NISSAN AUTO LEASE TRUST
2006-A
$228,300,000
5.34673% Asset Backed Notes, Class A-1
$548,000,000
5.23% Asset Backed Notes, Class A-2
$540,000,000
5.11% Asset Backed Notes, Class A-3
$252,500,000
5.10% Asset Backed Notes, Class A-4
Merrill Lynch,
Pierce, Fenner & Smith Incorporated
as Representative (the “
Representative ”) of the Underwriters
4 World Financial Center
New York, New York 10080
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
$228,300,000 aggregate principal amount of 5.34673% Asset Backed
Notes, Class A-1 (the “ Class A-1 Notes
”), $548,000,000 aggregate principal amount of 5.23% Asset
Backed Notes, Class A-2 (the “ Class A-2 Notes
”), $540,000,000 aggregate principal amount of 5.11% Asset
Backed Notes, Class A-3 (the “ Class A-3
Notes ”), and $252,500,000 aggregate principal amount of
5.10% 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 2006-A, 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 $150,478,529.36 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 November 21, 2006 (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 November 21, 2006 (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
2006-A SUBI supplement to the Titling Trust Agreement, dated as of
November 21, 2006, (the “ 2006-A 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 “ 2006-A SUBI ” (the “
2006-A SUBI ”). The Titling Trustee will allocate a
portfolio consisting of the 2006-A Leases, the 2006-A Vehicles and
certain other related assets to the 2006-A SUBI (collectively, the
“ 2006-A SUBI Assets ”). The Trust Assets
(including the 2006-A SUBI Assets) will be serviced by the Servicer
pursuant to a servicing agreement, dated as of March 1, 1999,
as supplemented by a 2006-A supplement, dated as of
November 21, 2006 (collectively, the “ Servicing
Agreement ”), in each case among the Titling Trust, NILT
Trust and the Servicer.
In connection with
the creation of the 2006-A SUBI, the Titling Trust will issue to
NILT Trust a certificate (the “ SUBI Certificate
”) representing a 100% beneficial interest in the 2006-A
SUBI. Pursuant to a SUBI certificate transfer agreement, dated as
of November 21, 2006 (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
November 21, 2006 (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 November 21, 2006 (the
“ Backup Security Agreement ”), among the
Titling Trust, NILT Trust, the Depositor, the Trust and the
Indenture Trustee, the control agreement, dated as of
November 21, 2006 (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 ”), and
the trust administration agreement dated as of November 21,
2006 (the “ Trust Administration Agreement ”),
among the Depositor, the Trust, the Indenture Trustee and NMAC, as
administrative agent, 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
November 21, 2006,
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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 2006-A SUBI Assets or the Indenture Trustee’s
security interest in the SUBI Certificate and all or any
significant portion of the 2006-A SUBI Assets, or (v) the
collectibility or the credit worthiness of all or any significant
portion of the 2006-A Leases and the 2006-A 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, Preliminary Prospectus and Final
Prospectus . A registration statement (File
No. 333-134238), 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” ) and either (i) has been
declared effective under the Securities Act of 1933, as amended
(the “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 Act and declared
effective upon filing, and the Notes have been registered under the
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
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upon such
filing the Notes will have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Depositor and NMAC 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 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 Depositor 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 pursuant to Rule 462(c) or (B) if the
Depositor and NMAC 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 Depositor and NMAC 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).
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 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 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 Act. A preliminary prospectus
supplement, dated November 10, 2006, relating to the Notes
(the “Preliminary Prospectus Supplement” ) and
accompanied by the base prospectus, dated
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November 10, 2006 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 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 November 15, 2006,
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.
(ii) Compliance
with Laws; Disclosures . (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 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 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.
As of
12:15 P.M. (New York time), November 15, 2006 (the
“Date of Sale” ), which shall be the date of the
first contract of sale for the Notes, 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, together with the statements in the
Final Prospectus with respect to items identified in the
Preliminary Prospectus as to be completed in the Final Prospectus,
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, together with the statements in the Final Prospectus
with respect to items identified in the Preliminary Prospectus as
to be completed in the Final Prospectus, omit 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, as amended and supplemented as of such dates, will
conform, in all material respects to the requirements of the Act
and the Rules and
5
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 as of such dates, 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 Depositor or NMAC 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.
(iii) 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.
(iv) 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 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.
(v) 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.
(vi) 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 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.
6
(vii) 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 ”).
(viii)
Allocation of 2006-A SUBI Assets . At or prior to the
Closing Date, the Titling Trustee will have allocated 2006-A Leases
and 2006-A Vehicles as 2006-A SUBI Assets that have an aggregate
Securitization Value as of the Cut-Off Date equal to
$1,719,278,529.36 and each of the 2006-A Leases and 2006-A 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.
(ix) 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.
(x)
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.
(xi)
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.
(b)
Representations and Warranties of the Depositor and the
Depositor Member . 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 referred to in Section 2(c)
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
7
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 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
8
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.
(ix) Leases
. Each 2006-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 2006-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 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
9
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 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
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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 principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(viii) Title to
2006-A SUBI Assets . At the time of execution and delivery of
the 2006-A SUBI Supplement at the Closing Date, the Titling Trust,
or the Titling Trustee on behalf of the Titling Trust, will own the
2006-A Leases and hold marketable title to the 2006-A Vehicles,
together with other rights relating to the 2006-A Vehicles and the
2006-A Leases being allocated as 2006-A SUBI Assets, in each case
free and clear of any Liens (except as permitted by the Basic
Documents).
(ix) Absence of
Assignment of 2006-A 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 2006-A Leases, related contract
rights, 2006-A Vehicles or other related rights constituting the
2006-A SUBI Assets, or has obtained the release of each such prior
assignment.
(x) Allocation
of 2006-A SUBI Assets . As of Closing Date, the Servicer has
made the appropriate allocation of assets within the estate of the
Titling Trust to the 2006-A SUBI required by the SUBI Trust
Agreement.
(xi) Leases
. Each 2006-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
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of whether such
enforceability is considered in a proceeding in equity or at law;
and each 2006-A Lease complies or will comply on the Closing Date
in all material respects as to content and form with all applicable
state and federal laws, including, without limitation, consumer
protection laws, except where failure to so comply would not have a
Material Adverse Effect.
(d)
Officer’s Certificates . Any certificate respecting
the Notes signed by any officer of the 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 by the
Underwriters at a purchase price equal to (i) in the case of
the Class A-1 Notes, 99.92000% of the aggregate principal
amount thereof, (ii) in the case of the Class A-2 Notes,
99.86985% of the aggregate principal amount thereof, (iii) in
the case of the Class A-3 Notes, 99.84374% of the aggregate
principal amount thereof and (iv) in the case of the
Class A-4 Notes, 99.79889% 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 November 21, 2006, 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.
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Section 4.
Covenants of NMAC and the Depositor . NMAC and the Depositor
jointly and severally covenant with the Underwriters as
follows:
(a)
Registration Statement, Preliminary Prospectus and Final
Prospectus . The Depositor and NMAC 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 Act but the
time of effectiveness thereof has not occurred as of such execution
and delivery, the Depositor and NMAC 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 or 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, the Preliminary Prospectus or the Final Prospectus and
of the institution by the Commission of any stop order proceedings
in 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 Preliminary Prospectus and Final Prospectus .
If, at any time when the delivery of the Preliminary Prospectus or
the Final 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 Preliminary Prospectus or the Final
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 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 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 7, unless such consent
specifically waives such conditions.
(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 of the
Registration Statement, 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).
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(e)
Copies of Registration Statements . The Depositor will
furnish to the Representative copies of the Registration Statement
(which will include all exhibits), the 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.
(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 2006-A Servicing Supplement, as soon as
such statements and reports are furnished to the Indenture
Trustee.
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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 otherwise reproducing) and delivery to the
Underwriters of copies of each of the Preliminary Prospectus and
the Final Prospectus and any amendments or supplements thereto;
(vii) the reproducing and delivery to the Underwriters of
copies of the blue sky survey; and (viii) the fees charged by
Moody’s and S&P for rating the Notes. The Underwriters
shall not be responsible for the fees and disbursements of the
Owner Trustee, the Indenture Trustee and their respective counsel.
If the Underwriters, in accordance with the provisions of
Section 7 or Section 11, 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.
Covenant of the Underwriters . Each of the Underwriters
severally, and not jointly, covenants and agrees with the Depositor
and NMAC that other than the Preliminary Prospectus and the Final
Prospectus, without NMAC’s prior written approval, such
Underwriter has not 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 Act) relating to the offer and sale of
the Notes that woul
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