NISSAN AUTO LEASE TRUST 2011-B $156,000,000 0.34985% Asset Backed Notes, Class A-1 $378,000,000 LIBOR + 0.18% Asset Backed Notes, Class A-2 $351,000,000 0.92% Asset Backed Notes, Class A-3 $85,000,000 1.10% Asset Backed Notes, Class A-4 UNDERWRITING...
Exhibit 1.1
$156,000,000
0.34985% Asset Backed Notes, Class A-1
0.34985% Asset Backed Notes, Class A-1
$378,000,000
LIBOR + 0.18% Asset Backed Notes, Class A-2
LIBOR + 0.18% Asset Backed Notes, Class A-2
$351,000,000
0.92% Asset Backed Notes, Class A-3
0.92% Asset Backed Notes, Class A-3
$85,000,000
1.10% Asset Backed Notes, Class A-4
1.10% Asset Backed Notes, Class A-4
September 21, 2011
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated
One Bryant Park, 11th Floor
New York, New York 10036
as Representative of the several Underwriters
One Bryant Park, 11th Floor
New York, New York 10036
as Representative of the several Underwriters
Dear Sir or Madam:
Nissan Motor Acceptance Corporation, a California corporation (“NMAC”), and Nissan Auto Leasing LLC
II, a Delaware limited liability company (the “Depositor”), hereby confirm their agreement with
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx 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 $156,000,000 aggregate
principal amount of 0.34985% Asset Backed Notes, Class A-1 (the “Class A-1 Notes”), $378,000,000
aggregate principal amount of LIBOR + 0.18% Asset Backed Notes, Class A-2 (the “Class A-2 Notes”),
$351,000,000 aggregate principal amount of 0.92% Asset Backed Notes, Class A-3 (the “Class A-3
Notes”), and $85,000,000 aggregate principal amount of 1.10% Asset Backed Notes, Class A-4 (the
“Class A-4 Notes”) (collectively, the Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes,
and the Class A-4 Notes are referred to herein as the “Notes”), of Nissan Auto Lease Trust 2011-B,
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 29, 2001 (the “Depositor LLC Agreement”), among NMAC, as member (the “Depositor Member”),
and X. Xxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxxx, as special members.
Simultaneously with the issuance of the Notes, the Depositor will cause the Trust to issue at
least $198,693,999.35 aggregate principal amount of Asset Backed Certificates (the
(Nissan 2011-B Underwriting Agreement)
“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 September 28, 2011
(the “Indenture”), between the Trust and U.S. Bank National Association (“U.S. Bank”), as indenture
trustee (in such capacity, the “Indenture Trustee”). The Certificates will be issued pursuant to
an amended and restated trust agreement, dated as of September 28, 2011 (the “Trust Agreement”),
between the Depositor and Wilmington Trust, National Association (“WTNA”), as owner 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”), Wilmington
Trust Company, as Delaware trustee (in such capacity, the “Delaware Trustee”), and U.S. Bank
National Association (“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, as grantor and UTI
beneficiary, but not as initial beneficiary, 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 2011-B SUBI supplement to the Titling Trust Agreement, dated as of September
28, 2011 (the “2011-B 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
“2011-B SUBI” (the “2011-B SUBI”). The Titling Trustee will allocate a portfolio consisting of the
2011-B Leases, the 2011-B Vehicles and certain other related assets to the 2011-B SUBI
(collectively, the “2011-B SUBI Assets”). The Trust Assets (including the 2011-B SUBI Assets) will
be serviced by the Servicer pursuant to a servicing agreement, dated as of March 1, 1999, as
amended by the First Amendment to Servicing Agreement, dated as of January 3, 2001, and as
supplemented by a 2011-B supplement, dated as of September 28, 2011 (collectively, the “Servicing
Agreement”), in each case among the Titling Trust, NILT Trust, as grantor and UTI beneficiary, but
not as initial beneficiary, and the Servicer.
In connection with the creation of the 2011-B SUBI, the Titling Trust will issue to NILT Trust
a certificate (the “SUBI Certificate”) representing a 100% beneficial interest in the 2011-B SUBI.
Pursuant to a SUBI certificate transfer agreement, dated as of September 28, 2011 (the “SUBI
Certificate Transfer Agreement”), between the Depositor, as transferee, and NILT Trust, as
transferor, NILT Trust will sell the SUBI Certificate to the Depositor. Pursuant to a trust SUBI
certificate transfer agreement, dated as of September 28, 2011 (the “Trust SUBI Certificate
Transfer Agreement”), between the Depositor and the Trust, as transferee, 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
Agreement of Definitions (as defined in the following
(Nissan 2011-B Underwriting Agreement)
2
sentence), the control agreement, dated as of September 28, 2011 (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 September 28, 2011 (the “Trust Administration Agreement”), among the
Depositor, the Trust, the Indenture Trustee and NMAC, as administrative agent (the “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 September 28, 2011, among the Trust, the Titling Trust, the Titling
Trustee, NILT Trust, as grantor, transferor and UTI beneficiary, but not initial beneficiary, the
Depositor, the Owner Trustee, NMAC, the Servicer, the Administrative Agent, 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 (File Nos. 333-170956 and 333-170956-03), 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, 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) under the Act (“Rule 462(b)”) 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).
(Nissan 2011-B Underwriting Agreement)
3
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 (as defined below) 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 September 16, 2011
relating to the Notes (the “Preliminary Prospectus Supplement”), and accompanied by the base
prospectus, dated September 16, 2011, 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 free writing prospectus, dated September 16, 2011, relating to
the ratings on the Notes (the “Ratings Free Writing Prospectus”) will be filed with the
Commission in accordance with Section 7 (to the extent required by Rule 433 under the Act).
A final prospectus supplement, dated September 21, 2011, relating to the Notes (the
“Prospectus Supplement”), and accompanied by the Base Prospectus, will be filed
(Nissan 2011-B Underwriting Agreement)
4
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 of the Commission (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 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
2:55 p.m (New York time), September 21, 2011 (the “Date of Sale”), which shall be the
date and time 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 Ratings Free Writing 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 Ratings Free
Writing 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
(it being understood that no representation or warranty is made with respect to the omission
of pricing and price-dependent information, which information shall appear only in the Final
Prospectus).
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.
(Nissan 2011-B Underwriting Agreement)
5
The three preceding paragraphs do not apply to statements in or omissions from the
Registration Statement, the Preliminary Prospectus, the Ratings Free Writing 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, the Ratings Free Writing 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 term “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 Owner Trustee on behalf of 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.
(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 Representative.
(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
(Nissan 2011-B Underwriting Agreement)
6
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 2011-B SUBI Assets. At or prior to the Closing Date, the
Titling Trustee will have allocated 2011-B Leases and 2011-B Vehicles as 2011-B SUBI Assets
that have an aggregate Securitization Value as of the Cut-Off Date of not less than
$1,168,693,999.35, and each of the 2011-B Leases and 2011-B Vehicles allocated as a 2011-B
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. Ernst & Young LLP are independent public
accountants with respect to the Depositor within the meaning of the Act and the Rules and
Regulations.
(xii) 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.
(xiii) Written Communications. Other than the Preliminary Prospectus, the
Ratings Free Writing Prospectus, the Final Prospectus and any materials included in one or
more “road shows” (as defined in Rule 433(h) under the Act) relating to the Notes authorized
or approved by the Depositor and NMAC, 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.
(xiv) 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.
(Nissan 2011-B Underwriting Agreement)
7
(xv) Rating Agency Representation. NMAC has executed and delivered a written
representation (each, a “17g-5 Representation”) to each rating agency hired to rate the
Notes (each a “Rating Agency,” and collectively the “Rating Agencies”) that it will take the
actions specified in paragraphs (a)(3)(iii)(A) through (D) of Rule 17g-5 of the Exchange Act
(“Rule 17g-5”). NMAC has complied and has caused the Depositor to comply with each 17g-5
Representation, other than any breach of a 17g-5 Representation that would not have a
material adverse effect on the Noteholders.
(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.
(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
(Nissan 2011-B Underwriting Agreement)
8
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 the Depositor
LLC Agreement, as the case may be, 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
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.
(Nissan 2011-B Underwriting Agreement)
9
(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 2011-B 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
2011-B 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, the Ratings Free Writing 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 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
(Nissan 2011-B Underwriting Agreement)
10
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, 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 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
(Nissan 2011-B Underwriting Agreement)
11
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 2011-B SUBI Assets. At the time of execution and delivery of
the 2011-B SUBI Supplement on the Closing Date, the Titling Trust, or the Titling Trustee on
behalf of the Titling Trust, will own the 2011-B Leases and hold marketable title to the
2011-B Vehicles, together with other rights relating to the 2011-B Vehicles and the 2011-B
Leases being allocated as 2011-B SUBI Assets, in each case free and clear of any Liens
(except as permitted by the Basic Documents).
(ix) Absence of Assignment of 2011-B 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 2011-B Leases, related contract rights, 2011-B Vehicles or other related rights
constituting the 2011-B SUBI Assets, or has obtained the release of each such prior
assignment.
(x) Allocation of 2011-B SUBI Assets. As of Closing Date, the Servicer has
made the appropriate allocation of assets within the estate of the Titling Trust to the
2011-B SUBI required by the SUBI Trust Agreement.
(Nissan 2011-B Underwriting Agreement)
12
(xi) Leases. Each 2011-B 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
2011-B 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) 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 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, 99.90000% of the aggregate principal amount
thereof, (ii) in the case of the Class A-2 Notes, 99.81000% of the aggregate principal amount thereof,
(iii) in the case of the Class A-3 Notes, 99.71126% of the aggregate principal amount thereof, and (iv)
in the case of the Class A-4 Notes, 99.61403% 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 Winston & Xxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 or at such other place as shall be agreed upon by the Representative, the
Depositor and NMAC, on September 28, 2011, at 10:00 a.m., New York 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 the 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.
(Nissan 2011-B Underwriting Agreement)
13
Section 3. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Notes for sale to the public as set forth in the Preliminary Prospectus and
the Final Prospectus.
Section 4. Covenants of NMAC and the Depositor. NMAC and the Depositor jointly and
severally covenant with the Underwriters as follows:
(a) Registration Statement, Preliminary Prospectus, Ratings Free Writing Prospectus and
Final Prospectus. The Depositor and NMAC will file the Preliminary Prospectus, the Ratings
Free Writing 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, any Ratings Free Writing 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, any Ratings Free Writing 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, Ratings Free Writing 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 occurred as a result of which the Preliminary Prospectus, any
Ratings Free Writing 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, any Ratings Free Writing 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, such
Ratings Free Writing 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
(Nissan 2011-B Underwriting Agreement)
14
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); provided that this
covenant may be satisfied by posting the monthly investor reports for the Trust on a publicly
available website or filing such monthly investor reports with the Commission on Form 10-D.
(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 Ratings Free Writing 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 furnished to
Holders, and deliver to the Representative during such same period (i) as soon as they are
available, copies of any reports 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; provided, that this
covenant may be satisfied by posting such reports or other communications on a publicly available
web site or filing such reports or communications with the Commission.
(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 each Rating Agency to provide the Notes with the ratings indicated in the Ratings Free
Writing Prospectus from the nationally recognized statistical rating organizations named therein.
(i) Furnishing of Documents. To the extent, if any, that the rating provided with
respect to the Notes by the Rating Agencies 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.
(Nissan 2011-B Underwriting Agreement)
15
(j) Use of Proceeds. The Depositor shall 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. For so long as the Depositor is filing reports
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), with respect to the
Issuer, 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 (i) the annual
statements of compliance furnished to the Indenture Trustee pursuant to Section 8.11(b) of
the 2011-B Servicing Supplement and (ii) the annual independent certified public accountants’
reports furnished to the Indenture Trustee pursuant to Section 8.10 of the 2011-B Servicing
Supplement, in each case, as soon as such statements and reports are furnished to the Indenture
Trustee; provided, that this covenant may be satisfied by filing such statement or report,
as applicable, with the Commission.
(l) 17g-5 Representation Compliance. NMAC will comply and will cause the Depositor to
comply with each 17g-5 Representation, other than any breach of a 17g-5 Representation that would
not have a material adverse effect on the Noteholders.
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 to 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, the
Ratings Free Writing 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 the Rating Agencies 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 to the
Underwriters.
Section 6. Covenant of the Underwriters.
(a) Each of the Underwriters severally, and not jointly, covenants and agrees with the
Depositor and NMAC that other than the Preliminary Prospectus, the Ratings Free Writing Prospectus,
the Final Prospectus and any materials included in one or more “road shows” (as defined in Rule
433(h) under the Act) relating to the Notes authorized or approved by the Depositor and NMAC,
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,
(Nissan 2011-B Underwriting Agreement)
16
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 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 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, the Ratings Free Writing 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
Notes, as well as a column or other entry showing the status of the subscriptions for the Notes
and/or expected pricing parameters of the 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 or the Ratings Free Writing Prospectus previously filed with the Commission, (C)
information customarily included in confirmations of sales of securities and notices of
allocations, (D) information regarding the credit ratings assigned to the notes by the rating
agencies hired to rate the Notes (each such written communication, an “Underwriter Free Writing
Prospectus”), and (E) any materials included in one or more “road shows” (as defined in Rule 433(h)
under the Act, but excluding the requirement in that definition for a presentation by issuer’s
management); 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.
(b) Each Underwriter, severally and not jointly, covenants with NMAC and the Depositor that on
or prior to the Closing Date, and thereafter, to the extent applicable, so long as it is acting as
an “underwriter” as defined in Section 2(a)(11) of the Act with respect to the Notes, it (a) will
not deliver any Rating Information (as defined below) to any Rating Agency or any other “nationally
recognized statistical rating organization” (within the meaning of the Exchange Act), and (b) will
not participate in any oral communication of Rating Information with any Rating Agency or any other
“nationally recognized statistical rating organization” (within the meaning of the Exchange Act)
unless a designated representative from NMAC participates in such communication; provided, however,
that if an Underwriter receives an oral communication from a Rating Agency, such Underwriter is
authorized to inform such Rating Agency that it will respond to the oral communication with a
designated representative from NMAC or refer such Rating Agency to NMAC, who will respond to the
oral communication. “Rating Information” means any oral or written information provided to a
Rating Agency for the purpose of (a) determining the initial credit rating for the Notes, including
information about the characteristics of the 2011-B SUBI Assets and the legal structure of the
Notes, or (b)
(Nissan 2011-B Underwriting Agreement)
17
undertaking credit rating surveillance on the Notes, including information about the
characteristics and performance of the 2011-B SUBI Assets.
Section 7. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters to purchase and pay for the Notes will be subject to the accuracy of the
representations and warranties on the part of the Depositor and NMAC herein on the date hereof and
at the Closing Date, to the accuracy of the statements of officers of the Depositor and NMAC made
pursuant to the provisions hereof, to the performance by the Depositor and NMAC of their respective
covenants and other obligations hereunder and to the following additional conditions precedent:
(a) Effective Time. If the time of effectiveness of the Registration Statement is
prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Ratings Free
Writing Prospectus and the Final Prospectus (including any amendments or supplements thereto as of
such date) shall have been filed with the Commission in accordance with the Rules and Regulations
and Section 4(a) of this Agreement. If the Effective Time of the Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the time the
Final Prospectus is printed and distributed to any Underwriter, or shall have occurred at such
later date as shall have been consented to by the Representative. Prior to the Closing Date, no
stop order suspending the effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of the Depositor,
shall be contemplated by the Commission.
(b) Accountants’ Comfort Letter. On or before the Closing Date, Xxxxx & Young LLP
shall have furnished to the Representative letters dated respectively as of the date of this
Agreement and as of the Closing Date substantially in the forms of the drafts to which the
Representative previously agreed.
(c) Officers’ Certificates.
(i) The Underwriters shall have received an officers’ certificate, dated the Closing
Date, signed by the Chairman of the Board, the President or any Vice President and by a
principal financial or accounting officer of the Depositor representing and warranting that,
to the best of such officers’ knowledge after reasonable investigation, as of the Closing
Date:
(A) The representations and warranties of the Depositor in this Agreement are
true and correct in all material respects, that the Depositor has complied with all
agreements and satisfied in all material respects all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best of their
knowledge, are contemplated by the Commission.
(B) There has been no material adverse change, since the respective dates as of
which information is given in the Preliminary Prospectus and the Final
(Nissan 2011-B Underwriting Agreement)
18
Prospectus, as then amended and supplemented, (except as otherwise set forth
therein and exclusive of amendments or supplements after the date hereof), in the
condition, financial or otherwise, earnings or business affairs, whether or not
arising out of the ordinary course of business, of the Depositor or any of its
Affiliates, or in the ability of such entity to perform its obligations under each
Basic Document to which it is a party or by which it may be bound.
(ii) The Underwriters shall have received an officers’ certificate, dated the Closing
Date, signed by the Chairman of the Board, the President or any Vice President and by a
principal financial or accounting officer of NMAC representing and warranting that, to the
best of such officers’ knowledge after reasonable investigation, as of the Closing Date:
(A) The representations and warranties of NMAC in this Agreement are true and
correct in all material respects, that NMAC has complied with all agreements and
satisfied, in all material respects, all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, that no stop order suspending
the effectiveness of any Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the best of their knowledge, are
contemplated by the Commission.
(B) There has been no material adverse change, since the respective dates as of
which information is given in the Preliminary Prospectus and the Final Prospectus,
as then amended and supplemented (except as otherwise set forth therein and
exclusive of amendments or supplements after the date hereof), in the condition,
financial or otherwise, earnings or business affairs, whether or not arising out of
the ordinary course of business, of NMAC or any of its Affiliates, or the ability of
such entity to perform its obligations under each Basic Document to which it is a
party or by which it may be bound.
(d) Opinion of In House Counsel for NMAC and the Depositor. At the Closing Date, the
Representative shall have received an opinion, dated as of the Closing Date, of Xxxx Xxxx, Esq.,
General Counsel of NMAC and the Depositor, in form and substance reasonably satisfactory to the
Underwriters and counsel to the Underwriters.
(e) Opinion of Counsel for NMAC and the Depositor. At the Closing Date, the
Representative shall have received an opinion, dated as of the Closing Date, of Winston & Xxxxxx
LLP, special counsel for NMAC and the Depositor, in form and substance reasonably satisfactory to
the Underwriters and counsel to the Underwriters, with respect to general corporate matters, the
validity of the Notes, the Registration Statement, the Prospectus Supplement and the Base
Prospectus, the effectiveness of such Registration Statement and the information contained in each
of the Registration Statement, the Prospectus Supplement and the Base Prospectus.
(f) Negative Assurance Letter. At the Closing Date, Winston & Xxxxxx LLP, as special
counsel to the Depositor and NMAC, shall deliver to the Underwriters a negative
(Nissan 2011-B Underwriting Agreement)
19
assurance letter with respect to the most recent Preliminary Prospectus delivered prior to the
Date of Sale, the Registration Statement and the Prospectus.
(g) Opinion of Special Delaware Counsel for NMAC and the Depositor. At the Closing
Date, the Underwriters shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger P.A., special
Delaware counsel for NMAC, the Depositor and the Trust, dated as of Closing Date and in form and
substance satisfactory to the Underwriters and counsel to the Underwriters.
(h) Opinion of Special Bankruptcy and UCC Counsel to NMAC and the Depositor. At the
Closing Date, the Underwriters shall have received an opinion of Xxxxxxx & Xxxxxx LLP, special
bankruptcy and UCC counsel to NMAC, NILT Trust, the Depositor and the Trust, dated as of Closing
Date and in form and substance satisfactory to the Underwriters and counsel to the Underwriters,
with respect to certain bankruptcy and perfection of security interest matters.
(i) Opinion of Counsel for U.S. Bank. At the Closing Date, the Underwriters shall
have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Indenture Trustee and Securities
Intermediary, dated as of Closing Date and in form and substance satisfactory in form and substance
to the Underwriters and counsel to the Underwriters.
(j) Opinion of Counsel for U.S. Bank. At the Closing Date, the Underwriters shall
have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to U.S. Bank, as Trust Agent, dated as of
Closing Date and satisfactory in form and substance to the Underwriters and counsel to the
Underwriters.
(k) Opinion of Counsel for Titling Trustee. At the Closing Date, the Underwriters
shall have received an opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Titling Trustee, dated as of
Closing Date and satisfactory in form and substance to the Underwriters and counsel to the
Underwriters.
(l) Opinion of Counsel for WTNA. At the Closing Date, the Underwriters shall have
received an opinion of Xxxxxxxx, Xxxxxx & Finger P.A., counsel to WTNA, as Owner Trustee and
Delaware Trustee, dated as of Closing Date and satisfactory in form and substance to the
Underwriters and counsel to the Underwriters.
(m) Tennessee Opinion. At the Closing Date, the Underwriters shall have received an
opinion of Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP, special Tennessee tax counsel to the Depositor and
NMAC, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel
to the Underwriters.
(n) Opinion of Counsel to the Underwriters. At the Closing Date, the Underwriters
shall have received the favorable opinion, dated as of Closing Date, of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, counsel to the Underwriters, in form and substance satisfactory to the Underwriters.
In rendering such opinion, such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel reasonably satisfactory to the Underwriters.
(Nissan 2011-B Underwriting Agreement)
20
(o) Reliance Letters. Counsel to NMAC, the Depositor or the Titling Trustee shall
provide reliance letters to the Representative, as representative of the Underwriters, relating to
each legal opinion relating to the transactions contemplated by this Agreement rendered to the
Owner Trustee, the Titling Trustee or any of the Rating Agencies (or the Representative, as
representative for the Underwriters, shall be an addressee to each such legal opinion).
(p) Maintenance of Rating. At the Closing Date, the Class A-1 Notes shall have
received the ratings indicated in the Ratings Free Writing Prospectus from the nationally
recognized statistical rating organizations named therein.
(q) Additional Documents. At the Closing Date, counsel to the Underwriters shall have
been furnished with such additional documents and additional opinions as it may reasonably require
for the purpose of enabling it to pass upon the issuance of the Securities and the sale of the
Notes as herein contemplated, or in order to evidence the accuracy of any of the representations or
warranties or the fulfillment of any of the conditions herein contained; and all proceedings taken
by NMAC or the Depositor in connection with the foregoing shall be reasonably satisfactory in form
and substance to counsel to the Underwriters.
(r) Termination of Agreement. If any condition specified in this Section shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters by notice to the Depositor and NMAC at any time at or prior to the Closing Date, and
such termination shall be without liability of any party to any other party except as provided in
Section 5 and except that Sections 1, 8 and 9 shall survive any such termination and remain in full
force and effect.
Section 8. Indemnification.
(a) Indemnification of Underwriters. The Depositor and NMAC shall, jointly and
severally, indemnify and hold each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
(each a “Control Person”), harmless against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or Control Person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Preliminary Prospectus (it being understood that
such indemnification with respect to the Preliminary Prospectus does not include the omission of
pricing and price-dependent information, which information shall of necessity appear only in the
Final Prospectus), the Ratings Free Writing Prospectus, the Final Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Underwriter and Control Person for any legal or other
expenses reasonably incurred by such Underwriter or Control Person in connection with investigating
or defending any such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither the Depositor nor NMAC will be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission from any of such
(Nissan 2011-B Underwriting Agreement)
21
documents in reliance upon and in conformity with the Underwriter Information (as defined below).
(b) Indemnification of NMAC and the Depositor. Each Underwriter shall, severally and
not jointly, indemnify and hold harmless the Depositor and NMAC against any losses, claims, damages
or liabilities to which the Depositor or NMAC may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement, the Preliminary Prospectus, the Ratings Free Writing Prospectus, the
Final Prospectus or any amendment or supplement thereto, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished to the Depositor or
NMAC by such Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Depositor or NMAC in connection
with investigating or defending any such action or claim as such expenses are incurred. The
Depositor and NMAC acknowledge and agree that the only such written information furnished to the
Depositor or NMAC by any Underwriter through the Representative consists of the following: the
statements in the second paragraph (concerning initial offering prices, concessions and
reallowances) and the statements (other than statements regarding the Depositor) in the ninth
paragraph (concerning stabilizing and other activities) under the heading “Underwriting” in each of
the Preliminary Prospectus Supplement and the Final Prospectus (collectively, the “Underwriter
Information”).
(c) Actions against Parties; Notification; Settlement. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the “Indemnified Party”) shall promptly notify
the person against whom such indemnity may be sought (the “Indemnifying Party”) in writing of the
commencement thereof, but the omission to so notify the Indemnifying Party will not relieve it from
any liability that it may otherwise have to any Indemnified Party under such preceding paragraphs,
and with respect to such preceding paragraphs, any such omission shall not relieve it from any
liability except to the extent it has been materially prejudiced by such omission. In case any
such action is brought against any Indemnified Party and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense thereof, with counsel satisfactory to such Indemnified Party (who may be counsel to the
Indemnifying Party) and after notice from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof and after acceptance of counsel by the Indemnified Party,
the Indemnifying Party will not be liable to such Indemnified Party under this Section for any
legal or other expenses subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the contrary, (ii) the Indemnified Party has
reasonably concluded (based upon advice of counsel to the Indemnified
(Nissan 2011-B Underwriting Agreement)
22
Party) that there may be
legal defenses available to it or other Indemnified Parties that are different from or in addition
to those available to the Indemnifying Party, (iii) a conflict or potential conflict exists (based
upon advice of counsel to the Indemnified Party) between the
Indemnified Party and the Indemnifying Party (in which case the Indemnifying Party will not
have the right to direct the defense of such action on behalf of the Indemnified Party), or (iv)
the Indemnifying Party has elected to assume the defense of such proceeding but has failed within a
reasonable time to retain counsel reasonably satisfactory to the Indemnified Party. The
Indemnifying Party shall not, with respect to any action brought against any Indemnified Party, be
liable for the fees and expenses of more than one firm (in addition to any local counsel) for all
Indemnified Parties, and all such fees and expenses shall be reimbursed within a reasonable period
of time as they are incurred. Any separate firm appointed for the Underwriters and any Control
Person in accordance with this subsection (c) shall be designated in writing by the Representative,
and any such separate firm appointed for the Depositor or the NMAC, its respective directors,
officers who sign the Registration Statement and Control Persons in accordance with this subsection
(c) shall be designated in writing by the Depositor or the NMAC, as the case may be. The
Indemnifying Party shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent, with respect to an action of which the
Indemnifying Party was notified and had the opportunity to participate in (whether or not it chose
to so participate), the Indemnifying Party agrees to indemnify any Indemnified Party from and
against any loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to
reimburse the Indemnified Party for fees and expenses of counsel as contemplated by the fourth
sentence of this paragraph, the Indemnifying Party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 60 days after receipt by such Indemnifying Party of the aforesaid request, and
during such 60 day period the Indemnifying Party has not responded thereto, and (ii) such
Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with such request
prior to the date of such settlement. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party unless such settlement (x) includes an unconditional
release of such Indemnified Party from all liability on claims that are the subject matter of such
proceeding and (y) does not include a statement as to or admission of fault, culpability or a
failure to act by or on behalf of such Indemnified Party.
(d) Contribution. If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an Indemnified Party under subsection (a) or (b) above, then each
Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a
result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above in
such proportion as is appropriate to reflect the relative benefits received by the Depositor and
NMAC on the one hand and the Underwriters on the other from the offering of the Notes. If,
however, the allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each Indemnifying Party shall contribute to such amount paid or payable by
such Indemnified Party in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Depositor and NMAC on the one hand and the Underwriters
on the other in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable considerations. The
(Nissan 2011-B Underwriting Agreement)
23
relative
benefits received by the Depositor and NMAC on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion that the total net proceeds from the offering (before
deducting expenses) received by the Depositor and NMAC bear to the total
underwriting discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Depositor or NMAC or by the Underwriters and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission. The Depositor, NMAC and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation that does not take into account the equitable
considerations referred to above in this subsection (d). The amount paid by an Indemnified Party
as a result of the losses, claims, damages or liabilities referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total price at which the
Notes underwritten by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) Obligations Cumulative. The obligations of the Depositor and NMAC under this
Section shall be in addition to any liability that the Depositor or NMAC may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability that the respective Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director of the Depositor or NMAC, to
each officer of the Depositor or NMAC who has signed the Registration Statement and to each person,
if any, who controls NMAC or the Depositor within the meaning of the Act.
Section 9. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of NMAC, the Depositor and their respective Affiliates submitted pursuant hereto shall
remain operative and in full force and effect, regardless of any investigation made by or on behalf
of the Underwriters or one of its Control Persons, or by or on behalf of NMAC, the Depositor and
their respective Affiliates, and shall survive delivery of the certificates to the Underwriters.
Section 10. Failure to Purchase the Notes. If any Underwriter or Underwriters default on
its or their obligations to purchase Notes hereunder and the aggregate principal amount of Notes
that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed 10%
of the total principal amount of such Notes, the Representative may make arrangements satisfactory
to the Depositor for the purchase of such Notes by other persons, including the non-
(Nissan 2011-B Underwriting Agreement)
24
defaulting
Underwriter or Underwriters, but if no such arrangements are made by the Closing Date, the
non-defaulting Underwriter or Underwriters shall be obligated, in proportion to their commitments
hereunder, to purchase the Notes that such defaulting Underwriter or Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes, as applicable, and arrangements
satisfactory to the non-defaulting
Underwriter or Underwriters and the Depositor for the purchase of such Notes by other persons are
not made within 36 hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter, or NMAC or any of its Affiliates, except as provided in
Section 9.
As used in this Agreement, the term “Underwriter” includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter or
Underwriters from liability for its default.
Section 11. Termination of Agreement.
(a) Termination; General. The Underwriters may terminate this Agreement, by notice to
NMAC and the Depositor, at any time at or prior to the Closing Date if there shall have occurred
(i) any change, or any development involving a prospective change, in or affecting particularly the
business or properties of the Depositor, Nissan Motor Co., Ltd., Nissan North America, Inc. (“NNA”)
or NMAC that, in the judgment of the Representative, materially impairs the investment quality of
the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and
payment for the Notes; (ii) any suspension of trading of any securities of NNA on any exchange or
in any over-the-counter market; (iii) any suspension or limitation of trading in securities
generally on the New York Stock Exchange or any setting of minimum prices for trading on such
exchange; (iv) any material disruption in commercial banking, securities settlement or clearance
services in the United States; (v) any banking moratorium declared by federal or New York
authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national or international
calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the sale of and payment for the Notes.
(b) If this Agreement is terminated pursuant to this Section, such termination shall be
without liability of any party to any other party except as provided in Section 5, and provided
further that Sections 1, 8 and 9 shall survive such termination and remain in full force and
effect.
Section 12. Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given if mailed, delivered, sent by facsimile transmission or
by e-mail and confirmed. Notices (i) to the Underwriters shall be directed to the Representative
at Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, One Bryant Park, 11th Floor, New York, New
York 10036, Attention: Xxxx Xxxxxxxx (facsimile number: (000) 000-0000); (ii) to NMAC shall be
directed to it at P.O. Box 685011, Franklin, TN 37068-5011, Attention: Treasurer (facsimile number:
(000) 000-0000) (e-mail: xxxx.xxxxxxxx@xxxxxx-xxx.xxx); and (iii) to the
(Nissan 2011-B Underwriting Agreement)
25
Depositor shall be
directed to it at Xxx Xxxxxx Xxx, Xxxxxxxx, XX 00000, Attention: Treasurer (facsimile number: (000)
000-0000) (e-mail: xxxx.xxxxxxxx@xxxxxx-xxx.xxx).
Section 13. Parties. This Agreement shall inure to the benefit of and be binding upon each
of the Underwriters, NMAC, the Depositor and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, NMAC, the Depositor and their respective successors and
the controlling persons, directors and officers referred to in Section 8 any legal or equitable
right, remedy or claim under or in respect of this agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, NMAC, the Depositor and their respective successors, and the
controlling persons, directors and officers referred to in Section 8 and their heirs and legal
representatives and for the benefit of no other person, firm or corporation. No purchaser of Notes
from the Underwriters shall be deemed to be a successor by reason merely of such purchase.
Section 14. Representation of Underwriters. The Representative will act for the several
Underwriters in connection with the transactions described in this Agreement, and any action taken
by the Representative under this Agreement will be binding upon all the Underwriters.
Section 15. Representation and Warranties of Underwriters. With respect to any offers or
sales of the Notes outside the United States (and solely with respect to any such offers and sales)
each Underwriter severally and not jointly makes the following representations and warranties:
(a) Each Underwriter represents and agrees that it will comply with all applicable laws and
regulations in each jurisdiction in which it purchases, offers or sells the Notes or possesses or
distributes the Preliminary Prospectus, the Final Prospectus or any other offering material and
will obtain any consent, approval or permission required by it for the purchase, offer or sale by
it of Notes under the laws and regulations in force in any jurisdiction to which it is subject or
in which it makes such purchases, offers or sales and neither the Depositor or NMAC shall have any
responsibility therefor;
(b) No action has been or will be taken by such Underwriter that would permit public offering
of the Notes or possession or distribution of any offering material in relation to the Notes in any
jurisdiction where action for that purpose is required unless the Depositor or NMAC has agreed to
such actions and such actions have been taken;
(c) Each Underwriter represents and agrees that it will not offer, sell or deliver any of the
Notes or distribute any such offering material in or from any jurisdiction except under
circumstances that will result in compliance with applicable laws and regulations and that will not
impose any obligation on the Depositor or NMAC or the Underwriters;
(d) Such Underwriter acknowledges that it is not authorized to give any information or make
any representation in relation to the Notes other than (i) oral communications that are consistent
with the Preliminary Prospectus, the Ratings Free Writing Prospectus or the Final Prospectus and
would not cause the Trust, the Depositor or NMAC to incur liability, (ii) those contained or
incorporated by reference in the Preliminary Prospectus, the Ratings Free Writing
(Nissan 2011-B Underwriting Agreement)
26
Prospectus or the
Final Prospectus for the Notes and (iii) an Underwriter Free Writing Prospectus in accordance with
Section 6 of this Agreement, or (iv) such additional information, if any, as the
Depositor or NMAC shall, in writing, provide to and authorize such Underwriter so to use and
distribute to actual and potential purchasers of the Notes;
(e) Each Underwriter has complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (“FSMA”) with respect to anything done by such Underwriter
in relation to the Notes in, from or otherwise involving the United Kingdom; and
(f) Each Underwriter will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received
by it in connection with the issue or sale of any securities in circumstances in which Section
21(1) of the FSMA does not apply to the Depositor.
(g) Each Underwriter, severally and not jointly, (i) represents to NMAC and the Depositor that
as of the date of this Agreement, it (a) has not delivered any Rating Information to any Rating
Agency or any other “nationally recognized statistical rating organization” (within the meaning of
the Exchange Act), and (b) has not participated in any oral communication of Rating Information
with any Rating Agency or any other “nationally recognized statistical rating organization” (within
the meaning of the Exchange Act) unless a designated representative from NMAC participated in such
communication.
(h) In relation to each member state of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees with
the Seller that with effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and
will not make an offer of notes to the public in that Relevant Member State other than to any legal
entity which is a “qualified investor” as defined in the Prospectus Directive; provided
that no such offer of Notes shall require the Issuer or any Underwriter to publish a prospectus
pursuant to Article 3 of the Prospectus Directive or supplement a prospectus pursuant to Article 16
of the Prospectus Directive.
For the purposes of this Section 15(h), (A) the expression an “offer of notes to the public”
in relation to any Notes in any Relevant Member State means the communication to persons in any
form and by any means, presenting sufficient information on the terms of the offer and the notes to
be offered, so as to enable an investor to decide to purchase or subscribe to the Notes, as the
same may be varied in that Relevant Member State by any measure implementing the Prospectus
Directive in that Relevant Member State, (B) the expression “Prospectus Directive” means Directive
2003/71/EC and includes any relevant implementing measure in each Relevant Member State and (C) the
countries comprising the “European Economic Area” are Austria, Belgium, Bulgaria, Cyprus, Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy,
Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal,
Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.
Section 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW
(Nissan 2011-B Underwriting Agreement)
27
YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS (OTHER
THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 17. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 18. No Bankruptcy Petition. Each Underwriter agrees that prior to the date that is
one year and one day after the date upon which all obligations under each Securitized Financing
have been paid in full, it will not institute against, or join any other Person in instituting
against NILT Trust, the Depositor, the Trustee, the Titling Trust, the Issuer, any Special Purpose
Affiliate or any Beneficiary, any bankruptcy, reorganization, arrangement, insolvency or
liquidation Proceeding or other Proceeding under any federal or state bankruptcy or similar law.
Section 19. Acknowledgement. Each of NMAC and the Depositor hereby acknowledges that
pursuant to this Agreement (a) the Underwriters are acting as principals and not as agents or
fiduciaries of NMAC or the Depositor and (b) the engagement by NMAC and the Depositor of the
Underwriters is as independent contractors and not in any other capacity. Furthermore, each of
NMAC and the Depositor agrees that none of the Underwriters is advising NMAC, the Depositor or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. Each of NMAC and the Depositor agrees that it is solely responsible for
independently making its own judgments with respect to the matters covered by this Agreement
(irrespective of whether any of the Underwriters has advised or is currently advising NMAC or the
Depositor on other matters), and the Underwriters shall have no responsibility or liability to NMAC
or the Depositor with respect to any legal, tax, investment, accounting or regulatory matters. Any
review by the Underwriters of NMAC or the Depositor, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit of the Underwriters
and shall not be on behalf of NMAC, the Depositor or any other person.
Section 20. Counterparts. This Agreement may be executed by each of the parties hereto in
any number of counterparts, and by each of the parties hereto on separate counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
[Signatures follow on next page]
(Nissan 2011-B Underwriting Agreement)
28
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to NMAC and the Depositor a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the Underwriters, NMAC and the Depositor in
accordance with its terms.
Very truly yours, NISSAN MOTOR ACCEPTANCE CORPORATION, a California corporation |
||||
By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Treasurer | |||
NISSAN AUTO LEASING LLC II, a Delaware limited liability company |
||||
By: | /s/ Xxxx X. Xxxxxx | |||
Name: | Xxxx X. Xxxxxx | |||
Title: | Treasurer | |||
(Nissan 2011-B Underwriting Agreement)
S-1
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX INCORPORATED,
as Representative of the Several Underwriters
as Representative of the Several Underwriters
By: | /s/ Xxxx X. Xxxxxxxx | |||
Authorized Signatory | ||||
(Nissan 2011-B Underwriting Agreement)
S-2
SCHEDULE A
Principal | Principal | Principal | Principal | |||||||||||||
Amount of | Amount of | Amount of | Amount of | |||||||||||||
Underwriters | Class A-1 | Class A-2 | Class A-3 | Class A-4 | ||||||||||||
Notes | Notes | Notes | Notes | |||||||||||||
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx &
Xxxxx Incorporated |
$ | 68,640,000 | $ | 166,320,000 | $ | 154,440,000 | $ | 37,400,000 | ||||||||
Barclays Capital Inc. |
$ | 34,320,000 | $ | 83,160,000 | $ | 77,220,000 | $ | 18,700,000 | ||||||||
Credit Agricole Securities (USA) Inc. |
$ | 34,320,000 | $ | 83,160,000 | $ | 77,220,000 | $ | 18,700,000 | ||||||||
BNP Paribas Securities Corp |
$ | 3,120,000 | $ | 7,560,000 | $ | 7,020,000 | $ | 1,700,000 | ||||||||
HSBC Securities (USA) Inc. |
$ | 3,120,000 | $ | 7,560,000 | $ | 7,020,000 | $ | 1,700,000 | ||||||||
X.X. Xxxxxx Securities LLC |
$ | 3,120,000 | $ | 7,560,000 | $ | 7,020,000 | $ | 1,700,000 | ||||||||
Mizuho Securities USA Inc. |
$ | 3,120,000 | $ | 7,560,000 | $ | 7,020,000 | $ | 1,700,000 | ||||||||
RBS Securities Inc. |
$ | 3,120,000 | $ | 7,560,000 | $ | 7,020,000 | $ | 1,700,000 | ||||||||
SG Americas Securities, LLC |
$ | 3,120,000 | $ | 7,560,000 | $ | 7,020,000 | $ | 1,700,000 | ||||||||
Total
|
$ | 156,000,000 | $ | 378,000,000 | $ | 351,000,000 | $ | 85,000,000 | ||||||||
(Nissan 2011-B Underwriting Agreement)
A-1