EXHIBIT 10.9
--------------------------------------------------------------------------------
NISSAN AUTO LEASING LLC II,
as Transferor,
and
NISSAN AUTO LEASE TRUST 2003-A,
as Transferee
---------------------------
TRUST SUBI CERTIFICATE
TRANSFER AGREEMENT
Dated as of October 29, 2003
---------------------------
--------------------------------------------------------------------------------
ARTICLE ONE DEFINITIONS................................................................... 2
Section 1.01. Definitions.............................................................. 2
Section 1.02. Interpretive Provisions.................................................. 2
ARTICLE TWO TRANSFER OF 2003-A SUBI CERTIFICATE........................................... 3
Section 2.01. Transfer of 2003-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
TRUST SUBI CERTIFICATE TRANSFER AGREEMENT
This Trust SUBI Certificate Transfer Agreement, dated as of October 29,
2003, is between Nissan Auto Leasing LLC II, a Delaware limited liability
company ("XXXX II"), as transferor (the "Transferor"), and Nissan Auto Lease
Trust 2003-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 2003-A
SUBI Supplement, dated as of October 29, 2003 (the "2003-A SUBI Supplement", and
together with the Titling Trust Agreement, the "SUBI Trust Agreement), to (i)
establish a special unit of beneficial interest (the "2003-A SUBI") and (ii)
identify and allocate certain Trust Assets to the 2003-A SUBI;
D. Pursuant to the SUBI Trust Agreement a separate portfolio of leases
(the "2003-A Leases"), the vehicles that are leased under the 2003-A Leases (the
"2003-A Vehicles"), and certain other related Trust Assets have been allocated
to the 2003-A SUBI;
E. The Titling Trust has issued a certificate evidencing a 100%
beneficial interest in the 2003-A SUBI (the "2003-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 2003-A SUBI Certificate to the
Transferor pursuant to the SUBI Certificate Transfer Agreement, dated as of
October 29, 2003 (the "SUBI Certificate Transfer Agreement"), between NILT Trust
and the Transferor;
G. The Trust was formed pursuant to a trust agreement, dated as of May
13, 2003, as amended and restated as of October 29, 2003 (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 2003-A SUBI
Certificate; and
Trust SUBI Certificate Transfer Agreement
I. Immediately after the transfer and assignments of the 2003-A SUBI
Certificate to the Trust, the Trust shall pledge the 2003-A SUBI Certificate to
U.S. Bank, as indenture trustee (the "Indenture Trustee") pursuant to an
indenture, dated as of October 29, 2003 (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 29, 2003, 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"), XXXX 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 2003-A SUBI and the Titling Trust.
Any reference in this 2003-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 2003-A SUBI and
the Titling Trust. Any reference in this 2003-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
2003-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 2003-A SUBI CERTIFICATE
Section 2.01. Transfer of 2003-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 2003-A SUBI Certificate and the interest in the
2003-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 2003-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 2003-A SUBI represented
by the 2003-A SUBI Certificate, as granted in the 2003-A SUBI
Supplement and in the 2003-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 2003-A SUBI Certificate. Immediately prior
to the transfer of the 2003-A SUBI Certificate pursuant to this
Agreement, the Transferor (A) is the true and lawful owner of the
2003-A SUBI Certificate and has the legal right to transfer the 2003-A
SUBI Certificate, (B) has good and valid title to the 2003-A SUBI
Certificate and the 2003-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 2003-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 2003-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 2003-A
SUBI Certificate and the interest in the 2003-A SUBI represented thereby,
whether set forth in the 2003-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 2003-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 2003-A
SUBI and the 2003-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
2003-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/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
NISSAN AUTO LEASE TRUST 2003-A,
as Transferee
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Financial Services
Officer
Trust SUBI Certificate Transfer Agreement
S-1
