EXHIBIT 10.1
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PURCHASE AGREEMENT
between
TRIAD FINANCIAL CORP.,
and
[TRIAD FINANCIAL SPECIAL PURPOSE LLC,]
Dated as of __________, 20__
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS.............................................. 1
ARTICLE II PURCHASE AND SALE OF RECEIVABLES................................ 2
ARTICLE III REPRESENTATIONS AND WARRANTIES................................. 3
ARTICLE IV CONDITIONS...................................................... 15
ARTICLE V COVENANTS OF Triad............................................... 17
ARTICLE VI MISCELLANEOUS PROVISIONS........................................ 22
ANNEX A - Defined Terms
EXHIBIT A - Assignment
SCHEDULE A - Schedule of Receivables
PURCHASE AGREEMENT dated as of __________, 20__, by and between
TRIAD FINANCIAL CORP., a California corporation ("Triad"), having its principal
executive office at 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxxxx
00000 and [TRIAD FINANCIAL SPECIAL PURPOSE LLC], a Delaware limited liability
company (the "Transferor"), having its principal executive office at 000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000.
WHEREAS, in the regular course of its business, Triad purchases
and services through its auto loan programs certain motor vehicle retail
installment sale contracts secured by new and used automobiles, vans, sport
utility vehicles or light duty trucks acquired from motor vehicle dealers; and
WHEREAS, Triad and the Transferor wish to set forth the terms
pursuant to which the Receivables are to be sold by Triad to the Transferor,
which Receivables together with the other Trust Assets will be conveyed by the
Transferor to the Issuer pursuant to the [Sale and Servicing Agreement/Pooling
and Servicing Agreement].
NOW, THEREFORE, in consideration of the foregoing, other good and
valuable consideration, and the mutual terms and covenants contained herein, the
parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Capitalized terms used herein shall have the meanings set forth
in Annex A attached hereto.
1.1. Action by or Consent of Security Holders. Whenever any
provision of this Purchase Agreement refers to action to be taken, or consented
to, by Security Holders, such provision shall be deemed to refer to Security
Holders of record as of the Record Date immediately preceding the date on which
such action is to be taken, or consent given, by Security Holders. Solely for
the purposes of any action to be taken, or consented to, by Security Holders,
any Security registered in the name of Triad or any Affiliate thereof (other
than a Security pledged by Triad or an Affiliate to a nonaffiliated third party)
shall be deemed not to be outstanding and the aggregate principal balance
evidenced thereby shall not be taken into account in determining whether the
requisite principal balance necessary to effect any such action or consent has
been obtained; provided, however, that, solely for the purpose of determining
whether the Indenture Trustee or Trust Collateral Agent is entitled to rely upon
any such action or consent, only Securities the Indenture Trustee or Trust
Collateral Agent knows to be so owned shall be so disregarded.
1.2. Material Adverse Effect. Whenever a determination is to be
made under this Purchase Agreement as to whether a given event, action, course
of conduct or set of facts or circumstances could or would have a material
adverse effect on the Issuer or the Security Holders (or any similar or
analogous determination), [such determination shall be made without taking into
account the funds available from claims under the Policy]. Whenever a
determination is to be made under this Purchase Agreement whether a breach of a
representation,
warranty or covenant has or could have a material adverse effect on a Receivable
or the interest therein of the Issuer, the Security Holders [or the Security
Insurer] (or any similar or analogous determination), such determination shall
be made by [the Security Insurer in its sole discretion so long as no Security
Insurer Default shall have occurred and be continuing].
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES
2.1. Purchase and Sale of Receivables. On the Closing Date,
subject to the terms and conditions of this Purchase Agreement, Triad agrees to
sell to the Transferor, and the Transferor agrees to purchase from Triad,
without recourse (subject to the obligations in this Purchase Agreement and the
[Sale and Servicing Agreement/Pooling and Servicing Agreement]), all of Triad's
right, title and interest in, to and under the Receivables and the other
Transferred Property relating thereto. The conveyance to the Transferor of the
Receivables and other Transferred Property relating thereto is intended as a
sale free and clear of all liens and it is intended that such Transferred
Property and other property of the Transferor shall not be part of Triad's
estate in the event of the filing of a bankruptcy petition by or against Triad
under any bankruptcy law.
(a) Transfer of Receivables. On the Closing Date and
simultaneously with the transactions to be consummated pursuant to the [Sale and
Servicing Agreement/Pooling and Servicing Agreement], Triad shall sell,
transfer, assign, grant, set over and otherwise convey to the Transferor,
without recourse (subject to the obligations herein and in the [Sale and
Servicing Agreement/Pooling and Servicing Agreement]), all right, title and
interest of Triad in, to and under: (i) the Receivables listed in Schedule A
hereto, all monies received on the Receivables after the Cutoff Date and, with
respect to any Receivables which are Precomputed Receivables, the related
Payahead Amount, and all Liquidation Proceeds and Recoveries received with
respect to the Receivables; (ii) the security interests in the related Financed
Vehicles granted by the related Obligors pursuant to the Receivables and any
other interest of Triad in such Financed Vehicles, including, without
limitation, the certificates of title and any other evidence of ownership with
respect to such Financed Vehicles; (iii) any proceeds from claims on any
physical damage, credit life and credit accident and health insurance policies
or certificates or the VSI Policy, if any, relating to the related Financed
Vehicles or the related Obligors, including any rebates and premiums; (iv)
property (including the right to receive future Liquidation Proceeds) that
secures a Receivable and that has been acquired pursuant to the liquidation of
such Receivable; (v) refunds for the costs of extended service contracts with
respect to the related Financed Vehicles, refunds of unearned premiums with
respect to credit life and credit accident and health insurance policies or
certificates covering a related Obligor or Financed Vehicle or his or her
obligations with respect to such Financed Vehicle and any recourse to Dealers
for any of the foregoing; (vi) the Legal Files and the Receivable Files related
to each Receivable and any and all other documents that Triad keeps on file in
accordance with its customary procedures relating to the Receivables, the
related Obligors or the related Financed Vehicles; (vii) all amounts and
property from time to time held in or credited to the Lock-Box Account, to the
extent such amounts and property relate to the Receivables; (viii) any proceeds
from recourse against Dealers (other than any Chargeback Obligations) including,
without limitation, any Dealer Title Guaranties with respect to the Receivables,
with respect to the sale of
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the Receivables; and (ix) the proceeds of any and all of the foregoing
(collectively, the property set forth in clauses (i) through (ix) above, the
"Transferred Property").
(b) Receivables Purchase Price. In consideration for the
Receivables and other Transferred Property described in Section 2.1(a), the
Transferor shall, on the Closing Date, pay to Triad, the Receivables Purchase
Price to Triad on the Closing Date. The Receivables Purchase Price shall be paid
by federal wire transfer (same day) funds.
2.2. The Closing. The sale and purchase of the Receivables and
the other Transferred Property relating thereto shall take place at a closing
(the "Closing") at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing Date, simultaneously with the
closings under: (a) the [Sale and Servicing Agreement/Pooling and Servicing
Agreement] pursuant to which the Transferor will convey all of its right, title
and interest in and to the Receivables and the other Trust Assets to the Issuer;
(b) the Indenture pursuant to which the Issuer will pledge all of its right,
title and interest in and to the Receivables and the other Pledged Property to
the Indenture Trustee for the benefit of the Security Holders [and the Security
Insurer]; (c) the Trust Agreement pursuant to which the Issuer shall be formed
and the Certificate issued to the Transferor and (d) the Underwriting Agreement
pursuant to which the Issuer shall sell the Securities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to Triad as of the date hereof and as
of the Closing Date, on which Triad relies in selling the Receivables and the
other Transferred Property, on which the Issuer relies in pledging the
Receivables and the other Pledged Property to the Indenture Trustee under the
Indenture [and on which the Security Insurer will rely in issuing the Policy]:
(a) Organization and Good Standing. The Transferor is duly
organized and validly existing as a [limited liability company] in good standing
under the laws of the State of Delaware, with the power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the power, authority and legal right to acquire and own the Receivables and
the other Transferred Property and to convey the Receivables and the other
Transferred Property to the Issuer pursuant to the [Sale and Servicing
Agreement/Pooling and Servicing Agreement] and to perform its other obligations
under this Purchase Agreement the [Sale and Servicing Agreement/Pooling and
Servicing Agreement] and any other Basic Documents to which it is a party.
(b) Due Qualification. The Transferor is duly qualified to do
business as a foreign [limited liability company] in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in which the
ownership or lease of its property or the conduct of its business (including,
without limitation, the purchase of the Receivables from Triad hereunder, the
conveyance of the Receivables by the Transferor pursuant to the [Sale and
Servicing Agreement/Pooling and Servicing Agreement], and the performance of its
other obligations
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under this Purchase Agreement, the [Sale and Servicing Agreement/Pooling and
Servicing Agreement] and the other Basic Documents to which it is a party) shall
require such qualifications, licenses and/or approvals, other than where the
failure to obtain such license or approval would not have a material adverse
effect on the ability of the Transferor to perform its obligations under this
Purchase Agreement, the [Sale and Servicing Agreement/Pooling and Servicing
Agreement] or any other Basic Document to which it is a party, on any Receivable
or on the interest therein of the Issuer, the Security Holders [or the Security
Insurer].
(c) Power and Authority. The Transferor has the power and
authority to execute and deliver this Purchase Agreement and the other Basic
Documents to which it is a party and to carry out their respective terms and the
execution, delivery and performance of this Purchase Agreement and the other
Basic Documents to which it is a party have been duly authorized by the
Transferor by all necessary corporate action.
(d) Binding Obligation. Each of this Purchase Agreement and each
other Basic Document to which the Transferor is a party shall constitute a
legal, valid and binding obligation of the Transferor enforceable in accordance
with its terms, except only as such enforcement may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally.
(e) No Violation. The execution, delivery and performance by the
Transferor of this Purchase Agreement and the other Basic Documents to which it
is a party and the consummation of the transactions contemplated hereby and
thereby and the fulfillment of the terms hereof and thereof do not conflict
with, result in a breach of any of the terms and provisions of, nor constitute
(with or without notice or lapse of time) a default under, the [limited
liability company agreement] of the Transferor, or any indenture, agreement,
mortgage, deed of trust, or other instrument to which the Transferor is a party
or by which it is bound or to which any of its properties are subject; nor
result in the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any indenture, agreement, mortgage, deed of trust, or
other instrument (other than the Basic Documents and the Credit and Security
Agreement); nor violate any law, order, rule or regulation applicable to the
Transferor of any court or of any Federal or State regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Transferor or its properties.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the Transferor's best knowledge, threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Transferor or its properties: (A) asserting the
invalidity of this Purchase Agreement, the [Sale and Servicing Agreement/Pooling
and Servicing Agreement], the Securities or any other Basic Document; (B)
seeking to prevent the issuance of the Securities or the consummation of any of
the transactions contemplated by this Purchase Agreement, the [Sale and
Servicing Agreement/Pooling and Servicing Agreement] or any other Basic Document
to which it is a party; (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Transferor of its
obligations under, or the validity or enforceability of, this Purchase
Agreement, the [Sale and Servicing Agreement/Pooling and Servicing Agreement],
the Securities or any other Basic Document to which it is a party; or (D)
relating to the Transferor and which might
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adversely affect the Federal or State income, excise, franchise or similar tax
attributes of the Securities.
(g) No Consents. No consent, approval, authorization or order of
or declaration or filing with any governmental authority is required to be
obtained by the Transferor for the issuance or sale of the Securities or the
consummation of the other transactions contemplated by this Purchase Agreement,
the [Sale and Servicing Agreement/Pooling and Servicing Agreement] or any other
Basic Document to which it is a party, except such as have been duly made or
obtained or where the failure to obtain such consent, approval, authorization,
order or declaration, or to make such filing, would not have a material adverse
effect on the ability of the Transferor to perform its obligations under this
Purchase Agreement, the [Sale and Servicing Agreement/Pooling and Servicing
Agreement] or any other Basic Document to which it is a party or on any
Receivable or the interest therein of the Issuer, the Security Holders [or the
Security Insurer].
(h) Valid Assignment. Each Receivable has been validly assigned
by the Transferor to the Issuer on the Closing Date pursuant to the [Sale and
Servicing Agreement/Pooling and Servicing Agreement]; and no Receivable has been
sold, transferred, assigned or pledged by the Transferor to any Person other
than the Issuer.
3.2. Representations and Warranties of Triad.
(a) Triad hereby represents and warrants to the Transferor as of
the date hereof and as of the Closing Date on which the Transferor relies in
purchasing the Receivables and the other Transferred Property and in conveying
the Receivables and the other Trust Assets to the Issuer under the [Sale and
Servicing Agreement/Pooling and Servicing Agreement], on which the Issuer relies
in pledging the Receivables and the other Pledged Property to the Indenture
Trustee under the Indenture [and on which the Security Insurer will rely in
issuing the Policy]:
(i) Organization and Good Standing. Triad is duly organized and
validly existing as a corporation in good standing under the laws of the
State of California, with the corporate power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted and had at all relevant
times, and has, the corporate power, authority and legal right to
originate, acquire, own, sell and service the Receivables and to perform
its other obligations under this Purchase Agreement, and the other Basic
Documents to which it is a party.
(ii) Due Qualification. Triad is duly qualified to do business as
a foreign corporation in good standing, and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or
lease of its property or the conduct of its business (including, without
limitation, the origination of motor vehicle retail installment sale
contracts, the sale of the Receivables to the Transferor hereunder, the
servicing of the Receivables as required by the [Sale and Servicing
Agreement/Pooling and Servicing Agreement] and its other obligations
hereunder, under the [Sale and Servicing Agreement/Pooling and Servicing
Agreement] and the other Basic Documents to which it is a party) shall
require such qualifications, licenses and/or approvals, other than where
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the failure to obtain such license, qualification or approval would not
have a material adverse effect on the ability of the Transferor to
perform its obligations under this Purchase Agreement, the [Sale and
Servicing Agreement/Pooling and Servicing Agreement] or any other Basic
Document to which it is a party or on any Receivable or the interest
therein of the Transferor, the Issuer, the Security Holders [or the
Security Insurer].
(iii) Power and Authority. Triad has the corporate power and
authority to execute and deliver this Purchase Agreement and the other
Basic Documents to which it is a party and to carry out their respective
terms; Triad has full corporate power and authority to sell and assign
the property sold and assigned to the Transferor hereunder and has duly
authorized such sale and assignment to the Transferor by all necessary
corporate action; and the execution, delivery and performance of this
Purchase Agreement and the other Basic Documents to which it is a party
have been duly authorized by Triad by all necessary corporate action.
(iv) Valid Sale; Binding Obligation. This Purchase Agreement
effects a valid sale, transfer and assignment of the Receivables and the
other Transferred Property conveyed to the Transferor pursuant to
Section 2.1 hereof, enforceable against creditors of and purchasers from
Triad; and this Purchase Agreement and each other Basic Document to
which it is a party shall constitute a legal, valid and binding
obligation of Triad enforceable in accordance with their respective
terms, except only as such enforcement may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally.
(v) No Violation. The execution, delivery and performance by
Triad of this Purchase Agreement and the other Basic Documents to which
it is a party and the consummation of the transactions contemplated
hereby and thereby and the fulfillment of the terms hereof and thereof
do not and will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse
of time) a default under, the certificate of incorporation or by-laws of
Triad, or any indenture, agreement, mortgage, deed of trust, or other
instrument to which Triad is a party or by which it is bound or to which
any of its properties are subject; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such indenture, agreement, mortgage, deed of trust, or other
instrument (other than this Purchase Agreement, the [Sale and Servicing
Agreement/Pooling and Servicing Agreement] and the Indenture); or
violate any law, order, rule or regulation applicable to Triad of any
court or of any Federal or State regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over Triad or
its properties, in each case other than any such Lien, conflict, breach,
default or violation which would not have a material adverse effect on
the interest of the Security Holders, the Transferor, the Issuer [or the
Security Insurer], in a material portion of the Receivables or on the
ability of Triad to perform its obligations under this Purchase
Agreement, the [Sale and Servicing Agreement/Pooling and Servicing
Agreement] or any other Basic Document to which it is a party.
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(vi) No Proceedings. There are no proceedings or investigations
pending, or to Triad's best knowledge, threatened, before any court,
regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over Triad or its properties: (A)
asserting the invalidity of this Purchase Agreement, the [Sale and
Servicing Agreement/Pooling and Servicing Agreement], any of the other
Basic Documents to which it is a party or the Securities; (B) seeking to
prevent the issuance of the Securities or the consummation of any of the
transactions contemplated by this Purchase Agreement, the [Sale and
Servicing Agreement/Pooling and Servicing Agreement] or any other Basic
Document to which it is a party; (C) seeking any determination or ruling
that might materially and adversely affect the performance by Triad of
its obligations under, or the validity or enforceability of, this
Purchase Agreement, the [Sale and Servicing Agreement/Pooling and
Servicing Agreement], any of the other Basic Documents to which it is a
party or the Securities; (D) relating to Triad and which might adversely
affect the Federal or State income, excise, franchise or similar tax
attributes of the Securities; or (E) that could have a material adverse
effect on the Receivables or the interest therein of the Transferor, the
Issuer, the Security Holders [or the Security Insurer].
(vii) No Consents. No consent, approval, authorization or order
of or declaration or filing with any governmental authority is required
to be obtained by Triad for the issuance or sale of the Securities or
the consummation of the other transactions contemplated by this Purchase
Agreement, the [Sale and Servicing Agreement/Pooling and Servicing
Agreement] or any of the other Basic Documents to which Triad is a
party, except such as have been duly made or obtained, other than the
failure to obtain such consent, approval, authorization, order or
declaration, or to make such filing, would not have a material adverse
effect on the ability of Triad to perform its obligations under the
Basic Documents to which it is a party or on any Receivable or the
interest therein of the Transferor, the Issuer, the Security Holders [or
the Security Insurer].
(viii) Financial Condition. Triad has a positive net worth
(taking into account advances and loans from [____] or its Affiliates
(other than subsidiaries of Triad) to Triad) and is able to and does pay
its liabilities as they mature. Triad is not in default under any
material obligation to pay money to any person except for matters being
disputed in good faith which do not involve an obligation of Triad on a
promissory note. Triad will not use the proceeds from the transactions
contemplated by this Purchase Agreement to give any preference to any
creditor or class of creditors, and this transaction will not leave
Triad with remaining assets which are unreasonably small compared to its
ongoing operations.
(ix) Fraudulent Conveyance. Triad is not selling the Receivables
to the Transferor with any intent to hinder, delay or defraud any of its
creditors; Triad will not be rendered insolvent as a result of the sale
of the Receivables to the Transferor.
(x) Disclosure. The Triad Information does not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(xi) Certificate, Statements and Reports. The officers
certificates, statements, reports and other documents prepared by Triad
and furnished by Triad to the Transferor, [the Security Insurer] or
[Underwriters] pursuant to this Purchase Agreement or any other Basic
Document to which Triad is a party, and in connection with the
transactions contemplated hereby or thereby, when taken as a whole, do
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained herein or
therein not misleading.
(xii) Legal Counsel, etc. Triad has consulted with its own legal
counsel and independent accountants to the extent it has deemed
necessary regarding the tax, accounting and regulatory consequences of
the transactions contemplated by this Purchase Agreement and the other
Basic Documents, and Triad is not participating in such transactions in
reliance on any representations of [Underwriters] or its affiliates, or
their counsel, with respect to tax, accounting and regulatory matters.
(xiii) Triad's Intention. The Receivables and other Transferred
Property are being transferred with the intention of removing them from
Triad's estate pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy
Code, as the same may be amended from time to time.
(b) Triad makes the following representations and warranties as
to the Receivables and the other Transferred Property relating thereto on which
the Transferor relies in accepting the Receivables and the other Trust Assets
relating thereto, on which the Issuer relies in pledging the Receivables and the
other Pledged Property to the Indenture Trustee under the Indenture [and on
which the Security Insurer will rely in issuing the Policy]:
(i) Origination Date. Each Receivable has an Origination Date on
or after ___________________.
(ii) Principal Balance/Number of Contracts. As of the Cutoff
Date, the total aggregate Principal Balance of the Receivables was
$___________. The Receivables are evidenced by _____ retail installment
sale contracts.
(iii) Maturity of Receivables. Each Receivable has an original
term to maturity of not less than __ months and not more than __ months;
the weighted average original term to maturity of the Receivables is __
months as of the Cutoff Date; the remaining term to maturity of each
Receivable was __ months or less as of the Cutoff Date; the weighted
average remaining term to maturity of the Receivables was __ months as
of the Cutoff Date and each Receivable was originated on or before the
Cutoff Date.
(iv) Characteristics of Receivables. (A) Each Receivable (1) has
been originated in the United States of America by a Dealer for the
retail sale of a Financed Vehicle in the ordinary course of such
Dealer's business, such Dealer had all necessary licenses and permits to
originate such Receivable in the State where such Dealer was located,
has been fully and properly executed by the parties thereto and has been
purchased by Triad from such Dealer under an existing Dealer Agreement
with Triad, in connection with the sale of Financed Vehicles by the
Dealer, and was validly assigned by such Dealer to Triad in
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accordance with its terms, (2) has created a valid, subsisting, and
enforceable first priority security interest in favor of Triad in the
Financed Vehicle, which security interest is assignable and has been
validly assigned by Triad to the Transferor, which in turn has been
validly assigned by the Transferor to the Issuer pursuant to the [Sale
and Servicing Agreement/Pooling and Servicing Agreement], which in turn
has been validly assigned by the Issuer to the Indenture Trustee
pursuant to the Indenture, (3) contains customary and enforceable
provisions such that the rights and remedies of the holder or assignee
thereof shall be adequate for realization against the collateral of the
benefits of the security, (4) provides for level monthly payments that
fully amortize the Amount Financed over the original term (except for
the first or last payment, which may be minimally different from the
level payment) and yield interest at the Annual Percentage Rate, (5) has
an Annual Percentage Rate of not less than ___%, (6) in the case of a
Receivable that is a Precomputed Receivable, in the event that such
Receivable is prepaid, provides for a prepayment that fully pays the
Principal Balance and includes, unless prohibited by applicable law, a
full month's interest, in the month of prepayment, at the Annual
Percentage Rate, (7) is a Precomputed Receivable or a Simple Interest
Receivable, and (8) was originated by a Dealer to an Obligor and was
sold by the Dealer to Triad without any fraud or misrepresentation on
the part of such Dealer or on the part of the Obligor; and (B)
approximately _____% of the aggregate Principal Balance of the
Receivables, constituting _____% of the number of contracts, as of the
Cutoff Date, represents financing of used automobiles, vans, sport
utility vehicles or light duty trucks; the remainder of the Receivables
represent financing of new automobiles, vans, sport utility vehicles or
light duty trucks; approximately ____% of the aggregate Principal
Balance of the Receivables as of the Cutoff Date were originated under
the Triad Class I program; approximately _____% of the aggregate
Principal Balance of the Receivables as of the Cutoff Date were
originated under the Triad Class IIA program; approximately _____% of
the aggregate Principal Balance of the Receivables as of the Cutoff Date
were originated under the Triad Class IIB program; approximately _____%
of the aggregate Principal Balance of the Receivables as of the Cutoff
Date were originated under the Triad Class III program; approximately
____% of the aggregate Principal Balance of the Receivables as of the
Cutoff Date were originated under the Triad Class IV program; no
Receivable shall have a payment that is more than 29 days overdue
(calculated on the basis of a 360-day year of twelve 30-day months) as
of the Cutoff Date; _____% of the aggregate Principal Balance of the
Receivables are Precomputed Receivables and _____% of the aggregate
Principal Balance of the Receivables are Simple Interest Receivables;
each Receivable shall have a final scheduled payment due no later than
________________. Each Receivable was originated on or before the Cutoff
Date.
(v) Scheduled Receivable Payments. Each Receivable had an
original Principal Balance of not less than $________ nor more than
$_________ has an outstanding Principal Balance as of the Cutoff Date of
not less than $_______ and not more than $_________ and has a first
Scheduled Receivable Payment due, in the case of Precomputed
Receivables, or a first scheduled due date, in the case of Simple
Interest Receivables, on or prior to ________________.
(vi) No Bankruptcies. No Obligor was bankrupt at the time of
origination of the related Receivable and no Obligor on any Receivable
as of the Cutoff Date was noted in
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the related Receivable File as having filed for bankruptcy since
origination of such Receivable and neither discharged, dismissed nor
reaffirmed.
(vii) Origination of Receivables. Based on the location of the
Dealers and the Principal Balances as of the Cutoff Date, approximately
_____% of the Receivables were originated in California, approximately
_____% of the Receivables were originated in Maryland, approximately
_____% of the Receivables were originated in New York and the remaining
_____% of the Receivables were originated in other States.
(viii) Lock-Box. Prior to the Closing Date, each Obligor will
have been notified by Triad to make payments with respect to its
respective Receivable after the Cutoff Date directly to the Lock-Box,
and will provide each Obligor with a monthly statement in order to
enable such Obligor to make payments directly to the Lock-Box.
(ix) Location of Legal Files; One Original. A complete Legal File
with respect to each Receivable has been or prior to the Closing Date
will be delivered to the Custodian at the location listed in Schedule B
to the [Sale and Servicing Agreement/Pooling and Servicing Agreement].
There is only one original executed copy of each Receivable.
(x) Schedule of Receivables; Selection Procedures. The
information with respect to the Receivables set forth in the Schedule of
Receivables is true and correct in all material respects as of the close
of business on the Cutoff Date and the Closing Date, and no selection
procedures adverse to the Issuer, the Security Holders [or to the
Security Insurer] have been utilized in selecting the Receivables. The
computer tape or other listing regarding the Receivables made available
to the Transferor and its assigns is true and correct as of the Cutoff
Date and the Closing Date in all respects. By the Closing Date, Triad
will have caused the portions of Triad's servicing records relating to
the Receivables to be clearly and unambiguously marked to show that the
Receivables constitute part of the Trust Assets and are owned by the
Issuer in accordance with the terms of the [Sale and Servicing
Agreement/Pooling and Servicing Agreement].
(xi) Compliance with Law. Each Receivable, the sale of each
Financed Vehicle related thereto and the sale of any physical damage,
credit life and credit accident and health insurance and any extended
service contracts related thereto complied at the time the related
Receivable was originated or made and at the execution of this Purchase
Agreement complies in all material respects with all requirements of
applicable Federal, State and local laws, and regulations thereunder
including, without limitation, usury laws, the Federal Truth-in-Lending
Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission
Act, the Xxxxxxxx-Xxxx Warranty Act, the Federal Reserve Board's
Regulations B and Z (including amendments to the Federal Reserve's
Official Staff Commentary to Regulation Z effective October 1, 1998
concerning negative equity loans), the Soldiers' and Sailors' Civil
Relief Act of 1940, as amended, the California Automobile Sales Finance
Act and state adaptations of the National Consumer Act and of the
Uniform Consumer Credit Code, and other consumer credit laws and equal
credit opportunity and disclosure laws.
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(xii) Binding Obligation. Each Receivable represents the genuine,
legal, valid and binding payment obligation in writing of the Obligor,
enforceable by the holder thereof in accordance with its terms, except
only as such enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and all parties to each Receivable had full legal capacity to execute
and deliver such Receivable and all other documents related thereto and
to grant the security interest purported to be granted thereby.
(xiii) No Government, Corporate or Fleet Obligor. None of the
Receivables is due from the United States of America or any State or
from any agency, department, or instrumentality of the United States of
America or any State. All of the Receivables are due from Obligors who
are natural persons or, if any Obligor is not a natural person, (a) such
entity is an obligor with respect to five or fewer Financed Vehicles and
(b) the related Receivable or Receivables have the benefit of the
personal guaranty of a natural person or persons. No Receivable has been
included in a "fleet" sale (i.e., a sale to any single Obligor of more
than five Financed Vehicles).
(xiv) Security Interest in Financed Vehicle. Immediately prior to
the sale, assignment, and transfer thereof, each Receivable shall be
secured by a validly perfected first priority security interest in the
Financed Vehicle in favor of Triad as secured party, and such security
interest is prior to all other liens upon and security interests in such
Financed Vehicle which now exist or may hereafter arise or be created
(except, as to priority, for any lien for taxes, labor or materials or
any other non-consensual lien affecting Financed Vehicle arising
subsequent to the Closing Date), and either (i) all necessary and
appropriate actions have been taken that would result in the valid
perfection of a first priority security interest in the Financed Vehicle
in favor of Triad as secured party, and the Lien Certificate for each
Financed Vehicle shows, or if a new or replacement Lien Certificate is
being applied for such new or replacement Lien Certificate will be
received within 150 days of the Closing Date and will show Triad named
as the original secured party under any such Receivable and the holder
of a first priority security interest in such Financed Vehicle, or (ii)
a Dealer Title Guaranty has been obtained with respect to such Financed
Vehicle. With respect to each Receivable for which the Lien Certificate
has not yet been submitted to, or returned from, the Registrar of
Titles, Triad has received either (i) written evidence from the related
Dealer that such Lien Certificate showing Triad as the first lienholder
has been applied for or (ii) a Dealer Title Guaranty with respect to
such Financed Vehicle. Immediately after the sale, transfer and
assignment thereof to the Issuer, each Receivable will be secured by an
enforceable first priority security interest in the Financed Vehicle in
favor of the Issuer as secured party, which security interest is prior
to all other liens upon and security interests in such Financed Vehicle
which now exist or may hereafter arise or be created (except, as to
priority, for the lien of the Indenture and for any lien for taxes,
labor or materials affecting such Financed Vehicle and arising
subsequent to the Closing Date).
(xv) Receivables in Force. No Receivable has been satisfied,
subordinated or rescinded, nor has any Financed Vehicle been released
from the lien granted by the related Receivable in whole or in part. No
provisions of any Receivable have been waived, altered, amended or
modified in any respect since its origination, except by
11
instruments or documents identified in the related Legal File on the
Closing Date. No Receivable has been modified as a result of application
of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended.
(xvi) Intentionally Omitted.
(xvii) Intentionally Omitted.
(xviii) No Defenses. As of the Closing Date, no right of
rescission, setoff, counterclaim or defense exists or has been asserted
or threatened with respect to any Receivable. The operation of the terms
of any Receivable or the exercise of any right thereunder will not
render such Receivable unenforceable in whole or in part or subject to
any such right of rescission, setoff, counterclaim, or defense.
(xix) No Liens. As of the Closing Date, there are no liens or
claims existing or which have been filed for work, labor, storage or
materials relating to a Financed Vehicle that shall be liens prior to,
or equal or coordinate with, the security interest in the Financed
Vehicle granted by the Receivable.
(xx) No Default; Repossession. Except for payment delinquencies
continuing for a period of not more than twenty-nine days (calculated on
the basis of a 360-day year of twelve 30-day months), as of the Cutoff
Date, no default, breach, violation or event permitting acceleration
under the terms of any Receivable has occurred and not been cured; and
no continuing condition that with notice or the lapse of time would
constitute a default, breach, violation, or event permitting
acceleration under the terms of any Receivable has arisen; and Triad
shall not waive and has not waived any of the foregoing; and no Financed
Vehicle shall have been repossessed as of the Cutoff Date.
(xxi) Insurance; other. (A) Each Obligor has obtained insurance
covering the Financed Vehicle as of the execution of the Receivable
insuring against loss and damage due to fire, theft, transportation,
collision and other risks generally covered by comprehensive and
collision coverage which is in an amount at least equal to the lesser of
(x) its maximum insurable value or (y) the principal amount due from the
Obligor under the related Receivable and names Triad and its successors
and assigns as loss payee and each Receivable requires the Obligor to
obtain and maintain such insurance naming Triad and its successors and
assigns as an additional insured, (B) each Receivable that finances the
cost of premiums for credit life and credit accident or health insurance
is covered by an insurance policy and certificate of insurance naming
Triad as policyholder (creditor) under each such insurance policy and
certificate of insurance and (C) as to each Receivable that finances the
cost of an extended service contract, the respective Financed Vehicle
which secures the Receivable is covered by an extended service contract.
(xxii) Title. It is the intention of Triad that the transfer and
assignment herein contemplated constitute a sale of the Receivables from
Triad to the Transferor and that the beneficial interest in and title to
such Receivables not be part of the debtor's estate in the event of the
filing of a bankruptcy petition by or against Triad under any bankruptcy
law. No Receivable has been sold, transferred, assigned, or pledged by
Triad to any
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Person other than the Transferor or conveyed by the Transferor to any
Person other than the Issuer except with respect to any such pledge that
has been released on or prior to the Closing Date. Immediately prior to
the transfer and assignment herein contemplated, Triad shall have good
and marketable title to each Receivable, and shall be the sole owner
thereof, free and clear of all Liens, claims, encumbrances, security
interests, and rights of others and, immediately upon the transfer
thereof, the Transferor shall have good and marketable title to each
such Receivable, and shall be the sole owner thereof, free and clear of
all Liens, encumbrances, security interests, and rights of others, and
each such transfer has been perfected under the UCC. Immediately prior
to the conveyance by the Transferor to the Issuer contemplated by the
[Sale and Servicing Agreement/Pooling and Servicing Agreement], the
Transferor shall have good and marketable title to each Receivable, and
shall be the sole owner thereof, free and clear of all Liens, claims,
encumbrances, security interests, and rights of others and, immediately
upon the conveyance thereof pursuant to the [Sale and Servicing
Agreement/Pooling and Servicing Agreement], the Issuer shall have good
and marketable title to each such Receivable, and shall be the sole
owner thereof, free and clear of all Liens, encumbrances, security
interests and rights of others, and each such transfer has been
perfected under the UCC. Immediately prior to the pledge by the Issuer
to the Indenture Trustee contemplated by the Indenture, the Issuer shall
have good and marketable title to each Receivable, and shall be the sole
owner thereof, free and clear of all Liens, claims, encumbrances,
security interests, and rights of others and such pledge has been
perfected under the UCC. Without limiting the generality of the
foregoing, no Dealer has any right, title or interest in respect of any
Receivable. Neither the Transferor nor Triad has taken any action to
convey any right to any Person that would result in such Person having a
right to payments received under any insurance policies related to the
Receivables or the Financed Vehicles or the related Dealer Agreements or
to payments due under such Receivables.
(xxiii) Lawful Assignment. No Receivable has been originated in,
or is subject to the laws of, any jurisdiction under which the sale,
transfer, and assignment of such Receivable under this Purchase
Agreement shall be unlawful, void, or voidable. Triad has not entered
into any agreement with any account debtor that prohibits, restricts or
conditions the assignment of any portion of the Receivables.
(xxiv) All Filings Made. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give the
Indenture Trustee a first priority perfected ownership interest in the
Receivables and the proceeds thereof and the other Transferred Property
(other than the Financed Vehicles) have been made.
(xxv) Chattel Paper. Each Receivable constitutes "chattel paper"
under the UCC.
(xxvi) Valid and Binding Obligation of Obligor. Each Receivable
is the legal, valid and binding obligation of the Obligor thereunder and
is enforceable in accordance with its terms, except only as such
enforcement may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally, and all
parties to such contract had full legal capacity to execute and deliver
such contract and all other
13
documents related thereto and to grant the security interest purported
to be granted thereby.
(xxvii) Tax Liens. As of the Closing Date, there is no lien or
claims existing or which have been filed against the related Financed
Vehicle for delinquent taxes.
(xxviii) Title Documents. (A) If a Receivable was originated in a
State in which notation of security interest on the title document of
the related Financed Vehicle is required or permitted to perfect such
security interest, the title document for such Receivable shows, or if a
new or replacement title document is being applied for with respect to
such Financed Vehicle, the title document will be received within 150
days following the Closing Date and will show, Triad named as the
original secured party under the related Receivable as the holder of a
first priority security interest in such Financed Vehicle and (B) if the
Receivable was originated in a State in which the filing of a financing
statement under the UCC is required to perfect a security interest in
motor vehicles, such filings or recordings have been duly made and show
Triad named as the secured party under the related Receivable, and in
either case, the Indenture Trustee has the same rights as such secured
party has or would have (if such secured party were still the owner of
the Receivable) against all parties claiming an interest in such
Financed Vehicle. With respect to each Receivable for which the relevant
Dealer is temporarily unable to furnish either an original Lien
Certificate or satisfactory evidence that the appropriate lien has been
recorded on the related certificate of title or documentation has been
submitted to the appropriate state motor vehicle authority to record
such lien on such certificate of title, Triad has received the related
Dealer Title Guaranty.
(xxix) Casualty. As of the Cutoff Date, no Financed Vehicle
related to a Receivable has suffered a Casualty.
(xxx) Obligation to Dealers or Others. The Transferor and its
assignees will assume no obligation to Dealers or other originators or
holders of the Receivables (including, but not limited to under dealer
reserves) as a result of its purchase of the Receivables.
(xxxi) Full Amount Financed Advanced. The full Amount Financed of
each Receivable has been advanced to or on behalf of each Obligor, and
there are no requirements for future advances thereunder. The Obligor
with respect to each Receivable does not have any option under such
Receivable to borrow from any person additional funds secured by the
Financed Vehicle.
(xxxii) No Impairment. Neither Triad nor the Transferor has done
anything to convey any right to any Person that would result in such
Person having a right to payments due under any Receivables or otherwise
to impair the rights of the Transferor, the Issuer, the Security Holders
[or the Security Insurer] in any Receivable or the proceeds thereof.
(xxxiii) Receivables Not Assumable. No Receivable is assumable by
another Person in a manner which would release the Obligor thereof from
such Obligor's obligations to the Transferor or Triad with respect to
such Receivable.
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(xxxiv) Servicing. The servicing of each Receivable and the
collection practices relating thereto have been lawful and in accordance
with the standards set forth in the [Sale and Servicing
Agreement/Pooling and Servicing Agreement]; other than Triad and any
Back-up Servicer arrangement that has been entered into, no other person
has the right to service any Receivable.
(xxxv) Illinois Receivables. (a) Triad does not own a substantial
interest in the business of a Dealer within the meaning of Illinois
Sales Finance Agency Act Rules and Regulations, Section 160.230(l) and
(b) with respect to each Receivable originated in the State of Illinois,
(i) the printed or typed portion of the related Form of Receivable
complies with the requirements of 815 ILCS 375/3(b) and (ii) Triad has
not, and for so long as such Receivable is outstanding shall not, place
or cause to be placed on the related Financed Vehicle any collateral
protection insurance in violation of 815 ILCS 180/10.
(xxxvi) California Receivables. Each Receivable originated in the
State of California has been, and at all times during the term of the
[Sale and Servicing Agreement/Pooling and Servicing Agreement] will be,
serviced by the Servicer in compliance with Cal. Civil Code Section
2981, et seq.
(c) The representations and warranties contained in this Purchase
Agreement are made as of the execution and delivery of this Purchase Agreement,
but shall survive the sale, transfer and assignment of the Receivables and the
other Transferred Property hereunder, the conveyance thereof by the Transferor
to the Issuer under the [Sale and Servicing Agreement/Pooling and Servicing
Agreement] and the pledge thereof by the Issuer to the Indenture Trustee under
the Indenture. Triad and the Transferor agree that the Transferor will assign to
the Issuer all of the Transferor's rights under this Purchase Agreement, the
Issuer will assign to the Indenture Trustee all of the Issuer's rights under
this Purchase Agreement and that the Indenture Trustee shall thereafter be
entitled to enforce this Purchase Agreement and directly against Triad in the
Indenture Trustee's own name on behalf of the Security Holders; provided,
however, that such representations and warranties shall not be construed as a
warranty or guaranty by Triad as to the future payments by any Obligor. The sale
of the Receivables pursuant to this Purchase Agreement shall be "without
recourse" except for the representations, warranties and covenants made by Triad
in this Purchase Agreement or the [Sale and Servicing Agreement/Pooling and
Servicing Agreement].
ARTICLE IV
CONDITIONS
4.1. Conditions to Obligations of the Transferor. The obligation
of the Transferor to purchase the Receivables is subject to the satisfaction of
the following conditions:
(i) Representations and Warranties True. The representations and
warranties of Triad hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and Triad shall have
performed all obligations to be performed by Triad hereunder on or prior
to the Closing Date.
15
(ii) Computer Files Marked. Triad shall, at its own expense, on
or prior to the Closing Date, indicate in its computer files that the
Receivables have been sold to the Transferor pursuant to this Purchase
Agreement and conveyed to the Issuer pursuant to this [Sale and
Servicing Agreement/Pooling and Servicing Agreement] and shall deliver
to the Transferor the Schedule of Receivables certified by the Chairman,
the President, any Vice President or the Treasurer of Triad to be true,
correct and complete.
(iii) Receivable Files Delivered. Triad shall, at its own
expense, deliver the Receivable Files relating to the Receivables to the
Servicer and the Legal Files relating to the Receivables to the
Custodian, in each case at the offices specified in Schedule B to the
[Sale and Servicing Agreement/Pooling and Servicing Agreement] on or
prior to the Closing Date.
(iv) Documents to be delivered by Triad at the Closing.
(A) The Assignment. At the Closing, Triad will execute and
deliver the Assignment. The Assignment shall be substantially in the
form of Exhibit A hereto.
(B) Evidence of UCC-1 Filing. On or prior to the Closing
Date, Triad shall record and file, at its own expense, a UCC-1 financing
statement in each jurisdiction (including, without limitation, the State
of Delaware) in which required by applicable law, executed by Triad, as
seller or debtor, naming the Transferor, as purchaser or secured party,
and naming the Receivables and the other Transferred Property conveyed
hereunder as collateral, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to perfect the
sale, transfer, assignment and conveyance of such Receivables to the
Transferor. Triad shall deliver a file-stamped copy, or other evidence
satisfactory to the Transferor of such filing, to the Transferor on or
prior to the Closing Date.
(C) Evidence of UCC-3 Filings. On or prior to the Closing
Date, Triad shall cause to be recorded and filed, at its own expense,
UCC-3 partial releases executed by GCFP in each jurisdiction in which
required by applicable law, meeting the requirements of the laws of each
such jurisdiction and in such manner as is necessary to release all of
the right, title and interest of GCFP in and to the Receivables,
including without limitation, the security interests in the Financed
Vehicles securing the Receivables and any proceeds of such security
interests or the Receivables. Triad shall deliver file-stamped copies,
or other evidence satisfactory to the Transferor of such filings, to
each of the Transferor and [the Security Insurer] on or prior to the
Closing Date.
(D) Legal Opinions. Triad shall have delivered to the
Transferor and [Underwriters] the legal opinion of Xxxxx Xxxxxxxxxx LLP,
of Triad's General Counsel [and of [____]'s Corporate Counsel], with
respect to bankruptcy (including true sale and nonconsolidation),
corporate, tax and such other matters as [the Security Insurer],
[Underwriters] and their counsel shall request, in each case, dated the
Closing Date and satisfactory in form and substance to [the Security
Insurer], [Underwriters] and their respective counsel.
16
(E) Other Documents. On or prior to the Closing Date,
Triad shall deliver such other documents as the Transferor [or the
Security Insurer] may reasonably request.
(v) Other Transactions. The transactions contemplated by the
[Sale and Servicing Agreement/Pooling and Servicing Agreement], the
Indenture and the Underwritering Agreement in respect of the Receivables
shall be consummated on the Closing Date.
4.2. Conditions to Obligations of Triad. (a) The obligation of
Triad to sell the Receivables to the Transferor is subject to the satisfaction
of the following conditions:
(i) Representations and Warranties True. The representations and
warranties of the Transferor hereunder shall be true and correct on the
Closing Date with the same effect as if then made, and the Transferor
shall have performed all obligations to be performed by it hereunder on
or prior to the Closing Date.
(ii) Receivables Purchase Price. At the Closing Date, the
Transferor shall deliver to Triad the Receivables Purchase Price as
provided in Section 2.1(b). Triad hereby directs the Transferor to wire
the Receivables Purchase Price to Triad-Originations, ABA: _________,
Account #___________, Triad Financial Corporation, pursuant to wire
instructions to be delivered to the Transferor on or prior to the
Closing Date.
ARTICLE V
COVENANTS OF Triad
Triad agrees with the Transferor as follows; provided, however,
that to the extent that any provision of this ARTICLE V conflicts with any
provision of the [Sale and Servicing Agreement/Pooling and Servicing Agreement],
the [Sale and Servicing Agreement/Pooling and Servicing Agreement] shall govern:
5.1. Protection of Right, Title and Interest.
(a) Filings. Triad shall cause all financing statements and
continuation statements and any other necessary documents covering the right,
title and interest of the Transferor in and to the Receivables and the other
Transferred Property to be promptly filed, and at all times to be kept recorded,
registered and filed, all in such manner and in such places as may be required
by law (including, without limitation, the State of Delaware) fully to preserve
and protect the right, title and interest of the Transferor hereunder, the
Issuer under the [Sale and Servicing Agreement/Pooling and Servicing Agreement]
and the Indenture Trustee on behalf of the Security Holders to the Receivables
and the other Transferred Property. Triad shall deliver to the Transferor, the
Owner Trustee and [the Security Insurer] file stamped copies of, or filing
receipts for, any document recorded, registered or filed as provided above, as
soon as available following such recordation, registration or filing. The
Transferor shall cooperate fully with Triad in connection with the obligations
set forth above and will execute any and all documents reasonably required to
fulfill the intent of this Section 5.1(a). In the event Triad fails to perform
its obligations under this subsection, the Transferor or the Trust Collateral
Agent may do so at the expense of Triad.
17
(b) Name and Other Changes. At least 60 days prior to the date
Triad makes any change in its name, identity, corporate structure which would
make any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the applicable provisions of the
UCC or any title statute, Triad shall give the Trust Collateral Agent, [the
Security Insurer] and the Transferor written notice of any such change and no
later than five days after the effective date thereof, shall file appropriate
amendments to all previously filed financing statements or continuation
statements. At least 60 days prior to the date of any relocation of its
principal executive office or change in its state of incorporation, Triad shall
give the Trust Collateral Agent, [the Security Insurer] and the Transferor
written notice thereof if, as a result of such relocation or change, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new financing
statement and Triad shall within five days after the effective date thereof,
file any such amendment or new financing statement. Triad shall at all times
maintain each office from which it shall service Receivables, and its principal
executive office, within the United States of America.
(c) Accounts and Records. Triad shall maintain accounts and
records as to each Receivable accurately and in sufficient detail to permit the
reader thereof to know at any time the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each).
(d) Maintenance of Computer Systems. Triad shall maintain its
computer systems so that, from and after the time of sale hereunder of the
Receivables to the Transferor, the conveyance of the Receivables to the Issuer
and the pledge of the Receivables to the Indenture Trustee, Triad's master
computer records (including any back-up archives) that refer to a Receivable
shall indicate clearly that such Receivable has been sold the Transferor and
thereafter conveyed to the Issuer and pledged to the Indenture Trustee.
Indication of the Transferor's, Issuer's and Indenture Trustee's interest in a
Receivable shall be deleted from or modified on Triad's computer systems when,
and only when, the Receivable shall have been paid in full or repurchased.
(e) Sale of Other Receivables. If at any time Triad shall propose
to sell, grant a security interest in, or otherwise transfer any interest in any
automobile, van, sport utility vehicle or light duty truck receivables (other
than the Receivables) to any prospective purchaser, lender, or other transferee,
Triad shall give to such prospective purchaser, lender or other transferee
computer tapes, records, or print-outs (including any restored from back-up
archives) that, if they shall refer in any manner whatsoever to any Receivable,
shall indicate clearly that such Receivable has been pledged to the Indenture
Trustee unless such Receivable has been paid in full or repurchased.
(f) Access to Records. Triad shall, upon reasonable notice,
permit the Transferor, [the Security Insurer], the Indenture Trustee, the Trust
Collateral Agent, the Servicer and their respective agents at any time during
normal business hours to inspect, audit, and make copies of and abstracts from
Triad's records regarding any Receivable.
(g) List of Receivables. Upon request, Triad shall furnish to the
Transferor, within five Business Days, a list of all Receivables (by contract
number and name of Obligor)
18
then owned by the Transferor, together with a reconciliation of such list to the
Schedule of Receivables.
(h) Receivable Files. On or prior to the Closing Date, Triad
shall deliver, either in hardcopy or electronic format, to the Servicer, as
agent of the Trust Collateral Agent pursuant to Section 3.5(b) of the [Sale and
Servicing Agreement/Pooling and Servicing Agreement], a complete Receivable File
with respect to each Receivable to be kept, either in hardcopy or electronic
format, at the location or locations listed in Schedule B to the [Sale and
Servicing Agreement/Pooling and Servicing Agreement].
(i) Other Actions. Triad shall from time to time, at its expense,
promptly execute and deliver all further instruments and documents (including,
without limitation, powers of attorney for the benefit of the Servicer) and take
all further action that may be necessary or desirable to permit the Servicer to
perform its obligations under the [Sale and Servicing Agreement/Pooling and
Servicing Agreement], including, without limitation the Servicer's obligation to
preserve and maintain the perfected security interest of the Indenture Trustee
in the Receivables and the Financed Vehicles.
5.2. Other Liens or Interests. Except for the conveyances
hereunder and pursuant to the [Sale and Servicing Agreement/Pooling and
Servicing Agreement] and the pledge pursuant to the Indenture, Triad will not
sell, pledge, assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any lien on any interest therein, and Triad shall
defend the right, title, and interest of the Transferor, the Issuer and the
Indenture Trustee in, to and under such Receivables against all claims of third
parties claiming through or under Triad; provided, however, that Triad's
obligations under this Section 5.2 shall terminate upon the termination of the
Issuer pursuant to the [Sale and Servicing Agreement/Pooling and Servicing
Agreement].
5.3. Chief Executive Office. During the term of the Receivables,
Triad will maintain its chief executive office in one of the United States of
America, except Louisiana or Vermont.
5.4. Costs and Expenses. Triad will pay all expenses incident to
the performance of its obligations under this Purchase Agreement and Triad
agrees to pay all reasonable out-of-pocket costs and expenses of the Transferor,
excluding fees and expenses of counsel to the Transferor, in connection with the
perfection as against third parties of the Indenture Trustee's right, title and
interest in and to the Receivables and security interests in the Financed
Vehicles and the enforcement of any obligation of Triad hereunder.
5.5. Delivery of Receivable Files and Legal Files. On or prior to
the Closing Date, Triad shall deliver the related Receivable Files to the
Servicer and the related Legal Files to the Custodian at the locations specified
in Schedule B to the [Sale and Servicing Agreement/Pooling and Servicing
Agreement]. Triad, following receipt from the Custodian of notification,
pursuant to Section 3.4 of the [Sale and Servicing Agreement/Pooling and
Servicing Agreement], that there has been a failure to deliver a Legal File with
respect to a Receivable or that any of the documents referred to in the
definition of the term "Legal File" are not contained in a Legal File or, if
applicable, the related Dealer is not listed on a Dealer Title Addendum, shall
19
deliver such Legal File or any of the aforementioned documents required to be
included in such Legal File or a Dealer Title Addendum listing such Dealer to
the Custodian no later than the Closing Date. Unless such defect with respect to
such Receivable shall have been cured by the last day of the second Collection
Period following discovery thereof, Triad hereby agrees to repurchase any such
Receivable from the Issuer as of such last day. In consideration of the purchase
of the Receivable, Triad shall remit the Purchase Amount in the manner specified
in Section 5.5 of the [Sale and Servicing Agreement/Pooling and Servicing
Agreement]. The sole remedy hereunder of the Indenture Trustee, the Trust
Collateral Agent, the Issuer or the Security Holders with respect to a breach of
this Section 5.5 shall be to require Triad to repurchase the Receivable pursuant
to this Section 5.5. Upon receipt of the Purchase Amount, the Trust Collateral
Agent shall cause the Custodian to release to Triad or its designee the related
Legal File and the Servicer to release the related Receivable File and shall
execute and deliver all instruments of transfer or assignment, without recourse,
as are prepared by Triad and delivered to the Trust Collateral Agent and are
necessary to vest in Triad or such designee the Transferor's and the Issuer's
right, title and interest in the Receivable.
5.6. Indemnification.
(a) Triad shall defend, indemnify and hold harmless the
Transferor, [the Security Insurer], the Indenture Trustee, the Back-up Servicer,
the Collateral Agent, the Trust Collateral Agent, the Owner Trustee, the Issuer,
the Security Holders and the Certificateholder for any liability as a result of
the failure of a Receivable to be originated in compliance with all requirements
of law and for any breach of any of its representations and warranties contained
herein.
(b) Triad shall defend, indemnify and hold harmless the
Transferor, [the Security Insurer], the Indenture Trustee, the Back-up Servicer,
the Collateral Agent, the Trust Collateral Agent, the Owner Trustee, the Issuer,
the Security Holders and the Certificateholder from and against any and all
costs, expenses, losses, damages, claims, and liabilities, arising out of or
resulting from the use, ownership, or operation by Triad or any Affiliate
thereof of a Financed Vehicle.
(c) Triad shall defend, indemnify and hold harmless the
Transferor, [the Security Insurer], the Indenture Trustee, the Back-up Servicer,
the Collateral Agent, the Trust Collateral Agent, the Owner Trustee, the Issuer,
the Security Holders and the Certificateholder against any and all costs,
expenses, losses damages, claims and liabilities, arising out of or resulting
from any action taken, or failed to be taken, by Triad in respect of any portion
of the Trust Assets other than in accordance with this Purchase Agreement and
any other Basic Document.
(d) Triad shall defend, indemnify and hold harmless the
Transferor, [the Security Insurer], the Indenture Trustee, the Back-up Servicer,
the Collateral Agent, the Trust Collateral Agent, the Owner Trustee, the Issuer,
the Security Holders and the Certificateholder from and against any and all
taxes, except for taxes on the net income of the Transferor, [the Security
Insurer], the Indenture Trustee, the Back-up Servicer, the Collateral Agent, the
Trust Collateral Agent, the Owner Trustee, the Issuer or the Security Holders,
as the case may be, that may at any time be asserted against the Transferor with
respect to the transactions contemplated
20
herein including, without limitation, any sales, general corporation, tangible
personal property, privilege, or license taxes and costs and expenses in
defending against the same.
(e) Triad shall defend, indemnify and hold harmless the
Transferor, [the Security Insurer], the Indenture Trustee, the Back-up Servicer,
the Collateral Agent, the Trust Collateral Agent, the Owner Trustee, the Issuer,
the Security Holders and the Certificateholder from and against any and all
costs, expenses, losses, damages, claims and liabilities to the extent that such
cost, expense, loss, damage, claim or liability arose out of, or was imposed
upon the Transferor, [the Security Insurer], the Indenture Trustee, the Back-up
Servicer, the Collateral Agent, the Trust Collateral Agent, the Owner Trustee,
the Issuer, the Security Holders and the Certificateholder, as the case may be,
through the negligence, willful misfeasance, or bad faith of Triad in the
performance of its duties under this Purchase Agreement or any other Basic
Document to which it is a party, or by reason of reckless disregard of Triad's
obligations and duties under this Purchase Agreement or any other Basic Document
to which it is a party.
(f) Triad shall defend, indemnify and hold harmless the
Transferor, [the Security Insurer], the Indenture Trustee, the Back-up Servicer,
the Collateral Agent, the Trust Collateral Agent, the Owner Trustee, the Issuer,
the Security Holders and the Certificateholder from and against all costs,
expenses, losses, damages, claims and liabilities arising out of or incurred in
connection with the acceptance or performance of Triad's duties under this
Purchase Agreement and the other Basic Documents to which it is a party,
including the trusts and duties as Servicer under the [Sale and Servicing
Agreement/Pooling and Servicing Agreement], except to the extent that such cost,
expense, loss, damage, claim or liability shall be due to the willful
misfeasance, bad faith or negligence of the Transferor, [the Security Insurer],
the Indenture Trustee, the Back-up Servicer, the Collateral Agent, the Trust
Collateral Agent, the Owner Trustee, the Issuer or the Security Holders, as the
case may be.
(g) Triad shall defend, indemnify and hold harmless the
Transferor, [the Security Insurer], the Indenture Trustee, the Back-up Servicer,
the Collateral Agent, the Trust Collateral Agent, the Owner Trustee, the Issuer,
the Security Holders and the Certificateholder against any and all costs,
expenses, losses, damages, claims and liabilities arising out of or resulting
from the failure of any Receivable or the sale of the related Financed Vehicle
to comply with all requirements of applicable law.
Indemnification under this Section shall include reasonable fees
and expenses of litigation and shall survive termination of the Issuer. These
indemnity obligations shall be in addition to any obligation that Triad may
otherwise have.
5.7. Sale. Triad agrees to treat each conveyance hereunder for
all purposes (including without limitation tax and financial accounting
purposes) as a sale on all relevant books, records, tax returns, financial
statements and other applicable documents.
5.8. Non-Petition. In the event of any breach of a representation
and warranty made by the Transferor hereunder, Triad covenants and agrees that
it shall not, until a year and a day have passed since the date on which all
securities issued by the Issuer or a similar trust formed by the Transferor have
been paid in full, petition or otherwise invoke the process of commencing or
sustaining a case against the Transferor under any Federal or State bankruptcy,
21
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Transferor or
any substantial part of its property, or ordering the winding up or liquidation
of the affairs of the Transferor. The Transferor and Triad agree that damages
will not be an adequate remedy for such breach and that this covenant may be
specifically enforced by the Transferor or by the Indenture Trustee on behalf of
the Issuer.
ARTICLE VI
MISCELLANEOUS PROVISIONS
6.1. Obligations of Seller. The obligations of Triad under this
Purchase Agreement shall not be affected by reason of any invalidity, illegality
or irregularity of any Receivable.
6.2. Repurchase Events. Triad hereby covenants and agrees with
the Transferor for the benefit of the Transferor, the Issuer, the Indenture
Trustee, the Trust Collateral Agent, [the Security Insurer], the Security
Holders and the Certificateholder, that (i) the occurrence of a breach of any of
Triad's representations and warranties contained in Section 3.2(b) (without
regard to any limitations regarding Triad's knowledge), and (ii) the failure of
Triad to timely comply with its obligations pursuant to Section 5.5 hereof,
shall constitute events obligating Triad to repurchase the affected Receivables
hereunder ("Repurchase Events"), at the Purchase Amount from the Issuer. Unless
the breach of any of Triad's representations and warranties shall have been
cured by the last day of the second Collection Period following the discovery
thereof by or notice to Triad of such breach, Triad shall repurchase any
Receivable if such Receivable or the interest therein of the Transferor, the
Issuer, the Security Holders, [the Security Insurer] or the Certificateholder is
materially and adversely affected by the breach as of the last day of such
second Collection Period and, in the event that the breach relates to a
characteristic of the Receivables in the aggregate, and if the Transferor, the
Issuer, the Security Holders, [the Security Insurer] or the Certificateholder is
materially and adversely affected by such breach, unless the breach shall have
been cured by the last day of such second Collection Period, Triad shall
purchase such aggregate Principal Balance of Receivables, such that following
such purchase such representation shall be true and correct with respect to the
remainder of the Receivables in the aggregate. The provisions of this Section
6.2 are intended to grant the Indenture Trustee a direct right against Triad
acting at the direction or with the consent of [the Security Insurer] to demand
performance hereunder, and in connection therewith Triad waives any requirement
of prior demand against the Transferor and waives any defaults it would have
against the Transferor with respect to such repurchase obligation. In addition
to the foregoing, Triad shall be under an obligation to promptly purchase from
the Transferor (in its capacity as Transferor under the [Sale and Servicing
Agreement/Pooling and Servicing Agreement]) any Receivable required to be
repurchased by Triad pursuant to a breach of its obligations in the [Sale and
Servicing Agreement/Pooling and Servicing Agreement] including, without
limitation, Triad's repurchase obligations set forth in Sections 3.2 and 3.4 of
the [Sale and Servicing Agreement/Pooling and Servicing Agreement]. Any such
purchase described in this Section shall take place in the manner specified in
Section 5.5 of the [Sale and Servicing Agreement/Pooling and Servicing
Agreement]. The sole remedy hereunder of the Security Holders, the
Certificateholder, the Issuer, [the Security Insurer], the Indenture Trustee or
the Transferor against Triad with respect to any Repurchase Event shall be to
enforce Triad's obligation to repurchase such Receivables
22
pursuant to this Purchase Agreement; provided, however, that Triad shall
indemnify the Owner Trustee, the Issuer, the Indenture Trustee, the Trust
Collateral Agent, [the Security Insurer], the Indenture Trustee, the Back-up
Servicer, the Collateral Agent, the Security Holders and the Certificateholder
and their respective officers, directors and employees against all costs,
expenses, losses, damages, claims and liabilities, including reasonable fees and
expenses of counsel, which may be asserted against or incurred by any of them,
as a result of third party claims arising out of the events or facts giving rise
to a Repurchase Event. Upon receipt of the Purchase Amount, the Trust Collateral
Agent shall cause the Custodian to release the related Legal File and the
Servicer to release the related Receivable File to Triad and to execute and
deliver all instruments of transfer or assignment, without recourse, as are
necessary to vest in Triad the Transferor's and the Issuer's right, title and
interest in the Receivable.
6.3. Seller's Assignment of Purchased Receivables. With respect
to all Receivables repurchased by Triad pursuant to this Purchase Agreement, the
Transferor shall assign, without recourse except as provided herein,
representation or warranty, to Triad all the Transferor's right, title and
interest in and to such Receivables, and all security and documents relating
thereto.
6.4. Conveyance as Sale of Receivables Not Financing. The parties
hereto intend that the conveyance hereunder be a sale of the Receivables and the
other Transferred Property relating thereto from Triad to the Transferor and not
a financing secured by such assets; and the beneficial interest in and title to
Receivables and the other Transferred Property shall not be part of Triad's
estate in the event of the filing of a bankruptcy petition by or against Triad
under any bankruptcy law. In the event that the conveyance hereunder is for any
reason not considered a sale, the parties intend that this Purchase Agreement
constitute a security agreement under the UCC (as defined in the UCC as in
effect in the State of New York) and applicable law, and Triad hereby grants to
the Transferor a security interest in, to and under the Receivables and the
other Transferred Property, and other property conveyed hereunder and all
proceeds of any of the foregoing for the purpose of securing payment and
performance of the Securities and the Certificate and the repayment of amounts
owed to the Transferor from Triad.
6.5. Assignment of Rights. Triad acknowledges that (i) the
Transferor will, pursuant to the [Sale and Servicing Agreement/Pooling and
Servicing Agreement] convey the Receivables and assign its rights under this
Purchase Agreement to the Issuer and (ii) the Issuer will, pursuant to the
Indenture, pledge all of its right, title and interest in the Receivables and
pledge its rights under this Purchase Agreement to the Indenture Trustee for the
benefit of the Security Holders and [the Security Insurer], and that the
representations and warranties contained in this Purchase Agreement and the
rights of the Transferor under this Purchase Agreement, including without
limitation under Sections 6.2 and 6.3 hereof, are intended to benefit the
Security Holders and [the Security Insurer]. Triad also acknowledges that the
Indenture Trustee on behalf of the Security Holders and [the Security Insurer],
as assignees of the Transferor's rights hereunder may directly enforce, without
making any prior demand on the Transferor, all the rights of the Transferor
hereunder including without limitation the rights under Section 6.2 and 6.3
hereof. Triad hereby consents to such sale and assignment.
23
6.6. [[____] Guarantee. [____] has issued the Guarantee in favor
of the Back-up Servicer, Custodian and the Trust Collateral Agent, for the
benefit of the Security Holders, [and the Security Insurer].]
6.7. Amendment. This Purchase Agreement may be amended from time
to time by a written amendment duly executed and delivered by Triad and the
Transferor with the prior written consent of [the Security Insurer]; provided,
however, that any such amendment that materially and adversely affects the
rights of the Security Holders must be consented to by the holders of Securities
representing more than 50% of the Security Balance. The parties hereto agree to
provide the Rating Agencies with prior notice of, and a copy of, any amendment
to this Purchase Agreement.
6.8. Accountants' Letters. (a) [Accountants] will review in
accordance with procedures previously agreed to by Triad and the Transferor,
certain information with respect to the characteristics of the Receivables; (b)
Triad will cooperate with the Transferor and [Accountants] in making available
all information and taking all steps reasonably necessary to permit such
accountants to complete the review necessary to provide the confirmation set
forth in clause (a) above and to deliver the letters required of them under the
Underwriting Agreement; and (c) [Accountants] will deliver to the Transferor a
letter, dated the Closing Date or such later date as the Prospectus shall be
available, each in the form previously agreed to by Triad and the Transferor,
with respect to the financial and statistical information contained in the
Prospectus under the captions "The Company/Servicer" and "The Trust Property",
certain information relating to the Receivables on magnetic tape or other
electronic format obtained from Triad and the Transferor and with respect to
such other information as may be agreed in the form of letter.
6.9. Waivers. No failure or delay on the part of the Transferor
in exercising any power, right or remedy under this Purchase Agreement or the
Assignment, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or remedy.
6.10. Notices. All communications and notices pursuant hereto to
either party [or to the Security Insurer] shall be in writing or by telegraph or
telex and addressed or delivered to it at its address (or in case of telex, at
its telex number at such address) shown in the opening portion of this Purchase
Agreement (in the case of the parties) and with respect to the Security Insurer,
at __________________________________________, Attention: ________________, Re:
Triad Auto Receivables Trust 20__-_, or, in each case, at such other address as
may be designated by it by notice to the other party and, if mailed or sent by
telegraph or telex, shall be deemed given when mailed, communicated to the
telegraph office or transmitted by telex. [A copy of all communications and
notices sent pursuant hereto to either party shall also be sent to
_________________________, Attention: __________________.]
6.11. Intentionally Omitted.
6.12. Intentionally Omitted.
6.13. Confidential Information. The Transferor agrees that it
will neither use nor disclose to any person the names and addresses of the
Obligors, except in connection with
24
the enforcement of the Transferor's rights hereunder, under the Receivables,
under the [Sale and Servicing Agreement/Pooling and Servicing Agreement] or as
required by law.
6.14. Headings and Cross-References. The various headings in this
Purchase Agreement are included for convenience only and shall not affect the
meaning or interpretation of any provision of this Purchase Agreement.
References in this Purchase Agreement to Section names or numbers are to such
Sections of this Purchase Agreement.
6.15. Third Party Beneficiaries. The parties hereto hereby
expressly agree that each of the Indenture Trustee for the benefit of the
Security Holders, the Owner Trustee, the Certificateholder [and the Security
Insurer] shall be third party beneficiaries with respect to this Purchase
Agreement, provided, however, that no third party other than the Indenture
Trustee for the benefit of the Security Holders [and the Security Insurer], [the
Security Insurer], [Underwriters] is a third party beneficiary of this Purchase
Agreement, and each such party may rely on the representations, warranties,
covenants and agreements of Triad herein and therein as if they were addressed
to each of them. [As a third party beneficiary to the provisions of this
Purchase Agreement, the Security Insurer (so long as no Security Insurer Default
shall have occurred and be continuing) and its successors and assigns shall be
entitled to rely upon and directly enforce the provisions of this Purchase
Agreement. Except as expressly stated otherwise herein or in the Basic
Documents, any right of the Security Insurer to direct, appoint, consent to,
approve of, or take any action under this Purchase Agreement, shall be a right
exercised by the Security Insurer in its sole and absolute discretion. The
Security Insurer may disclaim any of its rights and powers under this Purchase
Agreement (but not its duties and obligations under the Policy) upon delivery of
a written notice to the Indenture Trustee.]
6.16. Governing Law. THIS PURCHASE AGREEMENT AND THE ASSIGNMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (EXCEPT WITH
REGARD TO THE UCC).
6.17. Counterparts. This Purchase Agreement may be executed in
two or more counterparts and by different parties on separate counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
6.18. [Effect of Policy Expiration Date. Notwithstanding anything
to the contrary set forth herein, all references to any right of the Security
Insurer to direct, appoint, consent to, accept, approve of, take or omit to take
any action under this Purchase Agreement or any other Basic Document shall be
inapplicable at all times after the Policy Expiration Date, and (i) if such
reference provides for another party or parties to take or omit to take such
action following a Security Insurer Default, such party or parties shall also be
entitled to take or omit to take such action following the Policy Expiration
Date and (ii) if such reference does not provide for another party or parties to
take or omit to take such action following a Security Insurer Default, then the
Indenture Trustee acting at the direction of the Majorityholders shall have the
right to take or omit to take any such action following the Policy Expiration
Date. In addition, any other provision of this Purchase Agreement or any other
Basic Document which is operative based in whole or in part on whether a
Security Insurer Default has or has not occurred shall, at
25
all times on or after the Policy Expiration Date, be deemed to refer to whether
or not the Policy Expiration Date has occurred.]
26
IN WITNESS WHEREOF, the parties hereto have caused this Purchase
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
[TRIAD FINANCIAL SPECIAL PURPOSE LLC]
By:
----------------------------------
Name:
Title:
TRIAD FINANCIAL CORPORATION
By:
----------------------------------
Name:
Title:
[Signature Page to the Purchase Agreement]
ANNEX A
DEFINED TERMS
EXHIBIT A
FORM OF ASSIGNMENT
(RECEIVABLES)
ASSIGNMENT
For value received, in accordance with the Purchase Agreement
dated as of __________, 20__ (the "Purchase Agreement") between the undersigned
and [Triad Financial Special Purpose LLC] (the "Transferor"), the undersigned
does hereby sell, transfer, assign and otherwise convey unto the Transferor,
without recourse (subject to the obligations in the Purchase Agreement and the
[Sale and Servicing Agreement/Pooling and Servicing Agreement]), all right,
title and interest of Triad in and to: (i) the Receivables listed in Schedule A
hereto, all monies received on the Receivables after the Cutoff Date and, with
respect to any Receivables which are Precomputed Receivables, the related
Payahead Amount and all Liquidation Proceeds and Recoveries received with
respect to the Receivables; (ii) the security interests in the related Financed
Vehicles granted by the related Obligors pursuant to the Receivables and any
other interest of Triad in such Financed Vehicles, including, without
limitation, the certificates of title and any other evidence of ownership with
respect to such Financed Vehicles; (iii) any proceeds from claims on any
physical damage, credit life and credit accident and health insurance policies
or certificates or the VSI Policy, if any, relating to the related Financed
Vehicles or the related Obligors, including any rebates or premiums; (iv)
property (including the right to receive future Liquidation Proceeds) that
secures a Receivable and that has been acquired pursuant to the liquidation of
such Receivable; (v) refunds for the costs of extended service contracts with
respect to the related Financed Vehicles, refunds of unearned premiums with
respect to credit life and credit accident and health insurance policies or
certificates covering a related Obligor or Financed Vehicle or his or her
obligations with respect to such Financed Vehicle and any recourse to Dealers
for any of the foregoing; (vi) the Legal File and the Receivable File related to
each Receivable and any and all other documents that Triad keeps on file in
accordance with its customary procedures relating to the Receivables, the
related Obligors or the related Financed Vehicles; (vii) all amounts and
property from time to time held in or credited to the Lock-Box Account, to the
extent such amounts and property relate to the Receivables; (viii) any proceeds
from recourse against Dealers (other than any Chargeback Obligations) including,
without limitation, all Dealer Title Guaranties with respect to the sale of the
Receivables; and (ix) the proceeds of any and all of the foregoing. The
foregoing sale does not constitute and is not intended to result in any
assumption by the Transferor of any obligation of the undersigned to the
Obligors, insurers or any other person in connection with the Receivables, the
related Legal Files, the related Receivable Files, any insurance policies or any
agreement or instrument relating to any of them.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Purchase Agreement and is to be governed by the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to them in the Purchase Agreement.
THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES (EXCEPT WITH REGARD TO THE UCC).
A-2
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of __________, 20__.
TRIAD FINANCIAL CORPORATION
By:
----------------------------------
Name:
Title:
A-3
SCHEDULE A
Schedule of Receivable
