EXHIBIT 1.1
TRIAD AUTOMOBILE RECEIVABLES TRUST 200_-_
CLASS A-1 _______% ASSET BACKED NOTES
CLASS A-2 _______% ASSET BACKED NOTES
CLASS A-3 _______% ASSET BACKED NOTES
CLASS A-4 _______% ASSET BACKED NOTES
TRIAD FINANCIAL SPECIAL PURPOSE LLC
(DEPOSITOR)
_____________, 200_
UNDERWRITING AGREEMENT
[ ]
[ ]
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) $________ principal amount of Class A-1 ______% Asset
Backed Notes (the "Class A-1 Notes");
(b) $________ principal amount of Class A-2 ______% Asset
Backed Notes (the "Class A-2 Notes");
(c) $________ principal amount of Class A-3 ______% Asset
Backed Notes (the "Class A-3 Notes");
(d) $________ principal amount of Class A-4 ______% Asset
Backed Notes (the "Class A-4 Notes" and, collectively with the Class
A-1 Notes, the Class A-2 Notes and the Class A-3 Notes, the "Class A
Notes");
(e) [$________ principal amount of Class B ______% Asset
Backed Notes (the "Class B Notes" and, collectively with the Class A
Notes,] the "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 _________, 200_ (the "Indenture") by and between
the Trust and [Indenture Trustee] (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 _________, 200_ between the Depositor, Triad
Financial Corporation ("Triad") and [Owner Trustee] (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 __________, 200_, and certain monies due or in some cases received
thereunder on or after __________, 200_. 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 __________, 200_ 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 [Insurer], a financial guaranty insurance company
incorporated under the laws of the State of _______ (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 _________, 200_ (the "Insurance Agreement")
and (ii) the Representatives and the Insurer will execute and deliver an
Indemnification Agreement dated as of __________, 200_ (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. 333-132215) on Form S-3, including a base prospectus
and forms of prospectus supplement, for 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
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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 S-K Item 512(a), the registration
statement, at the Execution Time, meets the requirements set forth in
Rule 415(a)(1)(x).
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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 _______, 2006, 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.
[Neither the Depositor nor any of its affiliates has
distributed or otherwise used or will distribute or otherwise use any
free writing prospectus (as defined in Rule 405) relating to the Notes
(a "Free Writing Prospectus"). ][Each Issuer Free Writing Prospectus,
as of its issue date, does not and will not include any information
that
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conflicts or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an Issuer
Free Writing Prospectus there occurs an event or development as a
result of which such Issuer Free Writing Prospectus would conflict with
the information then contained in the Registration Statement or would
include an untrue statement of a material fact or would 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,
(i) the Depositor has or will promptly notify the Underwriters and (ii)
the Depositor has or will promptly amend or supplement such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission; provided, however, that the Depositor makes no
representations or warranties as to the information contained in or
omitted from any Issuer Free Writing Prospectus in reliance upon and in
conformity with the Underwriter Information. "Issuer Free Writing
Prospectus" means an issuer free writing prospectus, as defined in Rule
433, relating to the Notes that (i) is required to be filed with the
Commission by the Depositor or (ii) is exempt from filing pursuant to
Rule 433(d)(5)(i) because it contains a description of the Notes or of
the offering that does not reflect the final terms, in each case in the
form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Depositor's records
pursuant to Rule 433(g).]
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
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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 ______, New York City time,
on ___________, 200_ 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.
(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 [and the Class B 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.
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(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 the Class B 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.
(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
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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 [and
the Class B 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 _________%
Class A-2 Notes _________%
Class A-3 Notes _________%
Class A-4 Notes _________%
[Class B Notes _________%]
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
__________, 200_ (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.
(a) 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.
(b) [Each Underwriter represents, as of the Closing
Date, that it has not distributed or otherwise used or will distribute
or otherwise use any Free Writing Prospectus relating to the Notes.]
[Each Underwriter represents, as of the Closing Date,
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that it did not provide any prospective investors with any information
in written or electronic form in connection with the offering of the
Notes that is required to be filed with the Commission in accordance
with the Act or any Free Writing Prospectus other than those approved
by the Depositor; provided, however, that, notwithstanding the
foregoing, the Depositor agrees that the Underwriters may disseminate
information on Bloomberg to prospective investors relating solely to
the status of allocations and subscriptions (the "Bloomberg
Information"), which the Underwriters represent shall not be required
to be filed with the Commission pursuant to the safe harbor provided by
Rule 134 or because such information is a Free Writing Prospectus that
is not an Issuer Free Writing 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 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
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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.
(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
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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
[Independent Accounting Firm] 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 ___________,
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 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
11
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 Triad'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.
(n) [The Depositor represents and agrees that, unless it obtains the
prior consent of the Representatives, and each Underwriter, severally and not
jointly, represents and agrees with the Depositor that, unless it obtains the
prior consent of the Depositor, it has not made and will not make any offer
relating to the Notes that would constitute an Issuer Free Writing Prospectus or
that would otherwise constitute a Free Writing Prospectus; provided, however,
that the prior consent of the parties hereto shall be deemed to have been given
with respect to the Bloomberg Information and the Free Writing Prospectuses
included in Schedule II hereto.]
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, [Independent Accounting Firm]
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 [, Class B 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.
12
(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 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
__________, 200_ 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
13
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.
(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) ______________ (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
14
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:
(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.
15
(n) The Representatives shall have received an opinion addressed to
the Representatives of ___________, 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 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
16
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:
(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
17
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.
(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
18
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
_________. The Insurer (a) is a stock insurance company validly existing
and in good standing under the laws of the State of _________, (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
__________.
(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
19
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 ___________ and is validly existing and in good standing as a
banking association in good standing under the laws of __________, 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.
20
(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 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 [and the Class B 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
21
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 (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
22
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
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
23
(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 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
24
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. 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: _____________________________. 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.
25
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.
26
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:
--------------------------------------
Name:
Title:
[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.
[REPRESENTATIVE]
on behalf of itself and as Representative
of the several Underwriters,
By:
--------------------------------
Name:
Title:
[REPRESENTATIVE]
on behalf of itself and as Representative
of the several Underwriters,
By:
--------------------------------
Name:
Title:
[Signature page to Underwriting Agreement (p. 2 of 2)]
SCHEDULE I
INITIAL
PRINCIPAL
AMOUNT [_________] [_________] [_________] [_________] [_________]
Class A-1 $ $ $ $ $
Notes
Class A-2
Notes $ $ $ $ $
Class A-3
Notes $ $ $ $ $
Class A-4
Notes $ $ $ $ $
TOTAL $ $ $ $ $
SCHEDULE II
[None.]
