EXHIBIT 1.1
EXECUTION COPY
TRIAD AUTOMOBILE RECEIVABLES TRUST 2003-B
CLASS A-1 1.13% ASSET BACKED NOTES
CLASS A-2 1.66% ASSET BACKED NOTES
CLASS A-3 2.48% ASSET BACKED NOTES
CLASS A-4 3.20% ASSET BACKED NOTES
TRIAD FINANCIAL SPECIAL PURPOSE LLC
(DEPOSITOR)
October 20, 2003
UNDERWRITING AGREEMENT
Credit Suisse First Boston LLC
On behalf of itself and
as representative (the "Representative")
of the Underwriters
00 Xxxxxxx Xxxxxx, 0xx 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) $193,000,000 principal amount of Class A-1 1.13%
Asset Backed Notes (the "Class A-1 Notes");
(b) $280,000,000 principal amount of Class A-2 1.66%
Asset Backed Notes (the "Class A-2 Notes");
(c) $210,000,000 principal amount of Class A-3 2.48%
Asset Backed Notes (the "Class A-3 Notes");
(d) $249,000,000 principal amount of Class A-4 3.20%
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 2003-B (the "Trust").
Simultaneously with the issuance and sale of the Underwritten
Securities as contemplated herein, the Trust will issue $92,700,567.30 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
October 1, 2003 (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 October 1, 2003 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 October 1, 2003, and certain monies due or in some cases received
thereunder on or after October 1, 2003. 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 October 1, 2003 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 MBIA Insurance Corporation, a financial guaranty
insurance company incorporated under the laws of the State of New York (the
"Insurer").
In connection with the issuance of the Note Policy (i) the Indenture
Trustee, Triad, the Trust and the Insurer will execute and deliver an Insurance
and Indemnity Agreement dated as of October 1, 2003 (the "Insurance Agreement")
and (ii) the Representative and the Insurer will execute and deliver an
Indemnification Agreement dated as of October 20, 2003 (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 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 of any lien, charge, or encumbrance upon any
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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 99.87500%
Class A-2 Notes 99.78685%
Class A-3 Notes 99.76131%
Class A-4 Notes 99.76636%
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 October 29, 2003, 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 United States Securities and
Exchange 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.
(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 October 20, 2003 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
16
independent investigation, any judgment or order applicable to
it or its acts, properties or, to the best of counsel's
knowledge, without independent investigation, any indenture,
mortgage, contract or other agreement or instrument to which
the Owner Trustee in its respective capacities is a party or
by which it is bound.
(v) Neither the execution and delivery by the
Owner Trustee, on behalf of the Trust, of the Indenture, the
Insurance Agreement or Sale and Servicing Agreement, nor the
execution and delivery of the Trust Agreement or the
Certificate of Trust by the Owner Trustee, requires the
consent, authorization, order or approval of, the giving of
notice to, the registration with, or the taking of any other
action with respect to, any governmental authority or agency
under the laws of the State of Delaware or the federal laws of
the United States governing the banking or trust powers of the
Owner Trustee.
(vi) To the best of counsel's knowledge, without
independent investigation, there are no actions or proceedings
pending or threatened against the Owner Trustee in any court
or before any governmental authority, arbitration board or
tribunal of the State of Delaware which involve the Trust
Agreement, the Indenture, the Sale and Servicing Agreement,
the Insurance Agreement or the Certificate of Trust or the
Notes or would question the right, power or authority of the
Owner Trustee to enter into or perform its obligations under
the Trust Agreement or the Certificate of Trust or to execute
and deliver, on behalf of the Trust, the Indenture, Sale and
Servicing Agreement or the Insurance Agreement.
(p) The 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
corporation, duly incorporated and validly existing under the
laws of the State of New York. The Insurer is validly licensed
and authorized to issue the Note Policy and perform its
obligations under the Note Policy in accordance with the terms
thereof, under the laws of the State of New York.
(ii) The execution and delivery by the Insurer of
the Note Policy and the Insurance Agreement are within the
corporate power of the Insurer and have been authorized by all
necessary corporate action on the part of the Insurer; the
Note Policy has been duly executed and is the legal, valid and
binding obligation of the Insurer enforceable in accordance
with its terms except that the enforcement of the Note Policy
may be limited by laws relating to bankruptcy, insolvency,
reorganization, moratorium, receivership and other similar
laws affecting creditors' rights generally and by general
principles of equity (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at
law).
(iii) The Insurer is authorized to deliver the
Insurance Agreement and it has been duly executed and
(assuming the due authorization, execution and delivery of the
other parties thereto) is the valid and binding obligation of
the Insurer enforceable in accordance with its terms except
that the enforcement of the Insurance Agreement may be limited
by laws relating to bankruptcy, insolvency, reorganization,
moratorium, receivership and other similar laws affecting
creditors' rights generally and by general principles of
equity (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law) and subject
to the principles of public policy limiting the right to
enforce indemnification provisions contained therein insofar
as such provisions relate to indemnification for liabilities
arising under securities laws.
(iv) No consent, approval, authorization or order
of any state or federal court or governmental agency or body
is required on the part of the Insurer the lack of which would
adversely affect the validity or enforceability of the Note
Policy; to the extent required by applicable legal
requirements that would
19
adversely affect validity or enforceability of the Note
Policy, the Note Policy form has been filed with, and approved
by, all governmental authorities having jurisdiction over the
Insurer in connection with such Note Policy.
(v) The execution and delivery of the Insurance
Agreement and the Note Policy, and the compliance with the
terms and provisions thereof, will not conflict with, result
in a breach of or constitute a default under any of the terms,
provisions or conditions of the charter or bylaws of the
Insurer, to the extent such conflict, breach or default would
materially and adversely affect the Insurer's ability to
perform its obligations under the Note Policy.
(vi) To the extent the Note Policy constitutes a
security within the meaning of Section 2(1) of the Act, it is
a security that is exempt from the registration requirements
of the Act.
(vii) The information set forth under the captions
"The Policy" and "The Insurer" in the Prospectus Supplement
dated October 20, 2003, insofar as such information
constitutes a description of the Note Policy, accurately
summarizes the Note Policy.
(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)
20
any breach or violation of any statute or regulation or, to
such counsel's knowledge, any order of any court, agency or
other governmental body.
(iv) To such counsel's knowledge, with respect to
the Indenture Trustee, there is no legal action, suit,
proceeding or investigation before any court, agency or other
governmental body pending or threatened against it which,
either in one instance or in the aggregate, draws into
question the validity of the Indenture, the Insurance
Agreement or the Sale and Servicing Agreement, seeks to
prevent the consummation of any of the transactions
contemplated by the Indenture or the Sale and Servicing
Agreement or would impair materially the ability of the
Indenture Trustee to perform its obligations under the
Indenture, the Insurance Agreement or the Sale and Servicing
Agreement.
(v) Each of the Indenture, the Insurance
Agreement and the Sale and Servicing Agreement has been duly
authorized, executed and delivered by the Indenture Trustee
and, assuming the necessary authorization, execution and
delivery thereof by the other parties thereto, is a valid and
legally binding agreement under the laws of the State of New
York, enforceable thereunder against the Indenture Trustee in
accordance with its terms.
(vi) The Notes have been duly authenticated and
delivered by the Indenture Trustee in accordance with the
Indenture.
(s) The 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.
21
(u) At the Closing Date, the Class A Notes shall have
been validly issued and paid for by the Depositor.
(v) The Note Policy shall have been issued by the Note
Insurer and shall have been duly countersigned by an authorized agent of the
Note 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.
22
(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 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
23
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Depositor on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages, or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Depositor on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Depositor bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus 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
24
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 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.
25
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements (including, without limitation, 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) Credit Suisse First Boston LLC, 00 Xxxxxxx Xxxxxx, 0xx
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
26
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligations hereunder.
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)]
Accepted as of the date hereof:
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ XXXX X. XxXXXXXXXX, XX
-----------------------------
Name: Xxxx X. XxXxxxxxxx, XX
Title: Managing Director
Acting on behalf of itself and
as the Representative of the
Underwriters
[Signature page to Underwriting Agreement (p. 2 of 2)]
SCHEDULE I
BARCLAYS DEUTSCHE BANK
INITIAL PRINCIPAL CITIGROUP GLOBAL CREDIT SUISSE CAPITAL SECURITIES
AMOUNT MARKETS INC. FIRST BOSTON LLC INC. INC.
----------------------------------------------------------------------------------------------------------------
Class A-1 Notes $ 72,000,000 $ 72,000,000 $ 24,500,000 $ 24,500,000
----------------------------------------------------------------------------------------------------------------
Class A-2 Notes $ 102,000,000 $ 102,000,000 $ 38,000,000 $ 38,000,000
----------------------------------------------------------------------------------------------------------------
Class A-3 Notes $ 78,000,000 $ 78,000,000 $ 27,000,000 $ 27,000,000
----------------------------------------------------------------------------------------------------------------
Class A-4 Notes $ 93,000,000 $ 93,000,000 $ 31,5000,000 $ 31,5000,000
----------------------------------------------------------------------------------------------------------------
TOTAL $ 345,000,000 $ 345,000,000 $ 121,000,000 $ 121,000,000
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