EXHIBIT 1.1
NISSAN AUTO RECEIVABLES 2002-A OWNER TRUST
$338,000,000, 1.84375% ASSET BACKED NOTES, CLASS A-1
$368,000,000, 2.67000% ASSET BACKED NOTES, CLASS A-2
$403,000,000, 3.58000% ASSET BACKED NOTES, CLASS A-3
$255,783,000, 4.28000% ASSET BACKED NOTES, CLASS A-4
NISSAN AUTO RECEIVABLES CORPORATION II
(SELLER)
January 10, 2002
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 $338,000,000 principal amount of 1.84375% Asset Backed Notes, Class A-1
(the "Class A-1 Notes"), $368,000,000 principal amount of 2.67000% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), $403,000,000 principal amount of
3.58000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), and $255,783,000
principal amount of 4.28000% 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-A Owner
Trust (the "Trust"). The Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated as of January 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 January 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 two Term
Sheets, each dated January 9, 2002, relating to the Notes (the "Term
Sheets") 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,
99.82179% of the aggregate principal amount thereof, (iii) in the case
of the Class A-3 Notes, 99.77318% of the aggregate principal amount
thereof, and (iv) in the case of the Class A-4 Notes, 99.74818% 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 January 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 (two of which will include all exhibits), the Form 8-K
relating to each Term Sheet, each 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 Sheets, 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 Sheets 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 nondefaulting 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. 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/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
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:
XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. 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
----------- --------------- --------------- --------------- ---------------
Xxxxxxx Xxxxx Xxxxxx Inc. $ 64,220,000 $ 69,920,000 $ 76,570,000 $ 48,598,770
ABN AMRO Incorporated $ 64,220,000 $ 69,920,000 $ 76,570,000 $ 48,598,770
X.X. Xxxxxx Securities Inc. $ 64,220,000 $ 69,920,000 $ 76,570,000 $ 48,598,770
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx $ 64,220,000 $ 69,920,000 $ 76,570,000 $ 48,598,770
Incorporated
XX Xxxxx Securities Corporation $ 64,220,000 $ 69,920,000 $ 76,570,000 $ 48,598,770
The Xxxxxxxx Capital Group, L.P. $ 16,900,000 $ 18,400,000 $ 20,150,000 $ 12,789,150
Total $338,000,000 $368,000,000 $403,000,000 $255,783,000
Schedule 1-1
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
-i-
