Exhibit 1.1
NISSAN AUTO LEASE TRUST 2003-A
$240,300,000
[ ]% Asset Backed Notes, Class A-1
$277,000,000
[ ]% Asset Backed Notes, Class A-2
$[ ]
Floating Rate Asset Backed Notes, Class A-3a
$[ ]
[ ]% Asset Backed Notes, Class A-3b
UNDERWRITING AGREEMENT
October [__], 2003
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 $240,300,000
aggregate principal amount of [____]% Asset Backed Notes, Class A-1 (the "CLASS
A-1 NOTES"), $277,000,000 aggregate principal amount of [____]% Asset Backed
Notes, Class A-2 (the "CLASS A-2 NOTES"), $[_______________] aggregate principal
amount of Floating Rate Asset Backed Notes, Class A-3a (the "CLASS A-3A NOTES"),
and $[_______________] aggregate principal amount of [____]% Asset Backed Notes,
Class A-3b (the "CLASS A-3B NOTES," and together with the Class A-1 Notes, the
Class A-2 Notes and the Class A-3a Notes, the "NOTES"), of Nissan Auto Lease
Trust 2003-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 $185,305,313.53 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 [__], 2003 (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 [__], 2003 (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 2003-A SUBI supplement to the Titling Trust Agreement,
dated as of October [__], 2003, (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 "2003-A SUBI"
(the "2003-A SUBI"). The Titling Trustee will allocate a portfolio consisting of
the 2003-A Leases, the 2003-A Vehicles and certain other related assets to the
2003-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 2003-A supplement, dated as of
October [__], 2003 (collectively, the "SERVICING AGREEMENT"), in each case among
the Titling Trust, NILT Trust and the Servicer.
In connection with the creation of the 2003-A SUBI, the Titling Trust
will issue to NILT Trust a certificate (the "SUBI CERTIFICATE") representing a
100% beneficial interest in the 2003-A SUBI. Pursuant to a SUBI certificate
transfer agreement, dated as of October [__], 2003 (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 [__], 2003 (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 [__], 2003 (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 [__], 2003 (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 administration agreement dated as of October [__], 2003 (the "TRUST
ADMINISTRATION AGREEMENT"), among the Transferor, the Trust, the Indenture
Trustee and NMAC, as administrative agent, and the 2002 International Swaps and
Derivatives Association,
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Inc. Master Agreement (Multi Currency - Cross Border), as modified by the
Schedule and the Confirmations thereto, dated as of October [__], 2003 (the
"INTEREST RATE CAP AGREEMENT"), between the Trust and
[___________________________], 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 [__], 2003, 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, 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 2003-A Leases and the 2003-A Vehicles, other than, in
the case of clauses (i)-(v), 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 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 (No. 333-106763, No.
333-106763-01, No. 333-106763-02 and No. 333-106763-03), including a
form of prospectus relating to the Notes to be registered under such
registration statement, has 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 "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
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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 a Registration Statement,
including all material incorporated by reference in such prospectus,
is hereinafter referred to as the "Prospectus."
On the Effective Date and at the Closing Time, the
Registration Statement did or will conform, when the Prospectus is
first filed (if required) in accordance with Rule 424(b), and on the
Closing Date (as defined below), the Prospectus (and supplements
thereto) 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 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
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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 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 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 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). The Indenture has been qualified under the 1939
Act.
(ii) No Material Adverse Effect. Since the respective
dates as of which information is given in the Prospectus, 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 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; and the SUBI Certificate has been duly and validly
authorized and, when executed, issued, 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").
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(vii) Allocation of SUBI Assets. At or prior to the
Closing Time, the Titling Trustee will have allocated 2003-A Leases
and 2003-A Vehicles as SUBI Assets that have an Aggregate Cutoff
Date Securitization Value equal to $1,425,005,313.53; and each of
the 2003-A Leases and 2003-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.
(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. Section 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 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 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 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
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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 (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.
(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
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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 2003-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 2003-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
dates as of which information is given in the Prospectus, except as
otherwise set forth therein (exclusive of amendments or supplements
after the date hereof), there has been no Material Adverse Effect.
(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 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,
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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 (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 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 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
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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 2003-A Leases and hold marketable title to the 2003-A
Vehicles, together with other rights relating to the 2003-A Vehicles
and the 2003-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 2003-A Leases, related
contract rights, 2003-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 2003-A SUBI required by the SUBI
Trust Agreement.
(xi) Leases. Each 2003-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 of whether such
enforceability is considered in a proceeding in equity or at law;
and each 2003-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
10
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, [___________]% of the aggregate
principal amount thereof, (ii) in the case of the Class A-2 Notes,
[___________]% of the aggregate principal amount thereof, (iii) in the case of
the Class A-3a Notes, [___________]% of the aggregate principal amount thereof
and (iv) in the case of the Class A-3b Notes, [___________]% 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 [__], 2003, 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.
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
11
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
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.
(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.
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(h) Rating of Notes. The Transferor shall take all reasonable action
necessary to enable Moody's Investors Service, Inc. ("Moody's"), Standard and
Poor's Ratings Services, a division of the McGraw-Hill Companies, Inc. ("S&P"),
and Fitch, Inc. ("Fitch," and together with Moody's and S&P, 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, S&P or Fitch 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 2003-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
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, S&P and Fitch 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
13
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 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' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus (exclusive of amendments or supplements
after the date hereof), any Material Adverse Effect, and the Underwriters shall
have received certificates of authorized officers of NMAC and the Transferor,
dated as of the Closing Time, to the effect that (i) there has been no such
Material Adverse Effect, (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though expressly made at
and as of the Closing Time and (iii) each of NMAC and the Transferor has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Time.
(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 Joy Murakami Crose 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 has been incorporated under the California Corporations
Code, is current in the payment of fees due to the California Department
of State, its status is active and it is validly existing in good standing
under the laws of California; NMAC has corporate power and authority to
carry on its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement, the Transferor LLC Agreement
and each Basic Document to which it is a party and is duly qualified as a
foreign corporation to transact business in all fifty states of the United
States and is in good standing in such states except where the failure to
be in good standing would have a Material Adverse Effect.
14
(ii) The Transferor has the power and authority to own its
properties and conduct its business as described in the Prospectus, 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) To such counsel's knowledge there is no action, suit,
proceeding, inquiry or investigation (whether individually or in the
aggregate) pending or threatened, to which NMAC, NILT Trust, the Titling
Trust or the Transferor is a party or to which any of their respective
properties or assets is subject, before or brought by any court or
governmental agency or body (i) asserting the invalidity of this
Agreement, any Basic Document, the Notes or the Certificates, (ii) seeking
to prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement or
any Basic Document, (iii) that would be likely to materially and adversely
affect the performance by NMAC, NILT Trust, the Titling Trust, or the
Transferor of its respective obligations under, or the validity or
enforceability of, this Agreement, any Basic Document to which it is a
party, the Notes or the Certificates, or would be likely to materially
adversely affect its condition or operations, 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."
(vi) To such counsel's knowledge, no order, consent, authorization
or approval of any New York, Delaware, 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).
(vii) None of (A) the execution, delivery and performance by NMAC or
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, (B) the consummation of the transactions contemplated herein or
therein by any such entity or (C) the
15
fulfillment of the terms hereof or thereof by any such entity, will
conflict with, 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) the organizational, charter or
partnership documents or bylaws of such entity, (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 or (3)
to such counsel's knowledge, any applicable law, statute or regulation or
any judgment, order or decree applicable to such entity of any court,
regulatory body or other governmental instrumentality having jurisdiction
over such entity; excepting, in the case of clauses (2) and (3) 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, 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.
(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:
(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.
16
(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.
(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
17
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
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) Nothing has come to such counsel's attention that would cause
it to believe that as of the Effective Date and at the Closing Time the
Registration Statement and the Prospectus (other than the financial
statements and the other accounting
18
information contained therein or omitted therefrom, as to which such
counsel need express no belief) contained or contain any untrue statement
of a material fact or omitted 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, or
that the descriptions therein of statutes and governmental proceedings and
contracts and other documents are inaccurate and do not fairly present the
information required to be shown therein.
(xiv) 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.
(xv) 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.
(xvi) 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.
(xvii) 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.
(xviii) 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.
(xix) 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
19
for the opinions expressed in paragraphs (v), (vi), and (ix) above. However, on
the basis of such 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 any Registration Statement, at
the related 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
20
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 2003-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 2003-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 2003-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.
21
(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.
22
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 2003-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
23
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.
24
(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
25
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
26
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
27
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
28
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
29
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: [_______]; 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.
30
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 person 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.
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.
31
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.
32
Exhibit 1.1
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:
------------------------------------
Name: Steven R. Lambert
Title: President
NISSAN AUTO LEASING LLC II,
a Delaware limited liability company
By:
------------------------------------
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:
-------------------------------------
Authorized Signatory
S-1
Exhibit 1.1
SCHEDULE A
Principal Amount Principal Amount Principal Amount Principal Amount
of of of of
Underwriter Class A-1 Notes Class A-2 Notes Class A-3a Notes Class A-3b Notes
- --------------------------- ---------------- ---------------- ---------------- ----------------
J.P. Morgan Securities Inc. $ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
Total $ 240,300,000 $ 277,000,000 $ $
Schedule A-1
Table of Contents
Page
SECTION 1. REPRESENTATIONS AND WARRANTIES......................................3
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.........................10
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............................13
SECTION 7. INDEMNIFICATION....................................................25
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.....29
SECTION 9. FAILURE TO PURCHASE THE NOTES......................................29
SECTION 10. TERMINATION OF AGREEMENT...........................................29
SECTION 11. NOTICES............................................................30
SECTION 12. PARTIES............................................................30
SECTION 13. REPRESENTATION OF UNDERWRITERS.....................................30
SECTION 14. REPRESENTATION AND WARRANTIES OF UNDERWRITERS......................31
SECTION 15. GOVERNING LAW......................................................31
SECTION 16. EFFECT OF HEADINGS.................................................32
SECTION 17. NO BANKRUPTCY PETITION.............................................32
-i-