EXHIBIT 1.1
NISSAN AUTO RECEIVABLES 2003-B OWNER TRUST
$333,000,000, 1.16875% ASSET BACKED NOTES, CLASS A-1
$222,000,000, 1.20000% ASSET BACKED NOTES, CLASS A-2
$450,000,000, 1.51000% ASSET BACKED NOTES, CLASS A-3
$219,400,000, 2.05000% ASSET BACKED NOTES, CLASS A-4
NISSAN AUTO RECEIVABLES CORPORATION II
(SELLER)
June 5, 2003
Underwriting Agreement
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
As Representative of the
Several Underwriters (the "Representative")
4 World Financial Center, 10th Floor
New York, NY 10080
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 $333,000,000 principal amount of 1.16875% Asset Backed Notes,
Class A-1 (the "Class A-1 Notes"), $222,000,000 principal amount of 1.20000%
Asset Backed Notes, Class A-2 (the "Class A-2 Notes"), $450,000,000 principal
amount of 1.51000% Asset Backed Notes, Class A-3 (the "Class A-3 Notes"), and
$219,400,000 principal amount of 2.05000% Asset Backed Notes, Class A-4 (the
"Class A-4 Notes" and, together with the Class A-1 Notes, the Class A-2 Notes
and the Class A-3 Notes, the "Notes"), each issued by the Nissan Auto
Receivables 2003-B Owner Trust (the "Trust"). The Notes will be issued pursuant
to an indenture (the "Indenture"), to be dated as of June 17, 2003, between the
Trust and the Indenture Trustee (as defined therein) and will be governed by the
terms of a Sale and Servicing Agreement (the "Sale and Servicing Agreement"), to
be dated as of June 17, 2003, among the Trust, the Seller and the Servicer. The
Trust will also issue certain asset backed certificates which will represent
fractional undivided interests in the Trust and will not be sold hereunder.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings given them in the Sale and Servicing Agreement.
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2. Representations and Warranties of the Seller and the
Servicer. Each of the Seller and the Servicer, jointly and severally, represents
and warrants to and agrees with the several underwriters named in Schedule 1
hereto (the "Underwriters") that:
(a) A registration statement (No. 333-87970),
including a form of prospectus supplement relating to the Notes and a
form of base prospectus relating to each class of securities to be
registered under such registration statement (the "Registered
Securities"), has been filed on Form S-3 with the Securities and
Exchange Commission (the "Commission") and either (i) has been declared
effective under the Securities Act of 1933, as amended (the "Act"), and
is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "initial registration statement") has been declared effective,
either (i) any additional registration statement (the "additional
registration statement") relating to the Notes has been filed with the
Commission pursuant to rule 462(b) ("Rule 462(b)") under the Act and
declared effective upon filing, and the Notes have been registered
under the Act pursuant to the initial registration statement and such
additional registration statement or (ii) any such additional
registration statement proposed to be filed with the Commission
pursuant to Rule 462(b) will become effective upon filing pursuant to
Rule 462(b) and upon such filing the Notes will have been duly
registered under the Act pursuant to the initial registration statement
and such additional registration statement. If the Seller does not
propose to amend the initial registration statement, any such
additional registration statement or any post-effective amendment to
either such registration statement filed with the Commission prior to
the execution and delivery of this Agreement, then the most recent
amendment (if any) to each such registration statement has been
declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) under the Act ("Rule 462(c)") or Rule
462(b).
For purposes of this Agreement, "Effective Time" with respect
to the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional registration
statement means (A) if the Seller has advised the Representative that
it does not propose to amend such registration statement, the date and
time as of which such registration statement, or the most recent
post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
or (B) if the Seller has advised the Representative that it proposes to
file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement as
amended by such amendment or post-effective amendment, as the case may
be, is declared effective by the Commission. If the Seller has advised
the Representative that it proposes to file, but has not filed, an
additional registration statement, "Effective Time" with respect to
such additional registration statement means the date and time as of
which such registration statement is filed and becomes effective
pursuant to Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration statement (if
any) means the date of the Effective Time thereof.
The initial registration statement and all amendments and
supplements thereto, as amended at its Effective Time, including all
information (A) contained in the additional
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registration statement (if any), (B) deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement (if any) pursuant to the General Instructions of
the Form on which it is filed and (C) deemed to be a part of the
initial registration statement as of its Effective Time pursuant to
Rule 430A(b) under the Act ("Rule 430A(b)"), is hereinafter referred to
as the "Initial Registration Statement." The additional registration
statement and all amendments and supplements thereto, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and deemed to be a part of
the additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the "Additional
Registration Statement." The Initial Registration Statement and the
Additional Registration Statement are hereinafter referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement." The form of prospectus supplement relating to
the Notes (the "Prospectus Supplement") and the form of prospectus (the
"Base Prospectus") relating to the Registered Securities (including the
Notes), as first filed with the Commission in connection with the
offering and sale of the Notes pursuant to and in accordance with Rule
424(b) under the Act ("Rule 424(b)") or, if no such filing is required,
as included in a Registration Statement, including all material
incorporated by reference in such prospectus, is hereinafter referred
to as the "Prospectus." The Seller filed a Term Sheet, dated June 3,
2003, relating to the Notes (the "Term Sheet") disseminated by the
Underwriters on Form 8-K with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), within two
business days of its delivery to the Underwriters.
(b) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and delivery
of this Agreement, each such Registration Statement conformed, (B) on
the date of this Agreement, each such Registration Statement conforms
and (C) on any related Effective Date subsequent to the date of this
Agreement, each such Registration Statement will conform, in all
respects to the requirements of the Act and the rules and regulations
of the Commission (the "Rules and Regulations") and the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and at such times each such
Registration Statement, as amended, did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time of filing of the Prospectus
pursuant to Rule 424(b) or, if no such filing is required, at the
Effective Date of the Additional Registration Statement that includes
the Prospectus, on the date of this Agreement and at the Closing Date,
the Prospectus will conform, in all respects to the requirements of the
Act and the Rules and Regulations, and does not include, and will not
include, any untrue statement of a material fact, nor does the
Prospectus omit, nor will it omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. The two preceding sentences do not apply to statements in
or omissions from the Registration Statement or Prospectus based upon
written information furnished to the Seller by any Underwriter through
the Representative specifically for use therein or to that part of the
Registration Statement which constitutes the Statement of Qualification
under the 1939 Act on Form T-1 (the "Form T-1") of the Indenture
Trustee (which will be represented and warranted to by the Indenture
Trustee). If the Effective Time of the Registration Statement is
subsequent to
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the date of this Agreement, no Additional Registration Statement has
been or will be filed. The Indenture has been qualified under the 1939
Act.
(c) The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except where the failure to
be in good standing would not have a material adverse effect on the
Seller's ability to perform its obligations under this Agreement, the
Trust Agreement, the Purchase Agreement, the Assignment, the Sale and
Servicing Agreement, the Yield Supplement Agreement, the Securities
Account Control Agreement or the Administration Agreement
(collectively, the "Basic Documents").
(d) The Servicer has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of California with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except where the failure to
be in good standing would not have a material adverse effect on the
Servicer's ability to perform its obligations under the Basic
Documents.
(e) The consummation of the transactions contemplated
by the Basic Documents, and the fulfillment of the terms thereof, will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the creation
of any lien, charge, or encumbrance upon any of the property or assets
of the Seller or the Servicer pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement, or similar agreement or instrument under which the Seller or
the Servicer is a debtor or guarantor, except where such conflict,
breach, default or creation would not have a material adverse effect on
the Seller's or the Servicer's respective ability to perform its
obligations under the Basic Documents or the validity or enforceability
thereof.
(f) No consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is required to
be obtained or made by the Seller or the Servicer for the consummation
of the transactions contemplated by this Agreement except such as have
been obtained and made under the Act, such as may be required under
state securities laws and the filing of any financing statements
required to perfect the Trust's interest in the Receivables.
(g) Neither the Seller nor the Servicer is in
violation of its certificate of incorporation or articles of
incorporation, as applicable, or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or instrument to which it is a
party or by which it or its properties are bound which would have a
material adverse effect on the transactions contemplated herein or on
the Seller's or the Servicer's respective ability to perform its
obligations
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under the Basic Documents. The execution, delivery and performance of
the Basic Documents and the issuance and sale of the Notes and
compliance with the terms and provisions thereof will not, subject to
obtaining any consents or approvals as may be required under the
securities or "blue sky" laws of various jurisdictions: (i) result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court having jurisdiction over
the Seller or the Servicer or their respective properties or any
agreement or instrument to which either is a party or by which either
is bound or to which any of their respective properties are subject,
except where such breach, violation, or default would not have a
material adverse effect on the Seller's or the Servicer's respective
ability to perform its obligations under the Basic Documents or the
validity or enforceability thereof, or (ii) conflict with the Seller's
or the Servicer's charter or by-laws, and each of the Seller and the
Servicer has corporate power and authority to enter into the Basic
Documents and to consummate the transactions contemplated hereby and
thereby.
(h) The Basic Documents have been duly authorized,
executed and delivered by, and (assuming due authorization and delivery
thereof by the other parties hereto and thereto) constitute valid and
binding obligations of, the Seller and the Servicer, as applicable,
enforceable against such party in accordance with their respective
terms, except as limited by bankruptcy, insolvency, reorganization or
other similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding
in equity or at law.
(i) The Notes have been duly authorized and, when
executed and delivered in accordance with the Indenture and delivered
against payment therefor pursuant to this Agreement, will be valid and
binding obligations of the Trust, enforceable against the Trust in
accordance with their respective terms, except as limited by
bankruptcy, insolvency, reorganization or other similar laws relating
to or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
(j) There are no legal or governmental proceedings
pending to which the Seller or the Servicer is a party or of which any
property of the Seller or the Servicer is the subject, and to the
Seller's knowledge no such proceedings are threatened or contemplated
by governmental authorities or threatened by others, (A) (whether
individually or in the aggregate) that are required to be disclosed in
the Registration Statement or (B)(1) asserting the invalidity of all or
part of any Basic Document, (2) seeking to prevent the issuance of the
Notes, (3) (whether individually or in the aggregate) that would
materially and adversely affect the Seller's or the Servicer's
obligations under any Basic Document to which it is a party, or (4)
(whether individually or in the aggregate) seeking to affect adversely
the federal or state income tax attributes of the Notes.
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(k) Any taxes, fees and other governmental charges
that have been assessed and are known to the Seller to be due in
connection with the execution, delivery and issuance of the Basic
Documents shall have been paid by the Seller or the Servicer at or
prior to the Closing Date (as defined in Section 3(c) hereof).
(l) Each of the Seller and the Servicer possesses all
material licenses, certificates, authorizations or permits issued by
the appropriate state, federal or foreign regulatory agencies or
bodies, the absence of which would have a material adverse effect on
the ability of the Seller or the Servicer to perform its duties under
the Sale and Servicing Agreement, and neither of the Seller or Servicer
has received notice of proceedings relating to the revocation or
modification of any such license, certificate, authorization or permit
which, singly or in the aggregate, if the subject of any unfavorable
decision, ruling or finding, would materially and adversely affect the
ability of the Seller or the Servicer to perform its obligations under
the Basic Documents.
(m) As of the Closing Date, the Reserve Account and
the Yield Supplement Account will be subject to a first-priority
security interest in favor of the Indenture Trustee for the benefit of
the Noteholders.
(n) As of the Closing Date, the Trust (for the
benefit of the Noteholders) will have good title, free and clear of all
prior liens, charges and encumbrances, to the Receivables and such
other items comprising the corpus of the Trust transferred to the Trust
pursuant to the Sale and Servicing Agreement.
(o) As of the Closing Date, the Indenture, the Notes
and the Basic Documents will conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
(p) Deloitte & Touche LLP are independent public
accountants with respect to the Seller within the meaning of the Act
and the Rules and Regulations.
(q) Neither the Trust nor the Seller is required to
be registered as an "investment company" under the Investment Company
Act of 1940, as amended.
(r) The representations and warranties of the Seller
and the Servicer in the Sale and Servicing Agreement are true and
correct in all material respects.
3. Purchase, Sale and Delivery of Notes.
(a) On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, the Seller agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Seller, the aggregate principal amounts of the Notes
set forth opposite the names of the Underwriters in Schedule 1 hereto.
(b) The Notes are to be purchased at a purchase price
equal to (i) in the case of the Class A-1 Notes, 99.89000% of the
aggregate principal amount thereof, (ii) in the case of the Class A-2
Notes, 99.83307% of the aggregate principal amount thereof,
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(iii) in the case of the Class A-3 Notes, 99.79062% of the aggregate
principal amount thereof, and (iv) in the case of the Class A-4 Notes,
99.75926% 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 & ▇▇▇▇▇ LLP, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, on June 17, 2003, at 10:00 a.m., Los
Angeles time, or at such other time not later than seven full business
days thereafter as the Representative and the Seller determine, such
time being herein referred to as the "Closing Date." The Notes to be so
delivered will be initially represented by one or more securities
registered in the name of Cede & Co., the nominee of The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Notes
will be represented by book entries on the records of DTC and
participating members thereof. Definitive securities will be available
only under the limited circumstances set forth in the Indenture.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Notes for sale to the public as set
forth in the Prospectus.
5. Covenants of the Seller. The Seller covenants and
agrees with the several Underwriters that:
(a) If the Effective Time is prior to the execution
and delivery of this Agreement, the Seller will file the Prospectus
with the Commission pursuant to and in accordance with Rule 424(b) not
later than the second business day following the execution and delivery
of this Agreement. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an Additional Registration Statement is necessary to register a portion
of the Notes under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Seller will file the
Additional Registration Statement or a post-effective amendment
thereto, as the case may be, with the Commission pursuant to and in
accordance with Rule 424(b). The Seller will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative
promptly of any proposal to amend or supplement the registration
statement as filed or the related prospectus or the Registration
Statement or the Prospectus, and will not effect such amendment or
supplementation without the Representative's consent; and the Seller
will also advise the Representative promptly of the effectiveness of
the Registration Statement (if the Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of the Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to lift such stop order
as soon as possible, if issued.
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(c) The Seller will arrange for the qualification of
the Notes for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and to continue such qualifications in effect so long as
necessary under such laws for the distribution of such securities;
provided that in connection therewith the Seller shall not be required
to qualify as a foreign corporation to do business, or to file a
general consent to service of process, in any jurisdiction.
(d) If, at any time when the delivery of a prospectus
shall be required by law in connection with sales of any Notes, either
(i) any event shall have occurred as a result of which the Prospectus
would include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or (ii) for any other reason it shall be necessary to amend
or supplement the Prospectus, the Seller will promptly notify the
Representative and will promptly prepare for review by the
Representative and file with the Commission an amendment or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance. Neither your consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(e) The Seller will cause the Trust to make generally
available to Holders as soon as practicable, but not later than
fourteen months after the Effective Date, an earnings statement of the
Trust covering a period of at least twelve consecutive months beginning
after such Effective Date and satisfying the provisions of Section
11(a) of the Act (including Rule 158 promulgated thereunder).
(f) The Seller will furnish to the Representative
copies of the Registration Statement (which will include all exhibits),
the Form 8-K relating to the Term Sheet, the related preliminary
prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
the Representative may from time to time reasonably request.
(g) So long as any of the Notes are outstanding, the
Seller will furnish to the Representative copies of all reports or
other communications (financial or otherwise) furnished to Holders, and
deliver to the Representative during such same period (i) as soon as
they are available, copies of any reports and financial statements
furnished to or filed with the Commission and (ii) such additional
information concerning the business and financial condition of the
Seller and the Trust as the Representative may from time to time
reasonably request.
(h) The Seller will pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including (i) the printing (or otherwise reproducing) and
filing of the Registration Statement as originally filed and of each
amendment thereto; (ii) the preparation, issuance and delivery of the
Notes to the Underwriters; (iii) the fees and disbursements of the
Seller's and the Servicer's counsel and accountants; (iv) the fees of
DTC in connection with the book-entry registration of the Notes; (v)
the qualification of the Notes under state securities law in accordance
with the provisions of Section 5(c) hereof, including filing fees and
the fees and disbursements
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of counsel for the Underwriters in connection therewith and in
connection with the preparation of the blue sky survey, if required;
(vi) the printing (or otherwise reproducing) and delivery to the
Underwriters of copies of each preliminary prospectus and the
Prospectus and any amendments or supplements thereto; (vii) the
reproducing and delivery to the Underwriters of copies of the blue sky
survey; and (viii) the fees charged by ▇▇▇▇▇'▇ Investors Service, Inc.
("Moody's") and Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ 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 reasonable judgment of the
Representative, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Notes.
(f) ▇▇▇ ▇▇▇▇▇, 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) The Seller has duly authorized and
executed the written order to the Owner Trustee to execute and
deliver the issuer order to the Indenture Trustee to
authenticate the Notes.
(xii) Such counsel is familiar with the
Servicer's standard operating procedures relating to the
Servicer's acquisition of a perfected first priority security
interest in the vehicles financed by the retail installment
sale contracts purchased by the Servicer in the ordinary
course of the Servicer's business and relating to the sale by
the Servicer to the Seller of such contracts and such security
interests in the Financed Vehicles in the ordinary course of
the Servicer's and the Seller's business. Assuming that the
Servicer's standard procedures are followed with respect to
the perfection of security interests in the
13
Financed Vehicles (and such counsel has no reason to believe
that the Servicer has not or will not continue to follow its
standard procedures in connection with the perfection of
security interests in the Financed Vehicles), the Servicer has
acquired or will acquire a perfected first priority security
interest in the Financed Vehicles.
(xiii) Each of the Seller and the Servicer
has obtained all necessary governmental licenses and
governmental approvals under the federal law of the United
States and the laws of the State of California to conduct
their respective businesses where the failure to obtain such
licenses and approvals would render any material part of the
corpus of the Trust unenforceable or would materially and
adversely affect the ability of either the Seller or the
Servicer to perform any of their respective obligations under,
or the enforceability of, any of the Basic Documents.
(g) O'Melveny & ▇▇▇▇▇ LLP, special counsel to the
Seller, shall have furnished to the Representative their written
opinion, dated as of the Closing Date, in substantially the form set
forth below, with such changes therein as counsel for the Underwriters
shall reasonably agree:
(i) Each Basic Document to which the
Seller or the Servicer is a party has been duly authorized by
all necessary corporate action on the part of such Person and
has been executed and delivered by such Person.
(ii) Assuming the due authorization,
execution and delivery thereof by the Owner Trustee and the
Indenture Trustee, each Basic Document to which the Seller or
the Servicer is a party constitutes a legally valid and
binding obligation of the Seller or the Servicer, as the case
may be, enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws now or hereafter in effect,
relating to or affecting creditors' rights generally and by
the application of general principles of equity, including
without limitation concepts of materiality, reasonableness,
good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or any other equitable
remedy (regardless of whether enforcement is considered in a
proceeding at law or in equity).
(iii) Assuming the Notes have been duly
and validly authorized, when executed and authenticated by the
Trust as specified in the Indenture and delivered against
payment of the consideration specified in this Agreement, the
Notes will be legally valid and binding obligations of the
Trust, and entitled to the benefits of the Indenture
enforceable against the Trust in accordance with their terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect, relating to or affecting creditors' rights generally
and by the application of general principles of equity,
including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive
14
relief or any other equitable remedy (regardless of whether
enforcement is considered in a proceeding at law or in
equity).
(iv) Assuming the due authorization,
execution and delivery thereof by the Trust and the Indenture
Trustee, each of the Sale and Servicing Agreement and the
Indenture constitutes the valid and binding obligation of the
Trust enforceable against the Trust in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect, relating to or affecting creditors' rights generally
and by the application of general principles of equity,
including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or
any other equitable remedy (regardless of whether enforcement
is considered in a proceeding at law or in equity).
(v) Neither the Seller nor the Trust is
required to be registered under the Investment Company Act of
1940, as amended (the "1940 Act").
(vi) With respect to Financed Vehicles
in the State of California, no filing or other action other
than (A) the filing of a UCC financing statement naming the
Servicer as transferor and the Seller as the transferee and
(B) the filing of a UCC financing statement naming the Seller
as the transferor and the Trust as the transferee, is
necessary to perfect the transfer and assignment of the
Servicer's security interest in such Financed Vehicles to the
Seller, and the Seller's security interest in such Financed
Vehicles to the Trust, respectively, and as a result of such
transfer and assignment and upon filing of such financing
statements, the Trust has a first perfected security interest
in such Financed Vehicles, except that so long as the Servicer
is named as the legal owner and lien holder on a certificate
of title, the Servicer has the ability to release the security
interest in the Financed Vehicle or to assign it to another
party.
(vii) The Receivables are "tangible
chattel paper" as defined in the Uniform Commercial Code, as
in effect in the State of California.
(viii) For federal income tax purposes the
Notes will be characterized as debt, and the Trust will not be
classified as an association taxable as a corporation or as a
publicly traded partnership for federal or California income
and franchise tax purposes.
(ix) The statements in the Prospectus
Supplement under "CERTAIN FEDERAL INCOME TAX CONSEQUENCES" and
"ERISA CONSIDERATIONS," and in the Base Prospectus under the
"CERTAIN FEDERAL INCOME TAX CONSEQUENCES," "ERISA
CONSIDERATIONS" and "MATERIAL LEGAL ASPECTS OF THE
RECEIVABLES," to the extent that they constitute matters of
law or legal conclusions relating to the federal laws of the
United States or the laws of the States of California or New
York with
15
respect thereto, have been reviewed by such counsel and are
correct in all material respects.
(x) No order, consent, permit or
approval of any California, New York or federal governmental
authority that such counsel has, in the exercise of customary
professional diligence, recognized as applicable to the
Servicer or the Seller, or to the transactions of the type
contemplated by any Basic Document, including the issuance of
the Notes, is required on the part of the Servicer or the
Seller for the execution and delivery of, and the performance
of its obligations under, any Basic Document to which it is a
party, except for such as have been obtained or made and are
in full force and effect as of the Closing Date; provided that
such counsel expresses no opinion with respect to any orders,
consents, permits, approvals, filings or licenses related to
the authority to sell motor vehicles, originate retail
installment sales contracts or service retail installment
sales contracts or as may be required by any regional or local
governmental authority or under any foreign or state
securities laws.
(xi) To such counsel's knowledge, there
are no actions, proceedings or investigations pending or
threatened, to which the Seller or the Servicer is a party or
of which any property of the Seller or the Servicer is the
subject, required to be disclosed in the Registration
Statement, other than those disclosed therein, (A) asserting
the invalidity of any Basic Document or the Notes, (B) seeking
to prevent the issuance of the Notes or the consummation of
any of the transactions contemplated by any Basic Document, or
(C) seeking adversely to affect the federal income tax
attributes of the Notes as described in the Base Prospectus
under the heading "CERTAIN FEDERAL INCOME TAX CONSEQUENCES".
(xii) At the time of execution and
delivery of (A) the Purchase Agreement, the Servicer had the
corporate power and corporate authority to transfer the
Receivables and such other property being transferred to the
Seller pursuant to the Purchase Agreement and (B) the Sale and
Servicing Agreement, the Seller had the corporate power and
corporate authority to transfer the Receivables and such other
property being transferred to the Trust pursuant to the Sale
and Servicing Agreement and to cause the transfer of the Notes
to the Underwriters.
(xiii) The Indenture, the Notes and the
Basic Documents each conform in all material respects with the
respective descriptions thereof contained in the Registration
Statement and the Prospectus.
(xiv) Neither the Trust Agreement nor the
Sale and Servicing Agreement needs to be qualified under the
1939 Act.
(xv) The Registration Statement filed
with the Commission has been declared effective under the Act,
and, to such counsel's knowledge upon due inquiry, no stop
order suspending the effectiveness of the Registration
Statement
16
has been issued under the Act or proceedings therefor
initiated or threatened by the Commission, and the
Registration Statement and Prospectus, and each amendment or
supplement thereto, as of its respective effective or issue
date, appeared on its face to be appropriately responsive in
all material respects to the applicable requirements of the
Act and the Rules and Regulations, except that such counsel
does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except as
contemplated by paragraphs (viii) and (xiii) of this Section
to the extent set forth therein; such counsel does not opine
as to any financial statements or other financial, numerical
or statistical data contained or incorporated by reference
therein; and such counsel does not opine as to the Form T-1.
(xvi) The form of the Indenture has been
qualified under the 1939 Act and no further action is required
to qualify the Indenture under the 1939 Act. The Indenture
complies as to form in all material respects with the 1939 Act
and the rules and regulations of the Commission thereunder.
(xvii) Each Class A-1 Note, when issued,
will constitute an "Eligible Security" under Rule 2a-7 of the
1940 Act.
In addition, such counsel shall state that such
counsel has participated in conferences with the officers and other
representatives of the Seller and the Servicer, representatives of
their independent public accountants, and representatives of the
Underwriters and their counsel, at which the contents of the
Registration Statement and the Prospectus and related matters were
discussed, but has not independently verified the accuracy,
completeness or fairness of the statements contained or incorporated by
reference therein, and accordingly such counsel is unable to assume,
and does not assume, any responsibility for such accuracy, completeness
or fairness. However, on the basis of such counsel's review and
participation in conferences in connection with the preparation of the
Registration Statement and the Prospectus, and relying as to its
determination of materiality to an extent upon opinions of officers and
other representatives of the Seller and the Servicer, such counsel
shall state that it does not believe that any Registration Statement,
at the related Effective Time, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
that the Prospectus, at the date of the Prospectus Supplement (or any
such amendment or supplement, as of its respective date) contained, or
on the Closing Date contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; it being understood that such counsel
need express no opinion or belief as to the financial statements or
other financial, numerical or statistical data contained or
incorporated by reference in any Registration Statement, the Prospectus
or the Form T-1.
Such counsel's opinions as to enforceability shall be
subject to the unenforceability under certain circumstances of: (i)
waivers of rights granted by law where the waivers are against public
policy or prohibited by law; (ii) waivers of vaguely
17
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 & ▇▇▇▇▇ 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 ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & 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 purchasers not otherwise
subject to taxation in Delaware will not be subject to
taxation in Delaware solely because of the purchase or
ownership of the Notes.
(viii) (A) The financing statement on form
UCC-1, naming NARC II as debtor and the Trust as secured
party, to be filed with the Delaware Secretary of State
(Uniform Commercial Code Section) ("the Division") is in an
appropriate form for filing in the State of Delaware. (B) To
the extent that Article 9 of the Uniform Commercial Code as in
effect in the State of Delaware (the "Delaware UCC") is
applicable (without regard to conflict of laws principles),
upon the filing of such financing statement with the Division,
the Trust will have a perfected security interest in NARC II's
rights in that portion of the Receivables that may be
perfected by the filing of a UCC financing statement with the
Division (the "Filing Collateral") and the proceeds thereof
(as defined in Section 9-102(a)(64) of the Delaware UCC). (C)
The certified copy of the Certificate of Request (the "Search
Report") obtained from the Division, reflecting the results of
a Uniform Commercial Code search in the office of the
Secretary of State against NARC II, listing all currently
effective financing statements filed against NARC II as of the
date and time set forth therein (the "Effective Time"), sets
forth the proper filing office and the proper debtor necessary
to identify those Persons who under the Delaware UCC have on
file financing statements against NARC II covering the Filing
Collateral, as of the Effective Time. The Search Report
identifies each secured party who has filed with the Division
a financing statement naming NARC II as debtor prior to the
Effective Date.
19
(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 ▇▇▇▇▇'▇ 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 Closing
24
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., 4 World Financial Center, Asset Backed Finance Group - 10th Floor, New
York, NY 10080 (facsimile number (▇▇▇) ▇▇▇-▇▇▇▇); 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, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of the Assistant Secretary (facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇).
11. No Bankruptcy Petition. Each Underwriter agrees that,
prior to the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the Underwriters and the Seller and their respective
successors and the officers and directors and Control Persons referred to in
Section 7, and no other person will have any right or obligations hereunder.
13. Representation of Underwriters. The Representative
will act for the several Underwriters in connection with the transactions
described in this Agreement, and any action taken by the Representative under
this Agreement will be binding upon all the Underwriters.
14. Representation and Warranties of Underwriters. With
respect to any offers or sales of the Notes outside the United States (and
solely with respect to any such offers and sales) each Underwriter severally and
not jointly makes the following representations and warranties:
(a) Each Underwriter represents and agrees that it will
comply with all applicable laws and regulations in each jurisdiction in which it
purchases, offers or sells the Notes or possesses or distributes the Prospectus
or any other offering material and will obtain
25
any consent, approval or permission required by it for the purchase for the
purchase, offer or sale by it of Notes under the laws and regulations in force
in any jurisdiction, to which it is subject or in which it makes such purchases,
offers or sales and neither the Seller or NMAC shall have any responsibility
therefor;
(b) No action has been or will be taken by such
Underwriter that would permit public offering of the Notes or possession or
distribution of any offering material in relation to the Notes in any
jurisdiction where action for that purpose is required unless the Seller or NMAC
has agreed to such actions and such actions have been taken;
(c) Each Underwriter represents and agrees that it will
not offer, sell or deliver any of the Notes or distribute any such offering
material in or from any jurisdiction except under circumstances that will result
in compliance with applicable laws and regulations and that will not impose any
obligation on the Seller or NMAC or the Underwriters;
(d) Such Underwriter acknowledges that it is not
authorized to give any information or make any representation in relation to the
Notes other than those contained or incorporated by reference in the Prospectus
for the Notes and such additional information, if any, as the Seller or NMAC
shall, in writing, provide to and authorize such Underwriter so to use and
distribute to actual and potential purchasers of the Notes:
(e) Each Underwriter represents and agrees that it has
not offered or sold and will not offer or sell, prior to the date six months
after their date of issuance, any of the Notes to person in the United Kingdom,
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances that have not resulted in and
will not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 (as amended);
(f) Each Underwriter has complies and will comply with
all applicable provisions of the Financial Services and Markets Act 2000
("FSMA") with respect to anything done by such Underwriter in relation to the
Notes in, from or otherwise involving the United Kingdom; and
(g) Each Underwriter will only communicate or cause to be
communicated any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by it in connection with
the issue or sale of any securities in circumstances in which Section 21(1) of
the FSMA does not apply to the Seller.
15. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York).
16. Counterparts. This Agreement may be executed by each
of the parties hereto in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
26
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/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Treasurer
NISSAN MOTOR ACCEPTANCE
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
S-1
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
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
----------- --------------- --------------- --------------- ---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated $ 48,000,000 $ 31,875,000 $ 64,500,000 $ 31,600,000
ABN AMRO Incorporated $ 47,000,000 $ 31,500,000 $ 64,000,000 $ 31,000,000
Citigroup Global Markets, Inc. $ 48,000,000 $ 31,875,000 $ 64,500,000 $ 31,600,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 48,000,000 $ 31,875,000 $ 64,500,000 $ 31,600,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated $ 48,000,000 $ 31,875,000 $ 64,500,000 $ 31,600,000
▇▇ ▇▇▇▇▇ Securities Corporation $ 47,000,000 $ 31,500,000 $ 64,000,000 $ 31,000,000
The ▇▇▇▇▇▇▇▇ Capital Group, L.P. $ 47,000,000 $ 31,500,000 $ 64,000,000 $ 31,000,000
Total $333,000,000 $222,000,000 $450,000,000 $219,400,000
Schedule 1-1
TABLE OF CONTENTS
PAGE
1. Introductory................................................................ 1
2. Representations and Warranties of the Seller and the Servicer............... 2
3. ▇▇▇▇▇▇▇▇, Sale and Delivery of Notes........................................ 6
4. Offering by Underwriters.................................................... 7
5. Covenants of the Seller..................................................... 7
6. Conditions of the Obligations of the Underwriters........................... 9
7. Indemnification and Contribution............................................ 20
8. Survival of Certain Representations and Obligations......................... 24
9. Failure to Purchase the Notes............................................... 24
10. Notices..................................................................... 25
11. No Bankruptcy Petition...................................................... 25
12. Successors.................................................................. 25
13. Representation of Underwriters.............................................. 25
14. Representations and Warranties of Underwriters.............................. 25
15. Applicable Law.............................................................. 26
16. Counterparts................................................................ 26
SCHEDULE 1....................................................................... 1
-i-