Exhibit 1.1
NISSAN AUTO RECEIVABLES 2003-A OWNER TRUST
$430,000,000, 1.30000% ASSET BACKED NOTES, CLASS A-1
$362,000,000, 1.45000% ASSET BACKED NOTES, CLASS A-2
$543,000,000, 1.89000% ASSET BACKED NOTES, CLASS A-3
$280,712,000, 2.61000% ASSET BACKED NOTES, CLASS A-4
NISSAN AUTO RECEIVABLES CORPORATION II
(SELLER)
February 20, 2003
Underwriting Agreement
Xxxxxxx Xxxxx Xxxxxx Inc.,
As Representative of the
Several Underwriters (the "Representative")
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. Nissan Auto Receivables Corporation II (the
"Seller"), a Delaware corporation and wholly-owned subsidiary of Nissan Motor
Acceptance Corporation, a California corporation (the "Servicer"), proposes to
sell $430,000,000 principal amount of 1.30000% Asset Backed Notes, Class A-1
(the "Class A-1 Notes"), $362,000,000 principal amount of 1.45000% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), $543,000,000 principal amount of
1.89000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), and $280,712,000
principal amount of 2.61000% Asset Backed Notes, Class A-4 (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"), each issued by the Nissan Auto Receivables 2003-A Owner
Trust (the "Trust"). The Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated as of February 26, 2003, between the Trust and the
Indenture Trustee (as defined therein) and will be governed by the terms of a
Sale and Servicing Agreement (the "Sale and Servicing Agreement"), to be dated
as of February 26, 2003, among the Trust, the Seller and the Servicer. The Trust
will also issue certain asset backed certificates which will represent
fractional undivided interests in the Trust and will not be sold hereunder.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings given them in the Sale and Servicing Agreement.
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2. Representations and Warranties of the Seller and the Servicer.
Each of the Seller and the Servicer, jointly and severally, represents and
warrants to and agrees with the several underwriters named in Schedule 1 hereto
(the "Underwriters") that:
(a) A registration statement (No. 333-87970), including a
form of prospectus supplement relating to the Notes and a form of base
prospectus relating to each class of securities to be registered under
such registration statement (the "Registered Securities"), has been filed
on Form S-3 with the Securities and Exchange Commission (the "Commission")
and either (i) has been declared effective under the Securities Act of
1933, as amended (the "Act"), and is not proposed to be amended or (ii) is
proposed to be amended by amendment or post-effective amendment. If such
registration statement (the "initial registration statement") has been
declared effective, either (i) any additional registration statement (the
"additional registration statement") relating to the Notes has been filed
with the Commission pursuant to rule 462(b) ("Rule 462(b)") under the Act
and declared effective upon filing, and the Notes have been registered
under the Act pursuant to the initial registration statement and such
additional registration statement or (ii) any such additional registration
statement proposed to be filed with the Commission pursuant to Rule 462(b)
will become effective upon filing pursuant to Rule 462(b) and upon such
filing the Notes will have been duly registered under the Act pursuant to
the initial registration statement and such additional registration
statement. If the Seller does not propose to amend the initial
registration statement, any such additional registration statement or any
post-effective amendment to either such registration statement filed with
the Commission prior to the execution and delivery of this Agreement, then
the most recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Act ("Rule 462(c)") or Rule
462(b).
For purposes of this Agreement, "Effective Time" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(A) if the Seller has advised the Representative that it does 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 Seller has
advised the Representative that it proposes 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 Seller has advised the Representative that it proposes
to file, but has not filed, an additional registration statement,
"Effective Time" with respect to such additional registration statement
means the date and time as of which such registration statement is filed
and becomes effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof.
The initial registration statement and all amendments and
supplements thereto, as amended at its Effective Time, including all
information (A) contained in the additional
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registration statement (if any), (B) deemed to be a part of the initial
registration statement as of the Effective Time 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 Effective Time pursuant to Rule 430A(b)
under the Act ("Rule 430A(b)"), is hereinafter referred to as the "Initial
Registration Statement." The additional registration statement and all
amendments and supplements thereto, as amended at its Effective Time,
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 and the Additional Registration Statement
are hereinafter referred to collectively as the "Registration Statements"
and individually as a "Registration Statement." The form of prospectus
supplement relating to the Notes (the "Prospectus Supplement") and the
form of prospectus (the "Base Prospectus") relating to the Registered
Securities (including the Notes), as first filed with the Commission in
connection with the offering and sale of the Notes pursuant to and in
accordance with Rule 424(b) under the Act ("Rule 424(b)") or, if no such
filing is required, as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus." The Seller filed a Term Sheet, dated
February 18, 2003, relating to the Notes (the "Term Sheet") disseminated
by the Underwriters on Form 8-K with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), within
two business days of its delivery to the Underwriters.
(b) (A) On the Effective Date of any Registration Statement
whose Effective Time 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 subsequent to the date of this Agreement, 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. At the time of filing of the
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 Prospectus, on the date of this Agreement and at the Closing Date, the
Prospectus will conform, in all respects to the requirements of the Act
and the Rules and Regulations, and does not include, and will not include,
any untrue statement of a material fact, nor does the Prospectus omit, nor
will it omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The two preceding
sentences do not apply to statements in or omissions from the Registration
Statement or Prospectus based upon written information furnished to the
Seller by any Underwriter through the Representative specifically for use
therein or to that part of the Registration Statement which constitutes
the Statement of Qualification under the 1939 Act on Form T-1 (the "Form
T-1") of the Indenture Trustee (which will be represented and warranted to
by the Indenture Trustee). If the Effective Time of the Registration
Statement is subsequent to
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the date of this Agreement, no Additional Registration Statement has been
or will be filed. The Indenture has been qualified under the 1939 Act.
(c) The Seller 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 its properties and
conduct its business as described in the Prospectus, and 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 the Seller's ability to perform its
obligations under this Agreement, the Trust Agreement, the Purchase
Agreement, the Assignment, the Sale and Servicing Agreement, the Yield
Supplement Agreement, the Securities Account Control Agreement or the
Administration Agreement (collectively, the "Basic Documents").
(d) The Servicer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
California with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and 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 the Servicer's ability to perform its
obligations under the Basic Documents.
(e) The consummation of the transactions contemplated by the
Basic Documents, and the fulfillment of the terms thereof, will not
conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation of any lien,
charge, or encumbrance upon any of the property or assets of the Seller or
the Servicer pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement, guarantee, lease financing agreement, or similar
agreement or instrument under which the Seller or the Servicer is a debtor
or guarantor, except where such conflict, breach, default or creation
would not have a material adverse effect on the Seller's or the Servicer's
respective ability to perform its obligations under the Basic Documents or
the validity or enforceability thereof.
(f) No consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required to be obtained
or made by the Seller or the Servicer for the consummation of the
transactions contemplated by this Agreement except such as have been
obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the Trust's interest in the Receivables.
(g) Neither the Seller nor the Servicer is in violation of its
certificate of incorporation or articles of incorporation, as applicable,
or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any agreement or
instrument to which it is a party or by which it or its properties are
bound which would have a material adverse effect on the transactions
contemplated herein or on the Seller's or the Servicer's respective
ability to perform its obligations
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under the Basic Documents. The execution, delivery and performance 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 Seller or the Servicer 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 Seller's or the Servicer's
respective ability to perform its obligations under the Basic Documents or
the validity or enforceability thereof, or (ii) conflict with the Seller's
or the Servicer's charter or by-laws, and each of the Seller and the
Servicer has corporate power and authority to enter into the Basic
Documents and to consummate the transactions contemplated hereby and
thereby.
(h) The Basic Documents have been duly authorized, executed
and delivered by, and (assuming due authorization and delivery thereof by
the other parties hereto and thereto) constitute valid and binding
obligations of, the Seller and the Servicer, as applicable, enforceable
against such party 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.
(i) 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.
(j) There are no legal or governmental proceedings pending to
which the Seller or the Servicer is a party or of which any property of
the Seller or the Servicer is the subject, and to the Seller's knowledge
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others, (A) (whether individually or in the
aggregate) that are required to be disclosed in the Registration Statement
or (B)(1) asserting the invalidity of all or part of any Basic Document,
(2) seeking to prevent the issuance of the Notes, (3) (whether
individually or in the aggregate) that would materially and adversely
affect the Seller's or the Servicer's obligations under any Basic Document
to which it is a party, or (4) (whether individually or in the aggregate)
seeking to affect adversely the federal or state income tax attributes of
the Notes.
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(k) Any taxes, fees and other governmental charges that have
been assessed and are known to the Seller to be due in connection with the
execution, delivery and issuance of the Basic Documents shall have been
paid by the Seller or the Servicer at or prior to the Closing Date (as
defined in Section 3(c) hereof).
(l) Each of the Seller and the Servicer possesses all material
licenses, certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies, the
absence of which would have a material adverse effect on the ability of
the Seller or the Servicer to perform its duties under the Sale and
Servicing Agreement, and neither of the Seller or Servicer has received
notice of proceedings relating to the revocation or modification of any
such license, certificate, authorization or permit which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or finding,
would materially and adversely affect the ability of the Seller or the
Servicer to perform its obligations under the Basic Documents.
(m) As of the Closing Date, the Reserve Account and the Yield
Supplement Account will be subject to a first-priority security interest
in favor of the Indenture Trustee for the benefit of the Noteholders.
(n) As of the Closing Date, the Trust (for the benefit of the
Noteholders) will have good title, free and clear of all prior liens,
charges and encumbrances, to the Receivables and such other items
comprising the corpus of the Trust transferred to the Trust pursuant to
the Sale and Servicing Agreement.
(o) As of the Closing Date, the Indenture, the Notes and the
Basic Documents will conform in all material respects to the description
thereof contained in the Registration Statement and the Prospectus.
(p) Deloitte & Touche LLP are independent public accountants
with respect to the Seller within the meaning of the Act and the Rules and
Regulations.
(q) Neither the Trust nor the Seller is required to be
registered as an "investment company" under the Investment Company Act of
1940, as amended.
(r) The representations and warranties of the Seller and the
Servicer in the Sale and Servicing Agreement are true and correct in all
material respects.
3. Purchase, Sale and Delivery of Notes.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Seller agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Seller, the aggregate principal amounts of the Notes set forth opposite
the names of the Underwriters in Schedule 1 hereto.
(b) The Notes are to be purchased at a purchase price equal to
(i) in the case of the Class A-1 Notes, 99.88000% of the aggregate
principal amount thereof, (ii) in the case of the Class A-2 Notes,
99.82045% of the aggregate principal amount thereof,
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(iii) in the case of the Class A-3 Notes, 99.77813% of the aggregate
principal amount thereof, and (iv) in the case of the Class A-4 Notes,
99.73474 of the aggregate principal amount thereof.
(c) Against payment of the purchase price by wire transfer of
immediately available funds to the Seller, the Seller will deliver the
Notes to the Representative, for the account of the Underwriters, at the
office of O'Melveny & Xxxxx LLP, at 000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx, on February 26, 2003, 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 Seller 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 securities registered in the name of Cede &
Co., the nominee of The Depository Trust Company ("DTC"). The interests of
beneficial owners of the Notes will be represented by book entries on the
records of DTC and participating members thereof. Definitive securities
will be available only under the limited circumstances set forth in the
Indenture.
4. 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 Prospectus.
5. Covenants of the Seller. The Seller covenants and agrees with
the several Underwriters that:
(a) If the Effective Time is prior to the execution and
delivery of this Agreement, the Seller will file the Prospectus with the
Commission pursuant to and in accordance with Rule 424(b) not later than
the second business day following the execution and delivery of this
Agreement. If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an Additional
Registration Statement is necessary to register a portion of the Notes
under the Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Seller will file the Additional Registration
Statement or a post-effective amendment thereto, as the case may be, with
the Commission pursuant to and in accordance with Rule 424(b). The Seller
will advise the Representative promptly of any such filing pursuant to
Rule 424(b).
(b) The Seller will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus, and
will not effect such amendment or supplementation without the
Representative's consent; and the Seller will also advise the
Representative promptly of the effectiveness of the Registration Statement
(if the Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of the Registration Statement and
will use its best efforts to prevent the issuance of any such stop order
and to lift such stop order as soon as possible, if issued.
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(c) The Seller will arrange for the qualification of the Notes
for offering and sale under the securities laws of such jurisdictions in
the United States as the Representative may reasonably designate and to
continue such qualifications in effect so long as necessary under such
laws for the distribution of such securities; provided that in connection
therewith the Seller shall not be required to qualify as a foreign
corporation to do business, or to file a general consent to service of
process, in any jurisdiction.
(d) If, at any time when the delivery of a prospectus shall be
required by law in connection with sales of any Notes, either (i) any
event shall have occurred as a result of which the Prospectus would
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
(ii) for any other reason it shall be necessary to amend or supplement the
Prospectus, the Seller will promptly notify the Representative and will
promptly prepare for review by the Representative and file with the
Commission an amendment or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance. Neither your
consent to, nor the Underwriters' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(e) The Seller will cause the Trust to make generally
available to Holders as soon as practicable, but not later than fourteen
months after the Effective Date, an earnings statement of the Trust
covering a period of at least twelve consecutive months beginning after
such Effective Date and satisfying the provisions of Section 11(a) of the
Act (including Rule 158 promulgated thereunder).
(f) The Seller will furnish to the Representative copies of
the Registration Statement (which will include all exhibits), the Form 8-K
relating to the Term Sheet, the related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Representative may
from time to time reasonably request.
(g) So long as any of the Notes are outstanding, the Seller
will furnish to the Representative copies of all reports or other
communications (financial or otherwise) furnished to Holders, and deliver
to the Representative during such same period (i) as soon as they are
available, copies of any reports and financial statements furnished to or
filed with the Commission and (ii) such additional information concerning
the business and financial condition of the Seller and the Trust as the
Representative may from time to time reasonably request.
(h) The Seller 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 Seller's and the
Servicer'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 5(c) hereof, including filing fees and the fees and disbursements
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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 preliminary prospectus and the 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 Xxxxx'x Investors Service, Inc. ("Moody's") and Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
("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.
(i) Until the retirement of the Notes, or until such time as
the Underwriters shall cease to maintain a secondary market in the Notes,
whichever occurs first, the Seller will deliver to the Representative the
annual statements of compliance and the annual independent certified
public accountants' reports furnished to the Indenture Trustee pursuant to
Article IV of the Sale and Servicing Agreement, as soon as such statements
and reports are furnished to the Indenture Trustee.
(j) On or promptly after the Closing Date, the Seller shall
cause its and the Servicer's computer records relating to the Receivables
to be marked to show the Trust's absolute ownership of the Receivables,
and from and after the Closing Date neither the Seller nor the Servicer
shall take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Sale and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Notes by Moody's or S&P is conditional upon the furnishing
of documents or the taking of any other actions by the Seller, the Seller
shall furnish, and shall cause the Servicer to furnish, such documents and
take any such other actions.
6. Conditions of the Obligations of the Underwriters. 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 Seller and the Servicer herein on the date hereof and at the Closing Date,
to the accuracy of the statements of officers of the Seller and the Servicer
made pursuant to the provisions hereof, to the performance by the Seller and the
Servicer of their respective obligations hereunder and to the following
additional conditions precedent:
(a) At the time this Agreement is executed and delivered by
the Seller and at the Closing Date, Deloitte & Touche LLP shall have
furnished to the Representative letters dated respectively as of the date
of this Agreement and as of the Closing Date substantially in the forms of
the drafts to which the Representative previously agreed.
(b) If the Effective Time of the Initial 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 such later date as shall have
been consented to by the Representative. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of
this Agreement, the
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Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. If the
Effective Time of the Additional Registration Statement (if any) 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 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 Seller,
shall be contemplated by the Commission.
(c) 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 Seller representing and warranting that, to the
best of such officers' knowledge after reasonable investigation, as of the
Closing Date:
(i) The representations and warranties of the Seller
in this Agreement are true and correct in all material respects,
that the Seller 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.
(ii) There has been no material adverse change, since
the respective dates as of which information is given in the
Prospectus (except as otherwise set forth therein and exclusive of
amendments or supplements after the date hereof), in the condition,
financial or otherwise, earnings or business affairs, whether or not
arising out of the ordinary course of business, of the Seller 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 Seller or its Affiliates, or any of
them, shall be interpreted in proportion to the business of the
Servicer and its consolidated subsidiaries, as a whole, and not in
proportion to the business of the Seller or its Affiliate(s)
individually.
(d) 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 Servicer representing and warranting that, to
the best of such officers' knowledge after reasonable investigation, as of
the Closing Date:
(i) The representations and warranties of the Servicer
in this Agreement are true and correct in all material respects,
that the Servicer has
10 (Nissan 2003-A Underwriting Agreement)
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.
(ii) There has been no material adverse change, since
the respective dates as of which information is given in the
Prospectus (except as otherwise set forth therein and exclusive of
amendments or supplements after the date hereof), in the condition,
financial or otherwise, earnings or business affairs, whether or not
arising out of the ordinary course of business, of the Servicer 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. Except as otherwise indicated by the context,
all references to the terms "material" in this Agreement that refer
to the Servicer or its Affiliates, or any of them, shall be
interpreted in proportion to the business of the Servicer and its
consolidated subsidiaries, as a whole, and not in proportion to the
business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly
the business or properties of the Seller, Nissan Motor Co., Ltd., NNA or
the Servicer which, 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 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
entitlement 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.
(f) Xxx Xxxxx, Esq., General Counsel of the Seller, or other
counsel satisfactory to the Representative in its reasonable judgment,
shall have furnished to the Representative such counsel's written opinion,
dated the Closing Date, in substantially the form set forth below, with
such changes therein as counsel for the Underwriters shall reasonably
agree:
11 (Nissan 2003-A Underwriting Agreement)
(i) The Seller 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 its
properties and conduct its business as described in the Prospectus,
and 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 the Seller's ability to perform its obligations under the
Basic Documents.
(ii) The Servicer has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of California with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus, and 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 the Servicer's ability to
perform its obligations under the Basic Documents.
(iii) The Basic Documents have been duly authorized,
executed and delivered by each of the Seller and the Servicer, as
applicable, and each of the Seller and the Servicer has the
corporate power and authority to enter into and perform its
respective obligations under the Basic Documents.
(iv) The execution, delivery and performance of the
Basic Documents by the Seller and the Servicer will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the respective
properties or assets of the Seller or the Servicer, pursuant to the
terms of the Notes or the charter or bylaws of the Seller or the
Servicer, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
the Seller or the Servicer or any of their respective properties or
any material agreement or instrument to which the Seller or the
Servicer is a party or by which either the Seller or the Servicer or
any of their respective properties is bound.
(v) No authorization, approval or consent of any court
or governmental agency or authority is necessary in connection with
the execution, delivery and performance by the Seller or the
Servicer of the Basic Documents to which it is a party, 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 (specified in such opinion) as are in full force and
effect as of the Effective Date and the Closing Date.
(vi) Nothing has come to such counsel's attention that
would cause it to believe that as of the Effective Date and at the
Closing Date the Registration Statement and the Prospectus (other
than the financial statements and the other accounting information
contained therein or omitted therefrom, as to
12 (Nissan 2003-A Underwriting Agreement)
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.
(vii) Such counsel does not know 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 or the Prospectus which is not filed or
described as required.
(viii) There are no legal or governmental proceedings
pending to which the Seller or the Servicer is a party or of which
any property of the Seller or the Servicer is the subject, and no
such proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others,
(A) (whether individually or in the aggregate) that are required to
be disclosed in the Registration Statement or (B)(1) asserting the
invalidity of all or part of any Basic Document, (2) seeking to
prevent the issuance of the Notes, (3) (whether individually or in
the aggregate) that would materially and adversely affect the
Seller's or the Servicer's obligations under any Basic Document to
which it is a party, or (4) (whether individually or in the
aggregate) seeking to affect adversely the federal or state income
tax attributes of the Notes.
(ix) The Servicer has corporate power and authority to
sell and assign the property to be sold and assigned to the Seller
pursuant to the Purchase Agreement and has duly authorized such sale
and assignment to the Seller by all necessary corporate action.
(x) The Seller has corporate power and authority to
sell and assign the property to be sold and assigned to and
deposited with the Trust and has duly authorized such sale and
assignment to the Trust by all necessary corporate action.
(xi) The Seller 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.
(xii) Such counsel is familiar with the Servicer's
standard operating procedures relating to the Servicer's acquisition
of a perfected first priority security interest in the vehicles
financed by the retail installment sale contracts purchased by the
Servicer in the ordinary course of the Servicer's business and
relating to the sale by the Servicer to the Seller of such contracts
and such security interests in the Financed Vehicles in the ordinary
course of the Servicer's and the Seller's business. Assuming that
the Servicer's standard procedures are followed with respect to the
perfection of security interests in the
13 (Nissan 2003-A Underwriting Agreement)
Financed Vehicles (and such counsel has no reason to believe that
the Servicer has not or will not continue to follow its standard
procedures in connection with the perfection of security interests
in the Financed Vehicles), the Servicer has acquired or will acquire
a perfected first priority security interest in the Financed
Vehicles.
(xiii) Each of the Seller and the Servicer has obtained
all necessary governmental licenses and governmental approvals under
the federal law of the United States and the laws of the State of
California to conduct their respective businesses where the failure
to obtain such licenses and approvals would render any material part
of the corpus of the Trust unenforceable or would materially and
adversely affect the ability of either the Seller or the Servicer to
perform any of their respective obligations under, or the
enforceability of, any of the Basic Documents.
(g) O'Melveny & Xxxxx LLP, special counsel to the Seller,
shall have furnished to the Representative their written opinion, dated as
of the Closing Date, in substantially the form set forth below, with such
changes therein as counsel for the Underwriters shall reasonably agree:
(i) Each Basic Document to which the Seller or the
Servicer is a party has been duly authorized by all necessary
corporate action on the part of such Person and has been executed
and delivered by such Person.
(ii) Assuming the due authorization, execution and
delivery thereof by the Owner Trustee and the Indenture Trustee,
each Basic Document to which the Seller or the Servicer is a party
constitutes a legally valid and binding obligation of the Seller or
the Servicer, as the case may be, enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect, relating to or affecting creditors' rights generally and by
the application of general principles of equity, including without
limitation concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific
performance, injunctive relief or any other equitable remedy
(regardless of whether enforcement is considered in a proceeding at
law or in equity).
(iii) Assuming the Notes have been duly and validly
authorized, when executed and authenticated by the Trust as
specified in the Indenture and delivered against payment of the
consideration specified in this Agreement, the Notes will be legally
valid and binding obligations of the Trust, and entitled to the
benefits of the Indenture enforceable against the Trust in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect, relating to or affecting creditors' rights
generally and by the application of general principles of equity,
including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive
14 (Nissan 2003-A Underwriting Agreement)
relief or any other equitable remedy (regardless of whether
enforcement is considered in a proceeding at law or in equity).
(iv) Assuming the due authorization, execution and
delivery thereof by the Trust and the Indenture Trustee, each of the
Sale and Servicing Agreement and the Indenture constitutes the valid
and binding obligation of the Trust enforceable against the Trust in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws now or
hereafter in effect, relating to or affecting creditors' rights
generally and by the application of general principles of equity,
including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or any
other equitable remedy (regardless of whether enforcement is
considered in a proceeding at law or in equity).
(v) Neither the Seller nor the Trust is required to
be registered under the Investment Company Act of 1940, as amended
(the "1940 Act").
(vi) With respect to Financed Vehicles in the State of
California, no filing or other action other than (A) the filing of a
UCC financing statement naming the Servicer as transferor and the
Seller as the transferee and (B) the filing of a UCC financing
statement naming the Seller as the transferor and the Trust as the
transferee, is necessary to perfect the transfer and assignment of
the Servicer's security interest in such Financed Vehicles to the
Seller, and the Seller's security interest in such Financed Vehicles
to the Trust, respectively, and as a result of such transfer and
assignment and upon filing of such financing statements, the Trust
has a first perfected security interest in such Financed Vehicles,
except that so long as the Servicer is named as the legal owner and
lien holder on a certificate of title, the Servicer has the ability
to release the security interest in the Financed Vehicle or to
assign it to another party.
(vii) The Receivables are "tangible chattel paper" as
defined in the Uniform Commercial Code, as in effect in the State of
California.
(viii) For federal income tax purposes the Notes will be
characterized as debt, and the Trust will not be classified as an
association taxable as a corporation or as a publicly traded
partnership for federal or California income and franchise tax
purposes.
(ix) The statements in the Prospectus Supplement under
"CERTAIN FEDERAL INCOME TAX CONSEQUENCES" and "ERISA
CONSIDERATIONS," and in the Base Prospectus under the "CERTAIN
FEDERAL INCOME TAX CONSEQUENCES," "ERISA CONSIDERATIONS" and
"MATERIAL LEGAL ASPECTS OF THE RECEIVABLES," to the extent that they
constitute matters of law or legal conclusions relating to the
federal laws of the United States or the laws of the States of
California or New York with
15 (Nissan 2003-A Underwriting Agreement)
respect thereto, have been reviewed by such counsel and are correct
in all material respects.
(x) No order, consent, permit or approval of any
California, New York or federal governmental authority that such
counsel has, in the exercise of customary professional diligence,
recognized as applicable to the Servicer or the Seller, or to the
transactions of the type contemplated by any Basic Document,
including the issuance of the Notes, is required on the part of the
Servicer or the Seller for the execution and delivery of, and the
performance of its obligations under, any Basic Document to which it
is a party, except for such as have been obtained or made and are in
full force and effect as of the Closing Date; provided that such
counsel expresses no opinion with respect to any orders, consents,
permits, approvals, filings or licenses related to the authority to
sell motor vehicles, originate retail installment sales contracts or
service retail installment sales contracts or as may be required by
any regional or local governmental authority or under any foreign or
state securities laws.
(xi) To such counsel's knowledge, there are no
actions, proceedings or investigations pending or threatened, to
which the Seller or the Servicer is a party or of which any property
of the Seller or the Servicer is the subject, required to be
disclosed in the Registration Statement, other than those disclosed
therein, (A) asserting the invalidity of any Basic Document or the
Notes, (B) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by any Basic
Document, or (C) seeking adversely to affect the federal income tax
attributes of the Notes as described in the Base Prospectus under
the heading "CERTAIN FEDERAL INCOME TAX CONSEQUENCES".
(xii) At the time of execution and delivery of (A) the
Purchase Agreement, the Servicer had the corporate power and
corporate authority to transfer the Receivables and such other
property being transferred to the Seller pursuant to the Purchase
Agreement and (B) the Sale and Servicing Agreement, the Seller had
the corporate power and corporate authority to transfer the
Receivables and such other property being transferred to the Trust
pursuant to the Sale and Servicing Agreement and to cause the
transfer of the Notes to the Underwriters.
(xiii) The Indenture, the Notes and the Basic Documents
each conform in all material respects with the respective
descriptions thereof contained in the Registration Statement and the
Prospectus.
(xiv) Neither the Trust Agreement nor the Sale and
Servicing Agreement needs to be qualified under the 1939 Act.
(xv) The Registration Statement filed with the
Commission has been declared effective under the Act, and, to such
counsel's knowledge upon due inquiry, no stop order suspending the
effectiveness of the Registration Statement
16 (Nissan 2003-A Underwriting Agreement)
has been issued under the Act or proceedings therefor initiated or
threatened by the Commission, and the Registration Statement and
Prospectus, and each amendment or supplement thereto, as of its
respective effective or issue date, appeared on its face to be
appropriately responsive in all material respects to the applicable
requirements of the Act and the Rules and Regulations, except that
such counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except as contemplated by
paragraphs (viii) and (xiii) of this Section to the extent set forth
therein; such counsel does not opine as to any financial statements
or other financial, numerical or statistical data contained or
incorporated by reference therein; and such counsel does not opine
as to the Form T-1.
(xvi) The form of the Indenture has been qualified
under the 1939 Act and no further action is required to qualify the
Indenture under the 1939 Act. The Indenture complies as to form in
all material respects with the 1939 Act and the rules and
regulations of the Commission thereunder.
(xvii) Each Class A-1 Note, when issued, will constitute
an "Eligible Security" under Rule 2a-7 of the 1940 Act.
In addition, such counsel shall state that such counsel has
participated in conferences with the officers and other representatives of
the Seller and the Servicer, representatives of their independent public
accountants, and representatives of the Underwriters and their counsel, at
which the contents of the Registration Statement and the Prospectus and
related matters were discussed, but has not independently verified the
accuracy, completeness or fairness of the statements contained or
incorporated by reference therein, and accordingly such counsel is unable
to assume, and does not assume, any responsibility for such accuracy,
completeness or fairness. However, on the basis of such counsel's review
and participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, and relying as to its
determination of materiality to an extent upon opinions of officers and
other representatives of the Seller and the Servicer, such counsel shall
state that it does not believe that any Registration Statement, at the
related Effective Time, contained any 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
Prospectus, at the date of the Prospectus Supplement (or any such
amendment or supplement, as of its respective date) contained, or on the
Closing Date contains any 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; it being understood that such counsel need
express no opinion or belief as to the financial statements or other
financial, numerical or statistical data contained or incorporated by
reference in any Registration Statement, the Prospectus or the Form T-1.
Such counsel's opinions as to enforceability shall be subject
to the unenforceability under certain circumstances of: (i) waivers of
rights granted by law where the waivers are against public policy or
prohibited by law; (ii) waivers of vaguely
17 (Nissan 2003-A Underwriting Agreement)
or broadly stated rights or future rights; (iii) any indemnification
provisions; (iv) any provisions that rights or remedies are not exclusive,
that every right or remedy is cumulative and may be exercised in addition
to or with any other right or remedy or that the election of some
particular remedy or remedies does not preclude recourse to one or more
other remedies; (v) choice of law provisions; and (vi) severability
provisions; provided that such unenforceability will not, subject to the
other exceptions, qualifications and limitations contained in such
opinion, render the relevant agreements invalid as a whole or
substantially interfere with the substantial realization of the principal
benefits that such agreements purport to provide (except for the economic
consequences of procedural or other delay).
(h) O'Melveny & Xxxxx LLP or such counsel as may be acceptable
to the underwriters, shall have furnished their written opinion, dated the
Closing Date, with respect to the characterization of the transfer of the
Receivables by the Servicer to the Seller and with respect to other
bankruptcy and perfection of security interest matters, and such opinion
shall be in substantially the form previously discussed with the
Representative and its counsel and in any event satisfactory in form and
in substance to the Representative and its counsel.
(i) You shall have received an opinion of Xxxxxx, Xxxxxxxxxx &
Xxxxxxxxx LLP, counsel to the Underwriters, dated the Closing Date, with
respect to the validity of the Notes and such other related matters as the
Representative shall require, and the Seller shall have furnished or
caused to be furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(j) You shall have received an opinion addressed to you, the
Seller and the Servicer of Xxxxxxxx, Xxxxxx & Finger, counsel to the Trust
and the Owner Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Owner Trustee is a banking corporation duly
incorporated, validly existing and in good standing under the laws
of the State of Delaware with 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 under
the Trust Agreement.
(ii) The Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee, and, assuming that such
agreement is a legally effective and enforceable obligation of each
of the other parties thereto, constitutes the legal, valid and
binding agreement of the Owner Trustee, enforceable against the
Owner Trustee in accordance with its terms, except as the
enforceability thereof may be (a) limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other similar laws
affecting the enforceability of creditors' rights generally and (b)
subject to general principles of equity (regardless of whether
considered in proceedings in equity or at law) as well as concepts
of reasonableness, good faith and fair dealing.
18 (Nissan 2003-A Underwriting Agreement)
(iii) The Notes have been duly authorized, executed and
delivered by Wilmington Trust Company, as Owner Trustee under the
Trust Agreement.
(iv) Neither the execution nor delivery by the Owner
Trustee of the Trust Agreement nor the consummation of any of the
transactions by the Owner Trustee contemplated thereby requires 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
Delaware state law governing the banking or trust powers of the
Owner Trustee.
(v) The Trust has been duly formed and is validly
existing as a statutory business trust and is in good standing under
the laws of the State of Delaware, with full power and authority to
execute, deliver and perform its obligations under the Indenture and
the Basic Documents to which it is a party and the Notes.
(vi) The execution and delivery by the Owner Trustee
of the Trust Agreement and the performance by the Owner Trustee of
its obligations thereunder, do not conflict with, result in a breach
or violation of or constitute a default under the Articles of
Association or Bylaws of the Owner Trustee.
(vii) The Trust will not be subject to tax by the State
of Delaware, and purchasers not otherwise subject to taxation in
Delaware will not be subject to taxation in Delaware solely because
of the purchase or ownership of the Notes.
(viii) (A) The financing statement on form UCC-1, naming
NARC II as debtor and the Trust as secured party, to be filed with
the Delaware Secretary of State (Uniform Commercial Code Section)
("the Division") is in an appropriate form for filing in the State
of Delaware. (B) To the extent that Article 9 of the Uniform
Commercial Code as in effect in the State of Delaware (the "Delaware
UCC") is applicable (without regard to conflict of laws principles),
upon the filing of such financing statement with the Division, the
Trust will have a perfected security interest in NARC II's rights in
that portion of the Receivables that may be perfected by the filing
of a UCC financing statement with the Division (the "Filing
Collateral") and the proceeds thereof (as defined in Section
9-102(a)(64) of the Delaware UCC). (C) The certified copy of the
Certificate of Request (the "Search Report") obtained from the
Division, reflecting the results of a Uniform Commercial Code search
in the office of the Secretary of State against NARC II, listing all
currently effective financing statements filed against NARC II as of
the date and time set forth therein (the "Effective Time"), 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 NARC II covering the Filing Collateral,
as of the Effective Time. The Search Report identifies each secured
party who has filed with the Division a financing statement naming
NARC II as debtor prior to the Effective Date.
19 (Nissan 2003-A Underwriting Agreement)
(k) You shall have received an opinion of counsel to the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Indenture Trustee has been duly organized as a
national banking association and is validly existing as a national
banking association in good standing under the laws of the United
States of America.
(ii) The Indenture Trustee has the requisite power and
authority to execute, deliver and perform its obligations under the
Indenture and has taken all action necessary to authorize the
execution, delivery and performance by it of the Indenture.
(iii) The Indenture has been duly executed and delivered
by the Indenture Trustee and constitutes a legal, valid and binding
obligation of the Indenture Trustee, enforceable against the
Indenture Trustee in accordance with its 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.
(l) The Representative shall have received an officer's
certificate dated the Closing Date of the Chairman of the Board, the
President or any Vice President and by a principal financial or accounting
officer of each of the Seller and the Servicer in which each such officer
shall state that, to the best of such officer's knowledge after reasonable
investigation, the representations and warranties of the Seller or the
Servicer, as applicable, contained in the Sale and Servicing Agreement and
the representations and warranties of the Servicer or the Seller, as
applicable, contained in the Purchase Agreement are true and correct in
all material respects and that the Seller or the Servicer, as applicable,
has complied with all agreements and satisfied all conditions on its part
to be performed or satisfied under such agreements at or prior to the
Closing Date in all material respects.
(m) The Notes shall have been rated in the highest rating
category by Xxxxx'x and S&P.
(n) On or prior to the Closing Date, the Seller shall have
furnished to the Representative such further certificates and documents as
the Representative shall reasonably have required.
7. Indemnification and Contribution.
(a) The Seller and the Servicer shall, jointly and severally,
indemnify and hold each Underwriter and each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Securities Exchange Act of 1934, as amended (each a
"Control Person"), harmless against any losses, claims, damages or
20 (Nissan 2003-A Underwriting Agreement)
liabilities, joint or several, to which such Underwriter or Control Person
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Term Sheet,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter and Control Person for any legal or other
expenses reasonably incurred by such Underwriter or Control Person in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
neither the Seller nor the Servicer will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with information furnished to the Seller or the Servicer by any
Underwriter through the Representative specified in the last sentence of
subsection (b) below specifically for use therein; provided, further, that
neither the Seller nor the Servicer shall be liable under this subsection
(a) to any Underwriter to the extent that such losses, claims, damages or
liabilities arise out of or are based upon an untrue statement or omission
made in the Term Sheet that is subsequently corrected in the Prospectus
(or any amendment or supplement thereto) made available to such
Underwriter within a reasonable time period, if the person asserting such
loss, claim, damage or liability was not sent or given the Prospectus, as
then amended or supplemented (excluding documents incorporated by
reference therein), on or prior to the confirmation of the sale of the
Notes; and provided, further, that neither the Seller nor the Servicer
shall be liable to any Underwriter or any Control Person under the
indemnity agreement in this subsection (a) with respect to any of such
documents to the extent that any such loss, claim, damage or liability of
such Underwriter or such Control Person results from the fact that such
Underwriter sold Notes to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the
Prospectus or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference therein), whichever is most recent, if
the Seller or the Servicer has previously furnished copies thereof to such
Underwriter within a reasonable time period.
(b) Each Underwriter shall, severally and not jointly,
indemnify and hold harmless the Seller and the Servicer against any
losses, claims, damages or liabilities to which the Seller or the Servicer
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the Prospectus
or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with information furnished to the Seller or the Servicer
by such Underwriter through the Representative specifically for use
therein, and will reimburse any legal or other expenses reasonably
incurred by the Seller or the Servicer in connection with investigating or
21 (Nissan 2003-A Underwriting Agreement)
defending any such action or claim as such expenses are incurred. The
Seller and the Servicer acknowledge and agree that the only such
information furnished to the Seller or the Servicer 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 sixth and seventh paragraphs
(concerning stabilizing and other activities) under the heading
"Underwriting" in the Prospectus Supplement.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such person
(the "Indemnified Party") shall promptly notify the person against whom
such indemnity may be sought (the "Indemnifying Party") in writing of the
commencement thereof, but the omission to so notify the Indemnifying Party
will not relieve it from any liability which it may have to any
Indemnified Party otherwise than under such preceding paragraphs, and with
respect to such preceding paragraphs, any such omission shall not relieve
it from any liability except to the extent it has been materially
prejudiced by such omission. In case any such action is brought against
any Indemnified Party and it notifies the Indemnifying Party of the
commencement thereof, the Indemnifying Party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense
thereof, with counsel satisfactory to such Indemnified Party (who may be
counsel to the Indemnifying Party) and after notice from the Indemnifying
Party to such Indemnified Party of its election so to assume the defense
thereof and after acceptance of counsel by the Indemnified Party, the
Indemnifying Party will not be liable to such Indemnified Party under this
Section for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the contrary, (ii) the Indemnified Party has reasonably
concluded (based upon advice of counsel to the Indemnified Party) that
there may be legal defenses available to it or other Indemnified Parties
that are different from or in addition to those available to the
Indemnifying Party, (iii) a conflict or potential conflict exists (based
upon advice of counsel to the Indemnified Party) between the Indemnified
Party and the Indemnifying Party (in which case the Indemnifying Party
will not have the right to direct the defense of such action on behalf of
the Indemnified Party) or (iv) the Indemnifying Party has elected to
assume the defense of such proceeding but has failed within a reasonable
time to retain counsel reasonably satisfactory to the Indemnified Party.
The Indemnifying Party shall not, with respect to any action brought
against any Indemnified Party, be liable for the fees and expenses of more
than one firm (in addition to any local counsel) for all Indemnified
Parties, and all such fees and expenses shall be reimbursed within a
reasonable period of time as they are incurred. Any separate firm
appointed for the Underwriters and any Control Person in accordance with
this subsection (c) shall be designated in writing by the Representative,
and any such separate firm appointed for the Seller or the Servicer, its
respective directors, officers who sign the Registration Statement and
Control Persons in
22 (Nissan 2003-A Underwriting Agreement)
accordance with this subsection (c) shall be designated in writing by the
Seller or the Servicer, 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 includes an unconditional
release of such Indemnified Party from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an Indemnified Party under
subsection (a) or (b) above, then each Indemnifying Party shall contribute
to the amount paid or payable by such Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above in such proportion as is appropriate to reflect the relative
benefits received by the Seller and the Servicer on the one hand and the
Underwriters on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each Indemnifying Party shall contribute to such
amount paid or payable by such Indemnified Party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Seller and the Servicer on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits
received by the Seller and the Servicer on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion
that the total net proceeds from the offering (before deducting expenses)
received by the Seller and the Servicer bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied
by the Seller or the Servicer or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Seller, the
Servicer and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined
by pro rata allocation or by any other method of allocation which does not
take into account the equitable
23 (Nissan 2003-A Underwriting Agreement)
considerations referred to above in this subsection (d). The amount paid
by an Indemnified Party as a result of the losses, claims, damages or
liabilities referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Notes underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this subsection (d) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(e) The obligations of the Seller and the Servicer under this
Section shall be in addition to any liability which the Seller or the
Servicer may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within
the meaning of the Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Seller or the Servicer, to each
officer of the Seller or Servicer who has signed the Registration
Statement and to each person, if any, who controls the Seller or the
Servicer within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller, the Servicer or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation or statement as to the results
thereof made by or on behalf of any Underwriter, the Seller or the Servicer or
any of their respective representatives, officers or directors or any Control
Person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated pursuant to Section 9 or if for any reason the purchase
of the Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5, and the respective obligations of the Seller and the Underwriters pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9, the Seller will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Notes.
9. Failure to Purchase the Notes. If any Underwriter or
Underwriters default on 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 Seller for the purchase of such Notes by other persons,
including the nondefaulting Underwriter or Underwriters, but if no such
arrangements are made by the Closing
24 (Nissan 2003-A Underwriting Agreement)
Date, the nondefaulting 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 nondefaulting Underwriter or Underwriters and the Seller 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 the Seller, 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.
10. Notices. All communications hereunder will be in writing and,
if sent to the Representative or the Underwriters will be mailed, delivered or
sent by facsimile transmission and confirmed to Xxxxxxx Xxxxx Xxxxxx Inc., 000
Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: General Counsel
(facsimile number 212-801-4007); and if sent to the Seller, will be mailed,
delivered or sent by facsimile transmission and confirmed to it at Nissan Auto
Receivables Corporation II, 000 Xxxx 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000-00x0, attention of the Assistant Secretary (facsimile number (310)
324-2542).
11. No Bankruptcy Petition. Each Underwriter agrees that, prior to
the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the Underwriters and the Seller and their respective successors and
the officers and directors and Control Persons referred to in Section 7, and no
other person will have any right or obligations hereunder.
13. 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.
14. 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 Prospectus
or any other offering material and will obtain
25 (Nissan 2003-A Underwriting Agreement)
any consent, approval or permission required by it for the purchase 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 Seller 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 Seller 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 Seller 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 those contained or incorporated by reference in the Prospectus for the
Notes and such additional information, if any, as the Seller 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 person 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 complies and will comply with all
applicable provisions of the Financial Services and Markets Act 2000 ("FSMA")
with respect to anything done by such Underwriter in relation to the Notes in,
from or otherwise involving the United Kingdom; and
(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 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 Seller.
15. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York).
16. 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.
26 (Nissan 2003-A Underwriting Agreement)
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, whereupon it will become a binding
agreement between the Seller and the several Underwriters in accordance with its
terms.
Very truly yours,
NISSAN AUTO RECEIVABLES CORPORATION II
By: /s/ Xxxx Xxxxxx
____________________________________
Name: Xxxx Xxxxxx
Title: Treasurer
NISSAN MOTOR ACCEPTANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President
S-1 (Nissan 2003-A Underwriting Agreement)
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written:
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxxxxxx Xxxxx
________________________
Name: Xxxxxxxxxxx Xxxxx
Title: Director
Acting on behalf of itself
and as the Representative of the
several Underwriters.
S-2 (Nissan 2003-A Underwriting Agreement)
SCHEDULE 1
PRINCIPAL PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF AMOUNT OF
UNDERWRITER CLASS A-1 NOTES CLASS A-2 NOTES CLASS A-3 NOTES CLASS A-4 NOTES
----------- --------------- --------------- --------------- ---------------
Xxxxxxx Xxxxx Xxxxxx Inc. $64,000,000 $53,000,000 $78,000,000 $40,712,000
ABN AMRO Incorporated $62,000,000 $52,000,000 $78,000,000 $40,000,000
X.X. Xxxxxx Securities Inc. $62,000,000 $52,000,000 $78,000,000 $40,000,000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $62,000,000 $52,000,000 $78,000,000 $40,000,000
Xxxxxx Xxxxxxx & Co. Incorporated $60,000,000 $51,000,000 $77,000,000 $40,000,000
XX Xxxxx Securities Corporation $60,000,000 $51,000,000 $77,000,000 $40,000,000
The Xxxxxxxx Capital Group, L.P. $60,000,000 $51,000,000 $77,000,000 $40,000,000
Total $430,000,000 $362,000,000 $543,000,000 $280,712,000
Schedule 1-1 (Nissan 2003-A Underwriting Agreement)
TABLE OF CONTENTS
PAGE
1. Introductory........................................................ 1
2. Representations and Warranties of the Seller and the Servicer....... 2
3. Xxxxxxxx, Sale and Delivery of Notes................................ 6
4. Offering by Underwriters............................................ 7
5. Covenants of the Seller............................................. 7
6. Conditions of the Obligations of the Underwriters................... 9
7. Indemnification and Contribution.................................... 20
8. Survival of Certain Representations and Obligations................. 24
9. Failure to Purchase the Notes....................................... 24
10. Notices............................................................. 25
11. No Bankruptcy Petition.............................................. 25
12. Successors.......................................................... 25
13. Representation of Underwriters...................................... 25
14. Representations and Warranties of Underwriters...................... 25
15. Applicable Law...................................................... 26
16. Counterparts........................................................ 26
SCHEDULE 1................................................................ 1
-i-
