, the Chief Executive Officer, Chief Operating Officer, Chief Financial Officer, President, Executive Vice President, any Vice President, the Secretary, or the Treasurer of such corporation or depository institution, and (ii) partnership, any general partner thereof. "Expenses" means 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. "Extended Lease" means any Lease that has had its original Maturity Date extended by the Servicer. "Extension Fee" means, with respect to any Extended Lease, any payment required to be made by the Lessee in connection with the extension of such Lease. "Financial Asset" has the meaning set forth in Section 8-102(a)(9) of the New York UCC. "Force Majeure Event" has the meaning set forth in the Basic Servicing Agreement. "Grant" means to mortgage, pledge, bargain, sell, warrant, alienate, remise, release, convey, assign, transfer, create and grant a lien upon and a security interest in and right of set-off against, deposit, set over and confirm pursuant to the Indenture, and, with respect to the Collateral or any other agreement or instrument, shall include all rights, powers and options (but none of the obligations) of the granting party thereunder, including the immediate and continuing right to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other monies payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto. "Grantor" has the meaning set forth in the preamble to the Titling Trust Agreement. "Holder" has the meaning set forth in the Titling Trust Agreement. "Indemnified Parties" has the meaning set forth in Section 8.01(a) to the Trust Agreement. "Indenture" means the indenture, dated as of October 28, 2004 between the Trust and U.S. Bank, as Indenture Trustee. 10 "Indenture Default" has the meaning set forth in Section 5.01 of the Indenture. "Indenture Trustee" means U.S. Bank, as Indenture Trustee under the Indenture. "Independent" means, when used with respect to any specified Person, that such Person (i) is in fact independent of the Issuer, any other obligor upon the Notes, the Administrative Agent and any Affiliate of any of the foregoing Persons, (ii) does not have any direct financial interest or any material indirect financial interest in the Issuer, any such other obligor, the Administrative Agent or any Affiliate of any of the foregoing Persons and (iii) is not connected with the Issuer, any such other obligor, the Administrative Agent or any Affiliate of any of the foregoing Persons as an officer, employee, promoter, underwriter, trustee, partner, director, or Person performing similar functions. "Independent Certificate" means a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.01(b), made by an Independent appraiser or other expert appointed by a Trust Order, and such opinion or certificate shall state that the signer has read the definition of "Independent" in this Indenture and that the signer is Independent within the meaning thereof. "Independent Manager" means an individual who was not, at the time of such appointment or at any time in the preceding five years: (i) a director, officer, or employee of any Affiliate of the Transferor (other than any limited purpose or special purpose corporation or limited liability company similar to the Transferor); (ii) a person related to any officer or director of any Affiliate of the Transferor (other than any limited purpose or special purpose corporation or limited liability company similar to the Transferor); (iii) a direct or indirect holder of 5% or more of the any voting securities of any Affiliate of the Transferor; (iv) a person related to a direct or indirect holder of 5% or more of the any voting securities of any Affiliate of the Transferor; (v) a material creditor, material supplier, employee, officer, director, family member, manager or contractor of the Transferor or any of its Affiliates; or (vi) a person who controls the Transferor or its Affiliates or any material creditor, material supplier, employee, officer, director, manager, or material contractor of the Transferor or any of its Affiliates. "Initial Class A-1 Note Balance" means $265,000,000. "Initial Class A-2 Note Balance" means $260,000,000. "Initial Class A-3 Note Balance" means $357,000,000. "Initial Class A-4a Note Balance" means $488,000,000. "Initial Class A-4b Note Balance" means $100,000,000. "Initial Class Balance" means the Initial Class A-1 Note Balance, the Initial Class A-2 Note Balance, the Initial Class A-3 Note Balance, the Initial Class A-4a Note Balance or the Initial Class A-4b Note Balance. "Initial Deposit Amount" means the Issuer's deposit to the Reserve Account, on or before the Closing Date, of $25,201,482.29. "Initial Note Balance" means the sum of the Initial Class A-1 Note Balance, the Initial Class A-2 Note Balance, the Initial A-3 Note Balance, the Initial Class A-4a Note Balance, and the Initial Class A-4b Note Balance. 11 "Initial Secured Party" has the meaning set forth in the preamble to the Control Agreement. "Initial Securities Balance" means the initial principal amount of the Notes and the Trust Certificates. "Initial Trust Certificate Balance" means $210,098,819.60. "Insurance Expenses" with respect to any 2004-A Vehicle, 2004-A Lease or Lessee, means any Insurance Proceeds (i) applied to the repair of the related Leased Vehicle, (ii) released to the related Lessee in accordance with applicable law or the customary servicing procedures of the Servicer or (iii) representing other related expenses incurred by the Servicer not otherwise included in Liquidation Expenses or Disposition Expenses and recoverable by the Servicer under the SUBI Trust Agreement. "Insurance Policy" means any insurance policy (including any self-insurance), including any residual value insurance policy, guaranteed automobile protection policy, comprehensive, collision, public liability, physical damage, personal liability, contingent and excess liability, accident, health, credit, life, or unemployment insurance or any other form of insurance or self-insurance, to the extent such insurance policy relates to the 2004-A Vehicles or the ability of a Lessee to make required payments with respect to the related 2004-A Lease. "Insurance Proceeds" means, with respect to any 2004-A Vehicle, 2004-A Lease or Lessee, recoveries paid to the Servicer, the Titling Trust or the Trustee on behalf of the Titling Trust under an Insurance Policy and any rights thereunder or proceeds therefrom (including any self-insurance and amounts collected from a Lessee for amounts of deductibles not covered by Insurance Policies). "Interest" means, as of any date, the ownership interest of a Trust Certificateholder (including the Transferor as holder of the Transferor Trust Certificate) in the Issuer as of such date, including the right of such Trust Certificateholder to any and all benefits to which such Trust Certificateholder may be entitled as provided in this Agreement, together with the obligations of such Trust Certificateholder to comply with all the terms and provisions of this Agreement. "Interest Determination Date" means, with respect to any Interest Period, the day that is two London Business Days prior to the related Interest Reset Date. "Interest Rate" means the Class A-1 Interest Rate, the Class A-2 Interest Rate, the Class A-3 Interest Rate, the Class A-4a Interest Rate, the Class A-4b Interest Rate, or the Overdue Interest Rate, as applicable. "Interest Rate Cap Agreement" means 1992 International Swaps and Derivatives Association, Inc. Master Agreement (Multi Currency-Cross Border) dated as of October 28, 2004 (the "1992 ISDA Master Agreement"), including all schedules and confirmations thereto, between the Issuer and the Cap Provider. "Interest Reset Date" means, with respect to any Interest Period, the first day of such Interest Period; provided that if any Interest Reset Date would otherwise be a day that is not a Business Day, that Interest Reset Date will be postponed to the next succeeding day that is a Business Day, except that if that Business Day falls in the next succeeding calendar month, such Interest Reset Date will be the immediately preceding Business Day. 12 "Interest Period" means the Accrual Period with respect to the Class A-4a Notes. "Investment Company Act" means the Investment Company Act of 1940. "Issuer" means Nissan Auto Lease Trust 2004-A, until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein, each other obligor on the Notes. "Issuer Order" and "Issuer Request" means a written order or request of the Issuer signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee. "Lease" means any lease contract for a Leased Vehicle assigned .. "Lease Documents" has the meaning set forth in the Basic Servicing Agreement; provided that such definition shall refer only to lease documents related to Leases allocated to the 2004-A Lease SUBI. "Leased Vehicle" means a new or used Nissan or Infiniti automobile, sport utility vehicle, minivan or light-duty truck, together with all accessories, parts and additions constituting a part thereof, and all accessions thereto, leased to a Lessee pursuant to a Lease. "Lessee" means each Person that is a lessee under a Lease, including any Person that executes a guarantee on behalf of such lessee; provided that such definition shall refer only to Lessees of Leases allocated to the 2004-A SUBI. "Lessee Partial Monthly Payment" means, in connection with the payment by a Lessee of less than 100% of the Monthly Payment due with respect to a 2004-A Lease, the actual amount paid by the Lessee toward such Monthly Payment. "Lessee Initiated Early Termination" as of any date means any Lease that has been terminated by the related Lessee before the related Maturity Date, provided that the lessee is not in default. "Lessor" means each Person that is a lessee under a Lease or assignee thereof, including the Issuer. "Liability" means any liability or expense, including any indemnification obligation. "LIBOR" means, for any Interest Period, the rate for deposits in U.S. dollars for a one-month period that appears on the Designated LIBOR Page, on the related Interest Determination Date; provided that, the following procedures will be followed if LIBOR cannot be determined as described above: (a) With respect to an Interest Determination Date on which no rate appears on the Designated LIBOR Page, LIBOR for the applicable Interest Determination Date will be the rate calculated by the Calculation Agent as the arithmetic mean of at least two quotations obtained by the Calculation Agent after requesting the principal London offices of each of four major reference banks in the London interbank market, which may include the Calculation Agent and its affiliates, as selected by the Calculation Agent, to provide the Calculation Agent with its offered quotation for deposits in U.S. dollars for a one-month period, commencing on the second London Banking Day immediately following the applicable Interest Determination Date, to 13 prime banks in the London interbank market at approximately 11:00 a.m., London time, on such Interest Determination Date and in a principal amount that is representative for a single transaction in U.S. dollars in that market at that time. If at least two such quotations are provided, LIBOR determined on the applicable Interest Determination Date will be the arithmetic mean of the quotations. (b) If fewer than two quotations referred to in clause (a) above are provided, LIBOR determined on the applicable Interest Determination Date will be the rate calculated by the Calculation Agent as the arithmetic mean of the rates quoted at approximately 11:00 a.m. in New York on the applicable Interest Determination Date by three major banks, which may include the Calculation Agent and its affiliates, in New York, selected by the Calculation Agent for loans in U.S. dollars to leading European banks, having a maturity of one-month and in a principal amount that is representative for a single transaction in U.S. dollars in that market at that time. (c) If the banks so selected by the Calculation Agent are not quoting as mentioned in clause (b) above, LIBOR for the applicable Interest Determination Date will be LIBOR in effect on the applicable Interest Determination Date. "Lien" means any security interest, lien, charge, pledge, equity or encumbrance of any kind, other than tax liens, mechanics' liens, any liens that attach to property by operating of law and statutory purchase liens to the extent not past due. "Liquidated Lease" means a 2004-A Lease that is terminated and charged off by the Servicer prior to its Maturity Date following a default thereunder. "Liquidated Vehicle" means the 2004-A Vehicle related to a Liquidated Lease. "Liquidation Expenses" means reasonable out-of-pocket expenses incurred by the Servicer in connection with the attempted realization of the full amounts due or to become due under any Liquidated Lease, including expenses of any collection effort (whether or not resulting in a lawsuit against the Lessee under such Lease) or other expenses incurred prior to repossession, recovery or return of the Liquidated Vehicle, expenses incurred in connection with the sale or other disposition of a Liquidated Vehicle that has been repossessed or recovered or has reached its Maturity Date, expenses incurred in connection with making claims under any related Insurance Policy and expenses incurred in connection with making claims for any Liquidation Expenses. "Liquidation Proceeds" means all amounts received by the Servicer with respect to a Liquidated Lease and the related Liquidated Vehicle in connection with the attempted realization of the full amount due or to become due under the 2004-A Lease, including Net Auction Proceeds related to such Liquidated Vehicle, but excluding Insurance Proceeds. "London Business Day" means any day on which dealings with U.S. dollars are transacted in the London interbank market. "Majority Interest" means Notes, Trust Certificates or Securities, as the case may be, evidencing a majority of the Outstanding Amount of the related Notes, Trust Certificates or Securities, except that, except as otherwise provided in the Basic Documents, Securities owned by the Issuer, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) or any of their respective 14 Affiliates will not be included in such determination for the purpose of making requests, demands, authorizations, directions, notices, consents or other action under the Basic Documents. "Material Adverse Effect" means, with respect to any Person, a material adverse effect on (i) the financial condition or operations of such Person and its Affiliates, taken as one enterprise, (ii) the ability of such Person to perform its material obligations under any of the Basic Documents to which such Person is a party, (iii) the legality, validity or enforceability of any material provision of the Basic Documents to which such Person is a party, (iv) the 2004-A SUBI Certificate's beneficial interest in all or any significant portion of the 2004-A SUBI Assets or the Indenture Trustee's security interest in the 2004-A SUBI Certificate and all or any significant portion of the 2004-A SUBI Assets, or (v) the collectibility or the credit worthiness of all or any significant portion of the 2004-A Leases and the 2004-A Vehicles, other than, in the case of clauses (i) through (v), such Material Adverse Effect which are the direct result of actions or omissions of the party seeking relief under any of the Basic Documents in connection therewith. "Matured Vehicle" as of any date means any Leased Vehicle the related Lease of which has reached its Maturity Date or has been terminated in connection with a Lessee Initiated Early Termination (and the Lessee is not in default under such Lease) or in connection with a Casualty Termination, which Leased Vehicle has been returned to the Servicer on behalf of the Titling Trust, if applicable. "Maturity Date" means, with respect to any Lease, the date on which such Lease is scheduled to terminate as set forth in the such Lease at its date of origination or, in the case of an Extended Lease, the revised termination date. "Monthly Early Termination Sale Proceeds" means, with respect to a Collection Period, all (i) amounts paid by Lessees or Dealers with respect to Early Termination Purchase Option Price payments during such Collection Period and (ii) Net Auction Proceeds received by the Servicer in such Collection Period for 2004-A Vehicles with respect to which the related 2004-A Lease was terminated and which were sold in such Collection Period on or after the termination of the related 2004-A Leases prior to their respective Maturity Dates, reduced by amounts required to be remitted to the related Lessees under applicable law. "Monthly Payment Advance" means, with respect to any 2004-A Lease and any Collection Period, an amount equal to the difference between the Monthly Payment due and the Lessee Partial Monthly Payment. "Monthly Payment" means, with respect to any Lease, the amount of each fixed monthly payment payable to the Lessor in accordance with the terms thereof, net of any portion of such fixed monthly payment that represents an Administrative Charge. "Monthly Principal Distributable Amount" means, for any Payment Date and the related Collection Period, an amount equal to the lesser of (i) the Principal Distribution Amount and (ii) the Available Principal Distribution Amount. "Monthly Remittance Condition" has the meaning set forth in Section 8.03(b) of the 2004-A Servicing Supplement. "Monthly Scheduled Termination Sale Proceeds" means, with respect to a Collection Period, all (i) amounts paid by Lessees or Dealers in the event that either the Lessee or a Dealer elects to 15 purchase a 2004-A Vehicle for its Contract Residual following a termination of the related 2004-A Lease at its Maturity Date and (ii) Net Auction Proceeds received by the Servicer in such Collection Period for 2004-A Vehicles which matured and were sold in such Collection Period on or after the termination of the related 2004-A Leases at their respective Maturity Dates, reduced by amounts required to be remitted to the related Lessees under applicable law. "Moody's" means Moody's Investors Service, Inc. "MRM ALG Residual" means, with respect to any Lease, the residual value estimate produced by Automotive Lease Guide that is a percentage of the "Maximum Residualizable MSRP," which consists of the MSRP of the typically equipped vehicle and value adding options, giving only partial credit or no credit for those options that add little or no value to the resale price of the vehicle. "MSRP" means, with respect to any Leased Vehicle, the Manufacture's Suggested Retail Price. "MSRP ALG Residual" means, with respect to any Lease, residual value estimates produced by Automotive Lease Guide based on the total MSRP of the base vehicle and all NMAC authorized options, without making a distinction between the value adding options and non-value adding options. "NALL II" means Nissan Auto Leasing LLC II, a Delaware limited liability company. "Net Auction Proceeds" means Auction Proceeds net of related Disposition Expenses. "Net Insurance Proceeds" means Insurance Proceeds net of related Insurance Expenses. "Net Liquidation Proceeds" means the Liquidation Proceeds net of related Liquidation Expenses. "NILT, Inc." means NILT, Inc., a Delaware corporation. "NILT Trust" means NILT Trust, a Delaware statutory trust. "NMAC" means Nissan Motor Acceptance Corporation, a California corporation. "Note" means either a Class A-1 Note, a Class A-2 Note, a Class A-3 Note, a Class A-4a Note, or a Class A-4b Note, as the context may require. "Note Balance" means the sum of the Class A-1 Note Balance, the Class A-2 Note Balance, the Class A-3 Note Balance, the Class A-4a Note Balance, and the Class A-4b Note Balance. "Note Distribution Account" means the trust account established by the Transferor, on behalf of the Issuer pursuant to Section 8.02(b) of the Indenture, into which amounts released from the 2004-A SUBI Collection Account and the Reserve Account for distribution to Noteholders shall be deposited and from which all distributions to Noteholders shall be made. "Note Distribution Amount" means, as of any Payment Date, the amount being distributed to the Noteholders on such Payment Date. 16 "Note Factor" means, with respect to any Class on any Payment Date, the seven digit decimal equivalent of a fraction the numerator of which is the Class Balance for such Class on such Payment Date (after giving effect to any payment of principal on such Payment Date) and the denominator of which is the related Initial Class Balance. "Note Final Scheduled Payment Date" means, with respect to (i) a Class A-1 Note, October 17, 2005, (ii) a Class A-2 Note, January 15, 2007, (iii) a Class A-3 Note, August 15, 2007, (iv) a Class A-4a Note, June 15, 2010 and (v) a Class A-4b Note, June 15, 2010. "Noteholder" means, as of any date, the Person in whose name a Class A-1 Note, Class A-2 Note, Class A-3, Class A-4a Note, or a Class A-4b Note is registered on the Note Register on such date, as the context may require. "Note Owner" means, with respect to a Book-Entry Note, the Person who is the beneficial owner of such Book-Entry Note, as reflected on the books of the Clearing Agency or a Person maintaining an account with such Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of such Clearing Agency). "Note Register" and "Note Registrar" have the respective meanings set forth in Section 2.04 of the Indenture. "Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, the Class A-4a Notes, and the Class A-4b Notes. "Note Distribution Account" has the meaning set forth in the Indenture. "Officer's Certificate" means (a) with respect to the Issuer, a certificate signed by an Authorized Officer of the Issuer, under the circumstances described in, and otherwise complying with, the applicable requirements of Section 11.01 of the Indenture, and delivered to, the Indenture Trustee, and (b) with respect to the Servicer, a certificate signed by an Authorized Officer or the Servicer, under the circumstances described in, and otherwise complying with, the applicable requirements of Sections 8.09 and 8.11 of the 2004-A SUBI Servicing Supplement. "Opinion of Counsel" in relation to the Trust Agreement, means one or more written opinions of counsel who may, except as otherwise expressly provided in the Trust Agreement, be employees of or counsel to the Transferor, the Administrative Agent, or any of their respective Affiliates, and which opinion shall be addressed to and in form and substance satisfactory to the Owner Trustee. In relation to the Indenture, "Opinion of Counsel" means one or more written opinions of counsel who may, except as otherwise expressly provided in the Indenture, be employees of or counsel to the Issuer or the Administrative Agent, and who shall be satisfactory to the Indenture Trustee, and which opinion or opinions shall be addressed to the Indenture Trustee, comply with any applicable requirements of Section 11.01 of the Indenture, and be in form and substance satisfactory to the Indenture Trustee. "Optimal Principal Distributable Amount" means, for any Payment Date and the related Collection Period, an amount equal to the sum of the following amounts: (i) for each 2004-A Vehicle for which the related 2004-A Lease did not terminate during such Collection Period, the difference between the Securitization Value of such 2004-A Lease at the beginning and at the end of such Collection Period; 17 (ii) for each 2004-A Vehicle for which the related 2004-A Lease reached its Maturity Date during such Collection Period, the Securitization Value of such 2004-A Lease as of such Maturity Date; (iii) for each 2004-A Vehicle purchased by the Servicer before its Maturity Date, the Repurchase Payment with respect to the related 2004-A Lease; and (iv) for each 2004-A Lease terminated prior to its Maturity Date that becomes a Defaulted Lease during such Collection Period or is terminated by the related Lessee or the Servicer during such Collection Period pursuant to a Lessee Initiated Early Termination or a Casualty Termination, the Securitization Value of the related 2004-A Lease as of the effective date of termination of such 2004-A Lease. "Optional Purchase" has the meaning set forth in Section 9.03(a) of the Trust Agreement. "Optional Purchase Price" has the meaning set forth in Section 9.03(a) of the Trust Agreement. "Origination Trust" means Nissan-Infiniti LT, a Delaware statutory trust. "Origination Trust Agreement" means the Amended and Restated Trust and Servicing Agreement, dated as of August 26, 1998, among NILT Trust, as Grantor and UTI Beneficiary, NMAC, as servicer, Wilmington Trust Company, as Delaware trustee, NILT, Inc., as trustee, and U.S. Bank National Association, as Trust Agent. "Origination Trustee" means NILT, Inc., in its capacity as trustee of the Origination Trust. "Other SUBI" means any SUBI other than a 2004-A SUBI. "Outstanding" means, as of any date, all Notes (or all Notes of an applicable Class), all Trust Certificates or all Securities, as the case may be, theretofore authenticated and delivered under the Indenture and/or the Trust Agreement, as applicable, except: (i) Notes (or Notes of an applicable Class) theretofore cancelled by the Note Registrar or delivered to the Note Registrar for cancellation or Trust Certificates theretofore cancelled by the Certificate Registrar or delivered to the Certificate Registrar for cancellation; (ii) Notes (or Notes of an applicable Class) or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the related Noteholders (provided, however, that if such Notes are to be redeemed pursuant to an Optional Purchase, notice of such redemption has been duly given pursuant to the Indenture or provision therefor, satisfactory to the Indenture Trustee, has been made) or Trust Certificates or portions thereof the payment for which money in the necessary amount has been theretofore deposited with the Indenture Trustee, the Owner Trustee or any Paying Agent in trust for the related Trust Certificateholders (provided, however, that if the principal with respect to such Trust Certificates will be paid pursuant to an Optional Purchase, notice of such payment has been duly given pursuant to the Trust Agreement or provision therefor, satisfactory to the Owner Trustee); and 18 (iii) Notes (or Notes of an applicable Class) in exchange for or in lieu of other Notes (or Notes of such Class) that have been authenticated and delivered pursuant to the Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a bona fide purchaser or Trust Certificates in exchange for or in lieu of other Trust Certificates that have been authenticated and delivered pursuant to the Trust Agreement unless proof satisfactory to the Owner Trustee is presented that any such Trust Certificates that such Trust Certificates are held by a bona fide purchaser, to the extent that the Trust Certificates are transferable; provided, that, unless otherwise specified in the Indenture, with respect to the Notes, or the Trust Agreement, with respect to the Trust Certificates, or in another Basic Document, in determining whether Noteholders or Trust Certificateholders holding the requisite Outstanding Amount have given any request, demand, authorization, direction, notice, consent, or waiver hereunder or under any Basic Document, Notes or Trust Certificates owned by the Issuer, the Transferor, the Servicer (so long as NMAC or an Affiliate thereof is the Servicer) or any of their respective Affiliates shall be disregarded and deemed not to be Outstanding, unless all such Notes or Trust Certificates Outstanding are owned by the Issuer, the Transferor, the Servicer (so long as NMAC or an Affiliate thereof is the Servicer), or any of their respective Affiliates; provided, further, that, in determining whether the Indenture Trustee or the Owner Trustee, as applicable, shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, or waiver, only Notes or Trust Certificates, as applicable, that a Responsible Officer knows to be so owned shall be so disregarded. Notes or Trust Certificates so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee thereof establishes to the satisfaction of the Indenture Trustee or the Owner Trustee, as the case may be, such pledgee's right so to act with respect to such Notes or such Trust Certificates and that such pledgee is not the Issuer, the Transferor, the Administrative Agent, or any of their respective Affiliates. "Outstanding Amount" means, as of any date, the aggregate principal amount of the applicable Notes or Certificates Outstanding, as applicable, reduced by all payments of principal made in respect thereof on or prior to such date. "Overdue Interest Rate" means, with respect to any Class, the Interest Rate applicable to such Class. "Owner Corporate Trust Office" means the principal office of the Owner Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of the execution of this Agreement is located at Wilmington Trust Company, Rodney Square North, 1100 N. Market Street, Wilmington, Delaware 19890; or at such other address as the Owner Trustee may designate from time to time by notice to the Trust Certificateholders and the Indenture Trustee, or the principal corporate trust office of any successor Owner Trustee (the address of which the successor Owner Trustee shall notify the Trust Certificateholders and the Indenture Trustee). "Owner Trust Estate" means the property of the Issuer, including (i) the 2004-A SUBI Certificate (transferred pursuant to the Trust SUBI Certificate Transfer Agreement), evidencing a 100% beneficial interest in the 2004-A SUBI Assets, including the right to payments thereunder from certain amounts in respect of the 2004-A Leases and received from the sale or other disposition of the Leased Vehicles on deposit in the SUBI Collection Account and investment earnings, net of losses and investment expenses, on amounts on deposit in the SUBI Collection Account; (ii) amounts deposited into the Reserve Account; (iii) the proceeds of the Interest Rate Cap Agreement and the rights of the Issuer under the Interest Rate Cap Agreement; (iv) the rights of the Issuer as secured party under the Back-up Security Agreement; (v) the rights of the Issuer to the funds on deposit from time to time in the Note Distribution Account and any other account or accounts established pursuant to the Indenture and 19 all cash, investment property and other property from time to time deposited or credited thereto and all proceeds thereof; (vi) the rights of the Transferor, as transferee, under the SUBI Certificate Transfer Agreement; (vii) the rights of the Issuer, as transferee, under the Trust SUBI Certificate Transfer Agreement; (viii) the rights of the Issuer as a third-party beneficiary under the Servicing Agreement, to the extent relating to the 2004-A SUBI Assets, including rights to certain Advances, and the SUBI Trust Agreement; and (ix) all proceeds, accounts, money, general intangibles, instruments, chattel paper, goods, investment property and other property consisting of, arising from or relating to the foregoing. "Owner Trustee" means Wilmington Trust Company, a Delaware banking corporation, as trustee of the Issuer under the Trust Agreement. "Paying Agent" means, (i) under the Indenture, U.S. Bank, as Indenture Trustee, or any other Person that meets the eligibility standards for the Indenture Trustee set forth in Section 6.11 of the Indenture and is authorized by the Issuer to make the payments to and distributions from the Note Distribution Account, including the payment of principal of or interest on the Notes on behalf of the Issuer, and (ii) under the Trust Agreement, any paying agent or co-paying agent appointed pursuant to Section 3.09 of the of the Trust Agreement and shall initially be the U.S. Bank. "Payment Ahead" means any payment of all or a part of one or more Monthly Payments remitted by a Lessee with respect to a 2004-A Lease in excess of the Monthly Payment due with respect to such 2004-A Lease, which amount the Lessee has instructed the Servicer to apply to Monthly Payments due in one or more subsequent Collection Periods. "Payment Date" means the 15th day of each month, or if such day is not a Business Day, then the next succeeding Business Day, beginning on November 15, 2004. "Payment Date Advance Reimbursement" has the meaning set forth in Section 8.03(a)(iv)(A) of the 2004-A Servicing Supplement. "Payment Date Certificate" has the meaning set forth in Section 8.03(a) of the Indenture. "Payoff" means amounts paid to the Servicer to purchase a 2004-A Vehicle. "Permitted Investments" has the meaning set forth in the Titling Trust Agreement. "Person" means any individual, corporation, limited liability company, estate, partnership, joint venture, association, joint stock company, trust (including any beneficiary thereof), unincorporated organization, or government, or any agency or political subdivision thereof. "Pledgors" means NMAC, the Titling Trust, NILT Trust, the Transferor, and the Issuer. "Predecessor Note" means, with respect to any particular Note, every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purpose of this definition, any Note authenticated and delivered under Section 2.05 of the Indenture in lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note. "Principal Carryover Shortfall" means, as of the close of any Payment Date, the excess, if any, of the Principal Distribution Amount over the Monthly Principal Distributable Amount. 20 "Principal Distribution Amount" means, for any Payment Date, the aggregate amount of principal payable on the Securities, equal to the sum of (i) the Optimal Principal Distributable Amount and (ii) any Principal Carryover Shortfall as of the preceding Payment Date; provided, however, that on or after the Note Final Scheduled Payment Date for any Class of Notes and so long as no Indenture Default has been declared, the Principal Distribution Amount shall equal, until the Class Balance of such Class is reduced to zero, the greater of (i) such Class Balance and (ii) the sum of (A) the Optimal Principal Distributable Amount and (B) any Principal Carryover Shortfall as of the preceding Payment Date. Notwithstanding the foregoing, the Principal Distribution Amount shall not exceed the outstanding Securities Balance and the aggregate amount of principal paid in respect of a Class shall not exceed the related Initial Class Balance. "Proceeding" has the meaning set forth in the Titling Trust Agreement. "Prospectus" means the Prospectus, dated October 21, 2004, relating to the offering of the Notes. "Rated Securities" has the meaning set forth in the Titling Trust Agreement. "Rating Agency" means, with respect to the 2004-A SUBI, each of Moody's and Standard & Poor's. "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 by the Transferor, the Administrative Agent, or the Issuer. "Rating Event" means the qualification, reduction, or withdrawal by such Rating Agency of its then-current rating of any Class. "Reallocation Payment" means the proceeds allocated from the UTI to the 2004-A SUBI in connection with any reallocation of a Matured Vehicle or a Defaulted Vehicle from the 2004-A SUBI to the UTI pursuant to Section 8.02(c) of the 2004-A Servicing Supplement in an amount equal to the Net Liquidation Proceeds for such Matured Vehicle or Defaulted Vehicle. "Record Date" means, with respect to any Payment Date, the close of business on the day immediately preceding such Payment Date. "Recoveries" means, with respect to a Collection Period, the sum of all amounts received (net of taxes) with respect to all 2004-A Leases which (i) became Liquidated Leases before such Collection Period and (ii) have reached or were terminated prior to their respective Maturity Dates before such Collection Period and with respect to which the proceeds from the sale of the related 2004-A Vehicles were received before such Collection Period, minus any amounts remitted to the related Lessees as required by law. "Redemption Date" means in the case of a redemption of the Notes pursuant to Section 10.01 of the Indenture, the Payment Date specified by the Administrative Agent or the Issuer pursuant to Section 10.01 of the Indenture. "Redemption Price" means an amount equal to the Note Balance plus accrued and unpaid interest thereon at the applicable Interest Rate for the Notes being so redeemed (including, to the extent allowed by law, interest on overdue interest, if applicable), up to but excluding the Redemption Date. 21 "Registered Pledgee" has the meaning set forth in the Titling Trust Agreement. "Registered Holder" means the Person in whose name a Note is registered on the Note Register on the related Deposit Date. "Related Beneficiary" means each of NILT Trust and NALL II. "Related Documents" shall mean all of the Basic Documents to which the Issuer or the Owner Trustee is a party. "Remaining Net Auction Proceeds" means Net Auction Proceeds, less amounts included in Monthly Scheduled Termination Sale Proceeds, Monthly Early Termination Sale Proceeds and Liquidation Proceeds. "Remaining Payoffs" means Payoffs, less amounts included in Monthly Scheduled Termination Sale Proceeds and Monthly Termination Sale Proceeds. "Repayment Price" means an amount equal to the unpaid principal amount of the Trust Certificates. "Repurchase Payment" means, with respect to a 2004-A Lease and the related 2004-A Vehicle required to be purchased by the Servicer pursuant to Section 8.02(a) and Section 8.02(b) of the Servicing Agreement, the sum of (i) the Securitization Value of the 2004-A Lease as of the end of the Collection Period preceding the Collection Period in which the Servicer granted an extension with respect to such 2004-A Lease or discovers or receives notice of the change in domicile with respect to Section 8.02(a) of the Servicing Agreement or discovers a breach of representations or warranties pursuant to Section 8.02(b) of the Servicing Agreement and (ii) any delinquent Monthly Payments which have not been paid by the related Lessee by the end of the Collection Period relating to the Deposit Date on which the Repurchase Payment will be made. "Required Deposit Rating" has the meaning set forth in the Titling Trust Agreement. "Required Percentage" means the holders of not less than 66 2/3% of the (i) Outstanding Amount in the case of the Notes or (ii) Aggregate Certificate Balance in the case of the Trust Certificates. "Required Related Holders" has the meaning set forth in the Basic Servicing Agreement. "Reserve Account" means the account established pursuant to Section 5.01(b) of the Trust Agreement, which shall be account number 787346002 in the name "U.S. Bank National Association, as Indenture Trustee, Nissan Auto Lease Trust 2004-A Reserve Account" established with the Securities Intermediary pursuant to the Trust Agreement, together with any successor accounts established pursuant to the Indenture, or after release of the lien of the Indenture, the Trust Agreement. "Reserve Account Deposit Amount" means, (i) on the Closing Date, the Initial Deposit Amount and thereafter, for any Payment Date and the related Collection Period to the extent the amounts on deposit in the Reserve Account are less than the Reserve Account Requirement, an amount equal to the sum of (a) any Excess Amounts with respect to the related Collection Period and (b) net income realized on the investment of funds on deposit in the 2004-A SUBI Collection Account and the Reserve Account in respect of such Collection Period. 22 "Reserve Account Draw Amount" means, for any Payment Date, the amount withdrawn from the Reserve Account, equal to the lesser of (a) the Available Funds Shortfall Amount, if any, or (b) the amount on deposit in the Reserve Account after giving effect to all deposits thereto on the related Deposit Date or such Payment Date. "Reserve Account Property" means the Reserve Account and all cash, investment property and other property from time to time deposited or credited to the Reserve Account and all proceeds thereof, including, without limitation, the Initial Deposit. "Reserve Account Requirement" means on any Payment Date, an amount equal to $50,402,964.59. "Residual Value" means the lowest of (i) the Contract Residual, (ii) the MSRP ALG Residual and (iii) the MRM ALG Residual. "Residual Value Loss" means, with respect to any Matured Vehicle or Defaulted Vehicle, the positive difference, if any, between (i) the Securitization Value of the related 2004-A Vehicle at (a) the Maturity Date of the related 2004-A Lease or (b) the date the related 2004-A Lease was terminated and (ii) the sum of all related Net Auction Proceeds and Net Insurance Proceeds. "Residual Value Surplus" means, with respect to any Matured Vehicle or Defaulted Vehicle, the positive difference, if any, between (i) the sum of all related Net Auction Proceeds and Net Insurance Proceeds and (ii) the Securitization Value of the related 2004-A Vehicle at (a) the Maturity Date of the related 2004-A Lease or (b) the date the related 2004-A Lease was terminated by the Lessee. "Responsible Officer" means, with respect to the Indenture Trustee, any officer within the Corporate Trust Department (or any successor group of the Indenture Trustee), including any Vice President, Assistant Secretary, or other officer or assistant officer of the Indenture Trustee customarily performing functions similar to those performed by the people who at such time shall be officers, or to whom any corporate trust matter is referred within Corporate Trust Department because of his knowledge of and familiarity with the particular subject. "Restricted Jurisdiction" means Alabama and any additional jurisdiction in which the Titling Trust is not qualified and licensed to do business; provided, that the Servicer may change the designation of a jurisdiction as a "Restricted Jurisdiction" by delivering an Officer's Certificate to the Indenture Trustee and the Owner Trustee to the effect that (i) Leased Vehicles may be titled in the name of the Titling Trustee or the Titling Trustee on behalf of the Titling Trust and beneficial interests therein may be transferred without retitling in Alabama or such other additional jurisdiction, as the case may be, and (ii) such change in designation will not have a material adverse effect on the Issuer. "Rule 144A" means Rule 144A promulgated by the Commission under the Securities Act. "Rule 144A Information" means information requested of the Transferor, in connection with the proposed transfer of a Trust Certificate, to satisfy the requirements of paragraph (d)(4) of Rule 144A. "Sales Proceeds Advance" means the amount advanced by the Servicer to the Issuer on a Deposit Date equal to the Securitization Value of each 2004-A Lease relating to a 2004-A Vehicle that 23 terminated early (but was not a Lease in default) and the amount equal to the Residual Value of each 2004-A Lease relating to a 2004-A Vehicle that matured on its scheduled termination date. "Schedule of 2004-A Leases and 2004-A Vehicles" means the schedule of 2004-A Leases and 2004-A Vehicles attached as Exhibit A to the 2004-A SUBI Supplement and the 2004-A Servicing Supplement (which may be supplied in CD-Rom form) which shall set forth as to each 2004-A Lease or 2004-A Vehicle, as the case may be, (i) the identification number of the 2004-A Lease, (ii) the identification number of the 2004-A Vehicle, (iii) the related Maturity Date and (iv) the value of the 2004-A Lease and the related 2004-A Vehicle on the Servicer's books as of the Cutoff Date. "Secretary of State" means the Secretary of State of the State of Delaware. "Secured Obligations" has the meaning set forth in Section 5.02(f) of the Trust Agreement. "Securities" means the Trust Certificates and the Notes, collectively. "Securities Act" means the Securities Act of 1933, as amended. "Securities Balance" means, as of any date, the unpaid principal amount of the Securities as of such date. "Securities Intermediary" means U.S. Bank. "Securitization Rate" means, with respect to a 2004-A Lease, an annualized rate that is equal to 4.50%. "Securitization Value" means, with respect to any 2004-A Lease, the value calculated by the Servicer equal to, as of (i) its Maturity Date, the Residual Value and (ii) any other date, the present value, discounted at the Securitization Rate, of the sum of (a) the aggregate Monthly Payments remaining to be made and (b) the Residual Value. "Securitized Financing" has the meaning set forth in the Titling Trust Agreement. "Security" means either a Note or a Trust Certificate, as the context may require. "Security Entitlement" has the meaning set forth in Section 8-102(a)(17) of the New York UCC. "Securityholder" means each registered holder of a Note or a Trust Certificate. "Securityholder Available Funds" means, for any Payment Date, all remaining Available Funds after giving effect to the payment to the Servicer of the Servicer Monthly Payment. "Servicer" means NMAC, as Servicer under the Servicing Agreement. "Servicer Default" has the meaning set forth in Section 4.01 to the Basic Servicing Agreement and under Section 8.12 of the 2004-A Servicing Supplement. "Servicer Letter of Credit" means a letter of credit, surety bond or insurance policy issued by a depository institution, insurance company, or financial institution having a short-term credit rating 24 at least equal to the Required Deposit Rating and providing that the Indenture Trustee or Trust Agent, as the case may be, may draw thereupon in the event the Servicer satisfies the Monthly Remittance Condition but fails to deposit SUBI Collections into the 2004-A SUBI Collection Account by the related Deposit Date. "Servicer Monthly Payment" means, with respect to a Payment Date and the related Collection Period, the amount to be paid to the Servicer pursuant to Section 8.03(a)(iv) of the 2004-A Servicing Supplement in respect of (i) the Payment Date Advance Reimbursement and (ii) the Servicing Fee, together with any unpaid Servicing Fees in respect of one or more prior Collection Periods. "Servicing Agreement" means the Basic Servicing Agreement, as supplemented by the 2004-A Servicing Supplement. "Servicing Fee" means, with respect to the 2004-A SUBI Assets, the fee payable on each Payment Date equal to, for the related Collection Period, one-twelfth of the product of (i) 1.00% and (ii) the aggregate Securitization Value of all 2004-A Leases as of the first day of such Collection Period. "Settlement Statement" means a statement substantially in the form of Exhibit B to the 2004-A Servicing Supplement. "Special Purpose Affiliate" means a special purpose entity that is an Affiliate of a Beneficiary and was created for the purposes of one or more Securitized Financings. "Standard & Poor's" means Standard & Poor's, a division of The McGraw-Hill Companies, Inc. "State" means any state of the United Sates, Puerto Rico, or the District of Columbia. "Statutory Trust Statute" means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801 et seq. "SUBI" has the meaning set forth in the Recitals to the 2004-A Servicing Supplement. "SUBI Certificate" has the meaning set forth in Section 3.02(a) of the Titling Trust Agreement. "SUBI Certificate Transfer Agreement" means the SUBI Certificate Transfer Agreement, dated as of October 28, 2004, between NILT Trust, as transferor, and NALL II, as transferee. "SUBI Collection Account" means, with respect to a SUBI, the related Collection Account created, designated and maintained as such pursuant Section 4.02(a) of the Titling Trust Agreement. "SUBI Collections" means, with respect to any Collection Period, the net amount collected or received by the Servicer in respect of the 2004-A SUBI Assets during the Collection Period, including: (i) Monthly Payments (including Payments Ahead when received), Payoffs, and any other payments under the 2004-A Leases (excluding any Administrative Charges); (ii) Reallocation Payments and Repurchase Payments made by the Servicer; (iii) Monthly Scheduled Termination Sale Proceeds; (iv) Monthly Early Termination Sale Proceeds; (v) Net Liquidation Proceeds; (vi) Net Insurance Proceeds; (vii) Remaining Net Auctions Proceeds; (viii) Remaining Payoffs; (ix) Excess Mileage and 25 Excess Wear and Tear Charges; (x) Recoveries and (xi) Residual Value Surplus; in each case to the extent not duplicative with any other clause of this definition. "SUBI Trust Agreement" means the Titling Trust Agreement, as supplemented by a 2004-A SUBI Supplement. "Sub-Trust" has the meaning set forth in Section 3.01(b) of the Titling Trust Agreement. "Termination Event" has the meaning set forth in the Interest Rate Cap Agreement. "Titling Trust" means Origination Trust. "Titling Trust Agreement" means Origination Trust Agreement. "Titling Trustee" means Origination Trustee. "TIA" means the Trust Indenture Act of 1939. "Transferor" means NALL II. "Transferor's Formation Documents" means the Certificate of Formation of Nissan Auto Leasing LLC II, dated as of October 24, 2001 and the Limited Liability Company Agreement of Nissan Auto Leasing LLC II, dated as of October 29, 2001. "Transfer Price" has the meaning set forth in Section 2.01 to the SUBI Certificate Transfer Agreement and the Trust SUBI Certificate Transfer Agreement, as the context may require. "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 Nissan Auto Lease Trust 2004-A, until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained herein, each other obligor on the Notes. "Trust Account" has the meaning set forth in the Titling Trust Agreement. "Trust Administration Agreement" means the Trust Administration Agreement, dated as of October 28, 2004, among the NMAC, as the Administrative Agent, the Issuer, the Transferor and the Indenture Trustee. "Trust Agent" means U.S. Bank, as Trust Agent under the Titling Trust Agreement. "Trust Agreement" means the trust agreement, dated as of July 28, 2004, as amended and restated by the Amended and Restated Trust Agreement dated as of October 28, 2004, between the Transferor and the Owner Trustee. "Trust Assets" has the meaning set forth in the Titling Trust Agreement. 26 "Trust Certificateholder" means the Person in whose name a Trust Certificate is registered on the Certificate Register. "Trust Certificates" means the Asset Backed Certificates issued pursuant to the Trust Agreement, substantially in the form of Exhibit A to the Trust Agreement. "Trust Documents" has the meaning set forth in the Titling Trust Agreement. "Trust Estate" means all money, accounts, chattel paper, general intangibles, goods, instruments, investment property, securities, deposit accounts and other property subject or intended to be subject to the lien and security interest of this Indenture for the benefit of the Noteholders (including the Collateral Granted to the Indenture Trustee), including (i) the 2004-A SUBI Certificate, evidencing a 100% beneficial interest in the 2004-A SUBI Assets, including the right to payments thereunder from certain amounts in respect of the 2004-A Leases and 2004-A Vehicles on deposit in the 2004-A SUBI Collection Account and investment earnings, net of losses and investment expenses on amounts on deposit in the 2004-A SUBI Collection Account, (ii) amounts deposited in the Reserve Account, (iii) the proceeds of the Interest Rate Cap Agreement and the rights of the Issuer under the Interest Rate Cap Agreement, (iv) the rights of the Issuer under the Back-up Security Agreement, (v) the rights of the Issuer to the funds on deposit from time to time in the Note Distribution Account and any other account or accounts established pursuant to the Indenture and all cash, investment property and other property from time to time credited thereto and all proceeds thereof, (vi) the rights of the Transferor, as transferee under the SUBI Certificate Transfer Agreement, (vii) the rights of the Issuer, as transferee under the Trust SUBI Certificate Transfer Agreement, (viii) the rights of the Issuer as a third-party beneficiary of the Servicing Agreement, including the right to certain Advances, and the SUBI Trust Agreement, and (ix) all proceeds, accounts, money, general intangibles, instruments, chattel paper, goods, investment property, securities, deposit accounts and other property consisting of, arising from or relating to the foregoing. "Trust SUBI Certificate Transfer Agreement" means the Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004, between NALL II, as transferor, and the Issuer, as transferee. "Trustee" means NILT, Inc., in its capacity as trustee of the Titling Trust. "2004-A Eligible Lease" means a Lease as to which the following are true as of the Cutoff Date: (a) relates to a Nissan automobile, light duty truck, minivan, or sport utility vehicle, of a model year of 2001 or later; (b) is written with respect to a Leased Vehicle that was at the time of the origination of the related Lease a new Nissan motor vehicle; (c) was originated in the United States on or after December 5, 2000 by a Dealer (i) for a Lessee with a United States address, (ii) in the ordinary course of such Dealer's business, (iii) pursuant to a Dealer agreement that provides for recourse to the dealer in the event of certain defects in the Lease, but not for default by the Lessee, and (iv) in compliance with procedures set forth in the Credit and Collection Policy; (d) is payable solely in United States dollars; 27 (e) is owned, and the related Leased Vehicle is owned by the Titling Trust, free of all liens (including tax liens, mechanics' liens, and other liens that arise by operation of law); (f) has a remaining term to maturity as of the Cutoff Date, of not less than 3 months and not greater than 58 months. (g) provides for level payments that fully amortize the adjusted capitalized cost of the Lease at a contractual annual percentage rate to the related Contract Residual over the lease term and, in the event of a Lessee initiated early termination, provides for payment of the Early Termination Charge; (h) was originated in compliance with, and complies in all material respects with, all material applicable legal requirements, including, to the extent applicable, the Federal Consumer Credit Protection Act, Regulation M of the Board of Governors of the Federal Reserve, all state leasing and consumer protection laws and all state and federal usury laws; (i) is not more than 29 days past due as of the Cutoff Date; (j) (A) is the valid, legal and binding full-recourse payment obligation of the related Lessee, enforceable against such Lessee in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, or other similar laws, now or hereafter in effect, affecting the enforcement of credits' rights in general or (ii) general principles of equity, (B) has not been satisfied, subordinated, rescinded, canceled or terminated, (C) is a Lease as to which no right of rescission, setoff, counterclaim or defense shall have been asserted or threatened in writing, (D) is a Lease as to which no default (other than payment defaults continuing for a period of no more than 29 days as of the Cutoff Date), breach or violation shall have occurred and no continuing condition that with notice or lapse of time or both would constitute a default, breach or violation shall have occurred and (E) is a Lease as to which none of the foregoing shall have been waived (other than deferrals and waivers of late payment charges or fees permitted under the Servicing Agreement); (k) is a Lease which has not been deemed to be uncollectible; (l) the related Lessee of which is a person located in one or more of the 50 states of the United States or the District of Columbia and is not (i) NMAC or any of its Affiliates, or (ii) the United States or any State or any agency or potential subdivision thereof; (m) is a Lease for which there is only one executed original; (n) has an original term of not less than 24 months and not greater than 48 months; (o) is a Lease for which the related Lease Documents are located at an address specified by the Servicer; (p) constitutes "chattel paper" as defined in the UCC; (q) is not recourse to the Dealer; (r) with respect thereto, NMAC, in accordance with its customary procedures, has determined at the time of origination of such Lease that the related Lessee has agreed to obtain physical damage insurance covering the related Leased Vehicle and is required under the terms of such Lease to maintain such insurance; and 28 (s) has a Securitization Value, as of its origination date, of no greater than $52,000. "2004-A Lease" has the meaning set forth in Section 8.01 of the 2004-A Servicing Supplement. "2004-A Servicing Supplement" means the 2004-A SUBI Servicing Supplement to the Basic Servicing Agreement, dated as of October 28, 2004, among the parties to the Basic Servicing Agreement. "2004-A SUBI" has the meaning set forth in Section 12.01(a) of the 2004-A SUBI Supplement. "2004-A SUBI Assets" has the meaning set forth in Section 12.01(b) to the 2004-A SUBI Supplement. "2004-A SUBI Account" means the 2004-A SUBI Collection Account, and any other Trust Account established with respect to the 2004-A SUBI, as the context may require. "2004-A SUBI Certificate" has the meaning set forth in the recitals of the 2004-A SUBI Supplement. "2004-A SUBI Collection Account" means the trust account established pursuant to Section 14.01(a) of the 2004-A SUBI Supplement. "2004-A SUBI Supplement" means the 2004-A SUBI Supplement to the Titling Trust Agreement, dated as of October 28, 2004, among the parties to the Titling Trust Agreement. "2004-A Vehicle" has the meaning set forth in Section 8.01 to the 2004-A SUBI Servicing Supplement. "UCC" means the Uniform Commercial Code as in effect in the applicable jurisdiction. "Underwriting Agreement" means the underwriting agreement relating to the Notes dated October 19, 2004, among JP Morgan Securities Inc., as Representative, on behalf of the several underwriters, NMAC and the Transferor. "United States" means the United States of America, its territories and possessions and areas subject to its jurisdiction. "U.S. Bank" means U.S. Bank National Association. "UTI" has the meaning set forth in Section 3.01(a) of the Titling Trust Agreement. "UTI Beneficiary" means NILT Trust, in its capacity as the initial beneficiary of the Titling Trust. "UTI Certificate" has the meaning set forth in Section 3.03 of the Titling Trust Agreement. "Vehicle Representation Date" has the meaning set forth in the Basic Servicing Agreement. 29 Section 1.02. Interpretative Provisions. Any reference in this Agreement of Definitions to any agreement means such agreement as it may be amended, restated, supplemented, or otherwise modified from time to time; any reference in this Agreement of Definitions to any law, statute, regulation, rule, or other legislative action shall mean such law, statute, regulation, rule, or other legislative action as amended, supplemented, or otherwise modified from time to time, and shall include any rule or regulation promulgated hereunder; and any reference in this Agreement of Definitions to a Person shall include the successor or assignee of such Person. Section 1.03. Notices. All demands, notices, and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, or by telecopier, and addressed in each case as follows: the Issuer, at c/o Wilmington Trust Company, as Owner Trustee, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust Administration with a copy to the Administrative Agent, at 990 West 190th Street, Torrance, California, 90502 (telecopier no. (310) 324-2542), Attention: Treasurer; NILT Trust, at 990 West 190th Street, Torrance, California, 90502 (telecopier no. (310) 324-2542), Attention: Treasurer; Nissan-Infiniti LT, at 990 West 190th Street, Torrance, California, 90502 (telecopier no. (310) 324-2542), Attention: Treasurer; NMAC, at 990 West 190th Street, Torrance, California 90502 (telecopier no. (310) 324-2542), Attention: Treasurer; the Transferor, at 990 West 190th Street, Torrance, California 90502 (telecopier no. (310) 324-2542), Attention: Secretary; NILT, Inc., at U.S. Bank National Association, 209 South LaSalle Street, Suite 300, Chicago, Illinois 60604 (telecopier no. (312) 325-8905) Attention: NILT Inc.; Wilmington Trust Company, as Owner Trustee and Delaware Trustee, at Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust Administration; and U.S. Bank National Association, as Indenture Trustee and Trust Agent, at U.S. Bank National Association, Wrigley Building, 400 North Michigan Avenue, 2nd Floor, Chicago, IL 600611 (telecopier no. (312) 836-6701), Attention: Nissan Auto Lease Trust 2004-A. Section 1.04. Amendment. (a) This Agreement of Definitions may be amended by the parties hereto, without the consent of any of the Noteholders or the Trust Certificateholders, to cure any ambiguity, to correct or supplement any provisions herein or therein, to add, change or eliminate any other provisions hereof or thereof with respect to matters or questions arising hereunder or thereunder that shall not be inconsistent with the provisions hereof or thereof, or to add or amend any provision therein in connection with permitting transfers of the Certificates or the Notes; provided, however, that any such action shall not, in the good faith judgment of the parties hereto or thereto, adversely affect in any material respect the interests of any Noteholders, any Certificateholders, the Indenture Trustee, the Owner Trustee or the Titling Trustee; or, as a condition to the effectiveness of such amendment, the Indenture Trustee and the Owner Trustee shall have received an Opinion of Counsel to the effect that such action shall not adversely affect in any material respect the interests of any Noteholders or any Certificateholders; and provided, further that any amendment eliminating the Reserve Account or reducing the Reserve Account Requirement shall also require NALL II to deliver to the Owner Trustee an Opinion of Counsel to the effect that after such amendment, for federal income tax purposes, the Issuer will not be treated as an association taxable as a corporation and the Notes should properly be characterized as indebtedness that is secured by the assets of the Issuer. (b) This Agreement of Definitions may also be amended from time to time by the parties hereto including with respect to (i) changing the formula for determining the Reserve Account that which could result in a decrease in the amount of the Reserve Account Requirement, (ii) changing the remittance schedule for deposits in the 2004-A Note Distribution Account and the 2004-A Certificate 30 Distribution Account, or (iii) changing the definition of "Eligible Investments", if either (A) the Indenture Trustee has been furnished with confirmation (written or oral) from each Rating Agency to the effect that such amendment would not cause its then-current rating of any Rated Securities to be qualified, reduced or withdrawn, or (B) the Indenture Trustee has received the consent of the Noteholders holding Notes representing more than 50% of the aggregate Outstanding Principal Amount, voting together as a single class, and the Owner Trustee has received the consent of the Trust Certificateholders holding Trust Certificates representing more than 50% of the aggregate outstanding principal amount of the Trust Certificates (which consent of any Noteholder or Trust Certificateholder given pursuant to this Section 1.03(b) or pursuant to any other provision of this Agreement of Definitions shall be conclusive and binding on such Noteholder or Trust Certificateholder and on all future Noteholders or Trust Certificateholders of such Note and of any or Note or Trust Certificate issued upon the transfer thereof or in exchange thereof, or in lieu thereof whether or not notation of such consent is made upon the Note or Trust Certificate); provided, however, that (1) any amendment eliminating the Reserve Account or reducing the Reserve Account Requirement to less than the lesser of the Reserve Account Initial Deposit and the sum of the Note Balance and the Certificate Balance as of the related Distribution Date (after giving effect to reductions in the Note Balance and Certificate Balance on such Distribution Date), shall also require that the Indenture Trustee and each Rating Agency receive an Opinion of Counsel to the effect that, after such amendment, for federal income tax purposes the Notes will properly be characterized as indebtedness that is secured by the assets of the Issuer; and (2) no such amendment shall (x) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the 2004-A SUBI Certificate or distributions that shall be required to be made on any Note or Certificate or (y) reduce the aforesaid percentage of the Notes or of the Trust Certificates required to consent to any such amendment, without the consent of all of the Noteholders and all of the Trust Certificateholders holding Notes or Trust Certificates, as applicable, then outstanding. Section 1.05. Severability of Provisions. Any provision of this Agreement of Definitions that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 1.06. Counterparts. This Agreement of Definitions may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. Section 1.07. Headings. The headings of the various Articles and Sections herein are for convenience or reference only and shall not define or limit any of the terms or provisions hereof. Section 1.08. Governing Law. THIS AGREEMENT OF DEFINITIONS SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF LAWS. 31 IN WITNESS WHEREOF, the parties hereto have caused this Agreement of Definitions to be duly executed by their respective officers duly authorized as of the day and year first above written. NISSAN MOTOR ACCEPTANCE CORPORATION Individually, as Servicer, and as Administrative Agent By: /s/ Steven R. Lambert ------------------------------------- Name: Steven R. Lambert Title: President NISSAN-INFINITI LT By: NILT, INC., as Trustee for Nissan-Infiniti LT By: /s/ Patricia M. Child --------------------------------- Name: Patricia M. Child Title: President NILT TRUST as UTI Beneficiary, Grantor, and Transferor By: U.S. BANK NATIONAL ASSOCIATION, as Trustee for NILT Trust By: /s/ Patricia M. Child --------------------------------- Name: Patricia M. Child Title: Vice President NILT, INC. as Trustee for Nissan-Infiniti LT By: /s/ Patricia M. Child ------------------------------------- Name: Patricia M. Child Title: President Agreement of Definitions S-1 NISSAN AUTO LEASING LLC II By: /s/ Joji Tagawa ------------------------------------- Name: Joji Tagawa Title: Treasurer NISSAN AUTO LEASE TRUST 2004-A By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee By: /s/ Joann A. Rozell --------------------------------- Name: Joann A. Rozell Title: Financial Services Officer WILMINGTON TRUST COMPANY as Owner Trustee and as Delaware Trustee By: /s/ Joann A. Rozell ------------------------------------- Name: Joann A. Rozell Title: Financial Services Officer U.S. BANK NATIONAL ASSOCIATION as Trust Agent, Indenture Trustee, and as Secured Party By: /s/ Patricia M. Child ------------------------------------- Name: Patricia M. Child Title: Vice President Agreement of Definitions S-2 EX-10.2 4 a02810exv10w2.txt EXHIBIT 10.2 EXHIBIT 10.2 - -------------------------------------------------------------------------------- NILT TRUST, as Grantor and UTI Beneficiary, NISSAN MOTOR ACCEPTANCE CORPORATION, as Servicer, NILT, INC., as Trustee, WILMINGTON TRUST COMPANY, as Delaware Trustee, and U.S. BANK NATIONAL ASSOCIATION, as Trust Agent --------------------- 2004-A SUBI SUPPLEMENT Dated as of October 28, 2004 --------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE ARTICLE ELEVEN DEFINITIONS Section 11.01. Definitions............................................................ 2 Section 11.02. Interpretive Provisions................................................ 2 Section 11.03. Rights in Respect of the 2004-A SUBI................................... 3 ARTICLE TWELVE CREATION OF THE 2004-A SUBI Section 12.01. Creation of 2004-A SUBI Assets and the 2004-A SUBI..................... 3 Section 12.02. Transfer of 2004-A SUBI Interests...................................... 4 Section 12.03. Issuance and Form of 2004-A SUBI Certificate........................... 4 Section 12.04. Actions and Filings.................................................... 6 Section 12.05. Termination of the 2004-A SUBI......................................... 6 Section 12.06. Representations and Warranties of Trustee.............................. 7 Section 12.07. Transfer and Assignment of Certificates................................ 7 ARTICLE THIRTEEN 2004-A SUBI PLEDGE Section 13.01. Registration of the 2004-A SUBI Pledge................................. 7 ARTICLE FOURTEEN 2004-A SUBI ACCOUNTS Section 14.01. 2004-A SUBI Collection Account......................................... 8 Section 14.02. 2004-A Reserve Account................................................. 8 Section 14.03. Investment of Monies in 2004-A SUBI Accounts........................... 8 Section 14.04. No Residual Value Account or Payahead Account.......................... 9 ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS Section 15.01. Amendment.............................................................. 9 Section 15.02. Governing Law.......................................................... 10 Section 15.03. Notices................................................................ 10 Section 15.04. Severability of Provisions............................................. 10 Section 15.05. Effect of Supplement on Titling Trust Agreement........................ 10 Section 15.06. No Petition............................................................ 11
-i- TABLE OF CONTENTS (CONTINUED)
PAGE EXHIBITS Exhibit A - Schedule of 2004-A Leases and 2004-A Leased Vehicles........................... A-1 Exhibit B - Form of 2004-A SUBI Certificate................................................ B-1
-ii- 2004-A SUBI SUPPLEMENT This 2004-A SUBI Supplement, dated as of October 28, 2004, is among NILT Trust, a Delaware statutory trust ("NILT Trust"), as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary," respectively), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), as servicer (in such capacity, the "Servicer"), NILT, Inc., a Delaware corporation, as trustee (the "Trustee"), Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee (the "Delaware Trustee"), and U.S. Bank National Association, a national banking association ("U.S. Bank"), as trust agent (in such capacity, the "Trust Agent"). RECITALS A. Pursuant to the Amended and Restated Trust and Servicing Agreement, dated as of August 26, 1998 (the "Titling Trust Agreement"), among the parties hereto, Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), was formed to take assignments and conveyances of and hold in trust various assets (the "Trust Assets"); B. The UTI Beneficiary, the Servicer and the Titling Trust have entered into the SUBI Servicing Agreement, dated as of March 1, 1999 (the "Basic Servicing Agreement"), by and among the UTI Beneficiary, the Servicer, and the Titling Trust, which provides for, among other things, the servicing of the Trust Assets by the Servicer; C. Pursuant to the Titling Trust Agreement, from time to time the Trustee, on behalf of the Titling Trust and at the direction of the UTI Beneficiary, will identify and allocate on the books and records of the Titling Trust certain Trust Assets and create and issue one or more special units of beneficial interest (each, a "SUBI"), the beneficiaries of which generally will be entitled to the net cash flows arising from such Trust Assets; D. The parties hereto desire to supplement the Titling Trust Agreement (as so supplemented by this 2004-A SUBI Supplement, the "SUBI Trust Agreement") to create a SUBI (the "2004-A SUBI"); E. The parties hereto desire to identify and allocate to the 2004-A SUBI a separate portfolio of Trust Assets consisting of leases (the "2004-A Leases"), the vehicles that are leased under the 2004-A Leases (the "2004-A Vehicles"), and certain other related assets; F. The parties hereto also desire to issue to NILT Trust a certificate evidencing a 100% beneficial interest in the 2004-A SUBI (the "2004-A SUBI Certificate"). G. NILT Trust will transfer the 2004-A SUBI Certificate to Nissan Auto Leasing LLC II ("NALL II") pursuant to the SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the "SUBI Certificate Transfer Agreement"). NALL II will further transfer the 2004-A SUBI Certificate to Nissan Auto Lease Trust 2004-A (the "Trust") pursuant to the Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the "Trust SUBI Certificate Transfer Agreement"), between NALL II, as transferor (the "Transferor") and the Trust, as transferee. SUBI Supplement 1 H. Pursuant to the Indenture, dated as of October 28, 2004 (the "Indenture"), by and between the Trust, as issuer (the "Issuer") and U.S. Bank, as Indenture Trustee (the "Indenture Trustee"), the Issuer will (i) issue $265,000,000 aggregate principal amount of 2.10563% Asset Backed Notes, Class A-1 (the "Class A-1 Notes"), $260,000,000 aggregate principal amount of 2.55000% Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $357,000,000 aggregate principal amount of 2.90000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), $488,000,000 aggregate principal amount of Floating Rate Asset Backed Notes, Class A-4a (the "Class A-4a Notes"), and $100,000,000 aggregate principal amount of 3.18000% Asset Backed Notes, Class A-4b (the "Class A-4b Notes," and together with the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes, and the Class A-4a Notes, the "Notes"); and (ii) pledge the 2004-A SUBI Certificate to the Indenture Trustee for the benefit of the holders of the Notes. I. The parties hereto also desire to register a pledge of the 2004-A SUBI Certificate to the Indenture Trustee for the benefit of the holders of 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 ELEVEN DEFINITIONS Section 11.01. Definitions. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Agreement of Definitions, dated as of October 28, 2004, by and among the Issuer, NILT Trust, as Grantor and UTI Beneficiary, the Titling Trust, NMAC, in its individual capacity, as Servicer and as administrative agent (in such capacity, the "Administrative Agent"), NALL II, NILT, Inc., as Trustee, Wilmington Trust Company, as Delaware Trustee and owner trustee (in such capacity, the "Owner Trustee") and U.S. Bank, as Trust Agent and Indenture Trustee. Section 11.02. Interpretive Provisions. For all purposes of this 2004-A SUBI Supplement, 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 this 2004-A SUBI Supplement include all Exhibits hereto, (iii) references to words such as "herein," "hereof" and the like shall refer to this 2004-A SUBI Supplement as a whole and not to any particular part, Article, or Section herein, (iv) references to an Article or Section such as "Article Twelve" or "Section 12.01" shall refer to the applicable Article or Section of this 2004-A SUBI Supplement, (v) the term "include" and all variations thereof shall mean "include without limitation," (vi) the term "or" shall include "and/or", and (vii) the term "proceeds" shall have the meaning ascribed to such term in the UCC. Any reference in this 2004-A SUBI Supplement to any agreement means such agreement as it may be amended, restated, supplemented (only to the extent such agreement as supplemented relates to the Notes), or otherwise modified from time to time. Any reference in this 2004-A SUBI Supplement to any law, statute, regulation, rule, or other legislative action shall mean such law, statute, regulation, rule, or other legislative action as amended, SUBI Supplement 2 supplemented, or otherwise modified from time to time, and shall include any rule or regulation promulgated thereunder. Any reference in this 2004-A SUBI Supplement to a Person shall include the successor or assignee of such Person. Section 11.03. Rights in Respect of the 2004-A SUBI. Each Holder and Registered Pledgee of the 2004-A SUBI Certificate (including the Trust) is a third-party beneficiary of the SUBI Trust Agreement insofar as the Titling Trust Agreement and this 2004-A SUBI Supplement apply to the 2004-A SUBI, the Holders of the 2004-A SUBI Certificate, and the Registered Pledgees of the 2004-A SUBI Certificate. Therefore, to that extent, references in the SUBI Trust Agreement to the ability of a "Holder," "Related Beneficiary," or a "Registered Pledgee" of a SUBI Certificate to take any action shall be deemed to refer to the Trust acting at its own instigation or upon the instruction of the requisite voting percentage of holders of Securities or Rated Securities, as specified in the Indenture or the Trust Agreement, as applicable. ARTICLE TWELVE CREATION OF THE 2004-A SUBI Section 12.01. Creation of 2004-A SUBI Assets and the 2004-A SUBI. (a) Pursuant to Section 3.01(a) of the Titling Trust Agreement, the UTI Beneficiary directs the Trustee to create, and the Trustee hereby creates, one Sub-Trust which shall be known as the "2004-A SUBI." The 2004-A SUBI shall represent a special unit of beneficial interest solely in the 2004-A SUBI Assets. (b) Pursuant to Section 3.01(a) of the Titling Trust Agreement, the UTI Beneficiary hereby directs the Trustee to identify and allocate or to cause to be identified and allocated to the 2004-A SUBI on the books and records of the Titling Trust a separate Sub-Trust of Trust Assets consisting of 2004-A Eligible Leases and the related Leased Vehicles and other associated Trust Assets owned by the Titling Trust and not allocated to any Other SUBI or reserved for allocation to any Other SUBI (or owned or acquired by the Trustee on behalf of the Titling Trust but not yet allocated to, or reserved for allocation to, any specific Sub-Trust). Such Trust Assets (the "2004-A SUBI Assets") shall be accounted for and held in trust independently from all other Trust Assets within the Titling Trust. Based upon their identification and allocation by the Servicer pursuant to the 2004-A Servicing Supplement, the Trustee hereby identifies and allocates as 2004-A SUBI Assets the 2004-A Leases and 2004-A Vehicles more particularly described on the Schedule of 2004-A Leases and 2004-A Vehicles and the related Trust Assets described above, each such 2004-A SUBI Asset to be identified on the books and accounts of the Titling Trust as being allocated to the 2004-A SUBI. (c) The Titling Trust is hereby granted the power and authority and is authorized, and the Trustee is authorized on behalf of the Titling Trust, to execute, deliver and perform its obligations under the Basic Documents. SUBI Supplement 3 Section 12.02. Transfer of 2004-A SUBI Interests. (a) Interests in the 2004-A SUBI may not be transferred or assigned by the UTI Beneficiary, and any such purported transfer or assignment shall be deemed null, void, and of no effect herewith; provided, however, that the 2004-A SUBI Certificate and the interests in the 2004-A SUBI represented thereby may be (i) sold to the Transferor pursuant to the SUBI Certificate Transfer Agreement, (ii) sold, transferred and assigned by the Transferor absolutely, or transferred and assigned or a security interest therein granted, in connection with a Securitized Financing, (iii) transferred to the Indenture Trustee or any subsequent Registered Pledgee to itself or any other Person following the occurrence of an Indenture Default (which has not been rescinded) or any similar term in any subsequent Securitized Financing secured by the 2004-A SUBI Certificate or any interest therein and (iv) transferred to each direct or indirect permitted transferee of the Indenture Trustee or such subsequent Registered Pledgee, in each case in the circumstances contemplated in, and subject to the conditions set forth in, Section 3.04(b) of the Titling Trust Agreement. Each such transfer shall be registrable upon surrender of the 2004-A SUBI Certificate to be transferred for registration of the transfer at the corporate trust office of the Trustee (or the Trust Agent, if applicable), accompanied by a written instrument of transfer in form satisfactory to the Trustee duly executed by the Holder thereof or such Holder's attorney duly authorized in writing, and thereupon a new 2004-A SUBI Certificate of a like aggregate fractional undivided interest will be issued to the designated permitted transferee. (b) For any transfer of the 2004-A SUBI Certificate or an interest therein to be effective, on or prior to the date of any absolute sale, transfer, or assignment, the related transferee must execute and deliver to the Trustee the non-petition covenant and the agreement required pursuant to Section 3.04(b) of the Titling Trust Agreement. Section 12.03. Issuance and Form of 2004-A SUBI Certificate. (a) The 2004-A SUBI shall be represented by a 2004-A SUBI Certificate that shall represent a 100% beneficial interest in the 2004-A SUBI and the 2004-A SUBI Assets, as further set forth herein. The 2004-A SUBI Certificate shall, upon transfer to the Trust, be registered in the name of the Trust, representing the beneficial interest in the 2004-A SUBI Assets allocated from the UTI. The Trustee shall register a pledge of the 2004-A SUBI Certificate in favor of the Indenture Trustee (for the benefit of the holders of the Notes), as provided in Article Thirteen, and shall deliver the 2004-A SUBI Certificate to the Indenture Trustee. The 2004-A SUBI Certificate shall be substantially in the form of Exhibit B attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required by this 2004-A SUBI Supplement and may have such letters, numbers or other marks of identification and such legends and endorsements placed thereon as may, consistently herewith and with the Titling Trust Agreement, be directed by the UTI Beneficiary. Any portion of any 2004-A SUBI Certificate may be set forth on the reverse thereof, in which case the following reference to the portion of the text on the reverse shall be inserted on the face thereof, in relative proximity to and prior to the signature of the Trustee executing such 2004-A SUBI Certificate: SUBI Supplement 4 Reference is hereby made to the further provisions of this certificate set forth on the reverse hereof, which provisions shall for all purposes have the same effect as if set forth at this place. In addition, the 2004-A SUBI Certificate will bear a legend to the following effect: THIS 2004-A SUBI CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY PURCHASING THIS 2004-A SUBI CERTIFICATE, AGREES THAT THIS 2004-A SUBI CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, INCLUDING PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTIONS. The 2004-A SUBI Certificate shall be printed, lithographed, typewritten, mimeographed, photocopied, or otherwise produced or may be produced in any other manner as may, consistently herewith and with the Titling Trust Agreement, be determined by the UTI Beneficiary. The 2004-A SUBI Certificate and the interest in the 2004-A SUBI evidenced thereby shall constitute a "security" within the meaning of Section 8-102(a)(15) of the UCC and a "certificated security" within the meaning of Section 8-102(a)(4) of the UCC. (b) If (i) the 2004-A SUBI Certificate is mutilated and surrendered to the Trustee, or the Trustee receives evidence to its satisfaction of the destruction, loss, or theft of the 2004-A SUBI Certificate, and (ii) there is delivered to the Trustee such security or indemnity as may reasonably be required by it to hold the Trust and the Trustee, as applicable, harmless, then the Trustee shall execute and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost, or stolen 2004-A SUBI Certificate, a replacement 2004-A SUBI Certificate. Every 2004-A SUBI Certificate issued pursuant to this Section 12.03(b) in replacement of any mutilated, destroyed, lost, or stolen 2004-A SUBI Certificate shall constitute an original additional contractual obligation of the Trust, whether or not the mutilated, destroyed, lost, or stolen 2004-A SUBI Certificate shall be at any time enforceable by anyone, and shall be entitled to all of the benefits of the SUBI Trust Agreement equally and proportionately with any and all other 2004-A SUBI Certificates duly issued hereunder. The provisions of this Section 12.03(b) are exclusive and preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost, or stolen 2004-A SUBI Certificates. SUBI Supplement 5 Section 12.04. Actions and Filings. The UTI Beneficiary and the Trustee shall undertake all other and future actions and activities as may be deemed reasonably necessary by the Servicer pursuant to the Servicing Agreement to perfect (or evidence) and confirm the foregoing allocations of Trust Assets to the 2004-A SUBI, including filing or causing to be filed UCC financing statements and executing and delivering all related filings, documents or writings as may be deemed reasonably necessary by the Servicer or the Registered Pledgee hereunder or under any other Basic Document. The UTI Beneficiary hereby irrevocably makes and appoints each of the Trustee and the Servicer, and any of their respective officers, employees, or agents, as the true and lawful attorney-in-fact of the UTI Beneficiary (which appointment is coupled with an interest and is irrevocable) with power to sign on behalf of the UTI Beneficiary any financing statements, continuation statements, security agreements, mortgages, assignments, affidavits, letters of authority, notices, or similar documents necessary or appropriate to be executed or filed pursuant to this Section. Section 12.05. Termination of the 2004-A SUBI. (a) In connection with any purchase by the Servicer of the corpus of the Trust pursuant to Article Nine of the Trust Agreement, the succession of the Servicer to the interest in the 2004-A SUBI represented by the 2004-A SUBI Certificate, or should all of the interest in the 2004-A SUBI thereafter be held by the UTI Beneficiary or the Holders of the UTI Certificates, whether by transfer, sale, or otherwise, then upon the direction of such Holders, the 2004-A SUBI shall be terminated, the 2004-A SUBI Certificate shall be returned to the Trustee and canceled, and the Servicer shall reallocate all 2004-A SUBI Assets to the UTI. (b) So long as the Notes are Outstanding, the 2004-A SUBI shall not be dissolved unless (a) required by law or (b) at the direction of the Holder of the 2004-A SUBI Certificate (but only with the consent of the Registered Pledgee); provided, however, that upon the sale of the Trust Estate pursuant to Section 5.04 of the Indenture, this 2004-A SUBI Supplement shall terminate and the 2004-A SUBI shall be terminated; provided further, that such termination shall affect the Titling Trust only insofar as such termination relates to the 2004-A SUBI. Such termination shall not entitle the legal representatives of the 2004-A SUBI or any Holder of a 2004-A SUBI Certificate to take any action for a partition or winding up of the Titling Trust or any Trust Assets except with respect to the 2004-A SUBI Assets and the rights, obligations and Liabilities of the parties hereto shall not otherwise be affected. In connection with the sale of the Trust Estate pursuant to Section 5.04 of the Indenture, the Registered Pledgee shall have the right to direct the Holder of the 2004-A SUBI Certificate to dissolve the 2004-A SUBI in accordance with the provisions of the Indenture, and the 2004-A SUBI Assets shall be distributed out of the Titling Trust at the direction of the Holder of the 2004-A SUBI Certificate acting in accordance with instructions from the Registered Pledgee, and the purchaser shall take delivery of such 2004-A SUBI Assets. The Trustee and the other parties hereto shall cooperate with the Owner Trustee or the Trustee, as applicable, to cause the related 2004-A Vehicles to be retitled as directed by the purchaser. The proceeds of such sale shall be distributed in the following amounts and priority: SUBI Supplement 6 (i) to the Indenture Trustee, all amounts required to be paid under Section 6.07 of the Indenture, or to the Owner Trustee, all amounts required to be paid under Section 8.01 of the Trust Agreement, as the case may be; (ii) to the Servicer, any Payment Date Advance Reimbursement; (iii) to the Servicer, amounts due in respect of unpaid Servicing Fees; and (iv) to the Certificate Distribution Account (or, if the Lien of the Indenture is outstanding, the Note Distribution Account) to be distributed pursuant to Section 5.04(b) of the Indenture. Section 12.06. Representations and Warranties of Trustee. The Trustee hereby reaffirms, as of the Cutoff Date, the representations, warranties and covenants set forth in Section 5.12 of the Titling Trust Agreement, on which the Grantor and UTI Beneficiary, each of its permitted assignees, and each Holder or Related Beneficiary of a 2004-A SUBI Certificate (and beneficial owner of any portion thereof, including the Trust and the Trust Certificateholders) may rely. For purposes of this Section, any reference in Section 5.12 of the Titling Trust Agreement to the Titling Trust Agreement shall be deemed to constitute references to the SUBI Trust Agreement. Section 12.07. Transfer and Assignment of Certificates. For purposes of the SUBI Trust Agreement, the third sentence of Section 3.04(b) of the Titling Trust Agreement is hereby amended to read as follows: Notwithstanding the foregoing, prior to becoming the Registered Pledgee or Holder of a SUBI Certificate or otherwise becoming entitled to distributions or any other rights hereunder, the related transferee, assignee, or pledgee in each case must (i) give a non-petition covenant substantially similar to that set forth in Section 8.08 of the Titling Trust Agreement and (ii) execute an agreement in favor of each Holder from time to time of a UTI Certificate and any certificate evidencing an Other SUBI to release all Claims to the UTI Assets and the related Other SUBI Assets, respectively, and, if such release is not given effect, to subordinate fully all Claims it may be deemed to have against the UTI Assets or such Other SUBI Assets, as the case may be. For so long as the 2004-A SUBI Certificate remains outstanding, each Supplement shall contain a similar amendment with respect to such Section. ARTICLE THIRTEEN 2004-A SUBI PLEDGE Section 13.01. Registration of the 2004-A SUBI Pledge. The parties hereto hereby acknowledge the Trust's pledge, assignment, and grant to the Indenture Trustee, for the benefit of the holders of the Notes, under the Indenture of a security interest in the 2004-A SUBI Certificate together with all rights appurtenant thereto and proceeds thereof, to secure the Notes. The Trustee hereby acknowledges such pledge, assignment, and grant of security interest, and the SUBI Supplement 7 Trustee agrees to cause the Indenture Trustee to be listed in the Certificate Register as the Registered Pledgee of the Trust's 2004-A SUBI Certificate. The Trust has caused the Trustee to deliver the 2004-A SUBI Certificate to the Indenture Trustee, as Registered Pledgee, who shall have the rights with respect thereto described herein and in the Indenture. ARTICLE FOURTEEN 2004-A SUBI ACCOUNTS Section 14.01. 2004-A SUBI Collection Account. (a) With respect to the 2004-A SUBI, the Trustee, at the direction of the Servicer, shall establish, and the Trust Agent shall maintain, in the name of the Trustee, for the exclusive benefit of the holders of interests in the 2004-A SUBI, the 2004-A SUBI Collection Account, which account shall constitute a SUBI Collection Account. The 2004-A SUBI Collection Account initially shall be established with U.S. Bank, as Trust Agent, so long as the Trust Agent has the Required Deposit Rating. If the Trust Agent at any time does not have the Required Deposit Rating, the Servicer shall, with the assistance of the Trust Agent, as necessary, cause such 2004-A SUBI Collection Account to be moved as described in Section 4.02(a) of the Titling Trust Agreement. The 2004-A SUBI Collection Account shall relate solely to the 2004-A SUBI and the 2004-A SUBI Assets, and funds therein shall not be commingled with any other monies, except as otherwise provided for in, or contemplated by, the SUBI Trust Agreement or in the Servicing Agreement. All deposits into the 2004-A SUBI Collection Account shall be made as described in the Servicing Agreement. (b) On each Deposit Date and Payment Date, pursuant to the instructions from the Servicer, the Trustee (acting through the Trust Agent) shall make deposits and withdrawals from the 2004-A SUBI Collection Account as set forth in the 2004-A Servicing Supplement. (c) Any transfer of funds to a Holder of a 2004-A SUBI Certificate shall be made as directed pursuant to the Basic Documents. Section 14.02. 2004-A Reserve Account. (a) Pursuant to Section 5.01 of the Trust Agreement, the Servicer, on behalf of the Trust, shall establish and maintain the Reserve Account (i) with the Indenture Trustee, until the Outstanding Amount is reduced to zero, and (ii) thereafter with the Owner Trustee. Deposits and withdrawals from the Reserve Account shall be made as directed pursuant to the Basic Documents, including Section 8.04(b) of the Indenture, Section 10.01 of the Indenture, Section 8.04 of the Servicing Agreement and Section 14.03 of this 2004-A SUBI Supplement. Section 14.03. Investment of Monies in 2004-A SUBI Accounts. All amounts held in the 2004-A SUBI Collection Account and the Reserve Account shall be invested in Permitted Investments in accordance with Section 4.02(a) of the Titling Trust Agreement. Any investment earnings on the 2004-A SUBI Collection Account and the Reserve Account will be taxable to the Transferor. SUBI Supplement 8 Section 14.04. No Residual Value Surplus Account or Payahead Account. The parties hereby acknowledge that there shall be no Residual Value Surplus Account or Payahead Account (as defined in the Titling Trust Agreement). ARTICLE FIFTEEN MISCELLANEOUS PROVISIONS Section 15.01. Amendment. (a) This 2004-A SUBI Supplement (and, accordingly, the Titling Trust Agreement as it relates to the 2004-A SUBI) may be amended by the parties hereto: (i) without the consent of the Holders, to cure any ambiguity, to correct or supplement any provision herein that may be inconsistent with any other provision herein, to add any other provision with respect to matters or questions arising hereunder that is not inconsistent with the SUBI Trust Agreement, or to add or amend any provision herein to assure that none of the Titling Trust, the Trust, or the Transferor will be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes; provided that any such action will not, in the good faith judgment of the parties hereto, materially and adversely affect the interest of any Holder; and (ii) from time to time (including to change the manner in which the Reserve Account is funded or to eliminate the Reserve Account, or to change the remittance schedule for depositing SUBI Collections and other amounts into the 2004-A SUBI Collection Account), provided that (A) each Rating Agency receives prior written notice of such amendment and (B) an Opinion of Counsel is delivered to the Trustee to the effect that after such amendment, for federal income tax purposes, the Titling Trust will not be treated as an association (or a publicly traded partnership) taxable as a corporation and the Notes will properly be characterized as indebtedness that is secured by the assets of the Trust. To the extent that any such amendment materially affects the UTI or any Other SUBI, the 2004-A SUBI Certificate or the 2004-A SUBI Assets, such amendment shall require the consent of the Holders affected thereby; in addition, to the extent that (A) such amendment shall increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections or payments in respect of the 2004-A SUBI or the 2004-A SUBI Certificate or distributions (or the interest thereon) required to be made on any Notes or the Trust Certificates or reduce the Interest Rate of any Note or (B) reduce the percentage of the aggregate principal amount of the Notes and Trust Certificates required to consent to any such amendment, any such amendment shall require the consent of all the Holders and holders of 100% of all outstanding Notes and Trust Certificates (which for this purpose shall include Trust Certificates held by the Trust, the Transferor, the Servicer and their respective Affiliates), and an Opinion of Counsel as set forth in clause (B) above. SUBI Supplement 9 (b) Any amendment to this 2004-A SUBI Supplement shall amend the Titling Trust Agreement only insofar as such amendment relates to the 2004-A SUBI. Section 15.02. Governing Law. This 2004-A SUBI Supplement shall be created under and governed by and construed under the internal laws of the State of Delaware, without reference to its conflicts of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws. Section 15.03. Notices. The notice provisions of Section 8.03 of the Titling Trust Agreement shall apply equally to this 2004-A SUBI Supplement. A copy of each notice or other writing required to be delivered to the Trustee pursuant to the SUBI Trust Agreement also shall be delivered to (i) the Owner Trustee at Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust Administration; (ii) the Servicer at 990 West 190th Street, Torrance, California 90502 (telecopier no. (310) 324-2542), Attention: Treasurer; and (iii) the Trust Agent at 209 South LaSalle Street, Suite 300, Chicago, IL 60604, Attention: NILT Inc. (telecopier no. (312) 325-8905). Section 15.04. Severability of Provisions. If any one or more of the covenants, agreements, provisions, or terms of this 2004-A SUBI Supplement (including any amendment hereto) 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 2004-A SUBI Supplement, as the same may be amended, and shall in no way affect the validity or enforceability of the other provisions of the SUBI Trust Agreement or of the 2004-A SUBI Certificate or the rights of the Registered Pledgees thereof. To the extent permitted by applicable law, the parties hereto waive any provision of law that renders any covenant, agreement, provision, or term of this 2004-A SUBI Supplement invalid or unenforceable in any respect. Section 15.05. Effect of Supplement on Titling Trust Agreement. (a) Except as otherwise specifically provided herein or unless the context otherwise requires, (i) the parties hereto shall continue to be bound by all provisions of the Titling Trust Agreement, (ii) all references in the Titling Trust Agreement to the Titling Trust Agreement shall be to the SUBI Trust Agreement and (iii) the provisions set forth herein shall operate either as additions to or modifications of the extant obligations of the parties under the Titling Trust Agreement, as the context may require. In the event of any conflict between this 2004-A SUBI Supplement and the Titling Trust Agreement in respect of the 2004-A SUBI, the provisions of this 2004-A SUBI Supplement shall prevail. (b) For purposes of determining the obligations of the parties hereto under this 2004-A SUBI Supplement with respect to the 2004-A SUBI, except as otherwise indicated by the context, general references in the Titling Trust Agreement to (i) a SUBI Account shall be deemed to refer more specifically to a 2004-A SUBI Account, (ii) a SUBI shall be deemed to refer more specifically to the 2004-A SUBI, (iii) a SUBI Collection Account shall be deemed to refer more specifically to the 2004-A SUBI Collection Account, (iv) a SUBI Asset shall be deemed to refer SUBI Supplement 10 more specifically to a 2004-A SUBI Asset, (v) a SUBI Supplement shall be deemed to refer more specifically to this 2004-A SUBI Supplement and (vi) a Servicing Supplement shall be deemed to refer more specifically to the 2004-A Servicing Supplement. Section 15.06. No Petition. Each of the parties hereto and each Holder of a 2004-A SUBI Certificate, and each Registered Pledgee, by acceptance of a 2004-A SUBI Certificate, 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 (and, to the fullest extent permitted by applicable law, the Trustee shall not have the power to) institute against, or join any other Person in instituting against, the Grantor, the Trustee, the Titling Trust, any Special Purpose Affiliate or any Beneficiary, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding or other Proceeding under any federal or state bankruptcy or similar law. This Section shall survive the complete or partial termination of this 2004-A SUBI Supplement, the resignation or removal of the Trustee under the SUBI Trust Agreement and the complete or partial resignation or removal of the Servicer under the SUBI Trust Agreement or the Servicing Agreement. SUBI Supplement 11 IN WITNESS WHEREOF, the Grantor and UTI Beneficiary, the Servicer, the Trustee, the Delaware Trustee and, solely for the limited purposes set forth in Sections 14.01, 14.02, 14.03 and 14.04, the Trust Agent, have caused this 2004-A SUBI Supplement to be duly executed by their respective officers as of the day and year first above written. NILT TRUST, as Grantor and UTI Beneficiary By: U.S. BANK NATIONAL ASSOCIATION, as Managing Trustee By: /s/ Patricia M. Child ----------------------------- Name: Patricia M. Child Title: Vice President NISSAN MOTOR ACCEPTANCE CORPORATION, as Servicer By: /s/ Steven R. Lambert --------------------------------- Name: Steven R. Lambert Title: President NILT, INC., as Trustee By: /s/ Patricia M. Child --------------------------------- Name: Patricia M. Child Title President WILMINGTON TRUST COMPANY, as Delaware Trustee By: /s/ Joann A. Rozell --------------------------------- Name: Joann A. Rozell Title: Financial Services Officer U.S. BANK NATIONAL ASSOCIATION, as Trust Agent By: /s/ Patricia M. Child --------------------------------- Name: Patricia M. Child Title: Vice President (SUBI Supplement) S-1 Receipt of this original counterpart of this 2004-A SUBI Supplement is hereby acknowledged on this 28th day of October, 2004 . U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee By: /s/ Patricia M. Child --------------------------------- Name: Patricia M. Child Title: Vice President SUBI Supplement S-2 EXHIBIT A SCHEDULE OF 2004-A LEASES AND 2004-A VEHICLES [Omitted. Copies on file with the Servicer, the Trustee and the Owner Trustee.] (SUBI Supplement) A-1 EXHIBIT B FORM OF 2004 - A SUBI CERTIFICATE THIS 2004-A SUBI CERTIFICATE MAY NOT BE TRANSFERRED OR ASSIGNED EXCEPT UPON THE TERMS AND SUBJECT TO THE CONDITIONS SPECIFIED HEREIN NISSAN - INFINITI LT 2004-A SPECIAL UNIT OF BENEFICIAL INTEREST CERTIFICATE evidencing a fractional undivided interest in the 2004-A SUBI Assets of Nissan-Infiniti LT, a statutory trust organized pursuant to the Delaware Statutory Trust Act (the "Trust"). (This Certificate does not represent any interest in the UTI Assets or any Other SUBI Assets of the Trust or an obligation, of, or interest in, NILT Trust, Nissan Motor Acceptance Corporation, NILT, Inc., or any of their respective Affiliates.) THIS 2004-A SUBI CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED ("THE SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY PURCHASING THIS 2004-A SUBI CERTIFICATE, AGREES THAT THIS 2004-A SUBI CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS, INCLUDING PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTIONS. No. R-___ evidencing a 100% interest in all 2004-A SUBI Assets (as defined below). This 2004-A Special Unit of Beneficial Interest Certificate does not represent an interest in or obligation of Nissan Motor Acceptance Corporation, NILT, Inc. or any of their respective affiliates. THIS CERTIFIES THAT ________________ is the registered owner of a nonassessable, fully-paid, 100% beneficial interest in the 2004-A SUBI Assets owned by Nissan-Infiniti LT (the "Titling Trust"). (SUBI Supplement) B-1 The Titling Trust was created pursuant to the Amended and Restated Trust and Servicing Agreement, dated as of August 26, 1998, as amended, supplemented, or restated from time to time (the "Titling Trust Agreement"), among NILT Trust, as grantor and initial beneficiary (in such capacities, the "Grantor" and the "UTI Beneficiary," respectively), NILT, Inc., as trustee (the "Trustee"), Nissan Motor Acceptance Corporation, as servicer (the "Servicer"), Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee"), and U.S. Bank National Association, as trust agent (the "Trust Agent"). This certificate is a duly authorized 2004-A SUBI Certificate, and is issued under and is subject to the terms, provisions and conditions of the Titling Trust Agreement and the 2004-A SUBI Supplement thereto, dated as of October 28, 2004 (the "2004-A SUBI Supplement" and, together with the Titling Trust Agreement, the "SUBI Trust Agreement"). Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Agreement of Definitions, dated as of October 28, 2004, by and among Nissan Auto Lease Trust 2004-A, as issuer, NILT Trust, as Grantor and UTI Beneficiary, the Titling Trust, Nissan Motor Acceptance Corporation, in its individual capacity, as servicer and administrative agent, Nissan Auto Leasing LLC II, NILT, Inc., as trustee to the Titling Trust, Wilmington Trust Company, as owner trustee and Delaware trustee, and U.S. Bank National Association, as trust agent and indenture trustee. By acceptance of this 2004-A SUBI Certificate, the Holder hereof assents to the terms and conditions of the SUBI Trust Agreement and agrees to be bound thereby. A summary of certain of the pertinent provisions of the SUBI Trust Agreement is set forth below. The assets of the Titling Trust allocated to the 2004-A SUBI will generally consist of (i) cash capital, (ii) the 2004-A Leases (iii) the 2004-A Vehicles, (iv) certain related Trust Assets and (v) all of the Titling Trust's rights thereunder, including the right to proceeds arising therefrom or in connection therewith. Under the Titling Trust Agreement, from time to time the UTI Beneficiary may direct the Trustee to issue to or upon the order of the UTI Beneficiary one or more certificates (each, a "SUBI Certificate") representing a beneficial interest in certain specified Leased Vehicles, Leases and related Trust Assets (such assets, the "SUBI Assets"). Upon the issuance of the SUBI Certificates relating to the SUBI Assets, the beneficial interest in the Trust and the Trust Assets represented by the UTI shall be reduced by the amount of the Trust Assets represented by such SUBI Certificates. This certificate was issued pursuant to the 2004-A SUBI Supplement and represents a 100% beneficial interest in the 2004-A SUBI Assets. The UTI and the 2004-A SUBI shall each constitute a separate series of the Titling Trust pursuant to Section 3806(b)(2) of the Delaware Statutory Trust Act for which separate and distinct records shall be maintained. The 2004-A SUBI Certificate and the interest in the 2004-A SUBI represented thereby constitutes a "security" within the meaning of Section 8-102(a)(15) of the Delaware UCC and a "certificated security" within the meaning of Section 8-102(a)(4) of the Delaware UCC. The 2004-A SUBI Supplement may be amended by the parties thereto upon the terms and subject to the conditions set forth in the 2004-A SUBI Supplement. SUBI Supplement B-2 The Holder, by acceptance of this 2004-A SUBI Certificate, 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 Trustee, the Titling Trust, any Beneficiary or a Special Purpose Affiliate, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding or other Proceedings under any federal or state bankruptcy or similar law. Such covenant shall survive the termination of the SUBI Trust Agreement, the resignation or removal of the Trustee under the SUBI Trust Agreement or the complete or partial resignation of the Servicer under the SUBI Trust Agreement or the Servicing Agreement. The Holder hereof hereby (i) expressly waives any claim it may have to any proceeds or assets of the Trustee and to all of the Trust Assets other than those from time to time included within the 2004-A SUBI as 2004-A SUBI Assets and those proceeds or assets derived from or earned by such 2004-A SUBI Assets and (ii) expressly subordinates in favor of the Holder of any certificate evidencing an Other SUBI or a UTI Certificate any claim to any Other SUBI or UTI Assets that, notwithstanding the waiver contained in clause (i), may be determined to exist. The Trustee shall keep the certificate register with respect to this 2004-A SUBI Certificate, and the Holder of this 2004-A SUBI Certificate shall notify the Trustee of any change of address or instructions on the distribution of funds. The 2004-A SUBI shall be deemed dissolved solely with respect to the 2004-A SUBI Assets, and not as to any Trust Assets allocated to any other Sub-Trust, upon the written direction to the Trustee by the Holder of the 2004-A SUBI Certificate to revoke and dissolve the 2004-A SUBI. So long as the Notes are outstanding, the 2004-A SUBI shall not be dissolved except (a) as required by law or (b) at the direction of the Holder of the 2004-A SUBI Certificate (but only with the consent of the Registered Pledgee); provided, however, upon any sale of the Trust Estate pursuant to Section 5.04 of the Indenture, the Registered Pledgee shall have the right to direct the Holder of the 2004-A SUBI Certificate to dissolve the 2004-A SUBI in accordance with the provisions of the Indenture. Upon such dissolution of the Titling Trust with respect to the 2004-A SUBI and delivery of the 2004-A SUBI Certificate to the Trustee for cancellation, the Trustee shall distribute to the Holder of the 2004-A SUBI Certificate or its designee all 2004-A SUBI Assets and shall cause the Certificates of Title to the 2004-A Vehicles to be issued in the name of, or at the direction of, the Holder of the 2004-A SUBI Certificate (which may include reallocation of the 2004-A SUBI Assets relating to the 2004-A Vehicles to the UTI). The Holder of the 2004-A SUBI Certificate to whom such 2004-A SUBI Assets relating to the 2004-A Vehicles are distributed shall pay or cause to be paid all applicable titling and registration fees and taxes. The Titling Trust or the UTI may terminate upon the terms and subject to the conditions set forth in the SUBI Trust Agreement. No SUBI or SUBI Certificate shall be transferred or assigned except to the extent specified in the SUBI Trust Agreement or in any related Supplement and, to the fullest extent permitted by applicable law, any such purported transfer or assignment other than as so specified shall be deemed null, void, and of no effect under the SUBI Trust Agreement. Notwithstanding SUBI Supplement B-3 the foregoing, any SUBI Certificate and the interest in the SUBI evidenced thereby may be (i) transferred, assigned or pledged to any Special Purpose Affiliate or (ii) transferred, assigned or pledged by the Related Beneficiary or a Special Purpose Affiliate to or in favor of (A) a trustee for one or more trusts or (B) one or more other entities, in either case solely for the purpose of securing or otherwise facilitating one or more Securitized Financings. This 2004-A SUBI Certificate shall be governed by and construed under the internal laws of the State of Delaware, without reference to its conflicts of law provisions. Unless this 2004-A SUBI Certificate shall have been executed by an authorized officer of the Trustee, by manual signature, this 2004-A SUBI Certificate shall not entitle the holder hereof to any benefit under the SUBI Trust Agreement or be valid for any purpose. SUBI Supplement B-4 IN WITNESS WHEREOF, NILT, Inc., as Trustee of the Titling Trust and not in its individual capacity, has caused this 2004-A SUBI Certificate to be duly executed. Dated: October 28, 2004 NISSAN-INFINITI LT By: NILT, INC., as Trustee (SEAL) By: _____________________________________ Name: Title: ATTEST: This is the 2004-A SUBI Certificate referred to in the within-mentioned Supplement. NILT, INC., as Trustee By: _____________________________________ Authorized Officer SUBI Supplement B-5 FOR VALUE RECEIVED, the undersigned hereby sells, transfers and assigns unto ______________ the within 2004-A SUBI Certificate, and all rights thereunder, hereby irrevocably constituting and appointing _____________ as attorney to transfer said 2004-A SUBI Certificate on the books of the certificate registrar, with full power of substitution in the premises. Dated: ___________________ By: _________________________________ Name: Title: SUBI Supplement B-6 EX-10.3 5 a02810exv10w3.txt EXHIBIT 10.3 EXHIBIT 10.3 - -------------------------------------------------------------------------------- NISSAN-INFINITI LT, as Titling Trust, NILT TRUST, as UTI Beneficiary, and NISSAN MOTOR ACCEPTANCE CORPORATION, as Servicer, ------------------------------ 2004-A SERVICING SUPPLEMENT Dated as of October 28, 2004 ------------------------------ - -------------------------------------------------------------------------------- TABLE OF CONTENTS
Page ---- ARTICLE SEVEN DEFINITIONS Section 7.01. Definitions................................................................................... 1 Section 7.02. Interpretative Provisions..................................................................... 2 ARTICLE EIGHT SERVICING OF THE 2004-A LEASES AND 2004-A VEHICLES Section 8.01. Identification of 2004-A Leases and 2004-A Vehicles; Securitization Value..................... 2 Section 8.02. Reallocation and Repurchase of 2004-A Leases and 2004-A Vehicles; Purchase of Matured Vehicles.................................................................. 2 Section 8.03. Collections and Payment Date Advance Reimbursement............................................ 4 Section 8.04. Net Deposits.................................................................................. 5 Section 8.05. Servicing Compensation........................................................................ 6 Section 8.06. Advances...................................................................................... 6 Section 8.07. Third Party Claims............................................................................ 6 Section 8.08. Contingent and Excess Liability Insurance Policy.............................................. 7 Section 8.09. Reporting by the Servicer; Delivery of Certain Documentation.................................. 7 Section 8.10. Accountants' Reports.......................................................................... 7 Section 8.11. Annual Officer's Certificates................................................................. 8 Section 8.12. Servicer Defaults; Termination of Servicer.................................................... 8 Section 8.13. Servicer Representations and Warranties....................................................... 11 ARTICLE NINE MISCELLANEOUS Section 9.01. Termination of Servicing Supplement........................................................... 11 Section 9.02. Governing Law................................................................................. 11 Section 9.03. Amendment..................................................................................... 12 Section 9.04. Relationship of this 2004-A Servicing Supplement to Other Trust Documents..................... 12 Section 9.05. Binding Effect................................................................................ 12 Section 9.06. Table of Contents and Headings................................................................ 13 Section 9.07. Counterparts.................................................................................. 13 Section 9.08. Further Assurances............................................................................ 13 Section 9.09. Third-Party Beneficiaries..................................................................... 13 Section 9.10. No Waiver; Cumulative Remedies................................................................ 13 Section 9.11. No Petition................................................................................... 13
i TABLE OF CONTENTS (continued)
Page ---- EXHIBITS Exhibit A - Schedule of 2004-A Leases and 2004-A Vehicles....................................................... A-1 Exhibit B - Form of Settlement Statement........................................................................ B-1
ii 2004-A SERVICING SUPPLEMENT This 2004-A Servicing Supplement, dated as of October 28, 2004 (the "2004-A Servicing Supplement"), is among Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), NILT Trust, a Delaware statutory trust, as grantor and initial beneficiary of the Titling Trust (in such capacities, the "Grantor" and the "UTI Beneficiary," respectively), and Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), as servicer (the "Servicer"). RECITALS A. The Grantor and UTI Beneficiary, the Servicer, NILT, Inc., as trustee of the Titling Trust (the "Trustee"), Wilmington Trust Company, as Delaware trustee, and U.S. Bank National Association ("U.S. Bank"), as trust agent, have entered into the Amended and Restated Trust and Servicing Agreement, dated as of August 26, 1998 (the "Titling Trust Agreement"), pursuant to which the Titling Trust was created to, among other things, take assignments and conveyances of and hold in trust various assets (the "Trust Assets"); B. The parties hereto have entered into the Servicing Agreement, dated as of March 1, 1999 (the "Basic Servicing Agreement" and, as supplemented hereby, the "Servicing Agreement"), which provides for certain servicing obligations with respect to the Trust Assets; and C. The parties acknowledge that in connection with the execution of the 2004-A SUBI Supplement to the Titling Trust Agreement, dated as of October 28, 2004 (the "2004-A SUBI Supplement", and together with the Titling Trust Agreement, the "SUBI Trust Agreement"), pursuant to which a special unit of beneficial interest in the Titling Trust (the "2004-A SUBI") will be created, it is necessary and desirable to enter into a supplemental agreement to the Basic Servicing Agreement providing for specific servicing obligations in connection with the Trust Assets allocable to the 2004-A SUBI. NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE SEVEN DEFINITIONS Section 7.01 Definitions. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Agreement of Definitions, dated as of October 28, 2004, by and among Nissan Auto Lease Trust 2004-A, as issuer (the "Issuer"), NILT Trust, as Grantor and UTI Beneficiary, the Titling Trust, NMAC, in its individual capacity, as Servicer and as administrative agent (in such capacity, the "Administrative Agent"), Nissan Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), NILT, Inc., as Trustee, Wilmington Trust Company, as owner trustee and Delaware trustee (in such capacity, the "Owner Trustee" Servicing Supplement and the "Delaware Trustee," respectively) and U.S. Bank, as trust agent and indenture trustee (in such capacity, the "Trust Agent" and the "Indenture Trustee," respectively). Section 7.02 Interpretative Provisions. For all purposes of this 2004-A Servicing Supplement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this 2004-A Servicing Supplement include, as appropriate, all genders and the plural as well as the singular, (ii) references to this 2004-A Servicing Supplement include all Exhibits hereto, (iii) references to words such as "herein", "hereof", and the like shall refer to this 2004-A Servicing Supplement as a whole and not to any particular part, Article, or Section herein, (iv) references to an Article or Section such as "Article Eight" or "Section 8.01" shall refer to the applicable Article or Section of this 2004-A Servicing Supplement, (v) the term "include" and all variations thereof shall mean "include without limitation", (vi) the term "or" shall include "and/or", (vii) the term "proceeds" shall have the meaning ascribed to such term in the UCC, (viii) in the computation of a period of time from a specified date to a later specified date, the word "from" shall mean "from and including" and the words "to" and "until" shall mean "to but excluding" and (ix) the phrase "Trustee on behalf of the Trust," or words of similar import, shall, to the extent required to effectuate the appointment of any Co-Trustee pursuant to the Titling Trust Agreement, be deemed to refer to the Trustee (or such Co-Trustee) on behalf of the Titling Trust. Any reference in this 2004-A Servicing Supplement to any agreement means such agreement as it may be amended, restated, supplemented (only to the extent such agreement as supplemented relates to the Notes), or otherwise modified from time to time. Any reference in this 2004-A Servicing Supplement to any law, statute, regulation, rule, or other legislative action shall mean such law, statute, regulation, rule, or other legislative action as amended, supplemented, or otherwise modified from time to time, and shall include any rule or regulation promulgated thereunder. Any reference in this 2004-A Servicing Supplement to a Person shall include the successor or assignee of such Person. ARTICLE EIGHT SERVICING OF THE 2004-A LEASES AND 2004-A VEHICLES Section 8.01 Identification of 2004-A Leases and 2004-A Vehicles; Securitization Value. The Servicer hereby identifies and allocates as 2004-A SUBI Assets the Leased Vehicles and the Leases relating to such Leased Vehicles more particularly described in the Schedule of 2004-A Leases and 2004-A Vehicles (respectively, the "2004-A Vehicles" and the "2004-A Leases"). The Servicer shall calculate the Securitization Value for each 2004-A Lease as of the Cutoff Date. Section 8.02 Reallocation and Repurchase of 2004-A Leases and 2004-A Vehicles; Purchase of Matured Vehicles. (a) (i) If the Servicer grants an extension with respect to any 2004-A Lease, the Servicer shall, on the related Deposit Date, (A) deposit or cause to be deposited into the 2004-A SUBI Collection Account an amount equal to the Repurchase Payment and (B) direct the Trustee 2 Servicing Supplement to either reallocate such 2004-A Lease and the related 2004-A Vehicle from the 2004-A SUBI to the UTI or cause such 2004-A Lease and 2004-A Vehicle to be conveyed to the Servicer; and (ii) if a Lessee changes the domicile of or title to a 2004-A Vehicle and such change would be likely to result in the Titling Trust doing business in a Restricted Jurisdiction, the Titling Trust, or the Trustee on behalf of the Titling Trust, shall, as an obligation of the Titling Trust and at the direction of the Servicer, on the related Deposit Date, (A) deposit or cause to be deposited into the 2004-A SUBI Collection Account, from amounts held by the Titling Trust, an amount equal to the Repurchase Payment and (B) either reallocate such 2004-A Lease and the related 2004-A Vehicle from the 2004-A SUBI to the UTI or cause such 2004-A Lease and 2004-A Vehicle to be conveyed to the Servicer. (b) The Servicer hereby makes to the other parties hereto and the parties to the SUBI Trust Agreement the representations and warranties contained in Section 2.06(a) of the Basic Servicing Agreement as to each 2004-A Lease and 2004-A Vehicle as of the Vehicle Representation Date. The Servicer also hereby represents and warrants that (i) each 2004-A Lease is an 2004-A Eligible Lease, (ii) it used no adverse selection procedures in selecting any of the 2004-A Leases or any of the 2004-A Vehicles for allocation to the 2004-A SUBI and (iii) it is not aware of any bias in the selection of the 2004-A Leases that would cause delinquencies or losses on the 2004-A Leases to be worse than any other Leases held by the Titling Trust; provided, however, that the Servicer can make no assurance as to the actual delinquencies or losses on the 2004-A Leases or the 2004-A Vehicles. Upon discovery by the Trustee, the Servicer, the Owner Trustee, the Indenture Trustee or the Transferor that any representation or warranty in this Section 8.02(b) was incorrect as of the Cutoff Date in a manner that materially adversely affects the interest of the Trust in the related 2004-A Lease or 2004-A Vehicle, the entity discovering such incorrectness (if other than the Servicer) shall give prompt written notice to the Servicer. On or before the Deposit Date related to the Collection Period in which the Servicer discovers such incorrectness (whether pursuant to such notice or otherwise), the Servicer shall cure in all material respects the circumstance or condition with respect to which the representation or warranty was incorrect as of the Cutoff Date. If the Servicer is unable or unwilling to cure such circumstance or condition by such Deposit Date, the Servicer shall (i) deposit (or cause to be deposited) into the 2004-A SUBI Collection Account an amount equal to the Repurchase Payment, and (ii) direct the Trustee to either reallocate such 2004-A Lease and the related 2004-A Vehicle from the 2004-A SUBI to the UTI or cause such 2004-A Lease and 2004-A Vehicle to be conveyed to the Servicer. (c) Immediately prior to the sale or disposition of a Matured Vehicle or a Defaulted Vehicle, the Servicer may reallocate such Matured Vehicle or Defaulted Vehicle from the 2004-A SUBI to the UTI for purposes of implementing NMAC's like kind exchange program. In connection with such reallocation, NILT Trust, as the UTI Beneficiary, will cause to be deposited into the 2004-A SUBI Collection Account the Reallocation Payments no later than two Business Days after such reallocation, or, if the Monthly Remittance Condition is met, the Servicer shall be permitted to retain the Reallocation Payments received during a Collection Period until such amounts are required to be disbursed on the next Payment Date. Upon receipt of the Reallocation Payments, the 2004-A SUBI shall have no claim against or interest in such Matured or Defaulted Vehicle. 3 Servicing Supplement (d) In connection with the purchase by the Servicer of a Matured Vehicle relating to a 2004-A Lease pursuant to Section 2.06(f) of the Basic Servicing Agreement, if (i) no Sales Proceeds Advance has been made, the purchase price of such Matured Vehicle will equal the Securitization Value of such 2004-A Lease as of the date of expiration and (ii) a Sales Proceeds Advance has been made, (a) the purchase price will equal the amount of the Sales Proceeds Advance, (b) no additional amounts need be remitted by the Servicer, and (c) the Servicer shall be deemed to have been reimbursed for such Sales Proceeds Advance. (e) If any 2004-A Lease and the related 2004-A Vehicle are reallocated to the UTI, until such time thereafter, if ever, as such Lease and Leased Vehicle are allocated to an Other SUBI, the Servicer shall indemnify, defend and hold harmless the Related Beneficiaries and the Trust from and against any and all loss or liability with respect to or resulting from such 2004-A Lease or 2004-A Vehicle (including the reasonable fees and expenses of counsel). Section 8.03 Collections and Payment Date Advance Reimbursement. (a) The Servicer shall, with respect to SUBI Collections and amounts in respect of the 2004-A SUBI Certificate, from time to time, determine the respective amounts and recipients and: (i) during each Collection Period, in addition to the deposits required by Section 2.07 of the Basic Servicing Agreement, deposit into the 2004-A SUBI Collection Account all Repurchase Payments pursuant to Section 8.02(a) and Section 8.02(b), and any Reallocation Payments pursuant to Section 8.02(c); (ii) on, or prior to each Deposit Date, deposit into the 2004-A SUBI Collection Account all Advances, any Residual Value Surplus from the sale of a Matured Vehicle for which the Servicer made a Sales Proceeds Advance and any Net Auction Proceeds from the disposition of a Matured Vehicle at auction for which the Servicer was reimbursed during the related Collection Period pursuant to Section 8.06; (iii) on or prior to each Payment Date, deposit into the 2004-A SUBI Collection Account all Cap Payments and/or Cap Termination Payments; and (iv) on each Payment Date, pursuant to the related Payment Date Certificate, allocate Available Funds on deposit in the 2004-A SUBI Collection Account with respect to the related Collection Period and instruct the Trustee (acting through the Trust Agent) to make, no later than 11:00 a.m., New York City time, the following deposits and distributions in the following amounts and order of priority: (A) to the Servicer the sum of outstanding (1) Sales Proceeds Advances (x) in respect of 2004-A Vehicles that were sold during the related Collection Period (other than a sale to the Servicer pursuant to Section 8.02(d)(ii)), and (y) that have been outstanding as of the end of that Collection Period for at least 90 days and (2) Monthly Payment Advances as to which the related Lessee has made all or a portion of the advanced Monthly Payment or that have been 4 Servicing Supplement outstanding as of the end of the Collection Period for at least 90 days (collectively, the "Payment Date Advance Reimbursement"); (B) to or on behalf of the Servicer, the Servicing Fee in respect of the related Collection Period, together with any unpaid Servicing Fees in respect of one or more prior Collection Periods; and (C) to the Note Distribution Account, the Reserve Account and Certificate Distribution Account, such distributions in the amounts and order of priority as set forth in Sections 8.04(a) and 10.01 of the Indenture. (b) Notwithstanding Section 2.07 of the Basic Servicing Agreement, the Servicer shall be permitted to retain the amounts provided for in such Section received during a Collection Period until such amounts are required to be disbursed on the next Payment Date, for so long as no Servicer Default has occurred and is continuing, and the following requirements are met (collectively, the "Monthly Remittance Condition"): (i) (A) NMAC (or its successors pursuant to Section 5.03(b) of the Basic Servicing Agreement) is the Servicer, and (B) NMAC's short-term unsecured debt obligations are rated at least "P-1" by Moody's and "A-1" by Standard & Poor's (in each case, so long as Moody's or Standard & Poor's is a Rating Agency); (ii) if (A) the Servicer obtains a Servicer Letter of Credit or other form of enhancement acceptable to the Rating Agencies under which demands for payment may be made to secure timely remittance of SUBI Collections to the 2004-A SUBI Collection Account on a monthly basis and (B) the Trustee, the Owner Trustee gives prior written notice to each Rating Agency of the obtaining of such Servicer Letter of Credit; (iii) the Servicer otherwise satisfies each Rating Agency's requirements; or (iv) if the Outstanding Amount is reduced to zero and 100% of the outstanding Trust Certificates are owned by the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) and their respective Affiliates. Pending deposit into the 2004-A SUBI Collection Account, SUBI Collections may be employed by the Servicer at its own risk and for its own benefit and shall not be segregated from its own funds. Section 8.04. Net Deposits. Notwithstanding anything to the contrary contained in this 2004-A Servicing Supplement, for so long as NMAC is the Servicer, the Servicer shall be permitted to deposit into the 2004-A SUBI Collection Account only the net amount distributable to the Trust, as holder of the 2004-A SUBI Certificate on the related Deposit Date. The Servicer shall, however, account to the Trust, the Trustee, the Trust Agent, the Indenture Trustee (or any successor to the duties of the Indenture Trustee), the Owner Trustee and the Holders of the Securities as if all of the deposits and distributions described herein were made individually. 5 Servicing Supplement Section 8.05. Servicing Compensation. (a) As compensation for the performance of its obligations under the Servicing Agreement, the Servicer shall be entitled to receive the Servicing Fee. (b) The Servicer shall also be entitled to additional servicing compensation with respect to the 2004-A SUBI Assets in the form of, among other things, Administrative Charges to the extent not required for the payment of insurance premiums, taxes, or similar charges allocable to the 2004-A Leases. Section 8.06. Advances. (a) If during a Collection Period a Lessee makes a Lessee Partial Monthly Payment, the Servicer shall make, by deposit into the 2004-A SUBI Collection Account on the related Deposit Date, a Monthly Payment Advance, unless such Advance is not required to be made pursuant to Section 8.06(c). (b) On each Deposit Date, the Servicer shall make, by deposit into the 2004-A SUBI Collection Account, Sales Proceeds Advances, unless such Advance is not required to be made pursuant to Section 8.06(c). After the Servicer has made a Sales Proceeds Advance with respect to a Matured Vehicle, the Trust shall have no claim against or interest in such Matured Vehicle or any Net Auction Proceeds resulting from the sale or other disposition thereof, except with respect to any related Residual Value Surplus. If the Servicer shall sell or otherwise dispose of a Matured Vehicle after having made a Sales Proceeds Advance, the Trust may retain all of such Sales Proceeds Advance, and the Servicer shall retain the related Net Auction Proceeds up to the Securitization Value of the related 2004-A Lease, and shall deposit the Residual Value Surplus, if any, into the 2004-A SUBI Collection Account. If the Net Auction Proceeds are less than the Securitization Value of the related 2004-A Lease, the Servicer may deduct the difference from SUBI Collections in respect of one or more future Collection Periods. If the Servicer has not sold a Matured Vehicle within 90 days after it has made a Sales Proceeds Advance, it shall be reimbursed for such Sales Proceeds Advance from the 2004-A SUBI Collection Account. Within six months of receiving such reimbursement, if the related 2004-A Vehicle has not been sold, the Servicer shall, if permitted by applicable law, cause such 2004-A Vehicle to be sold at auction and shall remit the proceeds associated with such auction sale to the 2004-A SUBI Collection Account. (c) Notwithstanding anything to the contrary in the Servicing Agreement, the Servicer shall be required to make an Advance only to the extent that it determines that such Advance will be recoverable from future payments on or in respect of the related 2004-A Lease or 2004-A Vehicle. Section 8.07. Third Party Claims. In addition to the requirements set forth in Section 2.14 of the Basic Servicing Agreement, the Servicer shall immediately notify the Transferor (in the event that NMAC is not acting as Servicer) and the Indenture Trustee (or any successor to the duties of the Indenture Trustee) upon learning of a claim or Lien of whatever kind of a third party 6 Servicing Supplement that would materially and adversely affect the interests of the Transferor or the Trust with respect to the 2004-A SUBI Assets. Section 8.08. Contingent and Excess Liability Insurance Policy. So long as any Securities are outstanding, the Servicer shall maintain and pay when due all premiums with respect to, and the Servicer may not terminate or cause the termination of, the Contingent and Excess Liability Insurance Policy unless (i) a replacement Insurance Policy is obtained that provides coverage against third party claims that may be raised against the Titling Trust, the Trustee on behalf of the Titling Trust or the Trust in an amount at least equal to $1 million combined single limit per occurrence and excess coverage of $15 million combined single limit each occurrence without limit on the number of occurrences in any policy period (which Insurance Policy may be a blanket Insurance Policy covering the Servicer and one or more of its Affiliates) and (ii) in the case of Rated Securities, each Rating Agency has received prior written notification from the Owner Trustee of such termination and any replacement insurance. The obligations of the Servicer pursuant to this Section shall survive any termination of the Servicer's other obligations under the Servicing Agreement until such time as claims can no longer be brought that would be covered by such Insurance Policies, whether as a result of the expiration of relevant statutes of limitations or otherwise. Section 8.09. Reporting by the Servicer; Delivery of Certain Documentation. (a) On or prior to the Closing Date, and periodically thereafter as required in order to update the contents thereof upon any changes in the matters certified therein, the Servicer shall furnish to the Trustee and the Related Beneficiary an Officer's Certificate listing the officers of the Servicer involved in, or responsible for, the servicing of the 2004-A Leases. (b) On each Calculation Date, the Servicer shall furnish to the Trustee and each Related Beneficiary a Settlement Statement for the related Collection Period. Section 8.10. Accountants' Reports. On or before the last day of the third month after the end of the fiscal year of the Servicer, beginning with June 30, 2005, the Servicer shall deliver or cause to be delivered to the Trust, the Indenture Trustee, each Rating Agency and the Owner Trustee the following reports: (a) a report that such firm has audited the consolidated financial statements of the Servicer in accordance with generally accepted auditing standards, that such firm is independent of the Servicer within the meaning of the Code of Professional Ethics of the American Institute of Certified Public Accountants ("AICPA"), and expressing such firm's opinion thereon; and (b) a report indicating that such firm has examined, in accordance with standards established by AICPA, management's assertion about the Servicer's compliance with the minimum servicing standards identified in the Mortgage Bankers Association of America's Uniform Single Attestation Program for Mortgage Bankers ("USAP") as such standards relate to automobile and light-duty truck loans serviced for others, and expressing such firm's opinion on such management assertion (the "Annual USAP Report") or any similar internal control audit report that is acceptable to each Rating Agency. 7 Servicing Supplement Section 8.11. Annual Officer's Certificates. (a) On or before the last day of the third month after the end of the fiscal year of the Servicer, beginning with June 30, 2005, the Servicer shall deliver an Officer's Certificate to the Trust, the Indenture Trustee, each Rating Agency, and the Owner Trustee in accordance with Section 3.01(c) of the Basic Servicing Agreement. (b) On or before the last day of the third month after the end of the fiscal year of the Servicer, beginning with June 30, 2005, for as long as NMAC continues to act as the Servicer, the Servicer shall deliver an Officer's Certificate to each Rating Agency, the Owner Trustee and the Indenture Trustee stating that, with respect to certain ERISA Plans maintained or sponsored by the Servicer or any of the Servicer's ERISA affiliates: (a) Plan assets will not be materially less than the present value of accrued benefits under each of the Plans as of the close of the most recent Plan year, as reported in the most recent plan financial statements; (b) neither the Servicer nor any of its ERISA affiliates anticipates that the actuarial value of the assets of any Plan it maintains would not be materially insufficient to cover the Gateway current liability (as defined by the Code and demonstrated on the most recent Form 5500 Schedule B that has been filed with the IRS), or is contemplating benefit improvements that would cause the Servicer or its ERISA affiliates to maintain a Plan with materially underfunded Gateway current liability; (c) if all of the Plans (other than a multiemployer Plan) were terminated (disregarding any Plans with surpluses), the unfunded liabilities with respect to the Plans would have no material adverse effect on Nissan Motor Co., Ltd. or Nissan North America, Inc.; and (d) no accumulated funding deficiency or waived funding deficiency as defined in section 412 of the Code or under any multiemployer Plan or collective bargaining agreement exists and there is no failure to make any required contribution under the minimum funding requirements of the Code, as of the close of the most recent Plan year. Section 8.12. Servicer Defaults; Termination of Servicer. (a) Each of the following acts or occurrences constitutes a "Servicer Default" under the Servicing Agreement with respect to the 2004-A SUBIs: (i) the Servicer fails to deliver, or cause to be delivered, any required payment to the Indenture Trustee for distribution to the Noteholders or to the Owner Trustee for distribution to the Trust Certificateholders, or fails to deliver to the Trustee (acting through the Trust Agent) for distribution to the Indenture Trustee and the Owner Trustee any required payment, which failure continues for five Business Days after discovery of such failure by an officer of the Servicer or receipt by the Servicer of notice thereof from the Indenture Trustee, the Owner Trustee, or holders of Notes or Trust Certificates evidencing not less than 25% of the aggregate unpaid principal balance of the Securities (which for this purpose includes Trust Certificates held by the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) and their respective Affiliates), voting together as a single class; (ii) the Servicer fails to deposit, apply, or distribute any amounts in the manner and at such time as required pursuant to the Servicing Agreement, including a 8 Servicing Supplement failure to deliver to the Trustee for distribution to or for the account of a Holder of the 2004-A SUBI Certificate, any amounts required to be so distributed pursuant to the Servicing Agreement, and such failure shall have continued for a period of ten Business Days after either discovery of such failure by an officer of the Servicer or written notice of such failure shall have been given to the Servicer by the Trustee or such Holder; (iii) the Servicer fails to duly observe or perform in any material respect any of its covenants or agreements in the Servicing Agreement not otherwise covered in this Section 8.12(a), which failure materially and adversely affects the rights of the Titling Trust or a Holder of the 2004-A SUBI Certificate or the holders of the Notes, or Trust Certificateholders, and which continues unremedied for 90 days after receipt by the Servicer of written notice thereof from the Trustee or the related Holder or such default becomes known to the Servicer; (iv) the Servicer fails to deliver to the Trustee any report required to be delivered to the Trustee pursuant to the Servicing Agreement, which failure continues for 30 Business Days after discovery of such failure by an officer of the Servicer or receipt by the Servicer of written notice thereof by the Trustee; (v) the Servicer fails to deliver to the Indenture Trustee any report required to be delivered to the Indenture Trustee or the Trust pursuant to the Basic Documents to which the Servicer is a party, which failure continues for 30 Business Days after discovery of such failure by an officer of the Servicer or receipt by the Servicer of written notice thereof by the Indenture Trustee; (vi) any representation, warranty, or statement of the Servicer made in the Servicing Agreement, any other Basic Document to which the Servicer is a party or by which it is bound or any certificate, report or other writing delivered pursuant to the Servicing Agreement that proves to be incorrect in any material respect when made, which failure materially and adversely affects the rights of a Holder of the 2004-A SUBI Certificate or the holders of the Notes, or the Trust Certificateholders, and, if such default is of a type that may be corrected, the failure continues unremedied for 30 days after receipt by the Servicer of written notice thereof from the Trustee or the related Holder, or such default becomes known to the Servicer; (vii) the Servicer fails to maintain, or cause to be maintained, or pay when due, or cause to be paid when due, the premium in respect of the Contingent and Excess Liability Insurance Policy, which failure continues for ten Business Days after discovery of such failure by an officer of the Servicer or receipt by the Servicer of written notice thereof by the Trustee or a Holder of the 2004-A SUBI Certificate; or (viii) (A) the existence of any Proceeding in, or the entry of a decree or order for relief by, a court or regulatory authority having jurisdiction over the Servicer in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, (B) the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, or other similar official with respect to the Servicer or of any substantial part of its property or 9 Servicing Supplement (C) the ordering of the winding up or liquidation of the affairs of the Servicer, and in each case, the continuance of any such Proceeding unstayed and in effect for a period of 90 consecutive days, or immediately upon entry of any decree or order; or (ix) the Servicer (A) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of all or a substantial part of its property, (B) is generally unable to pay its debts as they become due, (C) makes a general assignment for the benefit of creditors, (D) commences a voluntary case under the federal bankruptcy laws (E) is adjudicated to be bankrupt or insolvent, (F) files a petition seeking to take advantage of any other law providing for the relief of debtors, or (G) takes any corporate action for the purpose of effecting any of the foregoing; provided, however, that notwithstanding any other provision of the Servicing Agreement, (i) for the purpose of determining what constitutes a Servicer Default with respect to the 2004-A SUBI, the provisions contained in this Section 8.12(a) shall replace in their entirety the provisions contained in Section 4.01(a) of the Basic Servicing Agreement and (ii) any Servicer Default with respect to the 2004-A SUBI shall not constitute a Servicing Default with respect to any other Sub-Trust and any Servicing Default (as such term is defined in the Basic Servicing Agreement) with respect to any other Sub-Trust shall constitute a Servicer Default (as such term is defined in the Basic Servicing Agreement) only with respect to such Sub-Trust and not with respect to the 2004-A SUBI. Notwithstanding the foregoing, a delay in or failure of performance under (a) clauses (i) and (ii) for a period of ten Business Days, (b) clause (iii) for a period of 120 days, (c) clauses (iv) and (v) for a period of 60 days, or (d) clause (vi) for a period of 90 days shall not constitute a Servicer Default if caused by a Force Majeure Event. Upon the occurrence of any Force Majeure Event, the Servicer will not be relieved from using all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of the Servicing Agreement, and the Servicer must provide to the Trustee, the Indenture Trustee, the Owner Trustee and the Transferor prompt notice of such failure or delay by it, together with a description of its efforts to so perform its obligations. (b) Upon the occurrence of any Servicer Default, the Servicer, in addition to complying with the notice requirements of Section 4.01(b) of the Basic Servicing Agreement (except that references therein to Registered Pledgees shall mean each Registered Pledgee of the 2004-A SUBI Certificate), shall provide to the Indenture Trustee and the Owner Trustee prompt notice of any (i) Servicer Default or (ii) event or condition that, with the giving of notice or the passage of time, or both, would become a Servicer Default, accompanied in each case by a description of the nature of the default and the Servicer's efforts to remedy the same. (c) In addition to the provisions of Section 4.01(c) of the Basic Servicing Agreement, if a Servicer Default shall have occurred and is continuing with respect to the 2004-A SUBI, the Trustee, on behalf of the Titling Trust, shall, at the direction of the Required Related Holders, by notice given to the Servicer, each Rating Agency, the Related Beneficiary and the holders of the Rated Securities, terminate the rights and obligations of the Servicer under this 2004-A Servicing 10 Servicing Supplement Supplement in accordance with such Section. In the event that the Servicer is removed as servicer with respect to servicing the 2004-A SUBI Assets, subject to the consent of the Trustee, the Required Related Holders shall appoint a successor Servicer. The successor Servicer shall accept its appointment by a written assumption in a form acceptable to the Trustee. Such successor Servicer shall be approved by the Trustee, such approval not to be unreasonably withheld. Notwithstanding the provisions of Section 4.01(e) of the Basic Trust Agreement, with respect to any Servicer Default related to the 2004-A SUBI Assets, the Trustee, acting on the direction of the Required Related Holders, may waive any default of the Servicer in the performance of its obligations under the Servicing Agreement and its consequences with respect to the 2004-A SUBI and, upon any such waiver, such default shall cease to exist and any Servicer Default arising therefrom shall be deemed to have been remedied for every purpose of the Servicing Agreement. No such waiver shall extend to any subsequent or other default or impair any right consequent thereto. For purposes of this Section, so long as the Lien of the Indenture is in place, the Required Related Holders shall be deemed to be the Indenture Trustee (as Registered Pledgee of the 2004-A SUBI Certificates), acting at the direction of the Required Percentage of the Noteholders and thereafter, the Owner Trustee, acting at the direction of the Required Percentage of the Trust Certificateholders (which for this purpose shall include Trust Certificates owned by the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) and any of their respective Affiliates) until the Aggregate Certificate Balance has been reduced to zero. (d) If the Servicer is removed with respect to servicing the 2004-A SUBI Assets, the Servicer shall be entitled to reimbursement for any outstanding Advances made pursuant to this 2004-A Servicing Supplement, to the extent of the funds available therefor with respect to all Advances made by the Servicer. Section 8.13. Servicer Representations and Warranties. Effective as of the date hereof, the Servicer hereby reaffirms the representations and warranties set forth in Section 2.06(a) and Section 5.01 of the Basic Servicing Agreement, except that references to "this Agreement" shall be deemed to refer to the Servicing Agreement, as such term is defined herein. ARTICLE NINE MISCELLANEOUS Section 9.01. Termination of Servicing Supplement. This 2004-A Servicing Supplement shall terminate upon the earlier to occur of (i) the termination of the 2004-A SUBI or (ii) the resignation or removal of the Servicer with respect to the 2004-A SUBI in accordance with the terms of the Servicing Agreement. Any such termination hereunder shall effect a termination only with respect to the 2004-A SUBI Assets and not as to Trust Assets allocated to any other Sub-Trust, and shall not effect a termination of the Basic Servicing Agreement or any other supplement to the Basic Servicing Agreement. Section 9.02. Governing Law. This 2004-A Servicing Supplement shall be governed by and construed in accordance with the internal laws of the State of California, without regard to any otherwise applicable principles of conflict of laws. 11 Servicing Supplement Section 9.03. Amendment. Notwithstanding the foregoing, this 2004-A Servicing Supplement (and, accordingly, the Basic Servicing Agreement, insofar as it relates to the 2004-A SUBI) may be amended by the parties hereto: (a) without the consent of the Holders, to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, add any other provision with respect to matters or questions arising hereunder that is not inconsistent with the Basic Servicing Agreement or add or amend any provision herein to assure that none of the Titling Trust, the Trust, or the Transferor will be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes; provided, that any such action will not, in the good faith judgment of the parties hereto, materially and adversely affect the interest of any Holder; and (b) from time to time (including to change the remittance schedule for depositing SUBI Collections and other amounts into the 2004-A SUBI Collection Account, or to change the manner in which the Reserve Account is funded), provided that (A) each Rating Agency has received prior written notification from the Owner Trustee of such amendment and (B) an Opinion of Counsel is delivered to the Trustee to the effect that after such amendment, for federal income tax purposes, the Titling Trust will not be treated as an association (or a publicly traded partnership) taxable as a corporation and Notes will properly be characterized as indebtedness that is secured by the assets of the Trust; to the extent that any such amendment materially affects the UTI or any Other SUBI, the 2004-A SUBI Certificate or the 2004-A SUBI Assets, such amendment shall require the consent of the holders affected thereby. In addition, to the extent that (A) such amendment shall increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections or payments in respect of a 2004-A SUBI or the 2004-A SUBI Certificate or distributions (or the interest thereon) required to be made on any Notes, and the Trust Certificates or the Interest Rate of any Note or (B) reduce the percentage of the aggregate principal amount of Notes, and Trust Certificates required to consent to any such amendment, any such amendment shall require the consent of all the Holders and holders of 100% of all outstanding Notes, and Trust Certificates (which for this purpose shall include Trust Certificates held by the Trust, the Transferor, the Servicer and their respective Affiliates), and an Opinion of Counsel as set forth in clause (B) above. Section 9.04. Relationship of this 2004-A Servicing Supplement to Other Trust Documents. Unless the context otherwise requires, this 2004-A Servicing Supplement and the other Trust Documents shall be interpreted so as to give full effect to all provisions hereof and thereof. In the event of any actual conflict between the provisions of this 2004-A Servicing Supplement and (i) the Titling Trust Agreement, with respect to the servicing of any Trust Assets, the provisions of this 2004-A Servicing Supplement shall prevail and (ii) the Basic Servicing Agreement, the provisions of this 2004-A Servicing Supplement shall control. Section 9.05. Binding Effect. The provisions of this 2004-A Servicing Supplement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns, and all such provisions shall inure to the benefit of the Owner Trustee on behalf of the Trust. 12 Servicing Supplement Section 9.06. Table of Contents and Headings. The Table of Contents and Article and Section headings herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Section 9.07. Counterparts. This 2004-A Servicing Supplement may be executed in any number of counterparts, each of which so executed and delivered shall be deemed to be an original, but all of which counterparts shall together constitute but one and the same instrument. Section 9.08. Further Assurances. Each party will do such acts, and execute and deliver to any other party such additional documents or instruments, as may be reasonably requested in order to effect the purposes of this 2004-A Servicing Supplement and to better assure and confirm unto the requesting party its rights, powers, and remedies hereunder. Section 9.09. Third-Party Beneficiaries. The Trust, each Holder of the 2004-A SUBI, each Related Beneficiary, and each Registered Pledgee shall be third-party beneficiaries of the Servicing Agreement. Except as otherwise provided in the Servicing Agreement, no other Person shall have any rights hereunder. For purposes of the Servicing Agreement, this Section replaces Section 6.12 of the Basic Servicing Agreement in its entirety. Section 9.10. No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising, on the part of any party hereto, any right, remedy, power, or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. The rights, remedies, powers, and privileges herein provided are cumulative and not exhaustive of any rights, remedies, powers, and privileges provided at law, in equity or otherwise. Section 9.11. No Petition. Each of the parties hereto, by entering into this 2004-A Servicing Supplement, in addition to provisions of Section 6.14 of the Basic Servicing Agreement, hereby covenants and agrees that it will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under federal or state bankruptcy or similar laws, for a period of one year and a day after payment in full of the Securities, against any other party hereto, the Transferor or the Trust. This Section shall survive the complete or partial termination of this 2004-A Servicing Supplement and the complete or partial resignation or removal of the Servicer under the SUBI Trust Agreement, the Basic Servicing Agreement or this 2004-A Servicing Supplement. 13 Servicing Supplement IN WITNESS WHEREOF, the parties hereto have caused this 2004-A Servicing Supplement to be duly executed by their respective officers duly authorized as of the day and year first above written. NISSAN-INFINITI LT, as Titling Trust By: NILT, INC., as Trustee By: /s/ Patricia M. Child ------------------------------- Name: Patricia M. Child Title: President NILT TRUST, as UTI Beneficiary By: U.S. BANK NATIONAL ASSOCIATION, as Managing Trustee By: /s/ Patricia M. Child ------------------------------- Name: Patricia M. Child Title: Vice President NISSAN MOTOR ACCEPTANCE CORPORATION, as Servicer By: /s/ Steven R. Lambert ----------------------------------- Name: Steven R. Lambert Title: President S-1 Servicing Supplement EXHIBIT A SCHEDULE OF 2004-A LEASES AND 2004-A VEHICLES [Omitted. Copies on file with the Servicer, the Trustee and the Owner Trustee] A-1 Servicing Supplement EXHIBIT B FORM OF SETTLEMENT STATEMENT [Omitted.] B-1 Servicing Supplement EX-10.4 6 a02810exv10w4.txt EXHIBIT 10.4 EXHIBIT 10.4 - -------------------------------------------------------------------------------- NISSAN AUTO LEASING LLC II, as Transferor, and WILMINGTON TRUST COMPANY, as Owner Trustee ------------------------------ AMENDED AND RESTATED TRUST AGREEMENT Dated as of October 28, 2004 ------------------------------ - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE ---- ARTICLE ONE DEFINITIONS...................................................................... 1 SECTION 1.01 Definitions................................................................. 1 SECTION 1.02 Interpretive Provisions..................................................... 1 ARTICLE TWO ORGANIZATION..................................................................... 2 SECTION 2.01 Name and Status............................................................. 2 SECTION 2.02 Office...................................................................... 2 SECTION 2.03 Purposes and Powers......................................................... 2 SECTION 2.04 Appointment of Owner Trustee................................................ 3 SECTION 2.05 Liability of the Trust Certificateholders................................... 3 SECTION 2.06 Initial Capital Contribution of Owner Trust Estate.......................... 3 SECTION 2.07 Declaration of Trust........................................................ 3 SECTION 2.08 Title to Trust Property..................................................... 4 SECTION 2.09 Situs of Trust.............................................................. 4 SECTION 2.10 Representations and Warranties of the Transferor............................ 4 SECTION 2.11 Power of Attorney........................................................... 5 ARTICLE THREE TRUST CERTIFICATES AND TRANSFER OF INTERESTS..................................... 6 SECTION 3.01 Initial Ownership........................................................... 6 SECTION 3.02 The Trust Certificates...................................................... 6 SECTION 3.03 Authentication and Delivery of Trust Certificates........................... 6 SECTION 3.04 Registration of Transfer and Exchange....................................... 7 SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Trust Certificates..................... 10 SECTION 3.06 Persons Deemed Trust Certificateholders..................................... 11 SECTION 3.07 Access to List of Trust Certificateholders' Names and Addresses............. 11 SECTION 3.08 Maintenance of Office or Agency............................................. 11 SECTION 3.09 Appointment of Paying Agent................................................. 11 SECTION 3.10 Ownership by the Transferor of Trust Certificates........................... 12 SECTION 3.11 Trust Certificates Held by Trust, Transferor or Their Affiliates............ 12 ARTICLE FOUR ACTIONS BY OWNER TRUSTEE OR TRUST CERTIFICATEHOLDERS............................. 12
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PAGE ---- SECTION 4.01 Prior Notice to Trust Certificateholders With Respect to Certain Matters..................................................................... 12 SECTION 4.02 Action by Trust Certificateholders With Respect to Certain Matters.......... 13 SECTION 4.03 Action by Owner Trustee With Respect to Bankruptcy.......................... 13 SECTION 4.04 Restrictions on Trust Certificateholders' Power............................. 13 SECTION 4.05 Majority Control............................................................ 14 ARTICLE FIVE APPLICATION OF TRUST FUNDS; CERTAIN DUTIES....................................... 14 SECTION 5.01 Establishment of Certificate Distribution Account and Reserve Account..................................................................... 14 SECTION 5.02 Application of Trust Funds.................................................. 15 SECTION 5.03 Method of Payment........................................................... 17 SECTION 5.04 Accounting and Reports...................................................... 17 ARTICLE SIX AUTHORITY AND DUTIES OF OWNER TRUSTEE............................................ 18 SECTION 6.01 General Authority........................................................... 18 SECTION 6.02 General Duties.............................................................. 18 SECTION 6.03 Action Upon Instruction..................................................... 19 SECTION 6.04 No Duties Except as Specified............................................... 20 SECTION 6.05 No Action Unless Specifically Authorized.................................... 20 SECTION 6.06 Restrictions................................................................ 20 ARTICLE SEVEN CONCERNING THE OWNER TRUSTEE..................................................... 21 SECTION 7.01 Acceptance of Trusts and Duties............................................. 21 SECTION 7.02 Furnishing of Documents..................................................... 22 SECTION 7.03 Representations and Warranties.............................................. 22 SECTION 7.04 Reliance; Advice of Counsel................................................. 23 SECTION 7.05 Not Acting in Individual Capacity........................................... 24 SECTION 7.06 Owner Trustee Not Liable for Trust Certificates............................. 24 SECTION 7.07 Owner Trustee May Own Trust Certificates and Notes.......................... 24 ARTICLE EIGHT COMPENSATION OF OWNER TRUSTEE.................................................... 24 SECTION 8.01 Owner Trustee's Compensation and Indemnification............................ 24 ARTICLE NINE TERMINATION OF TRUST AGREEMENT................................................... 25
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PAGE ---- SECTION 9.01 Termination of Trust Agreement.............................................. 25 SECTION 9.02 [Reserved].................................................................. 26 SECTION 9.03 Purchase of the 2004-A SUBI Certificate; Repayment of the Trust Certificates............................................................... 26 ARTICLE TEN SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES........................... 28 SECTION 10.01 Eligibility Requirements for Owner Trustee.................................. 28 SECTION 10.02 Resignation or Removal of Owner Trustee..................................... 28 SECTION 10.03 Successor Owner Trustee..................................................... 29 SECTION 10.04 Merger or Consolidation of Owner Trustee.................................... 29 SECTION 10.05 Appointment of Co-Trustee or Separate Trustee............................... 30 ARTICLE ELEVEN TAX MATTERS...................................................................... 31 SECTION 11.01 Tax and Accounting Characterization......................................... 31 SECTION 11.02 Signature on Returns; Tax Matters Partner................................... 31 SECTION 11.03 Tax Reporting............................................................... 31 ARTICLE TWELVE MISCELLANEOUS.................................................................... 32 SECTION 12.01 Supplements and Amendments.................................................. 32 SECTION 12.02 No Legal Title to Owner Trust Estate........................................ 33 SECTION 12.03 Limitations on Rights of Others............................................. 33 SECTION 12.04 Notices..................................................................... 34 SECTION 12.05 Severability................................................................ 34 SECTION 12.06 Counterparts................................................................ 34 SECTION 12.07 Successors and Assigns...................................................... 34 SECTION 12.08 No Petition................................................................. 34 SECTION 12.09 No Recourse................................................................. 35 SECTION 12.10 Headings.................................................................... 35 SECTION 12.11 GOVERNING LAW............................................................... 35 SECTION 12.12 Trust Certificates Nonassessable and Fully Paid............................. 35 SECTION 12.13 Furnishing of Basic Documents............................................... 35
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PAGE ---- EXHIBITS Exhibit A - Form of Trust Certificate............................................................ A-1 Exhibit B - Form of Rule 144A Certificate........................................................ B-1 Exhibit C - Form of Form of Investment Letter.................................................... C-1
-iv- (NALT 2004-A Amended and Restated Trust Agreement) AMENDED AND RESTATED TRUST AGREEMENT This Amended and Restated Trust Agreement (this "Agreement"), dated as of October 28, 2004, is between Nissan Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), as transferor (the "Transferor"), and Wilmington Trust Company, a Delaware banking corporation ("Wilmington Trust"), as trustee (the "Owner Trustee"). WHEREAS, the parties hereto entered into a trust agreement dated as of July 28, 2004 (the "Initial Trust Agreement") pursuant to which the Nissan Auto Lease Trust 2004-A was created; and WHEREAS, the parties hereto are entering into this Agreement pursuant to which, among other things, the Initial Trust Agreement will be amended and restated, and $210,098,819.60 aggregate principal amount of Asset Backed Certificates and $265,000,000 aggregate principal amount of 2.10563% Asset Backed Class A-1 Notes, $260,000,000 aggregate principal amount 2.55000% Asset Backed Class A-2 Notes, $357,000,000 aggregate principal amount 2.90000% Asset Backed Class A-3 Notes, $488,000,000 aggregate principal amount Floating Rate Asset Backed Class A-4a Notes and $100,000,000 aggregate principal amount of 3.18000% Asset Backed Class A-4b Notes will be issued. 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 ONE DEFINITIONS SECTION 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 October 28, 2004, by and among Nissan Auto Lease Trust 2004-A, as trust (the "Trust"), NILT Trust, a Delaware statutory trust, as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary," respectively), Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), in its individual capacity, as servicer and as Administrative Agent (in such capacity, the "Servicer" and the "Administrative Agent," respectively), NALL II, NILT, Inc., a Delaware corporation, as trustee to the Titling Trust (the "Titling Trustee"), Wilmington Trust, as Owner Trustee and Delaware trustee (in such capacity, the "Delaware Trustee") and U.S. Bank National Association, a national banking association ("U.S. Bank"), as trust agent and indenture trustee (in such capacity, the "Trust Agent" and the "Indenture Trustee," respectively). SECTION 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 this Agreement include all Exhibits hereto, (iii) 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, (iv) references to an Article or Section such as "Article Twelve" or "Section 12.01" shall 1 (NALT 2004-A Amended and Restated Trust Agreement) refer to the applicable Article or Section of this Agreement, (v) the term "include" and all variations thereof shall mean "include without limitation," (vi) the term "or" shall include "and/or", and (vii) the term "proceeds" shall have the meaning ascribed to such term in the UCC. Any reference in this Agreement to any agreement means such agreement as it may be amended, restated, supplemented (only to the extent such agreement as supplemented relates to the Notes), or otherwise modified from time to time. Any reference in this Agreement to any law, statute, regulation, rule, or other legislative action shall mean such law, statute, regulation, rule, or other legislative action as amended, supplemented, or otherwise modified from time to time, and shall include any rule or regulation promulgated thereunder. Any reference in this Agreement to a Person shall include the successor or assignee of such Person. ARTICLE TWO ORGANIZATION SECTION 2.01 Name and Status. The trust created hereby shall be known as "Nissan Auto Lease Trust 2004-A," in which name the Trust may engage in activities as permitted by the Basic Documents, make and execute contracts and other instruments and sue and be sued, to the extent provided herein. It is the intention of the parties hereto that the Trust shall be a statutory trust under the Statutory Trust Statute, and that this Agreement shall constitute the governing instrument of that statutory trust. SECTION 2.02 Office. The chief executive office and principal place of business of the Trust shall be in care of the Owner Trustee, initially at the Owner Corporate Trust Office and thereafter at such other address as the Owner Trustee may designate by written notice to the Trust Certificateholders and the Transferor. SECTION 2.03 Purposes and Powers. (a) The purposes of the Trust are: (i) at the direction of the Trust Certificateholders, to take assignments and conveyances of certain assets from time to time, to hold such assets in trust and to collect and disburse the periodic income therefrom for the benefit of the Trust Certificateholders, (ii) to engage in any of the other activities described or authorized in this Agreement, any supplement or any amendment hereto or thereto and (iii) 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 be employed for any purpose except as duly authorized in accordance with the provisions of this Agreement. (b) The initial sole purpose of the Trust is to conserve the Owner Trust Estate and collect and disburse the periodic income therefrom for the use and benefit of the Trust Certificateholders, and in furtherance of such purpose to engage in the following ministerial activities: (i) to issue the Notes pursuant to the Indenture and the Trust Certificates pursuant to this Agreement; 2 NALT 2004-A Amended and Restated Trust Agreement (ii) to acquire the 2004-A SUBI Certificate from the Transferor and the other property of the Owner Trust Estate in exchange for (A) the issuance of the Notes to the Transferor, (B) certain capital contributions from the Transferor and (C) the issuance of the Trust Certificate to the Transferor; (iii) to pay interest on and principal of the Notes; (iv) to assign, grant, transfer, pledge mortgage and convey the Owner Trust Estate pursuant to the Indenture to the Indenture Trustee as security for the Notes and to hold, manage and distribute to the Trust Certificateholders pursuant to the terms of this Agreement any portion of the Owner Trust Estate released from the Lien of, and remitted to the Trust pursuant to, the Indenture; (v) to enter into and perform its obligations under the Basic Documents to which the Trust is a party; (vi) to engage in other transactions, including entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or that are incidental thereto or connected therewith; and (vii) subject to compliance with the Basic Documents, to engage in such other activities as may be required in connection with conservation of the Owner Trust Estate and the making of distributions to the Trust Certificateholders and the Noteholders. (c) The Trust shall not engage in any activity other than in connection with the foregoing or other than as required or authorized by the terms of this Agreement or the other Basic Documents. SECTION 2.04 Appointment of Owner Trustee. The Transferor hereby appoints the Owner Trustee as trustee of the Trust effective as of the date hereof, to have all the rights, powers and duties set forth herein, and the Owner Trustee hereby accepts such appointment. SECTION 2.05 Liability of the Trust Certificateholders. No Trust Certificateholder shall have any personal liability for any liability or obligation of the Trust, solely by reason of it being a Trust Certificateholder. SECTION 2.06 Initial Capital Contribution of Owner Trust Estate. The Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner Trustee, as of the date hereof, the sum of $1.00. The Owner Trustee hereby acknowledges receipt in trust from the Transferor, as of the date hereof, of the foregoing contribution, which shall constitute the initial Owner Trust Estate and shall be deposited in the Certificate Distribution Account. The Transferor shall pay organizational expenses of the Trust as they may arise or shall, upon the request of the Owner Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the Owner Trustee. SECTION 2.07 Declaration of Trust. The Owner Trustee hereby declares that it will hold the Owner Trust Estate in trust upon and subject to the conditions set forth herein for 3 NALT 2004-A Amended and Restated Trust Agreement the sole purpose of conserving the Owner Trust Estate and collecting and disbursing the periodic income therefrom for the use and benefit of the Trust Certificateholders, who are intended to be "beneficial owners" within the meaning of the Statutory Trust Statute, subject to the Lien of the Indenture Trustee and the obligations of the Trust under the Basic Documents. It is the intention of the parties hereto that the Trust constitutes a statutory trust under the Statutory Trust Statute and that this Agreement constitutes the governing instrument of such statutory trust. Consistent with Section 11.01, it is the intention of the parties hereto that, solely for income and franchise tax purposes, the Trust shall be treated as a division or branch of the Trust Certificateholder. Effective as of the date hereof, the Owner Trustee shall have all rights, powers and duties set forth herein and under Delaware law for the purpose and to the extent necessary to accomplish the purpose of the Trust as set forth in Sections 2.03(a) and 2.03(b). At the direction of the Transferor, the Owner Trustee caused to be filed the Certificate of Trust pursuant to the Statutory Trust Statute, and the Owner Trustee shall file or cause to be filed such amendments thereto as shall be necessary or appropriate to satisfy the purposes of this Agreement and as shall be consistent with the provisions hereof. SECTION 2.08 Title to Trust Property. Legal title to the Owner Trust Estate 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 Owner Trust Estate to be vested in a trustee or trustees, in which case title shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a separate trustee, as the case may be. SECTION 2.09 Situs of Trust. The Trust shall be located and administered in the state of Delaware. All bank accounts maintained by the Owner Trustee on behalf of the Trust shall be located in the states of California, Delaware or New York. The Trust shall not have any employees in any state other than Delaware; provided, however, that nothing herein shall restrict or prohibit the Owner Trustee from having employees within or without the state of Delaware. Payments shall be received by the Trust only in the states of Delaware, California or New York, and payments will be made by the Trust only from the states of Delaware, California or New York. The only principal office of the Trust will be at the Corporate Trust Office. SECTION 2.10 Representations and Warranties of the Transferor. The Transferor hereby represents and warrants to the Owner Trustee as of the Closing Date that: (a) Organization and Good Standing. The Transferor has been duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with the power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted. (b) Due Qualification. The Transferor has been duly qualified to do business as a limited liability company in good standing, and has obtained all necessary licenses and approvals in all jurisdictions in which the conduct of its business requires such qualifications, except when the failure to have any such license, approval or qualification would not have a material adverse effect on the condition, financial or otherwise, of the Transferor or would not have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement. 4 NALT 2004-A Amended and Restated Trust Agreement (c) Power and Authority. The Transferor has (i) the power and authority to execute and deliver this Agreement and to carry out its terms; (ii) good title to and is the sole legal and beneficial owner of the 2004-A SUBI Certificate, free and clear of Liens and claims; (iii) full power and authority to transfer the 2004-A SUBI Certificate and deposit the same with the Trust; (iv) duly authorized such transfer and deposit to the Trust by all necessary action; and (v) duly authorized the execution, delivery and performance of this Agreement by all necessary action. (d) Binding Obligation. This Agreement is a legal, valid and binding obligation of the Transferor, enforceable in accordance with its terms, except as such enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws affecting creditors' rights generally and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or law. (e) No Violation. The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms of this Agreement do not conflict with or breach any of the terms or provisions of, or constitute (with or without notice or lapse of time) a default under, the certificate of formation or limited liability agreement of the Transferor, any material indenture, agreement or other instrument to which the Transferor is a party or by which it shall be bound; nor result in the creation or imposition of any material Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than the Basic Documents); nor violate any law or, to the best of the Transferor's knowledge, any order, rule or regulation applicable to the Transferor of any court or of any federal or State regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Transferor or its properties, which breach, default, conflict, Lien or violation in any case would have a material adverse effect on the ability of the Transferor to perform its obligations under this Agreement. (f) No Proceedings. There are no proceedings or investigations pending, or to the Transferor's knowledge, threatened, before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Transferor or its properties: (i) asserting the invalidity of this Agreement or any of the other Basic Documents to which it is party; (ii) seeking to prevent the issuance of the Notes or the Trust Certificates or the consummation of any of the transactions contemplated by this Agreement or any of the other Basic Documents to which it is a party; (iii) seeking any determination or ruling that would be likely materially and adversely to affect the performance by the Transferor of its obligations under, or the validity or enforceability of, this Agreement or any of the other Basic Documents to which it is a party; or (iv) relating to the Transferor and that would be likely materially and adversely to affect the federal income tax or any state income tax attributes of the Trust, the Notes or the Trust Certificates. (g) Independent Manager. Notwithstanding anything to the contrary in the Transferor's Formation Documents, the Transferor shall ensure that at least one manager of the Transferor shall be an Independent Manager. SECTION 2.11 Power of Attorney. Pursuant to the Trust Administration Agreement, the Owner Trustee has authorized the Administrative Agent to perform certain of its 5 NALT 2004-A Amended and Restated Trust Agreement administrative duties hereunder, including duties with respect to the management of the Owner Trust Estate, and in connection therewith hereby grants the Administrative Agent its revocable power of attorney. Each Trust Certificateholder by such Holder's acceptance of any Trust Certificate or beneficial interest therein, as the case may be, shall be deemed to have granted power of attorney to the Administrative Agent for purposes of actions taken or to be taken with respect to the Trust Certificates. ARTICLE THREE TRUST CERTIFICATES AND TRANSFER OF INTERESTS SECTION 3.01 Initial Ownership. Upon the formation of the Trust by the contribution by the Transferor pursuant to Section 2.06 and until the issuance of the Trust Certificates, the Transferor shall be sole beneficiary of the Trust. SECTION 3.02 The Trust Certificates. (a) The Trust Certificates shall be substantially in the form set forth in Exhibit A, in minimum denominations of $250,000. Except for the issuance of the Trust Certificate to the Transferor, no Trust Certificate may be sold, pledged, exchanged or otherwise transferred to any Person except in accordance with Sections 3.04 and 3.10 and any attempted sale, pledge, exchange or transfer (each referred to hereinafter as a "transfer") in violation of such Sections shall be null and void. The Trust Certificate shall be issued in the name of the Transferor. Upon delivery to the Transferor, the Owner Trustee and the Certificate Registrar of a letter in the form of Exhibit C, any Trust Certificate shall be reissued in the name and in the denomination set forth in such letter. (b) The Trust Certificates may be printed, lithographed, typewritten, mimeographed or otherwise produced, and may be executed on behalf of the Trust by manual or facsimile signature of an Authenticating Agent. Trust Certificates bearing the manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be validly issued and entitled to the benefits of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Trust Certificates or did not hold such offices at the date of authentication and delivery of such Trust Certificates. If registration of a transfer of a Trust Certificate is permitted pursuant to Section 3.04 and Section 3.10, the transferee of such Trust Certificate shall become a Trust Certificateholder and shall be entitled to the rights and subject to the obligations of a Trust Certificateholder hereunder, upon such transferee's acceptance of a Trust Certificate duly registered in such transferee's name pursuant to Section 3.04. SECTION 3.03 Authentication and Delivery of Trust Certificates. Concurrently with the transfer of the 2004-A SUBI Certificate to the Trust, the Owner Trustee shall cause to be executed on behalf of the Trust to the Transferor the Trust Certificate in an aggregate 6 NALT 2004-A Amended and Restated Trust Agreement principal amount equal to the Initial Trust Certificate Balance, authenticated and delivered to or upon the written order of the Transferor, in authorized denominations, evidencing the entire ownership of the Trust. No Trust Certificate shall entitle its holder to any benefit under this Agreement, or shall be valid for any purpose, unless there shall appear on such Trust Certificate a certificate of authentication, substantially in the form set forth in Exhibit A, executed by the Owner Trustee or its Authenticating Agent, by manual or facsimile signature; and such authentication shall constitute conclusive evidence, and the only evidence, that such Trust Certificate shall have been duly authenticated and delivered hereunder. All Trust Certificates shall be dated the date of their authentication. Upon issuance, execution and delivery pursuant to the terms hereof, the Trust Certificates shall be entitled to the benefits of this Agreement. The Wilmington Trust Company shall be the initial Authenticating Agent of the Owner Trustee hereunder, and all references herein to authentication by the Owner Trustee shall be deemed to include the Authenticating Agent. SECTION 3.04 Registration of Transfer and Exchange. (a) The Certificate Registrar shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.08, a register (the "Certificate Register"), in which, subject to such reasonable regulations as it may prescribe, the Certificate Registrar shall provide for the registration of Trust Certificates and, if and to the extent transfers are permitted pursuant to Section 3.04(b) and Section 3.10, the registration of transfers of Trust Certificates. No transfer of a Trust Certificate shall be recognized except upon registration of such transfer. Wilmington Trust Company is hereby appointed as the initial Certificate Registrar. If the Certificate Registrar shall for any reason become unable to act as Certificate Registrar, the Certificate Registrar shall give prompt written notice to such effect to the Transferor, the Owner Trustee and the Servicer. The Owner Trustee shall promptly appoint a successor, which shall be another trust company or bank, and shall agree to act in accordance with the provisions of this Agreement applicable to it as successor Certificate Registrar under this Agreement. (b) Each Trust Certificate shall bear a legend regarding transfers to the effect of the legend on the form of Trust Certificate attached as Exhibit A hereto, unless determined otherwise by the Servicer (as certified to the Certificate Registrar in an Officer's Certificate) consistent with applicable law. If and to the extent transfers are permitted pursuant to Section 3.10, as a condition to the registration of any transfer of a Trust Certificate, the prospective transferee shall be required to represent in writing to the Owner Trustee, the Transferor and the Certificate Registrar the following: (i) It has neither acquired nor will it transfer any Trust Certificate it purchases (or any interest therein) or cause any such Trust Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. 7 NALT 2004-A Amended and Restated Trust Agreement (ii) It either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such transferee have allowed or caused, or will allow or cause, 50% or more (or such other percentage as the Transferor may establish prior to the time of such proposed transfer) of the value of such interests to be attributable to such transferee's ownership of Trust Certificates. (iii) It understands that no subsequent transfer of the Trust Certificates is permitted unless (A) such transfer is of a Trust Certificate with a denomination of at least $250,000, (B) it causes its proposed transferee to provide to the Trust and the Certificate Registrar a letter substantially in the form of Exhibit C hereto, or such other written statement as the Transferor shall prescribe and (C) the Transferor consents in writing to the proposed transfer, which consent shall be granted unless the Transferor determines that such transfer would create a risk that the Trust or the Titling Trust would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that any attempted transfer that would either cause (1) the number of registered holders of Trust Certificates to exceed 95 or (2) the number of holders of direct or indirect interests in the Titling Trust to exceed 50, shall be a void transfer. (iv) It understands that the Opinion of Counsel to the Trust that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs (i), (ii) and (iii) above. (v) It is not a Benefit Plan or arrangement subject to Section 406 of ERISA, will not acquire or hold the Trust Certificates being transferred on behalf of or with "plan assets" of a Benefit Plan, and is not a Person acting on behalf of such a Benefit Plan or arrangement nor using the assets of such a Benefit Plan or arrangement to effect such transfer; (vi) It is a Person who is either (A)(1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (A)(1) or (2) whose ownership of the Trust Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and its ownership of any interest in a Trust Certificate will not result in any withholding obligation with respect to any payments with respect to the Trust Certificates by any Person (other than withholding, if any, under Section 1446 of the Code) or (B) an estate or trust the income of which is includible in gross income for federal income tax purposes, regardless of source or a trust if a court within the United States is able to exercise primary supervision of the administration of the trust and one or more "U.S. persons" (as such term is defined in the Code) have the authority to control all substantial decisions of the Trust. It agrees that it will provide a certification of non-foreign status signed under penalty of perjury and, alternatively, that if it is a Person described in clause (A)(3) above, it will furnish to the Transferor and the Owner Trustee a properly executed IRS Form W-8ECI and a new IRS Form W-8ECI upon the expiration or obsolescence of 8 NALT 2004-A Amended and Restated Trust Agreement any previously delivered form (and such other certifications, representations or Opinions of Counsel as may be requested by the Transferor and the Owner Trustee). (vii) It understands that any purported transfer of any Trust Certificate (or any interest therein) in contravention of any of the restrictions and conditions in this Section shall be void, and the purported transferee in such transfer shall not be recognized by the Trust or any other Person as a Trust Certificateholder for any purpose. (c) By acceptance of any Trust Certificate, the related Trust Certificateholder specifically agrees with and represents to the Transferor, the Trust and Certificate Registrar that no transfer of such Trust Certificate shall be made unless the registration requirements of the Securities Act and any applicable state securities laws are complied with, or such transfer is exempt from the registration requirements under the Securities Act because the transfer satisfies one of the following: (i) Such transfer is in compliance with Rule 144A, to a transferee who the transferor reasonably believes is a Qualified Institutional Buyer that is purchasing for its own account or for the account of a Qualified Institutional Buyer and to whom notice is given that such transfer is being made in reliance upon Rule 144A and (A) the transferor thereof executes and delivers to the Transferor and the Certificate Registrar, a Rule 144A certificate substantially in the form attached as Exhibit B and (B) the transferee executes and delivers to the Transferor and the Certificate Registrar an investment letter substantially in the form attached as Exhibit C. (ii) After the appropriate holding period, such transfer is pursuant to an exemption from registration under the Securities Act provided by Rule 144 under the Securities Act and the transferee, if requested by the Transferor or the Certificate Registrar, delivers an Opinion of Counsel in form and substance satisfactory to the Transferor. (d) The Transferor shall make the Rule 144A Information available to the prospective transferor and transferee of a Trust Certificate. The Rule 144A Information shall include any or all of the following items requested by the prospective transferee: (i) the Prospectus, as amended or supplemented to the date of such transfer; (ii) each Payment Date Certificate delivered to Trust Certificateholders on each Payment Date preceding such request; and (iii) such other information as is reasonably available to the Transferor in order to comply with requests for information pursuant to Rule 144A. None of the Transferor, the Certificate Registrar or the Owner Trustee is under an obligation to register any Trust Certificate under the Securities Act or any state securities laws. (e) Upon surrender for registration of transfer or exchange of any Trust Certificate at the office of the Certificate Registrar and upon compliance with the provisions of this Agreement 9 NALT 2004-A Amended and Restated Trust Agreement relating to such transfer or exchange, provided that the requirements of Section 8-401(a) of the UCC are met, the Owner Trustee shall execute and shall, or shall cause the Authenticating Agent to, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Trust Certificates in authorized denominations of a like aggregate face amount dated the date of such authentication or the Trust Certificates that the Trust Certificateholder making the exchange is entitled to receive, as the case may be. The Certificate Registrar shall require that every Trust Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer and accompanied by IRS Form W-8BEN or W-9 or such other form as may be reasonably required in form satisfactory to the Certificate Registrar duly executed by the Trust Certificateholder or such Person's attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Trust Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any registration of transfer or exchange of Trust Certificates. The Certificate Registrar shall cancel and retain or destroy, in accordance with the Certificate Registrar's retention policy then in effect, all Trust Certificates surrendered for registration of transfer or exchange and shall upon written request certify to the Transferor as to such retention or destruction. (f) The provisions of this Section generally are intended, among other things, to prevent the Trust from being characterized as a "publicly traded partnership" within the meaning of Section 7704 of the Code, in reliance on Treasury Regulations Section 1.7704-1(e) and (h), and the Transferor shall take such intent into account in determining whether or not to consent to any proposed transfer of any Trust Certificate. The preceding provisions of this Section notwithstanding, the Owner Trustee shall not make and the Certificate Registrar shall not register any transfer or exchange of Trust Certificates for a period of 15 days preceding the due date for any payment with respect to the Trust Certificates. SECTION 3.05 Mutilated, Destroyed, Lost or Stolen Trust Certificates. If any mutilated Trust Certificate is surrendered to the Certificate Registrar, or if the Certificate Registrar receives evidence to its satisfaction of the destruction, loss or theft of any Trust Certificate and there is delivered to the Certificate Registrar and the Owner Trustee such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Certificate has been transferred to a protected purchaser and provided that the requirements of Section 8-405 of the UCC are met, the Owner Trustee on behalf of the Trust shall execute and the Authenticating Agent shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like tenor and denomination. In connection with the issuance of any new Trust Certificate under this Section, the Owner Trustee or the Certificate Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Certificate issued pursuant to this Section shall constitute 10 NALT 2004-A Amended and Restated Trust Agreement conclusive evidence of an ownership interest in the Trust, as if originally issued, whether or not the lost, stolen or destroyed Trust Certificate shall be found at any time. SECTION 3.06 Persons Deemed Trust Certificateholders. Prior to due presentation of a Trust Certificate for registration of transfer, the Owner Trustee, the Certificate Registrar, any Paying Agent and any of their respective agents may treat the Person in whose name any Trust Certificate is registered in the Certificate Register as the owner of such Trust Certificate for the purpose of receiving distributions pursuant to Section 5.02 and for all other purposes whatsoever, and none of the Owner Trustee, the Certificate Registrar, any Paying Agent or any of their respective agents shall be affected by any notice to the contrary. SECTION 3.07 Access to List of Trust Certificateholders' Names and Addresses. The Certificate Registrar shall furnish or cause to be furnished to the Owner Trustee, the Servicer and the Transferor or the Indenture Trustee, as the case may be, within 15 days after its receipt of a request therefor from the Owner Trustee, the Servicer, the Transferor or the Indenture Trustee in writing, a list, in such form as the requesting party may reasonably request, of the names and addresses of the Trust Certificateholders as of the most recent Record Date. If (i) two or more Trust Certificateholders or (ii) one or more Trust Certificateholders evidencing not less than 25% of the Certificate Balance apply in writing to the Owner Trustee, and such application states that the applicants desire to communicate with other Trust Certificateholders with respect to their rights under this Agreement or under the Trust Certificates and such application is accompanied by a copy of the communication that such applicants propose to transmit, then the Owner Trustee shall, within five Business Days after the receipt of such application, afford such applicants access during normal business hours to the current list of Trust Certificateholders. Each Trust Certificateholder, by receiving and holding a Trust Certificate, shall be deemed to have agreed not to hold any of the Transferor, the Owner Trustee, the Indenture Trustee or the Servicer, as the case may be, accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived. SECTION 3.08 Maintenance of Office or Agency. The Owner Trustee shall maintain in The Borough of Manhattan, The City of New York, an office or offices or agency or agencies where Trust Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Owner Trustee in respect of the Trust Certificates and the other Basic Documents to which the Trust is a party may be served. The Owner Trustee initially designates Wilmington Trust Company, c/o Computershare Trust Company of New York, Wall Street Plaza, 88 Pine Street, 19th Floor, New York, New York, as the office for such purposes. The Owner Trustee shall give prompt written notice to the Transferor and the other Trust Certificateholders of any change in the location of the Certificate Register or any such office or agency. SECTION 3.09 Appointment of Paying Agent. The Paying Agent shall make distributions to the Trust Certificateholders pursuant to Section 5.02, and shall report the amounts of such distributions to the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw funds from the Certificate Distribution Account for the purpose of making the distributions referred to above. The Paying Agent initially shall be U.S. Bank. The Owner Trustee may revoke such power and remove the Paying Agent if the Owner Trustee determines in its sole discretion that the Paying Agent has failed to perform its obligations under this 11 NALT 2004-A Amended and Restated Trust Agreement Agreement in any material respect. Any co-paying agent chosen by the Transferor and acceptable to the Owner Trustee shall also be a Paying Agent. Each Paying Agent may resign upon 30 days' written notice to the Owner Trustee. In the event that a Paying Agent may no longer act as Paying Agent, the Owner Trustee shall appoint a successor to act as Paying Agent (which shall be a bank or trust company). The Owner Trustee shall cause such successor Paying Agent or any additional Paying Agent appointed by the Owner Trustee to execute and deliver to the Owner Trustee an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Owner Trustee that as Paying Agent, such successor Paying Agent or additional Paying Agent shall hold all sums, if any, held by it for payment to the Trust Certificateholders in trust for the benefit of the Trust Certificateholders entitled thereto until such sums are paid to the Trust Certificateholders. The Paying Agent shall return all unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to the Owner Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall act as Paying Agent and, to the extent applicable, to any other paying agent appointed hereunder. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise. SECTION 3.10 Ownership by the Transferor of Trust Certificates. The Transferor shall receive on the Closing Date in accordance with Section 3.02 and shall thereafter retain beneficial and record ownership of Trust Certificates representing 100% of the Certificate Balance. Notwithstanding any other provision of this Agreement to the contrary, any attempted transfer of any Trust Certificate that would reduce such interest of the Transferor below 100% of the Certificate Balance shall be void. The Owner Trustee shall cause one Trust Certificate issued to the Transferor (representing 100% of the Certificate Balance) to bear a legend stating "THIS CERTIFICATE IS NON-TRANSFERABLE." Notwithstanding the foregoing, upon a dissolution or termination of the Transferor, the Trust Certificates held by it shall be distributed to NMAC without regard to the provisions of Section 3.02 or this Section 3.10. SECTION 3.11 Trust Certificates Held by Trust, Transferor or Their Affiliates. Unless otherwise specified in this Agreement or other Basic Documents, any Trust Certificates owned by the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) or any of their respective Affiliates shall be entitled to the benefits under this Agreement equally and proportionately to the benefits afforded other owners of the Trust Certificates, except that such Trust Certificates shall be deemed not to be outstanding for the purpose of determining whether the requisite percentage of Securityholders have given any request, demand, authorization, direction, notice, consent or other action under the Basic Documents (other than the commencement by the Trust of a voluntary proceeding in bankruptcy), unless all Securities are owned by the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) or any of their respective Affiliates. ARTICLE FOUR ACTIONS BY OWNER TRUSTEE OR TRUST CERTIFICATEHOLDERS SECTION 4.01 Prior Notice to Trust Certificateholders With Respect to Certain Matters. Subject to the provisions and limitations of Section 4.04, with respect to the following 12 NALT 2004-A Amended and Restated Trust Agreement matters, the Owner Trustee shall not take action unless the Owner Trustee has notified the Trust Certificateholders and the Rating Agencies in writing of the proposed action at least 30 days before the taking of such action and Trust Certificateholders representing at least 25% of the Certificate Balance have not notified the Owner Trustee in writing prior to the 30th day after such notice is given that such Trust Certificateholders have withheld consent or provided alternative direction: (a) the initiation of any claim or lawsuit by the Trust and the compromise of any action, claim or lawsuit brought by or against the Trust (other than an action brought by the Servicer on behalf of the Titling Trust and Persons having interests in the 2004-A SUBI Certificate to collect amounts owed under a 2004-A Lease or 2004-A Vehicle); (b) the election by the Trust to file an amendment to the Certificate of Trust (unless such amendment is required to be filed under the Statutory Trust Statute); (c) the amendment of the Indenture in circumstances where the consent of any Noteholder is required; (d) the amendment of any Basic Document other than the Trust Agreement in circumstances such amendment materially and adversely affects the interests of the Trust Certificateholders; (e) the amendment of any other Basic Document unless the Owner Trustee is furnished an Opinion of Counsel to the effect that such amendment does not materially and adversely affect the interests of the Trust Certificateholders; or (f) the appointment a successor Owner Trustee or successor Indenture Trustee. SECTION 4.02 Action by Trust Certificateholders With Respect to Certain Matters. Subject to the provisions and limitations of Section 4.04, to the extent the Owner Trustee or the Trust is deemed to be the Holder of the 2004-A SUBI Certificate pursuant to the SUBI Trust Agreement, the Owner Trustee or Trust, as the case may be, shall take such actions as directed in writing by Trust Certificateholders holding Trust Certificates evidencing an interest of at least 66 2/3% of the Certificate Balance; provided, however, that so long as the Lien of the Indenture is outstanding, such direction shall be subject to the consent of the Indenture Trustee. The Owner Trustee may not, except upon the occurrence of a Servicer Default subsequent to the payment in full of the Notes and in accordance with the written directions of Trust Certificateholders holding 100% of the Certificate Balance, remove the Servicer, with respect to the 2004-A SUBI Assets or appoint a successor Servicer with respect thereto. SECTION 4.03 Action by Owner Trustee With Respect to Bankruptcy. The Owner Trustee shall not have the power to commence a voluntary proceeding in bankruptcy relating to the Trust without the unanimous prior approval of all Trust Certificateholders (including the board of managers (including the Independent Managers, as such term is defined in the Transferor's limited liability company agreement) of the Transferor) and the delivery to the Owner Trustee of a written certification by each Trust Certificateholder that such Trust Certificateholder reasonably believes that the Trust is insolvent. 13 NALT 2004-A Amended and Restated Trust Agreement SECTION 4.04 Restrictions on Trust Certificateholders' Power. The Trust Certificateholders shall not direct the Owner Trustee to take or refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Owner Trustee under this Agreement or any of the other Basic Documents or would be contrary to the purpose of the Trust as set forth in Section 2.03, nor shall the Owner Trustee be obligated to follow any such direction, if given. SECTION 4.05 Majority Control. Except as expressly provided herein, any action that may be taken by the Trust Certificateholders under this Agreement may be taken by the Trust Certificateholders holding not less than a Majority Interest of the Trust Certificates. Except as expressly provided herein, any written notice of the Trust Certificateholders delivered pursuant to this Agreement shall be effective if signed by Trust Certificateholders holding not less than a Majority Interest of the Certificates at the time of delivery of such notice. ARTICLE FIVE APPLICATION OF TRUST FUNDS; CERTAIN DUTIES SECTION 5.01 Establishment of Certificate Distribution Account and Reserve Account. (a) The Owner Trustee, for the benefit of the Trust Certificateholders, shall establish and maintain, or cause to be established and maintained, at the direction of the Transferor, an Eligible Account with and in the name of the Owner Trustee which shall be designated the "Certificate Distribution Account." The Certificate Distribution Account shall be held in trust for the benefit of the Trust Certificateholders and shall bear a designation clearly indicating that the funds deposited therein are held for the benefit of the Trust Certificateholders. The Owner Trustee shall possess all right, title and interest in all funds on deposit from time to time in the Certificate Distribution Account and in all proceeds thereof. Except as otherwise provided herein, the Certificate Distribution Account shall be under the sole dominion and control of the Owner Trustee for the benefit of the Trust Certificateholders. If at any time the Certificate Distribution Account ceases to be an Eligible Account, the Owner Trustee (or the Transferor on behalf of the Owner Trustee, if the Certificate Distribution Account is not then held by the Owner Trustee or an Affiliate thereof) shall, within ten Business Days following notification of such occurrence (or such longer period, not to exceed 30 calendar days, as to which each Rating Agency may consent), establish a new Certificate Distribution Account as an Eligible Account and shall transfer any cash or investments to such new Certificate Distribution Account. (b) The Servicer, on behalf of the Trust, shall establish and maintain an Eligible Account (initially at U.S. Bank) in the name of the Indenture Trustee until the Outstanding Amount is reduced to zero, and thereafter, in the name of the Owner Trustee, which is designated as the "Reserve Account". The Reserve Account shall be held for the benefit of the Securityholders, and shall bear a designation clearly indicating that the funds on deposit therein are held for the benefit of the Securityholders. 14 NALT 2004-A Amended and Restated Trust Agreement The Reserve Account shall be under the sole dominion and control of the Indenture Trustee until the Outstanding Amount has been reduced to zero, and thereafter under the sole dominion and control of the Owner Trustee. On the Closing Date, the Transferor will use the net proceeds of the sale of the Notes and the Trust Certificates to make a capital contribution to the Trust, which the Trust shall use to cause the Initial Deposit Amount to be deposited into the Reserve Account. All deposits to and withdrawals from the Reserve Account shall be made only upon the terms and conditions of the Basic Documents. (c) The Trust shall take or cause to be taken such further actions, to execute, deliver and file or cause to be executed, delivered and filed such further documents and instruments (including, without limitation, the Control Agreement or any UCC financing statements) as may be determined to be reasonably necessary by the Administrative Agent on behalf of the Trust, in order to perfect the interests created by Section 5.01(b) and otherwise fully effectuate the purposes, terms and conditions of this Section. The Trust (or Administrative Agent on behalf of the Trust) shall: (i) promptly execute, deliver and file any financing statements, amendments, continuation statements, assignments, certificates and other documents with respect to such interests and perform all such other acts as may be necessary in order to perfect or to maintain the perfection of its securities interest in the Reserve Account; and (ii) make the necessary filings of financing statements or amendments thereto within five days after the occurrence of any of the following (and promptly notify the Trust and the Owner Trustee of each such filing): (A) any change in the Transferor's corporate name or any trade name, (B) any change in the location of is chief executive office or principal place of business or (C) any merger or consolidation or other change in its identity or corporate structure. SECTION 5.02 Application of Trust Funds. (a) Until the Outstanding Amount of the Trust Certificates has been reduced to zero, on each Payment Date, the Paying Agent (or the Owner Trustee, if there is no Paying Agent) shall pay, to the extent of funds available, the amount required to be deposited by the Titling Trustee and by the Indenture Trustee into the Certificate Distribution Account pursuant to Section 8.04 of the Indenture, after the payment in full of the Notes, for the payment of principal of the Trust Certificates on such Payment Date, pro rata to the Trust Certificateholders of record at the close of business on the Record Date with respect to such Payment Date. On any Payment Date on which the amount on deposit in the Reserve Account, after giving effect to all withdrawals therefrom and deposits thereto in respect of that Payment Date, exceeds the Reserve Account Requirement, any such excess shall be released to the Transferor. (b) On or after the date on which the Outstanding Amount of the Notes has been reduced to zero, pursuant to the Indenture and the Control Agreement, dominion and control over the Reserve Account shall be transferred to the Owner Trustee. On each Payment Date thereafter, all amounts distributable to the Trust Certificateholders shall be distributed by the Owner Trustee in the order and priority set forth in Section 8.04(a) of the Indenture and the Owner Trustee shall comply with Sections 8.04(c) and 8.05(a) of the Indenture. 15 NALT 2004-A Amended and Restated Trust Agreement s On the Payment Date on which the Certificate Balance has been reduced to zero, the Owner Trustee shall release to the Transferor, without recourse, representation or warranty (except as set forth in Section 7.03), all of the Trust's right, title, and interest in, to and under the Reserve Account Property. In addition, on or following the Payment Date on which the Certificate Balance has been reduced to zero, the Transferor may direct the Owner Trustee in writing to distribute to it, and upon receipt of such direction the Owner Trustee shall distribute to the Transferor, the remaining assets of the Trust. (c) On each Payment Date, the Owner Trustee shall send to each Trust Certificateholder a report (the "Distribution Statement") provided by the Servicer, based on information in the Payment Date Certificate delivered pursuant to Section 8.03 of the Indenture, that shall include the following information: (i) the amount of SUBI Collections for the related Collection Period and the amounts allocable to the 2004-A SUBI Certificate; (ii) the Certificate Balance on the immediately preceding Payment Date, or if the current Payment Date is the first Payment Date, on the Closing Date; (iii) the aggregate amount of interest accrued and paid on each Class of Notes during the related Accrual Period; (iv) the aggregate amount of principal paid with respect to each Class of Notes and the Trust Certificates on such Payment Date and the Principal Carryover Shortfall, if any; (v) the Outstanding Amount of the Notes and the Certificate Balance on the day immediately preceding such Payment Date; (vi) the Note Factor for each Class of Notes and the Certificate Factor (after giving effect to payments made on such Payment Date); (vii) the Available Funds deposited into the SUBI Collection Account, including amounts with respect to each of items (i) through (v) of the definition thereof; (viii) (A) the Reserve Account Requirement, (B) the Reserve Account Deposit Amount, if any, (C) the Reserve Account Draw Amount, if any, (D) the balance on deposit in the Reserve Account on such Payment Date after giving effect to withdrawals therefrom and deposits thereto in respect of such Payment Date and (E) the change in such balance from the immediately preceding Payment Date; (ix) the Servicing Fee and the Payment Date Advance Reimbursement for the related Collection Period and (x) the amount of Residual Value Losses for the related Collection Period. NALT 2004-A Amended and Restated Trust Agreement 16 The information required to be delivered by such Distribution Statement may be included with such other information or reports furnished by the Servicer to the Owner Trustee in connection with the making of payments pursuant to the other Basic Documents. (d) If any withholding tax is imposed on the Trust's payment (or, if the Trust is treated as a partnership for federal income tax purposes, allocations of income) to a Trust Certificateholder, such tax shall reduce the amount otherwise distributable to such Trust Certificateholder in accordance with this Section. The Owner Trustee is hereby authorized and directed to retain from amounts otherwise distributable to such Trust Certificateholders, sufficient funds for the payment of any withholding tax that is legally owed by the Trust (but such authorization shall not prevent the Owner 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 a Trust Certificateholder shall be treated as cash distributed to such Trust Certificateholders, at the time it is withheld by the Trust for remittance to the appropriate taxing authority. If the Owner Trustee determines that there is a possibility that withholding tax is payable with respect to a distribution (such as any distribution to a "non-U.S. person" (as defined in Section 7701(a)(30) of the Code)), the Owner Trustee may in its sole discretion withhold such amounts in accordance with this Section. If a Trust Certificateholder wishes to apply for a refund of any such withholding tax, the Owner Trustee shall reasonably cooperate with such Trust Certificateholder in making such claim so long as such Trust Certificateholder agrees to reimburse the Owner Trustee for any out-of-pocket expenses incurred. (e) Subject to Section 6.07 of the Indenture and 8.01 hereof, as the case may be, neither the Indenture Trustee nor the Owner Trustee, as the case may be, shall in any way be held liable by reason of any insufficiency in the Reserve Account resulting from any loss on any Permitted Investment included therein, except for losses attributable to the Indenture Trustee's or the Owner Trustee's, as the case may be, failure to make payments on any such Permitted Investments issued by the Indenture Trustee or the Owner Trustee, as the case may be, in its commercial capacity as principal obligor and not as trustee, in accordance with their terms. SECTION 5.03 Method of Payment. Subject to Section 9.01(c) respecting the final payment upon retirement of the Trust Certificates, distributions required to be made to Trust Certificateholders on any Payment Date shall be made to each Trust Certificateholder of record on the related Record Date by check mailed to such Trust Certificateholder at the address of such holder appearing on the Certificate Register, except that a Trust Certificateholder having original denominations aggregating at least $1 million may request payment by wire transfer of funds pursuant to written instructions delivered to the Owner Trustee at least five Business Days prior to the Record Date. Notwithstanding the foregoing, the final payment on the Trust Certificates shall be made only upon presentation and surrender of such Trust Certificates at the office or agency specified in the notice of final payment to the Trust Certificateholders. The Owner Trustee or a Paying Agent shall, upon receipt of at least 20 days' notice from the Trust or the Administrative Agent as set forth in the Indenture, provide such notice to the Trust Certificateholders of record not more than 30 days and not less than 15 days prior to the date on which such final payment is expected to occur. SECTION 5.04 Accounting and Reports. NALT 2004-A Amended and Restated Trust Agreement 17 (a) The Owner Trustee shall, based on information provided by the Transferor, (i) maintain (or cause to be maintained) the books of the Trust on a calendar year basis on the accrual method of accounting (except as required by Article Eleven), (ii) deliver to each Trust Certificateholder not later than the latest date permitted by law (A) a statement of the amounts provided for in Section 8.04 of the Indenture and (B) such information as may be required by the Code and applicable Treasury Regulations with respect to instruments such as the Trust Certificates and (iii) in addition to the Owner Trustee's rights under Section 5.02, take such action as instructed by the Transferor to collect or cause to be collected and paid over to applicable authorities any withholding tax as described in and in accordance with Section 5.02 and Article Eleven with respect to income or distributions to Trust Certificateholders. The Owner Trustee shall make all elections pursuant to Article Eleven as directed by the Transferor. (b) The Transferor shall maintain such books and records, and shall prepare and file such reports and returns, as are required pursuant to this Section and Section 5.02. ARTICLE SIX AUTHORITY AND DUTIES OF OWNER TRUSTEE SECTION 6.01 General Authority. The Owner Trustee shall administer the Trust in the interest of the Trust Certificateholders, subject to the Lien of the Indenture Trustee, in accordance with the Basic Documents. Subject to the provisions and limitations of Sections 2.03 and 2.07, the Owner Trustee is authorized and directed to execute and deliver on behalf of the Trust the Basic Documents to which the Trust is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Basic Documents to which the Trust is to be a party, in each case in such form as the Transferor shall approve as evidenced conclusively by the Owner Trustee's execution thereof and the Transferor's execution of this Agreement, and on behalf of the Trust, to direct the Indenture Trustee to authenticate and deliver Class A-1 Notes in the aggregate principal amount of $265,000,000, Class A-2 Notes in the aggregate principal amount of $260,000,000, Class A-3 Notes in the aggregate principal amount of $357,000,000, Class A-4a Notes in the aggregate principal amount of $488,000,000 and Class A-4b Notes in the aggregate principal amount of $100,000,000. In addition to the foregoing, the Owner Trustee is authorized to take all actions required of the Trust pursuant to the Basic Documents. The Owner Trustee is further authorized from time to time to take such action on behalf of the Trust as is permitted by the Basic Documents and that the Servicer or the Administrative Agent recommends with respect to the Basic Documents, except to the extent this Agreement expressly requires the consent of the Trust Certificateholders for such action. SECTION 6.02 General Duties. Subject to the provisions and limitations of Sections 2.03 and 2.07, it shall be the duty of the Owner Trustee to discharge or cause to be discharged all of its responsibilities pursuant to the terms of the Basic Documents to which the Trust is a party and to administer the Trust in the interest of the Trust Certificateholders, subject to the Lien of the Indenture Trustee and in accordance with the provisions of the Basic Documents. Notwithstanding the foregoing, the Owner Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the other Basic Documents to the extent the Administrative Agent has agreed in the Trust Administration Agreement to perform any act or to discharge any duty of the Trust or the Owner Trustee hereunder or under any other NALT 2004-A Amended and Restated Trust Agreement 18 Basic Document, and the Owner Trustee shall not be held liable for the default or failure of the Administrative Agent to carry out its obligations under the Trust Administration Agreement. SECTION 6.03 Action Upon Instruction. (a) Subject to Article Four and in accordance with the terms of the Basic Documents, the Transferor may by written instruction direct the Owner Trustee in the administration of the Trust subject to, and in accordance with, the terms of the Basic Documents. The Owner Trustee, upon receipt of all resolutions, certificates, statements, opinions, reports, documents, orders or other instruments furnished to the Owner Trustee that shall be specifically required to be furnished pursuant to any provision of this Agreement, shall examine them to determine whether they conform on their face to the requirements of this Agreement. (b) The Owner Trustee shall not be required to take any action hereunder or under any other Basic Document if the Owner 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 Owner Trustee, is contrary to the terms hereof or of any other Basic Document or is otherwise contrary to law or any obligation of the Owner Trustee or the Trust. (c) Whenever the Owner Trustee is unable to decide between alternative courses of action permitted or required by the terms of this Agreement or any other Basic Document, the Owner Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Trust Certificateholders requesting instruction as to the course of action to be adopted, and to the extent the Owner Trustee acts in good faith in accordance with any written instruction of Trust Certificateholders holding not less than a Majority Interest of the Trust Certificates, the Owner Trustee shall not be liable on account of such action to any Person. If the Owner 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 as 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 Basic Documents as it shall deem to be in the best interests of the Trust Certificateholders, and shall have no liability to any Person for such action or inaction. (d) If the Owner Trustee is unsure as to the application of any provision of this Agreement or any other Basic 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 or any other Basic Document permits any determination by the Owner Trustee or is silent or is incomplete as to the course of action the Owner Trustee is required to take with respect to a particular set of facts, the Owner Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Trust Certificateholders requesting instruction and, to the extent the Owner Trustee acts or refrains from acting in good faith in accordance with any such instruction received from Trust Certificateholders holding not less than a Majority Interest of the Trust Certificates and in accordance with Sections 6.04 and 6.05, the Owner Trustee shall not be liable, on account of such action or inaction, to any Person. If the Owner 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 as may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from NALT 2004-A Amended and Restated Trust Agreement 19 taking such action, not inconsistent with this Agreement or the other Basic Documents, as it shall deem to be in the best interests of the Trust Certificateholders, and shall have no liability to any Person for such action or inaction. (e) Notwithstanding the foregoing, the right of the Transferor or the Trust Certificateholders to take any action affecting the Owner Trust Estate shall be subject to the rights of the Indenture Trustee under the Indenture. SECTION 6.04 No Duties Except as Specified. The Owner Trustee shall not be required to perform any of the obligations of the Trust under this Agreement or the other Basic Documents that are required to be performed by (i) the Servicer under the Servicing Agreement or the 2004-A SUBI Supplement, (ii) the Transferor under this Agreement, the Servicing Agreement, the Indenture, the SUBI Certificate Transfer Agreement, or the Back-Up Security Agreement, (iii) the Administrative Agent under the Trust Administration Agreement or (iv) the Indenture Trustee under the Indenture. The Owner 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 Owner Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, any document contemplated hereby to which the Trust is a party, except as expressly provided by the terms of this Agreement or in any document or written instruction received by the Owner Trustee pursuant to Section 6.03; and no implied duties or obligations shall be read into this Agreement or any other Basic Document against the Owner Trustee. The Owner 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 ownership or security interest in the Owner Trust Estate or to record this Agreement or any other Basic Document. Notwithstanding anything to the contrary herein or in any Basic Document, neither the Indenture Trustee, the Titling Trustee nor the Trust Agent shall be required to execute, deliver or certify on behalf of the Issuer or any other person any filings, certificates, affidavits or other instruments required under the Sarbanes-Oxley Act of 2002, to the extent permitted by applicable law. The Owner Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any Liens (other than the Lien of the Indenture) on any part of the Owner Trust Estate that result from actions by or claims against the Owner Trustee in its individual capacity that are not related to the ownership or the administration of the Owner Trust Estate. SECTION 6.05 No Action Unless Specifically Authorized. The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Owner Trust Estate except in accordance with (i) the powers granted to and the authority conferred upon the Owner Trustee pursuant to this Agreement, (ii) the other Basic Documents to which the Trust or the Owner Trustee is a party and (iii) any document or instruction delivered to the Owner Trustee pursuant to Section 6.03. In particular, the Owner Trustee shall not transfer, sell, pledge, assign or convey the 2004-A SUBI Certificate, except as specifically required or permitted by the Basic Documents. SECTION 6.06 Restrictions. The Owner Trustee shall not take any action (i) that is contrary to the purposes of the Trust set forth in Section 2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would (a) affect the treatment of the Notes as debt for federal income tax purposes, (b) be deemed to cause a taxable exchange of the Notes for federal income NALT 2004-A Amended and Restated Trust Agreement 20 tax purposes or (c) cause the Trust, the Transferor or the Titling Trust or any portion thereof to be taxable as an association (or publicly traded partnership) taxable as a corporation for federal or state income or franchise tax purposes. The Trust Certificateholders and the Transferor shall not direct the Owner Trustee to take action that would violate the provisions of this Section. The Owner Trustee may not (i) initiate or settle any claim or lawsuit involving the Trust (unless brought by the Servicer to collect amounts owed under a 2004-A Lease), (ii) amend the Certificate of Trust (unless such amendment is required to be filed under applicable law), (iii) amend this Agreement where Trust Certificateholder consent is required, (iv) amend this Agreement where Trust Certificateholder consent is not required if such amendment materially adversely affects the Trust Certificateholders, (v) amend any Basic Document other than this Agreement if such amendment materially adversely affects the Trust Certificateholders, or (vi) appoint a successor Owner Trustee or successor Indenture Trustee, unless (a) the Owner Trustee provides 30 days' written notice thereof to the Trust Certificateholders and each Rating Agency and (b) Trust Certificateholders holding at least 25% of the Certificate Balance (which for this purpose shall include Trust Certificates held by the Trust, the Transferor, the Servicer and their respective Affiliates) do not object in writing to any such proposed amendment within 30 days of such notice. Notwithstanding anything herein to the contrary, the Transferor, the Servicer and their respective Affiliates may maintain normal commercial banking relationships with the Owner Trustee and its Affiliates. ARTICLE SEVEN CONCERNING THE OWNER TRUSTEE SECTION 7.01 Acceptance of Trusts and Duties. The Owner 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 Owner Trustee also agrees to disburse all monies actually received by it constituting part of the Owner Trust Estate upon the terms of the Basic Documents to which the Trust or the Owner Trustee is a party. The Owner Trustee shall not be answerable or accountable hereunder or under any other Basic Document under any circumstances, except (i) for its own willful misconduct, bad faith or negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.03 made by the Owner Trustee. In particular, but not by way of limitation, and subject to the exceptions set forth in the preceding sentence: (a) the Owner Trustee shall not be liable for any error in judgment of an officer of the Owner Trustee made in good faith, unless it is proved that such officer was negligent in ascertaining the facts; (b) the Owner Trustee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of any Trust Certificateholder, the Transferor, the Indenture Trustee, the Administrative Agent or the Servicer; (c) no provision of this Agreement or any other Basic Document shall require the Owner 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 Basic Document if the NALT 2004-A Amended and Restated Trust Agreement 21 Owner 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 Owner Trustee be liable for indebtedness evidenced by or arising under any of the Basic Documents, including the principal of and interest on the Notes or the principal of the Trust Certificates; (e) the Owner Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by the Transferor or for the form, character, genuineness, sufficiency, value or validity of any of the Owner Trust Estate or for or in respect of the validity or sufficiency of the other Basic Documents, other than the execution of and the certificate of authentication on the Trust Certificates, and the Owner Trustee shall in no event be deemed to have assumed or incurred any liability, duty or obligation to any Securityholder or any third party dealing with the Trust or the Owner Trust Estate, other than as expressly provided for herein and in the other Basic Documents; (f) the Owner Trustee shall not be liable for the misfeasance, malfeasance or nonfeasance of the Servicer, the Administrative Agent, the Transferor, the Indenture Trustee or the Cap Provider under any of the Basic Documents or otherwise, and the Owner Trustee shall have no obligation or liability to perform the obligations of the Trust or the Transferor under this Agreement or the Basic Documents that are required to be performed by the Servicer under the Servicing Agreement or the SUBI Trust Agreement, the Administrative Agent under the Trust Administration Agreement, or the Indenture Trustee under the Indenture or the Cap Provider under the Interest Rate Cap Agreement; and (g) the Owner 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 Basic Document, at the request, order or direction of any Trust Certificateholder unless such Trust Certificateholder have offered to the Owner Trustee security or indemnity satisfactory to it against the Expenses that may be incurred by the Owner Trustee therein or thereby; the right of the Owner Trustee to perform any discretionary act enumerated in this Agreement or in any other Basic Document shall not be construed as a duty, and the Owner Trustee shall not be answerable for other than its bad faith, negligence or willful misconduct in the performance of any such act. SECTION 7.02 Furnishing of Documents. The Owner Trustee shall furnish to any Trust Certificateholder promptly upon receipt of a written request therefor (at the expense of the Trust Certificateholder), duplicates or copies of all reports, notices, requests, demands, certificates and any other instruments furnished to the Owner Trustee under the Basic Documents. SECTION 7.03 Representations and Warranties. The Owner Trustee hereby represents and warrants to the Transferor and the Trust Certificateholders, that: (a) It is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware. It has all requisite power, right and authority to execute, deliver and perform its obligations under this Agreement. NALT 2004-A Amended and Restated Trust Agreement 22 (b) It has taken all action necessary to authorize the execution and delivery by it of this Agreement and each other Basic Document to which it is a party, and this Agreement and each other Basic Document to which it is a party will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement and each other Basic Document to which it is a party on its behalf. (c) Neither the execution nor the delivery by it of this Agreement, nor the consummation by it of the transactions contemplated hereby or thereby nor compliance by it with any of the terms or provisions hereof will contravene any federal or Delaware law, governmental rule or regulation governing the banking or trust powers of the Owner 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 Owner Trust Estate resulting from actions by or claims against the Owner Trustee individually that are unrelated to this Agreement or the other Basic Documents. (d) This Agreement has been duly executed and delivered by it and constitutes the legal, valid and binding agreement of it, enforceable against the Owner Trustee in accordance with its terms, except as enforceability may be limited by bankruptcy, liquidation, insolvency, reorganization or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law. (e) It is authorized to exercise trust powers in the State of Delaware as and to the extent contemplated herein or has appointed a Delaware trustee that is so authorized and it has a principal place of business in the state of Delaware or has appointed a Delaware trustee that has such a principal place of business. SECTION 7.04 Reliance; Advice of Counsel. (a) The Owner Trustee may rely upon, shall be protected in relying upon and shall incur no liability to anyone in acting or refraining from 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 Owner Trustee may accept a certified copy of a board resolution or documents of any other governing body of any corporate party as conclusive evidence that such board resolution or other document has 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 the determination of which is not specifically prescribed herein, the Owner Trustee may for all purposes hereof rely on a certificate, signed by the president, any vice president, the treasurer, any assistant treasurer or any other authorized officers of the relevant party as to such fact or matter, and such certificate shall constitute full protection to the Owner 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 Basic Documents, the Owner Trustee (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Owner Trustee shall not be liable for the conduct or misconduct of NALT 2004-A Amended and Restated Trust Agreement 23 such agents or attorneys if such agents or attorneys shall have been selected by the Owner 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 Owner Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the opinion or advice of any such counsel, accountants or other such Persons and not, to the actual knowledge of the Owner Trustee, contrary to this Agreement or any other Basic Document. SECTION 7.05 Not Acting in Individual Capacity. Except as provided in this Article, in accepting the trusts hereby created, Wilmington Trust Company acts solely as Owner Trustee hereunder and not in its individual capacity and all Persons having any claim against the Owner Trustee by reason of the transactions contemplated by this Agreement or any Basic Document shall look only to the Owner Trust Estate for payment or satisfaction thereof. SECTION 7.06 Owner Trustee Not Liable for Trust Certificates. The recitals contained herein and in the Trust Certificates (other than the signature of the Owner Trustee and the certificate of authentication on the Trust Certificates and its representations and warranties in Section 7.03) shall be taken as the statements of the Transferor, and the Owner Trustee assumes no responsibility for the correctness thereof. The Owner Trustee makes no representations as to the validity or sufficiency of this Agreement, any other Basic Document or the Trust Certificates (other than the signature of the Owner Trustee and the certificate of authentication on the Trust Certificates) or the Notes or any offering document relating to either of them. The Owner Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity or enforceability of any Basic Document to which the Owner Trustee is to be a party (except for enforceability against the Owner Trustee), or the perfection and priority of any security interest created by or under any Basic Document, or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Owner Trust Estate or its ability to generate the payments to be distributed to Trust Certificateholders under this Agreement or the Noteholders under the Indenture, the validity of the transfer of the 2004-A SUBI Certificate, or for the compliance by the Transferor, the Administrative Agent or the Servicer with any warranty or representation made under any Basic Document or for the accuracy of any such warranty or representation or for any action of the Administrative Agent, the Servicer or the Indenture Trustee taken in the name of the Owner Trustee; provided, however, that the foregoing shall not relieve the Owner Trustee of its obligation to perform its duties under this Agreement. SECTION 7.07 Owner Trustee May Own Trust Certificates and Notes. The Owner Trustee in its individual or any other capacity may become the owner or pledgee of Trust Certificates or Notes and may deal with the Transferor, the Servicer, the Administrative Agent, the Indenture Trustee and their respective Affiliates, in banking transactions with the same rights as it would have if it were not the Owner Trustee. ARTICLE EIGHT COMPENSATION OF OWNER TRUSTEE SECTION 8.01 Owner Trustee's Compensation and Indemnification. NALT 2004-A Amended and Restated Trust Agreement 24 (a) The Owner Trustee, the Certificate Registrar and any Paying Agent shall receive as compensation from the Administrative Agent for its services hereunder such fees as have been separately agreed upon before the date hereof between the Transferor or the Administrative Agent and the Owner Trustee, the Certificate Registrar or the Paying Agent. The Transferor shall be liable as primary obligor for, and shall indemnify the Owner Trustee, the Certificate Registrar and any Paying Agent and their respective successors, assigns, agents, servants, officers and employees (collectively, the "Indemnified Parties") from and against, any Expenses that may at any time be imposed on, incurred by or asserted against the Owner Trustee or any other Indemnified Party in any way relating to or arising out of the Basic Documents, the Owner Trust Estate, the administration of the Owner Trust Estate or the action or inaction of the Owner Trustee hereunder, except that the Transferor shall not be liable for or required to indemnify any Indemnified Party from and against Expenses arising or resulting from any income taxes on any fees payable to any Indemnified Party as described in Section 7.01 for any willful misconduct, bad faith or negligence on the part of the Owner Trustee or in the case of the inaccuracy of any representation or warranty of the Owner Trustee made in Section 7.03. The indemnities contained in this Section shall survive the resignation or termination of the Owner Trustee, the Certificate Registrar or any Paying Agent or the termination of this Agreement. In any event of any claim, action or proceeding for which indemnity will be sought pursuant to this Section, the Indemnified Party's choice of legal counsel shall be subject to the approval of the Transferor, which approval shall not be unreasonably withheld. Neither the Transferor nor the Administrative Agent shall make any claim upon the Owner Trust Estate for the payment of such Expenses. (b) Notwithstanding the foregoing, the Owner Trustee shall not be liable for (i) any error of judgment made by an officer of the Owner Trustee, (ii) any action taken or omitted to be taken in accordance with the instructions of any Trust Certificateholder, the Indenture Trustee, the Transferor, the Administrative Agent or the Servicer, (iii) the interest on or principal of the Securities or (iv) the default or misconduct of the Administrative Agent, the Servicer, the Transferor or the Indenture Trustee. ARTICLE NINE TERMINATION OF TRUST AGREEMENT SECTION 9.01 Termination of Trust Agreement. (a) This Agreement (other than Article Eight) shall terminate and the Trust shall dissolve and be wound up in accordance with Section 3808 of the Statutory Trust Statute, upon the earliest of (i) the final distribution by the Owner Trustee of all funds or other property or proceeds of the Owner Trust Estate in accordance with the terms of the Indenture and this Agreement or (ii) at the times provided in Section 9.03. The bankruptcy, liquidation, dissolution, or termination, death or incapacity of any Trust Certificateholder, other than the Transferor, as described in Section 9.03, shall not (i) operate to terminate this Agreement or the Trust, (ii) entitle such Trust Certificateholder's legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Trust or Owner Trust Estate nor (iii) otherwise affect the rights, obligations and liabilities of the parties hereto. NALT 2004-A Amended and Restated Trust Agreement 25 (b) Except as provided in Section 9.01(a), neither the Transferor nor any other Trust Certificateholder shall be entitled to revoke or terminate the Trust. (c) Notice of any termination of this Agreement pursuant to Section 9.01(a), specifying the Payment Date upon which the Trust Certificateholders shall surrender their Trust Certificates to the Paying Agent for final payment and cancellation, shall be given by the Owner Trustee by letter to Trust Certificateholders mailed within five Business Days of receipt of notice of such termination from the Administrative Agent, stating (i) the Payment Date upon or with respect to which final payment of the Trust Certificates shall be made upon presentation and surrender of the Trust Certificates at the office of the Paying Agent therein designated, (ii) the amount of any such final payment and (iii) that the Record Date otherwise applicable to such Payment Date is not applicable, payments being made only upon presentation and surrender of the Trust Certificates at the office of the Paying Agent therein specified. The Owner Trustee shall give such notice to the Certificate Registrar (if other than the Owner Trustee) and the Paying Agent at the time such notice is given to Trust Certificateholders and the Transferor. Upon presentation and surrender of the Trust Certificates, the Paying Agent shall cause to be distributed to Trust Certificateholders amounts distributable on such Payment Date pursuant to Section 5.02. The Owner Trustee shall promptly notify each Rating Agency upon the final payment of the Trust Certificates. (d) If one or more of the Trust Certificateholders shall not surrender their Trust Certificates for cancellation within six months after the date specified in the above-mentioned written notice, the Owner Trustee shall give a second written notice to the remaining Trust Certificateholders to surrender their Trust Certificates for cancellation and receive the final distribution with respect thereto. If within one year after the second notice, all of the Trust Certificates shall not have been surrendered for cancellation, the Owner Trustee may take appropriate steps, or may appoint an agent to take appropriate steps, to contact the remaining Trust Certificateholders concerning surrender of their Trust Certificates, and the cost thereof shall be paid out of the funds and other assets that shall remain subject to this Agreement. Any funds remaining in the Trust after exhaustion of such remedies shall be distributed by the Owner Trustee to the Administrative Agent. (e) Upon the winding up of the Trust and its termination, the Owner Trustee shall cause the Certificate of Trust to be cancelled by filing a certificate of cancellation with the Secretary of State in accordance with Section 3810 of the Statutory Trust Statute. SECTION 9.02 [Reserved]. SECTION 9.03 Purchase of the 2004-A SUBI Certificate; Repayment of the Trust Certificates. (a) The Servicer shall be permitted at its option to purchase, or cause to be purchased, the 2004-A SUBI Certificate from the Trust on any Payment Date if, either before or after giving effect to any payment of principal required to be made on such Payment Date, (i) the Securities Balance is less than or equal to 10% of the Initial Securities Balance or (ii) the Outstanding Amount of the Notes is reduced to zero and 100% of the outstanding Trust Certificates are owned by the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the NALT 2004-A Amended and Restated Trust Agreement 26 Servicer) and their respective Affiliates (the exercise of such option is referred to as an "Optional Purchase"). The purchase price (the "Optional Purchase Price") shall equal the aggregate Securitization Value of the 2004-A SUBI Assets plus the appraised value of any other property (other than cash, in which case such value shall be the amount of such funds held in cash) held as part of the Trust (less Liquidation Expenses) and shall be deposited by the Servicer into the SUBI Collection Account on the Deposit Date related to such Payment Date. The Servicer shall not exercise the Optional Purchase if the Optional Purchase Price does not exceed the sum of (i) the Redemption Price, (ii) unpaid portions of any outstanding Sales Proceeds Advances and Monthly Payment Advances, (iii) the Servicing Fee in respect of the related Collection Period, together with any unpaid Servicing Fees in respect of one or more prior Collection Periods, and (iv) the Certificate Balance. If the Servicer exercises the Optional Purchase, the Notes shall be redeemed and the Trust Certificates shall be repaid, in each case in whole but not in part on the related Payment Date. The Servicer, at its option, may pay all or a portion of the Optional Purchase Price by issuing a demand note in favor of the Trust, the terms of which, on the whole, shall be commercially reasonable and substantially similar to terms that would prevail in an arms-length negotiation between unaffiliated parties; provided, however, that (x) the Servicer shall pay in cash the portion of the Optional Purchase Price that is equal to or greater than the sum of the amounts specified in clauses (i) through (iii) of the second preceding sentence and (y) the Servicer may issue a demand note to a Trust Certificateholder pursuant to this Section 9.03 only if such Certificateholder consents to the receipt of such demand note. (b) In connection with an Optional Purchase, the Trust Certificates shall be due and payable on the related Payment Date, upon furnishing of a notice complying with Section 9.03(c) to each Trust Certificateholder. The Administrative Agent or the Owner Trustee shall furnish each Rating Agency notice of such repayment or redemption. (c) Notice of repayment or redemption under Section 9.03(b) shall be given (i) by the Administrative Agent to the Owner Trustee by facsimile or by first-class mail, postage prepaid, transmitted or mailed at least 20 days prior to the related Payment Date and (ii) by the Owner Trustee to each Trust Certificateholder by facsimile or by first-class mail, postage prepaid, transmitted or mailed at least 15 days (but no more than 30 days) prior to the related Payment Date, at such Trust Certificateholder's or the Transferor's address appearing in the Certificate Register. All notices of repayment shall state: (i) the related Payment Date for the repayment; (ii) [reserved]; (iii) the place where the Trust Certificates to be repaid are to be surrendered for payment of the Repayment Price (which shall be the office or agency of the Owner Trustee to be maintained as provided in Section 3.08); and (iv) that on the related Payment Date, the Repayment Price will become due and payable upon each such Trust Certificate. NALT 2004-A Amended and Restated Trust Agreement 27 Notice of repayment of the Trust Certificates shall be given by the Owner Trustee in the name and at the expense of the Trust. Failure to give notice of repayment or any defect therein, to any Trust Certificateholder shall not impair or affect the validity of the repayment of any Trust Certificate. (d) The Trust Certificates to be repaid shall, following notice of repayment as required by Section 9.03(c) on the related Payment Date, become due and payable at the Repayment Price. ARTICLE TEN SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES SECTION 10.01 Eligibility Requirements for Owner Trustee. The Owner Trustee shall (i) be a corporation satisfying the provisions of Section 3807(a) of the Statutory Trust Statute; (ii) at all times be able and authorized to exercise corporate trust powers; (iii) have a long-term debt rating of "A" or higher by Moody's and Standard and Poor's, or be otherwise acceptable to each Rating Agency; (iv) have combined capital and surplus of at least $50,000,000; and (v) be subject to supervision or examination by federal or state authorities. If the Owner Trustee 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 the Owner Trustee 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 Owner Trustee shall cease to be eligible in accordance with the provisions of this Section, the Owner Trustee shall resign immediately in the manner and with the effect specified in Section 10.02. SECTION 10.02 Resignation or Removal of Owner Trustee. The Owner Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Administrative Agent, the Servicer, each Rating Agency, the Transferor, the Indenture Trustee and the Trust Certificateholders. If, for any reason, Wilmington Trust Company or any of its Affiliates should assume the duties of the Indenture Trustee, then from that time forward Wilmington Trust Company, in its capacity as Owner Trustee, shall resign as Owner Trustee hereunder if any Event of Default under the Indenture occurs and is necessary to eliminate any conflict of interest under the TIA with the Indenture Trustee or any other trustee under the Indenture. Upon receiving such notice of resignation, the Transferor shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner Trustee shall have been so appointed and have accepted appointment within 30 days after the giving of such notice of resignation, the resigning Owner Trustee may petition any court of competent jurisdiction for the appointment of a successor Owner Trustee. If at any time the Owner Trustee shall cease to be eligible in accordance with the provisions of Section 10.01 and shall fail to resign after written request therefor by the Administrative Agent, the Transferor or Trust Certificateholders holding not less than a Majority Interest of the Trust Certificates (which, for this purpose, includes Trust Certificates owned by NALT 2004-A Amended and Restated Trust Agreement 28 the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) or any of their respective Affiliates), or if at any time the Owner Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Owner Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then the Transferor or such Trust Certificateholders may remove the Owner Trustee. If the Owner Trustee shall be removed pursuant to the preceding sentence, the Transferor shall promptly appoint a successor Owner Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Owner Trustee so removed and one copy to the successor Owner Trustee. Any resignation or removal of the Owner Trustee and appointment of a successor Owner Trustee pursuant to any of the provisions of this Section shall not become effective until acceptance of appointment by the successor Owner Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to the outgoing Owner Trustee. Any appointment of a successor Owner Trustee is subject to satisfaction of the Rating Agency Condition. SECTION 10.03 Successor Owner Trustee. Any successor Owner Trustee appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to the Administrative Agent and to its predecessor Owner Trustee an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Owner Trustee shall become effective and such successor Owner 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 Owner Trustee. The predecessor Owner Trustee shall, upon payment of its fees and expenses, deliver to the successor Owner Trustee all documents and statements and monies held by it under this Agreement; and the Transferor, the Administrative Agent and the predecessor Owner 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 Owner Trustee all such rights, powers, duties and obligations. No successor Owner Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Owner Trustee shall be eligible pursuant to Section 10.01. Upon acceptance of appointment by a successor Owner Trustee pursuant to this Section, the Transferor shall mail notice of the successor of such Owner Trustee to all Trust Certificateholders, the Indenture Trustee and each Rating Agency. If the Transferor shall fail to mail such notice within ten days after acceptance of appointment by the successor Owner Trustee, the successor Owner Trustee shall cause such notice to be mailed at the expense of the Transferor. SECTION 10.04 Merger or Consolidation of Owner Trustee. Any Person (i) into which the Owner Trustee may be merged or converted or with which it may be consolidated, (ii) resulting from any merger, conversion or consolidation to which the Owner Trustee shall be a party or (iii) succeeding to all or substantially all of the corporate trust business of the Owner Trustee, shall be the successor of the Owner Trustee hereunder, without the execution or filing of NALT 2004-A Amended and Restated Trust Agreement 29 any instrument or any further act on the part of any of the parties hereto, provided, that such Person shall be eligible pursuant to Section 10.01 anything herein to the contrary notwithstanding. The Owner Trustee shall mail notice of such merger, conversion, or consolidation to each Rating Agency, the Indenture Trustee and the Trust Certificateholders. SECTION 10.05 Appointment of Co-Trustee or Separate Trustee. Notwithstanding any other provision of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Owner Trust Estate may at the time be located, the Transferor and the Owner Trustee acting jointly shall have the power and shall execute and deliver all instruments to appoint one or more Persons to act as co-trustee, jointly with the Owner Trustee, or separate trustee or separate trustees, of all or any part of the Owner Trust Estate, 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 Transferor and the Owner Trustee may consider necessary or desirable. If the Transferor shall not have joined in such appointment within 15 days after the receipt by it of a request to do so, the Owner Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a trustee pursuant to Section 10.01 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.03. 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 Owner Trustee shall be conferred upon and exercised or performed by the Owner 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 Owner 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 Owner 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 Estate 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 Owner 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 Transferor and the Owner 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 Owner 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 Owner Trustee or separately, as may be provided 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 NALT 2004-A Amended and Restated Trust Agreement 30 protection to the Owner Trustee. Each such instrument shall be filed with the Owner Trustee and a copy thereof given to the Administrative Agent, the Servicer and the Transferor. Any separate trustee or co-trustee may at any time appoint the Owner Trustee, 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 Owner Trustee, to the extent permitted by law, without the appointment of a new or successor trustee. ARTICLE ELEVEN TAX MATTERS SECTION 11.01 Tax and Accounting Characterization. (a) It is the intent of the parties hereto that the Trust not constitute a separate entity for federal income tax and state income and franchise tax purposes. It is the intent of the Transferor and the Trust Certificateholders that the Notes be treated as indebtedness secured by the 2004-A Vehicles and the payments on the 2004-A Leases for federal income tax and state income and franchise tax purposes. If, however, the Trust is re-characterized as a separate entity for federal income tax purposes, it is the intention of the parties that it qualify as a partnership, with the assets of the partnership being the Owner Trust Estate. The parties agree that, unless otherwise required by appropriate tax authorities, the Trust shall not file or cause to be filed annual returns, reports or other forms and will treat the Trust in a manner consistent with the characterization that the Trust is not a separate entity for tax purposes. The Transferor and the Trust Certificateholder, by acceptance of a Trust Certificate, agree to take no action inconsistent with the foregoing intention. (b) It is the intent of the Transferor to treat the Trust Certificates as equity interests in the Trust for financial accounting purposes. SECTION 11.02 Signature on Returns; Tax Matters Partner. (a) If the Trust shall be required to file federal or other income tax returns as a partnership, such returns shall be signed by an authorized signatory for the Transferor or such other Person as shall be required by law to sign such returns of the Trust. (b) By acceptance of its beneficial interest in a Trust Certificate, each Trust Certificateholder agrees that in the event that the Trust is classified as a partnership for federal income tax purposes, the Transferor shall be the "tax matters partner" of the Trust pursuant to the Code. SECTION 11.03 Tax Reporting. Unless otherwise required by appropriate tax authorities, the Trust shall not file or cause to be filed annual or other income or franchise tax returns and shall not be required to obtain any taxpayer identification number. NALT 2004-A Amended and Restated Trust Agreement 31 ARTICLE TWELVE MISCELLANEOUS SECTION 12.01 Supplements and Amendments. (a) This Agreement may be amended by the Transferor and the Owner Trustee without the consent of any of the Securityholders to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, add any other provisions with respect to matters or questions arising under this Agreement that are not inconsistent with the provisions of this Agreement or add or amend any provision herein in connection with permitting transfers of the Trust Certificates; provided, however, that such action shall not, as evidenced by an Opinion of Counsel, materially adversely affect the interests of any Holder of a 2004-A SUBI Certificate (which, so long as any Notes are outstanding, shall include the Indenture Trustee) or any Securityholder. (b) This Agreement may also be amended from time to time by the Transferor and the Owner Trustee, with prior written notice to the Rating Agencies and subject to the satisfaction of the Rating Agency Condition, with the consent of the Noteholders holding a Majority Interest of the Notes, voting as a single class, and to the extent affected thereby, the consent of Trust Certificateholders holding not less than a Majority Interest of the Trust Certificates (which for this purpose shall include Trust Certificates owned by the Trust, the Transferor, the Servicer (as long as NMAC or an Affiliate is the Servicer) and their respective Affiliates), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Noteholders or the Trust Certificateholders. No such amendment shall, however, (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, distributions that are required to be made on the Notes or the Trust Certificates or (ii) reduce the percentage of the Certificate Balance or the Outstanding Amount required to consent to any such amendment, without the consent of the holders of 100% of all outstanding Trust Certificates (including Trust Certificates owned by the Trust, the Transferor, the Servicer (as long as NMAC or an Affiliate is the Servicer) and their respective Affiliates), and provided, further that an Opinion of Counsel shall be furnished to the Indenture Trustee and the Owner Trustee to the effect that such amendment shall not (A) affect the treatment of the Notes as debt for federal income tax purposes, (B) be deemed to cause a taxable exchange of the Notes for federal income tax purposes or (C) cause the Trust or the 2004-A SUBI Certificate to be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes. This Agreement may also be amended or supplemented from time to time, at the request of the holders of no less than 66 2/3% of all outstanding Trust Certificates (including Trust Certificates owned by the Trust, the Transferor, the Servicer (as long as NMAC or an Affiliate is the Servicer) and their respective Affiliates), to approve any trust purpose with respect to the Trust in addition to the purpose authorized pursuant to Section 2.03(b), upon not less that 90 days notice to each Rating Agency and each Noteholder and subject to each of (1) the prior written notice to each Rating Agency of such action, and (2) the consent of the holders of at least 66 2/3% of all outstanding Notes (including such Notes, if any, owned by the Trust, the Transferor, the Servicer (as long as NMAC or an Affiliate is the Servicer) and their respective Affiliates), and provided, further that an Opinion of Counsel shall be furnished to the Indenture Trustee and the Owner Trustee to the effect that such amendment NALT 2004-A Amended and Restated Trust Agreement 32 or supplement shall not affect the treatment of any outstanding Notes for federal income tax purposes, or cause the Trust or the 2004-A SUBI Certificate to be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes. It shall not be necessary for the consent of Trust Certificateholders, the Noteholders or the Indenture Trustee 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 Trust Certificateholders provided for in this Agreement or in any other Basic Document) and of evidencing the authorization of the execution thereof by Trust Certificateholders shall be subject to such reasonable requirements as the Owner Trustee may prescribe. (c) Notwithstanding Section 12.01(b), this Agreement may be amended at any time by the parties hereto to the extent reasonably necessary to assure that none of the Titling Trust, the Trust or the Transferor will be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes. (d) Prior to the execution of any amendment to this Agreement or any other Basic Document, the Owner Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and the other Basic Documents and that all conditions precedent herein and in the other Basic Documents to the execution and delivery of such amendment have been satisfied. The Owner Trustee may, but shall not be obligated to, enter into any such amendment which affects the Owner Trustee's own rights, duties or immunities under this Agreement or otherwise. (e) The Owner Trustee shall give the Trust Certificateholders 30 days' written notice of any proposed amendment or supplement hereto, unless the Owner Trustee is furnished an Opinion of Counsel to the effect that such amendment or supplement does not materially adversely affect the Trust Certificateholders or if Noteholders consent is required and this Agreement provides that the Owner Trustee shall not enter into such amendment unless a majority of the Certificate Balance of Trust Certificateholders consent in writing. SECTION 12.02 No Legal Title to Owner Trust Estate. The Trust Certificateholders shall have legal title to any part of the Owner Trust Estate. The Trust Certificateholders shall be entitled to receive distributions with respect to their Trust Certificates only in accordance with Articles Five and Nine. No transfer, by operation of law or otherwise, of any right, title or interest of the Trust Certificateholders to and in their ownership interest in the Owner Trust Estate 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 Owner Trust Estate. SECTION 12.03 Limitations on Rights of Others. The provisions of this Agreement are solely for the benefit of the Owner Trustee, the Transferor, the Trust Certificateholders, the Administrative Agent, the Servicer and the Indenture Trustee and the Noteholders, and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Owner Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein. NALT 2004-A Amended and Restated Trust Agreement 33 SECTION 12.04 Notices. All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, or by telecopier, and addressed in each case as follows: (i) if to the Owner Trustee, at Wilmington Trust Company, Rodney Square North, 1100 N. Market Street, Wilmington, Delaware 19890, (telecopier no. (302) 651-8882), Attention: Corporate Trust Administration; (ii) if to the Transferor, at 990 West 190th Street, Torrance, California 90502 (telecopier no. (310) 719-8509), Attention: Secretary; (iii) if to Moody's, at Moody's Investors Service, Inc., 99 Church Street, New York, New York 10007, Attention: ABS Monitoring Group (telecopier no. (212) 553-7820); (iv) if to Standard & Poor's, to Standard & Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc., 55 Water Street, New York, New York 10041 (telecopier no. (212) 208-0030), Attention: Asset Backed Monitoring Group; or (v) at such other address as shall be designated by any of the foregoing in a written notice to the other parties hereto. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder. Any notice required or permitted to be given to a Trust Certificateholder shall be given by first-class mail, confirmed, facsimile or overnight courier, postage prepaid, at the address of such Trust Certificateholder as shown in the Certificate Register. Any notice so mailed within the time prescribed in this Agreement shall be conclusively presumed to have been duly given, whether or not such Trust Certificateholder receives such notice. SECTION 12.05 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. SECTION 12.06 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. SECTION 12.07 Successors and Assigns. All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, the Transferor, the Owner Trustee, and each Trust Certificateholder and their respective successors and permitted assigns, all to the extent as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by a Trust Certificateholder shall bind the successors and assigns of the Transferor or such Trust Certificateholder. SECTION 12.08 No Petition. The Owner Trustee, any Paying Agent, the Transferor, and each Trust Certificateholder by accepting a Trust Certificate, covenant that they will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under federal or State bankruptcy or similar laws, against NMAC, the Transferor, the Titling Trust, the UTI Beneficiary or the Trust, for a period of one year and a day after: NALT 2004-A Amended and Restated Trust Agreement 34 (a) payment in full of all amounts due to each Holder in respect of the UTI, the SUBI or any Other SUBI, against any UTI Beneficiary (or any general partner of a UTI Beneficiary which is a partnership, the Titling Trust and the Titling Trustee, without the consent of 100% of the Holders of the 2004-A SUBI and each Other SUBI (excluding the UTI Beneficiary, the Transferor or any of their respective Affiliates); and (b) payment in full of the Notes; provided, however, that 100% of the Noteholders, or, if no Notes are then outstanding, 100% of the Trust Certificateholders (in each case excluding the Transferor and any of its Affiliates) may at any time institute or join in instituting any bankruptcy, reorganization, insolvency or liquidation proceeding against the Transferor or the Trust. SECTION 12.09 No Recourse. Each Trust Certificate entitles the holder thereof to the respective rights and benefits set forth in this Agreement and in the Trust Certificates. The Trust Certificates do not represent interests in or obligations of the Servicer, the Transferor, the Owner Trustee, any Paying Agent, the Indenture Trustee or any Affiliate thereof and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement, the Trust Certificates or the other Basic Documents. SECTION 12.10 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 12.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. SECTION 12.12 Trust Certificates Nonassessable and Fully Paid. Trust Certificateholders shall not be personally liable for obligations of the Trust. The interests represented by the Trust Certificates shall be nonassessable for any losses or expenses of the Trust or for any reason whatsoever, and, upon authentication thereof pursuant to Section 3.03, 3.04 and 3.05, the Trust Certificates shall be deemed fully paid. SECTION 12.13 Furnishing of Basic Documents. The Transferor shall furnish to any Trust Certificateholder promptly upon receipt of a written request by such Trust Certificateholder (at the expense of the requesting Trust Certificateholder) therefor, duplicates or copies of all Basic Documents. NALT 2004-A Amended and Restated Trust Agreement 35 IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Trust Agreement to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written. NISSAN AUTO LEASING LLC II, as Transferor By: /s/ Joji Tagawa -------------------------------------- Name: Joji Tagawa Title: Treasurer WILMINGTON TRUST COMPANY, as Owner Trustee By: /s/ Joann A. Rozell -------------------------------------- Name: Joann A. Rozell Title: Financial Services Officer NALT 2004-A Amended and Restated Trust Agreement S-1 EXHIBIT A FORM OF TRUST CERTIFICATE TRUST CERTIFICATE SEE REVERSE FOR CERTAIN DEFINITIONS THIS CERTIFICATE IS NON-TRANSFERABLE. THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY PURCHASING THIS TRUST CERTIFICATE, AGREES THAT THIS TRUST CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, IN EACH CASE WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE TRUST AGREEMENT AND THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS TRUST CERTIFICATE MAY NOT BE PURCHASED OR HELD WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), THAT IS SUBJECT TO TITLE I OF ERISA OR ANY "PLAN" AS DEFINED IN SECTION 4975(e)(1) THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, or any entity whose underlying assets inCLUDE "PLAN ASSETS" BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY OR OTHERWISE (EACH A "BENEFIT PLAN"). BY ACCEPTANCE OF THIS TRUST CERTIFICATE OR AN INTEREST THEREIN, THE HOLDER HEREOF SHALL BE DEEMED TO REPRESENT AND WARRANT THAT ITS ACQUISITION AND HOLDING IS IN COMPLIANCE WITH THE FOREGOING RESTRICTION ON BENEFIT PLAN ASSETS. THE PRINCIPAL OF THIS TRUST CERTIFICATE IS DISTRIBUTABLE AS SET FORTH IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS TRUST CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. (NALT 2004-A Amended and Restated Trust Agreement) A-1 THIS CERTIFICATE DOES NOT CONSTITUTE AN OBLIGATION OF OR AN INTEREST IN THE TRANSFEROR, THE OWNER TRUSTEE, THE SERVICER, THE ADMINISTRATIVE AGENT, NMAC, NALL II, NISSAN NORTH AMERICA, INC. OR ANY OF THEIR RESPECTIVE AFFILIATES, AND WILL NOT BE INSURED OR GUARANTEED BY ANY SUCH ENTITY OR BY ANY GOVERNMENTAL AGENCY. (NALT 2004-A Amended and Restated Trust Agreement) A-2 NISSAN AUTO LEASE TRUST 2004-A ASSET BACKED CERTIFICATE evidencing a beneficial interest in the Trust, as defined below, the property of which includes, among other things, the 2004-A SUBI Certificate, evidencing a 100% beneficial interest in the 2004-A SUBI. The property of the Trust has been pledged to the Indenture Trustee pursuant to the Indenture to secure the payment of the Notes issued thereunder. This Trust Certificate does not represent an interest in or obligation of the Transferor, Nissan Motor Acceptance Corporation, the Owner Trustee or any of their respective Affiliates, except to the extent described below. NUMBER $___________ R-_____ This certifies that _________________ is the registered owner of a _______________ dollars nonassessable, fully-paid, beneficial ownership interest in the Nissan Auto Lease Trust 2004-A (the "Trust") formed by Nissan Auto Leasing LLC II, a Delaware limited liability company (the "Transferor"). The Trust was created pursuant to a trust agreement, as amended and restated as of October 28, 2004 (the "Trust Agreement"), between the Transferor and Wilmington Trust Company, as trustee (the "Owner Trustee"), a summary of certain of the pertinent provisions of which is set forth below. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Agreement of Definitions. This Trust Certificate is one of the duly authorized Trust Certificates designated as "Asset Backed Certificates" (the "Trust Certificates"). Also issued under an indenture, dated as of October 28, 2004 (the "Indenture"), between the Trust and U.S. Bank National Association, as trustee (the "Indenture Trustee"), are the 2.10563% Asset Backed Notes, Class A-1, the 2.55000% Asset Backed Notes, Class A-2, the 2.90000% Asset Backed Notes, Class A-3, the Floating Rate Asset Backed Notes, Class A-4a and the 3.18000% Asset Backed Notes, Class A-4b. This Trust Certificate is issued under and is subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the holder of this Trust Certificate by virtue of the acceptance hereof assents and by which such Trust Certificateholder is bound. The property of the Trust primarily includes, among other things, (i) the 2004-A SUBI Certificate, evidencing a 100% beneficial interest in the 2004-A SUBI, and (ii) all proceeds of the foregoing. The rights of the Trust in the foregoing property have been pledged by the Trust to the Indenture Trustee to secure the payment of the Notes. The Trust Certificates represent obligations of the Trust only and do not represent interests in, recourse to or obligations of the Transferor, the UTI Beneficiary or any of their respective Affiliates. (NALT 2004-A Amended and Restated Trust Agreement) A-3 Under the Trust Agreement, there will be distributed on the 15th day of each month (or, if such day is not a Business Day, the next Business Day), commencing November 15, 2004 (each, a "Payment Date"), to the Person in whose name this Trust Certificate is registered at the close of business on the day preceding each Payment Date (each, a "Record Date") such Trust Certificateholder's percentage interest in the amount to be distributed with respect to the Trust Certificates on such Payment Date. The holder of this Trust Certificate acknowledges and agrees that its rights to receive payments in respect of this Trust Certificate are subordinated to the rights of the Noteholders as described in the Indenture. It is the intent of the Transferor and Trust Certificateholder that the Trust not constitute a separate entity for federal income and state income and franchise tax purposes, and that the Notes be treated as indebtedness for such purposes. If, however, the Trust is re-characterized as a separate entity for federal income tax purposes, it is the intention of the parties to the Trust Agreement that it qualify as a partnership for such purposes. The Transferor and the other Trust Certificateholders, by acceptance of a Trust Certificate, agree to take no action inconsistent with the foregoing intention. Each Trust Certificateholder by accepting a Trust Certificate, covenants and agrees that they will not institute, or join in instituting, any bankruptcy, reorganization, arrangement, insolvency or liquidation Proceeding, or other Proceeding under federal or State bankruptcy or similar laws, against NMAC, the Transferor or the Trust, for a period of one year and a day after: (a) payment in full of all amounts due to each Holder in respect of the UTI, the SUBI or any Other SUBI, against the UTI Beneficiary, the Titling Trust and the Titling Trustee, without the consent of 100% of the Holders of the 2004-A SUBI and each Other SUBI (excluding the UTI Beneficiary, the Transferor or any of their respective Affiliates); and (b) payment in full of the Notes, against the Transferor or the Trust; provided, however, that 100% of the Noteholders, or, if no Notes are then outstanding, 100% of the Trust Certificateholders (in each case excluding the Transferor and any of its Affiliates) may at any time institute or join in instituting any bankruptcy, reorganization, insolvency or liquidation proceeding against the Transferor or the Trust. Distributions on this Trust Certificate will be made as provided in the Trust Agreement by the Owner Trustee by check mailed to the Trust Certificateholder of record in the Certificate Register without the presentation or surrender of this Trust Certificate or the making of any notation hereon. Except as otherwise provided in the Trust Agreement and notwithstanding the above, the final payment on this Trust Certificate will be made after due notice by the Owner Trustee of the pendency of such payment and only upon presentation and surrender of this Trust Certificate at the office or agency maintained for the purpose by the Owner Trustee in The Borough of Manhattan in the The City of New York. Reference is hereby made to the further provisions of this Trust Certificate set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. (NALT 2004-A Amended and Restated Trust Agreement) A-4 Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Owner Trustee, by manual signature, this Trust Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or be valid for any purpose. THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. (NALT 2004-A Amended and Restated Trust Agreement) A-5 IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its individual capacity, has caused this Trust Certificate to be duly executed. Dated: October __, 2004 NISSAN AUTO LEASE TRUST 2004-A By: WILMINGTON TRUST COMPANY, as Owner Trustee By: ____________________________________ Name: Title: OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Trust Certificates referred to in the within-mentioned Trust Agreement. WILMINGTON TRUST COMPANY, or WILMINGTON TRUST COMPANY, as Owner Trustee as Owner Trustee By: ____________________, By: _______________________ Authenticating Agent By: _________________________________ (NALT 2004-A Amended and Restated Trust Agreement) A-6 [Reverse of Trust Certificate] The Trust Certificates do not represent an obligation of or an interest in the Transferor, the Servicer, the Owner 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 herein or in the Trust Agreement or the other Basic Documents. In addition, this Trust Certificate is not guaranteed by any governmental agency or instrumentality and is limited in right of payment to certain collections and recoveries and certain other amounts respecting the assets of the Trust, all as more specifically set forth in the Indenture. The Transferor will furnish, upon the request of any holder of a Trust Certificate, such information as is specified in paragraph (d)(4) of Rule 144A of the Securities Act of 1933, as amended, with respect to the Trust. The Trust Agreement may be amended by the Transferor and the Owner Trustee without the consent of any of the Securityholders to cure any ambiguity, correct or supplement any provision therein that may be inconsistent with any other provision therein, add any other provisions with respect to matters or questions arising under the Trust Agreement that are not inconsistent with the provisions of the Trust Agreement or add or amend any provision therein in connection with permitting transfers of the Trust Certificates; provided, however, that such action shall not, as evidenced by an Opinion of Counsel, materially adversely affect the interests of any Holder of a 2004-A SUBI Certificate (which, so long as any Notes are outstanding, shall include the Indenture Trustee) or any Securityholder. The Trust Agreement may also be amended from time to time by the Transferor and the Owner Trustee, with prior written notice to the Rating Agencies, with the consent of the Noteholders holding a Majority Interest of the Notes, voting as a single class, and, to the extent affected thereby, the consent of Trust Certificateholders holding not less than a Majority Interest of the Trust Certificates, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Trust Agreement or of modifying in any manner the rights of the Noteholders or the Trust Certificateholders. No such amendment shall, however, (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, distributions that are required to be made on the Notes or the Trust Certificates or (ii) reduce the percentage of the Certificate Balance or the Outstanding Amount required to consent to any such amendment, without the consent of the holders of 100% of all outstanding Trust Certificates (including Trust Certificates owned by the Trust, the Transferor, the Servicer (so long as NMAC or an Affiliate is the Servicer) and their respective Affiliates), and provided, further that an Opinion of Counsel shall be furnished to the Indenture Trustee and the Owner Trustee to the effect that such amendment shall not (A) affect the treatment of the Notes as debt for federal income tax purposes, (B) be deemed to cause a taxable exchange of the Notes for federal income tax purposes or (C) cause the Trust or the 2004-A SUBI Certificates to be classified as an association (or a publicly traded partnership) taxable as a corporation for federal and state income and franchise tax purposes. Notwithstanding the foregoing, the Trust Agreement may be amended at any time by the parties hereto to the extent reasonably necessary to assure that none of the Titling Trust, the Trust or the Transferor will be classified as an association (or a publicly traded partnership) taxable as a corporation for federal income tax purposes. (NALT 2004-A Amended and Restated Trust Agreement) A-7 As provided in the Trust Agreement, if and to the extent transfers are permitted and if the Transferor delivers an Opinion of Counsel that the Trust Certificates are transferable in accordance with the terms set forth therein, which opinion the Transferor has not determined can be given under the Internal Revenue Code and existing and proposed regulations thereunder, the transfer of this Trust Certificate is registerable in the Certificate Register upon surrender of this Trust Certificate for registration of transfer at the offices or agencies of the Certificate Registrar maintained by the Owner Trustee in the Borough of Manhattan, The City of New York, accompanied by a written instrument of transfer in form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by the Trust Certificateholder hereof or such Trust Certificateholder's attorney duly authorized in writing, and thereupon one or more new Trust Certificates of the same class and in authorized denominations evidencing the same aggregate interest in the Trust will be issued to the designated transferee. The initial Certificate Registrar appointed under the Trust Agreement is Wilmington Trust Company. The Trust Certificates are issuable only as registered Trust Certificates without coupons in minimum denominations of $250,000. As provided in the Trust Agreement and subject to certain limitations therein set forth, Trust Certificates are exchangeable for new Trust Certificates of authorized denominations evidencing the same aggregate denomination, as requested by the Holder surrendering the same. No service charge will be made for any such registration of transfer or exchange, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or governmental charge payable in connection therewith. The Owner Trustee, the Certificate Registrar and any agent of the Owner Trustee or the Certificate Registrar may treat the Person in whose name this Trust Certificate is registered as the owner hereof for all purposes, and none of the Owner Trustee, the Certificate Registrar or any such agent shall be affected by any notice to the contrary. The obligations and responsibilities created by the Trust Agreement and the trust created thereby shall terminate upon the payment to Trust Certificateholders of all amounts required to be paid to them pursuant to the Trust Agreement and the Indenture and the disposition of all property held as part of the Owner Trust Estate. Any prospective transferee of a Trust Certificate will be required to deliver a letter to the Transferor and the Certificate Registrar substantially in the form of Exhibit C to the Trust Agreement, which letter includes a representation that such prospective transferee is not a "Benefit Plan Investor" (as defined in Department of Labor Regulation 2510.3-101(f)(2)). The Trust Certificates may not be transferred, sold, pledged or otherwise disposed to or for the account of a Benefit Plan Investor. The Trust Certificates may not be acquired by a Benefit Plan. By accepting and holding this Trust Certificate, the holder hereof shall be deemed to have represented and warranted that it is not a Benefit Plan and is not acquiring this Trust Certificate or an interest therein for the account of a Benefit Plan. (NALT 2004-A Amended and Restated Trust Agreement) A-8 ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto ________________________________________________________________________________ PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (Please print or type name and address, including postal zip code, of assignee) the within Trust Certificate, and all rights thereunder, hereby irrevocably constituting and appointing ______________________________ attorney to transfer said Trust Certificate on the books of the Certificate Registrar, with full power of substitution in the premises. Dated: ___________________ _____________________________________* Signature Guaranteed: _____________________________________* * NOTICE: The signatures(s) on this Assignment must correspond with the name(s) as written on the face of the within Trust Certificate in every particular without alteration, enlargement or any change whatsoever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. (NALT 2004-A Amended and Restated Trust Agreement) A-9 EXHIBIT B FORM OF RULE 144A CERTIFICATE _________________, __________ Nissan Auto Leasing LLC II 990 West 190th Street Torrance, California 90502 Wilmington Trust Company, as Owner Trustee Rodney Square North 1100 N. Market Street Wilmington, Delaware 19890 Wilmington Trust Company, as Certificate Registrar 520 Madison Avenue 33rd Floor New York, New York 10019 Ladies and Gentlemen: This is to notify you as to the transfer of $_________ initial principal balance of Asset Backed Certificates (the "Trust Certificates") of Nissan Auto Lease Trust 2004-A (the "Trust"). The undersigned is the holder of the Trust Certificates and with this notice hereby deposits with Wilmington Trust Company (the "Owner Trustee") $____________ initial principal balance of Trust Certificates and requests that Trust Certificates in the same initial principal balance be issued, executed and authenticated and registered to the purchaser on ____________, 200__, as specified in the trust agreement dated July 28, 2004, as amended and restated by the Amended and Restated Trust Agreement dated October 28, 2004 among Wilmington Trust Company and Nissan Auto Leasing LLC II, as follows: Name: Denominations: Address: Taxpayer I.D. No: The undersigned represents and warrants that the undersigned (a) reasonably believes the purchaser is a "qualified institutional buyer," as defined in Rule 144A under the Securities Act of 1933, as amended (the "Act"), (b) such purchaser has acquired the Trust Certificates in a transaction effected in accordance with the exemption from the registration requirements of the Act provided by Rule 144A and (c) if the purchaser has purchased the Trust Certificates for one or more accounts for which it is acting as fiduciary or agent, (i) each such account is a qualified institutional buyer and (ii) the purchaser is acquiring Trust Certificates for its own account or for (NALT 2004-A Amended and Restated Trust Agreement) B-1 one or more institutional accounts for which it is acting as fiduciary or agent in a minimum amount equivalent to not less than $250,000 for each such account. Very truly yours, _________________________________________ By: _____________________________________ Name: Title: (NALT 2004-A Amended and Restated Trust Agreement) B-2 EXHIBIT C FORM OF INVESTMENT LETTER QUALIFIED INSTITUTIONAL BUYER ____________, __________ U.S. Bank National Association, as Indenture Trustee 400 North Michigan Avenue, 2nd Floor Chicago, Illinois 60601 Wilmington Trust Company, as Owner Trustee Rodney Square North 1100 N. Market Street Wilmington, Delaware 19890 Nissan Auto Leasing LLC II 990 West 190th Street Torrance, California 90502 Ladies and Gentlemen: In connection with our proposed purchase of $_________ aggregate principal amount of Certificates (the "Certificates") representing an undivided interest in the Nissan Auto Lease Trust 2004-A (the "Trust"), the investor on whose behalf the undersigned is executing this letter (the "Purchaser") confirms that: 1. Reference is made to the Prospectus, dated October 21, 2004 (the "Prospectus"), relating to the Certificates. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Prospectus. The Purchaser has received a copy of the Prospectus and such other information as the Purchaser deems necessary in order to make its investment decision and the Purchaser has been provided the opportunity to ask questions of, and receive answers from, the Servicer and Nissan Auto Leasing LLC II, as the Transferor, concerning the Servicer, the UTI Beneficiary and the Transferor and the terms and conditions of the offering described in the Prospectus. The Purchaser has received and understands the above, and understands that substantial risks are involved in an investment in the Certificates. The Purchaser represents that in making its investment decision to acquire the Certificates, the Purchaser has not relied on representations, warranties, opinions, projections, financial or other information or analysis, if any, supplied to it by any person, including you, the Servicer, the Transferor or the Owner Trustee or any of your or their affiliates, except as expressly contained in the Prospectus and in the other written information, if any, discussed above. The Purchaser has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of an investment in the Certificates, and the Purchaser is able to bear the substantial economic risks of such an investment. The Purchaser NALT 2004-A Amended and Restated Trust Agreement C-1 has relied upon its own tax, legal and financial advisors in connection with its decision to purchase the Certificates. 2. The Purchaser is (A) a "Qualified Institutional Buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended (the "1933 Act")) and has delivered to you a certificate substantially in the form attached hereto as Annex 1 or Annex 2, as applicable and (B) acquiring the Certificates for its own account or for the account of an investor of the type described in clause (A) above as to each of which the Purchaser exercises sole investment discretion. The Purchaser is purchasing the Certificates for investment purposes and not with a view to, or for, the offer or sale in connection with, a public distribution or in any other manner that would violate the 1933 Act or the securities or "Blue Sky" laws of any state. 3. The Purchaser understands that the Certificates have not been and will not be registered under the 1933 Act or under the securities or blue sky laws of any state, and that (i) if it decides to resell, pledge or otherwise transfer any Certificate, such Certificate may be resold, pledged or transferred without registration only to an entity that has delivered to the Transferor and the Owner Trustee a certification that it is a Qualified Institutional Buyer that purchases (1) for its own account or (2) for the account of such a Qualified Institutional Buyer, that is, in either case, aware that the resale, pledge or transfer is being made in reliance on said Rule 144A and (ii) it will, and each subsequent holder will be required to, notify any purchaser of any Certificate from it of the resale restrictions referred to in clause (i) above. 4. The Purchaser understands that each of Certificate will bear a legend to the following effect, unless otherwise agreed by the Transferor and the Owner Trustee: "THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE TRANSFEROR AND THE OWNER TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE TRUST AGREEMENT AND THE RECEIPT BY THE OWNER TRUSTEE AND THE NALT 2004-A Amended and Restated Trust Agreement C-2 TRANSFEROR OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR THAT SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES AND SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS TRUST CERTIFICATE MAY NOT BE PURCHASED OR HELD WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR ANY PLAN THAT IS SUBJECT TO TITLE I OF ERISA OR ANY "PLAN" AS DEFINED IN SECTION 4975(e)(1) THAT IS SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, or any entity whose underlying assets inCLUDE "PLAN ASSETS" BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY OR OTHERWISE (EACH A "BENEFIT PLAN"). BY ACCEPTANCE OF THIS TRUST CERTIFICATE OR AN INTEREST THEREIN, THE HOLDER HEREOF SHALL BE DEEMED TO REPRESENT AND WARRANT THAT ITS ACQUISITION AND HOLDING IS IN COMPLIANCE WITH THE FOREGOING RESTRICTION ON BENEFIT PLAN ASSETS." 5. If the Purchaser is acquiring any Certificate as a fiduciary or agent for one or more investor accounts, it has sole investment discretion with respect to each such account and that it has full power to make the acknowledgements, representations and agreements contained herein on behalf of such account. 6. The Purchaser is not (a) an "employee benefit plan" (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (b) a "plan" (as defined in Section 4975(e)(1) of the Code) that is subject to Section 4975 of the Code or otherwise (c) any entity whose underlying assets include plan assets by reason of a plan's investment in such entity or otherwise (each, a "Benefit Plan"). 7. The Purchaser has neither acquired nor will it transfer any Certificate it purchases (or any interest therein) or cause any such Certificates (or any interest therein) to be marketed on or through an "established securities market" within the meaning of Section 7704(b)(1) of the Code, including, without limitation, an over-the-counter-market or an interdealer quotation system that regularly disseminates firm buy or sell quotations. 8. The Purchaser either (A) is not, and will not become, a partnership, Subchapter S corporation or grantor trust for U.S. federal income tax purposes or (B) is such an entity, but none of the direct or indirect beneficial owners of any of the interests in such NALT 2004-A Amended and Restated Trust Agreement C-3 transferee have allowed or caused, or will allow or cause, 50% or more (or such other percentage as the Transferor may establish prior to the time of such proposed transfer) of the value of such interests to be attributable to such transferee's ownership of Certificates. 9. The Purchaser understands that no subsequent transfer of the Certificates is permitted unless (A) such transfer is of a Certificate with a denomination of at least $250,000, (B) it causes its proposed transferee to provide to the Transferor and the Certificate Registrar a letter substantially in the form of Exhibit C to the Trust Agreement, as applicable, or such other written statement as the Transferor shall prescribe and (C) the Transferor consents in writing to the proposed transfer, which consent shall be granted unless the Transferor determines that such transfer would create a risk that the Trust or the Titling Trust would be classified for federal or any applicable state tax purposes as an association (or a publicly traded partnership) taxable as a corporation; provided, however, that any attempted transfer that would either cause (1) the number of registered holders of Certificates to exceed 95 or (2) the number of holders of direct or indirect interests in the Titling Trust to exceed 50, shall be a void transfer. 10. The Purchaser understands that the opinion of counsel to the Trust that the Trust is not a publicly traded partnership taxable as a corporation is dependent in part on the accuracy of the representations in paragraphs 7, 8 and 9 above. 11. The Purchaser is a Person who is either (A)(1) a citizen or resident of the United States, (2) a corporation, partnership or other entity organized in or under the laws of the United States or any political subdivision thereof or (3) a Person not described in (A)(1) or (2) whose ownership of the Certificates is effectively connected with such Person's conduct of a trade or business within the United States (within the meaning of the Code) and its ownership of any interest in a Certificate will not result in any withholding obligation with respect to any payments with respect to the Certificates by any Person (other than withholding, if any, under Section 1446 of the Code) or (B) an estate the income of which is includible in gross income for federal income tax purposes regardless of source or a trust if the court within the United States is able to exercise primary supervision of the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the Trust. It agrees that it will provide a certification of non-foreign status signed under penalty of perjury and, alternatively, that if it is a Person described in clause (A)(3) above, it will furnish to the Transferor and the Owner Trustee a properly executed IRS Form W-8ECI and a new W-8ECI upon the expiration or obsolescence of any previously delivered form (and such other certifications, representations or Opinions of Counsel as may be requested by the Transferor and the Owner Trustee). 12. The Purchaser agrees that if at some time in the future it wishes to transfer or exchange any of the Certificates, it will not transfer or exchange any of the Certificates unless such transfer or exchange is in accordance with Section 3.04 of the Trust Agreement. The Purchaser understands that any purported transfer of the Certificates (or any interest therein) in contravention of any of the restrictions and conditions in the Trust Agreement, as applicable, shall be a void, and the purported transferee in such transfer shall not be recognized by the Trust or any other Person as a Certificateholder, as the case may, be for any purpose. NALT 2004-A Amended and Restated Trust Agreement C-4 13. The Purchaser hereby irrevocably requests you to arrange for definitive Certificates representing the Certificates purchased by the Purchaser to be registered and delivered promptly after the Closing Date as follows:
Principal Amount Registered in Deliver Definitive of Definitive Certificate: Name of: Certificate to: - -------------------------- ------------- ------------------ - -------------------------- ------------- ------------------ - -------------------------- ------------- ------------------ - -------------------------- ------------- ------------------
You and the Owner Trustee are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceeding or official inquiry with respect to the matters covered hereby. Very truly yours, By: ________________________________ Name: Title: NALT 2004-A Amended and Restated Trust Agreement C-5 ANNEX 1 TO EXHIBIT C QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A [For Transferees Other Than Registered Investment Companies] The undersigned (the "Purchaser") hereby certifies as follows to the addressees of the Rule 144A Representation Letter to which this certification is attached with respect to the Certificate described therein: (i) As indicated below, the undersigned is the President, Chief Financial Officer, Senior Vice President or other executive officer of the Purchaser. (ii) In connection with purchases by the Purchaser, the Purchaser is a "qualified institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended, because (i) the Purchaser owned and/or invested on a discretionary basis $__________(1) in securities (except for the excluded securities referred to below) as of the end of the Purchaser's most recent fiscal year (such amount being calculated in accordance with Rule 144A) and (ii) the Purchaser satisfies the criteria in the category marked below. - Corporation, etc. The Purchaser is a corporation (other than a bank, savings and loan association or similar institution), Massachusetts or similar business trust, partnership, or charitable organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended. - Bank. The Purchaser (a) is a national bank or banking institution organized under the laws of any state, territory or the District of Columbia, the business of which is substantially confined to banking and is supervised by the state or territorial banking commission or similar official or is a foreign bank or equivalent institution, and (b) has an audited net worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto. - Savings and Loan. The Purchaser (a) is a savings and loan association, building and loan association, cooperative bank, homestead association or similar institution, which is supervised and examined by a state or federal authority having supervision over any such institutions or is a foreign savings and loan association or equivalent institution and (b) has an audited net - ----------------- (1) Purchaser must own and/or invest on a discretionary basis at least $100,000,000 in securities unless Purchaser is a dealer, and, in that case, Purchaser must own and/or invest on a discretionary basis at least $10,000,000 in securities. NALT 2004-A Amended and Restated Trust Agreement C-6 worth of at least $25,000,000 as demonstrated in its latest annual financial statements, a copy of which is attached hereto. - Broker-dealer. The Purchaser is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). - Insurance Company. The Purchaser is an insurance company whose primary and predominant business activity is the writing of insurance or the reinsuring of risks underwritten by insurance companies and which is subject to supervision by the insurance commissioner or a similar official or agency of a state, territory or the District of Columbia. - State or Local Plan. The Purchaser is a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of the state or its political subdivisions, for the benefit of its employees (a "Plan"). - ERISA Plan. The Purchaser is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 (an "ERISA Plan"). - Investment Advisor. The Purchaser is an investment advisor registered under the Investment Advisors Act of 1940. - Small Business Investment Company. The Purchaser is a small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958. - Business Development Company. The Purchaser is a business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940. - Trust Fund. The Purchaser is a trust fund whose trustee is a bank or trust company and whose participants are exclusively state or local Plans or ERISA Plans as defined above, and no participant of the Purchaser is an individual retirement account or an H.R. 10 (Keogh) plan. (iii) The term "securities" as used herein does not include (i) securities of issuers that are affiliated with the Purchaser, (ii) securities that are part of an unsold allotment to or subscription by the Purchaser, if the Purchaser is a dealer, (iii) bank deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase agreements, (vi) securities owned but subject to a repurchase agreement and (vii) currency, interest rate and commodity swaps. NALT 2004-A Amended and Restated Trust Agreement C-7 (iv) For purposes of determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Purchaser, the Purchaser used the cost of such securities to the Purchaser and did not include any of the securities referred to in the preceding paragraph, except (i) where the Purchaser reports its securities holdings in its financial statements on the basis of their market value, and (ii) no current information with respect to the cost of those securities has been published. If clause (ii) in the preceding sentence applies, the securities may be valued at their market value. Further, in determining such aggregate amount, the Purchaser may have included securities owned by subsidiaries of the Purchaser, but only if such subsidiaries are consolidated with the Purchaser in its financial statements prepared in accordance with generally accepted accounting principles and if the investments of such subsidiaries are managed under the Purchaser's direction. However, such securities were not included if the Purchaser is a majority-owned, consolidated subsidiary of another enterprise and the Purchaser is not itself a reporting company under the Exchange Act. (v) The Purchaser acknowledges that it is familiar with Rule 144A and understands that the seller to it and other parties related to the Certificates are relying and will continue to rely on the statements made herein because one or more sales to the Purchaser may be in reliance on Rule 144A. (vi) Until the date of purchase of the Certificates, the Purchaser will notify each of the parties to which this certification is made of any changes in the information and conclusions herein. Until such notice is given, the Purchaser's purchase of the Certificates will constitute a reaffirmation of this certification as of the date of such purchase. In addition, if the Purchaser is a bank or savings and loan is provided above, the Purchaser agrees that it will furnish to such parties updated annual financial statements promptly after they become available. _________________________________ Name of Purchaser By: _____________________________ Name: Title: Dated: __________________________ NALT 2004-A Amended and Restated Trust Agreement C-8 ANNEX 2 TO EXHIBIT C QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A [For Transferees That are Registered Investment Companies] The undersigned (the "Purchaser") hereby certifies as follows to the addressees of the Rule 144A Representation Letter to which this certification is attached with respect to the Certificate described therein: (i) As indicated below, the undersigned is the President, Chief Financial Officer or Senior Vice President of the Purchaser or, if the Purchaser is a "qualified institutional buyer" as that term is defined in Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended, because the Purchaser is part of a Family of Investment Companies (as defined below), is such an officer of the Adviser. (ii) In connection with purchases by the Purchaser, the Purchaser is a "qualified institutional buyer" as defined in Rule 144A because (i) the Purchaser is an investment company registered under the Investment Company Act of 1940, as amended, and (ii) as marked below, the Purchaser alone, or the Purchaser's Family of Investment Companies, owned at least $100,000,000 in securities (other than the excluded securities referred to below) as of the end of the Purchaser's most recent fiscal year. For purposes of determining the amount of securities owned by the Purchaser or the Purchaser's Family of Investment Companies, the cost of such securities was used, except (i) where the Purchaser or the Purchaser's Family of Investment Companies reports its securities holdings in its financial statements on the basis of their market value, and (ii) no current information with respect to the cost of those securities has been published. If clause (ii) in the preceding sentence applies, the securities may be valued at market. - The Purchaser owned $__________ in securities (other than the excluded securities referred to below) as of the end of the Purchaser's most recent fiscal year (such amount being calculated in accordance with Rule 144A). - The Purchaser is part of a Family of Investment Companies which owned in the aggregate $__________ in securities (other than the excluded securities referred to below) as of the end of the Purchaser's most recent fiscal year (such amount being calculated in accordance with Rule 144A). (iii) The term "Family of Investment Companies" as used herein means two or more registered investment companies (or series thereof) that have the same investment adviser or investment advisers that are affiliated (by virtue of being majority owned subsidiaries of the same parent or because one investment adviser is a majority owned subsidiary of the other). NALT 2004-A Amended and Restated Trust Agreement C-9 (iv) The term "securities" as used herein does not include (i) securities of issuers that are affiliated with the Purchaser or are part of the Purchaser's Family of Investment Companies, (ii) bank deposit notes and certificates of deposit, (iii) loan participations, (iv) repurchase agreements, (v) securities owned but subject to a repurchase agreement and (vi) currency, interest rate and commodity swaps. (v) The Purchaser is familiar with Rule 144A and understands that the parties listed in the Rule 144A Representation Letter to which this certification relates are relying and will continue to rely on the statements made herein because one or more sales to the Purchaser will be in reliance on Rule 144A. In addition, the Purchaser will only purchase for the Purchaser's own account. (vi) Until the date of purchase of the Transferor Certificate, the undersigned will notify the parties listed in the Rule 144A Transferee Certificate to which this certification relates of any changes in the information and conclusions herein. Until such notice is given, the Purchaser's purchase of the Certificates will constitute a reaffirmation of this certification by the undersigned as of the date of such purchase. ______________________________________ Name of Purchaser or Advisor By: __________________________________ Name: Title: IF AN ADVISOR: ______________________________________ Name of Purchaser Dated: _______________________________ NALT 2004-A Amended and Restated Trust Agreement C-10 EX-10.5 7 a02810exv10w5.txt EXHIBIT 10.5 EXHIBIT 10.5 - -------------------------------------------------------------------------------- NISSAN AUTO LEASE TRUST 2004-A, NISSAN MOTOR ACCEPTANCE CORPORATION, as Administrative Agent, NISSAN AUTO LEASING LLC II, as Transferor, and U.S. Bank National Association, as Indenture Trustee ------------------------------- TRUST ADMINISTRATION AGREEMENT Dated as of October 28, 2004 ------------------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE 1.01 Capitalized Terms; Interpretive Provisions.................................................... 1 1.02 Duties of the Administrative Agent............................................................ 1 1.03 Records....................................................................................... 6 1.04 Compensation.................................................................................. 6 1.05 Additional Information to be Furnished to the Trust........................................... 6 1.06 Independence of the Administrative Agent...................................................... 6 1.07 No Joint Venture.............................................................................. 7 1.08 Other Activities of Administrative Agent...................................................... 7 1.09 Term of Agreement; Resignation and Removal of Administrative Agent............................ 7 1.10 Action Upon Termination, Resignation or Removal............................................... 8 1.11 Notices....................................................................................... 8 1.12 Amendments.................................................................................... 9 1.13 Successors and Assigns........................................................................ 9 1.14 Governing Law................................................................................. 9 1.15 Headings...................................................................................... 10 1.16 Counterparts.................................................................................. 10 1.17 Severability.................................................................................. 10 1.18 Limitation of Liability of Owner Trustee and Indenture Trustee................................ 10 1.19 Third-Party Beneficiary....................................................................... 10
-i- TRUST ADMINISTRATION AGREEMENT This Trust Administration Agreement (this "Agreement"), dated as of October 28, 2004, is among Nissan Auto Lease Trust 2004-A, a Delaware statutory trust (the "Trust"), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), as administrative agent (in such capacity, the "Administrative Agent"), Nissan Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), as transferor (the "Transferor"), and U.S. Bank National Association, a national banking association ("U.S. Bank"), as indenture trustee (the "Indenture Trustee"). RECITALS WHEREAS, the Trust was formed pursuant to a trust agreement, dated as of July 28, 2004, as amended and restated as of October 28, 2004 (the "Trust Agreement"), between the Transferor and Wilmington Trust Company, as trustee (the "Owner Trustee"); and WHEREAS, the parties desire to enter into this agreement to provide for, among other things, the Administrative Agent's provision of certain services to the Trust and the Owner Trustee. NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: 1.01 Capitalized Terms; Interpretive Provisions. (a) Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Agreement of Definitions, dated as of October 28, 2004, by and among the Trust, as issuer (the "Issuer"), NILT Trust, a Delaware statutory trust, as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary," respectively), Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), NMAC, in its individual capacity, as Administrative Agent and as servicer (in such capacity, the "Servicer"), NALL II, NILT, Inc., a Delaware corporation, as trustee to the Titling Trust (the "Titling Trustee"), Wilmington Trust Company, as Owner Trustee and Delaware trustee (in such capacity, the "Delaware Trustee") and U.S. Bank, as Indenture Trustee and trust agent (in such capacity, the "Trust Agent"). (b) For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Agreement include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as "herein", "hereof" and the like shall refer to this Agreement as a whole and not to any particular part, Article or Section within this Agreement, (iii) the term "include" and all variations thereof shall mean "include without limitation" and (iv) the term "or" shall include "and/or". 1.02 Duties of the Administrative Agent. Trust Administration Agreement 1 (a) The Administrative Agent agrees to perform all its duties as Administrative Agent and the duties of the Trust and the Owner Trustee under the Related Documents. In addition, the Administrative Agent shall consult with the Owner Trustee regarding the duties of the Trust or the Owner Trustee under the Related Documents. The Administrative Agent shall monitor the performance of the Trust and shall advise the Owner Trustee when action is necessary to comply with the respective duties of the Trust and the Owner Trustee under the Related Documents. The Administrative Agent shall prepare for execution by the Trust, or shall cause the preparation by other appropriate persons of, all such documents, reports, notices, filings, instruments, certificates and opinions that it shall be the duty of the Trust or the Owner Trustee to prepare, file or deliver pursuant to the Related Documents. In addition, the Administrative Agent or the Transferor shall execute and deliver any filings, certificates, affidavits or other instruments required under the Sarbanes-Oxley Act of 2002, to the extent permitted by applicable law. In furtherance of the foregoing, the Administrative Agent shall take (or, in the case of the immediately preceding sentence, cause to be taken) all appropriate action that the Trust or the Owner Trustee is required to take pursuant to the Indenture, including, without limitation, such of the foregoing as are required with respect to the following matters under the Indenture (references are to Sections of the Indenture): (i) the duty to cause the Note Register to be kept and to give the Indenture Trustee notice of any appointment of a new Note Registrar and the location, or change in location, of the Note Register (Section 2.04); (ii) the preparation of or obtaining of the documents and instruments required for execution and authentication of the Notes and delivery of the same to the Indenture Trustee (Section 2.02); (iii) the maintenance of an office in the Borough of Manhattan, The City of New York, for registration of transfer or exchange of Notes (Section 3.02); (iv) the duty to cause newly appointed Paying Agents, if any, to deliver to the Indenture Trustee the instrument specified in the Indenture regarding funds held in trust (Section 3.03); (v) the direction to the Indenture Trustee to deposit monies with Paying Agents, if any, other than the Indenture Trustee (Section 3.03); (vi) the obtaining and preservation of the Trust's qualifications to do business (Section 3.04); (vii) the preparation of all supplements and amendments to the Indenture and all financing statements, continuation statements, instruments of further assurance and other instruments and the taking of such other action as are necessary or advisable to protect the Owner Trust Estate (Section 3.05); (viii) the delivery of the Opinion of Counsel on the Closing Date and the annual delivery of Opinions of Counsel, if requested, as to the Owner Trust Estate, and the annual Trust Administration Agreement 2 delivery of the Officer's Certificate and certain other statements as to compliance with the Indenture (Sections 3.06 and 3.09); (ix) the identification to the Indenture Trustee in an Officer's Certificate of any Person with whom the Trust has contracted to perform its duties under the Indenture (Section 3.07(b)); (x) the notification of the Indenture Trustee and each Rating Agency of a Servicer Default under the Servicing Agreement and, if such Servicer Default arises from the failure of the Servicer to perform any of its duties or obligations under the Servicing Agreement with respect to the 2004-A SUBI Assets, the taking of all reasonable steps available to remedy such failure (Section 3.07(d)); (xi) the delivery of written notice to the Indenture Trustee and each Rating Agency of each Indenture Default (Section 3.11); (xii) the delivery of prior written notice to each Rating Agency of the Issuer's consolidation or merger with or into any other Person (Section 3.15(a)); (xiii) the delivery of prior written notice to each Rating Agency of the Issuer's conveyance or transfer of any of its properties or assets to any Person (Section 3.15(b)); (xiv) the preparation and obtaining of documents and instruments required for the release of the Trust from its obligations under the Indenture (Section 4.01); (xv) the monitoring of the Trust's obligations as to the satisfaction and discharge of the Indenture and the preparation of an Officer's Certificate and the obtaining of the Opinion of Counsel and the Independent Certificate relating thereto (Section 4.01); (xvi) the preparation and delivery of notice to the Rating Agencies of the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee (Section 6.08); (xvii) the preparation of any written instruments required to confirm more fully the authority of any co-trustee or separate trustee and any written instruments necessary in connection with the resignation or removal of the Indenture Trustee or any co-trustee or separate trustee (Sections 6.08 and 6.10); (xviii) the furnishing of the Indenture Trustee with the names and addresses of Noteholders during any period when the Indenture Trustee is not the Note Registrar (Section 7.01); (xix) the furnishing of certain reports with the Indenture Trustee (Section 7.03); (xx) the taking of all other actions necessary with respect to the investment of funds in the Note Distribution Account (Sections 8.02 and 8.05); Trust Administration Agreement 3 (xxi) the preparation of an Issuer Request for the release of the Owner Trust Estate (Section 8.06); (xxii) the preparation of Issuer Requests and the obtaining of Opinions of Counsel with respect to the execution of supplemental indentures (Sections 9.01 and 9.02); (xxiii) the execution of new Notes conforming to any supplemental indenture (Section 9.05); (xxiv) the duty to notify each Rating Agency of redemption of the Notes or to cause the Indenture Trustee to provide such notification (Section 10.02); (xxv) the preparation and delivery of all Officer's Certificates, Opinions of Counsel and Independent Certificates with respect to any requests by the Trust to the Indenture Trustee to take any action under the Indenture (Section 11.01(a), (b)); (xxvi) the preparation and delivery of Officer's Certificates and the obtaining of Independent Certificates, if necessary, for the release of property from the Lien of the Indenture (Section 11.01(b)); (xxvii) the notification of each Rating Agency, upon the failure of the Trust, the Owner Trustee or the Indenture Trustee to give such notification, of any information required pursuant to Section 11.04 of the Indenture (Section 11.04); and (xxviii) the preparation of Definitive Notes in accordance with the instructions of the Clearing Agency (Section 2.11). (b) The Administrative Agent shall: (i) pay the Owner Trustee from time to time reasonable compensation for all services rendered by the Owner Trustee under the Trust Agreement (which compensation shall not be limited by any provision of law in regard to the compensation for a trustee of an express trust); and (ii) except as otherwise expressly provided in the Trust Agreement, reimburse the Owner Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Owner Trustee in accordance with any provision of the Trust Agreement (including reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith. (c) In addition to the duties set forth in Sections 1.02(a) and (b), the Administrative Agent shall perform such calculations and shall prepare or shall cause the preparation by other appropriate Persons of, and shall execute on behalf of the Trust or the Owner Trustee, all such documents, notices, reports, filings, instruments, certificates and opinions that the Trust or the Owner Trustee is required to prepare, file or deliver pursuant to the Related Documents, and at the request of the Owner Trustee shall take all appropriate action that the Trust or the Owner Trust Administration Agreement 4 Trustee is required to take pursuant to the Related Documents. Subject to Section 1.06, and in accordance with the directions of the Owner Trustee, the Administrative Agent shall administer, perform or supervise the performance of such other activities in connection with the Collateral (including the Related Documents) as are not covered by any of the foregoing provisions and as are expressly requested by the Owner Trustee and are reasonably within the capability of the Administrative Agent. (d) Notwithstanding anything in this Agreement or the Related Documents to the contrary, the Administrative Agent shall be responsible for promptly notifying the Owner Trustee if any withholding tax is imposed on the Trust's payments (or allocations of income) to a Trust Certificateholder as contemplated in Section 5.02(d) of the Trust Agreement. Any such notice shall specify the amount of any withholding tax required to be withheld by the Owner Trustee pursuant to such provision. (e) Notwithstanding anything in this Agreement or the Related Documents to the contrary, the Administrative Agent shall be responsible for performance of the duties of the Owner Trustee set forth in Sections 5.03 and 9.01(c) of the Trust Agreement with respect to notifying the Trust Certificateholders of the Payment Date on which their Trust Certificates will be repaid and Section 5.04(a) of the Trust Agreement with respect to accounting and reports to Trust Certificateholders; provided, however, that the Owner Trustee shall retain responsibility for the distribution of the documentation necessary to enable each Trust Certificateholder to prepare its federal and state income tax returns. (f) The Administrative Agent shall satisfy its obligations with respect to clauses (d) and (e) above by retaining, at the expense of the Trust, payable by the Administrative Agent, Accountants acceptable to the Owner Trustee, which shall perform the obligations of the Administrative Agent thereunder. (g) The Administrative Agent shall perform any duties expressly required to be performed by the Administrative Agent under the Trust Agreement. (h) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrative Agent may enter into transactions or otherwise deal with any of its Affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Trust and shall be, in the Administrative Agent's opinion, no less favorable to the Trust than would be available from unaffiliated parties. (i) With respect to matters that in the reasonable judgment of the Administrative Agent are non-ministerial, the Administrative Agent shall not take any action unless within a reasonable time before the taking of such action the Administrative Agent shall have notified the Owner Trustee of the proposed action and the Owner Trustee shall not have withheld consent or provided an alternative direction. For the purpose of the preceding sentence, "non-ministerial matters" shall include: (i) amendment of or any supplement to the Indenture; Trust Administration Agreement 5 (ii) the initiation of any claim or lawsuit by the Trust and the compromise of any action, claim or lawsuit brought by or against the Trust (other than in connection with the collection of the Leases); (iii) the amendment, change or modification of the Related Documents; (iv) the appointment of successor Note Registrars, successor Paying Agents and successor Indenture Trustees pursuant to the Indenture or the appointment of successor Administrative Agents or successor Servicers, or the consent to the assignment by the Note Registrar, any Paying Agent or Indenture Trustee of its obligations under the Indenture; (v) the removal of the Indenture Trustee; and (vi) the provision to the Rating Agencies copies of any amendment or supplement to the Interest Rate Cap Agreement and the notification of the Interest Rate Cap Counterparty of any proposed amendment or supplement to any of the Basic Documents. Notwithstanding anything to the contrary in this Agreement, the Administrative Agent shall not be obligated to, and shall not, (i) make any payments to the Noteholders under the Related Documents, (ii) sell the Owner Trust Estate pursuant to Section 5.02 of the Indenture, (iii) take any other action that the Trust directs the Administrative Agent not to take on its behalf or (iv) take any other action which may be construed as having the effect of varying the investment of the Trust Certificateholders. 1.03 Records. The Administrative Agent shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Trust and the Transferor at any time during normal business hours. 1.04 Compensation. As compensation for the performance of the Administrative Agent's obligations under this Agreement and as reimbursement for its expenses related thereto, the Administrative Agent shall be entitled to an annual payment of compensation which shall be solely an obligation of the Servicer. 1.05 Additional Information to be Furnished to the Trust. The Administrative Agent shall furnish to the Trust from time to time such additional information regarding the Collateral as the Trust shall reasonably request. 1.06 Independence of the Administrative Agent. For all purposes of this Agreement, the Administrative Agent shall be an independent contractor and shall not be subject to the supervision of the Trust or the Owner Trustee with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Trust, the Administrative Agent shall have no authority to act for or represent the Trust or the Owner Trustee in any way and shall not otherwise be deemed an agent of the Trust or the Owner Trustee. Trust Administration Agreement 6 1.07 No Joint Venture. Nothing contained in this Agreement (i) shall constitute the Administrative Agent and either of the Trust or the Owner Trustee as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on any of them or (iii) shall be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others. 1.08 Other Activities of Administrative Agent. Nothing herein shall prevent the Administrative Agent or its Affiliates from engaging in other businesses or, in its sole discretion, from acting in a similar capacity as an Administrative Agent for any other Person or entity, even though such person or entity may engage in business activities similar to those of the Trust, the Owner Trustee or the Indenture Trustee. 1.09 Term of Agreement; Resignation and Removal of Administrative Agent. This Agreement shall continue in force until the dissolution of the Trust, upon which event this Agreement shall automatically terminate. (a) Subject to Section 1.09(e), the Administrative Agent may resign its duties hereunder by providing the Trust with at least 60 days' prior written notice. (b) Subject to Section 1.09(e), the Trust may remove the Administrative Agent without cause by providing the Administrative Agent with at least 60 days' prior written notice. (c) Subject to Section 1.09(e), at the sole option of the Trust, the Administrative Agent may be removed immediately upon written notice of termination from the Trust to the Administrative Agent if any of the following events shall occur: (i) the Administrative Agent shall default in the performance of any of its duties under this Agreement and, after notice of such default, shall not cure such default within ten days (or, if such default cannot be cured in such time, shall not give within ten days such assurance of cure as shall be reasonably satisfactory to the Trust); (ii) the existence of any proceeding or action, or the entry of a decree or order for relief by a court or regulatory authority having jurisdiction over the Administrative Agent in an involuntary case under the federal bankruptcy laws, as now or hereafter in effect, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Administrative Agent or of any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Administrative Agent and the continuance of any such action, proceeding, decree or order unstayed and, in the case of any such order or decree, in effect for a period of 90 consecutive days; or (iii) the commencement by the Administrative Agent of a voluntary case under the federal bankruptcy laws, as now or hereafter in effect, or the consent by the Administrative Agent to the appointment of or taking of possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Administrative Agent or of any substantial part of its property or the making by the Administrative Agent of an assignment for the benefit of Trust Administration Agreement 7 creditors or the failure by the Administrative Agent generally to pay its debts as such debts become due or the taking of corporate action by the Administrative Agent in furtherance of any of the foregoing. The Administrative Agent agrees that if any of the events specified in clauses (ii) or (iii) above shall occur, it shall give written notice thereof to the Trust and the Indenture Trustee within seven days after the occurrence of such event. (d) No resignation or removal of the Administrative Agent pursuant to this Section shall be effective until (i) a successor Administrative Agent shall have been appointed by the Trust and (ii) such successor Administrative Agent shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Administrative Agent is bound hereunder. (e) The appointment of any successor Administrative Agent shall be effective only after satisfaction of the Rating Agency Condition with respect to the proposed appointment. (f) Subject to Sections 1.09(d) and 1.09(e), the Administrative Agent acknowledges that upon the appointment of a successor Servicer pursuant to the Servicing Agreement, the Administrative Agent shall immediately resign and such successor Servicer shall automatically become the Administrative Agent under this Agreement; provided, however, that this paragraph shall not apply at such times as the Titling Trustee shall be the successor Servicer. 1.10 Action Upon Termination, Resignation or Removal. Promptly upon the effective date of termination of this Agreement pursuant to the first sentence of Section 1.09 or the resignation or removal of the Administrative Agent pursuant to Section 1.09(a), (b) or (c), respectively, the Administrative Agent shall be entitled to be paid all fees and reimbursable expenses accruing to it to the date of such termination, resignation or removal. The Administrative Agent shall forthwith upon such termination pursuant to the first sentence of Section 1.09 deliver to the Trust all property and documents representing or relating to the Collateral then in the custody of the Administrative Agent. In the event of the resignation or removal of the Administrative Agent pursuant to Section 1.09(a), (b) or (c), respectively, the Administrative Agent shall cooperate with the Trust and take all reasonable steps requested to assist the Trust in making an orderly transfer of the duties of the Administrative Agent. 1.11 Notices. All demands, notices and communications hereunder shall be in writing and shall be delivered or mailed by registered or certified first-class United States mail, postage prepaid, hand delivery, prepaid courier service, or by telecopier, and addressed in each case as follows: (i) if to the Trust or the Administrative Agent, at 990 West 190th Street, Torrance, California 90502 (telecopier no. (310) 324-2542), Attention: Treasurer; (ii) if to the Owner Trustee, at Wilmington Trust Company, Rodney Square North, 1100 N. Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust Administration]; (iii) if to the Indenture Trustee, at U.S. Bank National Association, 209 South LaSalle Street, Suite 300, Chicago, Illinois 60604 (telecopier no. (312) 325-8905); (iv) if to Moody's, to Moody's Investors Service, 99 Church Street, New York, New York 10007 (telecopier no. (212) 553-7820), Attention: ABS Monitoring Group; (iv) if to Standard & Poor's, to Standard & Poor's, a division of The McGraw-Hill Companies, Inc., 55 Water Street, New Trust Administration Agreement 8 York, New York 10041 (telecopier no. (212) 208-0030), Attention: Asset Backed Surveillance Group; or (v) at such other address as shall be designated by any of the foregoing in a written notice to the other parties hereto. Delivery shall occur only upon receipt or reported tender of such communication by an officer of the recipient entitled to receive such notices located at the address of such recipient for notices hereunder. 1.12 Amendments. This Agreement may be amended from time to time by a written amendment duly executed and delivered by the parties hereto, with the written consent of the Owner Trustee but without the consent of the Securityholders, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Securityholders; provided, that such amendment will not, in the Opinion of Counsel satisfactory to the Indenture Trustee, materially and adversely affect the interest of any Noteholder or Trust Certificateholder. This Agreement may also be amended by the parties hereto with the written consent of the Owner Trustee and the holders of Notes evidencing at least a majority of the Outstanding Amount and the holders of Trust Certificates evidencing at least a majority of the Certificate Balance for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of Securityholders; provided, however, that no such amendment may (i) increase or reduce in any manner the amount of, or accelerate or delay the timing of, collections of payments on the 2004-A Leases or distributions that are required to be made for the benefit of the Securityholders or (ii) reduce the aforesaid percentage of the holders of Notes and Trust Certificates which are required to consent to any such amendment, without the consent of the holders of all outstanding Notes and Trust Certificates. Notwithstanding the foregoing, the Administrative Agent may not amend this Agreement without the permission of the Transferor, which permission shall not be unreasonably withheld. 1.13 Successors and Assigns. This Agreement may not be assigned by the Administrative Agent unless such assignment is previously consented to in writing by the Trust and the Owner Trustee and subject to the satisfaction of the Rating Agency Condition in respect thereof. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrative Agent is bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the Administrative Agent without the consent of the Trust or the Owner Trustee to a corporation or other organization that is a successor (by merger, consolidation or purchase of assets) to the Administrative Agent; provided, that such successor organization executes and delivers to the Trust, the Owner Trustee and the Indenture Trustee an agreement, in form and substance reasonably satisfactory to the Owner Trustee and the Indenture Trustee, in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrative Agent is bound hereunder. Subject to the foregoing, this Agreement shall bind any successors or assigns of the parties hereto. 1.14 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to its conflict of law provisions (other than Section 5-1401 of the General Obligations Law of the State of New York). Trust Administration Agreement 9 1.15 Headings. The headings of the various Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. 1.16 Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. 1.17 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 1.18 Limitation of Liability of Owner Trustee and Indenture Trustee. (a) Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Wilmington Trust Company in its capacity as Owner Trustee of the Trust and in no event shall Wilmington Trust Company in its individual capacity or any beneficial owner of the Trust have any liability for the representations, warranties, covenants, agreements or other obligations of the Trust hereunder, as to all of which recourse shall be had solely to the assets of the Trust. For all purposes of this Agreement, in the performance of any duties or obligations of the Trust hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles Six, Seven and Eight of the Trust Agreement. (b) Notwithstanding anything contained herein to the contrary, this Agreement has been executed by U.S. Bank as Indenture Trustee and in no event shall U.S. Bank have any liability for the representations, warranties, covenants, agreements or other obligations of the Trust hereunder or in any of the certificates, notices or agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the Trust. 1.19 Third-Party Beneficiary. The Owner Trustee is a third-party beneficiary to this Agreement and is entitled to the rights and benefits hereunder and may enforce the provisions hereof as if it were a party hereto. Trust Administration Agreement 10 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the day and year first above written. NISSAN AUTO LEASE TRUST 2004-A, as Trust By: Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee By: /s/ Joann A. Rozell --------------------------------- Name: Joann A. Rozell Title: Financial Services Officer NISSAN AUTO LEASING LLC II, as Transferor By: /s/ Joji Tagawa ------------------------------------- Name: Joji Tagawa Title: Treasurer U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee By: /s/ Patricia M. Child ------------------------------------- Name: Patricia M. Child Title: Vice President NISSAN MOTOR ACCEPTANCE CORPORATION, as Administrative Agent By: /s/ Steven R. Lambert ------------------------------------- Name: Steven R. Lambert Title: President Trust Administration Agreement S-1 EX-10.6 8 a02810exv10w6.txt EXHIBIT 10.6 EXHIBIT 10.6 - -------------------------------------------------------------------------------- NISSAN MOTOR ACCEPTANCE CORPORATION, NISSAN-INFINITI LT, NILT TRUST, NISSAN AUTO LEASING LLC II, NISSAN AUTO LEASE TRUST 2004-A, and U.S. Bank National Association, as Indenture Trustee --------------------------------- BACK-UP SECURITY AGREEMENT Dated as of October 28, 2004 --------------------------------- - -------------------------------------------------------------------------------- ARTICLE I DEFINITIONS 1.01 Definitions..................................................................... 2 1.02 Interpretive Provisions......................................................... 2 ARTICLE II SECURITY INTEREST 2.01 Grant of Security Interest...................................................... 2 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........................................... 3 2.06 Back-Up Rights of Indenture Trustee............................................. 4 ARTICLE III MISCELLANEOUS 3.01 Amendments...................................................................... 4 3.02 Governing Law................................................................... 4 3.03 Severability of Provisions...................................................... 4 3.04 Counterparts.................................................................... 4 3.05 Successors and Assigns.......................................................... 4 3.06 Further Assurances.............................................................. 4 3.07 Limitation of Liability of Owner Trustee........................................ 4 3.08 Notices......................................................................... 5
i BACK-UP SECURITY AGREEMENT This Back-Up Security Agreement, dated as of October 28, 2004, 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 ("NALL II"), Nissan Auto Lease Trust 2004-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 October 28, 2004 (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 a 2004-A SUBI Supplement, dated as of October 28, 2004 (together with the Titling Trust Agreement, the "SUBI Trust Agreement"), to establish a special unit of beneficial interest, the "2004-A SUBI" ("2004-A SUBI"); WHEREAS, in connection with the SUBI Trust Agreement a separate portfolio of leases (the "2004-A Leases"), the vehicles that are leased under the 2004-A Leases (the "2004-A Vehicles"), and certain other related Trust Assets have been allocated to the 2004-A SUBI; WHEREAS, the Titling Trust has issued a certificate evidencing a 100% beneficial interest in the 2004-A SUBI (the "2004-A SUBI Certificate") to NILT Trust; WHEREAS, the Trust was formed pursuant to a trust agreement, dated as of July 28, 2004, as amended and restated as of October 28, 2004 (the "Trust Agreement"), between NALL II and Wilmington Trust Company, as Owner Trustee; WHEREAS, pursuant to the SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the "SUBI Certificate Transfer Agreement"), between NILT Trust and NALL II, NILT Trust has transferred and assigned to NALL II, without recourse, all of NILT Trust's right, title and interest in the 2004-A SUBI Certificate; WHEREAS, pursuant to the Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the "Trust SUBI Certificate Transfer Agreement"), between NALL II, as transferor (the "Transferor") and the Trust, as transferee, the Transferor has transferred and assigned to the Trust, without recourse, all of the Transferor's right, title and interest in the 2004-A SUBI Certificate; Back-Up Security Agreement WHEREAS, pursuant to the Indenture, the Trust has granted a security interest in the 2004-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 2004-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 2004-A SUBI Assets or any interest therein (rather than by the 2004-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 October 28, 2004, 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), NALL 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. ARTICLE II SECURITY INTEREST 2.01 Grant of Security Interest. Back-Up Security Agreement 2 (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 (the "Collateral"): (i) a 100% beneficial interest in (A) all rights under the 2004-A Leases; (B) to the extent permitted by applicable law, the 2004-A Vehicles; (C) all other 2004-A SUBI Assets, including the 2004-A SUBI Collection Account, and (D) all proceeds of the items described in (i) (A), (B) and (C), including insurance payable by reason of loss or damage to the 2004-A Vehicles to the extent not applied to making repairs to the related 2004-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. 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 2004-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 2004-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 2004-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 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 2004-A Leases and the 2004-A Vehicles appears on the Schedule of 2004-A Leases and 2004-A Vehicles. Back-Up Security Agreement 3 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. This Agreement may be amended by written agreement among the parties hereto; provided, however, that it may only be amended under the same circumstances the Trust Agreement could be amended pursuant to Section 12.01 thereof and the Indenture could be amended pursuant to Article Nine thereof. 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 permitted successors and 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 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 Back-Up Security Agreement 4 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, 209 South LaSalle Street, Suite 300, Chicago IL 60604 (telecopier no. (312) 325-8905), Attention: Nissan Auto Lease Trust 2004-A. Back-Up Security Agreement 5 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: /s/ Steven R. Lambert ------------------------------------ Name: Steven R. Lambert Title: President NISSAN-INFINITI LT By: NILT, INC., as Titling Trustee By: /s/ Patricia M. Child -------------------------------- Name: Patricia M. Child Title: President NILT TRUST By: U.S. BANK NATIONAL ASSOCIATION, as Managing Trustee By: /s/ Patricia M. Child -------------------------------- Name: Patricia M. Child Title: Vice President NISSAN AUTO LEASING LLC II By: /s/ Joji Tagawa ------------------------------------ Name: Joji Tagawa Title: Treasurer S-1 Back-Up Security Agreement NISSAN AUTO LEASE TRUST 2004-A By: Wilmington Trust Company, not in its individual capacity, but solely as Owner Trustee By: /s/ Joann A. Rozell ----------------------------- Name: Joann A. Rozell Title: Financial Services Officer U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee By: /s/ Patricia M. Child ----------------------------------- Name: Patricia M. Child Title: Vice President S-2 Back-Up Security Agreement EX-10.7 9 a02810exv10w7.txt EXHIBIT 10.7 EXHIBIT 10.7 - -------------------------------------------------------------------------------- NISSAN AUTO LEASE TRUST 2004-A, U.S. Bank National Association, as Indenture Trustee and as Secured Party, and U.S. Bank National Association, as Securities Intermediary ---------------------- CONTROL AGREEMENT Dated as of October 28, 2004 ---------------------- - -------------------------------------------------------------------------------- TABLE OF CONTENTS
PAGE ARTICLE ONE DEFINITIONS 1.01. General Definitions............................................................................... 1 1.02. Incorporation of UCC by Reference................................................................. 2 ARTICLE TWO ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS 2.01. Establishment of Reserve Account.................................................................. 2 2.02. "Financial Assets" Election....................................................................... 2 2.03. Entitlement Orders................................................................................ 2 2.04. Subordination of Lien; Waiver of Set-Off.......................................................... 2 2.05. Notice of Adverse Claims.......................................................................... 3 ARTICLE THREE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY 3.01. Representations, Warranties and Covenants of the Securities Intermediary.......................... 3 ARTICLE FOUR MISCELLANEOUS 4.01. Choice of Law..................................................................................... 4 4.02. Conflict with Other Agreements.................................................................... 4 4.03. Amendments........................................................................................ 4 4.04. Successors........................................................................................ 4 4.05. Notices........................................................................................... 4 4.06. Termination....................................................................................... 4 4.07. Counterparts...................................................................................... 5
-i- CONTROL AGREEMENT This Control Agreement (this "Agreement"), dated as of October 28, 2004, is among Nissan Auto Lease Trust 2004-A, a statutory trust formed pursuant to the laws of the State of Delaware (the "Trust"), U.S. Bank National Association ("U.S. Bank"), in its capacity as indenture trustee (the "Indenture Trustee") on behalf of the holders of the Notes (the "Secured Party") under the Indenture, dated as of October 28, 2004 (the "Indenture") by and between the Trust and the Indenture Trustee, and U.S. Bank, in its capacity as securities intermediary (the "Securities Intermediary"). RECITALS WHEREAS, pursuant to the Indenture, the Trust has granted to the Secured Party a security interest in investment property consisting of the Reserve Account, related Security Entitlements and the financial assets and other investment property from time to time included therein to secure payment of the Notes; WHEREAS, pursuant to the Indenture, on the date on which the lien of the Indenture is released, rights with respect to the Reserve Account shall be transferred back to the Trust; and WHEREAS, the parties hereto desire that the security interest of the Secured Party be a first priority security interest perfected by "control" pursuant to Articles Eight and Nine of the UCC. NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE ONE DEFINITIONS 1.01. General Definitions. Capitalized terms used herein that are not otherwise defined shall have the meanings ascribed thereto in the Agreement of Definitions, dated as of October 28, 2004, by and among the Trust, as issuer (the "Issuer"), NILT Trust, a Delaware statutory trust, as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary," respectively), Nissan-Infiniti LT, a Delaware statutory trust (the "Titling Trust"), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), in its individual capacity, as servicer and as administrative agent (in such capacity, the "Servicer" and the "Administrative Agent," respectively), Nissan Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), NILT, Inc., a Delaware corporation, as trustee to the Titling Trust (the "Titling 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"). Control Agreement 1.02. Incorporation of UCC by Reference. Except as otherwise specified herein or as the context may otherwise require, all terms used in this Agreement not otherwise defined herein which are defined in the UCC shall have the meanings assigned to them in the UCC. ARTICLE TWO ESTABLISHMENT OF CONTROL OVER SECURITIES ACCOUNTS 2.01. Establishment of Reserve Account. The Securities Intermediary hereby confirms that (i) the Trust has established the Reserve Account at the Securities Intermediary, (ii) the Reserve Account is an account to which financial assets are or may be credited, (iii) the Securities Intermediary shall, subject to the terms of this Agreement and the Indenture, treat the Secured Party as entitled to exercise the rights that comprise any financial asset credited to the Reserve Account, (iv) all property delivered to the Securities Intermediary by or on behalf of the Secured Party for deposit to the Reserve Account will promptly be credited to the Reserve Account and (v) all securities or other property underlying any financial assets credited to the Reserve Account shall be registered in the name of the Securities Intermediary, endorsed to the Securities Intermediary or in blank or credited to another securities account maintained in the name of the Securities Intermediary and in no case will any financial asset credited to the Reserve Account be registered in the name of the Trust, payable to the order of the Trust or specially endorsed to the Trust except to the extent the foregoing have been specially endorsed to the Securities Intermediary or in blank. 2.02. "Financial Assets" Election. The Securities Intermediary hereby agrees that each item of property (whether investment property, financial asset, security, instrument or cash) credited to the Reserve Account shall be treated as a "financial asset" within the meaning of Section 8-102(a)(9) of the UCC. 2.03. Entitlement Orders. If at any time the Securities Intermediary shall receive any Entitlement Order from the Secured Party with respect to the Reserve Account, the Securities Intermediary shall comply with such Entitlement Order without further consent by the Trust, the Initial Secured Party or any other Person. If at any time the Secured Party notifies the Securities Intermediary in writing that the Lien of the Indenture has been released, the Securities Intermediary shall thereafter comply with Entitlement Orders with respect to the Reserve Account from the Initial Secured Party without further consent by the Trust or any other Person. 2.04. Subordination of Lien; Waiver of Set-Off. If the Securities Intermediary has or subsequently obtains by agreement, operation of law or otherwise a security interest in the Reserve Account or any Security Entitlement credited thereto, the Securities Intermediary hereby agrees that such security interest shall be subordinate to the security interests of the Secured Party. The financial assets and other items deposited to the Reserve Account will not be subject to deduction, set-off, banker's lien or any other right in favor of any Person or entity other than the Secured Party (except that the Securities Intermediary may set off against amounts on deposit in the Reserve Account (i) all amounts due to it in respect of its customary fees and expenses for the routine maintenance and operation of the Reserve Account, and (ii) the face amount of any Control Agreement 2 checks that have been credited to the Reserve Account but are subsequently returned unpaid because of uncollected or insufficient funds). 2.05. Notice of Adverse Claims. Except for the claims and interests of the Secured Party and the Trust in the Reserve Account, the Securities Intermediary does not know of any claim to, or interest in, the Reserve Account or in any financial asset credited thereto. If any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Reserve Account or in any financial asset carried therein, the Securities Intermediary will promptly notify the Secured Party and the Trust thereof. ARTICLE THREE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES INTERMEDIARY 3.01. Representations, Warranties and Covenants of the Securities Intermediary. The Securities Intermediary hereby represents and warrants to the Secured Party and the Trust, and covenants that: (a) The Reserve Account has been established as set forth in Section 2.01 and the Reserve Account will be maintained in the manner set forth herein until termination of this Agreement. The Securities Intermediary shall not change the name or account number of the Reserve Account without the prior written consent of the Secured Party. (b) No financial asset carried in the Reserve Account is or will be registered in the name of the Trust, payable to the order of the Trust, or specially endorsed to the Trust, except to the extent such financial asset has been endorsed to the Securities Intermediary or in blank. (c) This Agreement is the valid and legally binding obligation of the Securities Intermediary. (d) The Securities Intermediary has not entered into, and until the termination of this Agreement will not enter into, any agreement pursuant to which it agrees to comply with Entitlement Orders of any Person other than the Secured Party to the extent provided in Section 2.03, with respect to the Reserve Account. (e) The Securities Intermediary has not entered into any other agreement with the Trust or the Secured Party purporting to limit or condition the obligation of the Securities Intermediary to comply with Entitlement Orders as set forth in Section 2.03. Control Agreement 3 ARTICLE FOUR MISCELLANEOUS 4.01. Choice of Law. This Agreement and the Reserve Account shall be governed by 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). Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the Securities Intermediary's location and the Reserve Account (as well as the Security Entitlements related thereto) shall be governed by the laws of the State of New York. 4.02. Conflict with Other Agreements. There are no other agreements entered into between the Securities Intermediary in such capacity and the Trust with respect to the Reserve Account. In the event of any conflict between this Agreement (or any portion thereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement shall prevail. 4.03. Amendments. No amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all of the parties hereto. 4.04. Successors. The terms of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective corporate successors. 4.05. Notices. All demands, notices and communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered at or mailed by registered mail, return receipt requested, to, in the case of (i) the Trust c/o Wilmington Trust Company, at Rodney Square North, 1100 N. Market Street, Wilmington, Delaware 19890 (telecopier no. (302) 651-8882), Attention: Corporate Trust Administration, with a copy to Nissan Motor Acceptance Corporation, as Administrative Agent, at 990 West 190th Street, Torrance, California 90502 (telecopier no. (310) 324-2542), Attention: Treasurer, (ii) the Secured Party, at U.S. Bank National Association, Wrigley Building, 400 North Michigan Avenue, 2nd Floor, Chicago IL 60611 (telecopier no. (312) 836-6701), Attention: Nissan Auto Lease Trust 2004-A, and (iii) the Securities Intermediary, at U.S. Bank National Association, 209 South LaSalle, Suite 300, Chicago IL 60604 (telecopier no. (312) 325-8905), Attention: Nissan Auto Lease Trust 2004-A, or as to any of such parties, at such other address as shall be designated by such party in a written notice to the other parties. 4.06. Termination. The rights and powers granted herein to the Secured Party have been granted in order to perfect its security interest in the Reserve Account, are powers coupled with an interest and will neither be affected by the bankruptcy of the Trust nor by the lapse of time. The obligations of the Securities Intermediary hereunder shall continue in effect with respect to the Reserve Account until the Secured Party shall have notified the Securities Intermediary in writing that its security interests under the Indenture has been terminated. Control Agreement 4 4.07. Counterparts. This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts. Control Agreement 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers as of the day and year first above written. NISSAN AUTO LEASE TRUST 2004-A By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee By: /s/ Joann A. Rozell ------------------------------ Name: Joann A. Rozell Title: Financial Services Officer U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee and Secured Party By: /s/ Patricia M. Child ---------------------------------- Name: Patricia M. Child Title: Vice President U.S. BANK NATIONAL ASSOCIATION, as Securities Intermediary By: /s/ Patricia M. Child ---------------------------------- Name: Patricia M. Child Title: Vice President Control Agreement S-1 EX-10.8 10 a02810exv10w8.txt EXHIBIT 10.8 EXHIBIT 10.8 - -------------------------------------------------------------------------------- NILT TRUST, as Transferor, and NISSAN AUTO LEASING LLC II, as Transferee -------------------------------------- SUBI CERTIFICATE TRANSFER AGREEMENT Dated as of October 28, 2004 -------------------------------------- - -------------------------------------------------------------------------------- ARTICLE ONE DEFINITIONS..................................................................................... 3 Section 1.01. Definitions....................................................................... 3 Section 1.02. Interpretive Provisions........................................................... 3 ARTICLE TWO TRANSFER OF 2004-A SUBI CERTIFICATE............................................................. 3 Section 2.01. Transfer of 2004-A SUBI Certificate............................................... 3 Section 2.02. True Sale......................................................................... 4 Section 2.03. Representations and Warranties of the Transferor and the Transferee............... 4 Section 2.04. Financing Statement and Books and Records......................................... 7 Section 2.05. Acceptance by the Transferee...................................................... 7 Section 2.06. Release of Claims................................................................. 8 ARTICLE THREE MISCELLANEOUS................................................................................... 8 Section 3.01. Amendment......................................................................... 8 Section 3.02. Governing Law..................................................................... 8 Section 3.03. Severability...................................................................... 8 Section 3.04. Binding Effect.................................................................... 8 Section 3.05. Headings.......................................................................... 8 Section 3.06. Counterparts...................................................................... 9 Section 3.07. Further Assurances................................................................ 9 Section 3.08. Third-Party Beneficiaries......................................................... 9 Section 3.09. No Petition....................................................................... 9 Section 3.10. No Recourse....................................................................... 9
SUBI CERTIFICATE TRANSFER AGREEMENT This SUBI Certificate Transfer Agreement, dated as of October 28, 2004, is between NILT Trust, a Delaware statutory trust ("NILT Trust"), as transferor (the "Transferor"), and Nissan Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), as transferee (the "Transferee"). RECITALS A. Nissan-Infiniti LT (the "Titling Trust") is a Delaware statutory trust governed by the Amended and Restated Trust and Servicing Agreement, dated as of August 26, 1998 (the "Titling Trust Agreement"), by and among the NILT Trust, as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary," respectively), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), as Servicer (the "Servicer"), Wilmington Trust Company, a Delaware banking corporation ("Wilmington Trust"), as Delaware trustee ("Delware Trustee"), NILT, Inc., a Delaware corporation, as trustee (the "Trustee"), and U.S. Bank National Association, a national banking association ("U.S. Bank"), as trust agent (the "Trust Agent"); B. Pursuant to the Titling Trust Agreement, the purposes of the Titling Trust include taking assignments and conveyances of and holding in trust various assets (the "Trust Assets"); C. NILT Trust, the Servicer, the Trustee, the Delaware Trustee and the Trust Agent are entering into the 2004-A SUBI Supplement, dated as of October 28, 2004 (the "2004-A SUBI Supplement", and together with the Titling Trust Agreement, the "SUBI Trust Agreement"), to (i) establish a special unit of beneficial interest, the "2004-A SUBI" and (ii) identify and allocate certain Trust Assets to the 2004-A SUBI; D. Pursuant to the SUBI Trust Agreement a separate portfolio of leases (the "2004-A Leases"), the vehicles that are leased under the 2004-A Leases (the "2004-A Vehicles"), and certain other related Trust Assets have been allocated to the 2004-A SUBI; E. The Titling Trust has issued a certificate evidencing a 100% beneficial interest in the 2004-A SUBI (the "2004-A SUBI Certificate") to the Transferor; F. The Transferor and the Transferee desire to provide for the sale, transfer, and assignment by the Transferor to the Transferee, without recourse, of all of the Transferor's right, title, and interest in the 2004-A SUBI Certificate; and G. Immediately after the transfer and assignment of the 2004-A SUBI Certificate to the Transferee, the Transferee shall sell, transfer, and assign all of its right, title and interest in the 2004-A SUBI Certificate to the Nissan Auto Lease Trust 2004-A in connection with a securitization. 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: SUBI Certificate Transfer Agreement 2 ARTICLE ONE DEFINITIONS Section 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 October 28, 2004, by and among Nissan Auto Lease Trust 2004-A, as issuer (the "Issuer"), NILT Trust, as Grantor and Initial Beneficiary, the Titling Trust, NMAC, in its individual capacity, as Servicer and as administrative agent (in such capacity, the "Administrative Agent"), NALL II, the Trustee, Wilmington Trust, as Delaware Trustee and owner trustee (in such capacity, the "Owner Trustee") and U.S. Bank, as Trust Agent and indenture trustee (in such capacity, the "Indenture Trustee"). Section 1.02. Interpretive Provisions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Agreement include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as "herein", "hereof", and the like shall refer to this Agreement as a whole and not to any particular part, Article, or Section within this Agreement, (iii) the term "include" and all variations thereof shall mean "include without limitation", (iv) the term "or" shall include "and/or", (v) the term "proceeds" shall have the meaning ascribed thereto in the UCC, and (vi) any defined term that relates to a document shall include within its definition any amendments, modifications, renewals, restatements, extensions, supplements, or substitutions that have been or are hereafter executed and delivered in accordance with the terms thereof, except that references to the SUBI Trust Agreement include only such items as relate to the 2004-A SUBI and the Titling Trust. Any reference in this 2004-A SUBI Certificate Transfer Agreement to any agreement means such agreement as it may be amended, restated, supplemented (only to the extent such agreement as supplemented relates to the Notes), or otherwise modified from time to time, except that references to the SUBI Trust Agreement include only such items as relate to the 2004-A SUBI and the Titling Trust. Any reference in this 2004-A SUBI Certificate Transfer Agreement to any law, statute, regulation, rule, or other legislative action shall mean such law, statute, regulation, rule, or other legislative action as amended, supplemented, or otherwise modified from time to time, and shall include any rule or regulation promulgated thereunder. Any reference in this 2004-A SUBI Certificate Transfer Agreement to a Person shall include the successor or assignee of such Person. ARTICLE TWO TRANSFER OF 2004-A SUBI CERTIFICATE Section 2.01. Transfer of 2004-A SUBI Certificate. In consideration of the Transferee's delivery to, or upon the order of, the Transferor of $1,724,402,102.96 (the "Transfer Price") in cash by federal wire transfer (same day) funds, of which an amount equal to approximately 16.36% of the Transfer Price will represent the proceeds of a capital contribution from NMAC to the Transferee, the Transferor hereby SUBI Certificate Transfer Agreement 3 absolutely sells, transfers, assigns, and otherwise conveys to the Transferee, without recourse, and the Transferee does hereby purchase and acquire, as of the date set forth above, all of the Transferor's right, title, and interest in and to the following (collectively, the "Assets"): (i) the 2004-A SUBI Certificate and the interest in the 2004-A SUBI represented thereby, including all monies due and paid or to become due and paid or payable thereon or in respect thereof; (ii) all of the Transferor's rights and benefits as holder of the 2004-A SUBI Certificate under the Servicing Agreement and the SUBI Trust Agreement; (iii) the right to realize upon any property that underlies or may be deemed to secure the interest in the 2004-A SUBI represented by the 2004-A SUBI Certificate, as granted in the 2004-A SUBI Supplement and in the 2004-A SUBI Certificate; (iv) all general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, securities accounts, investment property, financial assets, goods, letters of credit, letters of credit rights, advices of credit and uncertificated securities, and other property consisting of, arising from, or relating or credited to the foregoing; and (v) all cash and non-cash proceeds of all of the foregoing. Section 2.02. True Sale. The parties hereto intend that the sale, transfer, and assignment of the Assets constitutes a true sale and assignment of the Assets such that any interest in and title to the Assets would not be property of the Transferor's estate in the event that the Transferor becomes a debtor in a case under any bankruptcy law. To the extent that the conveyance of the Assets hereunder is characterized by a court or similar governmental authority as a financing, it is intended by the Transferor and the Transferee that the interest conveyed constitutes a grant of a security interest under the UCC as in effect in the State of Delaware by the Transferor to the Transferee to secure the Transfer Price to the Transferor, which security interest shall be perfected and of a first priority. The Transferor hereby grants to the Transferee a security interest in all of its right, title, and privilege and interest in and to the Assets and the parties hereto agree that this Agreement constitutes a "security agreement" under all applicable laws. Section 2.03. Representations and Warranties of the Transferor and the Transferee. (a) The Transferor hereby represents and warrants to the Transferee as of the date of this Agreement and the Closing Date that: (i) Organization and Good Standing. The Transferor is a statutory trust duly formed, validly existing, and in good standing under the laws of the State of Delaware, and has the power and the authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, power, authority and legal right to acquire, own and sell the Assets. SUBI Certificate Transfer Agreement 4 (ii) Due Qualification. The Transferor is duly qualified to do business as a foreign business trust 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 shall require such qualifications, except where the failure to have any such license, approval, or qualification would not have a Material Adverse Effect on the Transferor. (iii) Power and Authority. The Transferor has the power and authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery, and performance of this Agreement has been duly authorized by the Transferor by all necessary action. (iv) Binding Obligation. This Agreement constitutes a legal, valid, and binding obligation of the Transferor, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law. (v) No Violation. The execution, delivery, and performance by the Transferor of this Agreement, the consummation of the transactions contemplated by this Agreement, and the fulfillment of the terms hereof do not (A) conflict with, or result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under the Transferor's trust agreement, or (B) conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under any indenture, agreement or other instrument to which the Transferor is a party or by which it may be bound or any of its properties are subject; or (C) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any material indenture, agreement, or other instrument (other than as permitted by the Basic Documents); or (D) violate any law or, to the knowledge of the Transferor, any order, rule, or regulation applicable to it or its properties, or (E) contravene, violate, or result in a default under any judgment, injunction, order, decree, or other instrument of any court or of any federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Transferor or any of its properties, except to the extent that such contravention, violation, or default would not be likely to have a Material Adverse Effect. (vi) No Proceedings. There are no proceedings in which the Transferor has been served or, to the knowledge of the Transferor, proceedings or investigations that are pending or threatened in each case against the Transferor, before any court, regulatory body, administrative agency or other tribunal, or governmental instrumentality (A) asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (C) seeking any determination or ruling that, in the reasonable judgment of the Transferor, could reasonably be expected to materially and adversely affect the performance by the Transferor of its obligations under this Agreement. SUBI Certificate Transfer Agreement 5 (vii) Title to 2004-A SUBI Certificate. Immediately prior to the transfer of the 2004-A SUBI Certificate pursuant to this Agreement, the Transferor (A) is the true and lawful owner of the 2004-A SUBI Certificate and it has the legal right to transfer the 2004-A SUBI Certificate, (B) has good and valid title to the 2004-A SUBI Certificate and the 2004-A SUBI Certificate is on the date hereof free and clear of all Liens and (C) will convey good, valid, and indefeasible title to the 2004-A SUBI Certificate to the Transferee under this Agreement. (b) The Transferee hereby represents and warrants to the Transferor as of the date of this Agreement and the Closing Date that: (i) Organization and Good Standing. The Transferee is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, has the power and the authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, power, authority, and legal right to acquire, own and sell the Assets. (ii) Due Qualification. The Transferee is duly qualified to do business as a foreign limited liability company 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 shall require such qualifications, except where the failure to have any such license, approval or qualification would not have a Material Adverse Effect on the condition, financial or otherwise, of the Transferee or would not have a Material Adverse Effect on the ability of the Transferee to perform its obligations under this Agreement. (iii) Power and Authority. The Transferee has the power and authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery, and performance of this Agreement has been duly authorized by the Transferee by all necessary action. (iv) Binding Obligation. This Agreement constitutes a legal, valid, and binding obligation of the Transferee, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law. (v) No Violation. The execution, delivery, and performance of this Agreement by the Transferee and the consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not (A) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the limited liability company agreement of the Transferee; or (B) conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement, or other instrument to which the Transferee is a party or by which it may be bound or any SUBI Certificate Transfer Agreement 6 of its properties are subject; or (C) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any material indenture, agreement, or other instrument (other than as permitted by the Basic Documents); or (D) violate any law or, to the knowledge of the Transferee, any order, rule, or regulation applicable to it or its properties; or (E) contravene, violate, or result in a default under any judgment, injunction, order, decree, or other instrument of any court or of any federal or state regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over the Transferee or any of its properties, except to the extent that such contravention, violation, or default would not be likely to have a Material Adverse Effect. (vi) No Proceedings. There are no proceedings in which the Transferee has been served or, to the knowledge of the Transferee, proceedings or investigations that are pending or threatened, in each case against the Transferee, before any court, regulatory body, administrative agency, or other tribunal or governmental instrumentality (A) asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (C) seeking any determination or ruling that, in the reasonable judgment of the Transferee, would materially and adversely affect the performance by the Transferee of its obligations under this Agreement. (c) The representations and warranties set forth in this Section shall survive the sale of the Assets by the Transferor to the Transferee and the sale of the Assets by the Transferee to the Trust. Upon discovery by the Transferor, the Transferee, or the Trustee of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the others. Section 2.04. Financing Statement and Books and Records. (a) In connection with the conveyance of the Assets hereunder, the Transferor agrees that prior to the Closing Date it will deliver to the Transferee, with all requisite endorsements, the 2004-A SUBI Certificate and will file, at its own expense, one or more financing statements with respect to the Assets meeting the requirements of applicable state law in such manner as necessary to perfect the sale of the Assets, and the proceeds thereof to the Transferor (and any continuation statements as are required by applicable state law), and to deliver a file-stamped copy of each such financing statement (or continuation statement) or other evidence of such filings (which may, for purposes of this Section 2.04, consist of telephone confirmation of such filings with the file stamped copy of each such filing to be provided to the Transferee in due course), as soon as is practicable after receipt by the Transferor thereof. (b) The Transferor further agrees that it will treat the transfer of the Assets as a sale for accounting purposes, take no actions inconsistent with the Transferee's ownership of the Assets and on or prior to the Closing Date indicate on its books, records, and statements that the Assets have been sold to the Transferee. Section 2.05. Acceptance by the Transferee. The Transferee agrees to comply with all covenants and restrictions applicable to a Holder of the 2004-A SUBI Certificate and the interest in the 2004-A SUBI represented thereby, whether set forth in the 2004-A SUBI Certificate, in SUBI Certificate Transfer Agreement 7 the SUBI Trust Agreement, or otherwise, and assumes all obligations and liabilities, if any, associated therewith. Section 2.06. Release of Claims. Pursuant to Section 3.04(b) of the Titling Trust Agreement and Section 12.02(b) of the 2004-A SUBI Supplement, the Transferee hereby covenants and agrees for the express benefit of each holder from time to time of a UTI Certificate and any other SUBI Certificate that the Transferee shall release all claims to the UTI Assets and the related Other SUBI Assets, respectively, and, in the event such release is not given effect, to subordinate fully all claims it may be deemed to have against the UTI Assets or such Other SUBI Assets, as the case may be. ARTICLE Three MISCELLANEOUS Section 3.01. Amendment. This Agreement may be amended from time to time in a writing signed by the parties hereto. Section 3.02. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable principles of conflict of laws (other than Section 5-1401 of the New York General Obligations Law). Section 3.03. Severability. If one or more of the covenants, agreements, or provisions of this Agreement shall be, for any reason whatever, held invalid or unenforceable, such provisions shall be deemed severable from the remaining covenants, agreements, and provisions of this Agreement, and such invalidity or unenforceability shall in no way affect the validity or enforceability of such remaining covenants, agreements, and provisions, or the rights of any parties hereto. To the extent permitted by law, the parties hereto waive any provision of law that renders any provision of this Agreement invalid or unenforceable in any respect. Section 3.04. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. The Transferor acknowledges and agrees that (a) (i) the Transferee may, pursuant to the Trust SUBI Certificate Transfer Agreement, transfer and assign the 2004-A SUBI and the 2004-A SUBI Assets represented thereby and assign its rights under this Agreement to Nissan Auto Lease Trust 2004-A and (ii) the representation, warranties, and covenants contained in this Agreement and the rights of the Transferee under this Agreement are intended to benefit Nissan Auto Lease Trust 2004-A; and (b) (i) Nissan Auto Lease Trust 2004-A may, pursuant to the Indenture, pledge and grant a security interest in the 2004-A SUBI and the 2004-A SUBI Assets represented thereby and assign its rights under this Agreement to the Indenture Trustee and (ii) the representation, warranties, and covenants contained in this Agreement and the rights of the Transferee under this Agreement are intended to benefit the Indenture Trustee (for the benefit of the holders of the Notes). The Transferor hereby consents to all such transfers, assigns, pledges and grants. Section 3.05. Headings. The Article and Section headings are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. SUBI Certificate Transfer Agreement 8 Section 3.06. 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. Section 3.07. Further Assurances. Each party hereto shall do such acts, and execute and deliver to the 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. Section 3.08. Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and each Holder of the 2004-A SUBI Certificate and each Registered Pledgee, who shall be considered third-party beneficiaries hereof. Except as otherwise provided in this Agreement, no other Person shall have any right or obligation hereunder. Section 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 any other party hereto, any Grantor, the Owner Trustee, the Trustee, any Special Purpose Affiliate, any member of a Special Purpose Affiliate that is a limited liability company, or the trustee of the Grantor, any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding or other proceedings under any federal or state bankruptcy or similar law. This Section shall survive the complete or partial termination of this Agreement, the resignation or removal or the Trustee and the complete or partial resignation or removal of the Servicer. Section 3.10. No Recourse. It is expressly understood and agreed by the parties hereto that (a) 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, (b) each of the representations, undertakings, and agreements herein made on the part of the Transferor, as it relates to 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, (c) 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 (d) 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. SUBI Certificate Transfer Agreement 9 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written. NILT TRUST, as Transferor By: U.S. BANK NATIONAL ASSOCIATION, as Managing Trustee By: /s/ Patricia M. Child -------------------------------- Name: Patricia M. Child Title: Vice President NISSAN AUTO LEASING LLC II, as Transferee By: /s/ Joji Tagawa ------------------------------------- Name: Joji Tagawa Title: Treasurer SUBI Certificate Transfer Agreement S-1 EX-10.9 11 a02810exv10w9.txt EXHIBIT 10.9 EXHIBIT 10.9 - -------------------------------------------------------------------------------- NISSAN AUTO LEASING LLC II, as Transferor, and NISSAN AUTO LEASE TRUST 2004-A, as Transferee ----------------------------------- TRUST SUBI CERTIFICATE TRANSFER AGREEMENT Dated as of October 28, 2004 ----------------------------------- - -------------------------------------------------------------------------------- ARTICLE ONE DEFINITIONS............................................................................... 2 Section 1.01. Definitions....................................................................... 2 Section 1.02. Interpretive Provisions........................................................... 2 ARTICLE TWO TRANSFER OF 2004-A SUBI CERTIFICATE....................................................... 3 Section 2.01. Transfer of 2004-A SUBI Certificate............................................... 3 Section 2.02. True Sale......................................................................... 3 Section 2.03. Representations and Warranties of the Transferor and the Transferee............... 3 Section 2.04. Financing Statement and Books and Records......................................... 6 Section 2.05. Acceptance by the Transferee...................................................... 7 Section 2.06. Release of Claims................................................................. 7 ARTICLE THREE MISCELLANEOUS............................................................................. 7 Section 3.01. Amendment......................................................................... 7 Section 3.02. Governing Law..................................................................... 7 Section 3.03. Severability...................................................................... 7 Section 3.04. Binding Effect.................................................................... 7 Section 3.05. Headings.......................................................................... 8 Section 3.06. Counterparts...................................................................... 8 Section 3.07. Further Assurances................................................................ 8 Section 3.08. Third-Party Beneficiaries......................................................... 8 Section 3.09. No Petition....................................................................... 8 Section 3.10. Limitation of Liability of Owner Trustee.......................................... 8
i TRUST SUBI CERTIFICATE TRANSFER AGREEMENT This Trust SUBI Certificate Transfer Agreement, dated as of October 28, 2004, is between Nissan Auto Leasing LLC II, a Delaware limited liability company ("NALL II"), as transferor (the "Transferor"), and Nissan Auto Lease Trust 2004-A, a Delaware statutory trust (the "Trust"), as transferee (in such capacity, the "Transferee"). RECITALS A. Nissan-Infiniti LT (the "Titling Trust") is a Delaware statutory trust governed by the Amended and Restated Trust and Servicing Agreement, dated as of August 26, 1998 (the "Titling Trust Agreement"), among NILT Trust, a Delaware statutory trust ("NILT Trust"), as grantor and initial beneficiary (in such capacity, the "Grantor" and the "UTI Beneficiary", respectively), Nissan Motor Acceptance Corporation, a California corporation ("NMAC"), as servicer (the "Servicer"), Wilmington Trust Company, a Delaware banking corporation ("Wilmington Trust"), as Delaware trustee (the "Delaware Trustee"), NILT, Inc., a Delaware corporation, as trustee (the "Trustee"), and U.S. Bank National Association, a national banking association ("U.S. Bank"), as trust agent (the "Trust Agent"); B. Pursuant to the Titling Trust Agreement, the purposes of the Titling Trust include taking assignments and conveyances of and holding in trust various assets (the "Trust Assets"); C. The Grantor, UTI Beneficiary, the Transferor, the Servicer, the Trustee, the Delaware Trustee and the Trust Agent are entering into the 2004-A SUBI Supplement, dated as of October 28, 2004 (the "2004-A SUBI Supplement", and together with the Titling Trust Agreement, the "SUBI Trust Agreement), to (i) establish a special unit of beneficial interest (the "2004-A SUBI") and (ii) identify and allocate certain Trust Assets to the 2004-A SUBI; D. Pursuant to the SUBI Trust Agreement a separate portfolio of leases (the "2004-A Leases"), the vehicles that are leased under the 2004-A Leases (the "2004-A Vehicles"), and certain other related Trust Assets have been allocated to the 2004-A SUBI; E. The Titling Trust has issued a certificate evidencing a 100% beneficial interest in the 2004-A SUBI (the "2004-A SUBI Certificate") to NILT Trust; F. NILT Trust has transferred and assigned, without recourse, all of its right, title, and interest in and to the 2004-A SUBI Certificate to the Transferor pursuant to the SUBI Certificate Transfer Agreement, dated as of October 28, 2004 (the "SUBI Certificate Transfer Agreement"), between NILT Trust and the Transferor; G. The Trust was formed pursuant to a trust agreement, dated as of July 28, 2004, as amended and restated as of October 28, 2004 (the "Trust Agreement"), between the Transferor and Wilmington Trust, as owner trustee (the "Owner Trustee"); H. The Transferor and the Transferee desire to provide for the transfer and assignment by the Transferor to the Transferee, without recourse, of all of the Transferor's right, title, and interest in and to the 2004-A SUBI Certificate; and Trust SUBI Certificate Transfer Agreement I. Immediately after the transfer and assignments of the 2004-A SUBI Certificate to the Trust, the Trust shall pledge the 2004-A SUBI Certificate to U.S. Bank, as indenture trustee (the "Indenture Trustee") pursuant to an indenture, dated as of October 28, 2004 (the "Indenture"), between the Trust and the Indenture Trustee. NOW, THEREFORE, in consideration of the mutual agreements herein contained, and of other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE ONE DEFINITIONS Section 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 October 28, 2004, by and among the Trust, as issuer (the "Issuer"), NILT Trust, as Grantor and UTI Beneficiary, the Titling Trust, NMAC, in its individual capacity, as Servicer and as administrative agent (in such capacity, the "Administrative Agent"), NALL II, the Trustee, Wilmington Trust, as Delaware Trustee and Owner Trustee, and U.S. Bank, as Trust Agent and Indenture Trustee. Section 1.02. Interpretive Provisions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, (i) terms used in this Agreement include, as appropriate, all genders and the plural as well as the singular, (ii) references to words such as "herein", "hereof", and the like shall refer to this Agreement as a whole and not to any particular part, Article, or Section within this Agreement, (iii) the term "include" and all variations thereof shall mean "include without limitation", (iv) the term "or" shall include "and/or", (v) the term "proceeds" shall have the meaning ascribed thereto in the UCC, and (vi) any defined term that relates to a document shall include within its definition any amendments, modifications, renewals, restatements, extensions, supplements, or substitutions that have been or are hereafter executed and delivered in accordance with the terms thereof, except that references to the SUBI Trust Agreement include only such items as relate to the 2004-A SUBI and the Titling Trust. Any reference in this 2004-A Trust SUBI Certificate Transfer Agreement to any agreement means such agreement as it may be amended, restated, supplemented (only to the extent such agreement as supplemented relates to the Notes), or otherwise modified from time to time, except that references to the SUBI Trust Agreement include only such items as relate to the 2004-A SUBI and the Titling Trust. Any reference in this 2004-A Trust SUBI Certificate Transfer Agreement to any law, statute, regulation, rule, or other legislative action shall mean such law, statute, regulation, rule, or other legislative action as amended, supplemented, or otherwise modified from time to time, and shall include any rule or regulation promulgated thereunder. Any reference in this 2004-A Trust SUBI Certificate Transfer Agreement to a Person shall include the successor or assignee of such Person. Trust SUBI Certificate Transfer Agreement 2 ARTICLE TWO TRANSFER OF 2004-A SUBI CERTIFICATE Section 2.01. Transfer of 2004-A SUBI Certificate. In consideration of the Transferee's delivery to, or upon the order of, the Transferor of the Notes and the Certificate, the Transferor hereby absolutely sells, transfers, assigns, and otherwise conveys to the Transferee, without recourse, and the Transferee does hereby purchase and acquire all of the Transferor's right, title, and interest in and to the following (collectively, the "Assets"): (i) the 2004-A SUBI Certificate and the interest in the 2004-A SUBI represented thereby, including all monies due and paid or to become due and paid or payable thereon or in respect thereof; (ii) all of the Transferor's rights and benefits as holder of the 2004-A SUBI Certificate under the Servicing Agreement and the SUBI Trust Agreement; (iii) the right to realize upon any property that underlies or may be deemed to secure the interest in the 2004-A SUBI represented by the 2004-A SUBI Certificate, as granted in the 2004-A SUBI Supplement and in the 2004-A SUBI Certificate; (iv) all general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, securities accounts, investment property, financial assets, goods, letters of credit, letters of credit rights, advices of credit and uncertificated securities, and other property consisting of, arising from, or relating or credited to the foregoing; (v) all rights of the Transferor under the SUBI Certificate Transfer Agreement; and (vi) all cash and non-cash proceeds of all of the foregoing. Section 2.02. True Sale. The parties hereto intend that the sale, transfer, and assignment of the Assets constitutes a true sale and assignment of the Assets such that any interest in and title to the Assets would not be property of the Transferor's estate in the event that the Transferor becomes a debtor in a case under any bankruptcy law. To the extent that the conveyance of the Assets hereunder is characterized by a court or similar governmental authority as a financing, it is intended by the Transferor and the Transferee that the interest conveyed constitutes a grant of a security interest under the UCC as in effect in the State of Delaware by the Transferor to the Transferee to secure the Transfer Price to the Transferor, which security interest shall be perfected and of a first priority. The Transferor hereby grants to the Transferee a security interest in all of its right, title, and privilege and interest in and to the Assets and the parties hereto agree that this Agreement constitutes a "security agreement" under all applicable laws. Section 2.03. Representations and Warranties of the Transferor and the Transferee. (a) The Transferor hereby represents and warrants to the Transferee as of the date of this Agreement and the Closing Date that: Trust SUBI Certificate Transfer Agreement 3 (i) Organization and Good Standing. The Transferor is a limited liability company duly formed, validly existing, and in good standing under the laws of the State of Delaware, and has the power and the authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, the power, the authority, and the legal right to acquire, own, and sell the Assets. (ii) Due Qualification. The Transferor is duly qualified to do business as a foreign limited liability company 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 shall require such qualifications, except where the failure to have any such license, approval, or qualification would not have a Material Adverse Effect on the condition, financial or otherwise, of the Transferor or would not have a Material Adverse Effect on the ability of the Transferor to perform its obligations under this Agreement. (iii) Power and Authority. The Transferor has the power and the authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery and performance of this Agreement has been duly authorized by the Transferor by all necessary action. (iv) Binding Obligation. This Agreement constitutes a legal, valid, and binding obligation of the Transferor, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law. (v) No Violation. The execution, delivery, and performance by the Transferor of this Agreement, the consummation of the transactions contemplated by this Agreement, and the fulfillment of the terms hereof shall not (A) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the limited liability company agreement of the Transferor, or (B) conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which the Transferor is a party or by which it may be bound or any of its properties are subject; or (C) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any material indenture, agreement, or other instrument (other than as permitted by the Basic Documents); or (D) violate any law or, to the knowledge of the Transferor, any order, rule or regulation applicable to it or its properties, or (E) contravene, violate, or result in a default under any judgment, injunction, order, decree, or other instrument of any court or of any federal or state regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over the Transferor or any of its properties, except to the extent that such contravention, violation, or default would not be likely to have a Material Adverse Effect. Trust SUBI Certificate Transfer Agreement 4 (vi) No Proceedings. There are no proceedings in which the Transferor has been served or investigations pending or, to the knowledge of the Transferor, proceedings or investigations that are pending or threatened, in each case against the Transferor, before any court, regulatory body, administrative agency or other tribunal, or governmental instrumentality (A) asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (C) seeking any determination or ruling that, in the reasonable judgment of the Transferor, would materially and adversely affect the performance by the Transferor of its obligations under this Agreement. (vii) Title to 2004-A SUBI Certificate. Immediately prior to the transfer of the 2004-A SUBI Certificate pursuant to this Agreement, the Transferor (A) is the true and lawful owner of the 2004-A SUBI Certificate and has the legal right to transfer the 2004-A SUBI Certificate, (B) has good and valid title to the 2004-A SUBI Certificate and the 2004-A SUBI Certificate is on the date hereof free and clear of all Liens and (C) will convey good, valid, and indefeasible title to the 2004-A SUBI Certificate to the Transferee under this Agreement. (b) The Transferee hereby represents and warrants to the Transferor as of the date of this Agreement and the Closing Date that: (i) Organization and Good Standing. The Transferee is a statutory trust duly formed, validly existing, and in good standing under the laws of the State of Delaware, and has the power and the authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and shall have, the power, the authority and the legal right to acquire, own and sell the Assets. (ii) Due Qualification. The Transferee is duly qualified to do business as a foreign trust 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 shall require such qualifications, except where the failure to have any such license, approval, or qualification would not have a Material Adverse Effect on Transferee. (iii) Power and Authority. The Transferee has the power and the authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery and performance of this Agreement has been duly authorized by the Transferee by all necessary action. (iv) Binding Obligation. This Agreement constitutes a legal, valid, and binding obligation of the Transferee, enforceable against it in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, or other similar laws affecting the enforcement of creditors' rights in general and by general principles of equity, regardless of whether such enforceability shall be considered in a proceeding in equity or at law. Trust SUBI Certificate Transfer Agreement 5 (v) No Violation. The execution, delivery, and performance of this Agreement by the Transferee and the consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not (A) conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the Trust Agreement of the Transferee, or (B) conflict with or breach any of the material terms or provisions of, or constitute (with or without notice or lapse of time) a default under, any indenture, agreement or other instrument to which the Transferee is a party or by which it may be bound or any of its properties are subject; or (C) result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any material indenture, agreement or other instrument (other than as permitted by the Basic Documents); or (D) violate any law or, to the knowledge of the Transferee, any order, rule or regulation applicable to it or its properties, or (E) contravene, violate, or result in a default under any judgment, injunction, order, decree, or other instrument of any court or of any federal or state regulatory body, administrative agency, or other governmental instrumentality having jurisdiction over the Transferee or any of its properties, except to the extent that such contravention, violation, or default would not be likely to have a Material Adverse Effect. (vi) No Proceedings. There are no proceedings in which the Transferee has been served or, to the knowledge of the Transferee, proceedings or investigations that are pending or threatened, in each case against the Transferee, before any court, regulatory body, administrative agency or other tribunal or governmental instrumentality (A) asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or (C) seeking any determination or ruling that, in the reasonable judgment of the Transferee, could be expected to materially and adversely affect the performance by the Transferee of its obligations under this Agreement. (c) The representations and warranties set forth in this Section shall survive the sale of the Assets by the Transferor to the Transferee and the sale of the Assets by the Transferee to the Trust. Upon discovery by the Transferor, the Transferee, or the Trustee of a breach of any of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice to the others. Section 2.04. Financing Statement and Books and Records. (a) In connection with the conveyance of the Assets hereunder, the Transferor agrees that prior to the Closing Date it will deliver to the Transferee, with all requisite endorsements, the 2004-A SUBI Certificate and will file, at its own expense, one or more financing statements with respect to the Assets meeting the requirements of applicable state law in such manner as necessary to perfect the sale of the Assets, and the proceeds thereof to the Transferor (and any continuation statements as are required by applicable state law), and to deliver a file-stamped copy of each such financing statement (or continuation statement) or other evidence of such filings (which may, for purposes of this Section 2.04, consist of telephone confirmation of such filings with the file stamped copy of each such filing to be provided to the Transferee in due course), as soon as is practicable after receipt by the Transferor thereof. Trust SUBI Certificate Transfer Agreement 6 (b) The Transferor further agrees that it will treat the transfer of the Assets as a sale for accounting purposes, take no actions inconsistent with the Transferee's ownership of the Assets and on or prior to the Closing Date indicate on its books, records and statements that the Assets have been sold to the Transferee. Section 2.05. Acceptance by the Transferee. The Transferee agrees to comply with all covenants and restrictions applicable to a Holder of the 2004-A SUBI Certificate and the interest in the 2004-A SUBI represented thereby, whether set forth in the 2004-A SUBI Certificate, in the SUBI Trust Agreement or otherwise, and assumes all obligations and liabilities, if any, associated therewith. Section 2.06. Release of Claims. Pursuant to Section 3.04(b) of the Titling Trust Agreement and Section 12.02(b) of the 2004-A SUBI Supplement, the Transferee hereby covenants and agrees for the express benefit of each holder from time to time of a UTI Certificate and any other SUBI Certificate that the Transferee shall release all claims to the UTI Assets and the related Other SUBI Assets, respectively, and, in the event such release is not given effect, to subordinate fully all claims it may be deemed to have against the UTI Assets or such Other SUBI Assets, as the case may be. ARTICLE THREE MISCELLANEOUS Section 3.01. Amendment. This Agreement may be amended from time to time in a writing signed by the parties hereto. Section 3.02. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to any otherwise applicable principles of conflict of laws (other than Section 5-1401 of the New York General Obligations Law). Section 3.03. Severability. If one or more of the covenants, agreements, or provisions of this Agreement shall be for any reason whatever held invalid or unenforceable, such provisions shall be deemed severable from the remaining covenants, agreements, and provisions of this Agreement, and such invalidity or unenforceability shall in no way affect the validity or enforceability of such remaining covenants, agreements and provisions, or the rights of any parties hereto. To the extent permitted by law, the parties hereto waive any provision of law that renders any provision of this Agreement invalid or unenforceable in any respect. Section 3.04. Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. The Transferor acknowledges and agrees that (a) the Transferee may, pursuant to the Indenture, pledge and grant a security interest in the 2004-A SUBI and the 2004-A SUBI Assets represented thereby and assign is rights under this Agreement to the Indenture Trustee (for the benefit of the holders of the Notes) and (b) the representation, warranties, and covenants contained in this Agreement and the rights of the Transferee under this Agreement are intended Trust SUBI Certificate Transfer Agreement 7 to benefit the Indenture Trustee (for the benefit of the holders of the Notes). The Transferor hereby consents to all such pledges and grants. Section 3.05. Headings. The Article and Section headings are for convenience of reference only and shall not define or limit any of the terms or provisions hereof. Section 3.06. 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. Section 3.07. Further Assurances. Each party hereto shall do such acts, and execute and deliver to the 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. Section 3.08. Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and each Holder of the 2004-A SUBI Certificate and each Registered Pledgee, who shall be considered third-party beneficiaries hereof. Except as otherwise provided in this Agreement, no other Person shall have any right or obligation hereunder. Section 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 any other party hereto, any Grantor, the Owner Trustee, the Trustee, any Special Purpose Affiliate, any member of a Special Purpose Affiliate that is a limited liability company or the trustee of the Grantor that is a partnership, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceedings under any federal or state bankruptcy or similar law. This Section shall survive the complete or partial termination of this Agreement, the resignation or removal of the Trustee and the complete or partial resignation or removal of the Servicer. Section 3.10. Limitation of Liability of Owner Trustee. Notwithstanding anything contained herein to the contrary, this instrument has been countersigned 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. Trust SUBI Certificate Transfer Agreement 8 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written. NISSAN AUTO LEASING LLC II, as Transferor By: /s/ Joji Tagawa ------------------------------------- Name: Joji Tagawa Title: Treasurer NISSAN AUTO LEASE TRUST 2004-A, as Transferee By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee By: /s/ Joann A. Rozell --------------------------------- Name: Joann A. Rozell Title: Financial Services Officer Trust SUBI Certificate Transfer Agreement S-1 -----END PRIVACY-ENHANCED MESSAGE-----