EXHIBIT 1.1
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
UNDERWRITING AGREEMENT
October 19, 2004
J.P. Morgan Securities Inc.
as Representative (the "REPRESENTATIVE") of the Underwriters
270 Park Avenue, 10th Floor
New York, New York 10017
Dear Sir or Madam:
Nissan Motor Acceptance Corporation, a California corporation ("NMAC"),
and Nissan Auto Leasing LLC II, a Delaware limited liability company (the
"TRANSFEROR"), hereby confirm their agreement with J.P Morgan Securities Inc.
("J.P. MORGAN") and the several underwriters named in Schedule A hereto (the
"UNDERWRITERS") with respect to the purchase by the Underwriters of $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"), of Nissan Auto Lease Trust 2004-A (the "TRUST"), which
Notes the Transferor proposes to sell to the Underwriters under the terms and
conditions herein.
The Transferor was formed pursuant to a limited liability company
agreement, dated as of October 24, 2001 (the "TRANSFEROR LLC AGREEMENT"), among
NMAC, as member (the "TRANSFEROR MEMBER"), and H. Edward Matveld and Cheryl A.
Lawrence, as special members.
Simultaneously with the issuance of the Notes, the Transferor will cause
the Trust to issue $210,098,819.60 aggregate principal amount of Asset Backed
Certificates (the "CERTIFICATES"). The Notes and the Certificates shall
collectively be referred to as the "SECURITIES." The Notes will be issued
pursuant to an indenture, dated as of October 28, 2004 (the "INDENTURE"),
between the Trust and U.S. Bank National Association ("U.S. BANK"), as indenture
trustee (in such capacity, the "INDENTURE TRUSTEE"). The Certificates will be
issued pursuant to an amended and restated trust agreement, dated as of October
28, 2004 (the "TRUST AGREEMENT"), between the Transferor and Wilmington Trust
Company ("WTC"), as trustee (in such capacity, the "OWNER TRUSTEE"). Each Note
will represent an obligation of, and each Certificate will represent an
undivided interest in, the Trust. The Certificates will be subordinated to the
Notes to the extent described in the Indenture and the Trust Agreement.
Pursuant to a trust agreement, dated as of July 7, 1998, among NILT Trust,
as grantor and initial beneficiary ("NILT TRUST"), NILT, Inc., as trustee (the
"TITLING TRUSTEE"), WTC, as Delaware trustee (in such capacity, the "DELAWARE
TRUSTEE"), and U.S. Bank, as trust agent (in such capacity, the "TRUST AGENT"),
which was subsequently amended and restated by an amended and restated trust and
servicing agreement, dated as of August 26, 1998 (the "TITLING TRUST
AGREEMENT"), among NILT Trust, NMAC, as servicer (in such capacity, the
"SERVICER"), the Titling Trustee, the Delaware Trustee and the Trust Agent,
Nissan-Infiniti LT, a Delaware statutory trust (the "TITLING TRUST"), was
created to take assignments and conveyances of and hold in trust various leases,
vehicles and certain related assets (collectively, the "TRUST ASSETS").
Pursuant to a 2004A SUBI supplement to the Titling Trust Agreement, dated
as of October 28, 2004, (the "SUBI SUPPLEMENT", and together with the Titling
Trust Agreement, the "SUBI TRUST AGREEMENT"), among the parties to the Titling
Trust Agreement, the Titling Trustee will be directed by NILT Trust to establish
a special unit of beneficial interest to be known as the "2004-A SUBI" (the
"2004-A SUBI"). The Titling Trustee will allocate a portfolio consisting of the
2004-A Leases, the 2004-A Vehicles and certain other related assets to the
2004-A SUBI (collectively, the "SUBI ASSETS"). The Trust Assets (including the
SUBI Assets) will be serviced by the Servicer pursuant to a servicing agreement,
dated as of March 1, 1999, as supplemented by a 2004-A supplement, dated as of
October 28, 2004 (collectively, the "SERVICING AGREEMENT"), in each case among
the Titling Trust, NILT Trust and the Servicer.
In connection with the creation of the 2004-A SUBI, the Titling Trust will
issue to NILT Trust a certificate (the "SUBI CERTIFICATE") representing a 100%
beneficial interest in the 2004-A SUBI. Pursuant to a SUBI certificate transfer
agreement, dated as of October 28, 2004 (the "SUBI CERTIFICATE TRANSFER
AGREEMENT"), between the Transferor and NILT Trust, NILT Trust will sell the
SUBI Certificate to the Transferor. Pursuant to a trust SUBI certificate
transfer agreement, dated as of October 28, 2004 (the "TRUST SUBI CERTIFICATE
TRANSFER Agreement"), between the Transferor and the Trust, the Transferor will
sell the SUBI Certificate to the Trust. This Agreement, the Indenture, the Trust
Agreement, the SUBI Trust Agreement, the SUBI Certificate Transfer Agreement,
the Servicing Agreement, the Trust SUBI Certificate Transfer Agreement, the
backup security agreement, dated as of October 28, 2004 (the "BACKUP SECURITY
AGREEMENT"), among the Titling Trust, NILT Trust, the Transferor, the Trust and
the Indenture Trustee, the control agreement, dated as of October 28, 2004 (the
"CONTROL AGREEMENT"), among the Transferor, the Trust, as initial secured party,
and U.S. Bank, as assignee-secured party and securities intermediary (in such
capacity, the "SECURITIES INTERMEDIARY"), the trust
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administration agreement dated as of October 28, 2004 (the "TRUST ADMINISTRATION
AGREEMENT"), among the Transferor, the Trust, the Indenture Trustee and NMAC, as
administrative agent, and the 1992 International Swaps and Derivatives
Association, Inc. Master Agreement (Multi Currency - Cross Border), as modified
by the Schedule and the Confirmations thereto, dated as of October 28, 2004 (the
"INTEREST RATE CAP AGREEMENT"), between the Trust and JPMorgan Chase Bank, as
cap provider, are referred to herein collectively as the "BASIC DOCUMENTS."
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, among the Trust, the Titling Trust, the Titling Trustee, NILT Trust,
the Transferor, the Owner Trustee, NMAC, the Indenture Trustee, the Delaware
Trustee and the Trust Agent.
All references to "MATERIAL ADVERSE EFFECT" in this Agreement, with
respect to any Person, shall mean 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 it 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 SUBI Certificate's beneficial interest in
all or any significant portion of the SUBI Assets or the Indenture Trustee's
security interest in the SUBI Certificate and all or any significant portion of
the 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
such Material Adverse Effects which are the direct result of actions or
omissions of any Underwriter or their respective Affiliates. Except as otherwise
indicated by the context, all references to the terms "material" or "Material
Adverse Effect" in this Agreement that refer to NMAC or the Transferor or their
respective Affiliates (as defined below), or any of them, shall be interpreted
in proportion to the business of Nissan North America, Inc. ("NNA") and its
consolidated subsidiaries which includes NMAC, the Transferor and the parent
company of NNA, Nissan Motor Co., Ltd. (the "NISSAN GROUP") as a whole, and not
in proportion to the business of NMAC or the Transferor or such Affiliate(s)
individually.
NMAC and the Transferor hereby agree with the Underwriters as follows:
Section 1. Representations and Warranties.
(a) Representations and Warranties by NMAC and the Transferor. Each of
NMAC and the Transferor, jointly and severally, represents and warrants to the
Underwriters, as of the date hereof and as of the Closing Time referred to in
Section 2(c), and agrees with the Underwriters as follows:
(i) Registration Statement and Prospectus.
A registration statement and Amendment No. 1 thereto (File No.
333-118256, No. 333-118256-01, No. 333-118256-02 and No. 333-118256-03),
including a form of prospectus relating to the Notes to be registered
under such registration statement, have been filed by the Transferor on
behalf of the Transferor and the Trust, and by NMAC, on behalf of NILT
Trust and Nissan Infiniti LT (as used herein, the Transferor, the Trust,
NILT Trust and Nissan Infiniti LT, collectively, the "REGISTRANTS"), on
Form S-1 with the Securities and Exchange Commission (the
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"COMMISSION"). One or more amendments thereto, including the preliminary
prospectus, may be filed, each of which has been furnished to you. The
Transferor and NMAC, on behalf of the Registrants, will file with the
Commission either (i) before the effectiveness of the Registration
Statement (as defined below) under the Securities Act of 1933 (the "ACT"),
a further amendment thereto (including the form of final prospectus) or
(ii) a final prospectus in accordance with Rule 430A under the Act ("RULE
430A") and Rule 424(b) under the Act ("RULE 424(b)"). In the case of a
post-effective filing pursuant to clause (ii), the Transferor will have
included in the Registration Statement, as amended at the Effective Time
(as defined below), all information (other than Rule 430A Information (as
defined below)) required by the Act and the rules thereunder to be
included in the final prospectus with respect to the Notes and the
offering thereof. The registration statement on Form S-1, as existing at
the Effective Time, including all information deemed to be part of such
registration statement at the Effective Time pursuant to Rule 430A(b) is
hereinafter referred to as the "REGISTRATION STATEMENT"; provided,
however, that if the Transferor and NMAC cause to be filed a registration
statement and rely on Rule 462(b), 462(c) or 462(d) for such registration
statement to become effective upon filing with the Commission (the "RULE
462 REGISTRATION STATEMENT"), then any reference to the "Registration
Statement" shall be deemed to refer to both the earlier effective
registration statement and the Rule 462 Registration Statement, in each
case as amended from time to time. "RULE 430A INFORMATION" means
information with respect to the Notes and the offering of the Notes
permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A.
For purposes of this Agreement, "EFFECTIVE TIME" with respect to the
Registration Statement means (A) if the Transferor and NMAC have advised
the Representative that they do not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing or (B) if the
Transferor and NMAC have advised the Representative that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such Registration Statement as
amended by such amendment or post-effective amendment, as the case may be,
is declared effective by the Commission. "EFFECTIVE DATE" with respect to
the Registration Statement means the date of the Effective Time thereof.
The form of prospectus relating to the Notes, as first filed with
the Commission in connection with the offering and sale of the Notes
pursuant to and in accordance with Rule 424(b) or, if no such filing is
required, as included in the Registration Statement, is hereinafter
referred to as the "PROSPECTUS."
On the Effective Date and at the Closing Time, the Registration
Statement did or will conform, and when the Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined below), the Prospectus (as then amended or supplemented) will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission (the "RULES AND REGULATIONS") and
the Trust
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Indenture Act of 1939, as amended (the "1939 ACT"). On the Effective Date,
the Registration Statement will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. At the time of
filing of the Prospectus pursuant to Rule 424(b) or, if no such filing is
required, on the Effective Date, the Prospectus, as then amended or
supplemented, will conform, in all material respects, to the requirements
of the Act and the Rules and Regulations, and does not include, and will
not include, any untrue statement of a material fact, nor does the
Prospectus, as then amended or supplemented, omit, nor will it omit, to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. The two preceding sentences do not apply to
statements in or omissions from the Registration Statement or Prospectus
(together with any supplements or amendments thereto) based upon written
information furnished to the Registrants by any Underwriter through the
Representative specifically for use therein or to that part of the
Registration Statement that constitutes the Statement of Qualification
under the 1939 Act on Form T-1 (the "FORM T-1") of the Indenture Trustee
(which will be represented and warranted to by the Indenture Trustee). On
the Effective Date, the Indenture will be qualified under the 1939 Act.
(ii) No Material Adverse Effect. Since the respective date as of
which information is given in the Prospectus, as then amended or
supplemented, except as otherwise set forth therein (exclusive of
amendments or supplements after the date hereof), there has been no
Material Adverse Effect.
(iii) Issuance of the Notes. The Notes have been duly authorized
and, at the Closing Time, will have been duly executed by the Trust and,
when authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding obligations
of the Trust, enforceable against the Trust in accordance with their
terms, except as the enforcement may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be in the form contemplated by,
and entitled to the benefits of, the Indenture and Trust Agreement.
(iv) Description of Notes and Basic Documents. The Notes and each
of the Basic Documents conform in all material respects to the description
thereof and the statements relating thereto contained in the Registration
Statement and Prospectus, as then amended or supplemented, and will be in
substantially the respective forms previously delivered to the
Underwriters.
(v) SUBI Certificate. The SUBI Certificate conforms in all
material respects to the descriptions thereof and the statements relating
thereto contained in the Registration Statement and Prospectus, as then
amended or supplemented; and the SUBI Certificate has been duly and
validly authorized and, when executed, issued,
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authenticated and delivered in accordance with the SUBI Trust Agreement,
will be duly and validly issued and outstanding and entitled to the
benefits of the SUBI Trust Agreement.
(vi) No Investment Company Registration. None of NMAC, the
Transferor, NILT Trust, the Titling Trust or the Trust is required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended (the "1940 ACT").
(vii) Allocation of SUBI Assets. At or prior to the Closing Time,
the Titling Trustee will have allocated 2004-A Leases and 2004-A Vehicles
as SUBI Assets that have an Aggregate Cutoff Date Securitization Value
equal to $1,680,098,819.60; and each of the 2004-A Leases and 2004-A
Vehicles allocated as a SUBI Asset at the Closing Time will meet the
eligibility criteria for selection described in the SUBI Trust Agreement
and the Servicing Agreement.
(viii) Payment of Taxes, Fees and Other Charges. Any material taxes,
fees and other governmental charges in connection with the execution,
delivery and performance of this Agreement and the other Basic Documents
and any other agreements contemplated herein or therein shall have been
paid or will be paid at or prior to the Closing Date to the extent then
due.
(ix) Representations and Warranties. The representations and
warranties of each of the Transferor, the Trust and NMAC in the Basic
Documents and this Agreement to which it is a party are true and correct
in all material respects.
(x) Independent Public Accountants. Deloitte & Touche LLP are
independent public accountants with respect to the Transferor within the
meaning of the Act and the Rules and Regulations.
(b) Representations and Warranties of the Transferor and the Transferor
Member. Each of the Transferor and NMAC, on its own behalf and as Transferor
Member, jointly and severally, represents and warrants to the Underwriters, as
of the date hereof and as of the Closing Time referred to in Section 2(c), and
agrees with the Underwriters as follows:
(i) Due Organization. The Transferor has been duly formed and is
validly existing as a limited liability company in good standing under the
Delaware Limited Liability Company Act, 6 Del. C. Sections 18-10.1 et seq.
(the "DELAWARE ACT"), and all filings required at the date hereof under
the Delaware Act with respect to the due formation and valid existence of
the Transferor as a limited liability company have been made. The
Transferor has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus, as
then amended or supplemented, and to enter into and perform its
obligations under the Basic Documents. NMAC has been duly incorporated and
is validly existing as a corporation in good standing under the laws of
the State of California and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described
in the Prospectus, as then amended or supplemented, and to enter into and
perform its obligations under the Basic Documents. Each of the Transferor
and NMAC is duly qualified as a foreign limited
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liability company or corporation, as applicable, to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or the lease or ownership of its property requires such
qualification, except where the failure so to qualify or to be in good
standing would not have a Material Adverse Effect.
(ii) Transferor Member Interests. NMAC is the sole member of the
Transferor and, at the Closing Time, NMAC will own its 100% membership
interest in the Transferor free and clear of any Liens except as permitted
by the Basic Documents.
(iii) Absence of Defaults and Conflicts. Neither the Transferor nor
NMAC is in violation of its organizational or charter documents, bylaws,
or the Transferor LLC Agreement, as the case may be, or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any agreement, contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or its properties or assets may be bound, which would have a
Material Adverse Effect. The execution, delivery and performance by each
of the Transferor or NMAC, as the case may be, of the Basic Documents, and
the issuance and sale of the Notes and compliance with the terms and
provisions thereof will not, subject to obtaining any consents or
approvals as may be required under the securities or "blue sky" laws of
various jurisdictions, (i) result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, rule,
regulation, or order of any governmental agency or body or any court
having jurisdiction over the Transferor or NMAC or their respective
properties or any agreement or instrument to which either is a party or by
which either is bound or to which any of their respective properties are
subject, except where such breach, violation, or default would not have a
Material Adverse Effect, (ii) conflict with the Transferor's or NMAC's
charter or by-laws or (iii) result in the creation or imposition of any
Lien (except as permitted by the Basic Documents) upon any of the
Transferor's or NMAC's property or assets is subject, except for Liens
that, individually or in the aggregate, will not have a Material Adverse
Effect.
(iv) Absence of Proceedings. Other than as disclosed in the
Prospectus, as then amended or supplemented (exclusive of amendments or
supplements after the date hereof), there is no action, suit or proceeding
(whether individually or in the aggregate) before or by any court or
governmental agency or body, domestic or foreign, now pending or, to the
knowledge of each of the Transferor and NMAC, threatened, against or
affecting the Transferor or NMAC that could reasonably be expected to have
any Material Adverse Effect with respect thereto.
(v) Absence of Further Requirements. No authorization, approval or
consent of any court, governmental authority or agency or any other person
is necessary in connection with (A) the issuance of the SUBI Certificate,
(B) the issuance of the Securities or the offering and sale of the Notes,
(C) the execution, delivery and performance by the Transferor or NMAC of
this Agreement or any Basic Document to which it is a party or (D) the
consummation by the Transferor or NMAC of the transactions contemplated
hereby or thereby, except such authorizations, approvals or consents as
have been obtained and are in full force and effect as of the Closing
Time.
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(vi) Possession of Licenses and Permits. Each of the Transferor and
NMAC possesses all material certificates, authorizations, licenses and
permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies as are necessary to conduct the business now operated
by it; all such certificates, authorizations, licenses and permits are
valid and in full force and effect except where such invalidity or failure
to be in full force and effect does not have a Material Adverse Effect;
and neither the Transferor nor NMAC has received notice of proceedings
relating to the revocation or modification of any such certificate,
authorization, license or permit which, singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(vii) Authorization of this Agreement. This Agreement has been duly
authorized, executed and delivered by the Transferor and NMAC.
(viii) Authorization of Basic Documents. As of the Closing Time,
each of the Basic Documents to which any of the Transferor, NMAC or the
Trust is a party and the Transferor LLC Agreement has been duly
authorized, executed and delivered by each such entity, and (assuming the
due authorization, execution and delivery thereof by the other parties
thereto) constitutes the legal, valid and binding agreement of the
Transferor and NMAC, as applicable, enforceable against such party in
accordance with its respective terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), moratorium, reorganization or
other similar laws affecting enforcement of creditors' rights generally
and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(ix) Leases. Each 2004-A Lease constitutes the legal, valid,
binding and enforceable agreement of the parties thereto, except as the
enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law; and each 2004-A Lease complies or will
comply on the Closing Date in all material respects as to content and form
with all applicable state and federal laws, including, without limitation,
consumer protection laws, except where the failure to so comply would not
have a Material Adverse Effect.
(c) Representations and Warranties of the Titling Trust and NILT Trust.
NMAC, on behalf of the Titling Trust and NILT Trust, each to the extent
indicated below, represents and warrants to the Underwriters, as of the date
hereof and as of the Closing Time referred to in Section 2(c), and agrees with
the Underwriters as follows:
(i) No Material Adverse Effect. Since the respective date as of
which information is given in the Prospectus, as then amended or
supplemented, except as otherwise set forth therein (exclusive of
amendments or supplements after the date hereof), there has been no
Material Adverse Effect.
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(ii) Due Organization of the Titling Trust and NILT Trust. Each of
the Titling Trust and NILT Trust has been duly formed and is validly
existing as a statutory trust in good standing under Delaware law, and all
filings required at the date hereof under Delaware law with respect to the
due formation and valid existence of Titling Trust or NILT Trust,
respectively, as a statutory trust have been made. Each of the Titling
Trust and NILT Trust has the power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus,
as then amended or supplemented, and to enter into and perform its
obligations under the Basic Documents. Each of the Titling Trust and NILT
Trust is duly qualified as a foreign statutory trust to transact business
and is in good standing in each jurisdiction in which the conduct of its
business or the lease or ownership of its property requires such
qualification, except where the failure so to qualify or to be in good
standing would not have a Material Adverse Effect.
(iii) Absence of Defaults and Conflicts. Neither the Titling Trust
nor NILT Trust is in violation of its organizational or charter documents,
bylaws, or applicable trust agreement, as the case may be, or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any agreement, contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or its properties or assets may be bound, which would have a
Material Adverse Effect. The execution, delivery, and performance by each
of the Titling Trust or NILT Trust, as the case may be, of the Basic
Documents, and the issuance and sale of the Notes and compliance with the
terms and provisions thereof will not, subject to obtaining any consents
or approvals as may be required under the securities or "blue sky" laws of
various jurisdictions, (i) result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, rule,
regulation, or order of any governmental agency or body or any court
having jurisdiction over the Titling Trust or NILT Trust or their
respective properties or any agreement or instrument to which either is a
party or by which either is bound or to which any of their respective
properties are subject, except where such breach, violation, or default
would not have a Material Adverse Effect, (ii) conflict with the Titling
Trust's or NILT Trust's organizational documents or (iii) result in the
creation or imposition of any Lien (except as permitted by the Basic
Documents) upon any of the Titling Trust's or NILT Trust's property or
assets is subject, except for Liens that, individually or in the
aggregate, will not have a Material Adverse Effect.
(iv) Absence of Proceedings. Other than as disclosed in the
Prospectus, as then amended and supplemented (exclusive of any amendments
or supplements after the date hereof), there is no action, suit or
proceeding (whether individually or in the aggregate) before or by any
court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of NMAC, threatened, against or affecting any of the
Titling Trust or NILT Trust that could reasonably be expected to have any
Material Adverse Effect.
(v) Absence of Further Requirements. No authorization, approval or
consent of any court, governmental authority or agency or any other person
is necessary in connection with the execution, delivery and performance by
the Titling Trust or NILT Trust of this Agreement, the SUBI Trust
Agreement or any Basic Document to which any
9
of them is a party or the consummation by any of them of the transactions
contemplated hereby or thereby, except such authorizations, approvals or
consents as will have been obtained and are in full force and effect as of
the Closing Time.
(vi) Possession of Licenses and Permits. Each of the Titling Trust
and NILT Trust possesses all material certificates, authorizations,
licenses and permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies as are necessary to conduct the business now
operated by it; all such certificates, authorizations, licenses and
permits are valid and in full force and effect except where such
invalidity or failure to be in full force and effect does not have a
Material Adverse Effect; and neither the Titling Trust nor NILT Trust has
received notice of any proceedings relating to the revocation or
modification of any such certificate, authority, license or permit which,
singly or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
(vii) Authorization of Basic Documents. As of the Closing Time, each
Basic Document to which any of the Titling Trust or NILT Trust is a party
has been duly authorized, executed and delivered by the Titling Trust or
NILT Trust, as the case may be, and (assuming the due authorization,
execution and delivery thereof by the other parties thereto) constitutes
the legal, valid and binding agreement of the Titling Trust and NILT
Trust, as applicable, enforceable against such party in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws related to
fraudulent transfers), moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and by general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(viii) Title to SUBI Assets. At the time of execution and delivery
of the SUBI Supplement at the Closing Time, the Titling Trust, or the
Titling Trustee on behalf of the Titling Trust, will own the 2004-A Leases
and hold marketable title to the 2004-A Vehicles, together with other
rights relating to the 2004-A Vehicles and the 2004-A Leases being
allocated as SUBI Assets, in each case free and clear of any Liens (except
as permitted by the Basic Documents).
(ix) Absence of Assignment of SUBI Assets. As of the Closing Time,
the Titling Trust has not assigned to any person any of its right, title
or interest in any of the 2004-A Leases, related contract rights, 2004-A
Vehicles or other related rights constituting the SUBI Assets, or has
obtained the release of each such prior assignment.
(x) Allocation of SUBI Assets. As of Closing Time, the Servicer
has made the appropriate allocation of assets within the estate of the
Titling Trust to the 2004-A SUBI required by the SUBI Trust Agreement.
(xi) Leases. Each 2004-A Lease constitutes the legal, valid,
binding and enforceable agreement of the parties thereto, except as the
enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws related to fraudulent transfers),
moratorium, reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity,
regardless
10
of whether such enforceability is considered in a proceeding in equity or
at law; and each 2004-A Lease complies or will comply on the Closing Date
in all material respects as to content and form with all applicable state
and federal laws, including, without limitation, consumer protection laws,
except where failure to so comply would not have a Material Adverse
Effect.
(d) Officer's Certificates. Any certificate respecting the Notes signed
by any officer of the Transferor, NMAC or any of their respective Affiliates and
delivered at the Closing Time to the Underwriters or to counsel to the
Underwriters shall be deemed a representation and warranty by the Transferor,
NMAC or such Affiliate, as the case may be, to the Underwriters as to the
matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) Notes. On the basis of and in reliance on the representations,
warranties and agreements herein contained and subject to the terms and
conditions set forth herein, the Transferor agrees to sell to the Underwriters,
and the Underwriters agree to purchase aggregate principal amounts of the Notes
set forth opposite the names of the Underwriters in Schedule A hereto.
(b) Purchase Price. The Notes are to be purchased at a purchase price
equal to (i) in the case of the Class A-1 Notes, 99.91000% of the aggregate
principal amount thereof, (ii) in the case of the Class A-2 Notes, 99.87552% of
the aggregate principal amount thereof, (iii) in the case of the Class A-3
Notes, 99.83431% of the aggregate principal amount thereof, (iv) in the case of
the Class A-4a Notes, 99.80000% of the aggregate principal amount thereof and
(v) in the case of the Class A-4b Notes, 99.77643% of the aggregate principal
amount thereof.
(c) Payment. Against payment of the purchase price by wire transfer of
immediately available funds to the Transferor, the Transferor will deliver the
Notes to the Representative, for the account of the Underwriters, at the office
of O'Melveny & Myers LLP, at 400 South Hope Street, Los Angeles, CA 90071-2899
or at such other place as shall be agreed upon by the Representative, the
Transferor and NMAC, on October 28, 2004, at 10:00 a.m., Los Angeles time, or at
such other time not later than seven full business days thereafter as the
Representative and the Transferor determine, such time being herein referred to
as the "Closing Date." The Notes to be so delivered will be initially
represented by one or more certificates registered in the name of Cede & Co.,
the nominee of The Depository Trust Company ("DTC"). The interests of beneficial
owners of each Class of Notes will be represented by book entries on the records
of DTC and participating members thereof. Definitive certificates evidencing the
Notes will be available only under the limited circumstances specified in the
Indenture. Certificates for the Notes shall be made available for examination
and packaging by the Representative in The City of New York not later than 10:00
A.M. (New York time) on the last business day prior to the Closing Time.
Section 3. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Notes for sale to the public as set forth in
the Prospectus.
11
Section 4. Covenants of NMAC and the Transferor. NMAC and the Transferor jointly
and severally covenant with the Underwriters as follows:
(a) Registration Statement and Prospectus. If not already effective, the
Transferor will use its best efforts to cause the Registration Statement, and
any amendment thereto, to become effective. If the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Prospectus
is otherwise required under Rule 424(b), the Transferor will file the
Prospectus, properly completed, and any supplement thereto, with the Commission
pursuant to and in accordance with the applicable Rules and Regulations within
the time period prescribed. The Transferor will advise the Representative
promptly of any such filing pursuant to Rule 424(b), or deemed effectiveness
pursuant to Rule 462.
(b) Notice and Effect of Material Events. The Transferor will advise the
Representative promptly of any proposal to amend or supplement the Registration
Statement as filed or the Prospectus and will not effect any such amendment or
supplement without the Representative's reasonable consent. The Transferor will
advise the Representative promptly of the effectiveness of the Registration
Statement (if the Effective Time is subsequent to the execution and delivery of
this Agreement), of any amendment or supplement of the Registration Statement or
the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement. The Transferor will use
its best efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) Amendment to Prospectus. If, at any time when the delivery of the
Prospectus shall be required by law in connection with sales of any Notes,
either (i) any event shall have occurred as a result of which the Prospectus, as
then amended or supplemented, would include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (ii) for any other reason it shall be necessary to amend or
supplement the Prospectus, the Transferor will promptly notify the
Representative and will promptly prepare for review by the Representative and
file with the Commission an amendment or a supplement to the Prospectus that
will correct such statement or omission or effect such compliance. Neither the
consent of the Underwriters to, nor the delivery by the Underwriters of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6, unless such consent specifically waives such conditions.
(d) Earnings Statement. The Transferor will cause the Trust to make
generally available to Holders as soon as practicable, but not later than
fourteen months after the Effective Date, an earnings statement of the Trust
covering a period of at least twelve consecutive months beginning after such
Effective Date and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 promulgated thereunder).
(e) Copies of Registration Statements. The Transferor will furnish to
the Representative copies of the Registration Statement (which will include all
exhibits), the related preliminary prospectus, the Prospectus and all amendments
and supplements to such documents, in each case as soon as available and in such
quantities as the Representative may from time to time reasonably request.
12
(f) Copies of Reports. So long as any of the Notes are outstanding, the
Transferor will furnish to the Representative copies of all reports or other
communications (financial or otherwise) furnished to Holders, and deliver to the
Representative during such same period (i) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission, and (ii) such additional information concerning the business and
financial condition of the Transferor and the Trust as the Representative may
from time to time reasonably request.
(g) Qualification of Notes for Offer and Sale. The Transferor shall use
its reasonable efforts, in cooperation with the Underwriters, to qualify the
Notes for offering and sale under the applicable securities laws of such
jurisdictions in the United States as the Underwriters may reasonably designate
in writing and shall maintain such qualifications in effect as long as required
for the sale of the Notes; provided, however, that neither NMAC nor the
Transferor shall be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(h) Rating of Notes. The Transferor shall take all reasonable action
necessary to enable Moody's Investors Service, Inc. ("MOODY'S") and Standard and
Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc. ("S&P"
and together with Moody's, the "RATING AGENCIES") to provide the Class A-1 Notes
with the highest short-term rating, the remaining classes of the Notes with the
highest long-term rating or its equivalent at the Closing Time.
(i) Furnishing of Documents. To the extent, if any, that the rating
provided with respect to the Notes by Moody's or S&P is conditional upon the
furnishing of documents or the taking of any other actions by the Transferor,
the Transferor shall furnish, and shall cause NMAC to furnish, such documents
and take such other actions.
(j) Use of Proceeds. The Transferor shall cause the Trust to use the net
proceeds received by it from the sale of the Notes in the manner specified in
the Prospectus under "Use of Proceeds."
(k) Annual Statement of Compliance. Until the retirement of the Notes,
or until such time as the Underwriters shall cease to maintain a secondary
market in the Notes, whichever occurs first, the Transferor will deliver to the
Representative the annual statements of compliance and the annual independent
certified public accountants' reports furnished to the Indenture Trustee
pursuant to Sections 8.10 and 8.11 of the 2004-A Servicing Supplement, as soon
as such statements and reports are furnished to the Indenture Trustee.
Section 5. Payment of Expenses.
The Transferor will pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
(or otherwise reproducing) and filing of the Registration Statement as
originally filed and of each amendment thereto; (ii) the preparation, issuance
and delivery of the Notes to the Underwriters; (iii) the fees and disbursements
of the Transferor's and NMAC's counsel and accountants; (iv) the fees of DTC in
13
connection with the book-entry registration of the Notes; (v) the qualification
of the Notes under state securities law in accordance with the provisions of
Section 4(g), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of the blue sky survey, if required; (vi) the printing (or otherwise
reproducing) and delivery to the Underwriters of copies of each preliminary
prospectus and the Prospectus and any amendments or supplements thereto; (vii)
the reproducing and delivery to the Underwriters of copies of the blue sky
survey; and (viii) the fees charged by Moody's and S&P for rating the Notes. The
Underwriters shall not be responsible for the fees and disbursements of the
Owner Trustee, the Indenture Trustee and their respective counsel. If the
Underwriters, in accordance with the provisions of Section 6 or Section
10(a)(i), terminate this Agreement, NMAC shall reimburse the Underwriters for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
Section 6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters are subject to the accuracy of the representations and warranties
of NMAC and the Transferor contained in Section 1 or in certificates of any
officer of NMAC, the Transferor or any of their respective affiliates delivered
pursuant to the provisions hereof, to the performance by NMAC and the Transferor
of their covenants and other obligations hereunder and to the following
additional conditions:
(a) If the Effective Time of the Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus (including any
amendments or supplements thereto as of such date) shall have been filed with
the Commission in accordance with the Rules and Regulations and Section 4(a) of
this Agreement. If the Effective Time of the Registration Statement is not prior
to the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 p.m., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by the Representative. Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Transferor, shall be contemplated by the Commission.
(b) Accountants' Comfort Letter. At the Closing Time, the Underwriters,
NMAC and the Transferor shall have received from Deloitte & Touche LLP a letter
or letters dated as of the Closing Time, in form and substance as previously
agreed to by the Underwriters and otherwise satisfactory in form and substance
to the Underwriters and counsel, containing statements and information of the
type ordinarily included in accountant's "comfort letters", with respect to
certain financial, statistical and other information contained in the
Prospectus.
(c) Officers' Certificates.
(i) The Underwriters shall have received an officers' certificate,
dated the Closing Date, signed by the Chairman of the Board, the President
or any Vice President and by a principal financial or accounting officer
of the Transferor representing and warranting that, to the best of such
officers' knowledge after reasonable investigation, as of the Closing
Date:
14
(A) The representations and warranties of the Transferor in
this Agreement are true and correct in all material respects, that
the Transferor has complied with all agreements and satisfied in all
material respects all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop
order suspending the effectiveness of any Registration Statement has
been issued and no proceedings for that purpose have been instituted
or, to the best of their knowledge, are contemplated by the
Commission.
(B) There has been no material adverse change, since the
respective dates as of which information is given in the Prospectus,
as then amended and supplemented, (except as otherwise set forth
therein and exclusive of amendments or supplements after the date
hereof), in the condition, financial or otherwise, earnings or
business affairs, whether or not arising out of the ordinary course
of business, of the Transferor or any of its Affiliates, or in the
ability of such entity to perform its obligations under each Basic
Document to which it is a party or by which it may be bound.
(ii) The Underwriters shall have received an officers' certificate,
dated the Closing Date, signed by the Chairman of the Board, the President
or any Vice President and by a principal financial or accounting officer
of NMAC representing and warranting that, to the best of such officers'
knowledge after reasonable investigation, as of the Closing Date:
(A) The representations and warranties of NMAC in this
Agreement are true and correct in all material respects, that NMAC
has complied with all agreements and satisfied, in all material
respects, all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or,
to the best of their knowledge, are contemplated by the Commission.
(B) There has been no material adverse change, since the
respective dates as of which information is given in the Prospectus,
as then amended and supplemented (except as otherwise set forth
therein and exclusive of amendments or supplements after the date
hereof), in the condition, financial or otherwise, earnings or
business affairs, whether or not arising out of the ordinary course
of business, of NMAC or any of its Affiliates, or the ability of
such entity to perform its obligations under each Basic Document to
which it is a party or by which it may be bound.
(d) Opinion of In House Counsel for NMAC and the Transferor. At the
Closing Time, the Underwriters shall have received the favorable opinion, dated
as of the Closing Time, of Susan M. Derian Esq., General Counsel of NMAC and the
Transferor, in form and substance reasonably satisfactory to counsel for the
Underwriters and to the effect that:
(i) NMAC is a corporation validly existing under the laws of the
State of California with corporate power and authority to own its
properties and conduct its
15
business as described in the Prospectus, as then amended or supplemented,
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its
property requires such qualification, except where the failure to be in
good standing would not have a Material Adverse Effect.
(ii) The Transferor has the power and authority to own its
properties and conduct its business as described in the Prospectus, as
then amended or supplemented, and is duly qualified to transact business
in each jurisdiction in which the conduct of its business or the ownership
of its property requires such qualification, except where the failure to
be so qualified would not have a Material Adverse Effect.
(iii) This Agreement has been duly authorized, executed and
delivered by each of NMAC and the Transferor.
(iv) The Transferor LLC Agreement and each Basic Document to which
any of NMAC and the Transferor is a party has been duly authorized,
executed and delivered by NMAC and the Transferor, as applicable, and each
of the Transferor and NMAC has the power and authority to enter into and
perform its respective obligations under the Basic Documents.
(v) There are no legal or governmental proceedings known by such
counsel, or for which NMAC or the Transferor has been served official
notice, to be pending to which the Transferor, NMAC, NILT Trust or the
Titling Trust is a party or of which any property of the Transferor, NMAC,
NILT Trust or the Titling Trust is the subject, and no such proceedings
are known by such counsel to be threatened or contemplated by governmental
authorities or threatened by others, (A) (whether individually or in the
aggregate) that are required to be disclosed in the Registration Statement
or (B)(1) asserting the invalidity of all or part of this Agreement or any
Basic Document, (2) seeking to prevent the issuance of the Notes, (3)
(whether individually or in the aggregate) that would materially and
adversely affect the Transferor's, NMAC's, NILT Trust's or the Titling
Trust's obligations under this Agreement or any Basic Document to which it
is a party, or (4) (whether individually or in the aggregate) seeking
adversely to affect the federal income tax attributes of the Notes as
described in the Prospectus under the heading "Certain Material Federal
Income Tax Consequences."
(vi) To such counsel's knowledge, no order, consent, authorization
or approval of any California or federal court or governmental authority
or agency applicable to NMAC or the Transferor, is required in connection
with the issuance of the SUBI Certificate or the Securities or the
offering or the sale of the Notes, except those authorizations, approvals,
consents and orders which have previously been obtained and are in full
force and effect as of the Closing Time. Such counsel need not express an
opinion with respect to any orders, consents, permits, approvals, filings
or licenses relating to the authority to lease motor vehicles, originate
lease contracts or to service lease contracts or leased vehicles or any
state or foreign securities laws or as may be required by any regional or
local governmental authority (except for the opinions, as to qualification
to transact business as a foreign corporation and good standing, set forth
in clause (i) above).
16
(vii) The execution, delivery and performance by each of NMAC and
the Transferor of this Agreement or by NMAC or the Transferor of the
Transferor LLC Agreement or any Basic Document to which such entity is a
party, and the performance by each of them, of their respective
obligations hereunder or will not violate, result in a breach of or
constitute a default under, or with the giving of notice or the passage of
time or both, would constitute a default under or result in the creation
or imposition of any Lien (except as permitted by the Basic Documents)
upon any property or assets of such entity pursuant to the terms of (1)
NMAC's Articles of Incorporation, the Transferor LLC Agreement or NMAC's
bylaws, (2) to such counsel's knowledge and except as otherwise provided
in the Basic Documents, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which such entity is a party or by
which it may be bound, or to which any of the properties or assets of such
entity is subject, (3) to such counsel's knowledge, the Delaware General
Corporation Law or any statute, rule, regulation or order of any
California or federal body or any court, regulatory body or other
governmental instrumentality having jurisdiction over the Transferor or
NMAC or their respective properties or (4) the Notes; excepting, in the
case of clauses (2), (3) and (4) above, defaults, breaches or violations
that do not, in the aggregate, have a Material Adverse Effect.
(viii) To such counsel's knowledge, there is no reason to believe
that the Prospectus, as then amended or supplemented, at the date of this
Agreement (or any such amendment or supplement, as of its respective date)
or at the Closing Time included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood that such
counsel need express no opinion as to the financial, statistical or
quantitative data contained in the Prospectus.
(ix) To such counsel's knowledge, each of NMAC, the Transferor,
NILT Trust and the Titling Trust has obtained all necessary certificates,
authorities, licenses, permits and other governmental authorizations
necessary to conduct the business now operated by it, except where the
failure to possess such certificates, authorities, licenses, permits and
other governmental authorizations would not have a Material Adverse
Effect, and none of such entities has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority, license or permit that, singly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(x) Such counsel does not know of any contract or other document
of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, which is not filed or
described as required.
(e) Opinion of Counsel for NMAC and the Transferor. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of O'Melveny & Myers LLP, special counsel for NMAC and the
Transferor, in form and substance reasonably satisfactory to counsel for the
Underwriters and to the effect that:
17
(i) Assuming the due authorization, execution and delivery thereof
by the other parties thereto, each of the Basic Documents to which NMAC or
the Transferor is a party constitutes a legally valid and binding
obligation of NMAC and the Transferor, as applicable, enforceable in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws now or hereafter
in effect, relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or any other
equitable remedy, regardless of whether considered in a proceeding in
equity or at law.
(ii) Assuming the Notes have been duly and validly authorized, when
executed by the Owner Trustee and authenticated by the Indenture Trustee
as specified in the Indenture and the Trust Agreement and delivered
against payment of the consideration specified therefor pursuant to this
Agreement, the Notes will be legally valid and binding obligations of the
Trust, and entitled to the benefits of the Indenture and enforceable
against the Trust in accordance with their terms, except as may be limited
by bankruptcy, insolvency, reorganization, moratorium, or similar laws now
or hereafter in effect, relating to or affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws) and
by general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance, injunctive relief or any
other equitable remedy, regardless of whether considered in a proceeding
in equity or at law.
(iii) Assuming the due authorization, execution and delivery thereof
by the Owner Trustee and each other party thereto (except NMAC), as
applicable, each of the Basic Documents to which the Trust is a party
(other than the Notes) constitutes a legally valid and binding obligation
of the Trust enforceable against the Trust in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws now or hereafter in effect, relating to or
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance, injunctive relief or any other equitable remedy, regardless
of whether considered in a proceeding in equity or at law.
(iv) None of the Transferor, NILT Trust, the Titling Trust or the
Trust is required to be registered under the Investment Company Act of
1940, as amended (the "1940 ACT").
(v) The statements in the Prospectus under the captions
"Additional Legal Aspects of the Titling Trust and the SUBI", "Additional
Legal Aspects of the Leases and the Leased Vehicles", "Certain Material
Federal Income Tax Consequences", and "ERISA Considerations", to the
extent that they constitute matters of law or legal conclusions relating
to the federal laws of the United States or the laws of the States of
California or New York with respect thereto, have been reviewed by such
counsel and are correct in all material respects.
18
(vi) Each Class A-1 Note, when issued, will constitute an "Eligible
Security" under Rule 2a-7 of the 1940 Act.
(vii) No order, consent, permit or approval of any California, New
York or federal governmental authority that such counsel has, in the
exercise of customary professional diligence, recognized as applicable to
NMAC or the Transferor, or to transactions of the type contemplated by any
Basic Document including the issuance of the Notes, is required on the
part of NMAC or the Transferor for the execution and delivery of, and
performance of their respective obligations under, any Basic Document to
which NMAC or the Transferor, as the case may be, is a party, except for
such as have been obtained or made and are in full force and effect as of
the Closing Date; provided that such counsel expresses no opinion with
respect to any orders, consents, permits, approvals, filings or licenses
related to the authority to sell or lease motor vehicles, originate
vehicle leases or service vehicle leases or as may be required by any
regional or local governmental authority or under any foreign or state
securities laws.
(viii) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened, to which the
Transferor is a party or of which any property of NMAC or the Transferor
is the subject required to be disclosed in the Prospectus, other than
those disclosed therein, or (i) asserting the invalidity of any Basic
Document, (ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by any Basic
Document, (iii) that would, if determined adversely to the Transferor,
materially and adversely affect the performance by NMAC or the Transferor
of its respective obligations under, or the validity or enforceability of
any Basic Document, or (iv) seeking adversely to affect the federal income
tax attributes of the Notes as described in the Prospectus under the
heading "Certain Material Federal Income Tax Consequences" or the
California income or franchise tax attributes of the Notes.
(ix) The Notes and the Basic Documents each conform in all material
respects with the respective descriptions thereof contained in the
Prospectus.
(x) Neither the Trust Agreement nor the SUBI Trust Agreement is
required to be qualified under the Trust Indenture Act of 1939, as amended
(the "1939 ACT").
(xi) The Registration Statement filed with the Commission has been
declared effective under the Act and, to such counsel's knowledge upon due
inquiry, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act or proceedings therefor initiated
or threatened by the Commission, and the Registration Statement and
Prospectus, and each amendment or supplement thereto, as of its respective
effective or issue date, appeared on its face to be appropriately
responsive in all material respects to the applicable requirements of the
Act and the Rules and Regulations, except that such counsel does not
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the Prospectus
except as contemplated by paragraphs (ix) and (xv) of this Section to the
extent set forth therein; such counsel does not opine as to any financial
19
statements or other financial, numerical or statistical data contained or
incorporated by reference therein; and such counsel does not opine as to
the Form T-1.
(xii) The form of the Indenture has been qualified under the 1939
Act and no further action is required to qualify the Indenture under the
1939 Act. The Indenture complies as to form in all material respects with
the 1939 Act and the rules and regulations of the Commission thereunder.
(xiii) Such counsel does not know of any contract or other document
of a character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus that is not filed or described as required.
(xiv) The Indenture and delivery to the Indenture Trustee in the
State of New York of the SUBI Certificate endorsed to the Indenture
Trustee or in blank create in favor of the Indenture Trustee a perfected
security interest under the Uniform Commercial Code as in effect in the
State of New York (the "NYUCC") in the SUBI Certificate free of adverse
claims.
(xv) The Indenture and the Control Agreement create in favor of the
Indenture Trustee, for the benefit of the Noteholders, a perfected
security interest in the Reserve Account and the Security Entitlements
carried in the Reserve Account under the NYUCC. Such security interest of
the Indenture Trustee in the Reserve Account and the Security Entitlements
carried in the Reserve Account is prior to any other security interest
therein under the NYUCC, subject to any Liens permitted under the
Indenture or the Control Agreement.
(xvi) For federal income tax purposes, under existing law, the Notes
will be treated as debt, and neither the Titling Trust nor the Trust will
be classified as an association (or publicly traded partnership) taxable
as a corporation.
(xvii) Assuming neither the Titling Trust nor the Trust is
classified as an association (or publicly traded partnership) taxable as a
corporation for federal income tax purposes, the Titling Trust and the
Trust will not be taxable as an association (or publicly traded
partnership) for California state income or franchise tax purposes.
(xviii) Purchasers whose sole contact with the State of California
is on account of the ownership of a Note will not become subject to
taxation in California solely by reason thereof.
Such counsel shall also state that they have participated in conferences
with the officers and other representatives of the Transferor, representatives
of their independent public accountants and representatives of the
Representative and their counsel, at which the contents of the Registration
Statement and Prospectus and related matters were discussed, but such counsel
has not independently verified the accuracy, completeness or fairness of the
statements contained or incorporated by reference therein, and accordingly such
counsel is unable to assume, and such counsel does not assume, any
responsibility for such accuracy, completeness or fairness, except for the
opinions expressed in paragraphs (v), (vi), and (ix) above. However, on the
basis of such
20
counsel's review and participation in conferences in connection with the
preparation of the Registration Statement and the Prospectus, and relying as to
its determination of materiality to an extent upon opinions of officers and
other representatives of the Seller and NMAC, such counsel shall state that it
does not believe that the Registration Statement, at the Effective Time,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus (or any such amendment or supplement), as
of its respective date contained, or on the Closing Date contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; it being understood
that such counsel need not express any opinion or belief as to the financial
statements or other financial, numerical or statistical data contained or
incorporated by reference in any Registration Statement, the Prospectus or the
Form T-1. Such counsel may state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Transferor and NMAC and certificates of public officials.
(f) Opinion of Special Delaware Counsel for NMAC and the Transferor. At
the Closing Time, the Underwriters shall have received the favorable opinion of
Richards, Layton & Finger P.A., special Delaware counsel for NMAC, the
Transferor and the Trust, dated as of Closing Time and in form and substance
satisfactory for counsel to the Underwriters, substantially to the effect that:
(i) The Transferor has been duly formed and is validly existing in
good standing under the laws of the State of Delaware.
(ii) Under Delaware law, (A) the Transferor has all necessary power
and authority to execute and deliver, and to perform its obligations under
the Transferor LLC Agreement and the Basic Documents to which it is a
party, and (B) the execution and delivery by the Transferor of the
Transferor LLC Agreement and the Basic Documents to which it is a party,
and the performance by it of its obligations thereunder, have been duly
authorized by all necessary action on the part of such entity.
(iii) Each of NILT Trust, the Titling Trust and the Trust has been
duly formed and is validly existing in good standing as a statutory trust
under the laws of the State of Delaware, with power and authority
(corporate and other) to own its respective properties and conduct its
respective business as presently conducted by it, and to enter into and
perform its respective obligations under the Trust Agreement.
(iv) Under the Delaware Business Trust Act (12 Del. C. Section
3801, et seq.) (the "DBT ACT") and its related formation documents, each
of NILT Trust, the Titling Trust and the Trust has all necessary statutory
trust power and authority to execute and deliver, and to perform its
obligations under, the Basic Documents to which it is a party.
(v) Under the DBT Act and its related formation documents, the
execution and delivery by each of NILT Trust, the Titling Trust and the
Trust of the Basic Documents to which it is a party, and the performance
by it thereunder, have been duly
21
authorized by all necessary statutory trust action on the part of NILT
Trust, the Titling Trust and the Trust.
(vi) Each of the SUBI Trust Agreement and the Trust Agreement is a
legal, valid and binding agreement of the parties thereto, enforceable
against such parties, in accordance with its terms.
(vii) The 2004-A SUBI Certificate has been duly and validly
authorized and, when executed, authenticated and delivered in accordance
with the Titling Trust Agreement and the SUBI Supplement, will be duly and
validly issued and outstanding and entitled to the benefits of the Titling
Trust Agreement and the SUBI Supplement.
(viii) Under Section 3805(b) of the DBT Act, no creditor of any
holder of a UTI Certificate or a 2004-A SUBI Certificate shall have any
right to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Titling Trust except in
accordance with the terms of the Titling Trust Agreement and the SUBI
Supplement.
(ix) Under Section 3805(b) of the DBT Act, no creditor of any
holder of a Certificate shall have any right to obtain possession of, or
otherwise exercise legal or equitable remedies with respect to, the
property of the Issuer except in accordance with the terms of the Trust
Agreement and the SUBI Supplement.
(x) To the extent that Article 9 of the Uniform Commercial Code in
effect in the State of Delaware (the "DELAWARE UCC") is applicable
(without regard to conflict of laws principles), and assuming that the
security interest created by the Indenture in the Collateral has been duly
created and has attached, upon the filing of the Financing Statement with
the Secretary of State, the Indenture Trustee will have a perfected
security interest in that portion of the Trust's right in such collateral
and the proceeds thereof that constitute "accounts," "general intangibles"
or "chattel paper," as such terms are defined in the Delaware UCC, and
such security interest will be prior to any other security interest
granted by the Issuer that is perfected solely by the filing of financing
statements under the Delaware UCC, excluding purchase money security
interests under Section 9-312(4) of the Delaware UCC and temporarily
perfected security interests in proceeds under Section 9-306(3) of the
Delaware UCC.
(xi) Insofar as the Delaware UCC is applicable (without regard to
conflict of laws principles), the 2004-A SUBI Certificate constitutes a
"certificated security" within the meaning of Section 8-102 (a)(4) of the
Delaware UCC. Insofar as Section 9-305 (a)(1) of the Delaware UCC is
applicable (without regard to conflicts of laws principles), a security
interest in a "certificated security" is perfected pursuant to the laws of
the jurisdiction in which such certificated security is located.
(xii) The Back Up Security Agreement creates in favor of the
Indenture Trustee a first priority security interest in the Collateral (as
defined in the Back-up Security Agreement) of the Titling Trust, NILT
Trust, the Transferor and the Trust in which a security interest can be
created under Article 9 of the Delaware UCC.
22
(xiii) The Securities have been duly and validly authorized and,
when executed, authenticated and delivered in accordance with the Trust
Agreement and the Indenture, as the case may be, will be legal, valid and
binding obligations of the Trust, enforceable against the Trust, in
accordance with their terms.
(xiv) None of the Titling Trust, the Transferor or the Trust will be
subject to tax by the state of Delaware, and purchasers not otherwise
subject to taxation in Delaware will not become subject to taxation in
Delaware solely because of the purchase or ownership of a Note.
(g) Opinion of Special Bankruptcy Counsel to NMAC and the Transferor. At
the Closing Time, the Underwriters shall have received the favorable opinion of
O'Melveny & Myers LLP, special bankruptcy counsel to NMAC, NILT Trust, the
Transferor and the Trust, dated as of Closing Time and in form and substance
satisfactory to counsel for the Underwriters, with respect to certain bankruptcy
and perfection of security interest matters.
(h) Opinion of Counsel for U.S. Bank. At the Closing Time, the
Underwriters shall have received the favorable opinion of Dorsey & Whitney LLP,
counsel to U.S. Bank, as Indenture Trustee, Trust Agent and Securities
Intermediary, dated as of Closing Time and in form and substance satisfactory in
form and substance to the Underwriters and counsel for the Underwriters,
substantially to the effect that:
(i) U.S. Bank has been duly organized as a national banking
corporation and is validly existing as a national banking corporation, in
good standing under the federal laws of the United States of America.
(ii) U.S. Bank has the requisite power and authority (corporate and
other) to execute, deliver and perform its obligations under the Indenture
and has taken all actions necessary to authorize the exemption, delivery
and performance by it of the Indenture. U.S. Bank has the requisite power
and authority (corporate and other) own its properties and conduct its
business, as presently conducted by it, and to enter into and perform its
obligations as Indenture Trustee, Trust Agent and Securities Intermediary
under each Basic Document to which U.S. Bank is a party.
(iii) Each Basic Document to which U.S. Bank is a party has been
duly authorized, executed and delivered by U.S. Bank and, assuming the due
authorization, execution and delivery thereof by the other parties
thereto, will constitute a legal, valid and binding obligation of U.S.
Bank enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(iv) The Notes have been duly authenticated and delivered by U.S.
Bank, as Indenture Trustee.
(v) Neither the execution nor the delivery by U.S. Bank of each
Basic Document to which it is a party nor the consummation of any of the
transactions by U.S.
23
Bank contemplated thereby require the consent or approval of, the giving
of notice to, the registration with or the taking of any other action with
respect to, any governmental authority or agency under any existing
federal or state law governing the banking or trust powers of U.S. Bank.
(vi) The execution and delivery of each Basic Document to which
U.S. Bank is a party and the performance by U.S. Bank of its terms do not
conflict with or result in a violation of (A) any federal or state law or
regulation governing the banking or trust powers of U.S. Bank, (B) the
Articles of Association or By-Laws of U.S. Bank or (C) to the best
knowledge of such counsel, any indenture, lease or material agreement to
which U.S. Bank is a party or to which its assets are subject.
(vii) All of the issued and outstanding capital stock of the Titling
Trustee is owned by U.S. Bank, free and clear of any Liens.
(i) Opinion of Counsel for Titling Trustee. At the Closing Time, the
Underwriters shall have received the opinion of Dorsey & Whitney LLP, counsel to
the Titling Trustee, dated as of Closing Time and satisfactory in form and
substance to the Underwriters and counsel to the Underwriters, substantially to
the effect that:
(i) The Titling Trustee has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its
properties, to conduct its business as described in the Prospectus and to
enter into and perform its obligations under each Basic Document to which
it is a party.
(ii) The shares of issued and outstanding capital stock of the
Titling Trustee have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by U.S. Bank free and clear of any
Liens.
(iii) Each Basic Document to which the Titling Trustee is a party
has been duly authorized, executed and delivered by the Titling Trustee
and, assuming the due authorization, execution and delivery thereof by the
other parties thereto, will constitute legal, valid and binding
obligations of the Titling Trustee enforceable in accordance with their
respective terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar laws
affecting enforcement of creditors' rights generally and by general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(iv) To the best of their knowledge and information after due
investigation, the Titling Trustee is duly qualified as a foreign
corporation to transact business and is in good standing in California,
Delaware and New York.
(v) The 2004-A SUBI Certificate has been duly executed,
authenticated and delivered by the Titling Trustee.
(vi) Neither the execution nor delivery by the Titling Trustee of
each Basic Document to which it is a party nor the consummation of any of
the transactions by the
24
Titling Trustee contemplated thereby require the consent or approval of,
the giving of notice to, the registration with or the taking of any other
action with respect to, any person or entity, including any governmental
authority or agency under any existing federal or state law.
(vii) The execution and delivery of each Basic Document to which the
Titling Trustee is a party and the performance by the Titling Trustee of
their respective terms do not conflict with or result in a violation of
its articles of incorporation or bylaws of the Titling Trustee or, to the
best of such counsel's knowledge, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party, by
which it may be bound or to which any of its property or assets is
subject.
(j) Opinion of Counsel for WTC. At the Closing Time, the Underwriters
shall have received the opinion of Richards, Layton & Finger P.A., counsel to
WTC, as Owner Trustee and Delaware Trustee, dated as of Closing Time and
satisfactory in form and substance to counsel for the Underwriters,
substantially to the effect that:
(i) WTC has been duly incorporated and is validly existing as a
national banking corporation, in good standing under the laws of Delaware.
(ii) WTC has full power and authority (corporate and other) to own
its properties and conduct its business, as presently conducted by it, and
to enter into and perform its obligations as Owner Trustee and Delaware
Trustee under each Basic Document to which it is a party.
(iii) The execution and delivery of the Trust Agreement and the SUBI
Supplement, and, on behalf of the Trust, each other Basic Document to
which the Trust is a party, the Certificates and the Notes and the
performance by WTC of its obligations under the Trust Agreement and the
SUBI Trust Agreement have been duly authorized by all necessary corporate
action and each of the Trust Agreement and the SUBI Supplement has been
executed and delivered by WTC.
(iv) Each of the Trust Agreement and the SUBI Supplement
constitutes a valid binding agreement of WTC, enforceable against WTC in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(v) Neither the execution nor delivery by WTC of each Basic
Document to which it is a party nor the consummation of any of the
transactions by WTC contemplated thereby require the consent or approval
of, the giving of notice to, the registration with or the taking of any
other action with respect to, any governmental authority or agency under
any existing federal or state law governing the trust powers of WTC, other
than those consents, approvals or authorizations as have been obtained and
the filing of the Certificate of Trust with the Secretary of State of the
State of Delaware.
25
(vi) Each of the Notes and Certificates have been duly and validly
authorized, executed, authenticated and delivered by WTC.
(vii) The execution and delivery of each Basic Document to which WTC
is a party and the performance by WTC of its terms do not conflict with or
result in a violation of (A) any federal or state law or regulation
governing the banking or trust powers of WTC, (B) the Articles of
Association or By-Laws of WTC or (C) to the best knowledge of such
counsel, any indenture, lease or material agreement to which WTC is a
party or to which its assets are subject.
(k) Opinion of Counsel for the Underwriters. At the Closing Time, the
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Orrick, Herrington & Sutcliffe LLP, counsel for the Underwriters, in
form and substance satisfactory to the Underwriters. In rendering such opinion,
such counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel reasonably satisfactory to the
Underwriters.
(l) Reliance Letters. Counsel to NMAC, the Transferor or the Titling
Trustee shall provide reliance letters to the Underwriters relating to each
legal opinion relating to the transactions contemplated by this Agreement
rendered to the Owner Trustee, the Titling Trustee or any of the Rating
Agencies.
(m) Maintenance of Rating. At the Closing Time, the Class A-1 Notes
shall be rated by each Rating Agency in its highest short-term rating, the
remaining classes of Notes shall be rated by each Rating Agency in its highest
long-term rating, and NMAC and the Transferor shall have delivered to the
Underwriters a letter dated the Closing Time from each Rating Agency, or other
evidence satisfactory to the Underwriters, confirming that the Notes have such
ratings.
(n) Additional Documents. At the Closing Time, counsel to the
Underwriters shall have been furnished with such documents and opinions as it
may reasonably require for the purpose of enabling it to pass upon the issuance
of the Securities and the sale of the Notes as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties or the
fulfillment of any of the conditions herein contained; and all proceedings taken
by NMAC or the Transferor in connection with the foregoing shall be reasonably
satisfactory in form and substance to counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Transferor and
NMAC at any time at or prior to the Closing Time, and such termination shall be
without liability of any party to any other party except as provided in Section
5 and except that Sections 1, 7 and 8 shall survive any such termination and
remain in full force and effect.
Section 7. Indemnification.
(a) Indemnification of Underwriters. The Transferor and NMAC shall,
jointly and severally, indemnify and hold each Underwriter and each person, if
any, who controls any Underwriter within the meaning of either Section 15 of the
Act or Section 20 of the Securities
26
Exchange Act of 1934, as amended (each a "Control Person"), harmless against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter or Control Person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
and Control Person for any legal or other expenses reasonably incurred by such
Underwriter or Control Person in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither the Transferor nor NMAC will be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with information furnished to the Transferor or NMAC by any
Underwriter through the Representative specified in the last sentence of
subsection 7(b) below specifically for use therein; provided, further, that
neither the Transferor nor NMAC shall be liable under this subsection (a) to any
Underwriter to the extent that such losses, claims, damages or liabilities arise
out of or are based upon an untrue statement or omission made in the preliminary
prospectus that is subsequently corrected in the Prospectus (or any amendment or
supplement thereto) made available to such Underwriter within a reasonable time
period, if the person asserting such loss, claim, damage or liability was not
sent or given the Prospectus, as then amended or supplemented (excluding
documents incorporated by reference therein), on or prior to the confirmation of
the sale of the Notes; and provided, further, that neither the Transferor nor
NMAC shall be liable to any Underwriter or any Control Person under the
indemnity agreement in this subsection (a) with respect to any of such documents
to the extent that any such loss, claim, damage or liability of such Underwriter
or such Control Person results from the fact that such Underwriter sold Notes to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or of the Prospectus as then
amended or supplemented (excluding documents incorporated by reference therein),
whichever is most recent, if the Transferor or NMAC has previously furnished
copies thereof to such Underwriter within a reasonable time period.
(b) Indemnification of NMAC and the Transferor. Each Underwriter shall,
severally and not jointly, indemnify and hold harmless the Transferor and NMAC
against any losses, claims, damages or liabilities to which the Transferor or
NMAC may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with information furnished to the
Transferor or NMAC by such Underwriter through the Representative specifically
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Transferor or NMAC in connection with investigating or defending
any such action or claim as such expenses
27
are incurred. The Transferor and NMAC acknowledge and agree that the only such
information furnished to the Transferor or NMAC by any Underwriter through the
Representative consists of the following: the statements in the second and
fourth paragraphs (concerning initial offering prices, concessions and
reallowances) and in the sixth and seventh paragraphs (concerning stabilizing
and other activities) under the heading "Underwriting" in the Prospectus or
preliminary prospectus related thereto.
(c) Actions against Parties; Notification; Settlement. If any suit,
action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of
which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (the "Indemnified Party") shall promptly notify the
person against whom such indemnity may be sought (the "Indemnifying Party") in
writing of the commencement thereof, but the omission to so notify the
Indemnifying Party will not relieve it from any liability that it may otherwise
have to any Indemnified Party under such preceding paragraphs, and with respect
to such preceding paragraphs, any such omission shall not relieve it from any
liability except to the extent it has been materially prejudiced by such
omission. In case any such action is brought against any Indemnified Party and
it notifies the Indemnifying Party of the commencement thereof, the Indemnifying
Party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense thereof, with counsel satisfactory to such Indemnified Party (who
may be counsel to the Indemnifying Party) and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense thereof
and after acceptance of counsel by the Indemnified Party, the Indemnifying Party
will not be liable to such Indemnified Party under this Section 7(a) for any
legal or other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any Indemnified Party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such Indemnified Party unless (i) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the contrary, (ii) the
Indemnified Party has reasonably concluded (based upon advice of counsel to the
Indemnified Party) that there may be legal defenses available to it or other
Indemnified Parties that are different from or in addition to those available to
the Indemnifying Party, (iii) a conflict or potential conflict exists (based
upon advice of counsel to the Indemnified Party) between the Indemnified Party
and the Indemnifying Party (in which case the Indemnifying Party will not have
the right to direct the defense of such action on behalf of the Indemnified
Party), or (iv) the Indemnifying Party has elected to assume the defense of such
proceeding but has failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Party. The Indemnifying Party shall not, with
respect to any action brought against any Indemnified Party, be liable for the
fees and expenses of more than one firm (in addition to any local counsel) for
all Indemnified Parties, and all such fees and expenses shall be reimbursed
within a reasonable period of time as they are incurred. Any separate firm
appointed for the Underwriters and any Control Person in accordance with this
subsection 7(c) shall be designated in writing by the Representative, and any
such separate firm appointed for the Transferor or the NMAC, its respective
directors, officers who sign the Registration Statement and Control Persons in
accordance with this subsection 7(c) shall be designated in writing by the
Transferor or the NMAC, as the case may be. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent, with respect to an action of which
the Indemnifying Party was notified and had the opportunity to
28
participate in (whether or not it chose to so participate), the Indemnifying
Party agrees to indemnify any Indemnified Party from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an Indemnified Party shall have requested an Indemnifying Party
to reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by the fourth sentence of this subsection 7(c), the Indemnifying
Party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by such Indemnifying Party of the aforesaid request,
and during such 60 day period the Indemnifying Party has not responded thereto,
and (ii) such Indemnifying Party shall not have reimbursed the Indemnified Party
in accordance with such request prior to the date of such settlement. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an Indemnified Party under
subsection 7(a) or 7(b) above, then each Indemnifying Party shall contribute to
the amount paid or payable by such Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in subsection 7(a) or 7(b) above in
such proportion as is appropriate to reflect the relative benefits received by
the Transferor and NMAC on the one hand and the Underwriters on the other from
the offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
Indemnifying Party shall contribute to such amount paid or payable by such
Indemnified Party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Transferor and NMAC on the
one hand and the Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Transferor and NMAC on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion that the total net proceeds from
the offering (before deducting expenses) received by the Transferor and NMAC
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Transferor or NMAC or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Transferor, NMAC and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection 7(d) were determined by pro rata allocation or by
any other method of allocation that does not take into account the equitable
considerations referred to above in this subsection 7(d). The amount paid by an
Indemnified Party as a result of the losses, claims, damages or liabilities
referred to above in this subsection 7(d) shall be deemed to include any legal
or other expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any action or claim which is the subject of this
subsection 7(d). Notwithstanding the provisions of this subsection 7(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required
29
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection 7(d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Transferor and NMAC under this Section 7
shall be in addition to any liability that the Transferor or NMAC may otherwise
have and shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the 1934 Act; and the obligations of the Underwriters under this
Section 7 shall be in addition to any liability that the respective Underwriters
may otherwise have and shall extend, upon the same terms and conditions, to each
director of the Transferor or NMAC, to each officer of the Transferor or NMAC
who has signed the Registration Statement and to each person, if any, who
controls NMAC or the Transferor within the meaning of Section 15 of the Act or
Section 20 of the 1934 Act.
Section 8. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in
certificates of officers of NMAC, the Transferor and their respective Affiliates
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Underwriters or
controlling person, or by or on behalf of NMAC, the Transferor and their
respective Affiliates, and shall survive delivery of the certificates to the
Underwriters.
Section 9. Failure to Purchase the Notes. If any Underwriter or Underwriters
default on their obligations to purchase Notes hereunder and the aggregate
principal amount of Notes that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total principal amount
of such Notes, the Representative may make arrangements satisfactory to the
Transferor for the purchase of such Notes by other persons, including the
non-defaulting Underwriter or Underwriters, but if no such arrangements are made
by the Closing Date, the non-defaulting Underwriter or Underwriters shall be
obligated, in proportion to their commitments hereunder, to purchase the Notes
that such defaulting Underwriter or Underwriters agreed but failed to purchase.
If any Underwriter or Underwriters so default and the aggregate principal amount
of Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes, as applicable, and arrangements satisfactory to
the non-defaulting Underwriter or Underwriters and the Transferor for the
purchase of such Notes by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, or NMAC or any of its Affiliates, except as provided
in Section 8.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter or Underwriters from liability for its default.
Section 10. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement,
by notice to NMAC and the Transferor, at any time at or prior to the Closing
Time if there shall
30
have occurred (i) any change, or any development involving a prospective change,
in or affecting particularly the business or properties of the Transferor,
Nissan Motor Co., Ltd., NNA or NMAC that, in the judgment of the Representative,
materially impairs the investment quality of the Notes or makes it impractical
or inadvisable to proceed with completion of the sale of and payment for the
Notes; (ii) any downgrading in the rating of any debt securities of NNA or any
of its direct or indirect subsidiaries by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance or
review its rating of any such debt securities (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange; (iv) any material disruption in commercial
banking, securities settlement or clearance services in the United States; (v)
any banking moratorium declared by federal or New York authorities; or (vi) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international calamity or emergency if, in the reasonable judgment of the
Representative, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Notes.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5, and provided further that Sections 1, 7 and 8 shall
survive such termination and remain in full force and effect.
Section 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative at 270 Park Avenue, 10th Floor, New York, New
York 10017, Attention: Brad Dansker; Notices to NMAC shall be directed to it at
990 West 190th Street, Torrance, California 90502, Attention: Treasurer; Notices
to the Transferor shall be directed to it at 990 West 190th Street, Torrance,
California 90502, Attention: Treasurer.
Section 12. Parties. This agreement shall inure to the benefit of and be binding
upon each of the Underwriters, NMAC, the Transferor and their respective
successors. Nothing expressed or mentioned in this agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, NMAC, the Transferor and their respective successors and the
controlling persons, directors and officers referred to in Section 7 any legal
or equitable right, remedy or claim under or in respect of this agreement or any
provision herein contained. This agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, NMAC, the Transferor and their respective successors, and the
controlling persons, directors and officers referred to in Section 7 and their
heirs and legal representatives and for the benefit of no other person, firm or
corporation. No purchaser of Notes from the Underwriters shall be deemed to be a
successor by reason merely of such purchase.
Section 13. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions described in this
Agreement, and any action taken by the Representative under this Agreement will
be binding upon all the Underwriters.
31
Section 14. Representation and Warranties of Underwriters. With respect to any
offers or sales of the Notes outside the United States (and solely with respect
to any such offers and sales) each Underwriter severally and not jointly makes
the following representations and warranties:
(a) Each Underwriter represents and agrees that it will comply with all
applicable laws and regulations in each jurisdiction in which it purchases,
offers or sells the Notes or possesses or distributes the Prospectus or any
other offering material and will obtain any consent, approval or permission
required by it for the purchase, offer or sale by it of Notes under the laws and
regulations in force in any jurisdiction to which it is subject or in which it
makes such purchases, offers or sales and neither the Transferor or NMAC shall
have any responsibility therefor;
(b) No action has been or will be taken by such Underwriter that would
permit public offering of the Notes or possession or distribution of any
offering material in relation to the Notes in any jurisdiction where action for
that purpose is required unless the Transferor or NMAC has agreed to such
actions and such actions have been taken;
(c) Each Underwriter represents and agrees that it will not offer, sell
or deliver any of the Notes or distribute any such offering material in or from
any jurisdiction except under circumstances that will result in compliance with
applicable laws and regulations and that will not impose any obligation on the
Transferor or NMAC or the Underwriters;
(d) Such Underwriter acknowledges that it is not authorized to give any
information or make any representation in relation to the Notes other than (i)
oral communications that are consistent with the Prospectus and would not cause
the Trust, the Transferor or NMAC to incur liability, (ii) those contained or
incorporated by reference in the Prospectus for the Notes and (iii) such
additional information, if any, as the Transferor or NMAC shall, in writing,
provide to and authorize such Underwriter so to use and distribute to actual and
potential purchasers of the Notes;
(e) Each Underwriter represents and agrees that it has not offered or
sold and will not offer or sell, prior to the date six months after their date
of issuance, any of the Notes to persons in the United Kingdom, except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances that have not resulted in and will not
result in an offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995 (as amended);
(f) Each Underwriter has complies and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 ("FSMA") with respect
to anything done by such Underwriter in relation to the Notes in, from or
otherwise involving the United Kingdom; and
(g) Each Underwriter will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the FSMA) received by it in connection with the issue
or sale of any securities in circumstances in which Section 21(1) of the FSMA
does not apply to the Transferor.
32
Section 15. 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
CONFLICTS OF LAWS PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 16. Effect of Headings. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
Section 17. No Bankruptcy Petition. Each Underwriter agrees that, prior to the
date that is one year and one day after the payment in full of all securities
issued by the Transferor or by a trust for which the Transferor was the
depositor for which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Transferor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to NMAC and the Transferor a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, NMAC and the Transferor in accordance
with its terms.
Very truly yours,
NISSAN MOTOR ACCEPTANCE CORPORATION,
a California corporation
By: /s/ Joji Tagawa
----------------------------------------------
Name: Joji Tagawa
Title: Treasurer
NISSAN AUTO LEASING LLC II, a Delaware limited
liability company
By: /s/ Joji Tagawa
----------------------------------------------
Name: Joji Tagawa
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
J.P. MORGAN SECURITIES INC.,
as Representative of the Several Underwriters
By: /s/ Mark Sun
-----------------------------------
Authorized Signatory
S-1
SCHEDULE A
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
CLASS A-1 CLASS A-2 CLASS A-3 CLASS A-4a CLASS A-4b
UNDERWRITER NOTES NOTES NOTES NOTES NOTES
- ------------------------------- -------------- ------------- ------------ ------------ ------------
J.P. Morgan Securities Inc..... $ 33,125,000 $ 32,500,000 $ 44,625,000 $ 66,000,000 $ 19,250,000
Merrill Lynch, Pierce, Fenner
& Smith Incorporated...... 33,125,000 32,500,000 44,625,000 66,000,000 19,250,000
ABN AMRO Incorporated.......... 33,125,000 32,500,000 44,625,000 63,000,000 10,500,000
Citigroup Global Markets Inc... 33,125,000 32,500,000 44,625,000 63,000,000 10,500,000
Deutsche Bank Securities Inc... 33,125,000 32,500,000 44,625,000 63,000,000 10,500,000
Morgan Stanley & Co.
Incorporated.............. 33,125,000 32,500,000 44,625,000 63,000,000 10,500,000
SG Americas Securities, LLC.... 33,125,000 32,500,000 44,625,000 63,000,000 10,500,000
The Williams Capital Group,
L.P....................... 33,125,000 32,500,000 44,625,000 41,000,000 9,000,000
-------------- ------------- ------------ ------------ ------------
Total.......................... $ 265,000,000 $ 260,000,000 $357,000,000 $488,000,000 $100,000,000
============== ============= ============ ============ ============
Schedule A-1 (Nissan 2004-A Underwriting Agreement)
TABLE OF CONTENTS
PAGE
SECTION 1. REPRESENTATIONS AND WARRANTIES............................................................ 3
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING................................................ 11
SECTION 3. OFFERING BY UNDERWRITERS.................................................................. 11
SECTION 4. COVENANTS OF NMAC AND THE TRANSFEROR...................................................... 11
SECTION 5. PAYMENT OF EXPENSES....................................................................... 13
SECTION 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS................................................... 14
SECTION 7. INDEMNIFICATION........................................................................... 27
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY............................ 30
SECTION 9. FAILURE TO PURCHASE THE NOTES............................................................. 30
SECTION 10. TERMINATION OF AGREEMENT.................................................................. 31
SECTION 11. NOTICES................................................................................... 31
SECTION 12. PARTIES................................................................................... 31
SECTION 13. REPRESENTATION OF UNDERWRITERS............................................................ 32
SECTION 14. REPRESENTATION AND WARRANTIES OF UNDERWRITERS............................................. 32
SECTION 15. GOVERNING LAW............................................................................. 33
SECTION 16. EFFECT OF HEADINGS........................................................................ 33
SECTION 17. NO BANKRUPTCY PETITION.................................................................... 33
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