NISSAN AUTO LEASE TRUST 200[ ]-[ ] [ ]% Asset Backed Notes, Class A-1 [ ]% Asset Backed Notes, Class A-2 [ ]% Asset Backed Notes, Class A-3 [ ]% Asset Backed Notes, Class A-4 UNDERWRITING AGREEMENT
EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
NISSAN AUTO LEASE TRUST 200[ ]-[ ]
$[ ]
[ ]% Asset Backed Notes, Class A-1
$[ ]
[ ]% Asset Backed Notes, Class A-2
$[ ]
[ ]% Asset Backed Notes, Class A-3
$[ ]
[ ]% Asset Backed Notes, Class A-4
[ DATE ]
[ ]
as Representative (the “Representative”) of the Underwriters
[ ]
[ ]
Dear Sir or Madam:
[ ]
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 [ ]
(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 $[ ] aggregate principal amount of [ ]% Asset Backed Notes, Class A-1 (the “Class
A-1 Notes”), $[ ] aggregate principal amount of [ ]% Asset Backed
Notes, Class A-2 (the “Class A-2 Notes”), $[ ] aggregate principal
amount of [ ]% Asset Backed Notes, Class A-3 (the “Class A-3 Notes”), and $[ ] aggregate
principal amount of [ ]% Asset Backed Notes, Class A-4 Notes
(the “Class A-4 Notes,” and together with the Class A-1 Notes, the Class A-2 Notes and the Class
A-3 Notes, the “Notes”), of Nissan Auto Lease Trust 200[ ]-[ ], a Delaware statutory trust (the
“Trust” or “Issuer”), which Notes the Depositor proposes to sell to the Underwriters under the
terms and conditions herein.
The Depositor was formed pursuant to a limited liability company agreement, dated as of
October 29, 2001 (the “Depositor LLC Agreement”), among NMAC, as member (the “Depositor Member”),
and H. Xxxxxx Xxxxxxx and Xxxxxx X. Xxxxxxxx, as special members.
Simultaneously with the issuance of the Notes, the Depositor will cause the Trust to issue $[ ] aggregate
principal amount of Asset Backed Certificates (the
“Certificates”). The Notes and the Certificates shall collectively be referred to herein as the
“Securities.” The Notes will be issued pursuant to an indenture, dated as of [ ]
(the “Indenture”), between the Trust and [U.S. Bank National Association] (“[U.S.
Bank]”), as trustee (in such capacity, the “Indenture Trustee”). The Certificates will be issued
pursuant to an amended and restated trust agreement, dated as of [ ] (the
“Trust Agreement”), between the Depositor and [Wilmington Trust Company] (“[WTC]”), as trustee (in
such capacity, the “Owner Trustee”). Each Note will represent an obligation of, and each
Certificate will represent an undivided interest in, the Trust. The Certificates will be
subordinated to the Notes to the extent described in the Indenture and the Trust Agreement.
Pursuant to a trust agreement, dated as of July 7, 1998, among NILT Trust, as grantor and
initial beneficiary (“NILT Trust”), NILT, Inc., as trustee (the “Titling Trustee”), [WTC], as
Delaware trustee (in such capacity, the “Delaware Trustee”), and [U.S. Bank], as trust agent (in
such capacity, the “Trust Agent”), which was subsequently amended and restated by an amended and
restated trust and servicing agreement, dated as of August 26, 1998 (the “Titling Trust
Agreement”), among NILT Trust, NMAC, as servicer (in such capacity, the “Servicer”), the Titling
Trustee, the Delaware Trustee and the Trust Agent, Nissan-Infiniti LT, a Delaware statutory trust
(the “Titling Trust”), was created to take assignments and conveyances of and hold in trust various
leases, vehicles and certain related assets (collectively, the “Trust Assets”).
Pursuant to the 200[ ]-[ ] SUBI supplement to the Titling Trust Agreement, dated as of [
], (the “200[ ]-[ ] SUBI Supplement”, and together with the Titling Trust
Agreement, the “SUBI Trust Agreement”), among the parties to the Titling Trust Agreement, the
Titling Trustee will be directed by NILT Trust to establish a special unit of beneficial interest
to be known as the “200[ ]-[ ] SUBI” (the “200[ ]-[ ] SUBI”). The Titling Trustee will
allocate a portfolio consisting of the 200[ ]-[ ] Leases, the 200[ ]-[ ] Vehicles and certain
other related assets to the 200[ ]-[ ] SUBI (collectively, the “200[ ]-[ ] SUBI Assets”). The
Trust Assets (including the 200[ ]-[ ] SUBI Assets) will be serviced by the Servicer pursuant to
a servicing agreement, dated as of March 1, 1999, as supplemented by a 200[ ]-[ ] supplement,
dated as of [ ] (collectively, the “Servicing Agreement”), in each case
among the Titling Trust, NILT Trust and the Servicer.
In connection with the creation of the 200[ ]-[ ] SUBI, the Titling Trust will issue to NILT
Trust a certificate (the “SUBI Certificate”) representing a 100% beneficial interest in the 200[
]-[ ] SUBI. Pursuant to a SUBI certificate transfer agreement, dated as of [
] (the “SUBI Certificate Transfer Agreement”), between the Depositor and NILT Trust, NILT Trust
will sell the SUBI Certificate to the Depositor. Pursuant to a trust SUBI certificate transfer
agreement, dated as of [ ] (the “Trust SUBI Certificate Transfer
Agreement”), between the Depositor and the Trust, the Depositor will sell the SUBI Certificate to
the Trust. This Underwriting Agreement (this
“Agreement”), the Indenture, the Trust Agreement,
the Titling Trust Agreement, the
SUBI Trust Agreement, the SUBI Certificate Transfer Agreement, the Servicing Agreement, the Trust
SUBI Certificate Transfer Agreement, the backup security agreement, dated as of [
] (the “Backup Security Agreement”), among the Titling Trust, NILT Trust, the Depositor, the
Trust and the Indenture Trustee, the control agreement, dated as of [ ]
(the “Control Agreement”), among NMAC, the Trust and [U.S. Bank], as Indenture Trustee, the secured
party, and securities intermediary (in such capacity, the “Securities Intermediary”), the trust
administration agreement dated as of [ ] (the “Trust Administration
Agreement”), among the Depositor, the Trust, the Indenture Trustee and NMAC, as
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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 [ ], among the Trust,
the Titling Trust, the Titling Trustee, NILT Trust, the Depositor, the Owner Trustee, NMAC, the
Indenture Trustee, the Delaware Trustee and the Trust Agent (the “Agreement of Definitions”).
Unless otherwise stated, references to “Section” mean Sections of this Agreement.
NMAC and the Depositor hereby agree with the Underwriters as follows:
Section 1. Representations and Warranties.
(A)
A registration statement (File No. [ ]), including a form of
prospectus supplement relating to the Notes and a form of base prospectus relating
to each class of securities to be registered under such registration statement (the
“Registered Securities”), has been filed on Form S-3 with the Securities and
Exchange Commission (the “Commission”) by the Depositor on behalf of the Depositor
and the Trust, and by NMAC, on behalf of NILT Trust and Nissan-Infiniti LT (as used
herein, the Depositor, NILT Trust and Nissan-Infiniti LT, collectively, the
“Registrants”) and either (i) has been declared effective under the Securities Act
of 1933, as amended (the “Securities Act”), and is not proposed to be amended or
(ii) is proposed to be amended by amendment or post-effective amendment. If such
registration statement (the “initial registration statement”) has been declared
effective, either (i) any additional registration statement (the “additional
registration statement”) relating to the Notes has been filed with the Commission
pursuant to rule 462(b) (“Rule 462(b)”) under the Securities Act and declared
effective upon filing, and the Notes have been registered under the Securities Act
pursuant to the initial registration statement and such additional registration
statement or (ii) any such additional registration statement proposed to be filed
with the Commission pursuant to Rule 462(b) will become effective upon filing
pursuant to Rule 462(b) and upon such filing, the Notes will have been duly
registered under the Securities Act pursuant to the initial registration statement
and such additional registration statement. If the Registrants do not propose to
amend the initial registration statement, any such additional registration statement
or any post-effective amendment to either such registration statement filed with the
Commission prior to the execution and delivery of this Agreement, then the most
recent amendment (if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing pursuant to Rule
462(c) under the Securities Act (“Rule 462(c)”) or Rule 462(b).
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For purposes of this Agreement, “Effective Time” with respect to the initial
registration statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if the Registrants have
advised the Representative that they do not propose to amend such registration
statement, the date and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) or (B) if the Registrants have advised
the Representative that they propose to file an amendment or post-effective
amendment to such registration statement, the date and time as of which such
registration statement as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If the Registrants have
advised the Representative that they propose to file, but have not filed, an
additional registration statement, “Effective Time” with respect to such additional
registration statement means the date and time as of which such registration
statement is filed and becomes effective pursuant to Rule 462(b).
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 Securities Act
(“Rule 430A(b)”), is hereinafter referred to as the “Initial Registration
Statement.” The additional registration statement and all amendments and supplements
thereto, as amended at its time of effectiveness, including the contents of the
initial registration statement incorporated by reference therein and deemed to be a
part of the additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the “Additional Registration Statement.”
The Initial Registration Statement, the Additional Registration Statement and all
Incorporated Documents are hereinafter referred to collectively as the “Registration
Statements” and individually as a “Registration Statement.” As used herein, the term
“Incorporated Documents”, when used with respect to the Registration Statement as of
any date, means the documents incorporated or deemed to be incorporated by reference
in the Registration Statement (i) as of such date pursuant to Item 12 of Form S-3 or
pursuant to a no-action letter of the Commission or (ii) as of any other date
pursuant to Rule 430B(f) under the Securities Act. A preliminary prospectus
supplement, dated [ , 20___], relating to the Notes, as supplemented by the
supplement to preliminary prospectus supplement, dated [___] (as so supplemented,
the “Preliminary Prospectus Supplement”) and accompanied by the base prospectus,
dated [ , 20___] relating to the Notes) (the “Base Prospectus”), will be
filed with the Commission in connection with the offering and sale of the Notes
pursuant to and in accordance with Rule 424(b) under the Securities Act (“Rule
424(b)”) within the time period required thereby (together, including all material
incorporated by reference therein, the “Preliminary
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Prospectus”). A final prospectus supplement, dated [ , 20___], relating
to the Notes (the “Prospectus Supplement”), and accompanied by the Base Prospectus,
will be filed with the Commission in connection with the offering and sale of the
Notes pursuant to and in accordance with Rule 424(b) within the time period required
thereby (together, including all material incorporated by reference therein, the
“Final Prospectus”). As used herein, and for the sake of clarity, each of the term
“Preliminary Prospectus” and “Final Prospectus” includes all static pool information
disclosed therein in response to Item 1105 of Regulation AB (including, without
limitation, the information disclosed in the Appendices to the Preliminary
Prospectus Supplement and the Prospectus Supplement), whether or not such
information is otherwise deemed to be part of the Preliminary Prospectus or the
Final Prospectus under the Rules and Regulations.
(ii) Compliance with Laws; Disclosures. (A) On the effective date of any
Registration Statement whose time of effectiveness is prior to the execution and delivery of
this Agreement, each such Registration Statement conformed, (B) on the date of this
Agreement, each such Registration Statement conforms and (C) on any related effective date
of the Registration Statement, subsequent to the date of this Agreement and on the Closing
Date (as defined in Section 2(c) hereof), each such Registration Statement will conform, in
all respects to the requirements of the Act and the rules and regulations of the Commission
(the “Rules and Regulations”) and the Trust Indenture Act of 1939, as amended (the “1939
Act”), and at such times each such Registration Statement, as amended, did not and will not
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading.
(A) As of [ ] (New York time), [ , 20___] (the “Date of
Sale”), which shall be the date of the first contract of sale for the Notes, and at
the time of filing of the Preliminary Prospectus pursuant to Rule 424(b) (or if no
such filing is required, at the effective date of the Additional Registration
Statement that includes the Preliminary Prospectus), the Preliminary Prospectus,
together with the pricing and price dependent information which appears in the Final
Prospectus (the “Pricing Information”), did not include, does not include and will
not include, any untrue statement of a material fact, nor did, does or will the
Preliminary Prospectus, together with the Pricing Information, omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. As of the date of the
first use of the Final Prospectus, at the time of filing of the Final Prospectus
pursuant to Rule 424(b) (or if no such filing is required, at the effective date of
the Additional Registration Statement that includes the Final Prospectus), on the
date of this Agreement and at the Closing Date, the Final Prospectus, as amended and
supplemented as of such dates, will conform, in all material respects to the
requirements of the Securities Act and the Rules and Regulations, and does not
include, and will not include, any untrue statement of a material fact, nor did,
does or will the Final Prospectus, as amended and supplemented as of such dates,
omit to state any material fact required to be stated therein or necessary in order
to make the statements therein,
5
in light of the circumstances under which they were made, not misleading. The
three preceding sentences do not apply to statements in or omissions from the
Registration Statement, the Preliminary Prospectus or the Final Prospectus based
upon Underwriter Information (as defined herein) or that part of the Registration
Statement which constitutes the Statement of Qualification under the 1939 Act on
Form T-1 (the “Form T-1”) of the Indenture Trustee (which will be represented and
warranted to by the Indenture Trustee). If the time of effectiveness of the
Registration Statement is subsequent to the date of this Agreement, no Additional
Registration Statement has been or will be filed. The Indenture has been qualified
under the 1939 Act.
(iii) No Material Adverse Effect. Since the respective date as of which
information is given in the Preliminary Prospectus and the Final Prospectus, as then amended
or supplemented, except as otherwise set forth therein (exclusive of amendments or
supplements after the date hereof), there has been no material adverse effect in the
condition, financial or otherwise, earnings or business affairs, whether or not arising out
of the ordinary course of business, of the Depositor or any of its affiliates (as such term
is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such
entity to perform its obligations under each Basic Document to which it is a party or by
which it may be bound. Except as otherwise indicated by the context, all references to the
terms “material” in this Agreement that refer to the Depositor or its Affiliates, or any of
them, shall be interpreted in proportion to the business of NMAC and its consolidated
subsidiaries, as a whole, and not in proportion to the business of the Depositor or its
Affiliate(s), individually.
(iv) Issuance of the Notes. The Notes have been duly authorized and, at the
Closing Date, will have been duly executed by the Trust and, when authenticated, issued and
delivered in the manner provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute valid and binding
obligations of the Trust, enforceable against the Trust in accordance with their terms,
except as the enforcement may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), moratorium, reorganization or other
similar laws affecting enforcement of creditors’ rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a proceeding in equity
or at law), and will be in the form contemplated by, and entitled to the benefits of, the
Indenture and Trust Agreement.
(v) Description of Notes and Basic Documents. The Notes and each of the Basic
Documents conform in all material respects to the description thereof and the statements
relating thereto contained in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus, as then amended or supplemented, and will be in substantially the
respective forms previously delivered to the Underwriters.
(vi) SUBI Certificate. The SUBI Certificate conforms in all material respects
to the descriptions thereof and the statements relating thereto contained in the
Registration Statement, the Preliminary Prospectus and the
Final Prospectus, as then amended or supplemented, and the SUBI Certificate has
6
been duly and validly authorized and, when executed, issued, authenticated and
delivered in accordance with the SUBI Trust Agreement, will be duly and validly issued and
outstanding and entitled to the benefits of the SUBI Trust Agreement.
(vii) No Investment Company Registration. None of NMAC, the Depositor, NILT
Trust, the Titling Trust or the Trust is required to be registered as an “investment
company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(viii) Allocation of 200[ ]-[ ] SUBI Assets. At or prior to the Closing
Date, the Titling Trustee will have allocated 200[ ]-[ ] Leases and 200[ ]-[ ] Vehicles
as 200[ ]-[ ] SUBI Assets that have an aggregate Securitization Value as of the Cut-Off
Date equal to $[ ] and each of the 200[ ]-[ ] Leases and
200[ ]-[ ] Vehicles allocated as a SUBI Asset at the Closing Date will meet the
eligibility criteria for selection described in the SUBI Trust Agreement and the Servicing
Agreement.
(ix) Payment of Taxes Fees and Other Charges. Any material taxes, fees and
other governmental charges in connection with the execution, delivery and performance of
this Agreement and the other Basic Documents and any other agreements contemplated herein or
therein shall have been paid or will be paid at or prior to the Closing Date to the extent
then due.
(x) Representations and Warranties. The representations and warranties of each
of the Depositor, the Trust and NMAC in each Basic Document to which it is a party are true
and correct in all material respects.
(xi) Independent Public Accountants. [Deloitte & Touche LLP] are independent
public accountants with respect to the Depositor within the meaning of the Securities Act
and the Rules and Regulations.
(xii) Due Authorization; Enforceability. The Notes have been duly authorized
and, when executed and delivered in accordance with the Indenture and delivered against
payment therefor pursuant to this Agreement, will be valid and binding obligations of the
Trust, enforceable against the Trust in accordance with their respective terms, except as
limited by bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors’ rights generally and by general equitable
principles, regardless of whether such enforceability is considered in a proceeding in
equity or at law.
(xiii) Not Ineligible Issuer. The Depositor is not, and on the date on which
the first bona fide offer of the Notes was made, was not an “ineligible issuer” as defined
in Rule 405 of the Rules and Regulations.
(xiv) No Offer or Solicitation. Other than the Preliminary Prospectus and the
Final Prospectus, neither the Depositor nor NMAC (including their respective agents and
representatives other than the Underwriters in their capacity as such) has made, used,
prepared, authorized, approved or referred to and will not prepare, make, use, authorize,
approve or refer to any “written communication” (as defined in Rule 405 under the Securities
Act) that constitutes an offer to sell or solicitation of an offer to buy the Notes.
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(xv) No Other Contract Required. Neither the Depositor nor NMAC knows of any
contract or other document of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration Statement, the
Preliminary Prospectus or the Final Prospectus, as then amended and supplemented, which is
not filed or described as required.
(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 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,
8
any statute, rule, regulation, or order of any governmental agency or body or any court
having jurisdiction over the Depositor or NMAC or their respective properties or any
agreement or instrument to which either is a party or by which either is bound or to which
any of their respective properties are subject, except where such breach, violation, or
default would not have a material adverse effect on the transactions contemplated herein or
on the Depositor’s or NMAC’s respective ability to perform its obligations under the Basic
Documents, (ii) conflict with the Depositor’s or NMAC’s charter or bylaws or (iii) result in
the creation or imposition of any Lien (except as permitted by the Basic Documents) upon any
of the Depositor’s or NMAC’s property or assets is subject, except for Liens that,
individually or in the aggregate, will not have a material adverse effect on either of the
Depositor’s or NMAC’s ability to perform its respective obligations under the Basic
Documents.
(iv) Absence of Proceedings. Other than as disclosed in the Preliminary
Prospectus and the Final Prospectus, as then amended or supplemented (exclusive of
amendments or supplements after the date hereof), there is no action, suit or proceeding
(whether individually or in the aggregate) before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge of each of the Depositor and
NMAC, threatened, against or affecting the Depositor or NMAC that could reasonably be
expected to have any material adverse effect on the Depositor or NMAC, respectively, with
respect thereto.
(v) Absence of Further Requirements. No authorization, approval or consent of
any court, governmental authority or agency or any other person is necessary in connection
with (A) the issuance of the SUBI Certificate, (B) the issuance of the Securities or the
offering and sale of the Notes, (C) the execution, delivery and performance by the Depositor
or NMAC of this Agreement or any Basic Document to which it is a party or (D) the
consummation by the Depositor or NMAC of the transactions contemplated hereby or thereby,
except such authorizations, approvals or consents as have been obtained and are in full
force and effect as of the Closing Date.
(vi) Possession of Licenses and Permits. Each of the Depositor and NMAC
possesses all material certificates, authorizations, licenses and permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies as are necessary to
conduct the business now operated by it; all such certificates, authorizations, licenses and
permits are valid and in full force and effect except where such invalidity or failure to be
in full force and effect does not have a material adverse effect on the Depositor’s or
NMAC’s ability to perform its respective duties under the Basic Documents; and neither the
Depositor nor NMAC has received notice of proceedings relating to the revocation or
modification of any such certificate, authorization, license or permit which, singly or in
the aggregate, if the subject of any unfavorable decision, ruling or finding, could
reasonably be expected to have a material adverse effect on the ability of either the
Depositor or NMAC to perform its respective obligations under the Basic Documents.
(vii) Authorization of this Agreement. This Agreement has been duly authorized,
executed and delivered by the Depositor and NMAC.
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(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 200[ ]-[ ] Lease constitutes the legal, valid, binding and
enforceable agreement of the parties thereto, except as the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), moratorium, reorganization or other similar laws affecting
enforcement of creditors’ rights generally and by general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity or at law; and each
200[ ]-[ ] Lease complies or will comply on the Closing Date in all material respects as
to content and form with all applicable state and federal laws, including, without
limitation, consumer protection laws, except where the failure to so comply would not have a
material adverse effect on the Trust, with respect thereto.
(i) No Material Adverse Effect. Since the respective date as of which
information is given in the Preliminary Prospectus and the Final Prospectus, as then amended
or supplemented, except as otherwise set forth therein (exclusive of amendments or
supplements after the date hereof), there has been no material adverse effect in the
condition, financial or otherwise, earnings or business affairs, whether or not arising out
of the ordinary course of business, of the Titling Trust or NILT Trust, or in the ability of
either of them to perform its respective obligations under each Basic Document to which
either of them is a party or by which either of them may be bound.
(ii) Due Organization of the Titling Trust and NILT Trust. Each of the Titling
Trust and NILT Trust has been duly formed and is validly existing as a statutory trust in
good standing under Delaware law, and all filings required at the date hereof under Delaware
law with respect to the due formation and valid existence of Titling Trust or NILT Trust,
respectively, as a statutory trust have been made. Each of the Titling Trust and NILT Trust
has the power and authority to own, lease and operate its properties and to conduct its
business as described in the Preliminary Prospectus and the Final Prospectus, as then
amended or supplemented, and to enter into and perform its obligations under the Basic
Documents. Each of the Titling Trust and NILT Trust is duly qualified as a foreign
statutory trust to transact business and is in good standing in each
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jurisdiction in which the conduct of its business or the lease or ownership of its
property requires such qualification, except where the failure so to qualify or to be in
good standing would not have a material adverse effect on the Titling Trust’s or NILT
Trust’s ability to perform its respective obligations under the Basic Documents.
(iii) Absence of Defaults and Conflicts. Neither the Titling Trust nor NILT
Trust is in violation of its organizational or charter documents, bylaws, or applicable
trust agreement, as the case may be, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement, contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party
or by which it or its properties or assets may be bound, which would have a material adverse
effect on the Titling Trust’s or NILT Trust’s ability to perform its respective obligations
under the Basic Documents or on the validity or enforceability thereof. The execution,
delivery, and performance by each of the Titling Trust or NILT Trust, as the case may be, of
the Basic Documents, and the issuance and sale of the Notes and compliance with the terms
and provisions thereof will not, subject to obtaining any consents or approvals as may be
required under the securities or “blue sky” laws of various jurisdictions, (i) result in a
breach or violation of any of the terms and provisions of, or constitute a default under,
any statute, rule, regulation, or order of any governmental agency or body or any court
having jurisdiction over the Titling Trust or NILT Trust or their respective properties or
any agreement or instrument to which either is a party or by which either is bound or to
which any of their respective properties are subject, except where such breach, violation,
or default would not have a material adverse effect on the Titling Trust’s or NILT Trust’s
ability to perform its respective obligations under the Basic Documents, (ii) conflict with
the Titling Trust’s or NILT Trust’s organizational documents or (iii) result in the creation
or imposition of any Lien (except as permitted by the Basic Documents) upon any of the
Titling Trust’s or NILT Trust’s property or assets is subject, except for Liens that,
individually or in the aggregate, will not have a material adverse effect on the Titling
Trust’s or NILT Trust’s ability to perform its respective obligations under the Basic
Documents.
(iv) Absence of Proceedings. Other than as disclosed in the Preliminary
Prospectus and the Final Prospectus, as then amended and supplemented (exclusive of any
amendments or supplements after the date hereof, there is no action, suit or proceeding
(whether individually or in the aggregate) before or by any court or governmental agency or
body, domestic or foreign, now pending, or, to the knowledge of NMAC, threatened, against or
affecting any of the Titling Trust or NILT Trust that could reasonably be expected to have
any material adverse effect with respect thereto.
(v) Absence of Further Requirements. No authorization, approval or consent of
any court, governmental authority or agency or any other person is necessary in connection
with the execution, delivery and performance by the Titling Trust or NILT Trust of this
Agreement, the SUBI Trust Agreement or any Basic Document to which any of them is a party or
the consummation by any of them of the transactions contemplated hereby or thereby, except
such authorizations, approvals or consents as will have been obtained and are in full force
and effect as of the Closing Date.
11
(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 200[ ]-[ ] SUBI Assets. At the time of execution and
delivery of the 200[ ]-[ ] SUBI Supplement at the Closing Date, the Titling Trust, or the
Titling Trustee on behalf of the Titling Trust, will own the 200[ ]-[ ] Leases and hold
marketable title to the 200[ ]-[ ] Vehicles, together with other rights relating to the
200[ ]-[ ] Vehicles and the 200[ ]-[ ] Leases being allocated as 200[ ]-[ ] SUBI
Assets, in each case free and clear of any Liens (except as permitted by the Basic
Documents).
(ix) Absence of Assignment of 200[ ]-[ ] SUBI Assets. As of the Closing
Date, the Titling Trust has not assigned to any Person any of its right, title or interest
in any of the 200[ ]-[ ] Leases, related contract rights, 200[ ]-[ ] Vehicles or other
related rights constituting the 200[ ]-[ ] SUBI Assets, or has obtained the release of
each such prior assignment.
(x) Allocation of 200[ ]-[ ] SUBI Assets. As of Closing Date, the Servicer
has made the appropriate allocation of assets within the estate of the Titling Trust to the
200[ ]-[ ] SUBI required by the SUBI Trust Agreement.
(xi) Leases. Each 200[ ]-[ ] Lease constitutes the legal, valid, binding and
enforceable agreement of the parties thereto, except as the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws related to
fraudulent transfers), moratorium, reorganization or other similar laws affecting
12
enforcement of creditors’ rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in equity or at law;
and each 200[ ]-[ ] Lease complies or will comply on the Closing Date in all material
respects as to content and form with all applicable state and federal laws, including,
without limitation, consumer protection laws, except where failure to so comply would not
have a material adverse effect with respect thereto.
Section 2. Sale and Delivery to Underwriters; Closing.
(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 [Xxxxx Xxxxx LLP], 000 Xxxxx Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000 or at such other place as shall be agreed
upon by the Representative, the Depositor and NMAC, on [ ], at 10:00 a.m.,
Los Angeles time, or at such other time not later than [seven] full business days thereafter as the
Representative and the Depositor determine, such time being herein referred to as the “Closing
Date.” The Notes to be so delivered will be initially represented by one or more certificates
registered in the name of Cede & Co., the nominee of The Depository Trust Company (“DTC”). The
interests of beneficial owners of each Class of Notes will be represented by book entries on the
records of DTC and participating members thereof. Definitive certificates evidencing the Notes
will be available only under the limited circumstances specified in the Indenture. Certificates
for the Notes shall be made available for examination and packaging by the Representative in The
City of New York not later than [10:00 A.M.] (New York time) on the last business day prior to the
Closing Date.
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:
14
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 Securities Act (including Rule 158 promulgated thereunder).
15
Trustee pursuant to the 200[ ]-[ ] Servicing Supplement, as soon as such statements and
reports are furnished to the Indenture Trustee.
Section 5. Payment of Expenses.
Except as otherwise agreed in writing by the parties hereto, the Depositor will pay or cause
to be paid all expenses incident to the performance of its obligations under this Agreement,
including (i) the printing (or otherwise reproducing) and filing of the Registration Statement as
originally filed and of each amendment thereto; (ii) the preparation, issuance and delivery of the
Notes to the Underwriters; (iii) the fees and disbursements of the Depositor’s and NMAC’s counsel
and accountants; (iv) the fees of DTC in connection with the book-entry registration of the Notes;
(v) the qualification of the Notes under state securities law in accordance with the provisions of
Section 4(g), including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of the blue sky survey,
if required; (vi) the printing (or otherwise reproducing) and delivery to the Underwriters of
copies of each of the Preliminary Prospectus and the Final Prospectus and any amendments or
supplements thereto; (vii) the reproducing and delivery to the Underwriters of copies of the blue
sky survey; and (viii) the fees charged by Moody’s and S&P for rating the Notes. The Underwriters
shall not be responsible for the fees and disbursements of the Owner Trustee, the Indenture Trustee
and their respective counsel. If the Underwriters, in accordance with the provisions of
Section 7 or Section 11, terminate this Agreement, NMAC shall reimburse the
Underwriters for all of their reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 6. Covenant of the Underwriters. Each of the Underwriters severally, and not
jointly, covenants and agrees with the Depositor and NMAC that other than the Preliminary
Prospectus and the Final Prospectus, without NMAC’s prior written approval, such Underwriter has
not made, used, prepared, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act)
relating to the offer and sale of the Notes that 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 included in the previously filed Preliminary Prospectus, (B)
information contemplated by Rule 134 under the Act, 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, and (C)
information customarily included in confirmations of sales of securities and notices of allocations
(each such written communication, an “Underwriter Free Writing Prospectus”); and (ii) unless
otherwise consented to by the Depositor or NMAC, no such Underwriter Free Writing Prospectus shall
be conveyed in a manner reasonably designed to lead to its broad unrestricted dissemination such
that, as a result of such conveyance, the Depositor or NMAC shall be required to make any filing of
such Underwriter Free Writing Prospectus pursuant to Rule 433(d) under the Act.
16
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) If the time of effectiveness of the Registration Statement is prior to the execution and
delivery of this Agreement, the Preliminary 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.
(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 Prospectus,
as then amended and supplemented, (except as otherwise set forth therein and
exclusive of amendments or supplements after the date hereof), in the
17
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.
(i) Except as to the States of California, New York and Tennessee (for which the
opinions relative thereto shall be provided by the outside counsel specified below), NMAC is
duly qualified to transact business and is in good standing in each jurisdiction in which
the conduct of its business or the ownership of its property requires such qualification,
except where the failure to be in good standing would not have a material adverse effect on
its ability to perform its obligations under the Basic Documents.
(ii) Except as to the States of California, Delaware, New York and Tennessee (for which
the opinions relative thereto shall be provided by the outside counsel specified below) the
Depositor is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of its property requires
such qualification, except where the failure to be in good standing would not have a
18
material adverse effect on its ability to perform its obligations under the Basic
Documents.
(iii) The Depositor LLC Agreement and the Basic Documents have been duly authorized,
executed and delivered by NMAC and the Depositor, as applicable, and each of the Depositor
and NMAC has the power and authority to enter into and perform its respective obligations
under each Basic Document.
(iv) There are no legal or governmental proceedings known by such counsel to be (i)
pending for which NMAC or the Depositor has been served official notice of, to which the
Depositor, NMAC, NILT Trust or the Titling Trust is a party or to which any property of the
Depositor, NMAC, NILT Trust or the Titling Trust is the subject, or (ii) threatened or
contemplated by governmental authorities or threatened by others, which proceedings in
either clause (i) or (ii) of this paragraph (A) (whether individually or in the aggregate)
are required to be disclosed in the Registration Statement, the Preliminary Prospectus or
the Final Prospectus or (B)(1) assert the invalidity of all or part of any Basic Document,
(2) seek to prevent the issuance of the Notes, (3) (whether individually or in the
aggregate) would materially and adversely affect the Depositor’s, NMAC’s, NILT Trust’s or
the Titling Trust’s respective obligations under any Basic Document to which such entity is
a party, or (4) (whether individually or in the aggregate) seeking adversely to affect the
federal income tax attributes of the Notes as described in the Preliminary Prospectus and
the Final Prospectus under the heading “Material Federal Income Tax Consequences.”
(v) To such counsel’s knowledge, no order, consent, authorization or approval of any
Texas or federal court or governmental authority or agency applicable to NMAC or the
Depositor is required in connection with the issuance of the SUBI Certificate or the
Securities or the offering or the sale of the Notes, except those authorizations, approvals,
consents and orders which have previously been obtained and are in full force and effect as
of the Closing Date. Such counsel need not express an opinion with respect to any orders,
consents, permits, approvals, filings or licenses relating to the authority to lease motor
vehicles, originate lease contracts or to service lease contracts or leased vehicles or any
state or foreign securities laws or as may be required by any regional or local governmental
authority (except for the opinions, as to qualification to transact business as a foreign
corporation and good standing, set forth in clause (i) above).
(vi) The execution, delivery and performance by each of NMAC and the Depositor of the
Depositor LLC Agreement or any Basic Document to which such entity is a party, and the
performance by each of them of their respective obligations thereunder, will not violate,
result in a breach of or constitute (with or without notice or lapse of time or both) a
default under or result in the creation or imposition of any Lien (except as permitted by
the Basic Documents) upon any property or assets of such entity pursuant to the terms of (1)
NMAC’s Articles of Incorporation or NMAC’s bylaws, (2) to such counsel’s knowledge and
except as otherwise provided in the Basic Documents, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which such entity is a party or by which it
may be bound, or to which any of the properties or assets of such entity is subject, (3) to
such counsel’s knowledge, any statute, rule,
19
regulation or order of any Texas or federal body or any court, regulatory body or other
governmental instrumentality having jurisdiction over the Depositor or NMAC or their
respective properties that such counsel has, in the exercise of customary professional
diligence, recognized as applicable to the Depositor or NMAC or to the transactions of the
type contemplated by the Basic Documents, or (4) the Notes; excepting, in the case of
clauses (2), (3) and (4) above, defaults, breaches or violations that do not, in the
aggregate, have a material adverse effect on the ability of the Depositor or NMAC to perform
its respective obligations under the Basic Documents or on the validity or enforceability
thereof.
(vii) Nothing has come to such counsel’s attention that would cause him to believe that
the Registration Statement on the effective date thereof contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Preliminary Prospectus, as of its
date and as of the Date of Sale (together with the statements in the Final Prospectus with
respect to items identified in the Preliminary Prospectus as to be completed in the Final
Prospectus), and the Final Prospectus as of the date of the Prospectus Supplement and as of
the Closing Date (other than the financial statements and the other accounting information
contained therein or omitted therefrom, as to which such counsel need express no belief)
contained or contain any untrue statement of a material fact or omitted or omit to state any
material fact required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or that the
descriptions therein of statutes and governmental proceedings and contracts and other
documents are inaccurate and do not fairly present the information required to be shown
therein.
(viii) To such counsel’s knowledge, each of NMAC, the Depositor, NILT Trust and the
Titling Trust has obtained all necessary certificates, authorities, licenses, permits and
other governmental authorizations under the Federal law of the United States and the laws of
the State of Texas necessary to conduct their respective businesses as described in the
Preliminary Prospectus or the Final Prospectus, except where the failure to possess such
certificates, authorities, licenses, permits and other governmental authorizations would not
have a material adverse effect on the ability of the Depositor, NMAC, NILT Trust or the
Titling Trust to perform their respective duties under the Basic Documents; and, to such
counsel’s knowledge, none of such entities has received any notice of proceedings relating
to the revocation or modification of any such certificate, authority, license or permit
that, singly or in the aggregate, if the subject of any unfavorable decision, ruling or
finding, could reasonably be expected to have a material adverse effect on the ability of
any of the Depositor, NMAC, NILT Trust or the Titling Trust to perform its respective
obligations under the Basic Documents.
(ix) No authorization, approval, consent, order or permit of any Texas or federal
governmental agency or authority is required on the part of NMAC or the Depositor in
connection with the execution and delivery of and performance by NMAC or the Depositor of
any Basic Document to which it is a party, that the undersigned has, in the exercise of
customary professional diligence, recognized as applicable to NMAC or the Depositor or to
transactions of the type contemplated by the Basic Documents,
20
except such as may be required under the Act or the Rules and Regulations and state
securities laws and except for such authorizations, approvals or consents as are in full
force and effect as of the effective date of the Registration Statement and the Closing
Date.
(i) NMAC is a corporation validly existing and in good standing under the laws of the
State of California and has full corporate power and authority to execute, deliver and
perform all of its obligations under the Basic Documents to which it is a party and, as of
the Closing Date, to consummate the transactions contemplated thereby. NMAC is duly
qualified to transact business as a foreign corporation in good standing in the State of New
York.
(ii) Each of the Indenture, the Trust Agreement, the SUBI Trust Agreement, the SUBI
Certificate Transfer Agreement, the Servicing Agreement, the Trust SUBI Certificate Transfer
Agreement, the Backup Security Agreement, the Control Agreement, the Trust Administration
Agreement, and the Interest Rate Swap Agreement, to which any of NMAC, the Depositor or the
Issuer is a party constitutes a legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms.
(iii) Each of the Notes is in due and proper form, and when executed, authenticated and
delivered as specified in the Indenture, and delivered against payment of the consideration
specified in this Agreement, each of the Notes will be validly issued and outstanding, will
constitute the legal, valid and binding obligation of the Issuer, enforceable against the
Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture.
(iv) The Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the “TIA”) and complies as to form with the TIA and the rules and regulations of
the Commission thereunder.
(v) Neither the Trust Agreement nor the Titling Trust Agreement is required to be
qualified under the TIA.
(vi) The Registration Statement, as of the effective date specified below (including
the Final Prospectus as included in the Registration Statement pursuant to Rule 430B(f)(1)
and (2) under the Act, as of such effective date), complied as to form in all material
respects with the requirements of the Act and the rules and regulations under the Act,
except that (i) such counsel expresses no opinion as to the financial and statistical data
included therein or excluded therefrom or the exhibits to the Registration Statement, and
(ii) except as and to the extent set forth in paragraphs (viii) and (ix) below, such counsel
does not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final Prospectus. The
21
effective date referenced in this paragraph is [ , ], which the
Representative has informed such counsel is the earlier of the date the Final Prospectus was
first used or the date and time of the first contract of sale of the Notes, and therefore
was the date as of which the Final Prospectus is deemed to be part of and included in the
Registration Statement.
(vii) The Registration Statement has become effective under the Act, and the
Preliminary Prospectus and the Final Prospectus have been filed with the Commission pursuant
to Rule 424(b) under the Act in the manner and within the time period required by Rule
424(b). To the best of such counsel’s knowledge, no stop order suspending the effectiveness
of the Registration Statement and the Final Prospectus and no proceedings for that purpose
have been instituted or threatened by the Commission.
(viii) The statements in the Preliminary Prospectus, as of the Date of Sale, and the
Final Prospectus, as of its date and as of the Closing Date, under the headings “Risk
Factors—Failure to comply with consumer protection laws could result in a loss”, “Risk
Factors—If ERISA liens are placed on the titling trust assets, you could suffer a loss”,
“Risk Factors—Vicarious tort liability may result in a loss”, “Risk Factors—A depositor or
servicer bankruptcy could delay or limit payments to you”, “Risk Factors—The return on your
notes could be reduced by shortfalls due to military action”, “Additional Legal Aspects of
the Titling Trust and the SUBI”, “Additional Legal Aspects of the Leases and the Leased
Vehicles” and “ERISA Considerations,” to the extent they constitute matters of law or legal
conclusions with respect thereto, have been reviewed by such counsel and are correct in all
material respects.
(ix) Each of the Basic Documents and the Notes conform in all material respects to the
descriptions thereof contained in the Registration Statement, the Preliminary Prospectus and
the Final Prospectus.
(x) None of NILT Trust, the Depositor, the Issuer or the Titling Trust is now, or
immediately following the issuance of the Notes pursuant to the Indenture will be, required
to be registered under the 0000 Xxx.
(xi) Each Class A-1 Note is an “eligible security” as defined under Rule 2a-7 of the
1940 Act.
(xii) The execution and delivery by each of NMAC, the Depositor and the Issuer of each
of Basic Document to which NMAC, the Depositor or the Issuer, as applicable, is a party does
not, and the consummation by NMAC, the Depositor and the Issuer, respectively, of the
transactions contemplated thereby to occur on the date of this opinion will not, require any
consent, authorization or approval of, the giving of notice to or registration with any
governmental entity, except such as may have been made and such as may be required under the
Federal securities laws, the blue sky laws of any jurisdiction or the Uniform Commercial
Code of any state; provided that such counsel expresses no opinion with respect to any
orders, consent, permits, approvals, filing or licenses related to the authority to sell
motor vehicles, originate retail installment sale
22
contracts or service retail installment sale contracts or as may be required by any
regional or local governmental authority or under any foreign or state securities laws.
(xiii) To such counsel’s knowledge, there are no actions, proceedings or
investigations, pending or threatened, to which NMAC, the Depositor or the Issuer is a party
or of which any property of NMAC, the Depositor or the Issuer is the subject, required to be
disclosed in the Preliminary Prospectus and the Final Prospectus, other than those disclosed
therein, (i) asserting the invalidity of any of any Basic Document or the Notes; (ii)
seeking to prevent the issuance of the Notes or the consummation of any of the transactions
contemplated by any Basic Document; (iii) that, if determined adversely to NMAC, the
Depositor or the Issuer, would adversely affect the performance by NMAC, the Depositor or
the Issuer of its respective obligations under, or the validity or enforceability of any
Basic Document or the Notes; or (iv) seeking adversely to affect the Federal income tax
attributes of the Notes as described in the Preliminary Prospectus and the Final Prospectus
under the heading “Material Federal Income Tax Consequences”.
(xiv) At the time of the execution and delivery of the Trust SUBI Certificate Transfer
Agreement, the Depositor had the power and authority to transfer the SUBI Certificate and
such other property being transferred to the Issuer pursuant to the Trust SUBI Certificate
Transfer Agreement and to cause the transfer of the Notes to the Underwriters.
(xv) The Depositor has duly authorized and executed the written order to the Owner
Trustee to execute and deliver the issuer order to the Indenture Trustee to authenticate the
Notes.
(xvi) The Notes, held by Persons other than the Depositor, the Titling Trust, NILT
Trust or the Trust, will be characterized as indebtedness for federal income tax purposes
and for Texas franchise tax purposes.
(xvii) None of the Origination Trust, NILT Trust or the Trust will be classified as an
association (or publicly traded partnership) taxable as a corporation for U.S. federal
income tax purposes.
(xviii) Assuming none of NILT Trust, the Origination Trust or the Trust is classified
as an association (or publicly traded partnership) taxable as a corporation for U.S. federal
income tax purposes, each of NILT Trust, the Origination Trust and the Trust will not be
taxable as an association (or publicly traded partnership) for Texas franchise tax purposes.
(xix) A purchaser of Notes who is not otherwise subject to Texas franchise tax will not
become subject to the Texas franchise tax solely as a result of such purchaser’s ownership
of the Notes.
(xx) The statements in the Preliminary Prospectus and the Final Prospectus under the
heading, “Material Federal Income Tax Consequences,” to the extent they constitute matters
of law or legal conclusions with respect thereto, have been reviewed by such counsel and are
correct in all material respects.
23
In addition, such counsel shall deliver a letter, as special counsel to the Depositor and NMAC,
indicating that such counsel has reviewed the Registration Statement, the Preliminary Prospectus
and the Final Prospectus and participated in conferences with officers and other representatives of
the Depositor and NMAC, representatives of their independent public accountants, representatives of
the Underwriters and their counsel, at which the contents of the Registration Statement, the
Preliminary Prospectus and the Final Prospectus and related matters were discussed. The purpose of
such counsel’s professional engagement was not to establish or confirm factual matters set forth in
the Registration Statement, the Preliminary Prospectus and the Final Prospectus, and such counsel
has not undertaken any obligation to verify independently any of the factual matters set forth in
the Registration Statement, the Preliminary Prospectus and the Final Prospectus. Moreover, many of
the determinations required to be made in the preparation of the Registration Statement, the
Preliminary Prospectus and the Final Prospectus involve matters of a non-legal nature. Subject to
the foregoing, such counsel shall confirm to the Underwriters that, on the basis of the information
such counsel obtained in the course of performing the services referred to above, nothing came to
such counsel’s attention that caused such counsel to believe that (x) the Registration Statement on
the effective date thereof contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading; (y) the Preliminary Prospectus, as of the Date of Sale, together with the statements in
the Final Prospectus with respect to items identified in the Preliminary Prospectus as to be
completed in the Final Prospectus, included an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; or (z) the Final Prospectus, as of its
date or as of the Closing Date, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however, that such
counsel does not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Preliminary Prospectus or the Final
Prospectus (except as otherwise specifically provided in such counsel’s opinion dated the Closing
Date addressed to Representative relating to Federal income tax and in paragraphs II.H and
II.I of its opinion, to be delivered on the Closing Date, addressed to the Representative
and others relating to enforceability, securities law and general corporate matters), and such
counsel does not express any belief with respect to (i) the financial statements or other
financial, statistical or accounting data contained in or omitted from the Registration Statement,
the Preliminary Prospectus or the Final Prospectus, or (ii) the information set forth in or omitted
from the Preliminary Prospectus or the Final Prospectus under the captions “Summary — Swap
Counterparty” and “The Swap Counterparty.”
Such counsel’s opinions as to the legal, valid and binding nature and enforceability of any
agreement or instrument are subject to (i) the effect of any applicable bankruptcy, insolvency,
fraudulent conveyance or similar law affecting creditors’ rights generally, and (ii) to general
principles of equity (regardless of whether considered in a proceeding in equity or at law),
including concepts of commercial reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief. In addition, such counsel expresses
no opinion regarding: (i) any severability provision in the Basic Documents; or (ii) any provision
of any Basic Documents that purports to (a) appoint any person as the attorney-in-fact of any other
person, (b) provide that all rights or remedies of any party are cumulative and may be
24
enforced in addition to any other right or remedy and that the election of a particular remedy does
not preclude recourse to one or more remedies, (c) permit set-off in the absence of mutuality
between the parties, (d) confer subject matter jurisdiction on a federal court to adjudicate any
controversy in any situation in which such court would not have subject matter jurisdiction, or (e)
waive the right to jury trial or any right to object to the laying of venue or any claim that an
action or proceeding has been brought in an inconvenient forum. In addition, such counsel
expresses no opinion regarding any Underwriter Free Writing Prospectus. The opinions of such
counsel with respect to any agreement of the Depositor or NMAC to indemnify any person (including
by way of contribution) are subject to the qualifications that any indemnity obligation may be
limited by public policy considerations and may be subject to defenses available to sureties
arising from actions of the indemnified party.
(i) The Depositor has been duly formed and is validly existing in good standing as a
limited liability company under the laws of the State of Delaware.
(ii) Under the Delaware Limited Liability Company Act, 6 Del. C. § 18-101,
et seq. (the “LLC Act”), the Depositor’s Limited Liability Company Agreement
dated as of [ , ] (the “LLC Agreement”), and the Action by Unanimous Written
Consent of the Board of Managers of the Depositor, dated [ , ] (the “Consent”),
the Depositor has all necessary limited liability company power and authority to execute and
deliver the Basic Documents to which the Depositor is a party, and to perform its
obligations thereunder.
(iii) Under the LLC Act, the LLC Agreement and the Consent, the execution and delivery
by the Depositor of the Basic Documents, and the performance by it of its obligations
thereunder, have been duly authorized by all necessary limited liability company action on
the part of the Depositor.
(iv) The execution, delivery and performance by the Depositor of the Basic Documents to
which it is a party do not violate (i) the LLC Agreement, or (ii) Delaware law, rule or
regulation.
(v) The LLC Agreement constitutes a legal, valid and binding agreement of NMAC, as the
Depositor’s sole member (the “Member”), and is enforceable against the Member, in accordance
with its terms.
(vi) If properly presented to a Delaware court, a Delaware court applying Delaware law,
would conclude that (i) in order for a person to file a voluntary bankruptcy petition on
behalf of the Depositor, the prior affirmative vote of 100% of the board of
25
managers of the Depositor, including all of the independent board of managers, as
provided for in the LLC Agreement, is required, and (ii) such provision, contained in the
LLC Agreement, that requires the prior affirmative vote of 100% of the board of mangers of
the Depositor, including all of the independent board of mangers, in order for a person to
file a voluntary bankruptcy petition on behalf of the Depositor, constitutes a legal, valid
and binding agreement of the Member, and is enforceable against the Member, in accordance
with its terms.
(vii) While under the LLC Act, on application to a court of competent jurisdiction, a
judgment creditor of the Member may be able to charge the Member’s share of any profits and
losses of the Depositor and the Member’s right to receive distributions of the Depositor’s
assets (the “Member’s Interest”), to the extent so charged, the judgment creditor has only
the right to receive any distribution or distributions to which the Member would otherwise
have been entitled in respect of such Member’s Interest. Under the LLC Act, no creditor of
the Member shall have any right to obtain possession of, or otherwise exercise legal or
equitable remedies with respect to, the property of the Depositor. Thus, under the LLC Act,
a judgment creditor of the Member may not satisfy its claims against the Member by asserting
a claim against the assets of the Depositor.
(viii) Under the LLC Act (i) the Depositor is a separate legal entity, and (ii) the
existence of the Depositor as a separate legal entity shall continue until the cancellation
of the LLC.
(ix) Under the LLC Act and the LLC Agreement, the bankruptcy or dissolution of the
Member will not, by itself, cause the Depositor to be dissolved or its affairs to be wound
up.
(x) A federal bankruptcy court would hold that Delaware law and not federal law,
governs the determination of what persons or entities have authority to file a voluntary
bankruptcy petition on behalf of the Depositor.
(xi) The Certificate of Trust of the Trust has been duly filed with the Secretary of
State of the State of Delaware. The Trust has been duly formed and is validly existing as a
statutory trust and is in good standing under the Delaware Statutory Trust Act, 12 Del.
C. § 3801, et seq. (the “Trust Act”), and has the power and authority
under the Trust Agreement and the Trust Act to execute, deliver and perform its obligations
under each Basic Document to which the Trust is a party (the “Trust Documents”), to issue
the Notes and to pledge the Trust Estate to the Indenture Trustee as security for the Notes
under the Indenture.
(xii) The Notes, the Certificates and the Trust Documents have been duly authorized,
executed and delivered by the Trust. The holders of the Certificates are entitled to the
benefits of the Trust Agreement.
26
(xiii) The Trust Agreement is a legal, valid and binding obligation of the Depositor
and the Owner Trustee, enforceable against the Depositor and the Owner Trustee, in
accordance with its terms.
(xiv) Neither the execution, delivery and performance by the Trust of the Trust
Documents, nor the consummation by the Trust of any of the transactions contemplated
thereby, requires the consent or approval of, the withholding of objection on the part of,
the giving of notice to, the filing, registration or qualification with, or the taking of
any other action in respect of, any governmental authority or agency of the State of
Delaware, other than the filing of the Certificate of Trust with the Secretary of State.
(xv) Neither the execution, delivery and performance by the Trust of the Trust
Documents, nor the consummation by the Trust of the transactions contemplated thereby, is in
violation of the Trust Agreement or of any law, rule or regulation of the State of Delaware
applicable to the Trust.
(xvi) Under § 3805(b) of the Trust Act, no creditor of any Certificateholder shall have
any right to obtain possession of, or otherwise exercise legal or equitable remedies with
respect to, the property of the Trust except in accordance with the terms of the Trust
Agreement.
(xvii) Under the Trust Act, the Trust is a separate legal entity and, assuming that the
Trust SUBI Certificate Transfer Agreement conveys good title to the Trust property to the
Trust as a true sale and not as a security arrangement, the Trust rather than the
Certificateholders will hold whatever title to the Trust property as may be conveyed to it
from time to time pursuant to the Trust SUBI Certificate Transfer Agreement, except to the
extent that the Trust has taken action to dispose of or otherwise transfer or encumber any
part of the Trust property.
(xviii) (A) The Financing Statement naming the Depositor as debtor and [U.S. Bank
National Association] as Secured Party is in an appropriate form for filing in the State of
Delaware; (B) Insofar as Article 9 of the Uniform Commercial Code as in effect in the State
of Delaware on the date hereof (the “Delaware UCC”) is applicable (without regard to
conflict of laws principles), upon the filing of the Financing Statement (as defined in such
opinion) with the Division, the Secured Party will have a perfected security interest in the
Depositor’s rights in that portion of the Collateral in which a security interest may be
perfected by the filing of a UCC financing statement with the Division (for purposes of this
clause, the “Filing Collateral”) and the proceeds thereof (as defined in Section
9-102(a)(64) of the Delaware UCC; and (C) The Search Report (as defined in such opinion)
sets forth the proper filing office and the proper debtor necessary to identify those
Persons who under the Delaware UCC have on file financing statements against the Depositor
covering the Filing Collateral as defined in such opinion as of the Effective Time (as
defined in such opinion). The Search Report identifies all persons who are secured parties
who have filed with the Division a financing statement naming the Depositor as debtor and
describing the Filing Collateral prior to the Effective Time.
27
(xix) Under § 3805(c) of the Trust Act, except to the extent otherwise provided in the
Trust Agreement, a Certificateholder (including the Depositor in its capacity as such) has
no interest in specific Trust property.
(xx) Each of NILT Trust and the Titling Trust has been duly formed and is validly
existing in good standing as a statutory trust under the Trust Act.
(xxi) Under the Trust Act and the NILT Trust Formation Documents, NILT Trust has all
necessary statutory trust power and authority to execute and deliver, and to perform its
obligations under, the Basic Documents to which it is a party. Under the Trust Act, the
Titling Trust Formation Documents and the 200[ ]-[ ] SUBI Supplement, the Titling Trust has
all necessary statutory trust power and authority to execute and deliver, and to perform its
obligation under, the Basic Documents to which it is a party and to issue the 200[ ]-[ ]
SUBI Certificate.
(xxii) Under the Trust Act and the NILT Trust Formation Documents, the execution and
delivery by NILT Trust of the Basic Documents to which it is a party, and the performance by
it thereunder, have been duly authorized by all necessary statutory trust action on the part
of NILT Trust. Under the Trust Act, the Titling Trust Formation Documents and the 200[ ]-[
] SUBI Supplement, the execution and delivery by the Titling Trust of the Basic Documents to
which it is a party and the issuance of the SUBI Certificate, and the performance by it
thereunder, have been duly authorized by all necessary trust action on the part of the
Titling Trust.
(xxiii) The NILT Trust Agreement, the Titling Trust Agreement and the 200[ ]-[ ] SUBI
Supplement are legal, valid and binding agreements of the parties thereto, enforceable
against such parties in accordance with their respective terms.
(xxiv) The 200[ ]-[ ] SUBI Certificate has been duly and validly authorized and, when
executed, authenticated and delivered in accordance with the Titling Trust Agreement and the
200[ ]-[ ] SUBI Supplement, will be duly and validly issued and outstanding and entitled to
the benefits of the Titling Trust Agreement and the 200[ ]-[ ] SUBI Supplement.
(xxv) Under Section 3805(b) of the Trust Act, no creditor of any holder of a UTI
Certificate or a 200[ ]-[ ] SUBI Certificate shall have any right to obtain possession of,
or otherwise exercise legal or equitable remedies with respect to, the property of Titling
Trust except in accordance with the terms of the Titling Trust Agreement and the 200[ ]-[ ]
SUBI Supplement.
(xxvi) Under Section 3805(b) of the Trust Act, no creditor of any holder of a
beneficial interest in NILT Trust shall have any right to obtain possession of, or otherwise
exercise legal or equitable remedies with respect to, the property of NILT Trust except in
accordance with the terms of the NILT Trust Agreement.
(xxvii) Insofar as the Delaware UCC is applicable (without regard to conflict of laws
principles), the 200[ ]-[ ] SUBI Certificate constitutes a “certificated security” within
the meaning of Section 8-102 (a)(4) of the Delaware UCC.
28
(xxviii) Insofar as Section 9-305(a)(1) of the Delaware UCC is applicable (without
regard to conflicts of laws principles), a security interest in a “certificated security” is
perfected pursuant to the laws of the jurisdiction in which such certificated security is
located.
(xxix) Neither the execution, delivery and performance by either of NILT Trust or the
Titling Trust of the Basic Documents to which it is a party, nor the consummation by NILT
Trust or the Titling Trust of any of the transactions contemplated thereby, requires the
consent or approval of, the withholding of objection on the part of, the giving of notice
to, the filing, registration or qualification with, or the taking of any other action in
respect of, any governmental authority or agency of the State of Delaware.
(xxx) Neither the execution, delivery and performance by either of NILT Trust or the
Titling Trust of the Basic Documents to which it is a party, nor the consummation by NILT
Trust or the Titling Trust of the transactions contemplated thereby, is in violation of the
NILT Trust Agreement or the Titling Trust Agreement or any law, rule or regulation of the
State of Delaware applicable to either NILT Trust or the Titling Trust.
(xxxi) (A) The Financing Statement naming NILT Trust as debtor and [U.S. Bank National
Association] as Secured Party (for purposes of this clause, the “Secured Party”) is in an
appropriate form for filing in the State of Delaware; (B) To the extent that Article 9 of
the Delaware UCC is applicable (without regard to conflict of laws principles), upon the
filing of such Financing Statement (as defined in such opinion) with the Division, the
Secured Party will have a perfected security interest in NILT Trust’s rights in that portion
of the Collateral that may be perfected by the filing of a UCC financing statement with the
Division (for purposes of this clause, the “Filing Collateral”) and the proceeds thereof (as
defined in Section 9-102(a)(64) of the Delaware UCC); and (C) The Search Report (as defined
in such opinion) sets forth the proper filing office and the proper debtor necessary to
identify those Persons who under the Delaware UCC have on file financing statements against
NILT Trust covering the Filing Collateral as defined in such opinion as of the Effective
Time (as defined in such opinion). The Search Report identifies all persons who are secured
parties who have filed with the Division a financing statement naming NILT Trust as debtor
and describing the Filing Collateral prior to the Effective Time.
(xxxii) Assuming for federal income tax purposes that none of the Trusts (as defined in
such opinion) nor the Depositor is classified as an association or a publicly traded
partnership taxable as a corporation, and the Notes will be characterized as indebtedness,
for Delaware income tax purposes (i) each of the Trusts and the Depositor will not be
subject to any tax (including, without limitation, net or gross income, tangible or
intangible property, net worth, capital, franchise or doing business tax), fee or other
governmental charge under the laws of the State of Delaware or any political subdivision
thereof (“Taxes”) (other than gross receipts taxes imposed at a combined rate of 2.208% upon
the lessor and lessee of tangible personal property leased for use within the State of
Delaware and net income taxes imposed at various rates upon net income received from the
lease of tangible personal property within the State of Delaware), and (ii) Noteholders that
are not residents of or otherwise subject to tax in Delaware will not be subject to any
29
tax (including, without limitation, net or gross income, tangible or intangible
property, net worth, capital, franchise or doing business tax), fee or other governmental
charge under the laws of the State of Delaware or any political subdivision thereof as a
result of purchasing, holding (including receiving payments with respect to) or selling a
Note.
(xxxiii) (A) The Financing Statement naming the Origination Trust (as defined in such
opinion) as debtor and the Indenture Trustee as secured party is in an appropriate form for
filing in the State of Delaware; (B) Insofar as Article 9 of the Delaware UCC is applicable
(without regard to conflict of laws principles), upon the filing of such Financing Statement
(as defined in such opinion) with the Division, the Indenture Trustee will have a perfected
security interest in (i) the Origination Trust’s rights in that portion of the Collateral in
which a security interest may be perfected by the filing of a UCC financing statement with
the Division (for purposes of this clause (xviii), the “Filing Collateral”) and the proceeds
thereof (as defined in Section 9-102(a)(64) of the Delaware UCC); and the security interest
of the Indenture Trustee will be prior to any other security interest granted by the Trust
that is perfected solely by the filing of financing statements under the Delaware UCC; and
(C) Each of the Search Report (as defined in such opinion) sets forth the proper filing
office and the proper debtor necessary to identify those Persons who under the Delaware UCC
have on file financing statements against the Trust, NILT Trust, the Depositor and the
Origination Trust, as applicable, covering the Filing Collateral as of the Trust Effective
Time (as defined in such opinion) or the Back up Effective Time (as defined in such
opinion), as the case may be. Each of the Reports identifies each secured party who has
filed with the Division a financing statement naming the Trust, NILT Trust, the Depositor
and the Origination Trust, as applicable, as debtor and describing the Filing Collateral
prior to the Effective Time or the Back up Effective Time, as the case may be.
(i) [U.S. Bank] has been duly organized and is validly existing as a national banking
association, in good standing under the laws of the United States of America with full power
and authority (corporate and other) to own its properties and conduct its business, as
presently conducted by it, and to enter into and perform its obligations as Indenture
Trustee, Trust Agent and Securities Intermediary under each Basic Document to which it is a
party.
30
(ii) Each Basic Document to which [U.S. Bank] is a party has been duly authorized,
executed and delivered by [U.S. Bank] and constitutes the legal, valid and binding
obligations of [U.S. Bank] enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, moratorium, fraudulent
conveyance, 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).
(iii) The Notes have been duly authenticated and delivered by [U.S. Bank] in its
capacity as Indenture Trustee under the Indenture.
(iv) Neither the execution nor delivery by [U.S. Bank] of each Basic Document to which
it is a party nor the consummation of any of the transactions by [U.S. Bank] contemplated
thereby require the consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to, any governmental authority or agency
under any existing federal law of the United States of America governing the banking or
trust powers of [U.S. Bank].
(v) The execution and delivery of each Basic Document to which [U.S. Bank] is a party
and the performance by [U.S. Bank] of their terms do not conflict with or result in a
violation of (A) any federal law or regulation of the United States of America governing the
banking or trust powers of [U.S. Bank], (B) the Amended and Restated Articles of Association
or bylaws of [U.S. Bank], or (C) to the best of such counsel’s knowledge, any indenture,
lease, or material agreement to which [U.S. Bank] is a party or to which its assets are
subject.
(vi) All of the issued and outstanding capital stock of the Titling Trustee is owned by
[U.S. Bank], free and clear of any Liens.
(i) The Titling Trustee has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with corporate power
and authority to own, lease and operate its properties, to conduct its business, as
presently conducted by it, and to enter into and perform its obligations as Indenture
Trustee under each Basic Document to which it is a party.
(ii) The shares of issued and outstanding capital stock of the Titling Trustee have
been duly authorized and validly issued, are fully paid and non-assessable and are owned by
[U.S. Bank], free and clear of any liens.
(iii) Each Basic Document to which the Titling Trustee is a party has been duly
authorized, executed and delivered by the Titling Trustee and constitutes the legal, valid
and binding obligations of the Titling Trustee enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
31
moratorium, fraudulent conveyance, reorganization or other similar laws affecting
enforcement of creditors’ rights generally and by general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).
(iv) The Titling Trustee is duly qualified as a foreign corporation to transact
business and is in good standing in the States of California, New York and Tennessee (the
“Trust States”).
(v) The SUBI Certificate has been duly executed, authenticated and delivered by the
Titling Trustee in its capacity as Trustee under the Titling Trust Agreement.
(vi) Neither the execution nor delivery by the Titling Trustee of each Basic Document
to which it is a party nor the consummation of any of the transactions by the Titling
Trustee as contemplated thereby require the consent or approval of, the giving of notice to,
the registration with or the taking of any other action with respect to, any governmental
authority or agency under any existing federal or state law in the Trust States, except such
notices and approvals as have been given and remain in effect on the date of the related
opinion from such counsel.
(vii) The execution and delivery of each Basic Document to which the Titling Trustee is
a party and the performance by the Titling Trustee of their terms do not conflict with or
result in a violation of the articles of incorporation or bylaws of the Titling Trustee or,
to the best of such counsel’s knowledge, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or to which its assets are subject.
(i) [WTC] is duly incorporated, validly existing and in good standing as a banking
corporation under the laws of the State of Delaware.
(ii) [WTC] has power and authority to execute, deliver and perform its obligations
under each of the Trust Agreement and the Agreement of Definitions, and to consummate the
transactions contemplated thereby.
(iii) Each of the Trust Agreement and the Agreement of Definitions has been duly
authorized, executed and delivered by [WTC] and constitutes a legal, valid and binding
obligation of [WTC].
(iv) Neither the execution or delivery by [WTC] of the Trust Agreement or the Agreement
of Definitions nor the consummation by [WTC] of any of the transactions contemplated thereby
nor compliance by [WTC] with the terms or provisions of the Trust Agreement or the Agreement
of Definitions will violate any Delaware or United States federal law, rule or regulation
governing the trust powers of [WTC] or [WTC]’s certificate of incorporation or by-laws or
require the consent or approval of, the giving of
32
notice to, the registration with, or the taking of any other action with respect to,
any governmental authority or agency under the laws of the State of Delaware or the United
States governing the banking or trust powers of [WTC] other than the filing of the
Certificate of Trust with the Secretary of State of the State of Delaware.
(i) The Trust is not subject to the Tennessee taxes imposed by T.C.A. §§ 67-4-2001
et seq. (the “Excise Tax”), T.C.A. §§ 67-4-2101 et seq. (the “Franchise
Tax”), T.C.A. §§ 67-2-101 et seq. (the “Hall Tax”), or T.C.A. §§ 67-4-701 et
seq. (the “Business Tax”).
(ii) The Notes are deemed to be “bonds” for purposes of the Hall Tax, and the interest
paid by the Trust to the non-corporate Noteholders who are Tennessee residents is taxable
under the Hall Tax.
(iii) Noteholders who are persons or entities who would otherwise be taxable under
T.C.A. §67-2-102 but are not residents of Tennessee are not subject to the Hall Tax.
(iv) Noteholders who would otherwise be taxpayers within the meaning of T.C.A.
§67-4-2004(20) but are not doing business in the State of Tennessee within the meaning of
T.C.A. §67-4-2004(7) are not subject to the Excise Tax or the Franchise Tax.
(v) With respect to the Noteholders that are corporations subject to Tennessee
taxation, the tax characterization of the Notes and the distributions thereon will be the
same as for United States federal income tax purposes.
(vi) With respect to the Certificateholder, the Tennessee tax characterization of the
Certificate and the distributions thereon will vary from the treatment under federal income
tax laws because the Trust will be disregarded for federal income tax purposes but is
recognized as a separate entity for Tennessee Franchise and Excise Tax purposes. However,
distributions to the Certificateholder should qualify for the dividends received deduction
pursuant to T.C.A. §67-4-2006(b)(2)(A).
(vii) The execution, delivery and performance by each of NMAC and the Depositor of this
Agreement or by NMAC or the Depositor of the Depositor LLC Agreement or any of the Basic
Documents to which such entity is a party and the performance by each of them, of their
respective obligations hereunder will not violate, result in a breach of or constitute a
default under, or with the giving of notice or the passage of time or both, would constitute
a default under or result in the creation or imposition of any Lien (except as permitted by
the Basic Documents) upon any property or assets of such entity pursuant to the terms of any
statutes, rules, regulations or judicial decisions of any executive, legislative, judicial,
administrative or regulatory body of the State of Tennessee (and not including any regional
or local governmental authority)
33
having jurisdiction over the Depositor and NMAC (each, a “Governmental Authority”),
that, in such counsel’s experience, are normally applicable to transactions of the type
contemplated by the Basic Documents (“Applicable Law”), excepting, defaults, breaches or
violations that do not, in the aggregate, 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.
(viii) No order, certificate, permit, consent, approval, license, authorization or
validation of, or filing, recording or registration with, any Governmental Authority
(“Governmental Approval”) is required under Tennessee Applicable Law on the part of NMAC or
the Depositor in connection with the issuance of the SUBI Certificate or the Securities or
the offering or sale of the Notes, except (A) as may be required under the securities laws,
rules or regulations of any Governmental Authority, (B) as have previously been obtained and
are in full force and effect as of the Closing Date, and (C) as may be required relating to
the authority to lease motor vehicles, originate lease contracts or to service lease
contracts or leased vehicles.
(ix) Each of NMAC, the Depositor, NILT Trust and the Titling Trust has obtained all
necessary Governmental Approvals under Applicable Law necessary to conduct the business now
operated by it as described in the Final Prospectus, except where the failure to possess
such Governmental Approvals would not have a material adverse effect on the ability of NMAC,
the Depositor, NILT Trust or the Titling Trust to perform their respective obligations under
the Basic Documents, and none of such entities has received any notice of proceedings
relating to the revocation or modification of any such Governmental Approval that, singly or
in the aggregate, could reasonably be expected to have a material adverse effect on the
ability of NMAC, the Depositor, NILT Trust or the Titling Trust to perform its respective
obligations under the Basic Documents..
(l) Opinion of Counsel for 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 for the Underwriters, in form and substance satisfactory to the
Underwriters. In rendering such opinion, such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel reasonably satisfactory to the Underwriters.
34
Section 8. Indemnification.
35
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 and fourth paragraphs (concerning initial offering prices, concessions and
reallowances) and in the eighth 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”).
36
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.
37
subject of
this subsection 8(d). Notwithstanding the provisions of this
subsection 8(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 Securities 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.
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 controlling person, 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-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 8.
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.
38
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., NNA or NMAC that, in the judgment
of the Representative, materially impairs the investment quality of the Notes or makes it
impractical or inadvisable to proceed with completion of the sale of and payment for the Notes;
(ii) any downgrading in the rating of any debt securities of NNA or any of its direct or indirect
subsidiaries by any “nationally recognized statistical rating organization” (as defined for
purposes of Rule 436(g) under the Securities Act), or any public announcement that any such
organization has under surveillance or review its rating of any such debt securities (other than an
announcement with positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv)
any material disruption in commercial banking, securities settlement or clearance services in the
United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any
outbreak or escalation of major hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international calamity or emergency if, in
the reasonable judgment of the Representative, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion
of the sale of and payment for the Notes.
(b) If this Agreement is terminated pursuant to
this Section, such termination shall be
without liability of any party to any other party except as provided in Section 5, and provided
further that Sections 1, 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 or transmitted by any standard form of
telecommunication. Notices (i) to the Underwriters shall be directed to the Representative at [
]; (ii) to NMAC shall be directed to it at X.X. Xxx
000000, Xxxxxxxx, XX 00000-0000, and (iii) to the Depositor shall be directed to it at BellSouth Tower, 333 Commerce Street,
00xx Xxxxx, X-00-X, Xxxxxxxxx, XX 00000-0000, Attention: Treasurer.
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.
39
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 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 or the Final Prospectus for the Notes and (iii) 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 represents and agrees that it has not offered or sold and will not offer
or sell, prior to the date six months after their date of issuance, any of the Notes to persons in
the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of their businesses
or otherwise in circumstances that have not resulted in and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995
(as amended);
(f) Each Underwriter has complied and will comply with all applicable provisions of the
Financial Services and Markets Xxx 0000 (“FSMA”) with respect to anything done by such Underwriter
in relation to the Notes in, from or otherwise involving the United Kingdom; and
(g) Each Underwriter will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of Section 21 of
40
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.
Section 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICTS OF LAWS PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 17. Effect of Headings. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 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.
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.
41
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: | ||||
Name: | ||||
Title: | ||||
NISSAN AUTO LEASING LLC II, a Delaware limited liability company |
||||
By: | ||||
Name: | ||||
Title: |
(Nissan
200[ ]-[ ]
Underwriting Agreement)
S-1
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
[ ],
as Representative of the Several Underwriters
as Representative of the Several Underwriters
By: |
||||
(Nissan
200[ ]-[ ]
Underwriting Agreement)
S-2
SCHEDULE A
Principal | Principal | Principal | Principal | |||||
Amount of | Amount of | Amount of | Amount of | |||||
Class A-1 | Class A-2 | Class A-3 | Class A-4 | |||||
Underwriter | Notes | Notes | Notes | Notes | ||||
(Nissan
200[ ]-[ ]
Underwriting Agreement)
Schedule A