EXHIBIT 1.1
$950,000,000 NISSAN MASTER OWNER TRUST RECEIVABLES,
SERIES 2003-A NOTES
October 2, 2003
Underwriting Agreement
Xxxxxx Xxxxxxx & Co. Incorporated,
As Representative of the
Several Underwriters (the "Representative")
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. Nissan Master Owner Trust Receivables
(the "Trust"), a Delaware statutory trust, proposes to sell $950,000,000
principal amount of Nissan Master Owner Trust Receivables, Series 2003-A Notes
(the "Notes"), issued by the Trust. The Trust was formed pursuant to a trust
agreement, dated as of May 13, 2003 between Nissan Wholesale Receivables
Corporation II (the "Transferor") and Wilmington Trust Company, as owner trustee
(the "Owner Trustee"), as amended and restated by the amended and restated trust
agreement, dated as of October 15, 2003 (as amended and restated, the "Trust
Agreement"), between the parties thereto. The Notes will be issued pursuant to a
supplement, dated as of October 15, 2003 (the "Indenture Supplement"), to an
amended and restated Indenture, dated as of October 15, 2003 (together with the
Indenture Supplement, the "Indenture"), between the Trust and JPMorgan Chase
Bank, as indenture trustee, (the "Indenture Trustee"), and will be governed by
the terms of an amended and restated Transfer and Servicing Agreement, dated as
of October 15 (the "Transfer and Servicing Agreement"), among the Transferor,
Nissan Motor Acceptance Corporation ("NMAC"), as servicer (the "Servicer") and
the Owner Trustee on behalf of the Trust.
Capitalized terms used herein and not otherwise defined herein
shall have the meanings given them in the Indenture and the Annex of Definitions
attached to the Indenture.
2. Representations and Warranties of the Transferor and
the Servicer. Each of the Trust, the Transferor 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 (Nos. 333-105666 and
333-105666-01) and Amendment No. 1 thereto, 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
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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 Transferor and the Trust do 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).
(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 Transferor and the Trust have advised the
Representative that they do 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 Transferor and the Trust have
advised the Representative that they propose 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 Transferor and the Trust have
advised the Representative that they propose to file, but have 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.
(c) The registration statement (Nos. 333-105666 and
333-105666-01) and Amendment No. 1 thereto and all other amendments and
supplements thereto, 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
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initial registration statement as of its Effective Time pursuant to
Rule 430A(b) under the Act ("Rule 430A(b)"), is hereinafter referred to
as the "Initial Registration Statement." The additional registration
statement and all amendments and supplements thereto, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and deemed to be a part of
the additional registration statement as of its Effective Time pursuant
to Rule 430A(b), is hereinafter referred to as the "Additional
Registration Statement." The Initial Registration Statement, 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
as of such date pursuant to Item 12 of Form S-3 or pursuant to a
no-action letter of the Commission. The preliminary prospectus
supplement dated September 30, 2003, relating to the Notes (the
"Preliminary Prospectus Supplement") and the preliminary prospectus
(the "Preliminary Base Prospectus") relating to the Registered
Securities (including the Notes), as filed with the Commission on
October 2, 2003 in connection with the offering and sale of the Notes
pursuant to and in accordance with Rule 424(b) under the Act ("Rule
424(b)"), including all material incorporated by reference therein, is
hereinafter referred to as the "Preliminary Prospectus." The prospectus
supplement relating to the Notes (the "Prospectus Supplement") and the
prospectus (the "Base Prospectus") relating to the Registered
Securities (including the Notes), as filed with the Commission in
connection with the offering and sale of the Notes pursuant to and in
accordance with Rule 424(b), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus."
(d) (A) On the Effective Date of any Registration
Statement whose Effective Time is prior to the execution and delivery
of this Agreement, each such Registration Statement conformed, (B) on
the date of this Agreement, each such Registration Statement conforms
and (C) on any related Effective Date subsequent to the date of this
Agreement, each such Registration Statement will conform, in all
respects to the requirements of the Act and the rules and regulations
of the Commission (the "Rules and Regulations") and the Trust Indenture
Act of 1939, as amended (the "1939 Act"), and at such times each such
Registration Statement, as amended, did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading. At the time of filing of the Prospectus
pursuant to Rule 424(b) or, if no such filing is required, at the
Effective Date of the Additional Registration Statement that includes
the Prospectus, on the date of this Agreement and at the Series 2003-A
Issuance Date (as defined in Section 3(c)), 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, as amended and
supplemented, 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 Transferor
and the Trust by any Underwriter through the Representative
specifically for use therein or to that part of the Registration
Statement
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which constitutes the Statement of Qualification under the 1939 Act on
Form T-1 (the "Form T-1") of the Indenture Trustee (which will be
represented and warranted to by the Indenture Trustee). If the
Effective Time of the Registration Statement is subsequent to the date
of this Agreement, no Additional Registration Statement has been or
will be filed. The Indenture has been qualified under the 1939 Act.
(e) The Transferor 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, 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 Transferor's ability to
perform its obligations under this Agreement, the Trust Agreement, the
Transfer and Servicing Agreement, the Indenture or the amended and
restated Receivables Purchase Agreement, dated as of October 15, 2003,
between NMAC and the Transferor (collectively, the "Basic Documents").
(f) The Trust has been duly formed and is validly
existing as a statutory trust and is in good standing under the laws of
the state of Delaware, with full power and authority to own its
properties and conduct its business as described in the 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.
(g) 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, 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 to which it is a party.
(h) 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
Trust, the Transferor 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
Trust, the Transferor 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 Trust, the Transferor's or the
Servicer's respective ability to perform its obligations under the
Basic Documents to which it is a party or the validity or
enforceability thereof.
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(i) 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 Trust, the Transferor 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.
(j) Neither the Trust, the Transferor nor the Servicer is
in violation of its trust agreement, 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 Trust, the Transferor's or the Servicer's respective ability to
perform its obligations under the Basic Documents to which it is a
party. 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 Trust, the Transferor 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
Trust, the Transferor's or the Servicer's respective ability to perform
its obligations under the Basic Documents to which it is a party or the
validity or enforceability thereof, or (ii) conflict with the Trust,
the Transferor's or the Servicer's charter or by-laws, and each of the
Trust, the Transferor and the Servicer has power and authority to enter
into the Basic Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby.
(k) Each Basic Document to which the Trust, the
Transferor and the Servicer is a party has 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, such party, 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.
(l) The Notes have been duly authorized and, when
executed and delivered in accordance with the Indenture and delivered
against payment therefor pursuant to this Agreement, will be valid and
binding obligations of the Trust, enforceable against the Trust in
accordance with their respective terms, except as limited by
bankruptcy, insolvency, reorganization or other similar laws relating
to or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
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(m) There are no legal or governmental proceedings
pending to which the Trust, the Transferor or the Servicer is a party
or of which any property of the Trust, the Transferor or the Servicer
is the subject, and to the knowledge of the Trust, the Transferor and
the Servicer, as applicable, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others, (A)
(whether individually or in the aggregate) that are required to be
disclosed in the Registration Statement or (B)(1) asserting the
invalidity of all or part of any Basic Document, (2) seeking to prevent
the issuance of the Notes, (3) (whether individually or in the
aggregate) that would materially and adversely affect the Trust's, the
Transferor's or the Servicer's obligations under any Basic Document to
which it is a party, or (4) (whether individually or in the aggregate)
seeking to affect adversely the federal or state income tax attributes
of the Notes.
(n) Any taxes, fees and other governmental charges that
have been assessed and are known to the Transferor to be due in
connection with the execution, delivery and issuance of the Basic
Documents shall have been paid by the Trust, the Transferor or the
Servicer at or prior to the Series 2003-A Issuance Date.
(o) Each of the Trust, the Transferor 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 Trust, the Transferor or the Servicer to
perform its duties under the Basic Documents to which it is a party,
and none of the Trust, the Transferor 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
Trust, the Transferor or the Servicer to perform its obligations under
the Basic Documents to which it is a party.
(p) As of the Series 2003-A Issuance Date, the Excess
Funding Account, the Reserve Account, the Collection Account and the
Accumulation Account will be subject to a first-priority security
interest in favor of the Indenture Trustee for the benefit of the
Noteholders.
(q) As of the Series 2003-A Issuance Date, the Trust (for
the benefit of the Noteholders) will have good title, free and clear of
all prior liens, charges and encumbrances, to the Receivables and such
other items comprising the corpus of the Trust transferred to the Trust
pursuant to the Transfer and Servicing Agreement.
(r) As of the Series 2003-A Issuance Date, the Indenture,
the Notes and the Basic Documents will conform in all material respects
to the description thereof contained in the Registration Statement and
the Prospectus, as then amended and supplemented.
(s) Deloitte & Touche LLP are independent public
accountants with respect to the Transferor within the meaning of the
Act and the Rules and Regulations.
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(t) Neither the Trust nor the Transferor is required to
be registered as an "investment company" under the Investment Company
Act of 1940, as amended.
(u) The representations and warranties of each of the
Transferor, the Trust and the Servicer in the Basic Documents to which
it is a party are true and correct in all material respects.
3. Purchase, Sale and Delivery of Notes.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions
herein set forth, the Trust agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Trust, the aggregate principal amounts of the Notes set forth opposite
the names of the Underwriters in Schedule 1 hereto.
(b) The Notes are to be purchased by the Underwriters at
a purchase price equal to 99.80% of the aggregate principal amount
thereof.
(c) Against payment of the purchase price by wire
transfer of immediately available funds to the Trust, the Trust will
deliver the Notes to the Representative, for the account of the
Underwriters, at the office of O'Melveny & Xxxxx LLP, at 000 Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, on October 15, 2003, at 10:00 a.m.,
Los Angeles time, or at such other time not later than seven full
business days thereafter as the Representative, the Transferor and the
Trust determine, such time being herein referred to as the "Series
2003-A Issuance Date." The Notes to be so delivered will be initially
represented by one or more securities registered in the name of Cede &
Co., the nominee of The Depository Trust Company ("DTC"). The interests
of beneficial owners of the Notes will be represented by book entries
on the records of DTC and participating members thereof. Definitive
securities will be available only under the limited circumstances set
forth in the Indenture.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Notes for sale to the public as set
forth in the Prospectus.
5. Covenants of the Transferor and the Trust. Each of
the Transferor and the Trust, as applicable covenants and agrees with the
several Underwriters that:
(a) To the extent that the Transferor or the Trust has
prepared (i) Collateral Term Sheets (as defined in Section 7(a)) that
the Underwriters, the Transferor, the Trust or NMAC have provided to a
prospective investor, the Trust will file with the Commission such
Collateral Term Sheets as an exhibit to a report on Form 8-K within two
business days of its receipt thereof or (ii) Structural Term Sheets or
Computational Materials (each as defined in Section 7(a)), the
Transferor or the Trust will file or cause to be filed with the
Commission a report on Form 8-K containing such Structural Term Sheet
and Computational Materials, as soon as reasonably practicable after
the date of this Agreement, but in any event, not later than the date
on which the Prospectus is made available to the Representative in
final form.
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(b) If the Effective Time is prior to the execution and
delivery of this Agreement, the Transferor will file the Prospectus
with the Commission pursuant to and in accordance with Rule 424(b) not
later than the second business day following the execution and delivery
of this Agreement. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an Additional Registration Statement is necessary to register a portion
of the Notes under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Transferor and the
Trust 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
Transferor and the Trust will advise the Representative promptly of any
such filing pursuant to Rule 424(b).
(c) The Transferor 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
Transferor 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.
(d) The Transferor will arrange for the qualification of
the Notes for offering and sale under the securities laws of such
jurisdictions in the United States as the Representative may reasonably
designate and to continue such qualifications in effect so long as
necessary under such laws for the distribution of such securities;
provided that in connection therewith the Transferor 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.
(e) If, at any time when the delivery of a prospectus
shall be required by law in connection with sales of any Notes, either
(i) any event shall have occurred as a result of which the Prospectus,
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 Prospectus, the
Transferor will promptly notify the Representative and will promptly
prepare for review by the Representative and file with the Commission
an amendment or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance. Neither your consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(f) The Transferor will cause the Trust to make generally
available to Holders as soon as practicable, but not later than
fourteen months after the Effective Date, an earnings statement of the
Trust covering a period of at least twelve consecutive months
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beginning after such Effective Date and satisfying the provisions of
Section 11(a) of the Act (including Rule 158 promulgated thereunder).
(g) The Transferor will furnish to the Representative
copies of the Registration Statement (which will include all exhibits),
the 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.
(h) So long as any of the Notes are outstanding, the
Transferor 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
Transferor and the Trust as the Representative may from time to time
reasonably request.
(i) The Transferor will pay or cause to be paid all
expenses incident to the performance of its obligations under this
Agreement, including (i) the printing (or otherwise reproducing) and
filing of the Registration Statement as originally filed and of each
amendment thereto; (ii) the preparation, issuance and delivery of the
Notes to the Underwriters; (iii) the fees and disbursements of the
Transferor's and the Servicer's counsel and accountants; (iv) the fees
of DTC in connection with the book-entry registration of the Notes; (v)
the qualification of the Notes under state securities law in accordance
with the provisions of Section 5(c) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the blue
sky survey, if required; (vi) the printing (or otherwise reproducing)
and delivery to the Underwriters of copies of all Computational
Materials, each Structural Term Sheet, each Collateral Term Sheet, 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 Xxxxx'x Investors Service, Inc. ("Xxxxx'x"), Xxxxx Inc.
("Fitch") and Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. ("S&P"), for rating the Notes. The
Underwriters shall not be responsible for the fees and disbursements of
the Owner Trustee, the Indenture Trustee and their respective counsel.
(j) Until the retirement of the Notes, or until such time
as the Underwriters shall cease to maintain a secondary market in the
Notes, whichever occurs first, the Transferor will deliver to the
Representative the annual statements of compliance and the annual
independent certified public accountants' reports furnished to the
Indenture Trustee pursuant to Article III of the Transfer and Servicing
Agreement, as soon as such statements and reports are furnished to the
Indenture Trustee.
(k) On or promptly after the Series 2003-A Issuance Date,
the Transferor 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 Series 2003-A
Issuance Date neither the Transferor nor the Servicer shall take any
action
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inconsistent with the Trust's ownership of such Receivables, other than
as permitted by the Transfer and Servicing Agreement.
(l) To the extent, if any, that the rating provided with
respect to the Notes by Moody's, Fitch or S&P is conditional upon the
furnishing of documents or the taking of any other actions by the
Transferor, the Transferor shall furnish, and shall cause the Servicer
to furnish, such documents and take any such other actions.
6. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the Notes
will be subject to the accuracy of the representations and warranties on the
part of the Trust, the Transferor and the Servicer herein on the date hereof and
at the Series 2003-A Issuance Date, to the accuracy of the statements of
officers of the Trust, the Transferor and the Servicer made pursuant to the
provisions hereof, to the performance by the Trust, the Transferor 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 Transferor and at the Series 2003-A Issuance Date, Deloitte &
Touche LLP shall have furnished to the Representative letters dated
respectively as of the date of this Agreement and as of the Series
2003-A Issuance 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 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 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 Series 2003-A Issuance 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 Transferor, shall be
contemplated by the Commission.
(c) The Underwriters shall have received an officers'
certificate, dated the Series 2003-A Issuance Date, signed by the
Chairman of the Board, the President or any Vice President and by a
principal financial or accounting officer of the Transferor
representing and warranting that, to the best of such officers'
knowledge after reasonable investigation, as of the Series 2003-A
Issuance Date:
(i) The representations and warranties of the
Transferor in this Agreement are true and correct in all
material respects, that the Transferor has
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complied with all agreements and satisfied in all material
respects all conditions on its part to be performed or
satisfied hereunder at or prior to the Series 2003-A Issuance
Date, that no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the best of their
knowledge, are contemplated by the Commission.
(ii) There has been no material adverse change,
since the respective dates as of which information is given in
the Prospectus, as then amended and supplemented, (except as
otherwise set forth therein and exclusive of amendments or
supplements after the date hereof), in the condition,
financial or otherwise, earnings or business affairs, whether
or not arising out of the ordinary course of business, of the
Transferor 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 Transferor 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 Transferor or its
Affiliate(s) individually.
(d) The Underwriters shall have received an officers'
certificate, dated the Series 2003-A Issuance Date, signed by the
Chairman of the Board, the President or any Vice President and by a
principal financial or accounting officer of NMAC representing and
warranting that, to the best of such officers' knowledge after
reasonable investigation, as of the Series 2003-A Issuance Date:
(i) The representations and warranties of NMAC
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
Series 2003-A Issuance Date, that no stop order suspending the
effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or,
to the best of their knowledge, are contemplated by the
Commission.
(ii) There has been no material adverse change,
since the respective dates as of which information is given in
the Prospectus, as then amended and supplemented (except as
otherwise set forth therein and exclusive of amendments or
supplements after the date hereof), in the condition,
financial or otherwise, earnings or business affairs, whether
or not arising out of the ordinary course of business, of NMAC
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 NMAC (individually
or as 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 NMAC or its Affiliate(s)
individually.
11
(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 the Trust, Transferor,
Nissan Motor Co., Ltd., Nissan North America Inc. ("NNA") or the
Servicer which, in the judgment of the Representative, materially
impairs the investment quality of the Notes or makes it impractical or
inadvisable to proceed with completion of the sale of and payment for
the Notes; (ii) any downgrading in the rating of any debt securities of
NNA or any of its direct or indirect subsidiaries by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any such
debt securities (other than an announcement with positive implications
of a possible upgrading, and no implication of a possible downgrading,
of such rating); (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (iv) any material
disruption in commercial banking, securities entitlement or clearance
services in the United States; (v) any banking moratorium declared by
federal or New York authorities; or (vi) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of the
Representative, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for the Notes.
(f) Xxx Xxxxx, Esq., General Counsel of the Transferor
and NMAC, or other counsel satisfactory to the Representative in its
reasonable judgment, shall have furnished to the Representative such
counsel's written opinion, dated the Series 2003-A Issuance Date, in
substantially the form set forth below, with such changes therein as
counsel for the Underwriters shall reasonably agree:
(i) The Transferor is a corporation validly
existing 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, as then
amended or 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
Transferor's ability to perform its obligations under the
Basic Documents.
(ii) The Servicer is a corporation validly
existing 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, as then
amended or 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.
12
(iii) Each of the Transferor and the Servicer has
all necessary corporate power and authority to execute,
deliver and perform its obligations under the Basic Documents
to which it is a party.
(iv) The execution and delivery by each of the
Transferor and the Servicer of the Basic Documents to which it
is a party and the performance of its obligations thereunder
have been duly authorized by all necessary corporate action on
the part of the Transferor and the Servicer, as applicable,
and each of the Basic Documents to which each is a party has
been duly executed and delivered by it.
(v) The execution, delivery and performance by
each of the Transferor and the Servicer of the Basic Documents
to which it is a party and performance by each of them of
their respective obligations thereunder will not violate,
result in a breach of any of the terms or provisions of, or
constitute (with or without notice or lapse of time or both) a
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the properties or
assets of the Transferor or the Servicer (other than as
contemplated in the Basic Documents) pursuant to the terms of
(1) the Servicer's Articles of Incorporation or the
Transferor's Certificate of Incorporation, (2) the Servicer's
and the Transferor's By-Laws, (3) any material agreement or
instrument to which the Servicer or the Transferor is a party
or by which either the Servicer or the Transferor or any of
their respective properties is bound, (4) the Delaware General
Corporation Law or any statute, rule, regulation or order of
any California or federal body or any court having
jurisdiction over the Servicer, the Transferor or their
respective properties or (5) the Notes.
(vi) No authorization, approval, consent, order
or permit of any California or federal governmental agency or
authority is required on the part of the Servicer or the
Transferor in connection with the execution and delivery of
and performance by the Servicer or the Transferor 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 Series 2003-A
Issuance Date.
(vii) Nothing has come to such counsel's attention
that would cause it to believe that as of the Effective Date
and at the Series 2003-A Issuance Date the Registration
Statement and the Prospectus, as then amended and supplemented
(other than the financial statements and the other accounting
information contained therein or omitted therefrom, as to
which such counsel need express no belief) contained or
contain any untrue statement of a material fact or omitted or
omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading,
or that the descriptions therein of statutes and governmental
proceedings and contracts and other documents are inaccurate
and do not fairly present the information required to be shown
therein.
13
(viii) 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, as
then amended or supplemented, which is not filed or described
as required.
(ix) There are no legal or governmental
proceedings known by such counsel, or for which the Servicer
or the Transferor has been served official notice, to be
pending to which the Transferor or the Servicer is a party or
of which any property of the Transferor or the Servicer is the
subject, and no such proceedings are known by such counsel to
be threatened or contemplated by governmental authorities or
threatened by others, (A) (whether individually or in the
aggregate) that are required to be disclosed in the
Registration Statement or (B)(1) asserting the invalidity of
all or part of any Basic Document, (2) seeking to prevent the
issuance of the Notes, (3) (whether individually or in the
aggregate) that would materially and adversely affect the
Transferor's or the Servicer's obligations under any Basic
Document to which it is a party, or (4) (whether individually
or in the aggregate) seeking to affect adversely the federal
or state income tax attributes of the Notes.
(x) The Transferor has duly authorized and
executed the written order to the Owner Trustee to execute and
deliver the issuer order to the Indenture Trustee to
authenticate the Notes.
(xi) Such counsel is familiar with NMAC's
standard operating procedures relating to the perfected first
priority security interest granted by the Dealers in the
Vehicles and Receivables and the perfected security interest
in other Collateral (which security interest may be
subordinate) in the ordinary course of the NMAC's business and
relating to the sale by the NMAC to the Transferor of such
Receivables and such security interests in the ordinary course
of the NMAC's and the Transferor's business. Assuming that the
NMAC's standard procedures are followed with respect to the
perfection of security interests in the Vehicles, Receivables
and the security interest in the other Collateral (which
security interest may be subordinate) (and such counsel has no
reason to believe that the NMAC has not or will not continue
to follow its standard procedures in connection with the
perfection of security interests in the Vehicles and the
Receivables and the subordinated security interest in the
other Collateral), the NMAC has acquired or will acquire a
perfected first priority security interest in the Vehicles and
the Receivables and a perfected security interest in the other
Collateral (which security interest may be subordinate).
(xii) Each of the Transferor and the Servicer has
obtained all necessary governmental licenses and governmental
approvals under the federal law of the United States and the
laws of the State of California to conduct their respective
businesses where the failure to obtain such licenses and
approvals would render any material part of the corpus of the
Trust unenforceable or would materially and adversely affect
the ability of either the Transferor or the Servicer to
perform any
14
of their respective obligations under, or the enforceability
of, any of the Basic Documents.
(g) O'Melveny & Xxxxx LLP, special counsel to the
Transferor and the Servicer, shall have furnished to the Representative
their written opinion, dated as of the Series 2003-A Issuance 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 Transferor
or the Servicer is a party has been duly authorized by all
necessary corporate action on the part of each of the
Transferor or the Servicer, as applicable, and has been duly
executed and delivered by the Transferor or the Servicer, as
applicable.
(ii) Assuming the due authorization, execution
and delivery thereof by the other parties thereto, each Basic
Document to which the Transferor or the Servicer is a party
constitutes a legally valid and binding obligation of the
Transferor or the Servicer, as applicable, 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 (including, without limitation,
fraudulent conveyance laws) and by 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 considered
in a proceeding in equity or at law).
(iii) Assuming the Notes have been duly and
validly authorized, when executed by the Owner Trustee and
authenticated by the Indenture Trustee as specified in the
Indenture and the Trust Agreement and delivered against
payment of the consideration specified therefor in this
Agreement, the Notes will be legally valid and binding
obligations of the Trust, entitled to the benefits of the
Indenture (including the Indenture Supplement), and
enforceable against the Trust in accordance with their terms,
except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in
effect, relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws)
and by 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 considered in a proceeding in equity or
at law).
(iv) Assuming the due authorization, execution
and delivery thereof by the Trust and the Indenture Trustee,
as applicable, each of the Transfer and Servicing Agreement
and the Indenture constitutes a legally 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 (including without limitation,
fraudulent conveyance laws) and by the
15
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 considered in a proceeding at law or in
equity).
(v) Neither the Transferor nor the Trust is
required to be registered under the Investment Company Act of
1940, as amended (the "1940 Act").
(vi) With respect to Vehicles, Receivables and
the NMAC's subordinated security interest in the other
Collateral 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 Transferor as the
transferee and (B) the filing of a UCC financing statement
naming the Transferor 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
Vehicles, Receivables and the Servicer's subordinated security
interest in the other Collateral to the Transferor, and the
Transferor's security interest in such Vehicles, Receivables
and the Servicer's subordinated security interest in the other
Collateral 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 Vehicles and Receivables and a perfected security
interest in other Collateral (which security interest may be
subordinate), except that at the time that a dealer sells or
leases a Vehicle, the Trust's security interest in the vehicle
may terminate.
(vii) The Receivables are "chattel paper" as
defined in the Uniform Commercial Code, as in effect in the
State of California and the State of New York.
(viii) For federal income tax purposes the Notes
will be characterized as debt, and the Trust will not be
classified as an association taxable as a corporation or as a
publicly traded partnership for federal or California income
and franchise tax purposes.
(ix) The statements in the Prospectus Supplement
under "MATERIAL FEDERAL INCOME TAX CONSEQUENCES" and "ERISA
CONSIDERATIONS," and in the Base Prospectus under the
"MATERIAL FEDERAL INCOME TAX CONSEQUENCES," "STATE AND LOCAL
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.
(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, the
Transferor or the Trust, or to the transactions of the type
contemplated by any
16
Basic Document, including the issuance of the Notes, is
required on the part of the Servicer, the Transferor or the
Trust for the execution and delivery of, and the performance
of their respective obligations under, any Basic Document to
which the Servicer, the Transferor or the Trust, as the case
may be, is a party, except for such as have been obtained or
made and are in full force and effect as of the Series 2003-A
Issuance 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 dealer floorplan contracts or service
dealer floorplan contracts or as may be required by any
regional or local governmental authority or under any foreign
or state securities laws.
(xi) To such counsel's knowledge, there are no
actions, proceedings or investigations, pending or threatened,
to which the Transferor, the Servicer or the Trust is a party
or of which any property of the Transferor, the Servicer or
the Trust is the subject, required to be disclosed in the
Registration Statement, other than those disclosed therein,
(A) asserting the invalidity of any Basic Document or the
Notes, (B) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by any
Basic Document, (C) that would, if determined adversely to the
Transferor, the Servicer or the Trust, materially and
adversely affect the performance by the Transferor, the
Servicer or the Trust of its respective obligations under, or
the validity or enforceability of, any Basic Document or the
Notes, or (D) seeking adversely to affect the federal income
tax attributes of the Notes as described in the Base
Prospectus and the Prospectus Supplement under the heading
"MATERIAL FEDERAL INCOME TAX CONSEQUENCES" and "STATE AND
LOCAL TAX CONSEQUENCES".
(xii) At the time of execution and delivery of (A)
the Receivables Purchase Agreement, the Servicer had the
corporate power and corporate authority to transfer the
Receivables and such other property being transferred to the
Transferor pursuant to the Receivables Purchase Agreement and
(B) the Transfer and Servicing Agreement, the Transferor had
the corporate power and corporate authority to transfer the
Receivables and such other property being transferred to the
Owner Trustee on behalf of the Trust pursuant to the Transfer
and Servicing Agreement and to cause the transfer of the Notes
to the Underwriters.
(xiii) The Indenture, the Notes and the Basic
Documents each conform in all material respects with the
respective descriptions thereof contained in the Registration
Statement and the Prospectus, as then amended or supplemented.
(xiv) Neither the Trust Agreement nor the Transfer
and Servicing Agreement needs to be qualified under the 1939
Act. The form of Indenture has been 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
17
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 (ix) and
(xiii) of this Section to the extent set forth therein; such
counsel does not opine as to any financial statements or other
financial, numerical or statistical data contained or
incorporated by reference therein; and such counsel does not
opine as to the Form T-1.
(xvi) The form of the Indenture has been qualified
under the 1939 Act and no further action is required to
qualify the Indenture under the 1939 Act. The Indenture
complies as to form in all material respects with the 1939 Act
and the rules and regulations of the Commission thereunder.
In addition, such counsel shall state that such counsel has
participated in conferences with the officers and other representatives
of the Transferor 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, as then amended or supplemented, and relying as to its
determination of materiality to an extent upon opinions of officers and
other representatives of the Transferor 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 Series 2003-A Issuance 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
18
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 & Xxxxx LLP or such counsel as may be
acceptable to the underwriters, shall have furnished their written
opinion, dated the Series 2003-A Issuance Date, with respect to the
characterization of the transfer of the Receivables by the Servicer to
the Transferor and with respect to other bankruptcy and perfection of
security interest matters, and such opinion shall be in substantially
the form previously discussed with the Representative and its counsel
and in any event satisfactory in form and in substance to the
Representative and its counsel.
(i) You shall have received an opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, dated the
Series 2003-A Issuance Date, with respect to the validity of the Notes
and such other related matters as the Representative shall require, and
the Transferor shall have furnished or caused to be furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters.
(j) You shall have received an opinion addressed to you,
the Transferor and the Servicer of Xxxxxxxx, Xxxxxx & Finger, counsel
to the Trust and the Owner Trustee, dated the Series 2003-A Issuance
Date and satisfactory in form and substance to the Representative and
its counsel, to the effect that:
(i) The Owner Trustee is a banking corporation
duly incorporated, validly existing and in good standing under
the laws of the State of Delaware with power and authority
(corporate and other) to own its properties and conduct its
business, as presently conducted by it, and to enter into and
perform its obligations under the Trust Agreement.
(ii) The Trust Agreement has been duly
authorized, executed and delivered by the Owner Trustee, and,
assuming that such agreement is a legally effective and
enforceable obligation of each of the other parties thereto,
constitutes the legal, valid and binding agreement of the
Owner Trustee, enforceable against the Owner Trustee in
accordance with its terms, except as the enforceability
thereof may be (a) limited by bankruptcy, insolvency,
reorganization, moratorium, liquidation or other similar laws
affecting the enforceability of creditors' rights generally
and (b) subject to general principles of equity (regardless of
whether considered in proceedings in equity or at law) as well
as concepts of reasonableness, good faith and fair dealing.
19
(iii) The Notes have been duly authorized,
executed and delivered by Wilmington Trust Company, as Owner
Trustee under the Trust Agreement.
(iv) Neither the execution nor delivery by the
Owner Trustee of the Trust Agreement nor the consummation of
any of the transactions by the Owner Trustee contemplated
thereby requires the consent or approval of, the giving of
notice to, the registration with, or the taking of any other
action with respect to, any governmental authority or agency
under any existing federal or Delaware state law governing the
banking or trust powers of the Owner Trustee.
(v) The Trust has been duly formed and is
validly existing as a statutory trust and is in good standing
under the laws of the state of Delaware, with full power and
authority to execute, deliver and perform its obligations
under the Indenture and the Basic Documents to which it is a
party and the Notes.
(vi) The execution and delivery by the Owner
Trustee of the Trust Agreement and the performance by the
Owner Trustee of its obligations thereunder, do not conflict
with, result in a breach or violation of or constitute a
default under the Articles of Association or Bylaws of the
Owner Trustee.
(vii) The Trust will not be subject to tax by the
state of Delaware, and subsequent purchases not otherwise
subject to taxation in Delaware will not be subject to
taxation in Delaware solely because of the purchase or
ownership of the Notes.
(viii) (A) The financing statement on form UCC-1,
naming (1) Nissan Wholesale Receivables Corporation II ("NWRC
II") as debtor, the Trust as assignor secured party and the
Indenture Trustee, as secured party, to be filed with the
Delaware Secretary of State (Uniform Commercial Code Section)
("the Division") is in an appropriate form for filing in the
State of Delaware (B) To the extent that Article 9 of the
Uniform Commercial Code as in effect in the State of Delaware
(the "Delaware UCC") is applicable (without regard to conflict
of laws principles), upon the filing of such financing
statement with the Division, the Trust will have a perfected
security interest in NWRC II's rights in that portion of the
Receivables that may be perfected by the filing of a UCC
financing statement with the Division (the "Filing
Collateral") and the proceeds thereof (as defined in Section
9-102(a)(64) of the Delaware UCC). (C) The certified copy of
the Certificate of Request (the "Search Report") obtained from
the Division, reflecting the results of a Uniform Commercial
Code search in the office of the Secretary of State against
NWRC II, listing all currently effective financing statements
filed against NWRC II as of the date and time set forth
therein (the "Effective Time"), sets forth the proper filing
office and the proper debtor necessary to identify those
Persons who under the Delaware UCC have on file financing
statements against NWRC II covering the Filing Collateral, as
of the Effective Time. The Search Report identifies each
secured party who has filed with the Division a financing
statement naming NWRC II as debtor prior to the Effective
Time.
20
(ix) (A) The financing statement on form UCC-1,
naming (1) the Trust as debtor and the Indenture Trustee, as
secured party, to be filed with the Division is in an
appropriate form for filing in the State of Delaware (B) To
the extent that the Delaware UCC is applicable (without regard
to conflict of laws principles), upon the filing of such
financing statement with the Division, the Indenture Trustee
will have a perfected security interest in Trust's rights in
that portion of the Receivables that may be perfected by the
filing of a UCC financing statement with the Division (the
"Trust Filing Collateral") and the proceeds thereof (as
defined in Section 9-102(a)(64) of the Delaware UCC). (C) The
certified copy of the Search Report obtained from the
Division, reflecting the results of a Uniform Commercial Code
search in the office of the Secretary of State against the
Trust, listing all currently effective financing statements
filed against the Trust as of the date and time set forth
therein (the "Trust UCC Effective Time"), sets forth the
proper filing office and the proper debtor necessary to
identify those Persons who under the Delaware UCC have on file
financing statements against the Trust covering the Trust
Filing Collateral, as of the Trust UCC Effective Time. The
Search Report identifies each secured party who has filed with
the Division a financing statement naming the Trust as debtor
prior to the Effective Time.
(k) You shall have received an opinion of counsel to the
Indenture Trustee, dated the Series 2003-A Issuance Date and
satisfactory in form and substance to the Representative and its
counsel, to the effect that:
(i) The Indenture Trustee has been duly
organized as a national banking association and is validly
existing as a national banking association in good standing
under the laws of the United States of America.
(ii) The Indenture Trustee has the requisite
power and authority to execute, deliver and perform its
obligations under the Indenture and has taken all action
necessary to authorize the execution, delivery and performance
by it of the Indenture.
(iii) The Indenture has been duly executed and
delivered by the Indenture Trustee and constitutes a legal,
valid and binding obligation of the Indenture Trustee,
enforceable against the Indenture Trustee in accordance with
its terms, except as limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting
the enforcement of creditors' rights generally and by general
equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at
law.
(l) The Representative shall have received an officer's
certificate dated the Series 2003-A Issuance Date of the Chairman of
the Board, the President or any Vice President and by a principal
financial or accounting officer of each of the Transferor and NMAC 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 Transferor or NMAC, as applicable, contained in the
Transfer and Servicing Agreement and the representations and warranties
of NMAC or the Transferor, as applicable, contained in
21
the Receivables Purchase Agreement are true and correct in all material
respects and that the Transferor or NMAC, 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 Series
2003-A Issuance Date in all material respects.
(m) The Notes shall have been rated in the highest rating
category by Xxxxx'x, Fitch and S&P.
(n) On or prior to the Series 2003-A Issuance Date, the
Trust, the Transferor and NMAC shall have furnished to the
Representative such further certificates and documents as the
Representative shall reasonably have required.
7. Indemnification and Contribution.
(a) The Transferor, the Trust 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, each Collateral Term Sheet, each Structural
Term Sheet, all Computational Materials, 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 none of the Transferor, the Trust and 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 Transferor, the Trust 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 none of the Transferor, the Trust and 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 a
Collateral Term Sheet, a Structural Term Sheet, Computational Materials
or the Preliminary Prospectus that is subsequently corrected in the
Prospectus (or any amendment or supplement thereto) made available to
such Underwriter within a reasonable time period, if the person
asserting such loss, claim, damage or liability was not sent or given
the Prospectus, as then amended or supplemented (excluding documents
incorporated by reference therein), on or prior to the confirmation of
the sale of the Notes; and provided, further, that none of the
Transferor, the Trust and the Servicer shall be liable to any
Underwriter or any Control Person under
22
the indemnity agreement in this subsection (a) with respect to any of
such documents to the extent that any such loss, claim, damage or
liability of such Underwriter or such Control Person results from the
fact that such Underwriter sold Notes to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference therein),
whichever is most recent, if the Transferor, the Trust or the Servicer
has previously furnished copies thereof to such Underwriter within a
reasonable time period.
The terms "Collateral Term Sheet" and "Structural Term Sheet"
shall have the respective meanings assigned to them in the February 13,
1995 letter of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx on behalf of the
Public Securities Association (which letter, and the Commission's
response thereto, were publicly available February 17, 1995). The term
"Collateral Term Sheet" as used herein includes any subsequent
Collateral Term Sheet that reflects a substantive change in the
information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter of Xxxxx & Wood LLP
on behalf of Xxxxxx, Xxxxxxx & Co., Inc. (which letter, and the
Commission's response thereto, were publicly available May 20, 1994).
(b) Each Underwriter shall, severally and not jointly,
indemnify and hold harmless the Transferor, the Trust and the Servicer
against any losses, claims, damages or liabilities to which the
Transferor, the Trust 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, the
Preliminary 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 Transferor, the Trust 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 Transferor, the Trust or the
Servicer in connection with investigating or defending any such action
or claim as such expenses are incurred. The Transferor, the Trust and
the Servicer acknowledge and agree that the only such information
furnished to the Transferor, the Trust or the Servicer by any
Underwriter through the Representative consists of the following: the
statements in the third paragraph (concerning initial offering prices,
concessions and reallowances) and in the fourth, fifth, 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
23
commencement thereof, but the omission to so notify the Indemnifying
Party will not relieve it from any liability which it may have to any
Indemnified Party otherwise than under such preceding paragraphs, and
with respect to such preceding paragraphs, any such omission shall not
relieve it from any liability except to the extent it has been
materially prejudiced by such omission. In case any such action is
brought against any Indemnified Party and it notifies the Indemnifying
Party of the commencement thereof, the Indemnifying Party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other Indemnifying Party similarly notified, to assume
the defense thereof, with counsel satisfactory to such Indemnified
Party (who may be counsel to the Indemnifying Party) and after notice
from the Indemnifying Party to such Indemnified Party of its election
so to assume the defense thereof and after acceptance of counsel by the
Indemnified Party, the Indemnifying Party will not be liable to such
Indemnified Party under this Section for any legal or other expenses
subsequently incurred by such Indemnified Party in connection with the
defense thereof other than reasonable costs of investigation. In any
such proceeding, any Indemnified Party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party
and the Indemnified Party shall have mutually agreed to the contrary,
(ii) the Indemnified Party has reasonably concluded (based upon advice
of counsel to the Indemnified Party) that there may be legal defenses
available to it or other Indemnified Parties that are different from or
in addition to those available to the Indemnifying Party, (iii) a
conflict or potential conflict exists (based upon advice of counsel to
the Indemnified Party) between the Indemnified Party and the
Indemnifying Party (in which case the Indemnifying Party will not have
the right to direct the defense of such action on behalf of the
Indemnified Party) or (iv) the Indemnifying Party has elected to assume
the defense of such proceeding but has failed within a reasonable time
to retain counsel reasonably satisfactory to the Indemnified Party. The
Indemnifying Party shall not, with respect to any action brought
against any Indemnified Party, be liable for the fees and expenses of
more than one firm (in addition to any local counsel) for all
Indemnified Parties, and all such fees and expenses shall be reimbursed
within a reasonable period of time as they are incurred. Any separate
firm appointed for the Underwriters and any Control Person in
accordance with this subsection (c) shall be designated in writing by
the Representative, and any such separate firm appointed for the
Transferor, the Trust 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 Transferor, the Trust 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
24
60 day period the Indemnifying Party has not responded thereto, and
(ii) such Indemnifying Party shall not have reimbursed the Indemnified
Party in accordance with such request prior to the date of such
settlement. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Party is
or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an Indemnified Party
under subsection (a) or (b) above, then each Indemnifying Party shall
contribute to the amount paid or payable by such Indemnified Party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above in such proportion as is appropriate to
reflect the relative benefits received by the Transferor, the Trust and
the Servicer on the one hand and the Underwriters on the other from the
offering of the Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then
each Indemnifying Party shall contribute to such amount paid or payable
by such Indemnified Party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of
the Transferor, the Trust 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 Transferor, the Trust 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 Transferor, the Trust 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
Transferor, the Trust 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 Transferor, the Trust, the Servicer and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation or by any other
method of allocation which does not take into account the equitable
considerations referred to above in this subsection (d). The amount
paid by an Indemnified Party as a result of the losses, claims, damages
or liabilities referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
25
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 Transferor, the Trust and the
Servicer under this Section shall be in addition to any liability which
the Transferor, the Trust 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 Transferor, the Trust or the Servicer, to each officer of the
Transferor, the Trust or Servicer who has signed the Registration
Statement and to each person, if any, who controls the Transferor or
the Servicer within the meaning of the Act.
(f) The Trust's obligations pursuant to this Section 7
shall be subordinated to its obligations to make payments on the Notes
and the notes of any other series issued by it and will only be paid to
the extent of available funds.
8. Survival of Certain Representations and Obligations.
The respective indemnities, agreements, representations, warranties and other
statements of the Trust, the Transferor, 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
Transferor or the Servicer or any of their respective representatives, officers
or directors or any Control Person, and will survive delivery of and payment for
the Notes. If this Agreement is terminated pursuant to Section 9 or if for any
reason the purchase of the Notes by the Underwriters is not consummated, the
Transferor shall remain responsible for the expenses to be paid or reimbursed by
it pursuant to Section 5, and the respective obligations of the Transferor and
the Underwriters pursuant to Section 7 shall remain in effect. If the purchase
of the Notes by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 9, the
Transferor will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Notes.
9. Failure to Purchase the Notes. If any Underwriter or
Underwriters default on their obligations to purchase Notes hereunder and the
aggregate principal amount of Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
principal amount of such Notes, the Representative may make arrangements
satisfactory to the Trust for the purchase of such Notes by other persons,
including the nondefaulting Underwriter or Underwriters, but if no such
arrangements are made by the Series 2003-A Issuance Date, the nondefaulting
Underwriter or Underwriters shall be obligated, in proportion to their
commitments hereunder, to purchase the Notes that such defaulting Underwriter or
Underwriters agreed but failed to purchase. If any Underwriter or Underwriters
so default and the aggregate principal amount of Notes with respect to which
such default or defaults occur exceeds 10% of the total principal amount of
Notes, as applicable, and arrangements satisfactory to the nondefaulting
Underwriter or Underwriters and the Trust for the purchase of such Notes by
other persons are not made within 36 hours after such default, this
26
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Transferor, 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 Xxxxxx Xxxxxxx &
Co. Incorporated, 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxx
Xxxxxx (facsimile number 212-507-2992) with a copy to Xxxxxxxx Xxxxx, 0000
Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxx Xxxxx (facsimile
number 000-000-0000; and if sent to the Transferor, will be mailed, delivered or
sent by facsimile transmission and confirmed to it at Nissan Wholesale
Receivables Corporation II, 000 Xxxx 000xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000-0000, attention of the Assistant Secretary (facsimile number (310)
324-2542).
11. No Bankruptcy Petition. Each Underwriter agrees that,
prior to the date which is one year and one day after the payment in full of all
securities issued by the Trust, the Transferor or by a trust for which the
Transferor 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 Trust or the Transferor 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 Transferor 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. Representations and Warranties of Underwriters. With
respect to any offers or sales of the Notes outside the United States (and
solely with respect to any such offers and sales) each Underwriter severally and
not jointly makes the following representations and warranties:
(a) Each Underwriter represents and agrees that it will
comply with all applicable laws and regulations in each jurisdiction in
which it purchases, offers or sells the Notes or possesses or
distributes the Prospectus or any other offering material and will
obtain any consent, approval or permission required by it for the
purchase, offer or sale by it of Notes under the laws and regulations
in force in any jurisdiction to which it is subject or in which it
makes such purchases, offers or sales and neither the Transferor or
NMAC shall have any responsibility therefor;
27
(b) No action has been or will be taken by such
Underwriter that would permit public offering of the Notes or
possession or distribution of any offering material in relation to the
Notes in any jurisdiction where action for that purpose is required
unless the Transferor or NMAC has agreed to such actions and such
actions have been taken;
(c) Each Underwriter represents and agrees that it will
not offer, sell or deliver any of the Notes or distribute any such
offering material in or from any jurisdiction except under
circumstances that will result in compliance with applicable laws and
regulations and that will not impose any obligation on the Transferor
or NMAC or the Underwriters;
(d) Such Underwriter acknowledges that it is not
authorized to give any information or make any representation in
relation to the Notes other than (i) oral communications that are
consistent with the Prospectus and would not cause the Trust, the
Transferor or NMAC to incur liability, (ii) those contained or
incorporated by reference in the Prospectus for the Notes and (iii)
such additional information, if any, as the Transferor or NMAC shall,
in writing, provide to and authorize such Underwriter so to use and
distribute to actual and potential purchasers of the Notes;
(e) Each Underwriter represents and agrees that it has
not offered or sold and will not offer or sell, prior to the date six
months after their date of issuance, any of the Notes to persons in the
United Kingdom, except to persons whose ordinary activities involve
them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise
in circumstances that have not resulted in and will not result in an
offer to the public in the United Kingdom within the meaning of the
Public Offers of Securities Regulations 1995 (as amended);
(f) Each Underwriter has complied and will comply with
all applicable provisions of the Financial Services and Markets Act
2000 ("FSMA") with respect to anything done by such Underwriter in
relation to the Notes in, from or otherwise involving the United
Kingdom; and
(g) Each Underwriter will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the FSMA) received by it
in connection with the issue or sale of any securities in circumstances
in which Section 21(1) of the FSMA does not apply to the Trust.
15. Applicable Law. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, without
reference to its conflict of law provisions (other than Section 5-1401 of the
General Obligations Law of the State of New York).
16. Counterparts. This Agreement may be executed by each
of the parties hereto in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
28
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 parties hereto in accordance with its terms.
Very truly yours,
NISSAN MASTER OWNER TRUST RECEIVABLES
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Authorized Signatory
NISSAN WHOLESALE RECEIVABLES
CORPORATION II
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
NISSAN MOTOR ACCEPTANCE
CORPORATION
By: /s/ Xxxx Xxxxxx
----------------------------------
Name: Xxxx Xxxxxx
Title: Treasurer
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxx Xxxxxxxx
--------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
Acting on behalf of itself
and as the Representative of the
several Underwriters.
SCHEDULE 1
PRINCIPAL
AMOUNT OF
UNDERWRITER 2003-A NOTES
----------- ------------
Xxxxxx Xxxxxxx & Co. Incorporated $190,000,000
Citigroup Global Markets Inc. $190,000,000
X.X. Xxxxxx Securities Inc. $190,000,000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $190,000,000
The Xxxxxxxx Capital Group, L.P. $190,000,000
Total $950,000,000
1. Introductory........................................................................................... 1
2. Representations and Warranties of the Transferor and the Servicer...................................... 2
3. Xxxxxxxx, Sale and Delivery of Notes................................................................... 6
4. Offering by Underwriters............................................................................... 7
5. Covenants of the Transferor............................................................................ 7
6. Conditions of the Obligations of the Underwriters...................................................... 9
7. Indemnification and Contribution....................................................................... 20
8. Survival of Certain Representations and Obligations.................................................... 24
9. Failure to Purchase the Notes.......................................................................... 24
10. Notices................................................................................................ 25
11. No Bankruptcy Petition................................................................................. 25
12. Successors............................................................................................. 25
13. Representation of Underwriters......................................................................... 25
14. Representations and Warranties of Underwriters......................................................... 26
15. Applicable Law......................................................................................... 27
16. Counterparts........................................................................................... 27
SCHEDULE 1...................................................................................................... S-1
