EXHIBIT 1.1
$[ ], ___% ASSET BACKED NOTES, CLASS A-1
$[ ], ___% ASSET BACKED NOTES, CLASS A-2
$[ ], ___% ASSET BACKED NOTES, CLASS A-3
$[ ], ___% ASSET BACKED NOTES, CLASS B
$[ ], ___% ASSET BACKED CERTIFICATES, CLASS C
NISSAN AUTO RECEIVABLES CORPORATION II
(SELLER)
[Date]
[Names of Investment Banks]
As Representative of the
Several Underwriters (the "Representative"),
c/o [Address]
Dear Sirs:
1. Introductory. Nissan Auto Receivables Corporation II (the
"Seller" or "NARC II"), a Delaware corporation and wholly owned subsidiary of
Nissan Motor Acceptance Corporation, a California corporation (the "Servicer"),
proposes to sell $[ ] principal amount of ___% Asset Backed Notes, Class A-1
(the "Class A-1 Notes"), $[ ] principal amount of ___% Asset Backed Notes, Class
A-2 (the "Class A-2 Notes"), $[ ] principal amount of ___% Asset Backed Notes,
Class A-3 (the "Class A-3 Notes"), and $[ ] principal amount of ____% Asset
Backed Notes, Class B (the "Class B Notes" and, together with the Class A-1
Notes, the Class A-2 Notes and the Class A-3 Notes, the "Notes") and $[ ]
principal amount of ___% Asset Backed Certificates, Class C Certificates (the
"Certificates," and together with the Notes, the "Securities"). The Securities
will be issued by the Nissan Auto Receivables ____-__ Owner Trust (the "Trust").
The Notes will be issued pursuant to an indenture (the "Indenture"), to be dated
as of _______, 200_, 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 _________, 200_ among
the Trust, the Seller and the Servicer. The Trust will also issue the
Certificates which will represent fractional undivided interests in the Trust
pursuant to a Trust Agreement to be dated as of _____, 200_ (the "Trust
Agreement").
Capitalized terms used herein and not otherwise defined herein
shall have the meanings given them in the Sale and Servicing Agreement.
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 Securities and a form of
base prospectus relating to each class of securities to be registered
under such registration statement (the "Registered
Securities"), has been filed with the Securities and Exchange Commission
(the "Commission") and either (i) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed to
be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "initial
registration statement") has been declared effective, either (i) any
additional registration statement (the "additional registration
statement") relating to the Securities has been filed with the
Commission pursuant to rule 462(b) ("Rule 462(b)") under the Act and
declared effective upon filing, and the Securities 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 Securities will have been duly registered under
the Act pursuant to the initial registration statement and such
additional registration statement. If the Seller does not propose to
amend the initial registration statement, any such additional
registration statement or any post-effective amendment to either such
registration statement filed with the Commission prior to the execution
and delivery of this Agreement, then the most recent amendment (if any)
to each such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
under the Act ("Rule 462(c)") or Rule 462(b).
For purposes of this Agreement, "Effective Time" with respect to
the initial registration statement or, if filed prior to the execution
and delivery of this Agreement, the additional registration statement
means (A) if the Seller has advised the Representative that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) or (B) if the Seller has
advised the Representative that it proposes to file an amendment or
post-effective amendment to such registration statement, the date and
time as of which such registration statement as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If the Seller has advised the
Representative that it proposes to file, but has not filed, an
additional registration statement, "Effective Time" with respect to such
additional registration statement means the date and time as of which
such registration statement is filed and becomes effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof.
The initial registration statement, as amended at its Effective
Time, including all information (A) contained in the additional
registration statement (if any), (B) deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement (if any) pursuant to the General Instructions of
the Form on which it is filed and (C) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
under the Act ("Rule 430A(b)"), is hereinafter referred to as the
"Initial Registration Statement." The additional registration statement,
as amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and deemed to
be a part of the additional
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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 Securities
(the "Prospectus Supplement") and the form of prospectus (the "Base
Prospectus") relating to the Registered Securities (including the Notes
and Certificates), as first filed with the Commission in connection with
the offering and sale of the Securities 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 the Term Sheet dated
________, 200_ relating to the Securities (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.] [The Seller filed the Preliminary Prospectus dated _____,
200_ relating to the Securities (the "Preliminary Prospectus")
disseminated by the Underwriters with the Commission pursuant to the
Act.]
(b) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and delivery of
this Agreement, each such Registration Statement conformed, (B) on the
date of this Agreement, each such Registration Statement conforms and
(C) on any related Effective Date subsequent to the date of this
Agreement, each such Registration Statement will conform, in all
respects to the requirements of the Act and the rules and regulations of
the Commission (the "Rules and Regulations") and the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and at such times each such
Registration Statement, as amended, did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time of filing of the Prospectus pursuant
to Rule 424(b) or, if no such filing is required, at the Effective Date
of the Additional Registration Statement that includes the Prospectus,
on the date of this Agreement and at the Closing Date, the Prospectus
will conform, in all respects to the requirements of the Act and the
Rules and Regulations, and does not include, and will not include, any
untrue statement of a material fact, nor does the Prospectus omit, nor
will it omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. The two
preceding sentences do not apply to statements in or omissions from the
Registration Statement or Prospectus based upon written information
furnished to the Seller by any Underwriter through the Representative
specifically for use therein or to that part of the Registration
Statement which constitutes the Statement of Qualification under the
1939 Act on Form T-1 (the "Form T-1") of the Indenture Trustee. If the
Effective Time of the Registration Statement is subsequent to the date
of this Agreement, no Additional Registration Statement has been or will
be filed. The Indenture has been qualified under the 1939 Act.
(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
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jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except where the failure to be
in good standing would not have a material adverse effect on the
Seller's ability to perform its obligations under this Agreement, the
Trust Agreement, the Purchase Agreement, the Assignment, the Sale and
Servicing Agreement, [the Yield Supplement Agreement,] the Securities
Account Control Agreement or the Administration Agreement (collectively,
the "Basic Documents").
(d) The Servicer has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of California with corporate power and authority to own its properties
and conduct its business as described in the Prospectus, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership of
its property requires such qualification, except where the failure to be
in good standing would not have a material adverse effect on the
Servicer's ability to perform its obligations under the Basic Documents.
(e) The consummation of the transactions contemplated by
the Basic Documents, and the fulfillment of the terms thereof, will not
conflict with or result in a breach of any of the terms or provisions
of, or constitute a default under, or result in the creation of any
lien, charge, or encumbrance upon any of the property or assets of the
Seller or the Servicer pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement, or similar agreement or instrument under which the Seller or
the Servicer is a debtor or guarantor, except where such conflict,
breach, default or creation would not have a material adverse effect on
the Seller's or the Servicer's respective ability to perform its
obligations under the Basic Documents or the validity or enforceability
thereof.
(f) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required to be
obtained or made by the Seller or the Servicer for the consummation of
the transactions contemplated by this Agreement except such as have been
obtained and made under the Act, such as may be required under state
securities laws and the filing of any financing statements required to
perfect the Trust's interest in the Receivables.
(g) Neither the Seller nor the Servicer is in violation of
its certificate of incorporation or articles of incorporation, as
applicable, or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties are bound which would have a material adverse effect on the
transactions contemplated herein or on the Seller's or the Servicer's
respective ability to perform its obligations under the Basic Documents.
The execution, delivery and performance of the Basic Documents and the
issuance and sale of the Securities 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
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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 Securities have been duly authorized and, when
executed and delivered in accordance with the [Trust Agreement and] 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
Securities, (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 Securities.
(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
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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 holders of the Securities) 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 Securities
and the Basic Documents will conform in all material respects to the
description thereof contained in the Registration Statement and the
Prospectus.
(p) [ ] 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 the Securities.
(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 Securities set forth
opposite the names of the Underwriters in Schedule 1 hereto.
(b) The Securities are to be purchased at a purchase price
equal to (i) in the case of the Class A-1 Notes, ___% of the aggregate
principal amount thereof, (ii) in the case of the Class A-2 Notes, ___%
of the aggregate principal amount thereof, (iii) in the case of the
Class A-3 Notes, ___% of the aggregate principal amount thereof, (iv) in
the case of the Class B Notes, ___% of the aggregate principal amount
thereof, and (v) in the case of the Class C Certificates, ___% 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 Securities to the Representative, for the account of the
Underwriters, at the office of O'Melveny & Myers LLP, at 400 South Hope
Street, Los Angeles, California, on _______, 200_, at _______ a.m., Los
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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 Certificates to be so delivered will be
initially represented by one or more securities registered in the name
of Cede & Co., the nominee of DTC. The interests of beneficial owners of
the Securities 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 and the Trust Agreement.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities 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 Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Seller will file the
Additional Registration Statement or a post-effective amendment thereto,
as the case may be, with the Commission pursuant to and in accordance
with Rule 424(b). The Seller will advise the Representative promptly of
any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of
any proposal to amend or supplement the registration statement as filed
or the related prospectus or the Registration Statement or the
Prospectus, and will not effect such amendment or supplementation
without the Representative's consent; and the Seller will also advise
the Representative promptly of the effectiveness of the Registration
Statement (if the Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
the Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to lift such stop order as soon as
possible, if issued.
(c) The Seller will arrange for the qualification of the
Securities 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.
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(d) If, at any time when the delivery of a prospectus
shall be required by law in connection with sales of any Securities,
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 the consent of the Underwriters 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 Underwriters copies of
the Registration Statement (which will include all exhibits), the Form
8-K relating to [the Term Sheet,][each related preliminary prospectus,]
the Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Representative may from time to time reasonably request.
(g) So long as any of the Securities 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 Securities
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 Securities; (v) the
qualification of the Securities under state securities law in accordance
with the provisions of Section 5(c) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the blue sky survey,
if required; (vi) the printing (or otherwise reproducing) and delivery
to the Underwriters of copies of each preliminary prospectus and the
Prospectus and any amendments or supplements thereto; (vii) the
reproducing and delivery to the Underwriters of copies of the blue sky
survey; and (viii) the fees charged by Moody's Investors Service, Inc.
("Moody's") and Standard & Poor's
8
Ratings Services, a division of The McGraw-Hill Companies, Inc. ("S&P"),
for rating the Securities. The Underwriters shall not be responsible for
the fees and disbursements of the Owner Trustee and its counsel.
(i) Until the retirement of the Securities, or until such
time as the Underwriters shall cease to maintain a secondary market in
the Securities, 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 and Owner Trustee pursuant to Article IV of the Sale
and Servicing Agreement, as soon as such statements and reports are
furnished to the Indenture Trustee and Owner 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 Securities 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 Securities
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, [ ] shall have furnished to the
Representative letters dated respectively as of the date of this
Agreement and as of the Closing Date substantially in the forms of the
drafts to which the Representative previously agreed.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than [10:00 p.m., New
York time,] on the date of this Agreement or such later date as shall
have been consented to by the Representative. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not
later than [10:00 p.m., New York time,] on the date of this Agreement
or, if earlier, the time the Prospectus is printed
9
and distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by the Representative. Prior to the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the
Seller, shall be contemplated by the Commission.
(c) The Underwriters shall have received an officers'
certificate, dated the Closing Date, signed by the Chairman of the
Board, the President or any Vice President and by a principal financial
or accounting officer of the Seller representing and warranting that, to
the best of such officers' knowledge after reasonable investigation, as
of the Closing Date:
(i) The representations and warranties of the
Seller in this Agreement are true and correct in all material
respects, that the Seller has complied with all agreements and
satisfied in all material respects all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the best of their
knowledge, are contemplated by the Commission.
(ii) There has been no material adverse change,
since the respective dates as of which information is given in
the Prospectus (except as otherwise set forth therein and
exclusive of amendments or supplements after the date hereof),
in the condition, financial or otherwise, earnings or business
affairs, whether or not arising out of the ordinary course of
business, of the Seller or any of its affiliates (as such term
is defined in Rule 501(b) under the Act) (each, an "Affiliate"),
or the ability of such entity to perform its obligations under
each Basic Document to which it is a party or by which it may be
bound. Except as otherwise indicated by the context, all
references to the term "material" in this Agreement that refer
to the Seller or its Affiliates, or any of them, shall be
interpreted in proportion to the business of Nissan North
America, Inc. ("NNA") and its consolidated subsidiaries, which
include the Seller and the Servicer and the parent company of
NNA, Nissan Motor Co., Ltd. (the "Nissan Group"), as a whole,
and not in proportion to the business of the Seller or its
Affiliate(s) individually.
(d) The Underwriters shall have received an officers'
certificate, dated the Closing Date, signed by the Chairman of the
Board, the President or any Vice President and by a principal financial
or accounting officer of the Servicer representing and warranting that,
to the best of such officers' knowledge after reasonable investigation,
as of the Closing Date:
(i) The representations and warranties of the
Servicer in this Agreement are true and correct in all material
respects, that the Servicer has complied with all agreements and
satisfied, in all material respects, all conditions on its part
to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of
any Registration Statement has
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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 term "material" in this Agreement that refer
to the Servicer or its Affiliates, or any of them, shall be
interpreted in proportion to the business of NNA and its
consolidated subsidiaries and its parent company, which include
the Nissan Group, as a whole, and not in proportion to the
business of the Servicer or its Affiliate(s) individually.
(e) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting particularly
the business or properties of the Seller, Nissan Motor Co. Ltd., NNA or
the Servicer which, in the judgment of the Representative, materially
impairs the investment quality of the Securities or makes it impractical
or inadvisable to proceed with completion of the sale of and payment for
the Securities; (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
Securities.
(f) [Joy Crose,] Esq., General Counsel of the Seller, or
other counsel satisfactory to the Representative in its reasonable
judgment, shall have furnished to the Representative such counsel's
written opinion, dated the Closing Date, in substantially the form set
forth below, with such changes therein as counsel for the Underwriters
shall reasonably agree:
(i) The Seller has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware with corporate power and authority
to own its properties and conduct its business
11
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 Securities or the charter or bylaws
of the Seller or the Servicer, any statute, any rule, regulation
or order of any governmental agency or body or any court having
jurisdiction over the Seller or the Servicer or any of their
respective properties or any material agreement or instrument to
which the Seller or the Servicer is a party or by which either
the Seller or the Servicer or any of their respective properties
is bound.
(v) No authorization, approval or consent of any
court or governmental agency or authority is necessary in
connection with the execution, delivery and performance by the
Seller or the Servicer of the Basic Documents to which it is a
party, except such as may be required under the Act or the Rules
and Regulations and state securities laws, and except for such
authorizations, approvals or consents (specified in such
opinion) as are in full force and effect as of the Effective
Date and the Closing Date.
(vi) Nothing has come to such counsel's attention
that would cause it to believe that as of the Effective Date and
at the Closing Date the Registration Statement and the
Prospectus (other than the financial statements and the other
accounting information contained therein or omitted therefrom,
as to which such counsel need express no belief) contained or
contain any untrue statement of a material fact or omitted or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
12
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
Securities, (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 Securities.
(ix) The Servicer has corporate power and authority
to sell and assign the property to be sold and assigned to the
Seller pursuant to the Purchase Agreement and has duly
authorized such sale and assignment to the Seller by all
necessary corporate action.
(x) The Seller has corporate power and authority to
sell and assign the property to be sold and assigned to and
deposited with the Trust and has duly authorized such sale and
assignment to the Trust by all necessary corporate action.
(xi) The Receivables are "tangible chattel paper"
as defined in the Uniform Commercial Code, as in effect in the
State of California.
(xii) Such counsel is familiar with the Servicer's
standard operating procedures relating to the Servicer's
acquisition of a perfected first priority security interest in
the vehicles financed by the retail installment sale contracts
purchased by the Servicer in the ordinary course of the
Servicer's business and relating to the sale by the Servicer to
the Seller of such contracts and such security interests in the
Financed Vehicles in the ordinary course of the Servicer's and
the Seller's business. Assuming that the Servicer's standard
procedures are followed with respect to the perfection of
security interests in the Financed Vehicles (and such counsel
has no reason to believe that the Servicer has not or will not
continue to follow its standard procedures in connection with
the perfection of security interests in the Financed Vehicles),
the Servicer has
13
acquired or will acquire a perfected first priority security
interest in the Financed Vehicles.
(xiii) Each of the Seller and the Servicer has
obtained all necessary governmental licenses and governmental
approvals under the federal law of the United States and the
laws of the State of California to conduct their businesses
where they failure to obtain such licenses and approvals would
render any material part of the corpus of the Trust enforceable
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 & Myers 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 Securities have been duly and
validly authorized, when executed and authenticated by the
Indenture Trustee (in the case of the Notes) as specified in the
Indenture, and by the Owner Trustee (in case of the
Certificates) as specified in the Trust Agreement and delivered
against payment of the consideration specified in this
Agreement, the Securities will be legally valid and binding
obligations of the Trust, and entitled to the benefits of the
Indenture (in the case of the Notes) and the Trust Agreement (in
the case of the Certificates) 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
14
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 Owner Trustee, the Sale
and Servicing Agreement and the Indenture constitute valid and
binding obligations of the Trust 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).
(v) Neither the Seller nor the Trust is required to
be registered under the Investment Company Act of 1940, as
amended (the "1940 Act").
(vi) With respect to Financed Vehicles in the State
of California, no filing or other action other than (A) the
filing of a UCC financing statement naming the Servicer as
transferor and the Seller as the transferee and (B) the filing
of a UCC financing statement naming the Seller as the transferor
and the Trust as the transferee, is necessary to perfect the
transfer and assignment of the Servicer's security interest in
such Financed Vehicles to the Seller, and the Seller's security
interest in such Financed Vehicles to the Trust, respectively,
and as a result of such transfer and assignment and upon filing
of such financing statements, the Trust has a first perfected
security interest in such Financed Vehicles, except that so long
as the Servicer is named as the legal owner and lien holder on a
certificate of title, the Servicer has the ability to release
the security interest in the Financed Vehicle or to assign it to
another party.
(vii) The Trust will not be classified as an
association taxable as a corporation or as a publicly traded
partnership for federal or California income and franchise tax
purposes, and for federal income tax purposes the Securities
will be characterized as debt.
(viii) The statements in the Prospectus Supplement
under "MATERIAL INCOME TAX CONSEQUENCES" and "ERISA
CONSIDERATIONS," and in the Base Prospectus under the "MATERIAL
INCOME TAX CONSEQUENCES," "ERISA CONSIDERATIONS" and "MATERIAL
LEGAL ASPECTS OF THE RECEIVABLES," to the extent that they
constitute matters of law or legal conclusions relating to the
federal laws of the United States or the laws of the States of
California or New York with respect thereto, have been reviewed
by such counsel and are correct in all material respects.
15
(ix) This Agreement has been duly authorized by all
necessary corporate action on the part of each of the Seller and
the Servicer, and has been duly executed and delivered by each
of the Seller and the Servicer.
(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 Securities, 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 Securities, (B) seeking to prevent the issuance
of the Securities 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 Securities as
described in the Base Prospectus under the heading "MATERIAL
INCOME TAX CONSEQUENCES" or the California income tax attributes
of the Securities.
(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 Securities to the
Underwriters.
(xiii) The Indenture, the Securities 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.
16
(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, 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
Securities.
(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
17
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 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 & Myers LLP or such other 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) The Underwriters shall have received an opinion of [
], dated the Closing Date, with respect to the validity of the
Securities 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) The Underwriters shall have received an opinion
addressed to the Underwriters, the Seller and the Servicer of [ ],
counsel to the Owner Trustee and the Trust, 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,
18
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.
(iii) The Notes have been duly authorized, executed
and delivered by the Trust and the Certificates have been duly
authorized, executed and delivered by the Owner Trustee in
accordance with the terms of 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 Securities.
(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,
19
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.
(k) The Underwriters 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 Securities shall have been rated in the highest
rating category by Moody's and S&P.
20
(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 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 Preliminary Prospectus], 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]
[Preliminary Prospectus] 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 Securities; 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 Securities 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
21
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 defending any such action or claim as such expenses are incurred. The
Seller and the Servicer acknowledge and agree that the only such
information furnished to the Seller or the Servicer by any Underwriter
through the Representative consists of the following: the statements in
the second and fourth paragraphs (concerning initial offering prices,
concessions and reallowances) and in the sixth and seventh paragraphs
(concerning stabilizing and other activities) under the heading
"Underwriting" in the Prospectus Supplement.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnity may
be sought pursuant to either of the two preceding paragraphs, such
person (the "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party") in
writing of the commencement thereof, but the omission to so notify the
Indemnifying Party will not relieve it from any liability which it may
have to any Indemnified Party otherwise than under such preceding
paragraphs. In case any such action is brought against any Indemnified
Party and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other Indemnifying
Party similarly notified, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party (who may be counsel to the
Indemnifying Party) and after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof and
after acceptance of counsel by the Indemnified Party, the Indemnifying
Party will not be liable to such Indemnified Party under this Section
for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the contrary, (ii) the Indemnified
Party has reasonably concluded (based upon advice of counsel to the
Indemnified Party) that there may be legal defenses available to it or
other Indemnified Parties that are different from or in addition to
those available to the Indemnifying Party, (iii) a conflict or potential
conflict exists (based upon advice of counsel to the Indemnified Party)
between the Indemnified Party and the Indemnifying Party (in which case
the Indemnifying Party will not have the right to direct the defense of
such action on
22
behalf of the Indemnified Party) or (iv) the Indemnifying Party has
elected to assume the defense of such proceeding but has failed within a
reasonable time to retain counsel reasonably satisfactory to the
Indemnified Party. The Indemnifying Party shall not, with respect to any
action brought against any Indemnified Party, be liable for the fees and
expenses of more than one firm (in addition to any local counsel) for
all Indemnified Parties, and all such fees and expenses shall be
reimbursed within a reasonable period of time as they are incurred. Any
separate firm appointed for the Underwriters and any Control Person in
accordance with this subsection (c) shall be designated in writing by
the Representative, and any such separate firm appointed for the Seller
or the Servicer, its respective directors, officers who sign the
Registration Statement and Control Persons in accordance with this
subsection (c) shall be designated in writing by the Seller or the
Servicer, as the case may be. The Indemnifying Party shall not be liable
for any 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
Securities. 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
23
proceeds from the offering (before deducting expenses) received by the
Seller and the Servicer bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Seller or the Servicer or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Seller, the Servicer and
the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above in this
subsection (d). The amount paid by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to above 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 Securities
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 Securities. If this
Agreement is terminated pursuant to Section 9 or if for any reason the purchase
of the Securities 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 Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section
24
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 Securities.
9. Failure to Purchase the Securities. If any Underwriter or
Underwriters default on their obligations to purchase Securities hereunder and
the aggregate principal amount of Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of such Securities, the Representative may make arrangements
satisfactory to the Seller for the purchase of such Securities by other persons,
including the non-defaulting Underwriter or Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriter or
Underwriters shall be obligated, in proportion to their commitments hereunder,
to purchase the Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount of Securities with respect to which such default
or defaults occur exceeds 10% of the total principal amount of Securities, as
applicable, and arrangements satisfactory to the non-defaulting Underwriter or
Underwriters and the Seller for the purchase of such Securities 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 [ ]; 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, 990 West 190th Street, Torrance,
California 90502-10l9, attention of the Assistant Secretary (facsimile number
(310) 324-2542).
11. No Bankruptcy Petition. Each Underwriter agrees that, prior
to the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the Underwriters and the Seller and their respective successors
and the officers and directors and Control Persons referred to in Section 7, and
no other person will have any right or obligations hereunder.
13. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with the transactions described in
this Agreement, and any action taken by the Representative under this Agreement
will be binding upon all the Underwriters.
25
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York).
15. Counterparts. This Agreement may be executed by each of the
parties hereto in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
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:
NISSAN MOTOR ACCEPTANCE
CORPORATION
By: /s/
---------------------------
Name:
Title:
26
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written:
[ ]
By: /s/
-----------------------
Name:
Title:
Acting on behalf of itself and as the
Representative of the
several Underwriters.
27
Schedule I
- ----------------------- -------------- --------------- -------------- ------------- -------------
Principal Principal Principal Principal Principal
Amount of Amount of Amount of Amount of Amount of
Class A-1 Class A-2 Class A-3 Class B Class C
Underwriter Notes Notes Notes Notes Certificates
- ----------------------- -------------- --------------- -------------- ------------- -------------
$ $ $ $ $
- ----------------------- -------------- --------------- -------------- ------------- -------------
$ $ $ $ $
- ----------------------- -------------- --------------- -------------- ------------- -------------
28