EXHIBIT 99.1
TRIAD AUTOMOBILE RECEIVABLES TRUST 2006-A
CLASS A-1 4.573628% ASSET BACKED NOTES
CLASS A-2 4.82% ASSET BACKED NOTES
CLASS A-3 4.77% ASSET BACKED NOTES
CLASS A-4 4.88% ASSET BACKED NOTES
TRIAD FINANCIAL SPECIAL PURPOSE LLC
(DEPOSITOR)
January 20, 2006
UNDERWRITING AGREEMENT
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as representatives of the several Underwriters (the "Representatives")
Ladies and Gentlemen:
1. Introductory. Triad Financial Special Purpose LLC, a Delaware
limited liability company (the "Depositor"), proposes to sell to the
Underwriters named herein:
(a) $150,000,000 principal amount of Class A-1 4.573628% Asset
Backed Notes (the "Class A-1 Notes");
(b) $250,000,000 principal amount of Class A-2 4.82% Asset Backed
Notes (the "Class A-2 Notes");
(c) $247,000,000 principal amount of Class A-3 4.77% Asset Backed
Notes (the "Class A-3 Notes");
(d) $175,500,000 principal amount of Class A-4 4.88% Asset Backed
Notes (the "Class A-4 Notes" and, collectively with the Class A-1 Notes,
the Class A-2 Notes and the Class A-3 Notes, the "Class A Notes", "Notes"
or "Underwritten Securities");
in each case issued by Triad Automobile Receivables Trust 2006-A (the "Trust").
Simultaneously with the issuance and sale of the Underwritten Securities as
contemplated herein, the Trust will issue a trust certificate representing the
beneficial ownership interest in the Trust (the "Certificate").
The Notes will be secured by the Receivables (as hereinafter defined) and
certain other property of the Trust. The Notes will be issued pursuant to the
Indenture to be dated as of January 26, 2006 (the "Indenture") by and between
the Trust and Citibank, N.A. (the "Indenture Trustee").
The Certificate will represent a beneficial interest in the Trust, the
assets of which will include the Receivables and certain other property. The
Certificate will be issued pursuant to the Trust Agreement (the "Trust
Agreement") to be dated as of January 26, 2006 between the Depositor, Triad
Financial Corporation ("Triad") and Wilmington Trust Company (the "Owner
Trustee"). Payments in respect of the Certificate, to the extent specified in
the Indenture, the Sale and Servicing Agreement and the Trust Agreement, are
subordinated to the rights of the holders of the Notes.
The property of the Trust will include, among other things, a pool of motor
vehicle retail installment sales contracts and installment loans for new and
used automobiles and light duty trucks (the "Receivables"), sold by Triad to the
Depositor pursuant to the Purchase Agreement (the "Purchase Agreement") dated as
of January 26, 2006, and certain monies due or in some cases received thereunder
on or after December 31, 2005. The Receivables will be sold to the Trust by the
Depositor and will be serviced for the Trust by Triad (the "Servicer" or
"Triad"), pursuant to the Sale and Servicing Agreement (the "Sale and Servicing
Agreement") to be dated as of January 26, 2006 by and among the Depositor, the
Servicer, the Indenture Trustee and the Trust.
The Class A Notes will have the benefit of a note insurance policy (the
"Note Policy"), issued by Ambac Assurance Corporation, a financial guaranty
insurance company incorporated under the laws of the State of Wisconsin (the
"Insurer").
In connection with the issuance of the Note Policy (i) the Indenture
Trustee, Triad, the Trust and the Insurer will execute and deliver an Insurance
and Indemnity Agreement dated as of January 26, 2006 (the "Insurance Agreement")
and (ii) the Representatives and the Insurer will execute and deliver an
Indemnification Agreement dated as of January 26, 2006 (the "Indemnification
Agreement").
Capitalized terms used herein and not otherwise defined shall have the
meanings given them in the Sale and Servicing Agreement.
2. Representations and Warranties of the Depositor. The Depositor
represents and warrants to and agrees with the underwriters named in
Schedule I hereto (the "Underwriters") that as of the Execution Time (as
hereinafter defined), as of the Applicable Time (as hereinafter defined)
and as of the Closing Date:
(a) The Depositor has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (Registration No.
333-125925) on Form S-3, including a base prospectus and forms of
prospectus supplement, for
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registration under the Securities Act of 1933, as amended (the "Act") of
the offering and sale of the Underwritten Securities, and such registration
statement has become effective. The Depositor may have filed one or more
amendments thereto as may have been required to the date hereof, each of
which amendments has been previously furnished to the Representatives.
Promptly after execution and delivery of this Underwriting Agreement, the
Depositor will prepare and file with the Commission a final base prospectus
and a final prospectus supplement relating to the Underwritten Securities
in accordance with the provisions of Rule 430B and Rule 424(b). Any
information included in such base prospectus and prospectus supplement that
was omitted from such registration statement at the time it became
effective but that is deemed to be part of and included in such
registration statement pursuant to Rule 430B is referred to as "Rule 430B
Information". Such registration statement, at any given time, including the
amendments thereto to such time, the exhibits and any schedules thereto at
such time, the documents incorporated by reference pursuant to the Act at
such time and documents otherwise deemed to be a part thereof or included
therein by the rules and regulations (the "Rules and Regulations") of the
Commission under the Act, is herein called the "Registration Statement";
provided that references to the Registration Statement or other matters
relating to the Registration Statement shall be deemed to be references to
the Registration Statement or such other matters relating to the
Registration Statement as of the Effective Date (as hereinafter defined).
The Registration Statement at the time it originally became effective is
herein called the "Original Registration Statement." "Base Prospectus"
means the base prospectus included in the Registration Statement, as
amended at the time of the filing of the Prospectus. "Preliminary
Prospectus" means the base prospectus and the preliminary prospectus
supplement used in connection with the offering of the Underwritten
Securities that omitted some of the Rule 430B Information. "Prospectus"
means the prospectus supplement to the Base Prospectus that is first filed
after the Execution Time pursuant to Rule 424(b), together with the Base
Prospectus, as amended at the time of such filing, including the documents
incorporated by reference therein pursuant to the Act at the time of
execution of this Agreement. "Prospectus Supplement" means the prospectus
supplement to the Base Prospectus included in the Prospectus.
The Depositor has included in the Registration Statement, as
amended at the Effective Date, all information required by the Act and the
rules thereunder to be included in the Prospectus with respect to the
Underwritten Securities and the offering thereof. As filed, the Preliminary
Prospectus includes all information with respect to the Underwritten
Securities and the offering thereof required by the Act and the rules
thereunder. As filed, the Prospectus shall include all information with
respect to the Underwritten Securities and the offering thereof required by
the Act and the rules thereunder and, except to the extent that the
Underwriters shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Representatives prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Preliminary Prospectus) as the Depositor has
advised the Representatives, prior to the Execution Time, will be included
or made therein. If the registration statement contains the undertaking
specified by Regulation
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S-K Item 512(a), the registration statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Underwriting Agreement, "Applicable Time"
shall have the meaning referred to in Section 2(c) hereof. "Effective Time"
means, with respect to the Registration Statement, the date and time as of
which the Registration Statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission, or the
earlier of the date of filing of a prospectus required under rule 424
deemed to be part of the Registration Statement or the date and time of the
first sale of Underwritten Securities and "Effective Date" means the date
of the Effective Time. "Execution Time" shall mean the date and time that
this Underwriting Agreement is executed and delivered by the parties
hereto. "Rule 158," "Rule 164," "Rule 405," "Rule 415", "Rule 424", "Rule
430B," "Rule 433" and "Regulation S-K" refer to such rules or regulations
under the Act. Any reference herein to the Registration Statement, the
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the Effective Date of the
Registration Statement or the issue date of the Preliminary Prospectus or
the Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement, or the issue date
of the Preliminary Prospectus or the Prospectus, as the case may be, deemed
to be incorporated therein by reference or otherwise deemed by the Rules
and Regulations to be a part thereof or included therein. For purposes of
this Underwriting Agreement, all references to the Registration Statement,
the Preliminary Prospectus, the Prospectus or any amendment or supplement
to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("XXXXX").
(b) The Depositor meets the requirements for use of Form S-3
under the Act. If the Registration Statement contains the undertaking
specified by Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). At
the earliest time after the time of filing the Original Registration
Statement that the Depositor or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)), of the Underwritten
Securities and at the date hereof, the Depositor was not and is not an
"ineligible issuer", as defined in Rule 405 of the Rules and Regulations.
(c) The Original Registration Statement became effective on July
15, 2005, and any post-effective amendment thereto also has become
effective. No stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Depositor,
are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
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At the respective times the Original Registration Statement and
each amendment thereto became effective, at each deemed effective date with
respect to the Underwriters pursuant to Rule 430B(f)(2) and at the Closing
Time, the Registration Statement complied and will comply in all material
respects with the applicable requirements of the Act, the Trust Indenture
Act and the respective Rules and Regulations thereunder, and did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. At the Applicable Time, the Preliminary
Prospectus did not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and neither the Prospectus nor any amendment or supplement thereto, at the
time the Prospectus or any such amendment or supplement was issued and at
the Closing Time, included or will include an untrue statement of a
material fact or omitted or will omit 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; provided, however, that the
Depositor makes no representation or warranty as to the information
contained in or omitted from the Registration Statement, the Preliminary
Prospectus or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Depositor by
any Underwriter through either Representative specifically for use in
connection with preparation of the Registration Statement, the Preliminary
Prospectus or the Prospectus (or any supplement thereto), it being agreed
that the only such information consists of the statements in the third and
fourth paragraphs (concerning concessions, reallowances and initial
offering prices) and in the sixth, seventh, eighth and ninth paragraphs
(concerning overallotment, stabilizing transactions and penalty bids) under
the heading "Underwriting" in the Prospectus Supplement (such information,
the "Underwriter Information"); and provided further that the Depositor
makes no representation or warranty as to the information contained in or
omitted from any Form T-1 filed with respect to the Indenture Trustee..
When filed with the Commission, each Preliminary Prospectus
(including the prospectus and prospectus supplement filed as part of the
Original Registration Statement or any amendment thereto) complied when so
filed in all material respects with the Rules and Regulations.
As used in this subsection and elsewhere in this Agreement,
"Applicable Time" means 1:30 p.m., New York City time, on January 20, 2006
or such other time as agreed by the Depositor and the Underwriters.
(d) The documents incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Prospectus, when they became
effective under the Act or were filed with the Commission under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as the
case may be, conformed in all material respects with the requirements of
the Exchange Act and the Rules and Regulations thereunder.
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(e) Since the respective dates as of which information is given
in the Registration Statement, the Preliminary Prospectus and the
Prospectus, (i) there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, management, financial condition,
members' or stockholders' equity, results of operations, regulatory status
or business prospects of the Depositor or Triad, and (ii) neither the
Depositor nor Triad has entered into any transaction or agreement (whether
or not in the ordinary course of business) that, in either case, would
reasonably be expected to materially adversely affect the interests of the
holders of the Class A Notes, other than as set forth or contemplated in
the Preliminary Prospectus and the Prospectus.
(f) The Depositor has been duly organized and is validly existing
as a limited liability company in good standing under the laws of the State
of Delaware, with full power and authority to own its properties and
conduct its businesses as described in the Preliminary Prospectus and the
Prospectus, and is duly qualified to transact business as a foreign limited
liability company in good standing under the laws of each jurisdiction
where the ownership or leasing of its properties or the conduct of its
business requires such qualification, other than where the failure to be so
qualified would not have a material adverse effect on the transactions
contemplated herein or in the Basic Documents.
(g) As of the Closing Date, the representations and warranties
(other than the representations and warranties concerning the
characteristics of the Receivables, which representations and warranties
will be true and correct in all material respects as of the date set forth
in the applicable agreement) of Triad in the Purchase Agreement and of the
Depositor in the Sale and Servicing Agreement and the Trust Agreement will
be true and correct in all material respects.
(h) 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 Depositor for the consummation of the transactions
contemplated by this Underwriting 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.
(i) The Depositor is not in violation of its limited liability
company operating agreement 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 violation or default would have a material
adverse effect on the transactions contemplated herein or in any of the
Basic Documents to which the Depositor is a party. The execution, delivery
and performance by the Depositor of this Underwriting Agreement and the
Basic Documents to which the Depositor is a party and the issuance and sale
of the Class A Notes and compliance with the terms and provisions thereof
(i) will not 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 Depositor or any of its properties, or the limited
liability company
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operating agreement or by-laws of the Depositor and (ii) 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 Depositor pursuant
to the terms of, any material indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement, or similar agreement or
instrument under which the Depositor is a debtor or guarantor. The
Depositor has full power and authority to authorize, cause the Trust to
issue, and sell the Notes as contemplated by this Underwriting Agreement,
to enter into this Underwriting Agreement and the Basic Documents and to
consummate the transactions contemplated herein and therein.
(j) This Underwriting Agreement has been duly authorized,
executed and delivered by the Depositor; on the Closing Date (as hereafter
defined), the Notes will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the Trust
entitled to the benefits provided by the Indenture; on the Closing Date,
the Certificate will have been duly executed, authenticated, issued and
delivered and entitled to the benefits provided by the Trust Agreement; on
the Closing Date, the Basic Documents to which the Depositor is a party
will have been duly authorized, executed and delivered by and will
constitute valid and binding obligations of the Depositor enforceable in
accordance with their terms except as the same may be 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; and the Basic Documents
will conform to the description thereof in the Prospectus in all material
respects.
(k) The computer tape with respect to the Receivables (the
"Computer Tape") to be delivered by Triad as seller under the Purchase
Agreement to each of the Owner Trustee, the Indenture Trustee and the
Representatives will be complete and accurate in all material respects as
of the date thereof.
3. Purchase, Sale, and Delivery of the Underwritten Securities. On the
basis of the representations, warranties, and agreements herein contained,
but subject to the terms and conditions herein set forth, the Depositor
agrees to sell to the Underwriters, and the Underwriters agree, severally
and not jointly, to purchase from the Depositor, the aggregate principal
amounts of the Class A Notes set forth opposite the names of the
Underwriters in Schedule I hereto. The Underwritten Securities are to be
purchased at the following purchase prices:
PURCHASE PRICE
(as a % of the aggregate
principal amount)
------------------------
Class A-1 Notes 99.875000%
Class A-2 Notes 99.786705%
Class A-3 Notes 99.765199%
Class A-4 Notes 99.745570%
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Delivery of and payment for the Notes shall be made at the office of
Xxxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (or such
other place as the Depositor and the Representatives shall agree), on January
26, 2006 (the "Closing Date"). Delivery of the Notes shall be made against
payment of the purchase price in immediately available funds drawn to the order
of the Depositor. The Notes to be so delivered will be initially represented by
one or more global notes registered in the name of Cede & Co., the nominee of
The Depository Trust Company ("DTC"). The Depositor shall make such global notes
representing the Notes available for inspection by the Underwriters at the
office at which the Notes are to be delivered, no later than 5:00 p.m. (Chicago
time) on the business day prior to the Closing Date. The interests of beneficial
owners of the Notes will be represented by book entries on the records of DTC
and participating members thereof.
4. Offering by Underwriters. It is understood that the Underwriters
propose to offer the Underwritten Securities for sale to the public (which
may include selected dealers), as set forth in the Prospectus.
5. Covenants of the Depositor. The Depositor covenants and agrees with
the Underwriters:
(a) The Depositor, subject to Section 5(b), will comply with the
requirements of Rules 424(b) and 430B and will notify the Underwriters
immediately, and confirm the notice in writing, of (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of
any supplement or amendment to the Prospectus, (ii) the receipt of any
comments from the Commission, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or any document incorporated by reference therein or
otherwise deemed to be a part thereof or for additional information and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus, or of the suspension of
the qualification of the Underwritten Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings
for any of such purposes. The Depositor will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
to obtain as soon as possible the lifting thereof.
(b) Prior to the termination of the offering of the Notes, not to
file any amendment to the Registration Statement or any amendment,
supplement or revision to either the Preliminary Prospectus (including any
prospectus included in the Original Registration Statement or amendment
thereto at the time it became effective) or to the Prospectus unless the
Depositor has furnished each Representative with a copy for such
Representative's review prior to such proposed filing or use, as the case
may be, and not to file or use any document to which either Representative
shall reasonably object.
(c) Subject to Section 5(b), to effect the filings required under
Rule 424(b) in the manner and within the time period required by Rule
424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it
deems necessary to ascertain promptly whether the Preliminary Prospectus
and the Prospectus transmitted for filing
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under Rule 424(b) were each received for filing by the Commission and, in
the event that either was not, it will file the Preliminary Prospectus or
the Prospectus, as applicable.
(d) Promptly from time to time to take such action as either
Representative may reasonably request in order to qualify the Underwritten
Securities for offering and sale under the securities laws of such states
as either Representative may request and to continue such qualifications in
effect so long as necessary under such laws for the distribution of such
Underwritten Securities; provided that, in connection therewith, the
Depositor shall not be required to qualify as a foreign limited liability
company to do business, or to file a general consent to service of process
in any jurisdiction.
(e) The Depositor will comply with the Act and the Rules and
Regulations, the Exchange Act and the rules and regulations thereunder and
the Trust Indenture Act and the rules and regulations thereunder so as to
permit the completion of the distribution of the Underwritten Securities as
contemplated in this Agreement, the Registration Statement and the
Prospectus. If, at any time when a prospectus is required by the Act to be
delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition shall exist as a result of which it is
necessary to amend the Registration Statement or amend or amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit 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, or if it shall be
necessary at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the Act or the
requirements of the Act or the Rules and Regulations, the Depositor will
promptly notify the Representatives and will prepare and file, or cause to
be prepared and filed, with the Commission (subject to Section 5(b)) the
review and approval provisions afforded to the Underwriters described in
Section 5(b) such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement, the
Preliminary Prospectus or the Prospectus comply with such requirements, the
Depositor will use its best efforts to have such amendment or new
registration statement declared effective as soon as practicable (it being
understood that any such filing shall not operate as a waiver or limitation
on any right of any Underwriter hereunder).
(f) To cause the Trust to make generally available to Noteholders
as soon as practicable, but in any event no later than eighteen months
after the original effective date of the Registration Statement, an
earnings statement of the Trust covering a period of at least twelve months
beginning after the Effective Date of the Registration Statement that will
satisfy the provisions of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
(g) To furnish to the Underwriters copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
related preliminary prospectus (including 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 Underwriters
reasonably request.
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(h) So long as any of the Underwritten Securities are
outstanding, to furnish the Representatives copies of all reports or other
communications (financial or other) furnished to Noteholders, and to
deliver to the Representatives 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; (ii) copies of each amendment to any of the
Basic Documents; (iii) on each Determination Date or as soon thereafter as
practicable, notice by facsimile of the pool factors as of the related
Record Date; and (iv) such additional information concerning the business
and financial condition of the Depositor or the Trust as either
Representative may from time to time reasonably request.
(i) To pay or cause to be paid the following costs and expenses
incident to the performance of its obligations hereunder: (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto; (ii) all fees of any rating agencies rating the Notes;
(iii) all fees and expenses of the Indenture Trustee and the Owner Trustee;
(iv) all reasonable fees and expenses of counsel to the Indenture Trustee;
(v) all reasonable fees and expenses of counsel to the Owner Trustee; (vi)
all fees and expenses of Triad's and the Depositor's counsel; (vii) all
fees and expenses of PricewaterhouseCoopers LLP relating to the letter
referred to in Section 6(a) hereof; (viii) all fees and expenses of
accountants incurred in connection with the delivery of any accountant's or
auditor's reports required pursuant to the Indenture or the Sale and
Servicing Agreement; (ix) the preparation, issuance and delivery of the
Notes to the Underwriters; (x) the delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment
thereto; (xi) the printing and delivery to the Underwriters of the
Preliminary Prospectus and the Prospectus and of each amendment and
supplement thereto; (xii) any up-front fees and premiums payable to the
Insurer and fees and disbursements of counsel to the Insurer; (xiii) any
other fees and expenses incurred in connection with the performance of its
obligations hereunder and (xiv) the costs and expenses (including any
damages or other amounts payable in connection with legal and contractual
liability) associated with the reforming of any contracts for sale of the
Underwritten Securities made by the Underwriters caused by a breach of the
representation in Section 2(c).
(j) The Underwriters shall pay all Blue Sky fees and expenses as
well as reasonable fees and expenses of counsel in connection with State
securities law qualifications under Section 5(d) and any legal investment
surveys. Except as provided in Section 5(i) and Section 9 hereof, the
Underwriters will pay all their own costs and expenses, including, without
limitation, the cost of printing any agreement among underwriters, the fees
and expenses of Sidley Austin LLP, counsel to the Underwriters, transfer
taxes on resale of the Underwritten Securities by the Underwriters, and any
advertising expenses connected with any offers that the Underwriters may
make.
(k) For a period from the date of this Underwriting Agreement
until the retirement of the Underwritten Securities, or until such time as
the Underwriters shall cease to maintain a secondary market in the
Underwritten Securities, whichever occurs first, to deliver to the
Representatives (i) copies of each certificate, the annual statements of
compliance, annual assessment of compliance with servicing criteria,
accountants' attestations in respect of such assessments and the annual
independent certified public
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accountants' servicing reports furnished to the Owner Trustee and the
Indenture Trustee pursuant to Article IV of the Sale and Servicing
Agreement, by first-class mail as soon as practicable after such statements
and reports are furnished to the Owner Trustee and the Indenture Trustee,
(ii) copies of each certificate and the annual statements of compliance
delivered to the Indenture Trustee pursuant to Article III of the
Indenture, by first-class mail as soon as practicable after such statements
and reports are furnished to the Indenture Trustee, (iii) copies of each
amendment to any Basic Document and (iv) on or about each Distribution
Date, a copy of the statement furnished by the Indenture Trustee to the
Noteholders pursuant to Section 5.10 of the Sale and Servicing Agreement,
by express mail or telecopy.
(l) On or before the Closing Date, the Depositor shall cause
Xxxxx's computer records relating to the Receivables to be marked to show
the Trust's absolute ownership of the Receivables, and from and after the
Closing Date neither the Depositor nor the Servicer shall take any action
inconsistent with the Trust's ownership of such Receivables, other than as
permitted by the Basic Documents.
(m) To the extent, if any, that the ratings provided with respect
to the Underwritten Securities by the rating agency or agencies that
initially rate the Underwritten Securities are conditional upon the
furnishing of documents or the taking of any other actions by the
Depositor, the Depositor shall furnish such documents and take any such
other actions.
6. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Underwritten Securities
will be subject to the accuracy of the representations and warranties on
the part of the Depositor herein, to the accuracy of the statements of
officers of the Depositor and Triad made pursuant to the provisions hereof,
to the performance by the Depositor of its obligations hereunder and to the
following additional conditions precedent:
(a) On or prior to the Closing Date, PricewaterhouseCoopers LLP
shall have furnished to the Representatives a letter dated as of the
Closing Date substantially in the form and substance of the draft to which
the Representatives have previously agreed.
(b) The Representatives shall have received the Sale and
Servicing Agreement, the Purchase Agreement, the Indenture, the Trust
Agreement, the Indemnification Agreement, the Class A Notes and the other
Basic Documents in form and substance satisfactory to the Representatives
and duly executed by the signatories required pursuant to the respective
terms thereof.
(c) The Registration Statement shall be effective at the
Execution Time and, and prior to the Closing Date, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Depositor or the Representatives, shall be contemplated by
the Commission or by any authority administering any state securities or
blue sky law; the Preliminary Prospectus shall have been filed with the
Commission in
11
the manner and within the time period required by Rule 424(b); and the
Prospectus shall be filed with the Commission in the manner and within the
time period required by Rule 424(b).
(d) The Representatives shall have received certificates dated
the Closing Date of any one of the Chairman of the Board, the President,
the Executive Vice President, any Vice President, the Treasurer, any
Assistant Treasurer, the principal financial officer or the principal
accounting officer of each of Triad and the Depositor, in which such
officers shall state that, to the best of their knowledge after reasonable
investigation, (i) the representations and warranties of each of Triad and
the Depositor contained in the Trust Agreement, the Purchase Agreement, the
Sale and Servicing Agreement and this Underwriting Agreement, as
applicable, are true and correct in all material respects, (ii) each of
Triad and the Depositor, has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its
part to be performed or satisfied under such agreements at or prior to the
Closing Date, (iii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission, (iv) since
September 30, 2005 except as may be disclosed in the Preliminary Prospectus
and the Prospectus, no material adverse change in or affecting particularly
the business or properties of the Depositor or Triad has occurred, and (v)
none of the Registration Statement, the Preliminary Prospectus or the
Prospectus contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, however, that no such
certificate shall apply to any statements or omissions made in the
Underwriter Information.
(e) At and after the Applicable Time and the dates as of which
information is given in the Registration Statement (exclusive of any
amendment thereto), the Preliminary Prospectus and the Prospectus
(exclusive of any supplement thereto), 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 Trust, the
Depositor or Triad or any of its other affiliates which, in the reasonable
judgment of the Underwriters, materially impairs the investment quality of
the Notes or makes it impractical or inadvisable to market the Notes; (ii)
any change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Insurer which, in
the reasonable judgment of the Underwriters, materially impairs the
investment quality of the Notes or makes it impractical or inadvisable to
market the Notes; (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange; (iv) any banking moratorium
declared by federal or New York authorities; (v) any outbreak or escalation
of major hostilities in which the United States is involved, any
declaration of war by Congress or any other substantial national or
international calamity or emergency or any material change in the financial
markets if, in the reasonable judgment of the Underwriters, the effect of
any such outbreak, escalation, declaration, calamity, emergency or change
makes it impractical or inadvisable to proceed with completion of the sale
of and payment for the Notes; (vi) a material disruption in securities
settlement or clearance services in the United States; or (vii) any other
material
12
adverse change in the general economic, political, legal, tax, regulatory
or financial conditions or currency exchange rates in the United States
(whether resulting from events within or outside the United States) which,
in the reasonable judgment of the Underwriters, 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.
(f) Internal counsel to Triad shall have furnished to the
Representatives a written opinion, dated as of the Closing Date, with
respect to general corporate matters reasonably satisfactory in form and
scope to the Representatives.
(g) Xxxxxxxx & Xxxxx LLP (or such other counsel reasonably
satisfactory to the Representatives), special counsel to the Depositor and
Triad, shall have furnished to the Representatives a written opinion or
written opinions, dated as of the Closing Date, with respect to general
corporate matters, enforceability of the Notes, the Indenture, the
Insurance Agreement, the Sale and Servicing Agreement, securities laws and
other matters reasonably satisfactory in form and scope to the
Representatives. Such counsel shall have also furnished to the
Representatives a written letter or letters containing a negative assurance
statement with respect to the Original Registration Statement, the
Registration Statement, the Preliminary Prospectus and the Prospectus
reasonably satisfactory in form and scope to the Representatives.
(h) Xxxxxxxx, Xxxxxx & Finger, PA (or such other Delaware counsel
reasonably satisfactory to the Representatives), special Delaware counsel
to the Depositor, shall have furnished to the Representatives a written
opinion, dated as of the Closing Date, reasonably satisfactory in form and
scope to the Representatives.
(i) Xxxxxxxx & Xxxxx LLP (or such other counsel reasonably
satisfactory to the Representatives), special counsel to Triad and the
Depositor, shall have furnished their written opinion, dated the Closing
Date, with respect to certain matters related to the creation, perfection
and priority of the security interests in the Receivables, and such opinion
shall be in substantially the form previously discussed with the
Representatives and counsel to the Representatives and in any event
satisfactory in form and in substance to the Representatives and counsel to
the Representatives and to Triad.
(j) Xxxxxxxx & Xxxxx LLP (or such other counsel reasonably
satisfactory to the Representatives), special counsel to Triad, shall have
furnished their written opinion, dated the Closing Date, with respect to
the characterization of the transfer of the Receivables by Triad to the
Depositor as a sale (which opinion shall state that it may be relied upon
by the Indenture Trustee), to the Representatives and to Triad, and such
opinion shall be in substantially the form previously discussed with the
Representatives and counsel to the Representatives and in any event
satisfactory in form and in substance to the Representatives and to counsel
to the Representatives and to Triad.
(k) Xxxxxxxx & Xxxxx LLP (or such other counsel reasonably
satisfactory to the Representatives), special counsel to Triad, shall have
furnished their
13
written opinion, dated the Closing Date, with respect to the
nonconsolidation under the Bankruptcy Code of the assets and liabilities of
the Depositor with the assets and liabilities of Triad in the event that
Triad were to become the subject of a case under the Bankruptcy Code to the
Representatives and to Triad, and such opinion shall be in substantially
the form previously discussed with the Representatives and counsel to the
Representatives and in any event satisfactory in form and in substance to
the Representatives and counsel to the Representatives and to Triad.
(l) Xxxxxxxx & Xxxxx LLP, special tax counsel to the Trust, shall
have furnished to the Representatives their written opinion, dated as of
the Closing Date, in form and in substance satisfactory to the
Representatives in their reasonable judgment, to the effect that:
(i) The Trust will not be characterized as an association, or a
publicly traded partnership, taxable as a corporation for federal
income tax purposes, and the Notes will be characterized as debt for
federal income tax purposes.
(ii) The statements in the Registration Statement and the
Prospectus under the heading "Summary - Federal Income Tax
Consequences" as they relate to federal income tax matters and under
the heading "Material Federal Income Tax Consequences," to the extent
that they constitute matters of law or legal conclusions with respect
thereto, have been prepared or reviewed by such counsel and are
correct in all material respects.
(m) Counsel satisfactory to the Representatives in their
reasonable judgment shall have furnished to the Representatives a written
opinion, dated as of the Closing Date, in form satisfactory to the
Representatives in their reasonable judgment, to the effect that, assuming
the Depositor and the Trust will each not be classified as an association,
or a publicly traded partnership, taxable as a corporation for federal
income tax purposes and the Notes will be characterized as debt for federal
income tax purposes:
(i) The Trust will not be classified as an association, or a
publicly traded partnership, taxable as a corporation for California
state tax purposes.
(ii) The Notes will be characterized as debt for California
income tax purposes.
(iii) Noteholders not otherwise subject to tax in California
should not be subject to tax in California solely because of a
Noteholder's ownership of the Notes.
(n) The Representatives shall have received an opinion addressed
to the Representatives of Sidley Austin LLP, in its capacity as counsel for
the Underwriters, dated the Closing Date, with respect to the validity of
the Underwritten Securities, and such other related matters as the
Representatives shall require, and Triad and the Depositor 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.
14
(o) The Representatives shall have received an opinion addressed
to the Representatives, the Depositor and Triad of counsel to the Owner
Trustee, dated the Closing Date and satisfactory in form and substance to
the Representatives and counsel to the Representatives, addressing such
matters as the Representatives may request and substantially to the effect
that:
(i) The Owner Trustee is a Delaware banking corporation duly
created, validly existing and in good standing under the laws of
Delaware, with its principal place of business in the State of
Delaware.
(ii) The Owner Trustee has all necessary power and authority to
execute and deliver the Trust Agreement and the Certificate of Trust
and to execute and deliver, on behalf of the Trust, each of the
Indenture, the Insurance Agreement and the Sale and Servicing
Agreement. The Owner Trustee has all necessary power and authority to
execute the Certificate and the Notes on behalf of the Trust and to
authenticate the Certificate.
(iii) Each of the Trust Agreement and the Certificate of Trust
has been duly executed and delivered by the Owner Trustee and each of
the Indenture, the Insurance Agreement and the Sale and Servicing
Agreement has been duly executed and delivered by the Owner Trustee on
behalf of the Trust. Each of the Notes has been duly executed and
delivered by the Owner Trustee, on behalf of the Trust.
(iv) The execution and delivery of the Trust Agreement and the
Certificate of Trust by the Owner Trustee and the execution and
delivery of the Indenture, Sale and Servicing Agreement, the Insurance
Agreement, the Notes and the Certificate by the Owner Trustee, on
behalf of the Trust, does not conflict with or result in a breach of
or constitute a default under the Owner Trustee's organization
certificate or by-laws, any federal or Delaware law, rule or
regulation governing its banking or trust powers or, to the best of
counsel's knowledge, without independent investigation, any judgment
or order applicable to it or its acts, properties or, to the best of
counsel's knowledge, without independent investigation, any indenture,
mortgage, contract or other agreement or instrument to which the Owner
Trustee in its respective capacities is a party or by which it is
bound.
(v) Neither the execution and delivery by the Owner Trustee, on
behalf of the Trust, of the Indenture, the Insurance Agreement or Sale
and Servicing Agreement, nor the execution and delivery of the Trust
Agreement or the Certificate of Trust by the Owner Trustee, requires
the consent, authorization, order 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 the laws of the
State of Delaware or the federal laws of the United States governing
the banking or trust powers of the Owner Trustee.
15
(vi) To the best of counsel's knowledge, without independent
investigation, there are no actions or proceedings pending or
threatened against the Owner Trustee in any court or before any
governmental authority, arbitration board or tribunal of the State of
Delaware which involve the Trust Agreement, the Indenture, the Sale
and Servicing Agreement, the Insurance Agreement or the Certificate of
Trust or the Notes or would question the right, power or authority of
the Owner Trustee to enter into or perform its obligations under the
Trust Agreement or the Certificate of Trust or to execute and deliver,
on behalf of the Trust, the Indenture, Sale and Servicing Agreement or
the Insurance Agreement.
(p) The Representatives shall have received an opinion addressed
to the Representatives, the Depositor and Triad of counsel to the Trust,
dated the Closing Date and satisfactory in form and substance to the
Representatives and counsel to the Representatives, addressing such matters
as the Representatives may request and substantially to the effect that:
(i) The Trust has been duly formed and is validly existing as a
statutory trust under the Delaware Statutory Trust Act, 12 Del. C.
Section 3801, et seq. (the "Delaware Act"), and has the power and
authority under the Trust Agreement and the Delaware Act to execute,
deliver and perform its obligations under the Trust Agreement, the
Indenture, the Sale and Servicing Agreement, the Insurance Agreement
and the Notes.
(ii) The Trust Agreement is the legal, valid and binding
agreement of Triad, the Depositor and the Owner Trustee, enforceable
against Triad, the Depositor and the Owner Trustee, in accordance with
its terms.
(iii) The Trust has the power and authority under the Trust
Agreement and the Delaware Act to Grant the Trust Property to the
Indenture Trustee pursuant to the Indenture.
(iv) Each of the Trust Agreement, the Indenture, the Sale and
Servicing Agreement, the Insurance Agreement and the Notes have been
duly authorized by the Trust.
(v) The issuance of the Certificate has been duly authorized by
the Trust, and the Certificate, when duly executed by the Owner
Trustee on behalf of the Trust and authenticated by the Owner Trustee
in accordance with the Trust Agreement and delivered to the Depositor
in accordance with the Trust Agreement, will be validly issued and
outstanding and entitled to the benefits of the Trust Agreement.
(vi) Neither the execution, delivery and performance by the Trust
of the Trust Agreement, the Indenture, the Insurance Agreement, the
Sale and Servicing Agreement, and the Notes, nor the consummation by
the Trust of any of the transactions contemplated thereby, requires
the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action with
16
respect to, any court, or governmental or regulatory authority or
agency under the laws of the State of Delaware, except for the filing
of the Certificate of Trust with the Secretary of State (which
Certificate of Trust has been duly filed).
(vii) Neither the execution, delivery and performance by the
Trust of the Trust Agreement, the Indenture, the Insurance Agreement
and the Sale and Servicing Agreement, including the execution and
delivery of such documents by the Owner Trustee on behalf of the
Trust, nor the consummation by the Trust or the Owner Trustee on
behalf of the Trust of any of the transactions contemplated thereby,
is in violation of the Trust Agreement or of any law, rule or
regulation of the State of Delaware applicable to the Trust or the
Owner Trustee or, to the best of counsel's knowledge, without
independent investigation, any agreement, indenture, instrument,
order, judgment or decree to which the Trust or any of its property is
subject.
(viii) To the best of counsel's knowledge, without independent
investigation, there are no pending or threatened actions, suits or
proceedings affecting the Trust before any court or other governmental
authority of the State of Delaware which, if adversely decided, would
adversely affect the Trust Property or the ability of the Trust to
carry out the transactions contemplated by the Trust Agreement, the
Indenture, the Insurance Agreement and the Sale and Servicing
Agreement.
(ix) Under the Delaware Act, the Trust constitutes a separate
legal entity, separate and distinct from the holder of any Certificate
and any other entity and, insofar as the substantive law of the State
of Delaware is applicable, the Trust rather than the holder of any
Certificate in such Trust will hold whatever title to such property as
may be conveyed to it from time to time pursuant to the Trust
Agreement and the Sale and Servicing Agreement, except to the extent
that such Trust has taken action to dispose of or otherwise transfer
or encumber any such property.
(x) Except as otherwise provided in the Trust Agreement, under
Section 3805(c) of the Delaware Act, a holder of a Certificate has no
interest in specific statutory trust property.
(xi) Under Section 3805(b) of the Delaware Act, no creditor of
any holder of a Certificate shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to,
the property of the Trust except in accordance with the terms of the
Trust Agreement.
(xii) Under the Trust Agreement, the Owner Trustee has the
authority to execute and deliver on behalf of the Trust the Basic
Documents to which the Trust is a party.
(q) The Representatives shall have received an opinion addressed
to the Representatives, the Depositor, the Trust, the Indenture Trustee and
Triad of counsel
17
to the Insurer, dated the Closing Date and satisfactory in form and
substance to the Representatives and counsel to the Representatives, to the
effect that:
(i) The Insurer is a stock insurance company licensed and
authorized to transact insurance business and to issue, deliver and
perform its obligations under its surety bonds under the laws of the
State of New York. The Insurer (a) is a stock insurance company
validly existing and in good standing under the laws of the State of
New York, (b) has the corporate power and authority to own its assets
and to carry on the business in which it is currently engaged, and (c)
is duly qualified and in good standing as a foreign corporation under
the laws of each jurisdiction where failure so to qualify or to be in
good standing would have a material and adverse effect on its business
or operations.
(ii) No litigation or administrative proceedings of or before any
court, tribunal or governmental body are currently pending or, to the
best of such counsel's knowledge, threatened against the Insurer,
which, if adversely determined, would have a material and adverse
effect on the ability of the Insurer to perform its obligations under
the Note Policy.
(iii) The Note Policy, the Insurance Agreement and the
Indemnification Agreement constitute the irrevocable, valid, legal and
binding obligations of the Insurer in accordance with their respective
terms to the extent provided therein, enforceable against the Insurer
in accordance with their respective terms, except as the
enforceability thereof and the availability of particular remedies to
enforce the respective terms thereof against the Insurer may be
limited by applicable laws affecting the rights of creditors of the
Insurer and by the application of general principles of equity.
(iv) The Insurer, as an insurance company, is not eligible for
relief under the United States Bankruptcy Code. Any proceedings for
the liquidation, conservation or rehabilitation of the Insurer would
be governed by the provisions of the Insurance Law of the State of New
York.
(v) The statements set forth in the Prospectus Supplement under
the captions "The Insurer" and "The Policy" are true and correct,
except that no opinion is expressed as to financial statements or
other financial information included in the Prospectus relating to the
Insurer and, insofar as such statements constitute a summary of the
Note Policy, accurately and fairly summarize the terms of the Note
Policy.
(vi) The Note Policy constitutes an insurance policy within the
meaning of Section 3(a)(8) of the Act.
(vii) Neither the execution or delivery by the Insurer of the
Note Policy, the Insurance Agreement or the Indemnification Agreement,
nor the performance by the Insurer of its obligations thereunder, will
conflict with any provision of the certificate of incorporation or the
amended by-laws of the Insurer nor, to the best
18
of such counsel's knowledge, result in a breach of, or constitute a
default under, any agreement or other instrument to which the Insurer
is a party or by which any of its property is bound nor, to the best
of such counsel's knowledge, violate any judgment, order or decree
applicable to the Insurer of any governmental regulatory body,
administrative agency, court or arbitrator located in any jurisdiction
in which the Insurer is licensed or authorized to do business.
(r) The Representatives shall have received an opinion addressed
to the Representatives, the Depositor and Triad of counsel to the Indenture
Trustee and Backup Servicer, dated the Closing Date and satisfactory in
form and substance to the Representatives and counsel to the
Representatives, to the effect that:
(i) The Indenture Trustee has been legally incorporated under the
laws of the United States and is validly existing and in good standing
as a banking association in good standing under the laws of the United
States, and has the requisite entity power and authority to execute
and deliver the Indenture, the Insurance Agreement and the Sale and
Servicing Agreement and to perform its obligations thereunder.
(ii) With respect to the Indenture Trustee, the performance of
its obligations under the Indenture, the Insurance Agreement and the
Sale and Servicing Agreement and the consummation of the transactions
contemplated thereby do not require any consent, approval,
authorization or order of, filing with or notice to any court, agency
or other governmental body, except such as may be required under the
securities laws of any state or such as have been obtained, effected
or given.
(iii) With respect to the Indenture Trustee, the performance of
its obligations under the Indenture, the Insurance Agreement and the
Sale and Servicing Agreement and the consummation of the transactions
contemplated thereby will not result in: (i) any breach or violation
of its certificate of incorporation or bylaws, (ii) to such counsel's
knowledge, any breach, violation or acceleration of or default under
any indenture or other material agreement or instrument to which the
Indenture Trustee is a party or by which it is bound or (ii) any
breach or violation of any statute or regulation or, to such counsel's
knowledge, any order of any court, agency or other governmental body.
(iv) To such counsel's knowledge, with respect to the Indenture
Trustee, there is no legal action, suit, proceeding or investigation
before any court, agency or other governmental body pending or
threatened against it which, either in one instance or in the
aggregate, draws into question the validity of the Indenture, the
Insurance Agreement or the Sale and Servicing Agreement, seeks to
prevent the consummation of any of the transactions contemplated by
the Indenture or the Sale and Servicing Agreement or would impair
materially the ability of the Indenture Trustee to perform its
obligations under the Indenture, the Insurance Agreement or the Sale
and Servicing Agreement.
19
(v) Each of the Indenture, the Insurance Agreement and the Sale and
Servicing Agreement has been duly authorized, executed and delivered by the
Indenture Trustee and, assuming the necessary authorization, execution and
delivery thereof by the other parties thereto, is a valid and legally
binding agreement under the laws of the State of New York, enforceable
thereunder against the Indenture Trustee in accordance with its terms.
(vi) The Notes have been duly authenticated and delivered by the
Indenture Trustee in accordance with the Indenture.
(s) The Representatives shall have received evidence reasonably
satisfactory to them that, on the Closing Date, UCC financing statements have
been or are being filed (i) in the office of the Secretary of State of the State
of California reflecting the transfer of the interest of Triad in the
Receivables and the proceeds thereof to the Depositor, and (ii) in the office of
the Secretary of State of the State of Delaware reflecting the transfer of the
interest of the Depositor in the Receivables and the proceeds thereof to the
Trust and the grant of the security interest by the Trust in the Receivables and
the proceeds thereof to the Indenture Trustee.
(t) The Class A-1 Notes shall have been rated in the highest
short-term rating category by each of Xxxxx'x and Standard & Poor's; the Class
A-2 Notes, the Class A-3 Notes and the Class A-4 Notes shall have been rated in
the highest long-term rating category by each of Xxxxx'x and Standard & Poor's.
(u) At the Closing Date, the Class A Notes shall have been validly
issued and paid for by the Depositor.
(v) On the Closing Date, the Certificates shall have been issued on
the order of the Depositor.
(w) The Note Policy shall have been issued by the Insurer and shall
have been duly countersigned by an authorized agent of the Insurer, if so
required under applicable state law or regulation.
(x) All proceedings in connection with the transactions contemplated
by this Underwriting Agreement, and all documents incident hereto, shall be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Representatives, and the Representatives and counsel for the
Representatives shall have received such other information, opinion,
certificates and documents as they may reasonably request in writing.
(y) The Representatives shall have received from local counsel, in the
states where there is a concentration of 10% or more of the Receivables, an
opinion dated the Closing Date as to the perfection of security interests in
automobiles in such states.
7. Indemnification and Contribution. (a) The Depositor will indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against
20
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (a) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Rule 430B Information) 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 or (b)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, 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, in the light of the
circumstances under which they were made, not misleading; and will reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Depositor will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement in, or omission or alleged omission from,
any of such documents, in reliance upon and in conformity with the Underwriter
Information. This indemnity agreement will be in addition to any liability that
the Depositor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Depositor, its directors, each of its officers who signed
the Registration Statement and each person who controls the Depositor within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Depositor to the
Underwriters, but only with reference to the Underwriter Information. This
indemnity agreement will be in addition to any liability that the Underwriters
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
21
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
actual or potential defendants in, or targets of, any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those
available to the indemnifying party, (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action or (iii) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(x) does not include a statement as to, or admission of, fault, culpability or a
failure to act by or on behalf of any such indemnified party and (y) includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party (in the case of the Underwriters, severally and not jointly)
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Depositor on the one hand and the Underwriters on the other from
the offering of the Underwritten Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Depositor 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 (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Depositor on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Depositor bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus as amended or supplemented with respect to
the Underwritten Securities. The relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by Triad or the Depositor on the one hand or the several Underwriters
on the other. The Depositor and the Underwriters, severally and not jointly,
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 account of the equitable considerations referred
to above in this subsection (d). The amount paid by an
22
indemnified party as a result of the losses, claims, damages, or liabilities (or
actions in respect thereof) 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. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The obligations of the
Underwriters of the Underwritten Securities in this subsection (d) to contribute
are several and not joint. Notwithstanding the provisions of this subsection
(d), no Underwriter shall be required to contribute any amount pursuant to this
Underwriting Agreement and the Triad Indemnification Agreement (collectively) in
excess of the underwriting discount or commission applicable to the Notes
purchased by it hereunder.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
(including, without limitation, Section 5(m) hereof) of the Depositor or the
officers of the Depositor and of the Underwriters set forth in or made pursuant
to this Underwriting Agreement or contained in certificates of officers of the
Depositor submitted pursuant hereto shall remain operative and in full force and
effect, regardless of (i) any investigation or statement as to the results
thereof made by or on behalf of any Underwriter or of the Depositor or any of
their respective representatives, officers or directors or any controlling
person, and (ii) delivery of and payment for the Underwritten Securities. If for
any reason the purchase of the Underwritten Securities by the Underwriters is
not consummated, the Depositor shall remain responsible for the expenses to be
paid or reimbursed by the Depositor pursuant to Section 5(i) and the respective
obligations of the Depositor and the Underwriters pursuant to Section 7 shall
remain in effect. If for any reason the purchase of the Underwritten Securities
by the Underwriters is not consummated (other than because of the occurrence of
an event specified in items (ii), (iii), (iv), (v), (vi) or (vii) of Section
6(e)), the Depositor will reimburse any Underwriter, upon demand, for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by it in connection with the offering of the Underwritten
Securities.
9. Defaults of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Underwritten Securities hereunder on the Closing
Date and arrangements satisfactory to the Representatives and the Depositor for
the purchase of such Underwritten Securities by other persons are not made
within 36 hours after such default, this Underwriting Agreement will terminate
without liability on the part of any nondefaulting Underwriter or the Depositor,
except as provided in Section 8 and except that, if the aggregate principal
amount of Underwritten Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase shall be 10% or less of the aggregate
principal amount of all the Underwritten Securities set forth in Schedule I
hereto, the remaining Underwriters shall be obligated severally to take up and
pay for (in the respective proportions which the aggregate principal amount of
Underwritten Securities set forth opposite their names in Schedule I hereto
bears to the aggregate principal amount of Underwritten Securities set forth
opposite the names of all the remaining Underwriters) the Underwritten
Securities that the defaulting Underwriter or
23
Underwriters agreed but failed to purchase. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein will relieve a defaulting Underwriter from liability
for its default.
10. Relationship Among Parties. The Depositor acknowledges and agrees that
the Underwriters are acting solely in the capacity of an arm's length
contractual counterparty to the Depositor with respect to the offering of the
Underwritten Securities contemplated hereby (including in connection with
determining the terms of the offering) and not as a financial advisor or a
fiduciary to, or an agent of, the Depositor or any other person. Additionally,
none of the Underwriters are advising the Depositor or any other person as to
any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Depositor shall consult with their own advisors concerning
such matters and shall be responsible for making their own independent
investigation and appraisal of the transactions contemplated hereby, and the
Underwriters shall have no responsibility or liability to the Depositor with
respect to any legal, tax, investment, accounting or regulatory matters. Any
review by the Underwriters of the Depositor, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely
for the benefit of the Underwriters and shall not be on behalf of the Depositor.
11. Notices. All communications hereunder will be in writing and will be
mailed, delivered or sent by facsimile transmission and confirmed.
Communications to the Representatives or the Underwriters shall be given to each
Representative at: (i) Citigroup Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx; and (ii) Xxxxxxx, Xxxxx & Co., 00
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department.
Communications to the Depositor shall be given to it in care of Triad Financial
Special Purpose LLC, 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: Chief Financial Officer.
12. Successors. This Underwriting Agreement will inure to the benefit of
and be binding upon the Underwriters and the Depositor and their respective
successors and the officers and directors and controlling persons referred to in
Section 7, and no other person will have any right or obligations hereunder. No
purchaser of Notes from any Underwriter shall be deemed to be a successor of
such Underwriter merely because of such purchase.
13. Applicable Law. This Underwriting Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
14. Counterparts. This Underwriting 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.
24
If the foregoing is in accordance with your understanding, please sign and
return to us a counterpart hereof, whereupon this letter and your acceptance
hereof shall constitute a binding agreement.
Very truly yours,
TRIAD FINANCIAL SPECIAL PURPOSE LLC
By: /s/ Xxxxxxx X. X' Xxxxxx
------------------------------------
Name: Xxxxxxx X. X' Xxxxxx
Title: Corporate Secretary
[Signature page to Underwriting Agreement (p. 1 of 2)]
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first written above.
CITIGROUP GLOBAL MARKETS INC.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: Director
XXXXXXX, XXXXX & CO.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxxxxx, Xxxxx & Co.
---------------------------------
Name: Xxxxxxx, Xxxxx & Co.
Title:
------------------------------
[Signature page to Underwriting Agreement (p. 2 of 2)]
SCHEDULE I
BANC OF
INITIAL CITIGROUP AMERICA CREDIT SUISSE DEUTSCHE
PRINCIPAL GLOBAL GOLDMAN, SECURITIES SECURITIES BANK
AMOUNT MARKETS INC. SACHS & CO. LLC (USA) LLC SECURITIES INC.
--------- ------------ ------------ ----------- ------------- ---------------
Class A-1 $ 75,000,000 $ 75,000,000 -- -- --
Notes
Class A-2 $ 95,000,000 $ 95,000,000 $20,000,000 $20,000,000 $20,000,000
Notes
Class A-3 $ 93,500,000 $ 93,500,000 $20,000,000 $20,000,000 $20,000,000
Notes
Class A-4 $ 66,750,000 $ 66,750,000 $14,000,000 $14,000,000 $14,000,000
Notes
TOTAL $330,250,000 $330,250,000 $54,000,000 $54,000,000 $54,000,000
