EXHIBIT 1.1
EXECUTION COPY
TRIAD AUTOMOBILE RECEIVABLES TRUST 2004-A
CLASS A-1 1.07% ASSET BACKED NOTES
CLASS A-2 1.40% ASSET BACKED NOTES
CLASS A-3 1.90% ASSET BACKED NOTES
CLASS A-4 2.50% ASSET BACKED NOTES
TRIAD FINANCIAL SPECIAL PURPOSE LLC
(DEPOSITOR)
March 9, 2004
UNDERWRITING AGREEMENT
Deutsche Bank Securities Inc.
On behalf of itself and
as representative (the "Representative")
of the Underwriters
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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) $124,000,000 principal amount of Class A-1 1.07% Asset Backed
Notes (the "Class A-1 Notes");
(b) $228,000,000 principal amount of Class A-2 1.40% Asset Backed
Notes (the "Class A-2 Notes");
(c) $110,000,000 principal amount of Class A-3 1.90% Asset Backed
Notes (the "Class A-3 Notes");
(d) $208,250,000 principal amount of Class A-4 2.50% 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" or "Underwritten
Securities");
in each case issued by Triad Automobile Receivables Trust 2004-A (the "Trust").
Simultaneously with the issuance and sale of the Underwritten Securities
as contemplated herein, the Trust will issue $66,295,272 principal amount of
Class B 8.00% Asset Backed Notes (the "Class B Notes" and, together with the
Class A Notes, the "Notes") and 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
March 1, 2004 (the "Indenture") by and between the Trust and JPMorgan Chase Bank
(the "Indenture Trustee"). Payments in respect of the Class B Notes, to the
extent specified in the Indenture and the Sale and Servicing Agreement (as
hereinafter defined), are subordinated to the rights of the holders of the Class
A Notes.
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 March 1, 2004 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 March 1, 2004, and certain monies due or in some cases received
thereunder on or after March 1, 2004. 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 March 1, 2004 by and among the Depositor, the
Servicer, the Indenture Trustee and the Trust.
The Class A Notes will have the benefit of a note insurance policy (the
"Note Policy"), issued by Ambac Assurance Corporation, a financial guaranty
insurance company incorporated under the laws of the State of Wisconsin (the
"Insurer").
In connection with the issuance of the Note Policy (i) the Indenture
Trustee, Triad, the Trust and the Insurer will execute and deliver an Insurance
and Indemnity Agreement dated as of March 1, 2004 (the "Insurance Agreement")
and (ii) the Representative and the Insurer will execute and deliver an
Indemnification Agreement dated as of March 9, 2004 (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) Registration statement on Form S-3 No. 333-90130 including a
form of prospectus and such amendments thereto as may have been required to the
date hereof, relating to the Underwritten Securities and the offering thereof
from time to time in accordance with Rule 415 under the Securities Act of 1933,
as amended (the "Act"), have been filed with the Securities and Exchange
Commission (the "Commission") and such registration statement, as amended, has
become effective. Such registration statement, as amended at the Effective Time,
including the exhibits thereto (but excluding Form T-1) and any material
incorporated by reference therein, are hereinafter referred to as the
"Registration Statement," and the prospectus (including the base
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prospectus and any prospectus supplement) relating to the Underwritten
Securities, as last filed with the Commission pursuant to Rule 424(b) ("Rule
424(b)") under the Act is hereinafter referred to as the "Prospectus." For
purposes of this Underwriting Agreement, "Effective Time" means the date and
time as of which such Registration Statement, or the most recent post-effective
amendment thereto, is declared effective by the Commission, and "Effective Date"
means the date of the Effective Time.
(b) On the Effective Date, the Registration Statement did conform in
all material respects to the requirements of the Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), where applicable, and the rules
and regulations of the Commission under the Act or the Exchange Act, as
applicable, and did not, as of the Effective Date, contain any 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; provided,
however, that this representation and warranty shall not apply to any statement
or omission made in reliance upon and in conformity with information furnished
in writing to the Depositor by the Underwriters through the Representative
expressly for use in the Registration Statement; and when the Indenture is
executed by the parties thereto, the Indenture will conform in all material
respects with the Trust Indenture Act and at all times thereafter the Indenture
will be duly qualified under the Trust Indenture Act.
(c) On the date of this Underwriting Agreement, the Registration
Statement conforms, and at the time of the last filing of the Prospectus
pursuant to Rule 424(b), the Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder (the "Rules and Regulations"), and,
except as aforesaid, neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(d) Other than with respect to any Derived Information (as defined
in Section 8) (as to which the Depositor makes no representation), the documents
incorporated by reference in the Prospectus, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations thereunder; and any further documents
so filed and incorporated by reference in the Prospectus, when such documents
are filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and the rules and regulations thereunder.
(e) The Depositor has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware, and is duly qualified to transact business and is in good standing in
each jurisdiction in the United States of America in which the conduct of its
business or the ownership of its property requires such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the transactions contemplated herein or in the Basic
Documents.
(f) The consummation by the Depositor of the transactions
contemplated by this Underwriting Agreement and the Basic Documents and the
fulfillment of the terms hereof and thereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under, or
result in the creation
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of any lien, charge, or encumbrance upon any of the property or assets of the
Depositor pursuant to the terms of, any indenture, mortgage, deed of trust, loan
agreement, guarantee, lease financing agreement, or similar agreement or
instrument under which the Depositor is a debtor or guarantor.
(g) 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.
(h) 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 Representative 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 99.787866%
Class A-3 Notes 99.775231%
Class A-4 Notes 99.761325%
Against payment of the purchase price in immediately available funds drawn
to the order of the Depositor, the Depositor will deliver the Underwritten
Securities to the Representative, for the account of the Underwriters, at the
office of Xxxxx Xxxxxxxxxx LLP on March 18, 2004, at 9:00 a.m., New York time,
or at such other time not later than seven full business days thereafter as the
Representative and the Depositor determine, such time being referred to as the
"Closing Date". Each of the Class A Notes to be so delivered will be initially
represented by one or more notes registered in the name of Cede & Co., the
nominee of The Depository Trust Company
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("DTC"). The interests of beneficial owners of the Class A 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) If required, to file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b) not later than the time specified therein.
The Depositor will advise the Underwriters promptly of any such filing pursuant
to Rule 424(b).
(b) To make no amendment or any supplement to the Registration
Statement or the Prospectus as amended or supplemented prior to the Closing
Date, without furnishing the Representative with a copy of the proposed form
thereof and providing the Representative with a reasonable opportunity to review
the same; and during such same period to advise the Representative, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus as amended or supplemented or any amended Prospectus has been
filed or mailed for filing, 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.
(c) Promptly from time to time to take such action as the
Representative may reasonably request in order to qualify the Underwritten
Securities for offering and sale under the securities laws of such states as the
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, and provided
further that the expense of maintaining any such qualification more than one
year from the Closing Date with respect to such Underwritten Securities shall be
at the Representative's expense.
(d) To furnish the Underwriters with copies of the Registration
Statement (including exhibits) and copies of the Prospectus as amended or
supplemented in such quantities as the Representative may from time to time
reasonably request; and if, before a period of six months shall have elapsed
after the Closing Date and the delivery of a prospectus or offering document
shall be at the time required by law in connection with sales of any such
Underwritten Securities, either (i) any event shall have occurred as a result of
which the Prospectus would include any untrue statement of a material fact or
omit to state any material fact necessary in
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order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or (ii) for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus as
amended or supplemented, to notify the Representative and to prepare and furnish
to the Representative as the Representative may from time to time reasonably
request an amendment or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case any Underwriter is
required by law to deliver a prospectus or other offering document in connection
with sales of any of such Underwritten Securities at any time six months or more
after the Closing Date, upon the Representative's request, but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many copies as
the Representative may request of an amended or supplemented prospectus or
offering document complying with the Act.
(e) To make generally available to Noteholders as soon as
practicable, but in any event no later than eighteen months after the Closing
Date, an earnings statement of the Depositor complying with Rule 158 under the
Act and covering a period of at least twelve consecutive months beginning after
the Closing Date.
(f) To furnish to the Representative copies of the Registration
Statement (one of which will be signed and will include all exhibits), each
related preliminary prospectus and the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and in such
quantities as the Representative reasonably requests.
(g) So long as any of the Underwritten Securities are outstanding,
to furnish the Representative copies of all reports or other communications
(financial or other) furnished to Noteholders, and to deliver to the
Representative during such same period, (i) as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission; (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 the Representative may from time to time reasonably
request.
(h) To pay or cause to be paid the following costs and expenses
incident to the performance of its obligations hereunder: (i) the Commission's
filing fees with respect to the Underwritten Securities; (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 PricewaterhouseCoopers LLP relating
to the letter referred to in Sections 6(a) and 8(c) hereof; (vii) 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; (viii) the cost of printing any term sheets,
computational materials and preliminary and final prospectuses provided to
investors (including any amendments and supplements thereto required within six
months from the Closing Date pursuant to Section 5(d) hereof) relating to the
Underwritten Securities and the Registration Statement; and (ix) any other fees
and expenses incurred in connection with the performance of its obligations
hereunder.
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(i) The Underwriters shall pay the following costs and expenses
incident to the performance of their obligations hereunder: all Blue Sky fees
and expenses as well as reasonable fees and expenses of counsel in connection
with state securities law qualifications and any legal investment surveys.
Except as provided in subsection (h) and Section 10 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
Xxxxx, Xxxxx, Xxxx & Maw 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.
(j) 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 Representative (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.
(k) 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.
(l) 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 Representative a letter dated as of the Closing Date
substantially in the form and substance of the draft to which the Representative
has previously agreed.
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(b) The Representative 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 Representative and duly executed by the
signatories required pursuant to the respective terms thereof.
(c) On the Closing Date, the Registration Statement shall be
effective and no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment shall have been issued and no
proceedings for that purpose shall have been instituted or, to the knowledge of
the Depositor, shall be contemplated by the Commission. Any request of the
Commission for inclusion of additional information in the Registration Statement
or the Prospectus shall have been complied with.
(d) The Representative shall have received as of the Closing Date an
officer's certificate signed by an authorized officer of the Depositor
representing and warranting that, as of the Closing Date, except to the extent
that they relate expressly to another date in which case they will be true and
correct as of such date on the Closing Date, the representations and warranties
of the Depositor in this Underwriting Agreement will be true and correct in all
material respects, that the Depositor has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date in all material respects, that 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 and that 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 (i) any statements or omissions made in reliance upon
and in conformity with information furnished by an Underwriter through the
Representative expressly for use therein or (ii) the Derived Information (as
defined in Section 8).
(e) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of the
Depositor, or any material adverse change in the financial position or results
or operations of the Depositor, otherwise than as set forth or contemplated in
the Prospectus, which in any such case makes it impracticable or inadvisable in
the Representative's reasonable judgment to proceed with the public offering or
the delivery of the Underwritten Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
(f) Since the respective dates as of which information is provided
in the Prospectus as amended or supplemented, there shall not have occurred any
material adverse change, or any development involving a prospective material
adverse change, in or affecting particularly the business or assets of Triad and
its subsidiaries considered as a whole, or any material adverse change in the
financial position or results of operations of Triad and its subsidiaries
considered as a whole, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, which makes it impracticable or
inadvisable in the Representative's reasonable judgment to proceed with the
public offering or the delivery of the
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Underwritten Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(g) Subsequent to the execution and delivery of this Underwriting
Agreement,
(i) (A) there shall not have occurred a declaration of a
general moratorium on commercial banking activities by either the
Federal or New York State authorities or a material disruption in
the securities settlement or clearance systems in the United States,
which moratorium or disruption remains in effect and which, in the
Representative's reasonable judgment, substantially impairs the
Underwriters' ability to settle the transaction; provided that the
exercise of such judgment shall take into account the availability
of alternative means for settlement and the likely duration of such
moratorium or disruption with the understanding that if the
Commission or, with respect to a banking moratorium, the Board of
Governors of the Federal Reserve System or New York State banking
authority, as applicable, has unequivocally stated prior to the
Closing Date that the resumption of such systems will occur within 3
business days of the scheduled Closing Date for such Underwritten
Securities, the ability to settle the transaction shall not be
deemed to be substantially impaired and (B) the United States shall
not have become engaged in hostilities which have resulted in the
declaration of a national emergency or a declaration of war, which
makes it impracticable or inadvisable, in the Representative's
reasonable judgment, to proceed with the public offering or the
delivery of the Underwritten Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented,
and
(ii) there shall not have occurred (A) any suspension or
limitation on trading in securities generally on the New York Stock
Exchange or the National Association of Securities Dealers National
Market system, or any setting of minimum prices for trading on such
exchange or market system, (B) any material outbreak or material
escalation of hostilities involving the engagement of armed conflict
in which the United States is involved or (C) any 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 Representative's view has caused a substantial
deterioration in the price and/or value of such Underwritten
Securities, that in the case of clause (A), (B) or (C), in the
mutual reasonable determination of the Representative and Triad, the
effect of any such event or circumstance makes it impracticable or
inadvisable to proceed with the public offering or the delivery of
the Underwritten Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
(h) Counsel satisfactory to the Representative in its reasonable
judgment shall have furnished to the Representative a written opinion, dated as
of the Closing Date, in form satisfactory to the Representative in its
reasonable judgment, to the effect that:
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(i) 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, and is duly qualified to transact
business and is in good standing in each jurisdiction in the United
States of America in which the conduct of its business or the
ownership of its property requires such qualification.
(ii) This Underwriting Agreement has been duly authorized,
executed and delivered by the Depositor.
(iii) The Purchase Agreement, the Insurance Agreement, the
Trust Agreement and the Sale and Servicing Agreement have been duly
authorized, executed and delivered by, and each constitutes a valid
and binding obligation of, the Depositor.
(iv) The consummation of the transactions contemplated by this
Underwriting Agreement and the Basic Documents, and the fulfillment
of the terms hereof and thereof, will not conflict with or result in
a material breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition
of any material lien, charge or encumbrance upon any of the property
or assets of the Depositor pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement, guarantee, lease financing
agreement or similar agreement or instrument known to such counsel
under which the Depositor is a debtor or guarantor, nor will such
action result in any violation of the provisions of the Certificate
of Formation or the Limited Liability Company Agreement of the
Depositor.
(v) The Notes have been duly authorized; when executed by the
Owner Trustee and authenticated by the Indenture Trustee in
accordance with the Indenture and delivered and paid for by the
purchasers thereof, the Notes will constitute valid and binding
obligations of the Trust enforceable in accordance with their terms.
(vi) The Registration Statement has become effective under the
Act and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission; the Registration Statement and the
Prospectus as amended or supplemented and any further amendments and
supplements thereto made by the Depositor prior to the Closing Date
(other than the financial statements and other accounting
information contained in the Registration Statement or the
Prospectus as amended or supplemented or any further amendments or
supplements thereto, or omitted therefrom, as to which such counsel
need express no opinion) comply as to form in all material respects
with the requirements of the Act and the rules and regulations
thereunder and the Trust Indenture Act.
(vii) Such counsel believes that neither the Registration
Statement (other than the financial statements and other accounting
information contained
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therein or omitted therefrom, as to which such counsel need express
no opinion) nor any amendment thereto, at the time the same became
effective, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(viii) Such counsel believes that at the Closing Date the
Prospectus as amended or supplemented (other than the financial
statements and the other accounting information contained therein or
omitted therefrom, as to which such counsel need express no opinion)
does not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(ix) Such counsel does not know of any contract or other
document of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which is not filed or incorporated by reference or
described as required.
(x) Such counsel does not know of any legal or governmental
proceedings pending to which the Depositor is a party or of which
any property of the Depositor is the subject, and no such
proceedings are known by such counsel to be threatened or
contemplated by governmental authorities or threatened by others,
other than as set forth or contemplated in the Prospectus as amended
or supplemented and other than such proceedings which, in such
counsel's opinion, will not have a material adverse effect upon the
general affairs, financial position, net worth or results of
operations (on an annual basis) of the Depositor and will not
materially and adversely affect the performance by the Depositor of
its obligations under, or the validity and enforceability of, this
Underwriting Agreement, the Basic Documents or the Notes.
(xi) The Notes, the Indemnification Agreement, the Basic
Documents and this Underwriting Agreement each conform in all
material respects with the descriptions thereof contained in the
Registration Statement or the Prospectus as amended or supplemented.
(xii) The Depositor is not required to be registered under the
Investment Company Act of 1940, as amended.
(xiii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in the Basic
Documents, except such as may be required under the Act, the Trust
Indenture Act and other federal and state securities laws; filings
with respect to the transfer of the Receivables to the Depositor
pursuant to the Purchase Agreement and to the Trust pursuant to the
Sale and Servicing Agreement and the grant of a security interest in
the
11
Receivables to the Indenture Trustee pursuant to the Indenture; and
such other approvals as have been obtained.
Such opinion may be made subject to the qualifications that the
enforceability of the terms of the Indenture, the Insurance Agreement, the
Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and
the Notes may be limited by bankruptcy, insolvency, reorganizations or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(i) Counsel satisfactory to the Representative in its reasonable
judgment shall have furnished to the Representative a written opinion, dated as
of the Closing Date, in form satisfactory to the Representative in its
reasonable judgment, to the effect that:
(i) Triad has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of
California, and is duly qualified to transact business and is in
good standing in each jurisdiction in the United States of America
in which the conduct of its business or the ownership of its
property requires such qualification, with only such exceptions as
are not material to the business of Triad and its subsidiaries
considered as a whole.
(ii) The indemnification agreement relating to the
Underwritten Securities (the "Triad Indemnification Agreement")
dated March 9, 2004 between Triad and the Representative, has been
duly authorized, executed and delivered by Triad.
(iii) The Limited Liability Company Agreement, the Insurance
Agreement, the Purchase Agreement, and the Sale and Servicing
Agreement have been duly authorized, executed and delivered by, and
each constitutes a valid and binding obligation of, Triad. The
Indenture, the Insurance Agreement and the Sale and Servicing
Agreement, have been duly authorized, executed and delivered by the
Trust and each constitutes a valid and binding obligation of the
Trust.
(iv) The consummation of the transactions contemplated by this
Underwriting Agreement, the Triad Indemnification Agreement and the
Basic Documents, and the fulfillment of the terms hereof and
thereof, will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under (in each case
material to Triad and its subsidiaries considered as a whole), or
result in the creation or imposition of any lien, charge or
encumbrance (in each case material to Triad and its subsidiaries
considered as a whole) upon any of the property or assets of Triad
pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement, guarantee, lease financing agreement or similar
agreement or instrument known to such counsel under which Triad is a
debtor or guarantor, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or the By-Laws of
Triad.
12
(v) Such counsel does not know of any legal or governmental
proceedings pending to which Triad is a party or of which any
property of Triad is the subject, and no such proceedings are known
by such counsel to be threatened or contemplated by governmental
authorities or threatened by others, other than as set forth or
contemplated in the Prospectus as amended or supplemented and other
than such proceedings which, in such counsel's opinion, will not
have a material adverse effect upon the general affairs, financial
position, net worth or results of operations (on an annual basis) of
Triad and its subsidiaries considered as a whole and will not
materially and adversely affect the performance by Triad of its
obligations under, or the validity and enforceability of, the Basic
Documents or the Triad Indemnification Agreement.
(vi) Triad has full power and authority to sell and assign the
property to be sold and assigned to the Depositor pursuant to the
Purchase Agreement and has duly authorized such sale and assignment
to the Depositor by all necessary corporate action.
(vii) The Depositor has full power and authority to sell and
assign the property to be sold and assigned to the Trust pursuant to
the Sale and Servicing Agreement and has duly authorized such sale
and assignment to the Trust by all necessary limited liability
company action.
(viii) The Trust has full power and authority to grant a
security interest in the property to be pledged to the Indenture
Trustee pursuant to the Indenture and has duly authorized such grant
by all necessary trustee action.
(ix) The statements in the Prospectus under the captions "Risk
Factors", "Material Federal Income Tax Consequences", "State and
Local Tax Considerations", "ERISA Considerations", "Legal
Investment" and "Material Legal Aspects of the Automobile Loans" to
the extent they constitute matters of law or legal conclusions, are
correct in all material respects.
(x) Immediately prior to the sale of the Receivables to the
Depositor, Triad owned the Receivables free and clear of any lien,
security interest or charge; immediately prior to the assignment of
the Receivables to the Trust, the Depositor owned the Receivables
free and clear of any lien, security interest or charge; and
immediately prior to the grant of a security interest in the
Receivables to the Indenture Trustee, the Trust owned the
Receivables free and clear of any lien, security interest or charge.
With respect to each Receivable constituting part of the Trust, such
Receivable is secured by a validly perfected first priority security
interest in the vehicle financed thereby in favor of Triad as a
secured party or Triad has instituted appropriate procedures that if
followed (and such counsel has no reason to believe that they will
not be so followed) will result in the perfection of a first
priority security interest in the vehicle financed thereby in favor
of Triad as a secured party. Each such Receivable has been duly and
validly assigned to the Depositor by Triad and to the Trust by the
Depositor, and a security interest in
13
each such Receivable has been duly and validly granted to the
Indenture Trustee by the Trust.
(xi) All filings necessary under applicable law to perfect the
sale of the Receivables by Triad to the Depositor pursuant to the
Purchase Agreement, the sale of the Receivables by the Depositor to
the Trust pursuant to the Sale and Servicing Agreement and the grant
of a security interest in the Receivables to the Indenture Trustee
pursuant to the Indenture have been made and, provided that neither
Triad nor the Depositor relocates its principal place of business to
a state other than California or changes its jurisdiction of
organization, no other filings (other than the filing of
continuation statements) need be made to maintain the perfection of
the sale of the Receivables either to the Depositor pursuant to the
Purchase Agreement or to the Trust pursuant to the Sale and
Servicing Agreement and of the grant of a security interest in the
Receivables to the Indenture Trustee pursuant to the Indenture.
(xii) The Trust Agreement is not required to be qualified
under the Trust Indenture Act, the Indenture has been duly qualified
under the Trust Indenture Act, and neither the Trust nor Triad is
required to be registered under the Investment Company Act of 1940,
as amended.
(xiii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the
consummation of the transactions contemplated herein or in the Basic
Documents, the Triad Indemnification Agreement, or the
Indemnification Agreement, except such as may be required under the
Act, the Trust Indenture Act and other federal and state securities
laws; filings with respect to the transfer of the Receivables to the
Depositor pursuant to the Purchase Agreement and to the Trust
pursuant to the Sale and Servicing Agreement and the grant of a
security interest in the Receivables to the Indenture Trustee
pursuant to the Indenture; and such other approvals as have been
obtained.
(xiv) Such counsel does not know of any legal or governmental
proceedings pending to which either Triad or the Depositor is a
party or of which any property of either Triad or the Depositor is
the subject, and no such proceedings are known by such counsel to be
threatened or contemplated by governmental authorities or threatened
by others (1) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this
Underwriting Agreement, the Indemnification Agreement, the Triad
Indemnification Agreement, or the Basic Documents, or (2) seeking
adversely to affect the federal income tax attributes of the Class A
Notes as described in the Prospectus under the heading "Material
Federal Income Tax Consequences."
(xv) Neither the issuance or sale of the Notes, nor the
execution and delivery of the Notes, this Underwriting Agreement,
the Indemnification Agreement, the Triad Indemnification Agreement,
or the Basic Documents, nor
14
the consummation of any of the other transactions contemplated
herein or in the Indemnification Agreement, the Triad
Indemnification Agreement, or the Basic Documents by Triad or the
Depositor, as the case may be, will contravene the terms of any
material provision of any statute, order, or regulation applicable
to Triad or the Depositor, as the case may be, the failure with
which to comply could have a material adverse effect on Triad and
its subsidiaries considered as a whole or the Depositor, as the case
may be.
(j) Xxxxx Xxxxxxxxxx LLP (or such other counsel satisfactory to the
Representative) 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 and with respect to the security interest of
the Trust in the Receivables (which opinion shall state that it may be relied
upon by the Indenture Trustee), to the Representative and to Triad, and such
opinion shall be in substantially the form previously discussed with the
Representative and counsel to the Representative and in any event satisfactory
in form and in substance to the Representative and to counsel to the
Representative and to Triad.
(k) Xxxxx Xxxxxxxxxx LLP (or such other counsel satisfactory to the
Representative), 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 Representative and to Triad, and such
opinion shall be in substantially the form previously discussed with the
Representative and counsel to the Representative and in any event satisfactory
in form and in substance to the Representative and counsel to the Representative
and to Triad.
(l) Xxxxx Xxxxxxxxxx LLP, special tax counsel to the Depositor,
shall have furnished to the Representative their written opinion, dated as of
the Closing Date, in form and in substance satisfactory to the Representative in
its 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 Representative in its reasonable
judgment shall have furnished to the Representative a written opinion, dated as
of the Closing Date, in form satisfactory to the Representative in its
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:
15
(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 Representative shall have received an opinion addressed to
the Representative of Xxxxx Xxxxxxxxxx LLP, dated the Closing Date, with respect
to the validity of the Underwritten Securities, and such other related matters
as the Representative shall require 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 Representative shall have received an opinion addressed to
the Representative, the Depositor and Triad of counsel to the Owner Trustee,
dated the Closing Date and satisfactory in form and substance to the
Representative and counsel to the Representative, addressing such matters as the
Representative 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
16
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 Representative shall have received an opinion addressed to
the Representative, the Depositor and Triad of counsel to the Trust, dated the
Closing Date and satisfactory in form and substance to the Representative and
counsel to the Representative, addressing such matters as the Representative 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.
17
(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.
(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.
18
(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 Representative shall have received an opinion addressed to
the Representative, 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 Representative and counsel to the Representative, 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 Wisconsin. The Insurer (a) is a stock insurance company
validly existing and in good standing under the laws of the State of
Wisconsin, (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 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
Wisconsin.
(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 Securities Act.
(vii) Neither the execution or delivery by the Insurer of the
Note Policy 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 Representative shall have received an opinion addressed to
the Representative, 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 Representative and counsel to the Representative, to the effect
that:
(i) The Indenture Trustee has been legally incorporated under
the laws of the State of New York and, based upon a certificate of
good standing issued by that State, is validly existing as a banking
association in good standing under the laws of that State, 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 Representative shall have received an officer's certificate
dated the Closing Date of an authorized officer of:
(i) Triad, in which such officers shall state that, to the
best of their knowledge after reasonable investigation, the
representations and warranties of the Servicer contained in the Sale
and Servicing Agreement and of Triad contained in the Purchase
Agreement are true and correct in all material respects and that
Triad has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied under such agreements at or
prior to the Closing Date in all material respects.
(ii) The Depositor, in which such officers shall state that,
to the best of their knowledge after reasonable investigation, the
representations and warranties of the Depositor contained in the
Trust Agreement, the Sale and Servicing Agreement and the Purchase
Agreement are true and correct in all material respects, and that
the Depositor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under such
agreements at or prior to the Closing Date in all material respects.
(t) The Class A-1 Notes shall have been rated in the highest
short-term rating category by each of Xxxxx'x, Fitch and Standard & Poor's; the
Class A-2 Notes, the Class A-3 and the Class A-4 Notes shall have been rated in
the highest long-term rating category by each of Xxxxx'x, Fitch and Standard &
Poor's.
(u) At the Closing Date, the Class A Notes shall have been validly
issued and paid for by the Depositor.
21
(v) 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.
(w) All proceedings in connection with the transactions contemplated
by this Agreement, and all documents incident hereto, shall be reasonably
satisfactory in form and substance to the Representative and counsel for the
Representative, and the Representative and counsel for the Representative shall
have received such other information, opinion, certificates and documents as
they may reasonably request in writing.
(x) The Representative 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 each Underwriter harmless against any losses, claims, damages, or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any related preliminary prospectus or any portion of the 8-K Information
constituting Pool Information or Prospectus 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, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter 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 an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Depositor by any Underwriter through the
Representative specifically for use therein; and provided further, that the
Depositor shall not be liable to any Underwriter or any person controlling any
Underwriter under the indemnity agreement in this subsection (a) with respect to
any of such documents to the extent that any such loss, claim, damage or
liability of such Underwriter or such controlling person results from the fact
that such Underwriter sold the Underwritten Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), whichever is most recent, if
the Depositor has previously furnished copies thereof to such Underwriter
reasonably prior to such transaction.
The indemnity agreement in this subsection (a) shall be in addition to any
liability which the Depositor may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act.
(b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Depositor against any losses, claims, damages or liabilities
to which the Depositor may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or
22
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any related preliminary prospectus, or 8-K Information, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made (i) in reliance upon and in conformity with written information furnished
to the Depositor by such Underwriter through the Representative specifically for
use therein or (ii) in the Derived Information prepared by such Underwriter, and
will reimburse any legal or other expenses reasonably incurred by the Depositor
in connection with investigating or defending any such action or claim.
The indemnity agreement in this subsection (b) shall be in addition to any
liability which each Underwriter may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls the Depositor
within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) of written 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 subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof, and in the event that such indemnified party shall not so
notify the indemnifying party within 30 days following receipt of any such
notice by such indemnified party, the indemnifying party shall have no further
liability under such subsection to such indemnified party unless the
indemnifying party shall have received other notice addressed and delivered in
the manner provided in Section 11 hereof of the commencement of such action; but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under such
subsection. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party in its
reasonable judgment, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(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
23
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 Supplement as
amended or supplemented with respect to the Underwritten Securities. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Depositor or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission, including, with respect to any Underwriter, the extent to
which such losses, claims, damages or liabilities (or actions in respect
thereof) result from the fact that such Underwriter sold Underwritten Securities
to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or the Prospectus as then
amended or supplemented (excluding documents incorporated by reference),
whichever is most recent, if the Depositor has previously furnished copies
thereof to such Underwriter reasonably prior to such transaction. 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. 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 amount by which the total price at which the
Underwritten Securities underwritten by it and distributed to the public were
offered to the public, exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of the Underwritten
Securities in this subsection (d) to contribute are several and not joint in
proportion to their respective underwriting obligations with respect to such
Underwritten Securities as set forth in Schedule I hereto.
8. 8-K Information and Derived Information.
(a) Each Underwriter may prepare and provide to prospective
investors "Computational Materials," "ABS Term Sheets" and "Collateral Term
Sheets" (collectively, the "8-K Information") in connection with its offering of
the Notes, as described in the No-Action Letter of May 20, 1994 issued by the
Commission to Xxxxxx, Xxxxxxx Acceptance Corporation I and certain affiliates,
as made applicable to other issuers and underwriters by the Commission in
response to the request of the Public Securities Association dated May 24, 1994
(collectively, the "Xxxxxx/PSA Letter"), and the requirements of the No-Action
Letter of February 17, 1995 issued
24
by the Commission to the Public Securities Association (the "PSA Letter" and,
together with the Xxxxxx/PSA Letter, the "No-Action Letters"); subject to the
following conditions: (i) such Underwriter shall comply with the requirements of
the No-Action Letters; (ii) for purposes hereof, "Computational Materials" shall
have the meaning given such term in the No-Action Letters, but with respect to
any Underwriter shall include only those Computational Materials that have been
prepared by such Underwriter for prospective investors and for purposes hereof
and "ABS Term Sheets" and "Collateral Term Sheets" shall have the meanings given
such terms in the PSA Letter but with respect to any Underwriter shall include
only those ABS Term Sheets or Collateral Term Sheets that have been prepared by
such Underwriter for prospective investors; (iii) each Underwriter shall provide
to the Depositor any 8-K Information which is provided to investors no later
than the second Business Day preceding the date such 8-K Information is required
to be filed pursuant to the applicable No-Action Letters and each Underwriter
may provide copies of the foregoing in a consolidated or aggregated form
including all information required to be filed; and (iv) in the event that the
Depositor or any Underwriter discovers an error in the 8-K Information, the
Underwriter that prepared such material shall prepare corrected 8-K Information
and deliver it to the Depositor for filing.
(b) The Depositor will cause to be filed with the Commission one or
more current reports on Form 8-K with respect to the 8-K Information.
(c) The Depositor shall cause PricewaterhouseCoopers LLP to furnish
the Depositor a letter dated no later than the Closing Date, in form and
substance satisfactory to the Depositor, with respect to any 8-K Information
prepared by such Underwriter.
(d) Each Underwriter represents and warrants to, and covenants with,
the Depositor that the Derived Information prepared by such Underwriter for
prospective investors, when read in conjunction with the Prospectus, is not
misleading or inaccurate in any material respect.
For purposes of this Underwriting Agreement, the term "Derived
Information" means such portion, if any, of 8-K Information that is not Pool
Information or Prospectus Information; provided, however, that 8-K Information
that is not Pool Information or Prospectus Information shall not constitute
Derived Information to the extent such information is inaccurate or misleading
in any material respect directly as a result of it being based on Pool
Information or Prospectus Information that is inaccurate or misleading in any
material respect. "Pool Information" means the Computer Tape and the other
information furnished by magnetic tape, diskette or any other computer readable
format, or in writing to the Underwriters by the Depositor or Triad regarding
the Receivables and "Prospectus Information" means the information contained in
(but not incorporated by reference in) the Prospectus, provided, however, that
if any information that would otherwise constitute Pool Information or
Prospectus Information is presented in the 8-K Information in a way that is
either inaccurate or misleading in any material respect when read in conjunction
with the Prospectus and would not be inaccurate or misleading in any material
respect but for the manner in which such information is presented, such
information shall not be Pool Information or Prospectus Information.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements
(including, without limitation,
25
Section 5 (k) hereof) of the Depositor or the officers of the Depositor and of
the Underwriters set forth in or made pursuant to this Underwriting Agreement
will remain in full force and effect, regardless of any investigation or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Depositor or any of their respective representatives, officers or directors
of any controlling person, and will survive delivery of and payment for the
Underwritten Securities.
10. Failure to Purchase the Underwritten Securities. If the purchase of
the Underwritten Securities shall not be consummated because the circumstances
described in Section 6(f) shall have occurred, then the Depositor shall not have
any liability to the Underwriters with respect to the Underwritten Securities
except as provided in Section 5(h) and Section 7 hereof; but if for any other
reason the Underwritten Securities are not delivered to the Underwriters as
provided herein, the Depositor will be liable to reimburse the Underwriters,
through the Representative, for all out-of-pocket expenses, including counsel
fees and disbursements reasonably incurred by the Underwriters in making
preparations for the offering of the Underwritten Securities, but the Depositor
shall not then have any further liability to any Underwriter with respect to the
Underwritten Securities except as provided in Section 5(h) and Section 7 hereof.
If any Underwriter or Underwriters default on their obligations to purchase
Underwritten Securities hereunder and the aggregate principal amount of
Underwritten Securities that such defaulting Underwriter or Underwriters agreed
but failed to purchase does not exceed 10% of the total principal amount of the
Underwritten Securities, the Representative may make arrangements satisfactory
to the Depositor for the purchase of such Underwritten Securities by other
persons, including the non-defaulting Underwriter or Underwriters, but if no
such arrangements are made by the Closing Date, the non-defaulting Underwriter
or Underwriters shall be obligated, in proportion to their commitments
hereunder, to purchase the Underwritten Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase. If any Underwriter or
Underwriters so default and the aggregate principal amount of Underwritten
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of the Underwritten Securities and arrangements
satisfactory to the non-defaulting Underwriter or Underwriters 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 non-defaulting Underwriter and the
Depositor, except as provided in Section 5(h) and Section 7 hereof. As used in
this Underwriting Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter or Underwriters from liability for its default.
11. Notices. All communications hereunder will be in writing and will be
mailed, delivered or sent by facsimile transmission and confirmed.
Communications to the Representative or the Underwriters shall be given to the
Representative at (i) Deutsche Bank Securities Inc., 00 Xxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. 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.
26
13. Applicable Law. This Underwriting Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
14. Counterparts. This Underwriting Agreement may be executed by each of
the parties hereto in any number of counterparts, and by each of the parties
hereto on separate counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
27
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/ XXXX X. XXXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
[Signature page to Underwriting Agreement (p. 1 of 2)]
28
Accepted as of the date hereof:
DEUTSCHE BANK SECURITIES INC.
By: /s/ XXX X. XXXXXXX
-------------------------------
Name: Xxx X. Xxxxxxx
Title: Director
By: /s/ XXXX XXXXXXXX
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
Acting on behalf of itself and
as the Representative of the
Underwriters
[Signature page to Underwriting Agreement (p. 2 of 2)]
29
SCHEDULE I
DEUTSCHE BANK XXXXXXX XXXXX,
INITIAL PRINCIPAL BANC OF AMERICA SECURITIES X.X. XXXXXX XXXXXX, XXXXXX &
AMOUNT SECURITIES LLC INC. SECURITIES INC. XXXXX INCORPORATED
------------------ ---------------- --------------- -------------- ------------------
Class A-1 Notes $ 45,900,000 $ 45,900,000 $ 16,100,000 $ 16,100,000
Class A-2 Notes $ 84,400,000 $ 84,400,000 $ 29,600,000 $ 29,600,000
Class A-3 Notes $ 40,700,000 $ 40,700,000 $ 14,300,000 $ 14,300,000
Class A-4 Notes $ 77,055,000 $ 77,055,000 $ 27,070,000 $ 27,070,000
--------------- --------------- -------------- --------------
TOTAL $ 248,055,000 $ 248,055,000 $ 87,070,000 $ 87,070,000
=============== =============== ============== ==============
