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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES AND EXCHANGE ACT OF 1934
Date of Report: September 1, 1999
- -----------------------------------
(Date of earliest event reported)
NISSAN AUTO RECEIVABLES CORPORATION
ON BEHALF OF NISSAN AUTO RECEIVABLES 1999-A OWNER TRUST
--------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 333-82763 33-0479655
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
990 WEST 190TH STREET
TORRANCE, CALIFORNIA 90502
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(Address of principal executive offices)
Registrant's telephone number, including area code: (310) 719-8013
ITEM 5. OTHER EVENTS
On September 1, 1999, Nissan Auto Receivables Corporation
("NARC") and Nissan Motor Acceptance Corporation ("NMAC") entered into that
certain Purchase Agreement, dated as of August 1, 1999 (the "Purchase
Agreement"), pursuant to which NMAC transferred to NARC certain retail
installment sales contracts relating to certain new, near-new and used
automobiles and light-duty trucks (the "Receivables") and related property.
On September 1, 1999, Nissan Auto Receivables 1999-A Owner Trust, a Delaware
business trust created pursuant to that certain Amended and Restated Trust
Agreement, dated as of August 6, 1999 (the "Trust Agreement"), by and between
NARC, as depositor, and Chase Manhattan Bank Delaware, as Owner Trustee,
entered into that certain Sale and Servicing Agreement, dated as of August 1,
1999 (the "Sale and Servicing Agreement"), by and among the Trust, NARC, as
seller, and NMAC, as servicer, pursuant to which the Receivables and related
property were transferred to the Trust. Also on September 1, 1999, the Trust
caused the issuance, pursuant to an Indenture, dated as of August 1, 1999
(the "Indenture"), by and between the Trust, as issuer, and Norwest Bank
Minnesota, National Association, as indenture trustee, and pursuant to the
Sale and Servicing Agreement, of the Notes, issued in the following classes:
Class A-1, Class A-2 and Class A-3 (collectively, the "Notes"). The Notes,
with an aggregate scheduled principal balance, as of July 31, 1999, of
$662,590,000, were sold to Merrill Lynch & Co., Banc of America Securities
LLC, Chase Securities Inc. and J.P. Morgan & Co., as underwriters (the
"Underwriters"), pursuant to an Underwriting Agreement, dated August 25,
1999, by and among NARC, NMAC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, on behalf of itself and as a representative of the
Underwriters. The Notes have been registered pursuant to the Securities Act
of 1933, as amended, under a Registration Statement on Form S-3 (Commission
File No. 333-82763).
Capitalized terms used herein and not defined herein have
the meanings ascribed thereto in the Sale and Servicing Agreement.
Attached as Exhibit 1.1 is the Underwriting Agreement.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not applicable.
(b) Not applicable.
(c) Exhibits
The exhibit number corresponds with Item 601(a) of Regulation S-K.
Exhibit No. Description
----------- -----------
Exhibit 1.1 Underwriting Agreement, dated August 25, 1999, among
NARC, NMAC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, on behalf of itself and as a
representative of the several Underwriters.
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Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on behalf of
the Registrant by the undersigned thereunto duly authorized.
NISSAN AUTO RECEIVABLES CORPORATION
By: /s/ Tomoaki Shimazu
---------------------------------------
Name: Tomoaki Shimazu
Title: Treasurer, Assistant Secretary
and Director
September 1, 1999
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EXHIBIT INDEX
Item 601(a) of Regulation S-K
Exhibit No. Description
- ----------- -----------
Exhibit 1.1 Underwriting Agreement dated August 25, 1999, among
NARC, NMAC and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, on behalf of themselves and as
representatives of the several Underwriters.
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NISSAN AUTO RECEIVABLES 1999-A OWNER TRUST
$195,850,000, 5.619% ASSET BACKED NOTES, CLASS A-1
$260,000,000, 6.12% ASSET BACKED NOTES, CLASS A-2
$206,740,000, 6.47% ASSET BACKED NOTES, CLASS A-3
NISSAN AUTO RECEIVABLES CORPORATION
(SELLER)
August 25, 1999
UNDERWRITING AGREEMENT
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED,
As Representative of the
Several Underwriters,
250 Vesey Street
New York, NY 10281
Dear Sirs:
1. INTRODUCTORY. Nissan Auto Receivables Corporation (the
"Seller"), a Delaware corporation and wholly owned subsidiary of Nissan Motor
Acceptance Corporation, a California corporation (the "Servicer"), proposes to
sell $195,850,000 principal amount of 5.619% Asset Backed Notes, Class A-1 (the
"Class A-1 Notes"), $260,000,000 principal amount of 6.12% Asset Backed Notes,
Class A-2 (the "Class A-2 Notes"), and $206,740,000 principal amount of 6.47%
Asset Backed Notes, Class A-3 (the "Class A-3 Notes" and, together with the
Class A-1 Notes and the Class A-2 Notes, the "Notes"), each issued by the Nissan
Auto Receivables 1999-A Owner Trust (the "Trust"). The Notes will be issued
pursuant to an indenture (the "Indenture"), to be dated as of August 1, 1999,
between the Trust and the Indenture Trustee (as defined therein) and will be
governed by the terms of a Sale and Servicing Agreement (the "Sale and Servicing
Agreement"), to be dated as of August 1, 1999, 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 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 I hereto
(the "Underwriters") that:
(a) A registration statement (No. 333-82763), including a
form of prospectus supplement relating to the Notes and a form of base
prospectus relating to each class of securities to be registered under such
registration statement (the "Registered Securities"), has been filed with
the Securities and Exchange Commission (the
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"Commission") and either (i) has been declared effective under the
Securities Act of 1933, as amended (the "Act"), and is not proposed to be
amended or (ii) is proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "initial registration
statement") has been declared effective, either (i) any additional
registration statement (the "additional registration statement") relating
to the Notes has been filed with the Commission pursuant to rule 462(b)
("Rule 462(b)") under the Act and declared effective upon filing, and the
Notes have been registered under the Act pursuant to the initial
registration statement and such additional registration statement or (ii)
any such additional registration statement proposed to be filed with the
Commission pursuant to Rule 462(b) will become effective upon filing
pursuant to Rule 462(b) and upon such filing the Notes will have been duly
registered under the Act pursuant to the initial registration statement and
such additional registration statement. If the Seller does not propose to
amend the initial registration statement, any such additional registration
statement or any post-effective amendment to either such registration
statement filed with the Commission prior to the execution and delivery of
this Agreement, then the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) under the Act
("Rule 462(c)") or Rule 462(b).
For purposes of this Agreement, "Effective Time" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means (A)
if the Seller has advised the Representative that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) or (B) if the Seller has advised the Representative
that it proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement as amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. If the Seller has
advised the Representative that it proposes to file, but has not filed, an
additional registration statement, "Effective Time" with respect to such
additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the date
of the Effective Time thereof.
The initial registration statement, as amended at its Effective
Time, including all information (A) contained in the additional
registration statement (if any), (B) deemed to be a part of the initial
registration statement as of the Effective Time of the additional
registration statement (if any) pursuant to the General Instructions of
the Form on which it is filed and (C) deemed to be a part of the initial
registration statement as of its Effective Time pursuant to Rule 430A(b)
under the Act ("Rule 430A(b)"), is hereinafter referred to as the
"Initial Registration Statement." The additional registration
statement, as amended at its Effective Time, including the contents of
the initial registration statement incorporated by reference therein and
deemed to be a part of the additional registration statement as of its
Effective Time pursuant to Rule 430A(b), is hereinafter
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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."
(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 at such times 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 Trust Indenture Act of 1939, as amended (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.
(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 Purchase Agreement, the Sale and
Servicing Agreement, the Yield Supplement Agreement or the Securities
Account Control Agreement (collectively, the "Basic Documents").
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(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.
(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 by-laws or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any agreement or instrument to which it is a party
or by which it or its properties are bound which would have a material
adverse effect on the transactions contemplated herein or on the Seller's
or the Servicer's respective ability to perform its obligations under the
Basic Documents. The execution, delivery and performance of the Basic
Documents and the issuance and sale of the Notes and compliance with the
terms and provisions thereof will not, subject to obtaining any consents or
approvals as may be 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 (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.
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(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) 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)
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) seeking
to affect adversely the federal or state income tax attributes of the
Notes.
(k) Any taxes, fees and other governmental charges that have
been assessed and are known to the Seller to be due in connection with the
execution, delivery and issuance of the Basic Documents shall have been
paid by the Seller or the Servicer at or prior to the Closing Date (as
defined in Section 3(c) hereof).
(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 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.
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(n) As of the Closing Date, the Notes will conform in all
material respects to the description thereof contained in the Prospectus.
(o) Deloitte & Touche LLP are independent public accountants
with respect to the Seller within the meaning of the Act and the Rules and
Regulations.
(p) The Trust is not required to be registered as an
"investment company" under the Investment Company Act of 1940, as amended.
(q) 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, 99.875% of the aggregate
principal amount thereof, (ii) in the case of the Class A-2 Notes,
99.778967% of the aggregate principal amount thereof and (iii) in the case
of the Class A-3 Notes, 99.741755% 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 & Myers LLP, at 400 South Hope Street, Los Angeles,
California, on September 1, 1999, 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
Trust Agreement and 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
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execution and delivery of this Agreement. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of
this Agreement and an Additional Registration Statement is necessary to
register a portion of the Notes under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the Seller will
file the Additional Registration Statement or a post-effective amendment
thereto, as the case may be, with the Commission pursuant to and in
accordance with Rule 424(b). The Seller will advise the Representative
promptly of any such filing pursuant to Rule 424(b).
(b) The Seller will advise the Representative promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the Registration Statement or the Prospectus, and
will not effect such amendment or supplementation without the
Representative's consent; and the Seller will also advise the
Representative promptly of the effectiveness of the Registration Statement
(if the Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of the Registration
Statement or the Prospectus and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement and will
use its best efforts to prevent the issuance of any such stop order and to
lift such stop order as soon as possible, if issued.
(c) The Seller will arrange for the qualification of the
Notes for offering and sale under the securities laws of such jurisdictions
in the United States as the Representative may reasonably designate and to
continue such qualifications in effect so long as necessary under such laws
for the distribution of such securities; PROVIDED that in connection
therewith the Seller shall not be required to qualify as a foreign
corporation to do business, or to file a general consent to service of
process, in any jurisdiction.
(d) If, at any time when the delivery of a prospectus shall
be required by law in connection with sales of any Notes, either (i) any
event shall have occurred as a result of which the Prospectus would include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (ii) for any
other reason it shall be necessary to amend or supplement the Prospectus,
the Seller will promptly notify the Representative and will promptly
prepare for review by the Representative and file with the Commission an
amendment or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance. Neither your consent to,
nor the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(e) The Seller will cause the Trust to make generally
available to Holders as soon as practicable, but not later than fourteen
months after the Effective Date, an earnings statement of the Trust
covering a period of at least twelve consecutive months beginning after
such Effective Date and satisfying the provisions of Section 11(a) of the
Act (including Rule 158 promulgated thereunder).
(f) The Seller will furnish to you copies of the Registration
Statement (two of which will include all exhibits), each related
preliminary prospectus, the
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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 as the Representative
may from time to time reasonably request.
(h) The Seller will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement,
including (i) the printing (or otherwise reproducing) and filing of the
Registration Statement as originally filed and of each amendment thereto;
(ii) the preparation, issuance and delivery of the Notes to the
Underwriters; (iii) the fees and disbursements of the Seller's and the
Servicer's counsel and accountants; (iv) the fees of DTC in connection with
the book-entry registration of the Notes; (v) the qualification of the
Notes under state securities law in accordance with the provisions of
Section 5(c) hereof, including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith and in connection
with the preparation of the blue sky survey, if required; (vi) the printing
(or otherwise reproducing) and delivery to the Underwriters of copies of
each preliminary prospectus and the Prospectus and any amendments or
supplements thereto; (vii) the reproducing 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 Ratings Services
("S&P") for rating the Notes. The Underwriters shall not be responsible
for the fees and disbursements of the Owner Trustee and its counsel.
(i) Until the retirement of the Notes, or until such time as
the Underwriters shall cease to maintain a secondary market in the Notes,
whichever occurs first, the Seller will deliver to the Representative the
annual statements of compliance and the annual independent certified public
accountants' reports furnished to the Indenture Trustee pursuant to Article
IV of the Sale and Servicing Agreement, as soon as such statements and
reports are furnished to the Indenture Trustee.
(j) On or promptly after the Closing Date, the Seller shall
cause its and the Servicer's computer records relating to the Receivables
to be marked to show the Trust's absolute ownership of the Receivables, and
from and after the Closing Date neither the Seller nor the Servicer shall
take any action inconsistent with the Trust's ownership of such
Receivables, other than as permitted by the Sale and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Notes by Moody's or S&P is conditional upon the furnishing
of documents or the taking of any other actions by the Seller, the Seller
shall furnish such documents and take any such other actions.
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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, to the accuracy of the statements of
officers of the Seller and the Servicer made pursuant to the provisions hereof,
to the performance by the Seller and the Servicer of their respective
obligations hereunder and to the following additional conditions precedent:
(a) At the time this Agreement is executed and delivered by
the Seller and at the Closing Date, Deloitte & Touche LLP shall have
furnished to the Representative letters dated respectively as of the date
of this Agreement and as of the Closing Date substantially in the forms of
the drafts to which the Representative previously agreed.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 p.m., New York
time, on the date of this Agreement or such later date as shall have been
consented to by the Representative. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. If the Effective Time of the Additional Registration Statement
(if any) is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 p.m., New York
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) You 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, 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 all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date in all material
respects, 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.
(d) You 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, 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 all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date in all material
respects, that no stop order suspending the effectiveness of
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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.
(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., Nissan North America,
Inc. ("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 banking moratorium declared by
federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of the Representative, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of and
payment for the Notes.
(f) 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 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.
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(iii) The Basic Documents have been duly authorized,
executed and delivered by each of the Seller and the Servicer, as
applicable, and each of the Seller and the Servicer has the
corporate power and authority to enter into and perform its
respective obligations under the Basic Documents.
(iv) The execution, delivery and performance of the
Basic Documents by the Seller and the Servicer will not conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the respective
properties or assets of the Seller or the Servicer, pursuant to the
terms of the Notes or the charter or bylaws of the Seller or the
Servicer, any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction over
the Seller or the Servicer or any of their respective properties or
any material agreement or instrument to which the Seller or the
Servicer is a party or by which either the Seller or the Servicer
or any of their respective properties is bound.
(v) No authorization, approval or consent of any court
or governmental agency or authority is necessary in connection with
the execution, delivery and performance by the Seller or the
Servicer of the Basic Documents to which it is a party, except such
as may be required under the Act or the Rules and Regulations and
state securities laws, and except for such authorizations,
approvals or consents (specified in such opinion) as are in full
force and effect as of the Effective Date and the Closing Date.
(vi) Nothing has come to such counsel's attention that
would cause it to believe that as of the Effective Date and at the
Closing Date the Registration Statement and the Prospectus (other
than the financial statements and the other accounting information
contained therein or omitted therefrom, as to which such counsel
need express no belief) contained or contain any untrue statement
of a material fact or omitted or omit to state any material fact
required 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) that are required to be disclosed in the Registration Statement or
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(B)(1) asserting the invalidity of all or part of any Basic Document,
(2) seeking to prevent the issuance of the Notes, (3) 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) 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 eller 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 "chattel paper" as defined in
the Uniform Commercial Code, as in effect in the State of
California.
(xii) The undersigned 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 acquired or will
acquire a perfected first priority security interest in the
Financed Vehicles.
(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,
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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 Owner Trustee as
specified in the Indenture and delivered against payment of the
consideration specified in this Agreement, the Notes will be
legally valid and binding obligations of the Trust, and entitled to
the benefits of the Indenture enforceable against the Trust in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect, relating to or affecting creditors'
rights generally and by the application of general principles of
equity, including without limitation concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance, injunctive relief or any
other equitable remedy (regardless of whether enforcement is
considered in a proceeding at law or in equity).
(iv) Assuming the due authorization, execution and
delivery thereof by the Owner Trustee 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.
(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.
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(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 Notes will be characterized as debt.
(viii) The statements in the Prospectus Supplement under
"MATERIAL INCOME TAX CONSEQUENCES" and "ERISA CONSIDERATIONS," and
in the Base Prospectus under the "MATERIAL INCOME TAX
CONSEQUENCES," "ERISA CONSIDERATIONS" and "MATERIAL LEGAL ASPECTS
OF THE RECEIVABLES," to the extent that they constitute matters of
law or legal conclusions relating to the federal laws of the United
States or the laws of the States of California or New York with
respect thereto, have been reviewed by such counsel and are correct
in all material respects.
(ix) This Agreement has been duly authorized by all
necessary corporate action on the part of each of the Seller and
the Servicer, and has been duly executed and delivered by each of
the Seller and the Servicer.
(x) No order, consent, permit or approval of any
California, New York or federal governmental authority that such
counsel has, in the exercise of customary professional diligence,
recognized as applicable to the Servicer or the Seller, or to the
transactions of the type contemplated by any Basic Document,
including the issuance of the Notes, is required on the part of the
Servicer or the Seller for the execution and delivery of, and the
performance of its obligations under, any Basic Document to which
it is a party, except for such as have been obtained or made and
are in full force and effect as of the Closing Date; provided that
such counsel expresses no opinion with respect to any orders,
consents, permits, approvals, filings or licenses related to the
authority to sell motor vehicles, originate retail installment
sales contracts or service retail installment sales contracts or as
may be required by any regional or local governmental authority or
under any foreign or state securities laws.
(xi) To such counsel's knowledge, there are no actions,
proceedings or investigations pending or threatened, to which the
Seller or the Servicer is a party or of which any property of the
Seller or the Servicer is the subject, required to be disclosed in
the Registration Statement, other than those disclosed therein, (A)
asserting the invalidity of any Basic Document or the Notes, (B)
seeking to prevent the issuance of the Notes or the consummation of
any of the transactions contemplated by any Basic Document, or (C)
seeking adversely to affect the federal income tax attributes of
the Notes as described in the Base Prospectus under the heading
"MATERIAL INCOME TAX CONSEQUENCES" or the California income tax
attributes of the Notes.
(xii) At the time of execution and delivery of (A) the
Purchase Agreement, the Servicer had the corporate power and
corporate authority to transfer the Receivables and such other
property being transferred to the Seller
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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 Notes and the Basic Documents each conform in
all material respects with the respective descriptions thereof
contained in the Registration Statement and the Prospectus.
(xiv) Neither the Trust Agreement nor the Sale and
Servicing Agreement needs to be qualified under the 1939 Act.
(xv) The Registration Statement filed with the
Commission has been declared effective under the Act, and, to such
counsel's knowledge upon due inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued under
the Act or proceedings therefor initiated or threatened by the
Commission, and the Registration Statement and Prospectus, and each
amendment or supplement thereto, as of its respective effective or
issue date, 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.
(xvii) The Seller has duly authorized and executed the
written order to the Owner Trustee to execute and deliver the
issuer order to the Indenture Trustee to authenticate the Notes.
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
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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 date hereof,
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 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 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 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 Orrick, Herrington
& Sutcliffe LLP, dated the Closing Date, with respect to the validity of
the Notes and such other related matters as the Representative shall
require, and the Seller shall have furnished or caused to be furnished to
such counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(j) You shall have received an opinion addressed to you, the
Seller and the Servicer of Richards, Layton & Finger, counsel to 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 national banking
association duly incorporated, validly existing and in good
standing under the laws of the United States of America with power
and authority (corporate and other) to own its
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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.
(iii) The Notes have been duly authorized, executed and
delivered by Chase Manhattan Bank Delaware, 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
Trust Agreement 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.
(k) You shall have received an opinion of Dorsey & Whitney
LLP, 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.
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(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 Moody's 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 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 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
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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 any term sheet
that is subsequently corrected in the Prospectus (or any amendment or
supplement thereto) made available to such Underwriter, 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.
(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 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
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writing of the commencement thereof, but the omission to so notify the
Indemnifying Party will not relieve it from any liability which it may
have to any Indemnified Party otherwise than under such preceding
paragraphs. In case any such action is brought against any Indemnified
Party and it notifies the Indemnifying Party of the commencement
thereof, the Indemnifying Party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other Indemnifying
Party similarly notified, to assume the defense thereof, with counsel
satisfactory to such Indemnified Party (who may be counsel to the
Indemnifying Party) and after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof and
after acceptance of counsel by the Indemnified Party, the Indemnifying
Party will not be liable to such Indemnified Party under this Section
for any legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the contrary, (ii) the Indemnified
Party has reasonably concluded (based upon advice of counsel to the
Indemnified Party) that there may be legal defenses available to it or
other Indemnified Parties that are different from or in addition to
those available to the Indemnifying Party, (iii) a conflict or potential
conflict exists (based upon advice of counsel to the Indemnified Party)
between the Indemnified Party and the Indemnifying Party (in which case
the Indemnifying Party will not have the right to direct the defense of
such action on behalf of the Indemnified Party) or (iv) the Indemnifying
Party has elected to assume the defense of such proceeding but has
failed within a reaonable 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
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<PAGE>
accordance with such request prior to the date of such settlement. No
IndemnifyingParty shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are
the subject matter of such proceeding.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an Indemnified Party under
subsection (a) or (b) above, then each Indemnifying Party shall contribute
to the amount paid or payable by such Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above in such proportion as is appropriate to reflect the relative benefits
received by the Seller and the Servicer on the one hand and the
Underwriters on the other from the offering of the Notes. If, however, the
allocation provided by the immediately preceding sentence is not permitted
by applicable law, then each Indemnifying Party shall contribute to such
amount paid or payable by such Indemnified Party in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Seller and the Servicer on the one hand and the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as
any other relevant equitable considerations. The relative benefits
received by the Seller and the Servicer on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion that
the total net proceeds from the offering (before deducting expenses)
received by the Seller and the Servicer bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Seller or the Servicer or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Seller, the Servicer and
the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to above in this subsection
(d). The amount paid by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to above 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.
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<PAGE>
(e) The obligations of the Seller and the Servicer under this
Section shall be in addition to any liability which the Seller or the
Servicer may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Seller or the Servicer, to each officer
of the Seller or Servicer who has signed the Registration Statement and to
each person, if any, who controls the Seller or the Servicer within the
meaning of the Act.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The
respective indemnities, agreements, representations, warranties and other
statements of the Seller, the Servicer or their respective officers and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation or statement as to the results
thereof made by or on behalf of any Underwriter, the Seller or the Servicer or
any of their respective representatives, officers or directors or any Control
Person, and will survive delivery of and payment for the Notes. If this
Agreement is terminated pursuant to Section 9 or if for any reason the purchase
of the Notes by the Underwriters is not consummated, the Seller shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5, and the respective obligations of the Seller and the Underwriters pursuant to
Section 7 shall remain in effect. If the purchase of the Notes by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9, the Seller will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Notes.
9. FAILURE TO PURCHASE THE NOTES. If any Underwriter or
Underwriters default on their obligations to purchase Notes hereunder and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of such Notes, the Representative may make arrangements
satisfactory to the Seller for the purchase of such Notes by other persons,
including the nondefaulting Underwriter or Underwriters, but if no such
arrangements are made by the Closing Date, the nondefaulting Underwriter or
Underwriters shall be obligated, in proportion to their commitments hereunder,
to purchase the Notes that such defaulting Underwriter or Underwriters agreed
but failed to purchase. If any Underwriter or Underwriters so default and the
aggregate principal amount of Notes with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Notes, as
applicable, and arrangements satisfactory to the nondefaulting Underwriter or
Underwriters and the Seller for the purchase of such Notes by other persons are
not made within 36 hours after such default, this Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the Seller,
except as provided in Section 8.
As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve
a defaulting Underwriter or Underwriters from liability for its default.
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<PAGE>
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 Merrill Lynch, Pierce, Fenner & Smith
Incorporated, 250 Vesey Street, World Financial Center, New York, New York
10281, Attention: Ted Breck (facsimile number (212) 449-9015); and if sent to
the Seller, will be mailed, delivered or sent by facsimile transmission and
confirmed to it at Nissan Auto Receivables Corporation, 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.
14. APPLICABLE LAW. This Agreement shall be governed by, and
construed in accordance with, the laws 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.
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<PAGE>
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
By: /s/ Tomoaki Shimazu
-------------------
Name: Tomoaki Shimazu
Title: Treasurer
NISSAN MOTOR ACCEPTANCE
CORPORATION
By: /s/ Yoichiro Nagashima
----------------------
Name: Yoichiro Nagashima
Title: President
24
<PAGE>
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By: /s/ Theodore F. Breck
---------------------
Name: Theodore F. Breck
Title: Acting on behalf of itself and as the
Representative of the several Underwriters
Acting on behalf of itself and as the
Representative of the several
Underwriters.
25
<PAGE>
SCHEDULE 1
<TABLE>
<CAPTION>
Principal Amount Principal Amount Principal Amount
Underwriter of Class A-1 Notes of Class A-2 Notes of Class A-3 Notes
- ----------- ------------------ ------------------ ------------------
<S> <C> <C> <C>
Merrill Lynch, Pierce, Fenner $48,962,500 $65,000,000 $51,685,000
& Smith Incorporated
Banc of America Securities LLC 48,962,500 65,000,000 51,685,000
Chase Securities Inc. 48,962,500 65,000,000 51,685,000
J.P. Morgan Securities Inc. 48,962,500 65,000,000 51,685,000
------------------ ------------------ ------------------
Total: $195,850,000 $260,000,000 $206,740,000
</TABLE>
I-1
