EXHIBIT 1.1
TRIAD AUTOMOBILE RECEIVABLES TRUST 2005-B
CLASS A-1 3.604% ASSET BACKED NOTES
CLASS A-2 4.110% ASSET BACKED NOTES
CLASS A-3 4.280% ASSET BACKED NOTES
CLASS A-4 4.420% ASSET BACKED NOTES
TRIAD FINANCIAL SPECIAL PURPOSE LLC
(DEPOSITOR)
July 19, 2005
UNDERWRITING AGREEMENT
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Citigroup Global Markets Inc.
000 Xxxxxxxxx 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) $196,000,000 principal amount of Class A-1 3.604% Asset Backed
Notes (the "Class A-1 Notes");
(b) $256,509,000 principal amount of Class A-2 4.110% Asset Backed
Notes (the "Class A-2 Notes");
(c) $315,719,000 principal amount of Class A-3 4.280% Asset Backed
Notes (the "Class A-3 Notes");
(d) $137,075,000 principal amount of Class A-4 4.420% 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 2005-B (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 July 28, 2005 (the "Indenture") by and between the
Trust and JPMorgan Chase Bank, National Association (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 Amended and Restated Trust Agreement
(the "Trust Agreement") to be dated as of July 28, 2005 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 July 28, 2005, and certain monies due or in some cases received
thereunder on or after June 30, 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 July 28, 2005 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 Financial Security Assurance Inc., a financial
guaranty insurance company incorporated under the laws of the State of New York
(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 July 28, 2005 (the "Insurance Agreement")
and (ii) the Representatives and the Insurer will execute and deliver an
Indemnification Agreement dated as of July 28, 2005 (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:
(a) The Depositor meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"). The Depositor has filed with
the Securities and Exchange Commission (the "Commission") a registration
statement (Registration No. 333-125925) on such Form, including a base
prospectus and forms of prospectus supplement, for registration under the Act of
the offering and sale of the Underwritten Securities, and such
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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. The
Depositor will next file with the Commission a final base prospectus and a final
prospectus supplement relating to the Underwritten Securities in accordance with
Rules 415 and 424(b)(2) or (5). As filed, such final prospectus supplement shall
include all required information with respect to the Underwritten Securities and
the offering thereof 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 latest base
prospectus and preliminary prospectus supplement that have previously been
furnished to the Representatives) 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
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, "Effective Time" means, with
respect to the registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission, 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.
Such registration statement, as amended at the Effective Time, including the
exhibits thereto and any material incorporated by reference therein, are
hereinafter referred to as the "Registration Statement." "Preliminary
Prospectus" shall mean the preliminary prospectus supplement, dated July 18,
2005, to the base prospectus, dated July 18, 2005, which preliminary prospectus
supplement describes the Underwritten Securities and the offering thereof and is
used prior to filing of the Prospectus, together with such base prospectus in
the form in which such preliminary prospectus supplement and such base
prospectus were filed pursuant to Rule 424(b). "Prospectus" shall mean the
prospectus supplement relating to the Underwritten Securities that is first
filed pursuant to Rule 424(b) after the Execution Time, together with the base
prospectus that is first filed pursuant to Rule 424(b) after the Execution Time
with such prospectus supplement. "Rule 415", "Rule 424" 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.
(b) On the Effective Date, the Registration Statement complied in
all material respects with the applicable requirements of the Act and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules and regulations of the Commission
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thereunder (the "Rules and Regulations") and did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the date of this Underwriting Agreement, the Registration
Statement complies in all material respects with the applicable requirements of
the Act and the Trust Indenture Act and the respective Rules and Regulations
thereunder, and does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading. On the date thereof and on the
Closing Date, the Prospectus will comply in all material respects with the
applicable requirements of the Act and the Rules and Regulations thereunder, and
will not include any 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; provided, however,
that the Depositor makes no representation or warranty as to the information
contained in or omitted from the Registration Statement 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 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.
(c) The documents incorporated by reference in the Registration
Statement 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.
(d) Since the respective dates as of which information is given in
the Registration Statement 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
Prospectus.
(e) 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 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.
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(f) 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.
(g) 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.
(h) 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 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.
(i) 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
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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.
(j) 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 99.787253%
Class A-3 Notes 99.768538%
Class A-4 Notes 99.727655%
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 July 28,
2005 (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) Prior to the termination of the offering of the Notes, not to
file any amendment of the Registration Statement or supplement to the Prospectus
unless the Depositor has furnished each Representative with a copy for such
Representative's review prior to filing
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and not to file any such proposed amendment or supplement to which either
Representative reasonably objects.
(b) Subject to Section 5(b), to file the Prospectus, properly
completed, and any supplement thereto, with the Commission pursuant to and in
accordance with the applicable paragraph of Rule 424(b) within the time period
prescribed and to provide evidence satisfactory to the Representatives of such
timely filing.
(c) To advise the Representatives promptly of any proposal to amend
or supplement the Registration Statement as filed, or the related Prospectus;
also to advise the Representatives promptly of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information; also to advise the Representatives promptly
of the effectiveness of the Registration Statement and any amendment thereto,
and of when any supplement to the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b); also to advise the Representatives promptly
of the issuance of any stop order by the Commission, of the suspension of the
qualification of any of the Underwritten Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or the Prospectus as amended or supplemented or
for additional information; and, in the event of the issuance of any such stop
order or of any order preventing or suspending the use of any prospectus
relating to the Underwritten Securities or suspending any such qualification, to
use promptly its best efforts to obtain its withdrawal.
(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) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the
Registration Statement or supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the Depositor promptly will
notify the Representatives and will prepare and file, or cause to be prepared
and filed, with the Commission (subject to Section 5(b)) an amendment or
supplement that will correct such statement or omission, or effect such
compliance (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
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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.
(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; and (xiii) any other fees
and expenses incurred in connection with the performance of its obligations
hereunder.
(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 Xxxxxx Xxxxxx Xxxxx & Xxxx 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
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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 and the annual independent certified public
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 the manner
and within the
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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 March 31,
2005 except as may be disclosed in the Prospectus, no material adverse change in
or affecting particularly the business or properties of the Depositor or Triad
has occurred, and (v) neither the Registration Statement nor the Prospectus, as
amended or supplemented, 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) Subsequent to the execution and delivery of this Underwriting
Agreement or, if earlier, the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto) 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 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.
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(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.
(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 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:
11
(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 Xxxxxx Xxxxxx Xxxxx & Xxxx 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.
(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
12
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.
(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:
13
(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
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.
14
(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 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
15
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
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
16
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.
(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
17
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 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 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
18
omission or alleged omission from, any of such documents, in reliance upon and
in conformity with the Underwriter Information; and provided further that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in the Preliminary Prospectus, the indemnity agreement contained
in this Section 7(a) shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Underwritten Securities concerned, to the extent that the untrue statement
or omission or alleged untrue statement or omission was eliminated or remedied
in the Prospectus, which Prospectus was required to be delivered by such
Underwriter under the Act to such person and was not so delivered if the
Depositor had previously furnished copies thereof in a timely manner and in
sufficient quantity to such Underwriter. 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 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
19
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 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 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
20
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 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. 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) Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Registration Department; and (ii) Citigroup Global Markets
Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx.
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.
11. 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.
21
12. Applicable Law. This Underwriting Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
13. 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.
22
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: 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.
XXXXXXX, XXXXX & CO.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxx Xxxxxxx
---------------------------------
Name: Xxx Xxxxxxx
Title: Managing Director
CITIGROUP GLOBAL MARKETS INC.
on behalf of itself and as Representative
of the several Underwriters,
By: /s/ Xxxx Xxxx
---------------------------------
Name: Xxxx Xxxx
Title: Director
[Signature page to Underwriting Agreement (p. 2 of 2)]
SCHEDULE I
BANC OF DEUTSCHE
INITIAL CITIGROUP AMERICA CREDIT SUISSE BANK
PRINCIPAL GOLDMAN, GLOBAL SECURITIES FIRST BOSTON SECURITIES
AMOUNT SACHS & CO. MARKETS INC. LLC LLC INC.
----------- ----------- ------------- ------------ ------------- ----------
Class A-1
Notes $98,000,000 $98,000,000 -- -- --
Class A-2
Notes $98,254,500 $98,254,500 $20,000,000 $20,000,000 $20,000,000
Class A-3
Notes $120,359,500 $120,359,500 $25,000,000 $25,000,000 $25,000,000
Class A-4
Notes $52,037,500 $52,037,500 $11,000,000 $11,000,000 $11,000,000
TOTAL $368,651,500 $368,651,500 $56,000,000 $56,000,000 $56,000,000
