Exhibit 1.1
NISSAN AUTO LEASE TRUST 2008-A
$77,100,000
2.81450% Asset Backed Notes, Class A-1
$98,000,000
4.27% Asset Backed Notes, Class A-2a
$75,000,000
LIBOR + 1.55% Asset Backed Notes, Class A-2b
$155,000,000
5.14% Asset Backed Notes, Class A-3a
$70,000,000
LIBOR + 2.20% Asset Backed Notes, Class A-3b
UNDERWRITING AGREEMENT
April 16, 2008
Merrill
Lynch, Pierce, Fenner & Smith Incorporated
as Representative of the several Underwriters
4 World Financial Center
New York, New York 10080
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 (the “ Representative
”) and the several underwriters named in
Schedule A hereto (together with the Representative,
collectively, the “ Underwriters ”) with respect
to the purchase by the Underwriters of $77,100,000 aggregate
principal amount of 2.81450% Asset Backed Notes, Class A-1
(the “ Underwritten Class A-1 Notes ”),
$98,000,000 aggregate principal amount of 4.27% Asset Backed Notes,
Class A-2a (the “ Underwritten Class A-2a
Notes ”), $75,000,000 aggregate principal amount of LIBOR
+ 1.55% Asset Backed Notes, Class A-2b (the “
Underwritten Class A-2b Notes ” and, together
with the Underwritten Class A-2a Notes the “
Underwritten Class A-2 Notes ”) , $155,000,000
aggregate principal amount of 5.14% Asset Backed Notes,
Class A-3a the (“ Underwritten Class A-3a
Notes ”) and $70,000,000 aggregate principal amount of
LIBOR + 2.20% Asset Backed Notes, Class A-3b (the “
Underwritten Class A-3b Notes ” and, together with the
Underwritten Class A-3a Notes, the “ Underwritten
Class A-3 Notes ”) (collectively, the Underwritten
Class A-1 Notes, the Underwritten Class A-2 Notes and the
Underwritten Class A-3 Notes are referred to herein as the
“ Underwritten Notes ”), of Nissan Auto Lease
Trust 2008-A, a Delaware statutory trust (the “ Trust
” or
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“
Issuer ”), which Underwritten Notes the Depositor
proposes to sell to the Underwriters under the terms and conditions
herein.
In
addition to the Underwritten Notes, on the Closing Date the Trust
will issue and the Depositor or an affiliate of the Depositor will
retain $22,724,000 aggregate principal amount of 5.56% Asset Backed
Notes, Class A-4 (the “ Retained Class A-4
Notes ” and, together with the Underwritten Notes, the
“ Notes ”).
The Depositor was formed pursuant to
a limited liability company agreement, dated as of October 29,
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
$52,257,594.75 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 April 23, 2008 (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 April 23, 2008 (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 2008-A SUBI
supplement to the Titling Trust Agreement, dated as of
April 23, 2008 (the “ 2008-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 “ 2008-A SUBI ” (the “
2008-A SUBI ”). The Titling Trustee will allocate a
portfolio consisting of the 2008-A Leases, the 2008-A Vehicles and
certain other related assets to the 2008-A SUBI (collectively, the
“ 2008-A SUBI Assets ”). The Trust Assets
(including the 2008-A SUBI Assets) will be serviced by the Servicer
pursuant to a servicing agreement, dated as of March 1, 1999,
as supplemented by a 2008-A supplement, dated as of April 23,
2008 (collectively, the “ Servicing Agreement
”), in each case among the Titling Trust, NILT Trust and the
Servicer.
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In connection with the creation of
the 2008-A SUBI, the Titling Trust will issue to NILT Trust a
certificate (the “ SUBI Certificate ”)
representing a 100% beneficial interest in the 2008-A SUBI.
Pursuant to a SUBI certificate transfer agreement, dated as of
April 23, 2008 (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
April 23, 2008 (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 Titling 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 April 23, 2008 (the
“ Backup Security Agreement ”), among the
Titling Trust, NILT Trust, the Depositor, the Trust and the
Indenture Trustee, the control agreement, dated as of
April 23, 2008 (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 April 23, 2008 (the
“ Trust Administration Agreement ”), among the
Depositor, the Trust, the Indenture Trustee and NMAC, as
administrative agent, and the International Swaps and Derivatives
Association, Inc. (“ ISDA ”) Master Agreement
(Multi-Currency Cross Boarder), dated as of April 23, 2008,
between Nissan Auto Lease Trust 2008-A and HSBC Bank USA, National
Association (the “ Swap Counterparty ”) together
with the ISDA Schedule, the Credit Support Annex and each Swap
Confirmation for each class of Floating Rates Notes related thereto
(collectively, the “ Interest Rate Swap Agreement
”) 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 April 23, 2008,
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 (the “
Agreement of Definitions ”).
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 and Amendment No. 1
and Amendment No. 2 thereto (File Nos. 333-147542 and
333-147542-01), 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
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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 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
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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 April 14, 2008, relating to the Notes, as
supplemented by the supplement to prospectus supplement, dated
April 14, 2008, and as further supplemented by the second
supplement to prospectus supplement, dated April 14, 2008 (the
“ Preliminary Prospectus Supplement ”) and
accompanied by the base prospectus, dated April 14, 2008
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 April 16, 2008, 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
3:25 p.m. (New York time), April 16, 2008 (the “ Date
of Sale ”), which shall be the date of the first contract
of sale for the Underwritten 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 pricing and price
dependent information which appears in the Final Prospectus (the
“ Pricing Information ”), 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
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with the
Pricing Information, 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
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 Underwriter Information (as defined herein)
or 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
in the condition, financial or otherwise, earnings or business
affairs, whether or not arising out of the ordinary course of
business, of the Depositor or any of its affiliates (as such term
is defined in Rule 501(b) under the Act) (each, an “
Affiliate ”), or in the ability of such entity to
perform its obligations under each Basic Document to which it is a
party or by which it may be bound. Except as otherwise indicated by
the context, all references to the terms “material” in
this Agreement that refer to the Depositor or its Affiliates, or
any of them, shall be interpreted in proportion to the business of
NMAC and its consolidated subsidiaries, as a whole, and not in
proportion to the business of the Depositor or its Affiliate(s),
individually.
(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 the
consideration therefor, 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.
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(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.
(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 2008-A SUBI Assets . At or prior to the
Closing Date, the Titling Trustee will have allocated 2008-A Leases
and 2008-A Vehicles as 2008-A SUBI Assets that have an aggregate
Securitization Value as of the Cut-Off Date equal to
$550,081,594.75, and each of the 2008-A Leases and 2008-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.
(xii)
Due Authorization; Enforceability . The Notes have been duly
authorized and, when executed and delivered in accordance with the
Indenture and delivered against the consideration therefor, will be
valid and binding obligations of the Trust, enforceable against the
Trust in accordance with their respective terms, except as limited
by bankruptcy, insolvency, reorganization or other similar laws
relating to or affecting the enforcement of creditors’ rights
generally and by general equitable principles, regardless of
whether such enforceability is considered in a proceeding in equity
or at law.
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(xiii)
Not Ineligible Issuer . The Depositor is not, and on the
date on which the first bona fide offer of the Notes was made, was
not an “ineligible issuer” as defined in Rule 405
of the Rules and Regulations.
(xiv)
Written Communications . Other than the Preliminary
Prospectus and the Final Prospectus, neither the Depositor nor NMAC
(including their respective agents and 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 Act)
that constitutes an offer to sell or solicitation of an offer to
buy the Notes.
(xv)
No Other Contract Required . Neither the Depositor nor NMAC
knows of any contract or other document of a character required to
be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement, the Preliminary
Prospectus or the Final Prospectus, as then amended and
supplemented, which is not filed or described as required.
(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
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 on its
ability to perform its obligations under the Basic Documents.
(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.
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(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 on the Depositor’s or NMAC’s ability to
perform its respective obligations under the Basic Documents or on
the validity or enforceability thereof. 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 on
the transactions contemplated herein or on the Depositor’s or
NMAC’s respective ability to perform its obligations under
the Basic Documents, (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 on
either of the Depositor’s or NMAC’s ability to perform
its respective obligations under the Basic Documents.
(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 on the Depositor or
NMAC, respectively, 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
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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 on the Depositor’s or
NMAC’s ability to perform its respective duties under the
Basic Documents; 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, if the subject of any unfavorable
decision, ruling or finding, could reasonably be expected to have a
material adverse effect on the ability of either the Depositor or
NMAC to perform its respective obligations under the Basic
Documents.
(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 2008-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 2008-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 on the Trust, with respect
thereto.
(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
in the condition, financial or otherwise, earnings or business
affairs, whether or not arising out of the ordinary course of
business, of the Titling Trust or NILT Trust, or in the
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ability of
either of them to perform its respective obligations under each
Basic Document to which either of them is a party or by which
either of them may be bound.
(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 on the Titling Trust’s or NILT
Trust’s ability to perform its respective obligations under
the Basic Documents.
(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 on the Titling Trust’s or NILT Trust’s
ability to perform its respective obligations under the Basic
Documents or on the validity or enforceability thereof. 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 on the Titling
Trust’s or NILT Trust’s ability to perform its
respective obligations under the Basic Documents,
(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 on the Titling Trust’s or NILT Trust’s ability
to perform its respective obligations under the Basic
Documents.
(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
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11
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 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 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 on
the Titling Trust’s or NILT Trust’s ability to perform
its respective obligations under the Basic Documents; 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, if the subject of any unfavorable decision, ruling or
finding, could reasonably be expected to have a material adverse
effect on the ability of the Titling Trust or NILT Trust to perform
its respective obligations under the Basic Documents.
(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 2008-A SUBI Assets . At the time of execution and
delivery of the 2008-A SUBI Supplement at the Closing Date, the
Titling Trust, or the Titling Trustee on behalf of the Titling
Trust, will own the 2008-A Leases and hold marketable title to the
2008-A Vehicles, together with other rights relating to the 2008-A
Vehicles and the 2008-A Leases being allocated as 2008-A SUBI
Assets, in each case free and clear of any Liens (except as
permitted by the Basic Documents).
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(ix)
Absence of Assignment of 2008-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 2008-A Leases,
related contract rights, 2008-A Vehicles or other related rights
constituting the 2008-A SUBI Assets, or has obtained the release of
each such prior assignment.
(x)
Allocation of 2008-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 2008-A SUBI required by the SUBI
Trust Agreement.
(xi)
Leases . Each 2008-A Lease constitutes the legal, valid,
binding and enforceable agreement of the parties thereto, except as
the enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws related to fraudulent
transfers), moratorium, reorganization or other similar laws
affecting enforcement of creditors’ rights generally and by
general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law;
and each 2008-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 with respect thereto.
(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)
Underwritten 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,
severally and not jointly, to purchase aggregate principal amounts
of the Underwritten Notes set forth opposite the names of the
Underwriters in Schedule A hereto.
(b)
Purchase Price . The Underwritten Notes are to be purchased
by the Underwriters at a purchase price equal to (i) in the
case of the Underwritten Class A-1 Notes, 99.91500% of the
aggregate principal amount thereof, (ii) in the case of the
Underwritten Class A-2a Notes, 99.86542% of the aggregate
principal amount thereof, (iii) in the case of the
Underwritten Class A-2b Notes, 99.87500% of the aggregate principal
amount thereof, (iv) in the case of the Underwritten
Class A-3a Notes, 99.83180% of the aggregate principal amount
thereof and (v) in the case of the Underwritten
Class A-3b Notes, 99.83500% 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 Underwritten Notes to the
Representative, for the account of the Underwriters, at the office
of Mayer Brown LLP, 350
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2008-A Underwriting Agreement)
13
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
April 23, 2008, 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
Underwritten 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 Underwritten Notes will be represented by book entries on
the records of DTC and participating members thereof. Definitive
certificates evidencing the Underwritten Notes will be available
only under the limited circumstances specified in the Indenture.
Certificates for the Underwritten 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 Underwritten
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, 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
time of effectiveness of the Registration Statement 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, during such 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 of the Act), either
(i) any event shall have
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2008-A Underwriting Agreement)
14
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).
(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 Underwritten Notes for Offer and Sale . The
Depositor shall use its reasonable efforts, in cooperation with the
Underwriters, to qualify the Underwritten 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 Underwritten 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, and the
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15
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 2008-A 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 Underwritten 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 Underwritten Notes; (v) the qualification
of the Underwritten 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 Underwritten Notes that would
constitute a “prospectus” or a “free writing
prospectus,” each as defined in the Act or the Rules and
Regulations thereunder, including, but not limited to any
“ABS informational and computational
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2008-A Underwriting Agreement)
16
materials” as defined in Item 1101(a) of Regulation AB
under the Act; provided , however , that (i) each
Underwriter may prepare and convey one or more “written
communications” (as defined in Rule 405 under the Act)
containing no more than the following: (A) information
contemplated by Rule 134 under the Act and included or to be
included in the Preliminary Prospectus or the Final Prospectus,
including but not limited to, information relating to the class,
size, weighted average life, rating, expected final payment date,
legal maturity date, and/or the final price of the Underwritten
Notes, as well as a column or other entry showing the status of the
subscriptions for the Underwritten Notes and/or expected pricing
parameters of the Underwritten Notes, (B) an Intex CDI file
that does not contain any Issuer Information (as defined below)
other than Issuer Information included in the Preliminary
Prospectus previously filed with the Commission, and (C)
information customarily included in confirmations of sales of
securities and notices of allocations (each such written
communication, an “ Underwriter Free Writing
Prospectus ”); and (ii) unless otherwise consented
to by the Depositor or NMAC, no such Underwriter Free Writing
Prospectus shall be conveyed in a manner reasonably designed to
lead to its broad unrestricted dissemination such that, as a result
of such conveyance, the Depositor or NMAC shall be required to make
any filing of such Underwriter Free Writing Prospectus pursuant to
Rule 433(d) under the Act. As used herein, the term “
Issuer Information ” means any information of the type
specified in clauses (1) — (5) of footnote 271 of
Commission Release No. 33-8591 (Securities Offering Reform),
other than Underwriter Derived Information. As used herein, the
term “ Underwriter Derived Information ” shall
refer to information of the type described in clause (5) of
footnote 271 of Commission Release No. 33-8591 (Securities
Offering Reform) when prepared by any Underwriter, including
traditional computational and analytical materials prepared by the
Underwriter.
Section 7. Conditions of Underwriters’
Obligations . The obligations of the several Underwriters to
purchase and pay for the Underwritten Notes will be subject to the
accuracy of the representations and warranties o
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