EXHIBIT 1.1
NISSAN AUTO LEASE TRUST 2003-A
$240,300,000
1.16563% Asset Backed Notes, Class A-1
$277,000,000
1.69000% Asset Backed Notes, Class A-2
$379,950,000
Floating Rate Asset Backed Notes, Class A-3a
$342,450,000
2.57000% Asset Backed Notes, Class A-3b
UNDERWRITING AGREEMENT
October 21, 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 1.16563% Asset Backed Notes, Class A-1 (the "CLASS
A-1 NOTES"), $277,000,000 aggregate principal amount of 1.69000% Asset Backed
Notes, Class A-2 (the "CLASS A-2 NOTES"), $379,950,000 aggregate principal
amount of Floating Rate Asset Backed Notes, Class A-3a (the "CLASS A-3A NOTES"),
and $342,450,000 aggregate principal amount of 2.57000% 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 29, 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 29, 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 29, 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 29, 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 29, 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 29, 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 29, 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 29, 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 29, 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, Inc. Master
Agreement (Multi Currency - Cross Border), as modified by the Schedule and the
Confirmations thereto, dated as of October 29, 2003 (the "INTEREST RATE CAP
AGREEMENT"), between the Trust
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and JPMorgan Chase Bank, as cap provider, are referred to herein collectively as
the "BASIC DOCUMENTS." Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Agreement of
Definitions, dated as of October 29, 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 and Amendment No. 1 and
Amendment No. 2 thereto (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, have been filed by the Transferor on behalf of the
Transferor and the Trust, and by NMAC, on behalf of NILT Trust and
Nissan Infiniti LT (as used herein, the Transferor, the Trust, NILT
Trust and Nissan Infiniti LT, collectively, the "REGISTRANTS"), on Form
S-1 with the Securities and Exchange Commission (the "COMMISSION"). One
or more amendments thereto, including the preliminary prospectus, may
be filed, each of which has been furnished to you. The Transferor and
NMAC, on behalf of the Registrants, will file with the Commission
either (i) before the effectiveness of the Registration Statement (as
defined below) under the Securities Act of 1933 (the "ACT"), a further
amendment thereto (including the form of final prospectus) or
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(ii) a final prospectus in accordance with Rule 430A under the Act
("RULE 430A") and Rule 424(b) under the Act ("RULE 424(B)"). In the
case of a post-effective filing pursuant to clause (ii), the Transferor
will have included in the Registration Statement, as amended at the
Effective Time (as defined below), all information (other than Rule
430A Information (as defined below)) required by the Act and the rules
thereunder to be included in the final prospectus with respect to the
Notes and the offering thereof. The registration statement on Form S-1,
as existing at the Effective Time, including all information deemed to
be part of such registration statement at the Effective Time pursuant
to Rule 430A(b) is hereinafter referred to as the "Registration
Statement"; provided, however, that if the Transferor and NMAC cause to
be filed a registration statement and rely on Rule 462(b), 462(c) or
462(d) for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any
reference to the "Registration Statement" shall be deemed to refer to
both the earlier effective registration statement and the Rule 462
Registration Statement, in each case as amended from time to time.
"RULE 430A INFORMATION" means information with respect to the Notes and
the offering of the Notes permitted to be omitted from the Registration
Statement when it becomes effective pursuant to Rule 430A.
For purposes of this Agreement, "EFFECTIVE TIME" with respect
to the Registration Statement means (A) if the Transferor and NMAC have
advised the Representative that they do not propose to amend such
registration statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if any)
filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon
filing or (B) if the Transferor and NMAC have advised the
Representative that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such Registration Statement as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. "EFFECTIVE DATE" with respect to the Registration
Statement means the date of the Effective Time thereof.
The form of prospectus relating to the Notes, as first filed
with the Commission in connection with the offering and sale of the
Notes pursuant to and in accordance with Rule 424(b) or, if no such
filing is required, as included in the Registration Statement, is
hereinafter referred to as the "PROSPECTUS."
On the Effective Date and at the Closing Time, the
Registration Statement did or will conform, when the Prospectus is
first filed (if required) in accordance with Rule 424(b), and on the
Closing Date (as defined below), the Prospectus (as then amended or
supplemented) will conform in all material respects to the requirements
of the Act and the rules and regulations of the Commission (the "Rules
and Regulations") and the Trust Indenture Act of 1939, as amended (the
"1939 Act"). On the Effective Date, the Registration Statement will not
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. At the time of filing of the Prospectus
pursuant to Rule 424(b) or, if no such filing is
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required, on the Effective Date, the Prospectus, as then amended or
supplemented, will conform, in all material respects, to the
requirements of the Act and the Rules and Regulations, and does not
include, and will not include, any untrue statement of a material fact,
nor does the Prospectus, as then amended or supplemented, omit, nor
will it omit, to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The two
preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus (together with any supplements or
amendments thereto) based upon written information furnished to the
Registrants by any Underwriter through the Representative specifically
for use therein or to that part of the Registration Statement that
constitutes the Statement of Qualification under the 1939 Act on Form
T-1 (the "FORM T-1") of the Indenture Trustee (which will be
represented and warranted to by the Indenture Trustee). 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, as then
amended or supplemented, except as otherwise set forth therein
(exclusive of amendments or supplements after the date hereof), there
has been no Material Adverse Effect.
(iii) Issuance of the Notes. The Notes have been duly
authorized and, at the Closing Time, will have been duly executed by
the Trust and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their terms, except as the enforcement may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), moratorium, reorganization or
other similar laws affecting enforcement of creditors' rights generally
and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits of,
the Indenture and Trust Agreement.
(iv) Description of Notes and Basic Documents. The Notes
and each of the Basic Documents conform in all material respects to the
description thereof and the statements relating thereto contained in
the Registration Statement and Prospectus, as then amended or
supplemented, and will be in substantially the respective forms
previously delivered to the Underwriters.
(v) SUBI Certificate. The SUBI Certificate conforms in
all material respects to the descriptions thereof and the statements
relating thereto contained in the Registration Statement and
Prospectus, as then amended or supplemented; and the SUBI Certificate
has been duly and validly authorized and, when executed, issued,
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.
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(vi) No Investment Company Registration. None of NMAC, the
Transferor, NILT Trust, the Titling Trust or the Trust is required to
be registered as an "investment company" under the Investment Company
Act of 1940, as amended (the "1940 ACT").
(vii) Allocation of SUBI Assets. At or prior to the Closing
Time, the Titling Trustee will have allocated 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.
(ix) Representations and Warranties. The representations
and warranties of each of the Transferor, the Trust and NMAC in the
Basic Documents and this Agreement to which it is a party are true and
correct in all material respects.
(x) Independent Public Accountants. Deloitte & Touche LLP
are independent public accountants with respect to the Transferor
within the meaning of the Act and the Rules and Regulations.
(b) Representations and Warranties of the Transferor and the
Transferor Member. Each of the Transferor and NMAC, on its own behalf and as
Transferor Member, jointly and severally represents and warrants to the
Underwriters, as of the date hereof and as of the Closing Time referred to in
Section 2(c), and agrees with the Underwriters as follows:
(i) Due Organization. The Transferor has been duly formed
and is validly existing as a limited liability company in good standing
under the Delaware Limited Liability Company Act, 6 Del.
C. Sections 18-10.1 et seq. (the "DELAWARE ACT"), and all filings
required at the date hereof under the Delaware Act with respect to the
due formation and valid existence of the Transferor as a limited
liability company have been made. The Transferor has power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus, as then amended or
supplemented, and to enter into and perform its obligations under the
Basic Documents. NMAC has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California and has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus, as then amended or supplemented, and to enter into and
perform its obligations under the Basic Documents. Each of the
Transferor and NMAC is duly qualified as a foreign limited 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.
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(ii) Transferor Member Interests. NMAC is the sole member
of the Transferor and, at the Closing Time, NMAC will own its 100%
membership interest in the Transferor free and clear of any Liens
except as permitted by the Basic Documents.
(iii) Absence of Defaults and Conflicts. Neither the
Transferor nor NMAC is in violation of its organizational or charter
documents, bylaws, or the Transferor LLC Agreement, as the case may be,
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any agreement, contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it or its properties or assets may be
bound, which would have a Material Adverse Effect. The execution,
delivery, and performance by each of the Transferor or NMAC, as the
case may be, of the Basic Documents, and the issuance and sale of the
Notes and compliance with the terms and provisions thereof will not,
subject to obtaining any consents or approvals as may be required under
the securities or "blue sky" laws of various jurisdictions, (i) result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation, or order of
any governmental agency or body or any court having jurisdiction over
the Transferor or NMAC or their respective properties or any agreement
or instrument to which either is a party or by which either is bound or
to which any of their respective properties are subject, except where
such breach, violation, or default would not have a Material Adverse
Effect, (ii) conflict with the Transferor's or NMAC's charter or
by-laws or (iii) result in the creation or imposition of any Lien
(except as permitted by the Basic Documents) upon any of the
Transferor's or NMAC's property or assets is subject, except for Liens
that, individually or in the aggregate, will not have a Material
Adverse Effect.
(iv) Absence of Proceedings. Other than as disclosed in
the Prospectus, as then amended or supplemented (exclusive of
amendments or supplements after the date hereof), there is no action,
suit or proceeding (whether individually or in the aggregate) before or
by any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of each of the Transferor and NMAC,
threatened, against or affecting the Transferor or NMAC that could
reasonably be expected to have any Material Adverse Effect with respect
thereto.
(v) Absence of Further Requirements. No authorization,
approval or consent of any court, governmental authority or agency or
any other person is necessary in connection with (A) the issuance of
the SUBI Certificate, (B) the issuance of the Securities or the
offering and sale of the Notes, (C) the execution, delivery and
performance by the Transferor or NMAC of this Agreement or any Basic
Document to which it is a party or (D) the consummation by the
Transferor or NMAC of the transactions contemplated hereby or thereby,
except such authorizations, approvals or consents as have been obtained
and are in full force and effect as of the Closing Time.
(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
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permits are valid and in full force and effect except where such
invalidity or failure to be in full force and effect does not have a
Material Adverse Effect; and neither the Transferor nor NMAC has
received notice of proceedings relating to the revocation or
modification of any such certificate, authorization, license or permit
which, singly or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(vii) Authorization of this Agreement. This Agreement has
been duly authorized, executed and delivered by the Transferor and
NMAC.
(viii) Authorization of Basic Documents. As of the Closing
Time, each of the Basic Documents to which any of the Transferor, NMAC
or the Trust is a party and the Transferor LLC Agreement has been duly
authorized, executed and delivered by each such entity, and (assuming
the due authorization, execution and delivery thereof by the other
parties thereto) constitutes the legal, valid and binding agreement of
the Transferor and NMAC, as applicable, enforceable against such party
in accordance with its respective terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(ix) Leases. Each 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, as then
amended or supplemented, except as otherwise set forth therein
(exclusive of amendments or supplements after the date hereof), there
has been no Material Adverse Effect.
(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
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and NILT Trust has the power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectus, as then amended or supplemented, and to enter into and
perform its obligations under the Basic Documents. Each of the Titling
Trust and NILT Trust is duly qualified as a foreign statutory trust to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or the lease or ownership of its property
requires such qualification, except where the failure so to qualify or
to be in good standing would not have a Material Adverse Effect.
(iii) Absence of Defaults and Conflicts. Neither the
Titling Trust nor NILT Trust is in violation of its organizational or
charter documents, bylaws, or applicable trust agreement, as the case
may be, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
agreement, contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or its
properties or assets may be bound, which would have a Material Adverse
Effect. The execution, delivery, and performance by each of the Titling
Trust or NILT Trust, as the case may be, of the Basic Documents, and
the issuance and sale of the Notes and compliance with the terms and
provisions thereof will not, subject to obtaining any consents or
approvals as may be required under the securities or "blue sky" laws of
various jurisdictions, (i) result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, rule, regulation, or order of any governmental agency or body
or any court having jurisdiction over the Titling Trust or NILT Trust
or their respective properties or any agreement or instrument to which
either is a party or by which either is bound or to which any of their
respective properties are subject, except where such breach, violation,
or default would not have a Material Adverse Effect, (ii) conflict with
the Titling Trust's or NILT Trust's organizational documents or (iii)
result in the creation or imposition of any Lien (except as permitted
by the Basic Documents) upon any of the Titling Trust's or NILT Trust's
property or assets is subject, except for Liens that, individually or
in the aggregate, will not have a Material Adverse Effect.
(iv) Absence of Proceedings. Other than as disclosed in
the Prospectus, as then amended and supplemented (exclusive of any
amendments or supplements after the date hereof), there is no action,
suit or proceeding (whether individually or in the aggregate) before or
by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of NMAC, threatened, against or affecting
any of the Titling Trust or NILT Trust that could reasonably be
expected to have any Material Adverse Effect.
(v) Absence of Further Requirements. No authorization,
approval or consent of any court, governmental authority or agency or
any other person is necessary in connection with the execution,
delivery and performance by the Titling Trust or NILT Trust of this
Agreement, the SUBI Trust Agreement or any Basic Document to which any
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.
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(vi) Possession of Licenses and Permits. Each of the
Titling Trust and NILT Trust possesses all material certificates,
authorizations, licenses and permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies as are necessary to
conduct the business now operated by it; all such certificates,
authorizations, licenses and permits are valid and in full force and
effect except where such invalidity or failure to be in full force and
effect does not have a Material Adverse Effect; and neither the Titling
Trust nor NILT Trust has received notice of any proceedings relating to
the revocation or modification of any such certificate, authority,
license or permit which, singly or in the aggregate, could reasonably
be expected to have a Material Adverse Effect.
(vii) Authorization of Basic Documents. As of the Closing
Time, each Basic Document to which any of the Titling Trust or NILT
Trust is a party has been duly authorized, executed and delivered by
the Titling Trust or NILT Trust, as the case may be, and (assuming the
due authorization, execution and delivery thereof by the other parties
thereto) constitutes the legal, valid and binding agreement of the
Titling Trust and NILT Trust, as applicable, enforceable against such
party in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws related to fraudulent transfers), moratorium,
reorganization or other similar laws affecting enforcement of
creditors' rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(viii) Title to SUBI Assets. At the time of execution and
delivery of the SUBI Supplement at the Closing Time, the Titling Trust,
or the Titling Trustee on behalf of the Titling Trust, will own the
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,
10
consumer protection laws, except where failure to so comply would not
have a Material Adverse Effect.
(d) Officer's Certificates. Any certificate respecting the Notes
signed by any officer of the Transferor, NMAC or any of their respective
Affiliates and delivered at the Closing Time to the Underwriters or to counsel
to the Underwriters shall be deemed a representation and warranty by the
Transferor, NMAC or such Affiliate, as the case may be, to the Underwriters as
to the matters covered thereby.
Section 2. Sale and Delivery to Underwriters; Closing.
(a) Notes. On the basis of and in reliance on the representations,
warranties and agreements herein contained and subject to the terms and
conditions set forth herein, the Transferor agrees to sell to the Underwriters,
and the Underwriters agree to purchase aggregate principal amounts of the Notes
set forth opposite the names of the Underwriters in Schedule A hereto.
(b) Purchase Price. The Notes are to be purchased at a purchase
price equal to (i) in the case of the Class A-1 Notes, 99.87500% of the
aggregate principal amount thereof, (ii) in the case of the Class A-2 Notes,
99.83981% of the aggregate principal amount thereof, (iii) in the case of the
Class A-3a Notes, 99.77500% of the aggregate principal amount thereof and (iv)
in the case of the Class A-3b Notes, 99.75761% 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 29, 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
11
Rule 430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Transferor will file the Prospectus, properly completed, and any supplement
thereto, with the Commission pursuant to and in accordance with the applicable
Rules and Regulations within the time period prescribed. The Transferor will
advise the Representative promptly of any such filing pursuant to Rule 424(b),
or deemed effectiveness pursuant to Rule 462.
(b) Notice and Effect of Material Events. The Transferor will
advise the Representative promptly of any proposal to amend or supplement the
Registration Statement as filed or the Prospectus and will not effect any such
amendment or supplement without the Representative's reasonable consent. The
Transferor will advise the Representative promptly of the effectiveness of the
Registration Statement (if the Effective Time is subsequent to the execution and
delivery of this Agreement), of any amendment or supplement of the Registration
Statement or the Prospectus and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement. The Transferor will
use its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) Amendment to Prospectus. If, at any time when the delivery of
the Prospectus shall be required by law in connection with sales of any Notes,
either (i) any event shall have occurred as a result of which the Prospectus, as
then amended or supplemented, would include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or (ii) for any other reason it shall be necessary to amend or
supplement the Prospectus, the Transferor will promptly notify the
Representative and will promptly prepare for review by the Representative and
file with the Commission an amendment or a supplement to the Prospectus that
will correct such statement or omission or effect such compliance. Neither the
consent of the Underwriters to, nor the delivery by the Underwriters of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 6, unless such consent specifically waives such conditions.
(d) Earnings Statement. The Transferor will cause the Trust to
make generally available to Holders as soon as practicable, but not later than
fourteen months after the Effective Date, an earnings statement of the Trust
covering a period of at least twelve consecutive months beginning after such
Effective Date and satisfying the provisions of Section 11(a) of the Act
(including Rule 158 promulgated thereunder).
(e) Copies of Registration Statements. The Transferor will furnish
to the Representative copies of the Registration Statement (which will include
all exhibits), the related preliminary prospectus, the Prospectus and all
amendments and supplements to such documents, in each case as soon as available
and in such quantities as the Representative may from time to time reasonably
request.
(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
12
condition of the Transferor and the Trust as the Representative may from time to
time reasonably request.
(g) Qualification of Notes for Offer and Sale. The Transferor
shall use its reasonable efforts, in cooperation with the Underwriters, to
qualify the Notes for offering and sale under the applicable securities laws of
such jurisdictions in the United States as the Underwriters may reasonably
designate in writing and shall maintain such qualifications in effect as long as
required for the sale of the Notes; provided, however, that neither NMAC nor the
Transferor shall be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(h) Rating of Notes. The Transferor shall take all reasonable
action necessary to enable Moody's Investors Service, Inc. ("MOODY'S"), 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
13
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 and the
Transferor of their covenants and other obligations hereunder and to the
following additional conditions:
(a) If the Effective Time of the Registration Statement is prior
to the execution and delivery of this Agreement, the Prospectus (including any
amendments or supplements thereto as of such date) shall have been filed with
the Commission in accordance with the Rules and Regulations and Section 4(a) of
this Agreement. If the Effective Time of the Registration Statement is not prior
to the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 p.m., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by the Representative. Prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Transferor, shall be contemplated by the Commission.
(b) Accountants' Comfort Letter. At the Closing Time, the
Underwriters, NMAC and the Transferor shall have received from Deloitte & Touche
LLP a letter or letters dated as of the Closing Time, in form and substance as
previously agreed to by the Underwriters and otherwise satisfactory in form and
substance to the Underwriters and counsel, containing statements and information
of the type ordinarily included in accountant's "comfort letters", with respect
to certain financial, statistical and other information contained in the
Prospectus.
(c) Officers' Certificates.
(i) The Underwriters shall have received an officers'
certificate, dated the Closing Date, signed by the Chairman of the
Board, the President or any Vice President and by a principal financial
or accounting officer of the Transferor representing and warranting
that, to the best of such officers' knowledge after reasonable
investigation, as of the Closing Date:
(A) The representations and warranties of the
Transferor in this Agreement are true and correct in all
material respects, that the Transferor has complied with all
agreements and satisfied in all material respects all
conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date,
14
that no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the best of their
knowledge, are contemplated by the Commission.
(B) There has been no material adverse change,
since the respective dates as of which information is given in
the Prospectus, as then amended and supplemented, (except as
otherwise set forth therein and exclusive of amendments or
supplements after the date hereof), in the condition,
financial or otherwise, earnings or business affairs, whether
or not arising out of the ordinary course of business, of the
Transferor or any of its Affiliates, or in the ability of such
entity to perform its obligations under each Basic Document to
which it is a party or by which it may be bound.
(ii) The Underwriters shall have received an officers'
certificate, dated the Closing Date, signed by the Chairman of the
Board, the President or any Vice President and by a principal financial
or accounting officer of NMAC representing and warranting that, to the
best of such officers' knowledge after reasonable investigation, as of
the Closing Date:
(A) The representations and warranties of NMAC
in this Agreement are true and correct in all material
respects, that NMAC has complied with all agreements and
satisfied, in all material respects, all conditions on its
part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness
of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
best of their knowledge, are contemplated by the Commission.
(B) There has been no material adverse change,
since the respective dates as of which information is given in
the Prospectus, as then amended and supplemented (except as
otherwise set forth therein and exclusive of amendments or
supplements after the date hereof), in the condition,
financial or otherwise, earnings or business affairs, whether
or not arising out of the ordinary course of business, of NMAC
or any of its Affiliates, or the ability of such entity to
perform its obligations under each Basic Document to which it
is a party or by which it may be bound.
(d) Opinion of In House Counsel for NMAC and the Transferor. At
the Closing Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Time, of 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 is a corporation validly existing under the laws
of the State of California with corporate power and authority to own
its properties and conduct its business as described in the Prospectus,
as then amended or supplemented, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or the ownership of its property requires such
qualification, except where the failure to be in good standing would
not have a Material Adverse Effect.
15
(ii) The Transferor has the power and authority to own its
properties and conduct its business as described in the Prospectus, as
then amended or supplemented, and is duly qualified to transact
business in each jurisdiction in which the conduct of its business or
the ownership of its property requires such qualification, except where
the failure to be so qualified would not have a Material Adverse
Effect.
(iii) This Agreement has been duly authorized, executed and
delivered by each of NMAC and the Transferor.
(iv) The Transferor LLC Agreement and each Basic Document
to which any of NMAC and the Transferor is a party has been duly
authorized, executed and delivered by NMAC and the Transferor, as
applicable, and each of the Transferor and NMAC has the power and
authority to enter into and perform its respective obligations under
the Basic Documents.
(v) There are no legal or governmental proceedings known
by such counsel, or for which NMAC or the Transferor has been served
official notice, to be pending to which the Transferor, NMAC, NILT
Trust or the Titling Trust is a party or of which any property of the
Transferor, NMAC, NILT Trust or the Titling Trust is the subject, and
no such proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others, (A)
(whether individually or in the aggregate) that are required to be
disclosed in the Registration Statement or (B)(1) asserting the
invalidity of all or part of this Agreement or any Basic Document, (2)
seeking to prevent the issuance of the Notes, (3) (whether individually
or in the aggregate) that would materially and adversely affect the
Transferor's, NMAC's, NILT Trust's or the Titling Trust's obligations
under this Agreement or any Basic Document to which it is a party, or
(4) (whether individually or in the aggregate) seeking adversely to
affect the federal income tax attributes of the Notes as described in
the Prospectus under the heading "Certain Material Federal Income Tax
Consequences."
(vi) To such counsel's knowledge, no order, consent,
authorization or approval of any California or federal court or
governmental authority or agency applicable to NMAC or the Transferor,
is required in connection with the issuance of the SUBI Certificate or
the Securities or the offering or the sale of the Notes, except those
authorizations, approvals, consents and orders which have previously
been obtained and are in full force and effect as of the Closing Time.
Such counsel need not express an opinion with respect to any orders,
consents, permits, approvals, filings or licenses relating to the
authority to lease motor vehicles, originate lease contracts or to
service lease contracts or leased vehicles or any state or foreign
securities laws or as may be required by any regional or local
governmental authority (except for the opinions, as to qualification to
transact business as a foreign corporation and good standing, set forth
in clause (i) above).
(vii) The execution, delivery and performance by each of
NMAC and the Transferor of this Agreement or by NMAC or the Transferor
of the Transferor LLC Agreement or any Basic Document to which such
entity is a party, and the performance by each of them, of their
respective obligations hereunder or will not violate, result in a
16
breach of or constitute a default under, or with the giving of notice
or the passage of time or both, would constitute a default under or
result in the creation or imposition of any Lien (except as permitted
by the Basic Documents) upon any property or assets of such entity
pursuant to the terms of (1) NMAC's Articles of Incorporation, the
Transferor LLC Agreement or NMAC's bylaws, (2) to such counsel's
knowledge and except as otherwise provided in the Basic Documents, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which such entity is a party or by which it may be bound,
or to which any of the properties or assets of such entity is subject,
(3) to such counsel's knowledge, the Delaware General Corporation Law
or any statute, rule, regulation or order of any California or federal
body or any court, regulatory body or other governmental
instrumentality having jurisdiction over the Transferor or NMAC or
their respective properties or (4) the Notes; excepting, in the case of
clauses (2), (3) and (4) above, defaults, breaches or violations that
do not, in the aggregate, have a Material Adverse Effect.
(viii) To such counsel's knowledge, there is no reason to
believe that the Prospectus, as then amended or supplemented, at the
date of this Agreement (or any such amendment or supplement, as of its
respective date) or at the Closing Time included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the
financial, statistical or quantitative data contained in the
Prospectus.
(ix) To such counsel's knowledge, each of NMAC, the
Transferor, NILT Trust and the Titling Trust has obtained all necessary
certificates, authorities, licenses, permits and other governmental
authorizations necessary to conduct the business now operated by it,
except where the failure to possess such certificates, authorities,
licenses, permits and other governmental authorizations would not have
a Material Adverse Effect, and none of such entities has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authority, license or permit that, singly or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect.
(x) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, which is
not filed or described as required.
(e) Opinion of Counsel for NMAC and the Transferor. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
the Closing Time, of O'Melveny & Myers LLP, special counsel for NMAC and the
Transferor, in form and substance reasonably satisfactory to counsel for the
Underwriters and to the effect that:
(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
17
bankruptcy, insolvency, reorganization, moratorium, or similar laws now
or hereafter in effect, relating to or affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws)
and by general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance, injunctive
relief or any other equitable remedy, regardless of whether considered
in a proceeding in equity or at law.
(ii) Assuming the Notes have been duly and validly
authorized, when executed by the Owner Trustee and authenticated by the
Indenture Trustee as specified in the Indenture and the Trust Agreement
and delivered against payment of the consideration specified therefor
pursuant to this Agreement, the Notes will be legally valid and binding
obligations of the Trust, and entitled to the benefits of the Indenture
and enforceable against the Trust in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws now or hereafter in effect, relating to or
affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of specific
performance, injunctive relief or any other equitable remedy,
regardless of whether considered in a proceeding in equity or at law.
(iii) Assuming the due authorization, execution and
delivery thereof by the Owner Trustee and each other party thereto
(except NMAC), as applicable, each of the Basic Documents to which the
Trust is a party (other than the Notes) constitutes a legally valid and
binding obligation of the Trust enforceable against the Trust in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, or similar laws now or
hereafter in effect, relating to or affecting creditors' rights
generally (including, without limitation, fraudulent conveyance laws)
and by general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
and the possible unavailability of specific performance, injunctive
relief or any other equitable remedy, regardless of whether considered
in a proceeding in equity or at law.
(iv) None of the Transferor, NILT Trust, the Titling Trust
or the Trust is required to be registered under the Investment Company
Act of 1940, as amended (the "1940 ACT").
(v) The statements in the Prospectus under the captions
"Additional Legal Aspects of the Titling Trust and the SUBI",
"Additional Legal Aspects of the Leases and the Leased Vehicles",
"Certain Material Federal Income Tax Consequences", and "ERISA
Considerations", to the extent that they constitute matters of law or
legal conclusions relating to the federal laws of the United States or
the laws of the States of California or New York with respect thereto,
have been reviewed by such counsel and are correct in all material
respects.
(vi) Each Class A-1 Note, when issued, will constitute an
"Eligible Security" under Rule 2a-7 of the 1940 Act.
18
(vii) No order, consent, permit or approval of any
California, New York or federal governmental authority that such
counsel has, in the exercise of customary professional diligence,
recognized as applicable to NMAC or the Transferor, or to transactions
of the type contemplated by any Basic Document including the issuance
of the Notes, is required on the part of NMAC or the Transferor for the
execution and delivery of, and performance of their respective
obligations under, any Basic Document to which NMAC or the Transferor,
as the case may be, is a party, except for such as have been obtained
or made and are in full force and effect as of the Closing Date;
provided that such counsel expresses no opinion with respect to any
orders, consents, permits, approvals, filings or licenses related to
the authority to sell or lease motor vehicles, originate vehicle leases
or service vehicle leases or as may be required by any regional or
local governmental authority or under any foreign or state securities
laws.
(viii) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened, to which the
Transferor is a party or of which any property of NMAC or the
Transferor is the subject required to be disclosed in the Prospectus,
other than those disclosed therein, or (i) asserting the invalidity of
any Basic Document, (ii) seeking to prevent the issuance of the Notes
or the consummation of any of the transactions contemplated by any
Basic Document, (iii) that would, if determined adversely to the
Transferor, materially and adversely affect the performance by NMAC or
the Transferor of its respective obligations under, or the validity or
enforceability of any Basic Document, or (iv) seeking adversely to
affect the federal income tax attributes of the Notes as described in
the Prospectus under the heading "Certain Material Federal Income Tax
Consequences" or the California income or franchise tax attributes of
the Notes.
(ix) The Notes and the Basic Documents each conform in all
material respects with the respective descriptions thereof contained in
the Prospectus.
(x) Neither the Trust Agreement nor the SUBI Trust
Agreement is required to be qualified under the Trust Indenture Act of
1939, as amended (the "1939 ACT").
(xi) The Registration Statement filed with the Commission
has been declared effective under the Act and, to such counsel's
knowledge upon due inquiry, no stop order suspending the effectiveness
of the Registration Statement has been issued under the Act or
proceedings therefor initiated or threatened by the Commission, and the
Registration Statement and Prospectus, and each amendment or supplement
thereto, as of its respective effective or issue date, appeared on its
face to be appropriately responsive in all material respects to the
applicable requirements of the Act and the Rules and Regulations,
except that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except as contemplated by
paragraphs (ix) and (xv) of this Section to the extent set forth
therein; such counsel does not opine as to any financial 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.
19
(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 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.
20
Such counsel shall also state that they have participated in
conferences with the officers and other representatives of the Transferor,
representatives of their independent public accountants and representatives of
the Representative and their counsel, at which the contents of the Registration
Statement and Prospectus and related matters were discussed, but such counsel
has not independently verified the accuracy, completeness or fairness of the
statements contained or incorporated by reference therein, and accordingly such
counsel is unable to assume, and such counsel does not assume, any
responsibility for such accuracy, completeness or fairness, except for the
opinions expressed in paragraphs (v), (vi), and (ix) above. However, on the
basis of such 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.
21
(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 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
22
(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.
(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,
23
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. 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).
24
(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 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).
25
(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.
(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
26
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 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
27
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 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
28
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
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
29
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 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.
30
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 have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business or
properties of the Transferor, Nissan Motor Co., Ltd., NNA or NMAC that, in the
judgment of the Representative, materially impairs the investment quality of the
Notes or makes it impractical or inadvisable to proceed with completion of the
sale of and payment for the Notes; (ii) any downgrading in the rating of any
debt securities of NNA or any of its direct or indirect subsidiaries by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt
securities (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating); (iii)
any suspension or limitation of trading in securities generally on the New York
Stock Exchange or any setting of minimum prices for trading on such exchange;
(iv) any material disruption in commercial banking, securities settlement or
clearance services in the United States; (v) any banking moratorium declared by
federal or New York authorities; or (vi) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the reasonable judgment of the Representative, the effect of
any such outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and payment
for the Notes.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 5, and provided further that Sections 1, 7 and 8 shall
survive such termination and remain in full force and effect.
Section 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at 270 Park Avenue, 10th
Floor, New York, New York 10017, Attention: Brad Dansker; Notices to NMAC shall
be directed to it at 990 West 190th Street, Torrance, California 90502,
Attention: Treasurer; Notices to the Transferor shall be directed to it at 990
West 190th Street, Torrance, California 90502, Attention: Treasurer.
Section 12. Parties. This agreement shall inure to the benefit of and be
binding upon each of the Underwriters, NMAC, the Transferor and their respective
successors. Nothing expressed or mentioned in this agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, NMAC, the Transferor and their respective successors and the
controlling persons, directors and officers referred to in Section 7 any legal
or equitable right, remedy or claim under or in respect of this agreement or any
provision herein contained. This agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters, NMAC, the Transferor and their respective successors,
31
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.
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);
32
(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 (OTHER THAN SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 16. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 17. No Bankruptcy Petition. Each Underwriter agrees that, prior to
the date that is one year and one day after the payment in full of all
securities issued by the Transferor or by a trust for which the Transferor was
the depositor for which securities were rated by any nationally recognized
statistical rating organization, it will not institute against, or join any
other person in instituting against, the Transferor any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to NMAC and the Transferor a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, NMAC and the Transferor in accordance
with its terms.
Very truly yours,
NISSAN MOTOR ACCEPTANCE CORPORATION,
a California corporation
By: /s/ Joji Tagawa
------------------------------------------
Name: Joji Tagawa
Title: Treasurer
NISSAN AUTO LEASING LLC II, a Delaware limited
liability company
By: /s/ Joji Tagawa
------------------------------------------
Name: Joji Tagawa
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
J.P. MORGAN SECURITIES INC.,
as Representative of the Several Underwriters
By: /s/ Mikhail Radik
--------------------------------------------
Authorized Signatory
S-1
SCHEDULE A
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
UNDERWRITER CLASS A-1 NOTES CLASS A-2 NOTES CLASS A-3A NOTES CLASS A-3B NOTES
----------- --------------- --------------- ---------------- ----------------
J.P. Morgan Securities Inc. $ 150,300,000 $ 181,000,000 $ 247,950,000 $ 228,450,000
ABN AMRO Incorporated $ 14,000,000 $ 15,000,000 $ 21,000,000 $ 17,000,000
Citigroup Global Markets Inc. $ 16,000,000 $ 17,000,000 $ 23,000,000 $ 21,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $ 16,000,000 $ 17,000,000 $ 23,000,000 $ 21,000,000
Morgan Stanley & Co. Incorporated $ 16,000,000 $ 17,000,000 $ 23,000,000 $ 21,000,000
SG Cowen Securities Corporation $ 14,000,000 $ 15,000,000 $ 21,000,000 $ 17,000,000
The Williams Capital Group, L.P. $ 14,000,000 $ 15,000,000 $ 21,000,000 $ 17,000,000
Total $ 240,300,000 $ 277,000,000 $ 379,950,000 $ 342,450,000
(Nissan 2003-B Underwriting Agreement)
Schedule A-1
TABLE OF CONTENTS
Page
SECTION 1. REPRESENTATIONS AND WARRANTIES............................................................ 3
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING................................................ 11
SECTION 3. OFFERING BY UNDERWRITERS.................................................................. 11
SECTION 4. COVENANTS OF NMAC AND THE TRANSFEROR...................................................... 11
SECTION 5. PAYMENT OF EXPENSES....................................................................... 13
SECTION 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS................................................... 14
SECTION 7. INDEMNIFICATION........................................................................... 27
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY............................ 30
SECTION 9. FAILURE TO PURCHASE THE NOTES............................................................. 30
SECTION 10. TERMINATION OF AGREEMENT.................................................................. 31
SECTION 11. NOTICES................................................................................... 31
SECTION 12. PARTIES................................................................................... 31
SECTION 13. REPRESENTATION OF UNDERWRITERS............................................................ 32
SECTION 14. REPRESENTATION AND WARRANTIES OF UNDERWRITERS............................................. 32
SECTION 15. GOVERNING LAW............................................................................. 33
SECTION 16. EFFECT OF HEADINGS........................................................................ 33
SECTION 17. NO BANKRUPTCY PETITION.................................................................... 33
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