EXHIBIT 1.1
NISSAN AUTO RECEIVABLES 2002-B OWNER TRUST
$430,000,000, 2.09000% ASSET BACKED NOTES, CLASS A-1
$360,000,000, 3.07000% ASSET BACKED NOTES, CLASS A-2
$465,000,000, 3.99000% ASSET BACKED NOTES, CLASS A-3
$279,549,000, 4.60000% ASSET BACKED NOTES, CLASS A-4
NISSAN AUTO RECEIVABLES CORPORATION II
(SELLER)
April 9, 2002
Underwriting Agreement
X.X. Xxxxxx Securities Inc.,
As Representative of the
Several Underwriters (the "Representative")
000 Xxxx Xxxxxx, 00xx 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 2.09000% Asset Backed Notes, Class A-1
(the "Class A-1 Notes"), $360,000,000 principal amount of 3.07000% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), $465,000,000 principal amount of
3.99000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), and $279,549,000
principal amount of 4.60000% 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 2002-B Owner
Trust (the "Trust"). The Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated as of April 17, 2002, 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 April 17, 2002, 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. 333-51224-01), including a
form of prospectus supplement relating to the Notes and a form of base
prospectus relating to each class of securities to be registered under
such registration statement (the "Registered Securities"), has been filed
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, as amended at its Effective
Time, including all information (A) contained in the additional
registration statement (if any), (B) deemed to
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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, 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 April 8, 2002, 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. If the Effective Time 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.
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(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 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
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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.
(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).
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(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,
99.82370% of the aggregate principal amount thereof, (iii) in the case of
the Class A-3 Notes, 99.78377% of the aggregate principal amount thereof,
and (iv) in the case of the Class A-4 Notes, 99.73685% of the aggregate
principal amount thereof.
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(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 April 17, 2002, 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.
(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
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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 you 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
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
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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 and its
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 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
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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 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 Nissan
North America, Inc. ("NNA") and its consolidated subsidiaries, which
include the Seller, the Servicer and the parent company of NNA,
Nissan Motor Co., Ltd. (the "Nissan Group"), 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 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,
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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 NNA and its
consolidated subsidiaries, which include the Nissan Group, 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 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:
(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
11
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 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
12
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 Receivables are "tangible chattel paper" as
defined in the Uniform Commercial Code, as in effect in the State of
California.
(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 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
13
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 relief or any
other equitable remedy (regardless of whether enforcement is
considered in a proceeding at law or in equity).
14
(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 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, and for such purposes the Notes will be characterized as
debt.
(viii) The statements in the Prospectus Supplement under
"MATERIAL INCOME TAX CONSEQUENCES" and "ERISA CONSIDERATIONS," and
in the Base Prospectus under the "MATERIAL 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 respect
thereto, have been reviewed by such counsel and are correct in all
material respects.
(ix) This Agreement has been duly authorized by all
necessary corporate action on the part of each of the Seller and the
Servicer, and has been duly executed and delivered by each of the
Seller and the Servicer.
15
(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 "MATERIAL INCOME TAX CONSEQUENCES" or the California
income tax attributes of the Notes.
(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 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,
16
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) 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.
(xviii) 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
17
where the waivers are against public policy or prohibited by law; (ii)
waivers of vaguely 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, 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
(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 subsequent purchases 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
(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
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
20
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
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. 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 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
22
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 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
23
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 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
24
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 X.X. Xxxxxx Securities Inc., 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxxx (facsimile
number 212-834-6562); 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 00000-10l9,
attention of the Assistant Secretary (facsimile number (000) 000-0000).
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. 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).
15. 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.
25
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/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: President
S-1
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written:
X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
Acting on behalf of itself
and as the Representative of the
several Underwriters.
S-2
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
----------- --------------- --------------- --------------- ---------------
X.X. Xxxxxx Securities Inc. $ 84,000,000 $ 70,400,000 $ 91,200,000 $ 54,549,000
ABN AMRO Incorporated $ 84,000,000 $ 70,400,000 $ 91,200,000 $ 54,500,000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $ 84,000,000 $ 70,400,000 $ 91,200,000 $ 54,500,000
Xxxxxxx Xxxxx Xxxxxx Inc. $ 84,000,000 $ 70,400,000 $ 91,200,000 $ 54,500,000
XX Xxxxx Securities Corporation $ 84,000,000 $ 70,400,000 $ 91,200,000 $ 54,500,000
The Xxxxxxxx Capital Group, L.P. $ 10,000,000 $ 8,000,000 $ 9,000,000 $ 7,000,000
Total $430,000,000 $360,000,000 $465,000,000 $279,549,000
Schedule 1-1
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. Applicable Law........................................................25
15. Counterparts..........................................................25
SCHEDULE 1.....................................................................1
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