EXHIBIT 1.1
NISSAN AUTO RECEIVABLES 2002-C OWNER TRUST
$316,000,000, 1.70400% ASSET BACKED NOTES, CLASS A-1
$170,000,000, 1.94000% ASSET BACKED NOTES, CLASS A-2
$435,000,000, 2.60000% ASSET BACKED NOTES, CLASS A-3
$183,266,000, 3.33000% ASSET BACKED NOTES, CLASS A-4
NISSAN AUTO RECEIVABLES CORPORATION II
(SELLER)
August 8, 2002
Underwriting Agreement
Xxxxxx Xxxxxxx & Co. Incorporated,
As Representative of the
Several Underwriters (the "Representative")
0000 Xxxxxxxx, 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 $316,000,000 principal amount of 1.70400% Asset Backed Notes, Class A-1
(the "Class A-1 Notes"), $170,000,000 principal amount of 1.94000% Asset Backed
Notes, Class A-2 (the "Class A-2 Notes"), $435,000,000 principal amount of
2.60000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), and $183,266,000
principal amount of 3.33000% 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-C Owner
Trust (the "Trust"). The Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated as of August 19, 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 August 19, 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. 333-87970), including a
form of prospectus supplement relating to the Notes and a form of base
prospectus relating to each class of securities to be registered under
such registration statement (the "Registered Securities"), has been
filed on Form S-3 with the Securities and Exchange Commission (the
"Commission") and either (i) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed to
be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (i) any
additional registration statement (the "additional registration
statement") relating to the Notes has been filed with the Commission
pursuant to rule 462(b) ("Rule 462(b)") under the Act and declared
effective upon filing, and the Notes have been registered under the Act
pursuant to the initial registration statement and such additional
registration statement or (ii) any such additional registration
statement proposed to be filed with the Commission pursuant to Rule
462(b) will become effective upon filing pursuant to Rule 462(b) and
upon such filing the Notes will have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Seller does not propose to amend the
initial registration statement, any such additional registration
statement or any post-effective amendment to either such registration
statement filed with the Commission prior to the execution and delivery
of this Agreement, then the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or
has become effective upon filing pursuant to Rule 462(c) under the Act
("Rule 462(c)") or Rule 462(b).
For purposes of this Agreement, "Effective Time" with respect to
the initial registration statement or, if filed prior to the execution
and delivery of this Agreement, the additional registration statement
means (A) if the Seller has advised the Representative that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) or (B) if the Seller has
advised the Representative that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If the Seller has advised the
Representative that it proposes to file, but has not filed, an
additional registration statement, "Effective Time" with respect to such
additional registration statement means the date and time as of which
such registration statement is filed and becomes effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof.
The initial registration statement and all amendments and
supplements thereto, as amended at its Effective Time, including all
information (A) contained in the additional
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registration statement (if any), (B) deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement (if any) pursuant to the General Instructions of
the Form on which it is filed and (C) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
under the Act ("Rule 430A(b)"), is hereinafter referred to as the
"Initial Registration Statement." The additional registration statement
and all amendments and supplements thereto, as amended at its Effective
Time, including the contents of the initial registration statement
incorporated by reference therein and deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "Additional Registration
Statement." The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement." The form of prospectus supplement relating to the Notes (the
"Prospectus Supplement") and the form of prospectus (the "Base
Prospectus") relating to the Registered Securities (including the
Notes), as first filed with the Commission in connection with the
offering and sale of the Notes pursuant to and in accordance with Rule
424(b) under the Act ("Rule 424(b)") or, if no such filing is required,
as included in a Registration Statement, including all material
incorporated by reference in such prospectus, is hereinafter referred to
as the "Prospectus." The Seller filed a Term Sheet, dated August 6,
2002, relating to the Notes (the "Term Sheet") disseminated by the
Underwriters on Form 8-K with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), within two
business days of its delivery to the Underwriters.
(b) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and delivery of
this Agreement, each such Registration Statement conformed, (B) on the
date of this Agreement, each such Registration Statement conforms and
(C) on any related Effective Date subsequent to the date of this
Agreement, each such Registration Statement will conform, in all
respects to the requirements of the Act and the rules and regulations of
the Commission (the "Rules and Regulations") and the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and at such times each such
Registration Statement, as amended, did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time of filing of the Prospectus pursuant
to Rule 424(b) or, if no such filing is required, at the Effective Date
of the Additional Registration Statement that includes the Prospectus,
on the date of this Agreement and at the Closing Date, the Prospectus
will conform, in all respects to the requirements of the Act and the
Rules and Regulations, and does not include, and will not include, any
untrue statement of a material fact, nor does the Prospectus omit, nor
will it omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. The two
preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus based upon written information
furnished to the Seller by any Underwriter through the Representative
specifically for use therein or to that part of the Registration
Statement which constitutes the Statement of Qualification under the
1939 Act on Form T-1 (the "Form T-1") of the Indenture Trustee (which
will be represented and warranted to by the Indenture Trustee). If the
Effective Time of the Registration Statement is subsequent to
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the date of this Agreement, no Additional Registration Statement has
been or will be filed. The Indenture has been qualified under the 1939
Act.
(c) The Seller has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own its properties and
conduct its business as described in the Prospectus, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except where the failure to be
in good standing would not have a material adverse effect on the
Seller's ability to perform its obligations under this Agreement, the
Trust Agreement, the Purchase Agreement, the Assignment, the Sale and
Servicing Agreement, the Yield Supplement Agreement, the Securities
Account Control Agreement or the Administration Agreement (collectively,
the "Basic Documents").
(d) The Servicer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except where the failure to be
in good standing would not have a material adverse effect on the
Servicer's ability to perform its obligations under the Basic Documents.
(e) The consummation of the transactions contemplated by
the Basic Documents, and the fulfillment of the terms thereof, will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation of any
lien, charge, or encumbrance upon any of the property or assets of the
Seller or the Servicer pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement, or similar agreement or instrument under which the Seller or
the Servicer is a debtor or guarantor, except where such conflict,
breach, default or creation would not have a material adverse effect on
the Seller's or the Servicer's respective ability to perform its
obligations under the Basic Documents or the validity or enforceability
thereof.
(f) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required to be
obtained or made by the Seller or the Servicer for the consummation of
the transactions contemplated by this Agreement except such as have been
obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the Trust's interest in the Receivables.
(g) Neither the Seller nor the Servicer is in violation of
its certificate of incorporation or articles of incorporation, as
applicable, or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which would have a material adverse effect on the
transactions contemplated herein or on the Seller's or the Servicer's
respective ability to perform its obligations
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under the Basic Documents. The execution, delivery and performance of
the Basic Documents and the issuance and sale of the Notes and
compliance with the terms and provisions thereof will not, subject to
obtaining any consents or approvals as may be required under the
securities or "blue sky" laws of various jurisdictions: (i) result in a
breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, rule, regulation or order of any
governmental agency or body or any court having jurisdiction over the
Seller or the Servicer or their respective properties or any agreement
or instrument to which either is a party or by which either is bound or
to which any of their respective properties are subject, except where
such breach, violation, or default would not have a material adverse
effect on the Seller's or the Servicer's respective ability to perform
its obligations under the Basic Documents or the validity or
enforceability thereof, or (ii) conflict with the Seller's or the
Servicer's charter or by-laws, and each of the Seller and the Servicer
has corporate power and authority to enter into the Basic Documents and
to consummate the transactions contemplated hereby and thereby.
(h) The Basic Documents have been duly authorized,
executed and delivered by, and (assuming due authorization and delivery
thereof by the other parties hereto and thereto) constitute valid and
binding obligations of, the Seller and the Servicer, as applicable,
enforceable against such party in accordance with their respective
terms, except as limited by bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(i) The Notes have been duly authorized and, when executed
and delivered in accordance with the Indenture and delivered against
payment therefor pursuant to this Agreement, will be valid and binding
obligations of the Trust, enforceable against the Trust in accordance
with their respective terms, except as limited by bankruptcy,
insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(j) There are no legal or governmental proceedings pending
to which the Seller or the Servicer is a party or of which any property
of the Seller or the Servicer is the subject, and to the Seller's
knowledge no such proceedings are threatened or contemplated by
governmental authorities or threatened by others, (A) (whether
individually or in the aggregate) that are required to be disclosed in
the Registration Statement or (B)(1) asserting the invalidity of all or
part of any Basic Document, (2) seeking to prevent the issuance of the
Notes, (3) (whether individually or in the aggregate) that would
materially and adversely affect the Seller's or the Servicer's
obligations under any Basic Document to which it is a party, or (4)
(whether individually or in the aggregate) seeking to affect adversely
the federal or state income tax attributes of the Notes.
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(k) Any taxes, fees and other governmental charges that
have been assessed and are known to the Seller to be due in connection
with the execution, delivery and issuance of the Basic Documents shall
have been paid by the Seller or the Servicer at or prior to the Closing
Date (as defined in Section 3(c) hereof).
(l) Each of the Seller and the Servicer possesses all
material licenses, certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies, the
absence of which would have a material adverse effect on the ability of
the Seller or the Servicer to perform its duties under the Sale and
Servicing Agreement, and neither of the Seller or Servicer has received
notice of proceedings relating to the revocation or modification of any
such license, certificate, authorization or permit which, singly or in
the aggregate, if the subject of any unfavorable decision, ruling or
finding, would materially and adversely affect the ability of the Seller
or the Servicer to perform its obligations under the Basic Documents.
(m) As of the Closing Date, the Reserve Account and the
Yield Supplement Account will be subject to a first-priority security
interest in favor of the Indenture Trustee for the benefit of the
Noteholders.
(n) As of the Closing Date, the Trust (for the benefit of
the Noteholders) will have good title, free and clear of all prior
liens, charges and encumbrances, to the Receivables and such other items
comprising the corpus of the Trust transferred to the Trust pursuant to
the Sale and Servicing Agreement.
(o) As of the Closing Date, the Indenture, the Notes and
the Basic Documents will conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
(p) Deloitte & Touche LLP are independent public
accountants with respect to the Seller within the meaning of the Act and
the Rules and Regulations.
(q) Neither the Trust nor the Seller is required to be
registered as an "investment company" under the Investment Company Act
of 1940, as amended.
(r) The representations and warranties of the Seller and
the Servicer in the Sale and Servicing Agreement are true and correct in
all material respects.
3. Purchase, Sale and Delivery of Notes.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Seller agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Seller, the aggregate principal amounts of the Notes set forth opposite
the names of the Underwriters in Schedule 1 hereto.
(b) The Notes are to be purchased at a purchase price
equal to (i) in the case of the Class A-1 Notes, 99.88000% of the
aggregate principal amount thereof, (ii) in the case of the Class A-2
Notes, 99.81801% of the aggregate principal amount thereof,
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(iii) in the case of the Class A-3 Notes, 99.78142% of the aggregate
principal amount thereof, and (iv) in the case of the Class A-4 Notes,
99.73580% of the aggregate principal amount thereof.
(c) Against payment of the purchase price by wire transfer
of immediately available funds to the Seller, the Seller will deliver
the Notes to the Representative, for the account of the Underwriters, at
the office of O'Melveny & Xxxxx LLP, at 000 Xxxxx Xxxx Xxxxxx, Xxx
xxxxxx, Xxxxxxxxxx, on August 19, 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.
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(c) The Seller will arrange for the qualification of the
Notes for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and to continue such qualifications in effect so long as
necessary under such laws for the distribution of such securities;
provided that in connection therewith the Seller shall not be required
to qualify as a foreign corporation to do business, or to file a general
consent to service of process, in any jurisdiction.
(d) If, at any time when the delivery of a prospectus
shall be required by law in connection with sales of any Notes, either
(i) any event shall have occurred as a result of which the Prospectus
would include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or (ii) for any other reason it shall be necessary to amend
or supplement the Prospectus, the Seller will promptly notify the
Representative and will promptly prepare for review by the
Representative and file with the Commission an amendment or a supplement
to the Prospectus which will correct such statement or omission or
effect such compliance. Neither your consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 6.
(e) The Seller will cause the Trust to make generally
available to Holders as soon as practicable, but not later than fourteen
months after the Effective Date, an earnings statement of the Trust
covering a period of at least twelve consecutive months beginning after
such Effective Date and satisfying the provisions of Section 11(a) of
the Act (including Rule 158 promulgated thereunder).
(f) The Seller will furnish to you copies of the
Registration Statement (which will include all exhibits), the Form 8-K
relating to the Term Sheet, the related preliminary prospectus, the
Prospectus and all amendments and supplements to such documents, in each
case as soon as available and in such quantities as the Representative
may from time to time reasonably request.
(g) So long as any of the Notes are outstanding, the
Seller will furnish to the Representative copies of all reports or other
communications (financial or otherwise) furnished to Holders, and
deliver to the Representative during such same period (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission and (ii) such additional
information concerning the business and financial condition of the
Seller and the Trust as the Representative may from time to time
reasonably request.
(h) The Seller will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing (or otherwise reproducing) and filing of the
Registration Statement as originally filed and of each amendment
thereto; (ii) the preparation, issuance and delivery of the Notes to the
Underwriters; (iii) the fees and disbursements of the Seller's and the
Servicer's counsel and accountants; (iv) the fees of DTC in connection
with the book-entry registration of the Notes; (v) the qualification of
the Notes under state securities law in accordance with the provisions
of Section 5(c) hereof, including filing fees and the fees and
disbursements
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of counsel for the Underwriters in connection therewith and in
connection with the preparation of the blue sky survey, if required;
(vi) the printing (or otherwise reproducing) and delivery to the
Underwriters of copies of each preliminary prospectus and the Prospectus
and any amendments or supplements thereto; (vii) the reproducing and
delivery to the Underwriters of copies of the blue sky survey; and
(viii) the fees charged by Xxxxx'x Investors Service, Inc. ("Moody's")
and Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc. ("S&P"), for rating the Notes. The Underwriters shall
not be responsible for the fees and disbursements of the Owner Trustee,
the Indenture Trustee and their respective counsel.
(i) Until the retirement of the Notes, or until such time
as the Underwriters shall cease to maintain a secondary market in the
Notes, whichever occurs first, the Seller will deliver to the
Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the
Indenture Trustee pursuant to Article IV of the Sale and Servicing
Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee.
(j) On or promptly after the Closing Date, the Seller
shall cause its and the Servicer's computer records relating to the
Receivables to be marked to show the Trust's absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller nor
the Servicer shall take any action inconsistent with the Trust's
ownership of such Receivables, other than as permitted by the Sale and
Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Notes by Moody's or S&P is conditional upon the
furnishing of documents or the taking of any other actions by the
Seller, the Seller shall furnish, and shall cause the Servicer to
furnish, such documents and take any such other actions.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Notes will
be subject to the accuracy of the representations and warranties on the part of
the Seller and the Servicer herein on the date hereof and at the Closing Date,
to the accuracy of the statements of officers of the Seller and the Servicer
made pursuant to the provisions hereof, to the performance by the Seller and the
Servicer of their respective obligations hereunder and to the following
additional conditions precedent:
(a) At the time this Agreement is executed and delivered
by the Seller and at the Closing Date, Deloitte & Touche LLP shall have
furnished to the Representative letters dated respectively as of the
date of this Agreement and as of the Closing Date substantially in the
forms of the drafts to which the Representative previously agreed.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 p.m., New
York time, on the date of this Agreement or such later date as shall
have been consented to by the Representative. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the
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Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. If the
Effective Time of the Additional Registration Statement (if any) is not
prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 p.m., New York time, on
the date of this Agreement or, if earlier, the time the Prospectus is
printed and distributed to any Underwriter, or shall have occurred at
such later date as shall have been consented to by the Representative.
Prior to the Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Seller, shall be contemplated by the Commission.
(c) The Underwriters shall have received an officers'
certificate, dated the Closing Date, signed by the Chairman of the
Board, the President or any Vice President and by a principal financial
or accounting officer of the Seller representing and warranting that, to
the best of such officers' knowledge after reasonable investigation, as
of the Closing Date:
(i) The representations and warranties of the
Seller in this Agreement are true and correct in all material
respects, that the Seller has complied with all agreements and
satisfied in all material respects all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the best of their
knowledge, are contemplated by the Commission.
(ii) There has been no material adverse change,
since the respective dates as of which information is given in
the Prospectus (except as otherwise set forth therein and
exclusive of amendments or supplements after the date hereof), in
the condition, financial or otherwise, earnings or business
affairs, whether or not arising out of the ordinary course of
business, of the Seller or any of its affiliates (as such term is
defined in Rule 501(b) under the Act) (each, an "Affiliate"), or
in the ability of such entity to perform its obligations under
each Basic Document to which it is a party or by which it may be
bound. Except as otherwise indicated by the context, all
references to the terms "material" in this Agreement that refer
to the Seller or its Affiliates, or any of them, shall be
interpreted in proportion to the business of the Servicer and its
consolidated subsidiaries, as a whole, and not in proportion to
the business of the Seller or its Affiliate(s) individually.
(d) The Underwriters shall have received an officers'
certificate, dated the Closing Date, signed by the Chairman of the
Board, the President or any Vice President and by a principal financial
or accounting officer of the Servicer representing and warranting that,
to the best of such officers' knowledge after reasonable investigation,
as of the Closing Date:
(i) The representations and warranties of the
Servicer in this Agreement are true and correct in all material
respects, that the Servicer has
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complied with all agreements and satisfied, in all material
respects, all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of any Registration Statement has
been issued and no proceedings for that purpose have been
instituted or, to the best of their knowledge, are contemplated
by the Commission.
(ii) There has been no material adverse change,
since the respective dates as of which information is given in
the Prospectus (except as otherwise set forth therein and
exclusive of amendments or supplements after the date hereof), in
the condition, financial or otherwise, earnings or business
affairs, whether or not arising out of the ordinary course of
business, of the Servicer or any of its Affiliates, or the
ability of such entity to perform its obligations under each
Basic Document to which it is a party or by which it may be
bound. Except as otherwise indicated by the context, all
references to the terms "material" in this Agreement that refer
to the Servicer or its Affiliates, or any of them, shall be
interpreted in proportion to the business of the Servicer and its
consolidated subsidiaries, as a whole, and not in proportion to
the business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly
the business or properties of the Seller, Nissan Motor Co., Ltd., NNA or
the Servicer which, in the judgment of the Representative, materially
impairs the investment quality of the Notes or makes it impractical or
inadvisable to proceed with completion of the sale of and payment for
the Notes; (ii) any downgrading in the rating of any debt securities of
NNA or any of its direct or indirect subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such
debt securities (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (iv) any material
disruption in commercial banking, securities entitlement or clearance
services in the United States; (v) any banking moratorium declared by
federal or New York authorities; or (vi) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the
Representative, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Notes.
(f) Xxx Xxxxx, Esq., General Counsel of the Seller, or
other counsel satisfactory to the Representative in its reasonable
judgment, shall have furnished to the Representative such counsel's
written opinion, dated the Closing Date, in substantially the form set
forth below, with such changes therein as counsel for the Underwriters
shall reasonably agree:
11
(i) The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of Delaware with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or the ownership of its property requires such
qualification, except where the failure to be in good standing
would not have a material adverse effect on the Seller's ability
to perform its obligations under the Basic Documents.
(ii) The Servicer has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the State of California with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or the ownership of its property requires such
qualification, except where the failure to be in good standing
would not have a material adverse effect on the Servicer's
ability to perform its obligations under the Basic Documents.
(iii) The Basic Documents have been duly
authorized, executed and delivered by each of the Seller and the
Servicer, as applicable, and each of the Seller and the Servicer
has the corporate power and authority to enter into and perform
its respective obligations under the Basic Documents.
(iv) The execution, delivery and performance of the
Basic Documents by the Seller and the Servicer will not conflict
with or result in a breach of any of the terms or provisions of,
or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
respective properties or assets of the Seller or the Servicer,
pursuant to the terms of the Notes or the charter or bylaws of
the Seller or the Servicer, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Seller or the Servicer or any of their
respective properties or any material agreement or instrument to
which the Seller or the Servicer is a party or by which either
the Seller or the Servicer or any of their respective properties
is bound.
(v) No authorization, approval or consent of any
court or governmental agency or authority is necessary in
connection with the execution, delivery and performance by the
Seller or the Servicer of the Basic Documents to which it is a
party, except such as may be required under the Act or the Rules
and Regulations and state securities laws, and except for such
authorizations, approvals or consents (specified in such opinion)
as are in full force and effect as of the Effective Date and the
Closing Date.
(vi) Nothing has come to such counsel's attention
that would cause it to believe that as of the Effective Date and
at the Closing Date the Registration Statement and the Prospectus
(other than the financial statements and the other accounting
information contained therein or omitted therefrom, as to
12
which such counsel need express no belief) contained or contain
any untrue statement of a material fact or omitted or omit to
state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or that
the descriptions therein of statutes and governmental proceedings
and contracts and other documents are inaccurate and do not
fairly present the information required to be shown therein.
(vii) Such counsel does not know of any contract or
other document of a character required to be filed as an exhibit
to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which is not filed or
described as required.
(viii) There are no legal or governmental
proceedings pending to which the Seller or the Servicer is a
party or of which any property of the Seller or the Servicer is
the subject, and no such proceedings are known by such counsel to
be threatened or contemplated by governmental authorities or
threatened by others, (A) (whether individually or in the
aggregate) that are required to be disclosed in the Registration
Statement or (B)(1) asserting the invalidity of all or part of
any Basic Document, (2) seeking to prevent the issuance of the
Notes, (3) (whether individually or in the aggregate) that would
materially and adversely affect the Seller's or the Servicer's
obligations under any Basic Document to which it is a party, or
(4) (whether individually or in the aggregate) seeking to affect
adversely the federal or state income tax attributes of the
Notes.
(ix) The Servicer has corporate power and authority
to sell and assign the property to be sold and assigned to the
Seller pursuant to the Purchase Agreement and has duly authorized
such sale and assignment to the Seller by all necessary corporate
action.
(x) The Seller has corporate power and authority to
sell and assign the property to be sold and assigned to and
deposited with the Trust and has duly authorized such sale and
assignment to the Trust by all necessary corporate action.
(xi) 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.
(xii) 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 Receivables are "tangible chattel paper"
as defined in the Uniform Commercial Code, as in effect in the
State of California.
(viii) For federal income tax purposes the Notes
will be characterized as debt, and the Trust will not be
classified as an association taxable as a corporation or as a
publicly traded partnership for federal or California income and
franchise tax purposes.
(ix) The statements in the Prospectus Supplement
under "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.
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, counsel to the Underwriters, dated the
Closing Date, with respect to the validity of the Notes and such other
related matters as the Representative shall require, and the Seller
shall have furnished or caused to be furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(j) You shall have received an opinion addressed to you,
the Seller and the Servicer of Xxxxxxxx, Xxxxxx & Finger, counsel to the
Trust and the Owner Trustee, dated the Closing Date and satisfactory in
form and substance to the Representative and its counsel, to the effect
that:
(i) The Owner Trustee is a banking corporation duly
incorporated, validly existing and in good standing under the
laws of the State of Delaware with power and authority (corporate
and other) to own its properties and conduct its business, as
presently conducted by it, and to enter into and perform its
obligations under the Trust Agreement.
(ii) The Trust Agreement has been duly authorized,
executed and delivered by the Owner Trustee, and, assuming that
such agreement is a legally effective and enforceable obligation
of each of the other parties thereto, constitutes the legal,
valid and binding agreement of the Owner Trustee, enforceable
against the Owner Trustee in accordance with its terms, except as
the enforceability thereof may be (a) limited by bankruptcy,
insolvency, reorganization, moratorium, liquidation or other
similar laws affecting the enforceability of creditors' rights
generally and (b) subject to general principles of equity
(regardless of whether considered in proceedings in equity or at
law) as well as concepts of reasonableness, good faith and fair
dealing.
18
(iii) The Notes have been duly authorized, executed
and delivered by Wilmington Trust Company, as Owner Trustee under
the Trust Agreement.
(iv) Neither the execution nor delivery by the
Owner Trustee of the Trust Agreement nor the consummation of any
of the transactions by the Owner Trustee contemplated thereby
requires the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action with respect
to, any governmental authority or agency under any existing
federal or Delaware state law governing the banking or trust
powers of the Owner Trustee.
(v) The Trust has been duly formed and is validly
existing as a statutory business trust and is in good standing
under the laws of the state of Delaware, with full power and
authority to execute, deliver and perform its obligations under
the Indenture and the Basic Documents to which it is a party and
the Notes.
(vi) The execution and delivery by the Owner
Trustee of the Trust Agreement and the performance by the Owner
Trustee of its obligations thereunder, do not conflict with,
result in a breach or violation of or constitute a default under
the Articles of Association or Bylaws of the Owner Trustee.
(vii) The Trust will not be subject to tax by the
state of Delaware, and subsequent purchases not otherwise subject
to taxation in Delaware will not be subject to taxation in
Delaware solely because of the purchase or ownership of the
Notes.
(viii) (A) The financing statement on form UCC-1,
naming NARC II as debtor and the Trust as secured party, to be
filed with the Delaware Secretary of State (Uniform Commercial
Code Section) ("the Division") is in an appropriate form for
filing in the State of Delaware. (B) To the extent that Article 9
of the Uniform Commercial Code as in effect in the State of
Delaware (the "Delaware UCC") is applicable (without regard to
conflict of laws principles), upon the filing of such financing
statement with the Division, the Trust will have a perfected
security interest in NARC II's rights in that portion of the
Receivables that may be perfected by the filing of a UCC
financing statement with the Division (the "Filing Collateral")
and the proceeds thereof (as defined in Section 9-102(a)(64) of
the Delaware UCC). (C) The certified copy of the Certificate of
Request (the "Search Report") obtained from the Division,
reflecting the results of a Uniform Commercial Code search in the
office of the Secretary of State against NARC II, listing all
currently effective financing statements filed against NARC II as
of the date and time set forth therein (the "Effective Time"),
sets forth the proper filing office and the proper debtor
necessary to identify those Persons who under the Delaware UCC
have on file financing statements against NARC II covering the
Filing Collateral, as of the Effective Time. The Search Report
identifies each secured party who has filed with the Division a
financing statement naming NARC II as debtor prior to the
Effective Date.
19
(k) You shall have received an opinion of counsel to the
Indenture Trustee, dated the Closing Date and satisfactory in form and
substance to the Representative and its counsel, to the effect that:
(i) The Indenture Trustee has been duly organized
as a national banking association and is validly existing as a
national banking association in good standing under the laws of
the United States of America.
(ii) The Indenture Trustee has the requisite power
and authority to execute, deliver and perform its obligations
under the Indenture and has taken all action necessary to
authorize the execution, delivery and performance by it of the
Indenture.
(iii) The Indenture has been duly executed and
delivered by the Indenture Trustee and constitutes a legal, valid
and binding obligation of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(l) The Representative shall have received an officer's
certificate dated the Closing Date of the Chairman of the Board, the
President or any Vice President and by a principal financial or
accounting officer of each of the Seller and the Servicer in which each
such officer shall state that, to the best of such officer's knowledge
after reasonable investigation, the representations and warranties of
the Seller or the Servicer, as applicable, contained in the Sale and
Servicing Agreement and the representations and warranties of the
Servicer or the Seller, as applicable, contained in the Purchase
Agreement are true and correct in all material respects and that the
Seller or the Servicer, as applicable, has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied
under such agreements at or prior to the Closing Date in all material
respects.
(m) The Notes shall have been rated in the highest rating
category by Xxxxx'x and S&P.
(n) On or prior to the Closing Date, the Seller shall have
furnished to the Representative such further certificates and documents
as the Representative shall reasonably have required.
7. Indemnification and Contribution.
(a) The Seller and the Servicer shall, jointly and
severally, indemnify and hold each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of
the Act or Section 20 of the Securities Exchange Act of 1934, as amended
(each a "Control Person"), harmless against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or Control
Person may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or
20
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Term Sheet, the
Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter and Control Person for
any legal or other expenses reasonably incurred by such Underwriter or
Control Person in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither the Seller nor the Servicer will be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with information
furnished to the Seller or the Servicer by any Underwriter through the
Representative specified in the last sentence of subsection (b) below
specifically for use therein; provided, further, that neither the Seller
nor the Servicer shall be liable under this subsection (a) to any
Underwriter to the extent that such losses, claims, damages or
liabilities arise out of or are based upon an untrue statement or
omission made in the Term Sheet that is subsequently corrected in the
Prospectus (or any amendment or supplement thereto) made available to
such Underwriter within a reasonable time period, if the person
asserting such loss, claim, damage or liability was not sent or given
the Prospectus, as then amended or supplemented (excluding documents
incorporated by reference therein), on or prior to the confirmation of
the sale of the Notes; and provided, further, that neither the Seller
nor the Servicer shall be liable to any Underwriter or any Control
Person under the indemnity agreement in this subsection (a) with respect
to any of such documents to the extent that any such loss, claim, damage
or liability of such Underwriter or such Control Person results from the
fact that such Underwriter sold Notes to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference therein),
whichever is most recent, if the Seller or the Servicer has previously
furnished copies thereof to such Underwriter within a reasonable time
period.
(b) Each Underwriter shall, severally and not jointly,
indemnify and hold harmless the Seller and the Servicer against any
losses, claims, damages or liabilities to which the Seller or the
Servicer may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement,
the Prospectus or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished to the Seller or the Servicer by such Underwriter through the
Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Seller or the
Servicer in connection with investigating or
21
defending any such action or claim as such expenses are incurred. The
Seller and the Servicer acknowledge and agree that the only such
information furnished to the Seller or the Servicer by any Underwriter
through the Representative consists of the following: the statements in
the second and fourth paragraphs (concerning initial offering prices,
concessions and reallowances) and in the sixth and seventh paragraphs
(concerning stabilizing and other activities) under the heading
"Underwriting" in the Prospectus Supplement.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such
person (the "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party") in
writing of the commencement thereof, but the omission to so notify the
Indemnifying Party will not relieve it from any liability which it may
have to any Indemnified Party otherwise than under such preceding
paragraphs, and with respect to such preceding paragraphs, any such
omission shall not relieve it from any liability except to the extent it
has been materially prejudiced by such omission. In case any such action
is brought against any Indemnified Party and it notifies the
Indemnifying Party of the commencement thereof, the Indemnifying Party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other Indemnifying Party similarly notified, to
assume the defense thereof, with counsel satisfactory to such
Indemnified Party (who may be counsel to the Indemnifying Party) and
after notice from the Indemnifying Party to such Indemnified Party of
its election so to assume the defense thereof and after acceptance of
counsel by the Indemnified Party, the Indemnifying Party will not be
liable to such Indemnified Party under this Section for any legal or
other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof other than reasonable costs of
investigation. In any such proceeding, any Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed
to the contrary, (ii) the Indemnified Party has reasonably concluded
(based upon advice of counsel to the Indemnified Party) that there may
be legal defenses available to it or other Indemnified Parties that are
different from or in addition to those available to the Indemnifying
Party, (iii) a conflict or potential conflict exists (based upon advice
of counsel to the Indemnified Party) between the Indemnified Party and
the Indemnifying Party (in which case the Indemnifying Party will not
have the right to direct the defense of such action on behalf of the
Indemnified Party) or (iv) the Indemnifying Party has elected to assume
the defense of such proceeding but has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Party. The
Indemnifying Party shall not, with respect to any action brought against
any Indemnified Party, be liable for the fees and expenses of more than
one firm (in addition to any local counsel) for all Indemnified Parties,
and all such fees and expenses shall be reimbursed within a reasonable
period of time as they are incurred. Any separate firm appointed for the
Underwriters and any Control Person in accordance with this subsection
(c) shall be designated in writing by the Representative, and any such
separate firm appointed for the Seller or the Servicer, its respective
directors, officers who sign the Registration Statement and Control
Persons in
22
accordance with this subsection (c) shall be designated in writing by
the Seller or the Servicer, as the case may be. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent, with
respect to an action of which the Indemnifying Party was notified and
had the opportunity to participate in (whether or not it chose to so
participate), the Indemnifying Party agrees to indemnify any Indemnified
Party from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
Indemnified Party shall have requested an Indemnifying Party to
reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by the fourth sentence of this paragraph, the Indemnifying
Party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 60 days after receipt by such Indemnifying
Party of the aforesaid request, and during such 60 day period the
Indemnifying Party has not responded thereto, and (ii) such Indemnifying
Party shall not have reimbursed the Indemnified Party in accordance with
such request prior to the date of such settlement. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an Indemnified Party under
subsection (a) or (b) above, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above in such proportion as is appropriate to
reflect the relative benefits received by the Seller and the Servicer on
the one hand and the Underwriters on the other from the offering of the
Notes. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, then each Indemnifying
Party shall contribute to such amount paid or payable by such
Indemnified Party in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Seller
and the Servicer on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant
equitable considerations. The relative benefits received by the Seller
and the Servicer on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion that the total net proceeds from
the offering (before deducting expenses) received by the Seller and the
Servicer bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Seller or
the Servicer or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Seller, the Servicer and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable
23
considerations referred to above in this subsection (d). The amount paid
by an Indemnified Party as a result of the losses, claims, damages or
liabilities referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Seller and the Servicer under
this Section shall be in addition to any liability which the Seller or
the Servicer may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each director of the Seller or the
Servicer, to each officer of the Seller or Servicer who has signed the
Registration Statement and to each person, if any, who controls the
Seller or the Servicer within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller, the Servicer or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation or statement as to the results
thereof made by or on behalf of any Underwriter, the Seller or the Servicer or
any of their respective representatives, officers or directors or any Control
Person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated pursuant to Section 9 or if for any reason the purchase
of the Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5, and the respective obligations of the Seller and the Underwriters pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9, the Seller will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Notes.
9. Failure to Purchase the Notes. If any Underwriter or
Underwriters default on their obligations to purchase Notes hereunder and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of such Notes, the Representative may make arrangements
satisfactory to the Seller for the purchase of such Notes by other persons,
including the nondefaulting Underwriter or Underwriters, but if no such
arrangements are made by the
24
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 agreed but failed to purchase. If any
Underwriter or Underwriters so default and the aggregate principal amount of
Notes with respect to which such default or defaults occur exceeds 10% of the
total principal amount of Notes, as applicable, and arrangements satisfactory to
the nondefaulting Underwriter or Underwriters and the Seller for the purchase of
such Notes by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Seller, except as provided in Section 8.
As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter or Underwriters from liability for its default.
10. Notices. All communications hereunder will be in writing and,
if sent to the Representative or the Underwriters will be mailed, delivered or
sent by facsimile transmission and confirmed to Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx
Xxxxxx (facsimile number 212-761-0782) with a copy to Xxxxxxxx Xxxxx, 0000
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxx Xxxxx (facsimile
number 000-000-0000; and if sent to the Seller, will be mailed, delivered or
sent by facsimile transmission and confirmed to it at Nissan Auto Receivables
Corporation II, 000 Xxxx 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000-10l9,
attention of the Assistant Secretary (facsimile number (000) 000-0000).
11. No Bankruptcy Petition. Each Underwriter agrees that, prior
to the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the Underwriters and the Seller and their respective successors
and the officers and directors and Control Persons referred to in Section 7, and
no other person will have any right or obligations hereunder.
13. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with the transactions described in
this Agreement, and any action taken by the Representative under this Agreement
will be binding upon all the Underwriters.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York).
25
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.
26
If the foregoing is in accordance with your understanding, please
sign and return to us a counterpart hereof, whereupon it will become a binding
agreement between the Seller and the several Underwriters in accordance with its
terms.
Very truly yours,
NISSAN AUTO RECEIVABLES
CORPORATION II
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
NISSAN MOTOR ACCEPTANCE
CORPORATION
By: /s/ Xxxxxxx Xxxxx
------------------------------
Name: Xxxxxxx Xxxxx
Title: President
S-1
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxx X. Friend
------------------------------
Name: Xxxxxx X. Friend
Title: Managing Director
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
Xxxxxx Xxxxxxx & Co. Incorporated $ 51,500,000 $ 28,000,000 $ 70,500,000 $ 30,266,000
ABN AMRO Incorporated $ 51,300,000 $ 27,600,000 $ 70,500,000 $ 29,800,000
X.X. Xxxxxx Securities Inc. $ 51,300,000 $ 27,600,000 $ 70,500,000 $ 29,800,000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $ 51,300,000 $ 27,600,000 $ 70,500,000 $ 29,800,000
Xxxxxxx Xxxxx Xxxxxx Inc. $ 51,300,000 $ 27,600,000 $ 70,500,000 $ 29,800,000
XX Xxxxx Securities Corporation $ 51,300,000 $ 27,600,000 $ 70,500,000 $ 29,800,000
The Xxxxxxxx Capital Group, L.P. $ 8,000,000 $ 4,000,000 $ 12,000,000 $ 4,000,000
Total $ 316,000,000 $170,000,000 $ 435,000,000 $ 183,266,000
Section 1-1
PAGE
1. Introductory........................................................................1
2. Representations and Warranties of the Seller and the Servicer.......................2
3. Xxxxxxxx, Sale and Delivery of Notes................................................6
4. Offering by Underwriters............................................................7
5. Covenants of the Seller.............................................................7
6. Conditions of the Obligations of the Underwriters...................................9
7. Indemnification and Contribution...................................................20
8. Survival of Certain Representations and Obligations................................24
9. Failure to Purchase the Notes......................................................24
10. Notices............................................................................25
11. No Bankruptcy Petition.............................................................25
12. Successors.........................................................................25
13. Representation of Underwriters.....................................................25
14. Applicable Law.....................................................................25
15. Counterparts.......................................................................25
SCHEDULE 1..................................................................................1
-i-
Schedule 1-1
