Underwriting Agreement
EXHIBIT 1.1
$[_______] NISSAN MASTER OWNER TRUST RECEIVABLES,
SERIES 20[__]-[_] NOTES
SERIES 20[__]-[_] NOTES
[________]
[____________]
As Representative of the
Several Underwriters (the “Representative”)
[____________]
[____________]
As Representative of the
Several Underwriters (the “Representative”)
[____________]
[____________]
Dear Ladies and Gentlemen:
1. Introductory. Nissan Master Owner Trust Receivables (the “Trust”), a Delaware
statutory trust, proposes to sell $[_________] principal amount of Nissan Master Owner Trust
Receivables, Series 20[__]-[_] Notes (the “[Underwritten] Notes”), issued by the Trust. [In
addition to the Underwritten Notes, on the Series 20[__]-[_] Issuance Date, the Trust will issue
and the Transferor or an affiliate of the Transferor will retain $[_________] principal amount of
Nissan Master Owner Trust Receivables, Series 20[__]-[_] Notes (the “Retained Notes” and, together
with the Underwritten Notes, the “Notes”).] The Trust was formed pursuant to a trust agreement,
dated as of May 13, 2003, between Nissan Wholesale Receivables Corporation II (the “Depositor”) and
[Wilmington Trust Company], as owner trustee (the “Owner Trustee”), as amended and restated by the
amended and restated trust agreement, dated as of October 15, 2003 (as amended and restated, the
“Trust Agreement”), between the parties thereto. The Notes will be issued pursuant to a
supplement, dated as of [_________] (the “Indenture Supplement”), to an amended and restated
indenture, dated as of October 15, 2003 (together with the Indenture Supplement, the “Indenture”),
between the Trust and [U.S. Bank National Association], as indenture trustee (the “Indenture
Trustee”), and will be governed by the terms of an amended and restated transfer and servicing
agreement, dated as of October 15, 2003 (the “Transfer and Servicing Agreement”), among the
Depositor, Nissan Motor Acceptance Corporation (“NMAC”), as servicer (the “Servicer”), and the
Trust. The Trust Agreement and the Transfer and Servicing Agreement are subject to the Agreement
of Modification to Transaction Documents, dated as of February 12, 2010 (the “Agreement of
Modification”), among the Trust, the Depositor, the Owner Trustee, the Indenture Trustee and NMAC.
Capitalized terms used herein and not otherwise defined herein shall have the meanings given
them in the Indenture and the Annex of Definitions attached to the Transfer and Servicing
Agreement.
1
2. Representations and Warranties of the Trust, the Depositor and NMAC. Each of the
Trust, the Depositor and NMAC, jointly and severally, represents and warrants to and agrees with
the several underwriters named in Schedule I hereto (the “Underwriters”) that:
(a) A registration statement (No. 333-166449) and Amendment No. 1 thereto, including a
form of prospectus supplement relating to the Notes and a form of base prospectus relating
to each class of notes to be registered under such registration statement (the “Registered
Notes”), has been filed on Form S-3 with the Securities and Exchange Commission (the
“Commission”) and either (i) has been declared effective under the Securities Act of 1933,
as amended (the “Act”), and is not proposed to be amended or (ii) is proposed to be amended
by amendment or post-effective amendment. If such registration statement (the “initial
registration statement”) has been declared effective, either (i) any additional registration
statement (the “additional registration statement”) relating to the Notes has been filed
with the Commission pursuant to rule 462(b) (“Rule 462(b)”) under the Act and declared
effective upon filing, and the Notes have been registered under the Act pursuant to the
initial registration statement and such additional registration statement or (ii) any such
additional registration statement proposed to be filed with the Commission pursuant to Rule
462(b) will become effective upon filing pursuant to Rule 462(b) and upon such filing the
Notes will have been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Depositor 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).
(b) For purposes of this Agreement, the term “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 (i) if the Depositor 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
(ii) if the Depositor 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 Depositor has advised the
Representative that it proposes to file, but has not filed, an additional registration
statement, the term “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).
(c) The initial registration statement and all amendments and supplements thereto, as
amended at its time of effectiveness, including all information (i) contained in the
additional registration statement (if any), (ii) deemed to be a part of the initial
2
registration statement as of the time of effectiveness of the additional registration
statement (if any) pursuant to the General Instructions of the Form on which it is filed and
(iii) deemed to be a part of the initial registration statement as of its time of
effectiveness pursuant to Rule 430A(b) under the Act (“Rule 430A(b)”), is hereinafter
referred to as the “Initial Registration Statement.” The additional registration statement
and all amendments and supplements thereto, as amended at its time of effectiveness,
including the contents of the initial registration statement incorporated by reference
therein and deemed to be a part of the additional registration statement as of its Effective
Time pursuant to Rule 430A(b), is hereinafter referred to as the “Additional Registration
Statement.” The Initial Registration Statement, the Additional Registration Statement, and
all Incorporated Documents (as defined below), are hereinafter referred to collectively as
the “Registration Statements” and individually as a “Registration Statement.” As used
herein, the term “Incorporated Documents”, when used with respect to the Registration
Statement as of any date, means the documents incorporated or deemed to be incorporated by
reference in the Registration Statement (i) as of such date pursuant to Item 12 of Form S-3
or pursuant to a no-action letter of the Commission or (ii) as of any other date pursuant to
Rule 430B(f) under the Act. A preliminary prospectus supplement, dated [_________],
relating to the Notes (the “Preliminary Prospectus Supplement”) and accompanied by the base
prospectus dated [_________], relating to the Registered Notes (including the Notes) (the
“Base Prospectus”), will be filed with the Commission in connection with the offering and
sale of the [Underwritten] Notes pursuant to and in accordance with Rule 424(b) under the
Act (“Rule 424(b)”) within the time period required thereby (together, including all
material incorporated by reference therein, the “Preliminary Prospectus”). A final
prospectus supplement, dated [_________], relating to the Notes (the “Prospectus
Supplement”), and accompanied by the Base Prospectus will be filed with the Commission in
connection with the offering and sale of the [Underwritten] Notes pursuant to and in
accordance with Rule 424(b) within the time period required thereby (together, including all
material incorporated by reference therein, the “Final Prospectus”). As used herein, and
for the sake of clarity, each of the term “Preliminary Prospectus” and “Final Prospectus”
includes all static pool information disclosed therein in response to Item 1105 of
Regulation AB (including, without limitation, the information disclosed in the Preliminary
Prospectus Supplement and the Prospectus Supplement), whether or not such information is
otherwise deemed to be part of the Preliminary Prospectus or the Final Prospectus under the
Rules and Regulations (defined below).
(d) (i) (A) On the effective date of any Registration Statement whose time of
effectiveness is prior to the execution and delivery of this Agreement, each such
Registration Statement conformed, (B) on the date of this Agreement, each such Registration
Statement conforms and (C) on any related effective date of the Registration Statement,
subsequent to the date of this Agreement and on the Series 20[__]-[_] Issuance Date, 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. (ii) As of
3
[_____] [a.m.] (New York time) [_________] (the “Date of Sale”), which shall be the
date of the first contract of sale for the [Underwritten] Notes, and at the time of filing
of the Preliminary Prospectus pursuant to Rule 424(b) or, if no such filing is required, at
the effective date of the Additional Registration Statement that includes the Preliminary
Prospectus), the Preliminary Prospectus, together with the statements in the Final
Prospectus with respect to items identified in the Preliminary Prospectus as to be completed
in the Final Prospectus, did not include, does not include and will not include, any untrue
statement of a material fact, nor did, does or will the Preliminary Prospectus, together
with the statements in the Final Prospectus with respect to items identified in the
Preliminary Prospectus as to be completed in the Final Prospectus, omit to state any
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood that no
representation or warranty is made with respect to the omission of pricing and
price-dependent information, which information shall of necessity appear only in the Final
Prospectus). As of the date of the first use of the Final Prospectus, at the time of filing
of the Final Prospectus pursuant to Rule 424(b) (or if no such filing is required, at the
effective date of the Additional Registration Statement that includes the Final Prospectus),
on the date of this Agreement and at the Series 20[__]-[_] Issuance Date, the Final
Prospectus, as amended and supplemented as of such dates, 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 did, does or will the Final
Prospectus, as amended and supplemented as of such dates, omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The three preceding
sentences do not apply to statements in or omissions from the Registration Statement, the
Preliminary Prospectus or the Final Prospectus based upon written information furnished to
the Depositor by any Underwriter through the Representative specifically for use therein or
to that part of the Registration Statement which constitutes the Statement of Qualification
under the 1939 Act on Form T-1 (the “Form T-1”) of the Indenture Trustee (which will be
represented and warranted to by the Indenture Trustee). If the time of effectiveness of the
Registration Statement is subsequent to the date of this Agreement, no Additional
Registration Statement has been or will be filed. The Indenture has been qualified under
the 1939 Act.
(e) The Depositor 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 Preliminary Prospectus
and the Final Prospectus, as amended and supplemented, 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 Depositor’s ability to
perform its obligations under this Agreement, the Trust Agreement, the Transfer and
Servicing Agreement, the Indenture, or the amended and restated receivables purchase
agreement, dated as of October 15, 2003, between NMAC and the Depositor (the “Receivables
Purchase Agreement”). The Depositor is not, and on the date on which the first bona fide
offer of the Notes was made, was not, an “ineligible issuer” as defined in Rule 405 of the
Rules and Regulations.
4
(f) The Trust has been duly formed and is validly existing as a statutory trust and is
in good standing under the laws of the state of Delaware, with full power and authority to
own its properties and conduct its business as described in the Preliminary Prospectus and
Final Prospectus, as amended and supplemented, 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 qualify
to transact business or be in good standing would not have a material adverse effect on the
Trust’s ability to perform its obligations under this Agreement, the Trust Agreement, the
Transfer and Servicing Agreement, the Indenture or the Receivables Purchase Agreement.
(g) NMAC 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 Preliminary Prospectus and the
Final Prospectus, as amended and supplemented, 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 NMAC’s ability to perform its
obligations under (i) the amended and restated administration agreement, dated as of October
15, 2003 (the “Administration Agreement” and, together with this Agreement, the Trust
Agreement, the Transfer and Servicing Agreement, the Indenture, the Receivables Purchase
Agreement, [the interest rate [cap][swap] agreement, to be entered into, dated as of
[________] (the “Interest Rate [Cap][Swap] Agreement”), between the Trust and [________]
(the “[Cap Provider][Swap Counterparty]”), and the Agreement of Modification, the “Basic
Documents”), among the Trust, NMAC, as administrator, the Owner Trustee and the Indenture
Trustee, and (ii) each other Basic Document to which it is a party.
(h) 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 Trust, the Depositor
or NMAC pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement,
guarantee, lease financing agreement, or similar agreement or instrument under which any of
the Trust, the Depositor or NMAC is a debtor or guarantor, except where such conflict,
breach, default or creation would not have a material adverse effect on the Trust’s, the
Depositor’s or NMAC’s respective ability to perform its obligations under the Basic
Documents or the validity or enforceability thereof.
(i) 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 any of the Trust, the
Depositor or NMAC for the consummation of the transactions contemplated by the Basic
Documents except such as have been obtained and made under the Securities Act of 1933, as
amended (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.
5
(j) None of the Trust, the Depositor or NMAC is in violation of its trust agreement,
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 in the Basic Documents or on the Trust’s, the Depositor’s or NMAC’s respective
ability to perform its obligations under each Basic Document to which it is a party. The
execution, delivery and performance of the Basic Documents and the issuance and sale of the
Notes and compliance with the terms and provisions thereof will not, subject to obtaining
any consents or approvals as may be required under the securities or “blue sky” laws of
various jurisdictions: (i) result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the Trust, the Depositor
or NMAC or their respective properties or any agreement or instrument to which any of the
Trust, the Depositor or NMAC is a party or by which any of the Trust, the Depositor or NMAC
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 Trust’s, the
Depositor’s or NMAC’s respective ability to perform its obligations under each Basic
Document to which it is a party or the validity or enforceability thereof, or (ii) conflict
with the Trust’s, the Depositor’s or NMAC’s charter or by-laws, and each of the Trust, the
Depositor and NMAC has the requisite power and authority to enter into each Basic Document
to which it is a party and to consummate the transactions contemplated hereby and thereby.
(k) Each Basic Document to which the Trust, the Depositor or NMAC, respectively, is a
party has been duly authorized, executed and delivered by, and (assuming the due
authorization and delivery thereof by the other parties hereto and thereto) constitutes the
valid and binding obligation of such party, enforceable against such party in accordance
with its 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.
(l) The Notes have been duly authorized and, when executed and delivered in accordance
with the Indenture and delivered against the consideration therefor, 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.
(m) There are no legal or governmental proceedings known by the Trust, the Depositor or
NMAC to be (i) pending for which the Trust, the Depositor or NMAC has been served official
notice, to which the Trust, the Depositor or NMAC is a party or to which any property of the
Trust, the Depositor or NMAC is subject, or (ii) threatened or contemplated by any
governmental authority or threatened by others, which proceedings in either clause (i) or
(ii) above, (A) assert the invalidity of all or part of any
6
Basic Document, (B) seek to prevent the issuance of the Notes, (C) (whether
individually or in the aggregate) would materially and adversely affect the Trust’s, the
Depositor’s or NMAC’s obligations under any Basic Document to which it is a party, or (D)
(whether individually or in the aggregate) seek to affect adversely the federal or state
income tax attributes of the Notes.
(n) Any taxes, fees and other governmental charges that have been assessed and are
known to the Depositor to be due in connection with the execution, delivery and issuance of
the Basic Documents shall have been paid by the Trust, the Depositor or NMAC at or prior to
the Series 20[__]-[_] Issuance Date.
(o) Each of the Trust, the Depositor and NMAC 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 Trust, the Depositor or NMAC, respectively, to perform its duties under
each Basic Document to which it is a party, and none of the Trust, the Depositor or NMAC has
received notice of proceedings relating to the revocation or modification of any such
license, certificate, authorization or permit which, individually or in the aggregate, if
the subject of any unfavorable decision, ruling or finding, would materially and adversely
affect the ability of the Trust, the Depositor or NMAC to perform its obligations under each
Basic Document to which it is a party.
(p) As of the Series 20[__]-[_] Issuance Date, each of the Excess Funding Account, the
Reserve Account, the Collection Account and the Accumulation Account will be subject to a
first-priority security interest in favor of the Indenture Trustee for the benefit of the
Noteholders [and the [Cap Provider] [Swap Counterparty]].
(q) As of the Series 20[__]-[_] Issuance Date, the Trust (for the benefit of the
Noteholders [and the [Cap Provider] [Swap Counterparty]]) will have good title, free and
clear of all prior liens, charges and encumbrances (other than liens permitted under the
Basic Documents), to the Receivables and such other items comprising the corpus of the Trust
transferred to the Trust pursuant to the Transfer and Servicing Agreement.
(r) As of the Series 20[__]-[_] Issuance Date, the Notes and each Basic Document will
conform in all material respects to the description thereof contained in the Preliminary
Prospectus and the Final Prospectus, as then amended and supplemented.
(s) [__________] are independent public accountants with respect to the Depositor
within the meaning of the Act and the Rules and Regulations.
(t) Neither the Trust nor the Depositor is required to be registered as an “investment
company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(u) The representations and warranties of each of the Depositor, the Trust and NMAC in
each Basic Document to which it is a party, as applicable, are true and correct in all
material respects.
7
(v) Other than the Preliminary Prospectus and the Final Prospectus, none of the Trust,
the Depositor or NMAC (including their respective agents and representatives other than the
Underwriters in their capacity as such) has made, used, prepared, authorized or approved or
referred to and will not prepare, make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Notes.
(w) None of the Trust, the Depositor or NMAC knows of any contract or other document of
a character required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement, the Preliminary Prospectus or the Final
Prospectus, as then amended and supplemented, which is not filed or described as required.
(x) The Servicer has provided a written representation to each nationally recognized
statistical rating organization hired by the Servicer or the Transferor to rate the Notes
that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (D) of Rule
17g-5 of the Securities Exchange Act of 1934 (“Rule 17g-5”), and it has complied in all
material respects with each such representation, other than any breach of any such
representation arising from a breach by any of the Underwriters of the representation and
warranty in Section 15(g) and covenant set forth in Section 6(b).
3. Purchase, Sale and Delivery of [Underwritten] Notes.
(a) On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Trust agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase from the
Trust, the aggregate principal amounts of the [Underwritten] Notes set forth opposite the
names of the Underwriters in Schedule 1 hereto.
(b) The [Underwritten] Notes are to be purchased by the Underwriters at a purchase
price equal to [_____]% of the aggregate principal amount thereof.
(c) Against payment of the purchase price by wire transfer of immediately available
funds to the Trust, the Trust will deliver the [Underwritten] Notes to the Representative of
the Underwriters at the office of Xxxxx Xxxxx LLP, at 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx, on [_________], at 10:00 a.m., New York time, or at such other time not later
than seven full Business Days thereafter as the Representative, the Depositor and the Trust
determine, such time being herein referred to as the “Series 20[__]-[_] Issuance Date.” The
[Underwritten] 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 [Underwritten] Notes will be represented
by book entries on the records of DTC and participating members thereof. Definitive
securities evidencing the [Underwritten] Notes will be available only under the limited
circumstances set forth in the Indenture.
8
4. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the [Underwritten] Notes for sale to the public as set forth in the Preliminary Prospectus
and the Final Prospectus.
5. Covenants of the Depositor and the Trust. Each of the Depositor and the Trust, as
applicable, covenants and agrees with the several Underwriters that:
(a) If the time of effectiveness is prior to the execution and delivery of this
Agreement, each of the Depositor and the Trust will file the Preliminary Prospectus and the
Final Prospectus with the Commission pursuant to and in accordance with Rule 424(b) within
the prescribed time period and will provide evidence satisfactory to the Representative of
such timely filing. If the time of effectiveness of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an Additional Registration
Statement is necessary to register a portion of the Notes under the Act but the time of
effectiveness thereof has not occurred as of such execution and delivery, the Depositor will
file the Additional Registration Statement or a post-effective amendment thereto, as the
case may be, with the Commission pursuant to and in accordance with Rule 462(b). The
Depositor will advise the Representative promptly of any such filing pursuant to Rule 424(b)
or Rule 462(b), as applicable.
(b) The Depositor 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, the Preliminary Prospectus or the Final Prospectus, and will not effect such
amendment or supplementation without the Representative’s consent; and the Depositor will
also advise the Representative promptly of the effectiveness of the Registration Statement
(if the time of effectiveness of the Registration Statement is subsequent to the execution
and delivery of this Agreement) and of any amendment or supplementation of the Registration
Statement, the Preliminary Prospectus or the Final 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 Depositor will arrange for the qualification of the [Underwritten] Notes for
offering and sale under the securities laws of such jurisdictions in the United States as
the Representative may reasonably designate and to continue such qualifications in effect so
long as necessary under such laws for the distribution of such securities; provided
that in connection therewith the Depositor 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 (including delivery as contemplated by Rule 172 under the
Act), either (i) any event shall have occurred as a result of which the Preliminary
Prospectus or the Final Prospectus, as then amended and supplemented, 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
9
which they were made, not misleading, or (ii) for any other reason it shall be
necessary to amend or supplement the Preliminary Prospectus or the Final Prospectus, the
Depositor will promptly notify the Representative and will promptly prepare for review by
the Representative and file with the Commission an amendment or a supplement to the
Preliminary Prospectus or the Final Prospectus which will correct such statement or omission
or effect such compliance.
(e) The Depositor will cause the Trust to make generally available to Holders as soon
as practicable, but not later than fourteen months after the effective date of the
Registration Statement, an earnings statement of the Trust covering a period of at least
twelve consecutive months beginning after such effective date and satisfying the provisions
of Section 11(a) of the Act (including Rule 158 promulgated thereunder); provided that this
covenant may be satisfied by posting the monthly investor reports for the Trust on a
publicly available website or filing such monthly investors reports with the Commission of
Form 10-D.
(f) The Depositor will furnish to the Representative, during the period referred to in
Section 5(d), as many copies of the Preliminary Prospectus and the Final Prospectus and all
amendments and supplements to such documents, in each case as soon as available and in such
quantities as such Underwriter may from time to time reasonably request.
(g) So long as any of the [Underwritten] Notes are outstanding, the Depositors 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 Depositor will pay or cause to be paid all expenses incident to the performance
of its obligations under this Agreement, including (i) the printing (or otherwise
reproducing) and filing of the Registration Statement as originally filed and of each
amendment thereto; (ii) the preparation, issuance and delivery of the [Underwritten] Notes
to the Underwriters; (iii) the fees and disbursements of the Depositor’s and NMAC’s counsel
and accountants; (iv) the fees of DTC in connection with the book-entry registration of the
[Underwritten] Notes; (v) the qualification of the [Underwritten] 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 the
Preliminary Prospectus and the Final Prospectus and any amendments or supplements thereto;
(vii) the reproducing and delivery to the Underwriters of copies of the blue sky survey; and
(viii) the fees charged by [[____________] (“[____]”)] and [[____________] (“[____]”)], for
rating the Notes. The Underwriters shall not be responsible for the fees and disbursements
of any of the Owner Trustee, the Indenture Trustee or their respective counsel.
10
(i) For so long as the Depositor is filing reports under the Securities Exchange Act of
1934, as amended, with respect to the Trust, or until such time as the Underwriters shall
cease to maintain a secondary market in the [Underwritten] Notes, whichever occurs first,
the Depositor will deliver to the Underwriters the annual statements of compliance and the
annual independent certified public accountants’ reports furnished to the Indenture Trustee
pursuant to Article III of the Transfer and Servicing Agreement, as soon as such statements
and reports are furnished to the Indenture Trustee and the Owner Trustee.
(j) On or prior to the Series 20[__]-[_] Issuance Date, the Depositor shall cause or
have caused its and NMAC’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 Series 20[__]-[_]
Issuance Date neither the Depositor nor NMAC shall take any action inconsistent with the
Trust’s ownership of such Receivables, other than as permitted by the Transfer and Servicing
Agreement.
(k) To the extent, if any, that the ratings provided with respect to the Notes by
either [____] or [____] is conditional upon the furnishing of documents or the taking of any
other actions by the Depositor, the Depositor shall furnish, and shall cause NMAC to
furnish, such documents and take any such other actions.
(l) The Servicer shall comply in all material respects with the representations made by
it to each nationally recognized statistical rating organization hired by the Servicer or
the Transferor to rate the Notes pursuant to paragraph (a)(3)(iii) of Rule 17g-5.
6. Covenant of the Underwriters. (a) Each of the Underwriters severally, and not
jointly, covenants and agrees with the Depositor that other than the Preliminary Prospectus and the
Final Prospectus, without NMAC’s prior written approval, such Underwriter has not made, used,
prepared, authorized, approved or referred to and will not prepare, make, use, authorize, approve
or refer to any “written communication” (as defined in Rule 405 under the Act) relating to the
offer and sale of the [Underwritten] Notes that would constitute a “prospectus” or a “free writing
prospectus,” each as defined in the Act or the Rules and Regulations thereunder, including, but not
limited to any “ABS informational and computational materials” as defined in Item 1101(a) of
Regulation AB under the Act; provided, however, that (i) each Underwriter may
prepare and convey one or more “written communications” (as defined in Rule 405 under the Act)
containing no more than the following: (A) information contemplated by Rule 134 under the Act and
included or to be included in the Preliminary Prospectus or the Final Prospectus, including but not
limited to, information relating to the class, size, weighted average life, rating, expected final
payment date, legal maturity date, and/or the final price of the [Underwritten] Notes, as well as a
column or other entry showing the status of the subscriptions for the [Underwritten] Notes and/or
expected pricing parameters of the [Underwritten] Notes, and (B) an Intex CDI file that does not
contain any Issuer Information (as defined below) other than Issuer Information included in the
Preliminary Prospectus previously filed with the Commission or other written communication
containing no more than the following: information contemplated by Rule 134 under the Act and
included or to be included in the Preliminary Prospectus or the Final Prospectus, as well as a
column or other entry showing
11
weighted average life, the status of the subscriptions for the Notes and/or expected pricing
parameters of the Notes, and (C) information customarily included in confirmations of sales of
securities and notices of allocations (each such written communication, an “Underwriter Free
Writing Prospectus”); and (ii) unless otherwise consented to by the Depositor or NMAC, no such
Underwriter Free Writing Prospectus shall be conveyed in a manner reasonably designed to lead to
its broad unrestricted dissemination such that, as a result of such conveyance, the Depositor or
NMAC shall be required to make any filing of such Underwriter Free Writing Prospectus pursuant to
Rule 433(d) under the Act. As used herein, the term “Issuer Information” means any information of
the type specified in clauses (1) — (5) of footnote 271 of Commission Release No. 33-8591
(Securities Offering Reform), other than Underwriter Derived Information. As used herein, the term
“Underwriter Derived Information” shall refer to information of the type described in clause (5) of
footnote 271 of Commission Release No. 33-8591 (Securities Offering Reform) when prepared by any
Underwriter, including traditional computational and analytical materials prepared by the
Underwriter.
(b) Each of the Underwriters severally, and not jointly, covenants with the Transferor and
the Servicer that on or prior to the Closing Date, it will not provide to any nationally recognized
statistical rating organization hired by the Servicer or the Transferor to rate the Notes or any
other “nationally recognized statistical rating organization” (within the meaning of the Securities
Exchange Act of 1934), any information, written or oral, relating to the Trust, the Notes, the
Receivables, the transaction contemplated by this Agreement or the other Basic Documents or any
other information, that could be reasonably determined to be relevant to determining an initial
credit rating for the Notes (as contemplated by Rule 17g-5(a)(3)(iii)(C)), without the prior
consent of the Transferor or the Servicer.
7. Conditions of the Obligations of the Underwriters. The obligations of the several
Underwriters to purchase and pay for the [Underwritten] Notes will be subject to the accuracy of
the representations and warranties on the part of each of the Trust, the Depositor and NMAC herein
on the date hereof and at the Series 20[__]-[_] Issuance Date, to the accuracy of the statements of
officers of the Trust, the Depositor and NMAC made pursuant to the provisions hereof, to the
performance by the Trust, the Depositor and NMAC of their respective obligations hereunder and to
the following additional conditions precedent:
(a) At the time this Agreement is executed and delivered by the Depositor and at the
Series 20[__]-[_] Issuance Date, [_____________] shall have furnished to the Representative
letters dated respectively as of the date of this Agreement and as of the Series 20[__]-[_]
Issuance Date substantially in the forms of the drafts to which the Representative
previously agreed.
(b) If the time of effectiveness of the Initial Registration Statement is not prior to
the execution and delivery of this Agreement, such time of effectiveness 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 time of effectiveness of the
Initial Registration Statement is prior to the execution and delivery of this Agreement, the
Preliminary Prospectus and the Final Prospectus and all amendments and supplements thereto
shall have been filed with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. If the time of
12
effectiveness of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such time of effectiveness shall have occurred not
later than 10:00 p.m., New York time, on the date of this Agreement or, if earlier, the time
the Final Prospectus is printed and distributed to any Underwriter, or shall have occurred
at such later date as shall have been consented to by the Representative. Prior to the
Series 20[__]-[_] Issuance Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Depositor, shall be contemplated by the
Commission.
(c) The Underwriters shall have received an officers’ certificate, dated the Series
20[__]-[_] Issuance Date, signed by the Chairman of the Board, the President or any Vice
President and by a principal financial or accounting officer of the Depositor representing
and warranting that, to the best of such officers’ knowledge after reasonable investigation,
as of the Series 20[__]-[_] Issuance Date:
(i) Each of the representations and warranties of the Depositor in this
Agreement is true and correct in all material respects, that the Depositor has
complied with all agreements and satisfied in all material respects all conditions
on its part to be performed or satisfied hereunder at or prior to the Series
20[__]-[_] Issuance 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) Except as otherwise set forth therein, there has been no material adverse
change, since the respective dates as of which information is given in the
Preliminary Prospectus or the Final Prospectus (as then amended and supplemented),
in the condition, financial or otherwise, earnings or business affairs, whether or
not arising out of the ordinary course of business, of the Depositor or any of its
affiliates (as such term is defined in Rule 501(b) under the Act) (each, an
“Affiliate”), or in the ability of such entity to perform its obligations under each
Basic Document to which it is a party or by which it may be bound. Except as
otherwise indicated by the context, all references to the term “material” in this
Agreement that refer to the Depositor or its Affiliates, or any of them, shall be
interpreted in proportion to the business of NMAC and its consolidated subsidiaries,
as a whole, and not in proportion to the business of the Depositor or its
Affiliate(s) individually.
(d) The Underwriters shall have received an officers’ certificate, dated the Series
20[__]-[_] Issuance Date, signed by the Chairman of the Board, the President or any Vice
President and by a principal financial or accounting officer of NMAC representing and
warranting that, to the best of such officers’ knowledge after reasonable investigation, as
of the Series 20[__]-[_] Issuance Date:
(i) Each of the representations and warranties of NMAC in this Agreement is
true and correct in all material respects, that NMAC has
13
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
Series 20[__]-[_] Issuance 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) Except as otherwise set forth therein, there has been no material adverse
change, since the respective dates as of which information is given in the
Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in
the condition, financial or otherwise, earnings or business affairs, whether or not
arising out of the ordinary course of business, of NMAC or any of its Affiliates, or
the ability of such entity to perform its obligations under each Basic Document to
which it is a party or by which it may be bound. Except as otherwise indicated by
the context, all references to the terms “material” in this Agreement that refer to
NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the
business of NMAC and its consolidated subsidiaries, as a whole, and not in
proportion to the business of NMAC 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 Trust, the Depositor, Nissan Motor Co., Ltd.,
Nissan North America Inc. (“NNA”) or NMAC which, in the judgment of the Representative,
materially impairs the investment quality of the [Underwritten] Notes or makes it
impractical or inadvisable to proceed with completion of the sale of and payment for the
[Underwritten] 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 [Underwritten] Notes.
(f) Xxxx X. Xxxx, Esq., General Counsel of the Depositor and NMAC, or other counsel
reasonably satisfactory to the Representative in its reasonable judgment, shall have
furnished to the Representative such counsel’s written opinion or opinions, subject to
customary qualifications, assumptions, limitations and exceptions, dated the
14
Series 20[__]-[_] Issuance Date, reasonably satisfactory in form and substance to the
Representative and its counsel.
(g) Xxxxx Xxxxx LLP, special counsel to the Depositor and NMAC, shall have furnished to
the Representative their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated as of the Series 20[__]-[_] Issuance Date, in
form and substance reasonably satisfactory to the Representative, with respect to the
general corporate matters, the validity of the Notes, the Registration Statement, the
Prospectus Supplement and the Base Prospectus, the effectiveness of such Registration
Statement and the information contained in each of the Registration Statement, the
Prospectus Supplements and the Base Prospectus.
(h) Xxxxx Xxxxx LLP or such counsel as may be acceptable to the Representative, shall
have furnished their written opinion or opinions, subject to customary qualifications,
assumptions, limitations and exceptions, dated the Series 20[__]-[_] Issuance Date, with
respect to the characterization of the transfer of the Receivables by NMAC to the Depositor
and with respect to other bankruptcy and perfection of security interest matters and such
opinion shall be reasonably satisfactory in form and in substance to the Representative and
its counsel.
(i) You shall have received an opinion of [Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP], counsel
to the Underwriters, dated the Series 20[__]-[_] Issuance Date, with respect to the validity
of the Notes and such other related matters as the Underwriters shall require, and the
Depositor 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 Depositor and NMAC of
[Xxxxxxxx, Xxxxxx & Finger], counsel to the Trust and the Owner Trustee, dated the Series
20[__]-[_] Issuance Date and reasonably satisfactory in form and substance to the
Representative and its counsel.
(k) You shall have received an opinion addressed to you, the Depositor and NMAC of
[Xxxxxx & Xxxxxxx LLP], counsel to [U.S. Bank National Association], as Indenture Trustee
(“[U.S. Bank]”), dated as of Series 20[__]-[_] Issuance Date and reasonably satisfactory in
form and substance to the Representative and its counsel.
(l) The Underwriters shall have received an officer’s certificate dated the Series
20[__]-[_] Issuance 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 Depositor and NMAC 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 Depositor or NMAC, as
applicable, contained in the Transfer and Servicing Agreement and the representations and
warranties of NMAC or the Depositor, as applicable, contained in the Receivables Purchase
Agreement are true and correct in all material respects and that the Depositor or NMAC, as
applicable, has complied with all agreements and satisfied all
15
conditions on its part to be performed or satisfied under such agreements at or prior
to the Series 20[__]-[_] Issuance Date in all material respects.
(m) You shall have received an opinion of [Xxxxxx Xxxxxxx Xxxxxx & Xxxxx, LLP], special
Tennessee counsel to the Depositor and NMAC,, dated as of Series 20[__]-[_] Issuance Date
and reasonably satisfactory in form and substance to the Representative and its counsel.
(n) The Notes shall have been rated in the highest rating category by [____] and
[____].
(o) On or prior to the Series 20[__]-[_] Issuance Date, the Trust, the Depositor and
NMAC shall have furnished to the Underwriters such further certificates and documents as the
Underwriters shall reasonably have required.
(p) [The Interest Rate [Cap][Swap] Agreement(s) shall be in full force and effect.]
(q) [You shall have received an opinion addressed to you, the Depositor and NMAC of
special counsel to the [Cap Provider][Swap Counterparty], dated as of Series 20[__]-[_]
Issuance Date and reasonably satisfactory in form and substance to the Representative and
its counsel.]
8. Indemnification and Contribution.
(a) The Depositor, the Trust and NMAC shall, jointly and severally, indemnify and hold
each Underwriter and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the 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 liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Registration Statement, the
Preliminary Prospectus, the Final Prospectus, or any amendment or supplement thereto, [or
the electronic road show posted on NetRoadshow on [_________]] 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 none of the Depositor, the Trust and NMAC will be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged omission from
any of such documents [(including, without limitation, the electronic road show posted on
NetRoadshow on [_________])], in reliance upon and in conformity with information furnished
to the
16
Depositor, the Trust or NMAC by any Underwriter through the Representative specified in
the last sentence of subsection (b) below specifically for use therein.
(b) Each Underwriter shall, severally and not jointly, indemnify and hold harmless the
Depositor, the Trust and NMAC against any losses, claims, damages or liabilities to which
the Depositor, the Trust or NMAC may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Preliminary Prospectus, the Final Prospectus or
any amendment or supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished to the
Depositor, the Trust or NMAC by such Underwriter through the Representative specifically for
use therein, and will reimburse any legal or other expenses reasonably incurred by the
Depositor, the Trust or NMAC in connection with investigating or defending any such action
or claim as such expenses are incurred. The Depositor, the Trust and NMAC acknowledge and
agree that the only such information furnished to the Depositor, the Trust or NMAC by any
Underwriter through the Representative consists of the following: the statements in the
third paragraph (concerning initial offering prices, concessions and reallowances) and in
the fourth, fifth, sixth and seventh paragraphs (concerning stabilizing and other
activities) under the heading “Underwriting” in each of the Preliminary Prospectus
Supplement the Prospectus Supplement.
(c) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person in respect
of which indemnity may be sought pursuant to either of the two preceding paragraphs, such
person (the “Indemnified Party”) shall promptly notify the person against whom such
indemnity may be sought (the “Indemnifying Party”) in writing of the commencement thereof,
but the omission to so notify the Indemnifying Party will not relieve it from any liability
which it may have to any Indemnified Party otherwise than under such preceding paragraphs,
and with respect to such preceding paragraphs, any such omission shall not relieve it from
any liability except to the extent it has been materially prejudiced by such omission. In
case any such action is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other Indemnifying
Party similarly notified, to assume the defense thereof, with counsel satisfactory to such
Indemnified Party (who may be counsel to the Indemnifying Party) and after notice from the
Indemnifying Party to such Indemnified Party of its election so to assume the defense
thereof and after acceptance of counsel by the Indemnified Party, the Indemnifying Party
will not be liable to such Indemnified Party under this Section for any legal or other
expenses subsequently incurred by such Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees and expenses
17
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 Control Persons in accordance with this subsection (c) shall be
designated in writing by the Depositor, the Trust or NMAC, as the case may be. The
Indemnifying Party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent, with respect to an action of which
the Indemnifying Party was notified and had the opportunity to participate in (whether or
not it chose to so participate), the Indemnifying Party agrees to indemnify any Indemnified
Party from and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an Indemnified Party shall have requested an
Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by the fourth sentence of this paragraph, the Indemnifying Party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 60 days after receipt by such Indemnifying
Party of the aforesaid request, and during such 60 day period the Indemnifying Party has not
responded thereto, and (ii) such Indemnifying Party shall not have reimbursed the
Indemnified Party in accordance with such request prior to the date of such settlement. No
Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such
proceeding which release does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any Indemnified Party without the consent
of the Indemnified Party.
(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 Depositor, the Trust and NMAC on the one hand and the Underwriters on the other from the
offering of the [Underwritten] Notes. If, however, the
18
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each Indemnifying Party shall contribute to such amount paid or payable
by such Indemnified Party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Depositor, the Trust and NMAC 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 Depositor, the Trust and
NMAC on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion that the total net proceeds from the offering (before deducting expenses)
received by the Depositor, the Trust and NMAC bear to the total discounts and commissions
received by the Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Depositor, the Trust or NMAC or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such untrue statement
or omission. The Depositor, the Trust, NMAC and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation 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 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 [Underwritten] 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 obligations and not joint.
(e) The obligations of the Depositor, the Trust and NMAC under this Section shall be in
addition to any liability which the Depositor, the Trust or NMAC may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the Underwriters under
this Section shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each director of the
Depositor, the Trust or NMAC, to each officer of the Depositor, the Trust or NMAC who has
signed the Registration Statement and to each person, if any, who controls the Depositor or
NMAC within the meaning of the Act.
(f) The Trust’s obligations pursuant to this Section 8 shall be subordinated to its
obligations to make payments on the Notes and the notes of any other series issued by it and
will only be paid to the extent of available funds.
19
9. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Trust, the Depositor, NMAC 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 Depositor or NMAC or any of their
respective representatives, officers or directors or any Control Person, and will survive delivery
of and payment for the [Underwritten] Notes. If this Agreement is terminated pursuant to Section
10 of this Agreement or if for any reason the purchase of the [Underwritten] Notes by the
Underwriters is not consummated, the Depositor shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 5 of this Agreement, and the respective obligations of the
Depositor and the Underwriters pursuant to Section 8 of this Agreement shall remain in effect. If
the purchase of the [Underwritten] Notes by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to Section 10 of this
Agreement, the Depositor 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 [Underwritten] Notes.
10. Failure to Purchase the [Underwritten] Notes. If any Underwriter or Underwriters
default on their obligations to purchase [Underwritten] Notes hereunder and the aggregate principal
amount of [Underwritten] Notes that such defaulting Underwriter or Underwriters agreed but failed
to purchase does not exceed [__]% of the total principal amount of such [Underwritten] Notes, the
Representative may make arrangements satisfactory to the Trust for the purchase of such
[Underwritten] Notes by other persons, including the nondefaulting Underwriter or Underwriters, but
if no such arrangements are made by the Series 20[__]-[_] Issuance Date, the nondefaulting
Underwriter or Underwriters shall be obligated, in proportion to their commitments hereunder, to
purchase the [Underwritten] Notes that such defaulting Underwriter or Underwriters agreed but
failed to purchase. If any Underwriter or Underwriters so default and the aggregate principal
amount of [Underwritten] Notes with respect to which such default or defaults occur exceeds [__]%
of the total principal amount of [Underwritten] Notes, as applicable, and arrangements satisfactory
to the nondefaulting Underwriter or Underwriters and the Trust for the purchase of such
[Underwritten] 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
Depositor, except as provided in Section 9 of this Agreement.
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.
11. 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 or
by e-mail and confirmed to [______], [____________________________], Attention: [__________]
(facsimile number [_________]) (email: [____________]); and if sent to the Depositor, will be
mailed, delivered or sent by facsimile transmission and confirmed to it at Nissan Wholesale
Receivables Corporation II, Xxx Xxxxxx Xxx, Xxxxxxxx, XX 00000, attention
20
Treasurer (facsimile number (000) 000-0000) (e-mail: xxxx.xxxxxx@xxxxxx-xxx.xxx with a copy to
xxxxxxx.xxxxxxx@xxxxxx-xxx.xxx).
12. 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 Trust, the Depositor
or by a trust for which the Depositor 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 Trust or the Depositor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other proceedings under any federal or state
bankruptcy or similar law.
13. Successors. This Agreement will inure to the benefit of and be binding upon the
Underwriters and the Depositor and their respective successors and the officers and directors and
Control Persons referred to in Section 9 of this Agreement, and no other person will have any right
or obligations hereunder.
14. Representation of the 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.
15. Representations and Warranties of Underwriters. With respect to any offers or
sales of the [Underwritten] Notes outside the United States (and solely with respect to any such
offers and sales) each Underwriter severally and not jointly makes the following representations
and warranties:
(a) Each Underwriter represents and agrees that it will comply with all applicable laws
and regulations in each jurisdiction in which it purchases, offers or sells the
[Underwritten] Notes or possesses or distributes the Preliminary Prospectus or the Final
Prospectus or any other offering material and will obtain any consent, approval or
permission required by it for the purchase, offer or sale by it of [Underwritten] Notes
under the laws and regulations in force in any jurisdiction to which it is subject or in
which it makes such purchases, offers or sales and neither the Depositor nor NMAC shall have
any responsibility therefor;
(b) No action has been or will be taken by such Underwriter that would permit public
offering of the [Underwritten] Notes or possession or distribution of any offering material
in relation to the [Underwritten] Notes in any jurisdiction where action for that purpose is
required unless the Depositor or NMAC has agreed to such actions and such actions have been
taken;
(c) Each Underwriter represents and agrees that it will not offer, sell or deliver any
of the [Underwritten] Notes or distribute any such offering material in or from any
jurisdiction except under circumstances that will result in compliance with applicable laws
and regulations and that will not impose any obligation on the Depositor or NMAC or the
Underwriters; and
21
(d) Such Underwriter acknowledges that it is not authorized to give any information or
make any representation in relation to the [Underwritten] Notes other than (i) oral
communications that are consistent with the Preliminary Prospectus or the Final Prospectus
and would not cause the Trust, the Depositor or NMAC to incur liability, (ii) those
contained or incorporated by reference in the Preliminary Prospectus or the Final Prospectus
for the Notes and (iii) such additional information, if any, as the Depositor or NMAC shall,
in writing, provide to and authorize such Underwriter so to use and distribute to actual and
potential purchasers of the [Underwritten] Notes.
(e) Each Underwriter has complied and will comply with all applicable provisions of the
Financial Services and Markets Xxx 0000 (“FSMA”) with respect to anything done by such
Underwriter in relation to the [Underwritten] Notes in, from or otherwise involving the
United Kingdom; and
(f) Each Underwriter will only communicate or cause to be communicated any invitation
or inducement to engage in investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue or sale of any securities in circumstances
in which Section 21(1) of the FSMA does not apply to the Trust.
(g) Each Underwriter, severally and not jointly, (i) represents to the Transferor and
the Servicer that as of the date of this Agreement, it has not provided to any nationally
recognized statistical rating organization hired by the Servicer or the Transferor to rate
the Notes or any other “nationally recognized statistical rating organization” (within the
meaning of the Securities Exchange Act of 1934), any information, written or oral, relating
to the Trust, the Notes, the Receivables, the transaction contemplated by this Agreement or
the other Basic Documents or any other information, that could be reasonably determined to
be relevant to determining an initial credit rating for the Notes (as contemplated by Rule
17g-5(a)(3)(iii)(C)), without the prior consent of the Transferor or the Servicer and (ii)
covenants with the Transferor and the Servicer that it will not provide to any nationally
recognized statistical rating organization hired by the Servicer or the Transferor to rate
the Notes or other “nationally recognized statistical rating organization” (within the
meaning of the Securities Exchange Act of 1934), any information, written or oral, relating
to the Trust, the Notes, the Receivables, the transactions contemplated by this Agreement or
the other Basic Documents or any other information, that could be reasonably determined to
be relevant to undertaking credit rating surveillance on the Notes (as contemplated by Rule
17g-5(a)(3)(iii)(D)), without the prior consent of the Transferor or the Servicer.
Notwithstanding any other provision of this Agreement, the aggregate liability of any
Underwriter to the Servicer and the Transferor in respect of any losses, claims, damages,
liabilities, legal or other expenses or other amounts arising out of or based upon any
breaches or alleged breaches by such Underwriter of its covenant set forth in subclause (ii)
of this Section 15(g), without regard to whether such amounts are payable by such
Underwriter under the indemnification provided by Section 8(b) or as damages for breach of
contract or otherwise, will in no event exceed the total underwriting discounts and
commissions received by such Underwriter, in each case as set forth in the table on the
22
cover page of the Prospectus Supplement as amended or supplemented with respect to the
Notes.
16. 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).
17. 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.
18. Acknowledgment. Each of the Trust, the Depositor and NMAC hereby acknowledges and
agrees that pursuant to this Agreement that the Underwriters are acting solely in the capacity of
an arm’s length contractual counterparty to the Trust, the Depositor and NMAC with respect to the
offering of the [Underwritten] Notes contemplated hereby (including in connection with determining
the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Trust, the Depositor, NMAC or any other Person. Additionally, neither the Representative nor any
other Underwriter is advising the Trust, the Depositor, NMAC or any other Person as to any legal,
tax, investment, accounting or regulatory matters in any jurisdiction. Each of the Trust, the
Depositor and NMAC shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Trust,
the Depositor or NMAC with respect thereto. Any review by the Underwriters of the Trust, the
Depositor, NMAC, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Trust, the Depositor or NMAC.
[remainder of page intentionally left blank]
23
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 Trust, the Depositor,
NMAC and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||||
| NISSAN MASTER OWNER TRUST RECEIVABLES | ||||||
| By: [WILMINGTON TRUST COMPANY], | ||||||
| not in its individual capacity but solely | ||||||
| as Owner Trustee | ||||||
| By | ||||||
| NISSAN WHOLESALE RECEIVABLES | ||||||
| CORPORATION II | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| NISSAN MOTOR ACCEPTANCE | ||||||
| CORPORATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
Nissan 20[__]-[_] Underwriting Agreement
S-1
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written:
is hereby confirmed and accepted as of
the date first above written:
[_________________________]
By: |
||||
| Name: | ||||
| Title: | ||||
Acting on behalf of itself
and as Representative of the
several Underwriters
and as Representative of the
several Underwriters
Nissan 20[__]-[_] Underwriting Agreement
S-2
SCHEDULE 1
| Principal Amount | ||||
| of | ||||
| Underwriter | 20[__]-[_] Notes | |||
[_________] |
$ | [_________] | ||
[_________] |
$ | [_________] | ||
[_________] |
$ | [_________] | ||
[_________] |
$ | [_________] | ||
[_________] |
$ | [_________] | ||
[_________] |
$ | [_________] | ||
[_________] |
$ | [_________] | ||
[_________] |
$ | [_________] | ||
Total |
$ | [_________] | ||
CONTENTS
| Clause | Page | |||
1. INTRODUCTORY |
1 | |||
2. REPRESENTATIONS AND WARRANTIES OF THE TRUST, THE DEPOSITOR AND NMAC |
2 | |||
3. PURCHASE, SALE AND DELIVERY OF [UNDERWRITTEN] NOTES |
8 | |||
4. OFFERING BY UNDERWRITERS |
9 | |||
5. COVENANTS OF THE DEPOSITOR AND THE TRUST |
9 | |||
7. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS |
12 | |||
8. INDEMNIFICATION AND CONTRIBUTION |
16 | |||
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS |
20 | |||
10. FAILURE TO PURCHASE THE [UNDERWRITTEN] NOTES |
20 | |||
11. NOTICES |
20 | |||
12. NO BANKRUPTCY PETITION |
21 | |||
13. SUCCESSORS |
21 | |||
14. REPRESENTATION OF THE UNDERWRITERS |
21 | |||
15. REPRESENTATIONS AND WARRANTIES OF UNDERWRITERS |
21 | |||
16. APPLICABLE LAW |
23 | |||
17. COUNTERPARTS |
23 | |||
18. ACKNOWLEDGMENT |
23 | |||
SCHEDULE 1 |
1 | |||
