EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
NISSAN AUTO LEASE TRUST
200[ ]-[ ]
[ ]%
Asset Backed Notes, Class A-1
[ ]%
Asset Backed Notes, Class A-2
[
]%
Asset Backed Notes, Class A-3
[ ]%
Asset Backed Notes, Class A-4
as
Representative (the “ Representative ”) of the
Underwriters
[
]
[
]
Dear Sir or Madam:
Nissan Motor
Acceptance Corporation, a California corporation (“
NMAC ”), and Nissan Auto Leasing LLC II, a Delaware
limited liability company (the “ Depositor ”),
hereby confirm their agreement with Merrill Lynch, Pierce, Fenner
& Smith Incorporated and the several underwriters named in
Schedule A hereto (the “ Underwriters
”) with respect to the purchase by the Underwriters of $[
]
aggregate principal amount of [ ]%
Asset Backed Notes, Class A-1 (the “ Class A-1
Notes ”),
$[ ]
aggregate principal amount of [ ]%
Asset Backed Notes, Class A-2 (the “ Class A-2
Notes ”), $[ ] aggregate
principal amount of [ ]% Asset Backed
Notes, Class A-3 (the “ Class A-3 Notes ”),
and
$[ ]
aggregate principal amount of [ ]%
Asset Backed Notes, Class A-4 Notes (the “
Class A-4 Notes ,” and together with the
Class A-1 Notes, the Class A-2 Notes and the
Class A-3 Notes, the “ Notes ”), of Nissan
Auto Lease Trust
200[ ]-[ ],
a Delaware statutory trust (the “ Trust ” or
“ Issuer ”), which Notes the Depositor proposes
to sell to the Underwriters under the terms and conditions
herein.
The Depositor was
formed pursuant to a limited liability company agreement, dated as
of October 24, 2001 (the “ Depositor LLC
Agreement ”), among NMAC, as member (the “
Depositor Member ”), and H. Edward Matveld and Cheryl
A. Lawrence, as special members.
Simultaneously
with the issuance of the Notes, the Depositor will cause the Trust
to issue
$[
] aggregate principal amount of Asset Backed Certificates
(the
“
Certificates ”). The Notes and the Certificates shall
collectively be referred to herein as the “ Securities
.” The Notes will be issued pursuant to an indenture, dated
as of
[
] (the “ Indenture ”), between the Trust and
[U.S. Bank National Association] (“[ U.S. Bank]
”), as trustee (in such capacity, the “ Indenture
Trustee ”). The Certificates will be issued pursuant to
an amended and restated trust agreement, dated as of [
]
(the “ Trust Agreement ”), between the Depositor
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 the
200[ ]-[
] SUBI supplement to the Titling Trust Agreement, dated as of
[ ], (the “ 200[
]-[
] 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 “ 200[ ]-[
] SUBI ” (the “
200[ ]-[
] SUBI ”). The Titling
Trustee will allocate a portfolio consisting of the
200[
]-[ ] Leases, the
200[
]-[ ] Vehicles and certain other
related assets to the 200[
]-[ ] SUBI (collectively, the “
200[ ]-[
] SUBI Assets ”). The
Trust Assets (including the 200[
]-[ ] SUBI Assets) will be serviced
by the Servicer pursuant to a servicing agreement, dated as of
March 1, 1999, as supplemented by a
200[
]-[ ] supplement, dated as of
[ ] (collectively, the “
Servicing Agreement ”), in each case among the Titling
Trust, NILT Trust and the Servicer.
In connection with
the creation of the 200[
]-[ ] SUBI, the Titling Trust will
issue to NILT Trust a certificate (the “ SUBI
Certificate ”) representing a 100% beneficial interest in
the 200[ ]-[
] SUBI. Pursuant to a SUBI
certificate transfer agreement, dated as of
[ ] (the “ SUBI Certificate
Transfer Agreement ”), between the Depositor and NILT
Trust, NILT Trust will sell the SUBI Certificate to the Depositor.
Pursuant to a trust SUBI certificate transfer agreement, dated as
of
[ ]
(the “ Trust SUBI Certificate Transfer Agreement
”), between the Depositor and the Trust, the Depositor will
sell the SUBI Certificate to the Trust. This Underwriting Agreement
(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
[ ] (the “ Backup Security
Agreement ”), among the Titling Trust, NILT Trust, the
Depositor, the Trust and the Indenture Trustee, the control
agreement, dated as of
[ ]
(the “ Control Agreement ”), among NMAC, the
Trust and [U.S. Bank], as Indenture Trustee, the secured party, and
securities intermediary (in such capacity, the “
Securities Intermediary ”), the trust administration
agreement dated as of
[ ]
(the “ Trust Administration
2
Agreement ”), among the Depositor, the Trust, the
Indenture Trustee and NMAC, as administrative agent, and the 1992
International Swaps and Derivatives Association, Inc. Master
Agreement (Multi Currency — Cross Border), as modified by the
Schedule and the Confirmations thereto, dated as of
[
] (the “ Interest Rate [Cap][Swap] Agreement ”),
between the Trust and
[
], as [cap provider][swap counterparty], 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 [ ], among the Trust, the
Titling Trust, the Titling Trustee, NILT Trust, the Depositor, the
Owner Trustee, NMAC, the Indenture Trustee, the Delaware Trustee
and the Trust Agent.
All references to
“ Material Adverse Effect ” in this Agreement,
with respect to any Person, shall mean a material adverse effect on
(i) the financial condition or operations of such Person and
its Affiliates, taken as one enterprise, (ii) the ability of
such Person to perform its material obligations under any of the
Basic Documents to which it is a party, (iii) the legality,
validity or enforceability of any material provision of the Basic
Documents to which such Person is a party, (iv) the SUBI
Certificate’s beneficial interest in all or any significant
portion of the 200[
]-[ ] SUBI Assets or the Indenture
Trustee’s security interest in the SUBI Certificate and all
or any significant portion of the
200[
]-[ ] SUBI Assets, or (v) the
collectibility or the credit worthiness of all or any significant
portion of the 200[
]-[ ] Leases and the
200[
]-[ ] Vehicles, other than, in the
case of clauses (i) through (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 Depositor 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 Depositor 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
Depositor or such Affiliate(s) individually.
Unless otherwise
stated, references to “Section” mean Sections of this
Agreement.
NMAC and the
Depositor hereby agree with the Underwriters as follows:
Section 1.
Representations and Warranties.
(a)
Representations and Warranties by NMAC and the Depositor .
Each of NMAC and the Depositor, jointly and severally, represents
and warrants to the Underwriters, as of the date hereof and as of
the Closing Date referred to in Section 2(c), and agrees with
the Underwriters as follows:
(i)
Registration Statement and Prospectus .
(A) A registration
statement (No. [
]), including a form of prospectus supplement relating to the Notes
and a form of base prospectus relating to each class of securities
to be registered under such registration statement (the “
Registered Securities ”), has been filed on Form S-3
with the Securities and Exchange Commission (the “
Commission ”) by the Depositor on behalf of the
Depositor and the Trust, and by NMAC, on behalf of
3
NILT Trust and
Nissan Infiniti LT (as used herein, the Depositor, NILT Trust and
Nissan Infiniti LT, collectively, the “ Registrants
”) and either (i) has been declared effective under the
Securities Act of 1933, as amended (the “ Securities
Act ”), and is not proposed to be amended or (ii) is
proposed to be amended by amendment or post-effective amendment. If
such registration statement (the “ initial registration
statement ”) has been declared effective, either
(i) any additional registration statement (the “
additional registration statement ”) relating to the
Notes has been filed with the Commission pursuant to rule 462(b)
(“ Rule 462(b) ”) under the Securities Act
and declared effective upon filing, and the Notes have been
registered under the Securities Act pursuant to the initial
registration statement and such additional registration statement
or (ii) any such additional registration statement proposed to
be filed with the Commission pursuant to Rule 462(b) will become
effective upon filing pursuant to Rule 462(b) and upon such filing,
the Notes will have been duly registered under the Securities Act
pursuant to the initial registration statement and such additional
registration statement. If the Registrants do not propose to amend
the initial registration statement, any such additional
registration statement or any post-effective amendment to either
such registration statement filed with the Commission prior to the
execution and delivery of this Agreement, then the most recent
amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Securities Act (“
Rule 462(c) ”) or Rule 462(b).
For purposes of
this Agreement, “ Effective Time ” with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional
registration statement means (A) if the Registrants 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 pursuant to Rule 462(c) or (B) if the
Registrants have advised the Representative that they propose 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. If the
Registrants have advised the Representative that they propose to
file, but have not filed, an additional registration statement,
“Effective Time” with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to
Rule 462(b). “ Effective Date ” with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective
Time thereof.
The initial
registration statement and all amendments and supplements thereto,
as amended at its time of effectiveness, including all information
(A) contained in the additional registration statement (if
any), (B) deemed to be a part of the initial registration
statement as of the time of effectiveness of the additional
registration statement (if any) pursuant to the General
Instructions of
4
the Form on
which it is filed and (C) deemed to be a part of the initial
registration statement as of its time of effectiveness pursuant to
Rule 430A(b) under the Securities Act (“
Rule 430A(b) ”), is hereinafter referred to as
the “ Initial Registration Statement .” The
additional registration statement and all amendments and
supplements thereto, as amended at its time of effectiveness,
including the contents of the initial registration statement
incorporated by reference therein and deemed to be a part of the
additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the “
Additional Registration Statement .” The Initial
Registration Statement, the Additional Registration Statement and
all Incorporated Documents are hereinafter referred to collectively
as the “ Registration Statements ” and
individually as a “ Registration Statement .” As
used herein, the term “ Incorporated Documents
”, when used with respect to the Registration Statement as of
any date, means the documents incorporated or deemed to be
incorporated by reference in the Registration Statement (i) as
of such date pursuant to Item 12 of Form S-3 or pursuant to a
no-action letter of the Commission or (ii) as of any other
date pursuant to Rule 430B(f) under the Securities Act. A
preliminary prospectus supplement, dated [
, 20___], relating to the Notes (the “ Preliminary
Prospectus Supplement ”) and accompanied by the base
prospectus, dated [
, 20___] relating to the Notes) (the “ Base Prospectus
”), will be filed with the Commission in connection with the
offering and sale of the Notes pursuant to and in accordance with
Rule 424(b) under the Securities Act (“
Rule 424(b) ”) within the time period required
thereby (together, including all material incorporated by reference
therein, the “ Preliminary Prospectus ”). A
final prospectus supplement, dated [
, 20___], relating to the Notes (the “ Prospectus
Supplement ”), and accompanied by the Base Prospectus,
will be filed with the Commission in connection with the offering
and sale of the Notes pursuant to and in accordance with Rule
424(b) within the time period required thereby (together, including
all material incorporated by reference therein, the “
Final Prospectus ”). As used herein, and for the sake
of clarity, each of the term “Preliminary Prospectus”
and “Final Prospectus” includes all static pool
information disclosed therein in response to Item 1105 of
Regulation AB (including, without limitation, the information
disclosed in the Appendices to the Preliminary Prospectus
Supplement and the Prospectus Supplement), whether or not such
information is otherwise deemed to be part of the Preliminary
Prospectus or the Final Prospectus under the Rules and
Regulations.
(B) (i)
(A) On the effective date of any Registration Statement whose
time of effectiveness is prior to the execution and delivery of
this Agreement, each such Registration Statement conformed,
(B) on the date of this Agreement, each such Registration
Statement conforms and (C) on any related effective date of
the Registration Statement, subsequent to the date of this
Agreement and on the Closing Date (as defined in Section 2(c)
hereof), each such Registration Statement will conform, in all
respects to the requirements of the Securities 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 ”), and at such times
each such Registration Statement, as amended, did not and will not
include any untrue
5
statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading. (ii) (A) As of [
] (New York time), [
, 20___] (the “ Date of First Use of the Preliminary
Prospectus ”), which shall be the date of the first use
of the Preliminary Prospectus, and at the time of filing of the
Preliminary Prospectus pursuant to Rule 424(b) (or if no such
filing is required, at the effective date of the Additional
Registration Statement that includes the Preliminary Prospectus),
the Preliminary Prospectus conformed, and (B) on the date of
this Agreement and at the Closing Date, the Preliminary Prospectus
will conform, in all respects to the requirements of the Securities
Act and the Rules and Regulations, and did not include, does not
include and will not include, any untrue statement of a material
fact, nor did, does or will the Preliminary Prospectus, as amended
and supplemented, omit (except pricing information to be included
in the Preliminary Prospectus and the Final Prospectus Supplement),
to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading. As of the date of the first use of the
Final Prospectus, at the time of filing of the Final Prospectus
pursuant to Rule 424(b) (or if no such filing is required, at the
effective date of the Additional Registration Statement that
includes the Final Prospectus), on the date of this Agreement and
at the Closing Date, the Final Prospectus will conform, in all
respects to the requirements of the Securities Act and the Rules
and Regulations, and does not include, and will not include, any
untrue statement of a material fact, nor did, does or will the
Final Prospectus, as amended and supplemented, omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The three preceding sentences
do not apply to statements in or omissions from the Registration
Statement, the Preliminary Prospectus or the Final Prospectus 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 which 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). If the time of effectiveness of the Registration
Statement is subsequent to the date of this Agreement, no
Additional Registration Statement has been or will be filed. The
Indenture has been qualified under the 1939 Act.
(ii) No
Material Adverse Effect . Since the respective date as of which
information is given in the Preliminary Prospectus and the Final
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 Date, 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
6
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, the Preliminary Prospectus and the
Final 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, the Preliminary
Prospectus and the Preliminary Prospectus and the Final 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.
(vi) No
Investment Company Registration . None of NMAC, the Depositor,
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 200[
]-[ ] SUBI Assets . At or prior
to the Closing Date, the Titling Trustee will have allocated 200[
]-[ ] Leases and 200[
]-[ ] Vehicles as
200[
]-[ ] SUBI Assets that have an
aggregate Securitization Value as of the Cut-Off Date equal to
$[ ]
and each of the 200[
]-[ ] Leases and
200[ ]-[
] Vehicles allocated as a SUBI Asset
at the Closing Date 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 Depositor, the Trust and NMAC in each
Basic Document 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 Depositor within
the meaning of the Securities Act and the Rules and
Regulations.
(xi) No Offer
or Solicitation . Other than the Preliminary Prospectus and the
Final Prospectus, neither the Depositor nor NMAC (including their
respective agents and
7
representatives
other than the Underwriters in their capacity as such) has made,
used, prepared, authorized, approved or referred to and will not
prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405
under the Securities Act) that constitutes an offer to sell or
solicitation of an offer to buy the Notes.
(b)
Representations and Warranties of the Depositor and NMAC .
Each of the Depositor and NMAC, jointly and severally, represents
and warrants to the Underwriters, as of the date hereof and as of
the Closing Date and agrees with the Underwriters as
follows:
(i) Due
Organization . The Depositor 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 Depositor as a limited liability company have been made. The
Depositor has power and authority to own, lease and operate its
properties and to conduct its business as described in the
Preliminary Prospectus and the Final 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 Preliminary Prospectus and the Final Prospectus,
as then amended or supplemented, and to enter into and perform its
obligations under the Basic Documents. Each of the Depositor and
NMAC is duly qualified as a foreign limited liability company or
corporation, as applicable, to transact business and is in good
standing in each jurisdiction in which the conduct of its business
or the lease or ownership of its property requires such
qualification, except where the failure so to qualify or to be in
good standing would not have a Material Adverse Effect.
(ii) Depositor
Member Interests . NMAC is the sole member of the Depositor
and, at the Closing Date, NMAC will own its 100% membership
interest in the Depositor free and clear of any Liens except as
permitted by the Basic Documents.
(iii) Absence
of Defaults and Conflicts . Neither the Depositor nor NMAC is
in violation of its organizational or charter documents, bylaws, or
the Depositor 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 Depositor 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 Depositor
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
8
subject, except
where such breach, violation, or default would not have a Material
Adverse Effect, (ii) conflict with the Depositor’s or
NMAC’s charter or bylaws or (iii) result in the creation or
imposition of any Lien (except as permitted by the Basic Documents)
upon any of the Depositor’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 Preliminary
Prospectus and the Final 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 Depositor and NMAC, threatened,
against or affecting the Depositor 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 Depositor or NMAC of this Agreement or any
Basic Document to which it is a party or (D) the consummation
by the Depositor 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
Date.
(vi) Possession
of Licenses and Permits . Each of the Depositor and NMAC
possesses all material certificates, authorizations, licenses and
permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies as are necessary to conduct the
business now operated by it; all such certificates, authorizations,
licenses and permits are valid and in full force and effect except
where such invalidity or failure to be in full force and effect
does not have a Material Adverse Effect; and neither the Depositor
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 Depositor and
NMAC.
(viii)
Authorization of Basic Documents . As of the Closing Date,
each of the Basic Documents to which any of the Depositor, NMAC or
the Trust is a party and the Depositor 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 Depositor 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.
9
(ix) Leases
. Each 200[
]-[ ] 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 200[
]-[ ] 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 Date
referred to in Section 2(c), and agrees with the Underwriters
as follows:
(i) No Material
Adverse Effect . Since the respective date as of which
information is given in the Preliminary Prospectus and the Final
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 and NILT Trust has the power and
authority to own, lease and operate its properties and to conduct
its business as described in the Preliminary Prospectus and the
Final 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
10
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 Preliminary
Prospectus and the Final 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 Date.
(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 Date,
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
11
principles of
equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law.
(viii) Title to
200[
]-[ ] SUBI Assets . At the time
of execution and delivery of the 200[
]-[ ] SUBI Supplement at the Closing
Date, the Titling Trust, or the Titling Trustee on behalf of the
Titling Trust, will own the 200[
]-[ ] Leases and hold marketable
title to the 200[
]-[ ] Vehicles, together with other
rights relating to the 200[
]-[ ] Vehicles and the
200[
]-[ ] Leases being allocated as
200[
]-[ ] SUBI Assets, in each case free
and clear of any Liens (except as permitted by the Basic
Documents).
(ix) Absence of
Assignment of 200[
]-[ ] SUBI Assets . As of the
Closing Date, the Titling Trust has not assigned to any Person any
of its right, title or interest in any of the
200[
]-[ ] Leases, related contract
rights, 200[
]-[ ] Vehicles or other related
rights constituting the 200[
]-[ ] SUBI Assets, or has obtained
the release of each such prior assignment.
(x) Allocation
of 200[
]-[ ] SUBI Assets . As of Closing
Date, the Servicer has made the appropriate allocation of assets
within the estate of the Titling Trust to the
200[
]-[ ] SUBI required by the SUBI Trust
Agreement.
(xi) Leases
. Each 200[
]-[ ] 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 200[
]-[ ] Lease complies or will comply
on the Closing Date in all material respects as to content and form
with all applicable state and federal laws, including, without
limitation, consumer protection laws, except where failure to so
comply would not have a Material Adverse Effect.
(d)
Officer’s Certificates . Any certificate respecting
the Notes signed by any officer of the Depositor, NMAC or any of
their respective Affiliates and delivered at the Closing Date to
the Underwriters or to counsel to the Underwriters shall be deemed
a representation and warranty by the Depositor, 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 Depositor
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,
[ ]% of
the aggregate principal amount thereof, (ii) in the case of the
Class A-2 Notes,
[ ]% of
the aggregate principal amount thereof, (iii) in
12
the case of the
Class A-3 Notes,
[ ]% of
the aggregate principal amount thereof and (iv) in the case of
the Class A-4 Notes,
[ ]% of
the aggregate principal amount thereof.
(c)
Payment . Against payment of the purchase price by wire
transfer of immediately available funds to the Depositor, the
Depositor will deliver the Notes to the Representative, for the
account of the Underwriters, at the office of Mayer, Brown, Rowe
& Maw LLP, 35 South Grand Avenue, 25 th Floor, Los Angeles, California 90071-1503 or at
such other place as shall be agreed upon by the Representative, the
Depositor and NMAC, on
[ ],
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 Depositor 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 Date.
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 Preliminary Prospectus and the Final
Prospectus.
Section 4.
Covenants of NMAC and the Depositor . NMAC and the Depositor
jointly and severally covenant with the Underwriters as
follows:
(a)
Registration Statement and Prospectus . The Depositor will
file the Preliminary Prospectus and the Final Prospectus with the
Commission pursuant to and in accordance with Rule 424(b) within
the prescribed time period and will provide evidence satisfactory
to the Representative of such timely filing. If the time of
effectiveness of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an Additional
Registration Statement is necessary to register a portion of the
Notes under the Securities Act but the time of effectiveness
thereof has not occurred as of such execution and delivery, the
Depositor will file the Additional Registration Statement or a
post-effective amendment thereto, as the case may be, with the
Commission pursuant to and in accordance with Rule 462(b). The
Depositor will advise the Representative promptly of any such
filing pursuant to Rule 424(b) or Rule 462(b), as
applicable.
(b)
Notice and Effect of Material Events . The Depositor will
advise the Representative promptly of any proposal to amend or
supplement the Registration Statement as filed or the Preliminary
Prospectus and the Final Prospectus and will not effect any such
amendment or supplement without the Representative’s
reasonable consent. The Depositor 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 Preliminary Prospectus and the Final Prospectus
and of the institution by the Commission of any stop order
proceedings in
13
respect of the
Registration Statement. The Depositor 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 a prospectus shall be required by law in connection with sales
of any Notes (including delivery as contemplated by Rule 172
under the Securities Act), either (i) any event shall have
occurred as a result of which the Preliminary Prospectus or the
Final Prospectus, as then amended and supplemented, would include
any untrue statement of a material fact or omit to state any
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 Preliminary Prospectus or the Final
Prospectus, the Depositor 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 Preliminary
Prospectus or the Final Prospectus which will correct such
statement or omission or effect such compliance. Neither your
consent to, nor the Underwriters’ delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d)
Earnings Statement . The Depositor 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 Securities Act
(including Rule 158 promulgated thereunder).
(e)
Copies of Registration Statements . The Depositor will
furnish to the Representative copies of the Registration Statement
(which will include all exhibits), the related Preliminary
Prospectus, the Final 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 Depositor will furnish to the Representative
copies of all reports or other communications (financial or
otherwise) furnished to Holders, and deliver to the Representative
during such same period (i) as soon as they are available,
copies of any reports and financial statements furnished to or
filed with the Commission, and (ii) such additional
information concerning the business and financial condition of the
Depositor and the Trust as the Representative may from time to time
reasonably request.
(g)
Qualification of Notes for Offer and Sale . The Depositor
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 Depositor 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.
14
(h)
Rating of Notes . The Depositor shall take all reasonable
action necessary to enable Moody’s Investors Service, Inc.
(“ Moody’s ”) and Standard and
Poor’s Ratings Services, a division of the McGraw-Hill
Companies, Inc. (“ S&P ” and together with
Moody’s, the “ Rating Agencies ”) to
provide the Class A-1 Notes with the highest short-term
rating, the remaining classes of the Notes with the highest
long-term rating or its equivalent at the Closing Date.
(i)
Furnishing of Documents . To the extent, if any, that the
rating provided with respect to the Notes by Moody’s or
S&P is conditional upon the furnishing of documents or the
taking of any other actions by the Depositor, the Depositor shall
furnish, and shall cause NMAC to furnish, such documents and take
such other actions.
(j) Use
of Proceeds . The Depositor shall cause the Trust to use the
net proceeds received by it from the sale of the Notes in the
manner specified in the Preliminary Prospectus and the Final
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 Depositor 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 the 200[
]-[ ] Servicing Supplement, as soon
as such statements and reports are furnished to the Indenture
Trustee.
Section 5.
Payment of Expenses .
Except as
otherwise agreed in writing by the parties hereto, the Depositor
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 Depositor’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 otherwi
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