NISSAN AUTO RECEIVABLES 2008-C OWNER
TRUST
$124,000,000,
3.03725% ASSET BACKED NOTES, CLASS A-1
$185,000,000, LIBOR + 3.50% ASSET BACKED NOTES, CLASS A-2
$77,000,000, 5.93% ASSET BACKED NOTES, CLASS A-3a
$80,000,000, LIBOR + 4.00% ASSET BACKED NOTES, CLASS
A-3b
NISSAN AUTO RECEIVABLES CORPORATION
II
(SELLER)
J.P. Morgan
Securities Inc.
As Representative of the
Several Underwriters (the “Representative”),
270 Park Avenue
New York, New York 10017
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
$124,000,000 aggregate principal amount of 3.03725% Asset Backed
Notes, Class A-1 (the “Underwritten Class A-1
Notes”), $185,000,000 aggregate principal amount of LIBOR +
3.50% Asset Backed Notes, Class A-2 (the “Underwritten
Class A-2 Notes”), $77,000,000 aggregate principal
amount of 5.93% Asset Backed Notes, Class A-3a (the
“Underwritten Class A-3a Notes”), and $80,000,000
aggregate principal amount of LIBOR + 4.00% Asset Backed Notes,
Class A-3b (the “Underwritten Class A-3b
Notes” and, together with the Underwritten Class A-1
Notes, the Underwritten Class A-2 Notes and the Underwritten
Class A-3a Notes, the “Underwritten Notes”), each
issued by the Nissan Auto Receivables 2008-C Owner Trust (the
“Trust”).
In addition to the
Underwritten Notes, on the Closing Date the Trust will issue and
the Seller or an affiliate of the Seller will retain $134,000,000
aggregate principal amount of 6.65% Asset Backed Notes,
Class A-4 (the “Retained Class A-4 Notes”
and, together with the Underwritten Notes, the
“Notes”).
The Notes will be
issued pursuant to an indenture (the “Indenture”), to
be dated as of December 11, 2008, 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 December 11,
2008, among the Trust, the Seller and the Servicer. The Trust will
also issue certain asset backed certificates which will represent
fractional undivided interests in the Trust and will not be sold
hereunder.
Capitalized terms
used herein and not otherwise defined herein shall have the
meanings given them in the Sale and Servicing Agreement.
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. 333-138931), including a form of
prospectus supplement relating to the Notes and a form of base
prospectus relating to each class of securities to be registered
under such registration statement (the “Registered
Securities”), has been filed on Form S-3 with the Securities
and Exchange Commission (the “Commission”) and either
(i) has been declared effective under the Securities Act of
1933, as amended (the “Act”), and is not proposed to be
amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the
“initial registration statement”) has been declared
effective, either (i) any additional registration statement
(the “additional registration statement”) relating to
the Notes has been filed with the Commission pursuant to rule
462(b) (“Rule 462(b)”) under the Act and declared
effective upon filing, and the Notes have been registered under the
Act pursuant to the initial registration statement and such
additional registration statement or (ii) any such additional
registration statement proposed to be filed with the Commission
pursuant to Rule 462(b) will become effective upon filing pursuant
to Rule 462(b) and upon such filing the Notes will have been duly
registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Seller
does not propose to amend the initial registration statement, any
such additional registration statement or any post-effective
amendment to either such registration statement filed with the
Commission prior to the execution and delivery of this Agreement,
then the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) under the Act
(“Rule 462(c)”) or Rule 462(b).
For purposes of
this Agreement, “Effective Time” with respect to the
initial registration statement or, if filed prior to the execution
and delivery of this Agreement, the additional registration
statement means (A) if the Seller has advised the
Representative that it does not propose to amend such registration
statement, the date and time as of which such registration
statement, or the most recent post-effective amendment thereto (if
any) filed prior to the execution and delivery of this Agreement,
was declared effective by the Commission or has become effective
upon filing pursuant to Rule 462(c) or (B) if the Seller has
advised the Representative that it proposes to file an amendment or
post-effective amendment to such registration statement, the date
and time as of which such registration statement as amended by such
amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. If the Seller has advised the
Representative that it proposes to file, but has not filed, an
additional registration statement, “Effective Time”
with respect to such additional registration statement means the
date and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b).
The initial
registration statement and all amendments and supplements thereto,
as amended at its time of effectiveness, 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 time of effectiveness 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 time
of effectiveness pursuant to Rule 430A(b) under the Act
(“Rule 430A(b)”), is hereinafter referred to as
the “Initial Registration Statement.” The
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additional
registration statement and all amendments and supplements thereto,
as amended at its time of effectiveness, 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, the
Additional Registration Statement and all Incorporated Documents
are hereinafter referred to collectively as the “Registration
Statements” and individually as a “Registration
Statement.” As used herein, the term “Incorporated
Documents”, when used with respect to the Registration
Statement as of any date, means the documents incorporated or
deemed to be incorporated by reference in the Registration
Statement (i) as of such date pursuant to Item 12 of Form S-3
or pursuant to a no-action letter of the Commission or (ii) as
of any other date pursuant to Rule 430B(f) under the Act. A
preliminary prospectus supplement, dated December 1, 2008, as
supplemented by the supplement to prospectus supplement, dated
December 1, 2008, relating to the Notes (the
“Preliminary Prospectus Supplement”) and accompanied by
the base prospectus, dated December 1, 2008, relating to the
Registered Securities (including the Notes) (the “Base
Prospectus”), will be filed with the Commission in connection
with the offering and sale of the Underwritten Notes pursuant to
and in accordance with Rule 424(b) under the Act
(“Rule 424(b)”) within the time period required
thereby (together, including all material incorporated by reference
therein, the “Preliminary Prospectus”). A final
prospectus supplement, dated December 2, 2008, relating to the
Notes (the “Prospectus Supplement”), and accompanied by
the Base Prospectus, will be filed with the Commission in
connection with the offering and sale of the Underwritten Notes
pursuant to and in accordance with Rule 424(b) within the time
period required thereby (together, including all material
incorporated by reference therein, the “Final
Prospectus”). As used herein, and for the sake of clarity,
each of the term “Preliminary Prospectus” and
“Final Prospectus” includes all static pool information
disclosed therein in response to Item 1105 of
Regulation AB (including, without limitation, the information
disclosed in the Appendices to the Preliminary Prospectus
Supplement and the Prospectus Supplement), whether or not such
information is otherwise deemed to be part of the Preliminary
Prospectus or the Final Prospectus under the Rules and
Regulations.
(b) (i)
(A) On the effective date of any Registration Statement whose
time of effectiveness 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 of
the Registration Statement, subsequent to the date of this
Agreement and on the Closing Date (as defined in Section 3(c)
hereof), each such Registration Statement will conform, in all
respects to the requirements of the Act and the rules and
regulations of the Commission (the “Rules and
Regulations”) and the Trust Indenture Act of 1939, as amended
(the “1939 Act”), and at such times each such
Registration Statement, as amended, did not and will not include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading. (ii) As of
11:22 A.M. (New York time), December 2, 2008 (the
“Date of Sale”), which shall be the date of the first
contract of sale for the Underwritten Notes, and at the time of
filing of the Preliminary 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 Preliminary Prospectus),
the Preliminary Prospectus, together with the statements in the
Final Prospectus with respect to items identified in the
Preliminary Prospectus as to be completed in the Final Prospectus,
did not include, does not include and will not include, any untrue
statement of a
3
material fact,
nor did, does or will the Preliminary Prospectus, together with the
statements in the Final Prospectus with respect to items identified
in the Preliminary Prospectus as to be completed in the Final
Prospectus, omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading. As of the date of the first
use of the Final Prospectus, at the time of filing of the Final
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 Final Prospectus), on the date of this
Agreement and at the Closing Date, the Final Prospectus, as amended
and supplemented as of such dates, 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 did, does or will the Final Prospectus, as
amended and supplemented as of such dates, omit to state any
material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading. The three preceding sentences
do not apply to statements in or omissions from the Registration
Statement, the Preliminary Prospectus or the Final Prospectus based
upon written information furnished to the Seller by any Underwriter
through the Representative specifically for use therein or to that
part of the Registration Statement which constitutes the Statement
of Qualification under the 1939 Act on Form T-1 (the “Form
T-1”) of the Indenture Trustee (which will be represented and
warranted to by the Indenture Trustee). If the time of
effectiveness of the Registration Statement is subsequent to the
date of this Agreement, no Additional Registration Statement has
been or will be filed. The Indenture has been qualified under the
1939 Act.
(c) The
Seller has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own its properties
and conduct its business as described in the Preliminary Prospectus
and the Final Prospectus, as amended and supplemented, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or the ownership
of its property requires such qualification, except where the
failure to be in good standing would not have a material adverse
effect on the Seller’s ability to perform its obligations
under this Agreement, the Trust Agreement, the Purchase Agreement,
the Assignment, the Sale and Servicing Agreement, the Indenture,
the Yield Supplement Agreement, the Securities Account Control
Agreement, the Interest Rate Swap Agreement(s), or the
Administration Agreement (collectively, the “Basic
Documents”). The Seller is not, and on the date on which the
first bona fide offer of the Notes was made, was not an
“ineligible issuer” as defined in Rule 405 of the
Rules and Regulations.
(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 Preliminary Prospectus
and the Final Prospectus, as amended and supplemented, 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
4
or provisions
of, or constitute a default under, or result in the creation of any
lien, charge, or encumbrance upon any of the property or assets of
the Seller or the Servicer pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement, or similar agreement or instrument under which the
Seller or the Servicer is a debtor or guarantor, except where such
conflict, breach, default or creation would not have a material
adverse effect on the Seller’s or the Servicer’s
respective ability to perform its obligations under the Basic
Documents or the validity or enforceability thereof.
(f) No
consent, approval, authorization or order of, or filing with, any
court or governmental agency or body is required to be obtained or
made by the Seller or the Servicer for the consummation of the
transactions contemplated by this Agreement except such as have
been obtained and made under the Act, such as may be required under
state securities laws and the filing of any financing statements
required to perfect the Trust’s interest in the
Receivables.
(g) Neither
the Seller nor the Servicer is in violation of its certificate of
incorporation or articles of incorporation, as applicable, or
by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or
its properties are bound which would have a material adverse effect
on the transactions contemplated herein or on the Seller’s or
the Servicer’s respective ability to perform its obligations
under the Basic Documents. The execution, delivery and performance
of the Basic Documents and the issuance and sale of the Notes and
compliance with the terms and provisions thereof will not, subject
to obtaining any consents or approvals as may be required under the
securities or “blue sky” laws of various jurisdictions:
(i) result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over the Seller or the Servicer or their
respective properties or any agreement or instrument to which
either is a party or by which either is bound or to which any of
their respective properties are subject, except where such breach,
violation, or default would not have a material adverse effect on
the Seller’s or the Servicer’s respective ability to
perform its obligations under the Basic Documents or the validity
or enforceability thereof, or (ii) conflict with the
Seller’s or the Servicer’s charter or by-laws, and each
of the Seller and the Servicer has corporate power and authority to
enter into the Basic Documents and to consummate the transactions
contemplated hereby and thereby.
(h) The Basic
Documents have been duly authorized, executed and delivered by, and
(assuming due authorization and delivery thereof by the other
parties hereto and thereto) constitute valid and binding
obligations of, the Seller and the Servicer, as applicable,
enforceable against such party in accordance with their respective
terms, except as limited by bankruptcy, insolvency, reorganization
or other similar laws relating to or affecting the enforcement of
creditors’ rights generally and by general equitable
principles, regardless of whether such enforceability is considered
in a proceeding in equity or at law.
(i) The Notes
have been duly authorized and, when executed and delivered in
accordance with the Indenture and delivered against the
consideration therefor, 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
5
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 known by the Seller or the
Servicer to be (i) pending for which the Seller or the
Servicer has been served official notice, to which the Seller or
the Servicer is a party or to which any property of the Seller or
the Servicer is the subject, and (ii) threatened or
contemplated by any governmental authority or threatened by others,
which proceedings in either clause (i) or (ii) above (A)
(whether individually or in the aggregate) are required to be
disclosed in the Registration Statement or (B)(1) assert the
invalidity of all or part of any Basic Document, (2) seek to
prevent the issuance of the Notes, (3) (whether individually
or in the aggregate) would materially and adversely affect the
Seller’s or the Servicer’s obligations under any Basic
Document to which it is a party, or (4) (whether individually or in
the aggregate) seek 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.
(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, (i) the Reserve Account will be subject to a
first-priority security interest in favor of the Indenture Trustee
for the benefit of the Noteholders and the Swap Counterparty and
(ii) the Yield Supplement Account will be subject to a
first-priority security interest in favor of the Indenture Trustee
for the benefit of the Noteholders.
(n) As of the
Closing Date, the Trust (for the benefit of the Noteholders and the
Swap Counterparty) will have good title, free and clear of all
prior liens, charges and encumbrances, to the Receivables and such
other items comprising the corpus of the Trust transferred to the
Trust pursuant to the Sale and Servicing Agreement.
(o) As of the
Closing Date, the Notes and each of the Basic Documents will
conform in all material respects to the description thereof
contained in the Registration Statement, the Preliminary Prospectus
and the Final Prospectus, as then amended and
supplemented.
(p) Deloitte
& Touche LLP are independent public accountants with respect to
the Seller within the meaning of the Act and the Rules and
Regulations.
(q) Neither
the Trust nor the Seller is required to be registered as an
“investment company” under the Investment Company Act
of 1940, as amended (the “1940 Act”).
6
(r) The
representations and warranties of the Seller and the Servicer in
the Sale and Servicing Agreement are true and correct in all
material respects.
(s) Other
than the Preliminary Prospectus and the Final Prospectus, neither
the Seller nor the Servicer (including their respective agents and
representatives other than the Underwriters in their capacity as
such) has made, used, prepared, authorized, approved or referred to
and will not prepare, make, use, authorize, approve or refer to any
“written communication” (as defined in Rule 405 under
the Act) that constitutes an offer to sell or solicitation of an
offer to buy the Notes.
(t) Neither
the Seller nor the Servicer knows 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, the Preliminary Prospectus or the Final
Prospectus, as then amended and supplemented, which is not filed or
described as required.
3.
Purchase, Sale and Delivery of Underwritten 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 Underwritten Notes
set forth opposite the names of the Underwriters in
Schedule 1 hereto.
(b) The
Underwritten Notes are to be purchased by the Underwriters at a
purchase price equal to (i) in the case of the Underwritten
Class A-1 Notes, 99.87500% of the aggregate principal amount
thereof, (ii) in the case of the Underwritten Class A-2
Notes, 99.82500% of the aggregate principal amount thereof,
(iii) in the case of the Underwritten Class A-3a Notes,
99.75344% of the aggregate principal amount thereof, and
(iv) in the case of the Underwritten Class A-3b Notes,
99.77000% 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
Underwritten Notes to the Representative, for the account of the
Underwriters, at the office of Mayer Brown LLP, at 350 South Grand
Avenue, Los Angeles, California, on December 11, 2008, at
10:00 a.m., New York 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 Underwritten 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 Underwritten Notes will be represented by
book entries on the records of DTC and participating members
thereof. Definitive securities evidencing the Underwritten Notes
will be available only under the limited circumstances set forth in
the Indenture.
4.
Offering by Underwriters . It is understood that the several
Underwriters propose to offer the Underwritten Notes for sale to
the public as set forth in the Preliminary Prospectus and the Final
Prospectus.
7
5.
Covenants of the Seller . The Seller covenants and agrees
with the several Underwriters that:
(a) The
Seller will file the Preliminary Prospectus and the Final
Prospectus with the Commission pursuant to and in accordance with
Rule 424(b) within the prescribed time period and will provide
evidence satisfactory to the Representative of such timely filing.
If the time of effectiveness 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 time of effectiveness
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 462(b). The
Seller will advise the Representative promptly of any such filing
pursuant to Rule 424(b) or Rule 462(b), as
applicable.
(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, the Preliminary
Prospectus or the Final 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
time of effectiveness of the Registration Statement is subsequent
to the execution and delivery of this Agreement) and of any
amendment or supplementation of the Registration Statement, the
Preliminary Prospectus or the Final 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 Underwritten 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 (including delivery as
contemplated by Rule 172 under the Act), either (i) any
event shall have occurred as a result of which the Preliminary
Prospectus or the Final Prospectus, as then amended and
supplemented, 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 Preliminary
Prospectus or the Final 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 Preliminary Prospectus or the Final 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 7.
(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 of the Registration Statement, an earnings
statement of the Trust covering a period of at least twelve
consecutive
8
months
beginning after such effective date and satisfying the provisions
of Section 11(a) of the Act (including Rule 158 promulgated
thereunder).
(f) The
Seller will furnish to the Representative copies of the
Registration Statement (which will include all exhibits), the
Preliminary Prospectus, the Final 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 Underwritten Notes are outstanding, the Seller will
furnish to the Representative copies of all reports or other
communications (financial or otherwise) furnished to Holders, and
deliver to the Representative during such same period (i) as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission and
(ii) such additional information concerning the business and
financial condition of the Seller and the Trust as the
Representative may from time to time reasonably request.
(h) The
Seller will pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including
(i) the printing (or otherwise reproducing) and filing of the
Registration Statement as originally filed and of each amendment
thereto; (ii) the preparation, issuance and delivery of the
Underwritten 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 Underwritten Notes;
(v) the qualification of the Underwritten 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 the Preliminary
Prospectus and the Final 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”), Standard & Poor’s, a
division of The McGraw-Hill Companies, Inc. (“S&P”)
and Fitch Ratings (“Fitch”) for rating the Notes. The
Underwriters shall not be responsible for the fees and
disbursements of the Owner Trustee, the Indenture Trustee and their
respective counsel.
(i) Until the
retirement of the Underwritten Notes, or until such time as the
Underwriters shall cease to maintain a secondary market in the
Underwritten 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 and Owner Trustee pursuant to
Article IV of the Sale and Servicing Agreement, as soon as
such statements and reports are furnished to the Indenture Trustee
and Owner Trustee.
(j) On or
promptly after the Closing Date, the Seller shall cause its and the
Servicer’s computer records relating to the Receivables to be
marked to show the Trust’s absolute ownership of the
Receivables, and from and after the Closing Date neither the Seller
nor the Servicer shall take any action inconsistent with the
Trust’s ownership of such Receivables, other than as
permitted by the Sale and Servicing Agreement.
(k) To the
extent, if any, that the rating provided with respect to the Notes
by Moody’s, S&P or Fitch is conditional upon the
furnishing of documents or the taking of any
9
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.
Covenant of the Underwriters . Each of the Underwriters
severally, and not jointly, covenants and agrees with the Seller
that other than the Preliminary Prospectus and the Final
Prospectus, without the Servicer’s prior written approval,
such Underwriter has not made, used, prepared, authorized, approved
or referred to and will not prepare, make, use, authorize, approve
or refer to any “written communication” (as defined in
Rule 405 under the Act) relating to the offer and sale of the
Underwritten Notes that would constitute a “prospectus”
or a “free writing prospectus,” each as defined in the
Act or the Rules and Regulations thereunder, including, but not
limited to any “ABS informational and computational
materials” as defined in Item 1101(a) of Regulation AB
under the Act; provided , however , that
(i) each Underwriter may prepare and convey one or more
“written communications” (as defined in Rule 405
under the Act) containing no more than the following:
(A) information contemplated by Rule 134 under the Act
and included or to be included in the Preliminary Prospectus or the
Final Prospectus, including but not limited to, information
relating to the class, size, weighted average life, rating,
expected final payment date, legal maturity date, and/or the final
price of the Underwritten Notes, as well as a column or other entry
showing the status of the subscriptions for the Underwritten Notes
and/or expected pricing parameters of the Underwritten Notes,
(B) an Intex CDI file that does not contain any Issuer
Information (as defined below) other than Issuer Information
included in the Preliminary Prospectus previously filed with the
Commission or other written communication containing no more than
the following: information contemplated by Rule 134 under the
Act and included or to be included in the Preliminary Prospectus or
the Prospectus, as well as a column or other entry showing weighted
average life, the status of the subscriptions for the Notes and/or
expected pricing parameters of the Notes, and (C) information
customarily included in confirmations of sales of securities and
notices of allocations (each such written communication, an
“Underwriter Free Writing Prospectus”); and
(ii) unless otherwise consented to by the Seller or the
Servicer, no such Underwriter Free Writing Prospectus shall be
conveyed in a manner reasonably designed to lead to its broad
unrestricted dissemination such that, as a result of such
conveyance, the Seller or the Servicer shall be required to make
any filing of such Underwriter Free Writing Prospectus pursuant to
Rule 433(d) under the Act. As used herein, the term “Issuer
Information” means any information of the type specified in
clauses (1) — (5) of footnote 271 of Commission Release
No. 33-8591 (Securities Offering Reform), other than
Underwriter Derived Information. As used herein, the term
“Underwriter Derived Information” shall refer to
information of the type described in clause (5) of footnote
271 of Commission Release No. 33-8591 (Securities Offering
Reform) when prepared by any Underwriter, including traditional
computational and analytical materials prepared by the
Underwriter.
7.
Conditions of the Obligations of the Underwriters . The
obligations of the several Underwriters to purchase and pay for the
Underwritten Notes will be subject to the accuracy of the
representations and warranties on the part of the Seller and the
Servicer herein on the date hereof and at the Closing Date, to the
accuracy of the statements of officers of the Seller and the
Servicer made pursuant to the provisions hereof, to the performance
by the Seller and the Servicer of their respective obligations
hereunder and to the following additional conditions
precedent:
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(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
time of effectiveness of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such time of
effectiveness 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 time of
effectiveness of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Preliminary
Prospectus and the Final Prospectus and all amendments and
supplements thereto shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. If the time of effectiveness of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such time of effectiveness 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 Final Prospectus is
printed and distributed to any Underwriter, or shall have occurred
at such later date as shall have been consented to by the
Representative. Prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Seller, shall be
contemplated by the Commission.
(c) The
Underwriters shall have received an officers’ certificate,
dated the Closing Date, signed by the Chairman of the Board, the
President or any Vice President and by a principal financial or
accounting officer of the Seller representing and warranting that,
to the best of such officers’ knowledge after reasonable
investigation, as of the Closing Date:
(i) The
representations and warranties of the Seller in this Agreement are
true and correct in all material respects, that the Seller has
complied with all agreements and satisfied in all material respects
all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the best
of their knowledge, are contemplated by the Commission.
(ii) Except as
otherwise set forth therein, there has been no material adverse
change, since the respective dates as of which information is given
in the Preliminary Prospectus or the Final Prospectus (as then
amended and supplemented), in the condition, financial or
otherwise, earnings or business affairs, whether or not arising out
of the ordinary course of business, of the Seller or any of its
affiliates (as such term is defined in Rule 501(b) under the Act)
(each, an “Affiliate”), or in the ability of such
entity to perform its obligations under each Basic Document to
which it is a party or by which it may be bound. Except as
otherwise indicated by the context, all references to the terms
“material” in this Agreement that refer to the Seller
or its Affiliates, or any of them, shall be interpreted in
proportion to the business of the Servicer and its consolidated
subsidiaries, as a whole, and not in proportion to the business of
the Seller or its Affiliate(s) individually.
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(d) The
Underwriters shall have received an officers’ certificate,
dated the Closing Date, signed by the Chairman of the Board, the
President or any Vice President and by a principal financial or
accounting officer of the Servicer representing and warranting
that, to the best of such officers’ knowledge after
reasonable investigation, as of the Closing Date:
(i) The
representations and warranties of the Servicer in this Agreement
are true and correct in all material respects, that the Servicer
has complied with all agreements and satisfied, in all material
respects, all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, that no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or,
to the best of their knowledge, are contemplated by the
Commission.
(ii) Except as
otherwise set forth therein, there has been no material adverse
change, since the respective dates as of which information is given
in the Preliminary Prospectus or the Final Prospectus (as then
amended and supplemented), in the condition, financial or
otherwise, earnings or business affairs, whether or not arising out
of the ordinary course of business, of the Servicer or any of its
Affiliates, or the ability of such entity to perform its
obligations under each Basic Document to which it is a party or by
which it may be bound. Except as otherwise indicated by the
context, all references to the terms “material” in this
Agreement that refer to the Servicer or its Affiliates, or any of
them, shall be interpreted in proportion to the business of the
Servicer and its consolidated subsidiaries, as a whole, and not in
proportion to the business of the Servicer or its Affiliate(s)
individually.
(e) Subsequent
to the execution and delivery of this Agreement, there shall not
have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Seller, Nissan Motor Co., Ltd., Nissan North
America, Inc. (“NNA”) or the Servicer which, in the
judgment of the Representative, materially impairs the investment
quality of the Underwritten Notes or makes it impractical or
inadvisable to proceed with completion of the sale of and payment
for the Underwritten Notes; (ii) any downgrading in the rating
of any debt securities of NNA or any of its direct or indirect
subsidiaries by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g) under
the Act), or any public announcement that any such organization has
under surveillance or review its rating of any such debt securities
(other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange or any
setting of minimum prices for trading on such exchange;
(iv) any material disruption in commercial banking, securities
entitlement or clear
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