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EXHIBIT 1.2
FORM OF UNDERWRITING AGREEMENT FOR CERTIFICATES
NISSAN AUTO RECEIVABLES ____-___ GRANTOR TRUST
$[ ], ___% ASSET BACKED CERTIFICATES, CLASS A
$[ ], ___% ASSET BACKED CERTIFICATES, CLASS B
NISSAN AUTO RECEIVABLES CORPORATION [II]
(SELLER)
[Date]
[Names of Investment Banks]
As Representative of the
Several Underwriters,
c/o [Address]
Dear Sirs:
1. Introductory. Nissan Auto Receivables Corporation [II] (the
"Seller"), a Delaware corporation and wholly owned subsidiary of Nissan Motor
Acceptance Corporation, a California corporation (the "Servicer"), proposes to
sell $[ ] principal amount of ___% Asset Backed Certificates, Class A (the
"Class A Certificates") and $[ ] principal amount of ___% Asset Backed
Certificates, Class B (the "Class B Certificates") (the "Certificates,") The
Certificates will be issued by the Nissan Auto Receivables ____-__ Grantor Trust
(the "Trust"). Each Certificate will represent fractional undivided interests in
the Trust pursuant to a Trust Agreement to be dated as of _____, 200_ (the
"Trust Agreement"). The Certificates will be issued pursuant to a Pooling and
Servicing Agreement to be dated as of ____, 2000 (the "Pooling and Servicing
Agreement").
Capitalized terms used herein and not otherwise defined herein
shall have the meanings given them in the Pooling 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. 333-51224)] [(No.
333-51224-01)], including a form of prospectus supplement relating to
the Certificates and a form of base prospectus relating to each class of
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
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"initial registration statement") has been declared effective, either
(i) any additional registration statement (the "additional registration
statement") relating to the Certificates has been filed with the
Commission pursuant to rule 462(b) ("Rule 462(b)") under the Act and
declared effective upon filing, and the Certificates 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 Certificates 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 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
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prospectus supplement relating to the Certificates (the "Prospectus
Supplement") and the form of prospectus (the "Base Prospectus") relating
to the Registered Securities, as first filed with the Commission in
connection with the offering and sale of the Certificates 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 Certificates (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 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. 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
Trust Agreement, the Purchase Agreement, the Assignment, the Pooling 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 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 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
Certificates and compliance with the terms and provisions thereof will
not, subject to obtaining any consents or approvals as may be required
under the securities or "blue sky" laws of various jurisdictions: (i)
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court having jurisdiction over
the Seller or the Servicer or their respective properties or any
agreement or instrument to which either is a party or by which either is
bound or to which any of their respective properties are subject, except
where such breach, violation, or default would not have a material
adverse effect on the Seller's or the Servicer's respective ability to
perform its obligations under the Basic Documents or the validity or
enforceability thereof, or (ii) conflict with the Seller's or the
Servicer's charter or by-laws, and each of the Seller and the Servicer
has corporate power and authority to enter into the Basic Documents and
to consummate the transactions contemplated hereby and thereby.
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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 Certificates have been duly authorized and, when
executed and delivered in accordance with the Pooling and Servicing
Agreement 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 Certificates, (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
Certificates.
(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 Pooling 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 [Subordination Spread
Account][Yield Supplement Account] will be subject to a first priority
security interest in favor of the Trustee for the benefit of the
Certificateholders.]
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(n) As of the Closing Date, the Trust (for the benefit of
the holders of the Certificates) 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 Pooling and Servicing Agreement.
(o) As of the Closing Date, the Certificates 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 Pooling and Servicing Agreement are true and correct
in all material respects.
3. Purchase, Sale and Delivery the Certificates.
(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 Certificates set forth
opposite the names of the Underwriters in Schedule 1 hereto.
(b) The Certificates are to be purchased at a purchase
price equal to (i) in the case of the Class A Certificates, ___% of the
aggregate principal amount thereof, and (ii) in the case of the Class B
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 Certificates 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
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 Certificates 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
Certificates 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.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Certificates for sale to the public as set
forth in the Prospectus.
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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 Certificates 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
Certificates 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 Certificates,
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.
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(e) The Seller will cause the Trust to make generally
available to Certificateholders 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 (two of 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 Certificates are outstanding,
the Seller will furnish to the Representative copies of all reports or
other communications (financial or otherwise) furnished to
Certificateholders, 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 Certificates
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 Certificates; (v) the
qualification of the Certificates 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, a
Division of the McGraw-Hill Companies, Inc. ("S&P"), for rating the
Certificates. The Underwriters shall not be responsible for the fees and
disbursements of the Trustee and its counsel.
(i) Until the retirement of the Certificates, or until
such time as the Underwriters shall cease to maintain a secondary market
in the Certificates, 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
Trustee pursuant to Article IV of the Pooling and Servicing Agreement,
as soon as such statements and reports are furnished to the 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
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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 Pooling and Servicing Agreement.
(k) To the extent, if any, that the rating provided with
respect to the Certificates 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 Certificates
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 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, 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
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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) 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, 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 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
Certificates or makes it impractical or inadvisable to proceed with
completion of the sale of and payment for the Certificates; (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
Certificates.
(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
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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 Certificates 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
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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 (B)(1) asserting the invalidity of
all or part of any Basic Document, (2) seeking to prevent the
issuance of the Certificates, (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 Certificates.
(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 "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 acquired or will acquire a perfected first priority
security interest in the Financed Vehicles.
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(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 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 Certificates have been duly and
validly authorized, when executed and authenticated by the
Trustee and delivered against payment of the consideration
specified in this Agreement, the Certificates will be legally
valid and binding obligations of the Trust, and entitled to the
benefits of the Trust Agreement 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).
(iv) Assuming the due authorization, execution and
delivery thereof by the Trustee, the Pooling and Servicing
Agreement 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.
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(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 such purposes the Certificates 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 Certificates, 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.
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(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 Certificates, (B) seeking to prevent the issuance
of the Certificates 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
Certificates as described in the Base Prospectus under the
heading "MATERIAL INCOME TAX CONSEQUENCES" or the California
income tax attributes of the Certificates.
(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 Pooling 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 Pooling and Servicing Agreement and to
cause the transfer of the Certificates to the Underwriters.
(xiii) The Certificates 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 Pooling
and Servicing Agreement need 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 Seller has duly authorized, executed and
delivered the written order to the Trustee to authenticate the
Certificates.
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In addition, such counsel shall state that such counsel
has participated in conferences with the officers and other
representatives of the Seller and the Servicer, representatives of their
independent public accountants, and representatives of the Underwriters
and their counsel, at which the contents of the Registration Statement
and the Prospectus and related matters were discussed, but has not
independently verified the accuracy, completeness or fairness of the
statements contained or incorporated by reference therein, and
accordingly such counsel is unable to assume, and does not assume, any
responsibility for such accuracy, completeness or fairness. However, on
the basis of such counsel's review and participation in conferences in
connection with the preparation of the Registration Statement and the
Prospectus, and relying as to its determination of materiality to an
extent upon opinions of officers and other representatives of the Seller
and the Servicer, such counsel shall state that it does not believe that
any Registration Statement, at the related Effective Time, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, at the date of the
Prospectus Supplement (or any such amendment or supplement, as of its
respective date) contained, or on the Closing Date contains any untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion or belief as to the
financial statements or other financial, numerical or statistical data
contained or incorporated by reference in any Registration Statement,
the Prospectus or the Form T-1.
Such counsel's opinions as to enforceability shall be
subject to the unenforceability under certain circumstances of: (i)
waivers of rights granted by law where the waivers are against public
policy or prohibited by law; (ii) waivers of vaguely 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 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
Certificates and such other related matters as the Representative shall
require, and the Seller shall have
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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 Trustee, dated the Closing Date and satisfactory in form
and substance to the Representative and its counsel, to the effect that:
(i) The 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 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 Trustee, enforceable against the
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 Certificates have been duly authorized,
executed and delivered by the Trustee in accordance with the
terms of the Pooling and Servicing Agreement.
(iv) Neither the execution nor delivery by the
Trustee of the Trust Agreement nor the consummation of any of the
transactions by the 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
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 Basic Documents to which it is a party and the Certificates.
(vi) The execution and delivery by the Trustee of
the Trust Agreement and the performance by the 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 Trustee.
(k) 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
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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 Pooling 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.
(l) The Certificates shall have been rated in the highest
rating category by Moody's and S&P.
(m) 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, 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
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reference therein), on or prior to the confirmation of the sale of the
Certificates; 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 Certificates 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
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
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thereof and after acceptance of counsel by the Indemnified Party, the
Indemnifying Party will not be liable to such Indemnified Party under
this Section for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the contrary, (ii) the Indemnified
Party has reasonably concluded (based upon advice of counsel to the
Indemnified Party) that there may be legal defenses available to it or
other Indemnified Parties that are different from or in addition to
those available to the Indemnifying Party, (iii) a conflict or potential
conflict exists (based upon advice of counsel to the Indemnified Party)
between the Indemnified Party and the Indemnifying Party (in which case
the Indemnifying Party will not have the right to direct the defense of
such action on behalf of the Indemnified Party) or (iv) the Indemnifying
Party has elected to assume the defense of such proceeding but has
failed within a reasonable time to retain counsel reasonably
satisfactory to the Indemnified Party. The Indemnifying Party shall not,
with respect to any action brought against any Indemnified Party, be
liable for the fees and expenses of more than one firm (in addition to
any local counsel) for all Indemnified Parties, and all such fees and
expenses shall be reimbursed within a reasonable period of time as they
are incurred. Any separate firm appointed for the Underwriters and any
Control Person in accordance with this subsection (c) shall be
designated in writing by the Representative, and any such separate firm
appointed for the Seller or the Servicer, its respective directors,
officers who sign the Registration Statement and Control Persons in
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
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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 Certificates. 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 Certificates 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
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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 Certificates. If this
Agreement is terminated pursuant to Section 9 or if for any reason the purchase
of the Certificates 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
Certificates 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 Certificates.
9. Failure to Purchase the Certificates. If any Underwriter or
Underwriters default on their obligations to purchase Certificates hereunder and
the aggregate principal amount of Certificates that such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of such Certificates, the Representative may make arrangements
satisfactory to the Seller for the purchase of such Certificates 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 Certificates that such defaulting Underwriter or Underwriters
agreed but failed to purchase. If any Underwriter or Underwriters so default and
the aggregate principal amount of Certificates with respect to which such
default or defaults occur exceeds 10% of the total principal amount of
Certificates, as applicable, and arrangements satisfactory to the nondefaulting
Underwriter or Underwriters and the Seller for the purchase of such Certificates
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.
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).
22
<PAGE> 23
11. No Bankruptcy Petition. Each Underwriter agrees that, prior
to the date which is one year and one day after the payment in full of all
securities issued by the Seller or by a trust for which the Seller was the
depositor which securities were rated by any nationally recognized statistical
rating organization, it will not institute against, or join any other person in
instituting against, the Seller any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under any federal or
state bankruptcy or similar law.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the Underwriters and the Seller and their respective successors
and the officers and directors and Control Persons referred to in Section 7, and
no other person will have any right or obligations hereunder.
13. Representation of Underwriters. The Representative will act
for the several Underwriters in connection with the transactions described in
this Agreement, and any action taken by the Representative under this Agreement
will be binding upon all the Underwriters.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York).
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.
23
<PAGE> 24
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:
1
<PAGE> 25
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.
2
<PAGE> 26
Schedule I
<TABLE>
<CAPTION>
------------------------------------------------------
Principal Principal
Amount of Amount of
Class A Class B
Underwriter Certificates Certificates
------------------------------------------------------
<S> <C> <C>
$ $
------------------------------------------------------
$ $
------------------------------------------------------
</TABLE>
3
