exv10w1



 





EXHIBIT 10.1




PURCHASE AGREEMENT




between




TRIAD FINANCIAL CORPORATION

Originator




and




TRIAD FINANCIAL SPECIAL PURPOSE LLC

Depositor




Dated as of November 21, 2007




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE I. DEFINITIONS	 	 	1	 
	 
	 	Section 1.1	 	General	 	 	1	 
	 
	 	Section 1.2	 	Specific Terms	 	 	1	 
	 
	 	Section 1.3	 	Usage of Terms	 	 	2	 
	 
	 	Section 1.4	 	[Reserved]	 	 	2	 
	 
	 	Section 1.5	 	No Recourse	 	 	2	 
	 
	 	Section 1.6	 	[Reserved]	 	 	3	 
	 
	 	Section 1.7	 	Material Adverse Effect	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II. CONVEYANCE OF THE RECEIVABLES AND THE OTHER CONVEYED PROPERTY	 	 	3	 
	 
	 	Section 2.1	 	Conveyance of the Receivables and the Other Conveyed Property	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III. REPRESENTATIONS AND WARRANTIES	 	 	3	 
	 
	 	Section 3.1	 	Representations and Warranties of the Originator	 	 	3	 
	 
	 	Section 3.2	 	Representations and Warranties of the Depositor	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV. COVENANTS OF SELLER	 	 	7	 
	 
	 	Section 4.1	 	Protection of Title of the Depositor	 	 	7	 
	 
	 	Section 4.2	 	[Reserved]	 	 	8	 
	 
	 	Section 4.3	 	Other Liens or Interests	 	 	8	 
	 
	 	Section 4.4	 	Costs and Expenses	 	 	8	 
	 
	 	Section 4.5	 	Indemnification by the Originator	 	 	9	 
	 
	 	Section 4.6	 	Indemnification by the Depositor	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V. REPURCHASES	 	 	10	 
	 
	 	Section 5.1	 	Repurchase of Receivables Upon Breach of Warranty	 	 	10	 
	 
	 	Section 5.2	 	Reassignment of Purchased Receivables	 	 	10	 
	 
	 	Section 5.3	 	Waivers	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI. MISCELLANEOUS	 	 	11	 
	 
	 	Section 6.1	 	Liability of the Originator and the Depositor	 	 	11	 
	 
	 	Section 6.2	 	Merger or Consolidation of the Originator or the Depositor	 	 	11	 
	 
	 	Section 6.3	 	Limitation on Liability of the Originator, and the Depositor and Others	 	 	12	 
	 
	 	Section 6.4	 	The Originator May Own Notes or the Certificates	 	 	12	 
	 
	 	Section 6.5	 	Amendment	 	 	12	 
	 
	 	Section 6.6	 	Notices	 	 	13	 
	 
	 	Section 6.7	 	Merger and Integration	 	 	13	 
	 
	 	Section 6.8	 	Severability of Provisions	 	 	14	 
	 
	 	Section 6.9	 	Intention of the Parties	 	 	14	 
	 
	 	Section 6.10	 	Governing Law	 	 	15	 
	 
	 	Section 6.11	 	Counterparts	 	 	15	 
	 
	 	Section 6.12	 	Conveyance of Receivables and Other Conveyed Property to the Issuer	 	 	15	 






 









 






	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	Page	 
	 
	 	Section 6.13	 	Nonpetition Covenant	 	 	15	 
	 
	 	Section 6.14	 	Payment Obligations of the Depositor Limited	 	 	15	 






SCHEDULES



Schedule A — Schedule of Receivables

Schedule B — Representations and Warranties from the Originator as to the Receivables





 









 








PURCHASE AGREEMENT




          THIS PURCHASE AGREEMENT, dated as of November 21, 2007 is between Triad Financial Corporation,
a California corporation, as the Originator (the “Originator”), and Triad Financial Special
Purpose LLC, a Delaware limited liability company, as the Depositor (the “Depositor”).




          The Depositor has agreed to purchase from the Originator, and the Originator, pursuant to this
Agreement, is selling to the Depositor the Receivables and Other Conveyed Property.




          In consideration of the premises and the mutual agreements hereinafter contained, and for
other good and valuable consideration, the receipt of which is acknowledged, the Originator and the
Depositor, intending to be legally bound, hereby agree as follows:




ARTICLE I.




DEFINITIONS




          Section 1.1 General. Capitalized terms used herein without definition will have the
respective meanings assigned to such terms in the Sale and Servicing Agreement dated as of November
21, 2007 by and among the Depositor, Triad Financial Corporation, in its individual capacity, as
Custodian and as Servicer, Triad Automobile Receivables Trust 2007-B, as Issuer, and Citibank,
N.A., as Backup Servicer and Indenture Trustee.




          Section 1.2 Specific Terms. Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, will have the following meanings:




          “Agreement” means this Purchase Agreement and all amendments hereof and supplements
hereto.




          “Closing Date” means November 21, 2007.




          “Indenture Trustee” means Citibank, N.A., as Indenture Trustee and any successor
Indenture Trustee appointed and acting pursuant to the Indenture.




          “Issuer” means Triad Automobile Receivables Trust 2007-B.




          “Other Conveyed Property” means all property described in Section 2.1(a), (b), (c),
(d), (e), (f) and (h) of the Sale and Servicing Agreement conveyed by the Originator to the
Depositor pursuant to this Agreement other than the Receivables, including all monies paid on or
after the Cut-Off Date.




          “Owner Trustee” means Wilmington Trust Company, as Owner Trustee appointed and acting
pursuant to the Trust Agreement.




          “Receivables” means the Receivables listed on the Schedule of Receivables attached
hereto.




 









 








          “Related Documents” means the Notes, the Certificates, the Sale and Servicing
Agreement, the Indenture, the Trust Agreement, the Note Policy, the Insurance Agreement, the Swap
Agreement and the Underwriting Agreement. The Related Documents to be executed by any party are
referred to herein as “such party’s Related Documents,” “its Related Documents” or by a similar
expression.




          “Repurchase Event” means the occurrence of a breach of any of the Originator’s
representations and warranties hereunder including the representations and warranties set forth in
Schedule B or any other event which requires the repurchase of a Receivable by the Originator under
the Sale and Servicing Agreement.




          “Residual Holder” means Triad Financial Residual Special Purpose LLC.




          “Sale and Servicing Agreement” means the Sale and Servicing Agreement referred to in
Section 1.1.




          “Schedule of Representations” means the Schedule of Representations and Warranties
attached hereto as Schedule B.




          “Schedule of Receivables” means the schedule of Receivables sold and transferred
pursuant to this Agreement which is attached hereto as Schedule A.




          “Taxes” means any sales, gross receipts, personal property, tangible or intangible
personal property, privilege or license taxes (but not including any (x) federal, state or other
taxes, arising out of the ownership of the Notes or the Certificates, (y) transfer taxes arising in
connection with the transfer of the Notes or the Certificates or (z) federal, state or other taxes
arising out of any fees paid to the indemnified parties pursuant to the Basic Documents).




          Section 1.3 Usage of Terms. With respect to all terms used in this Agreement, the
singular includes the plural and the plural the singular; words importing any gender include the
other gender; references to “writing” include printing, typing, lithography, and other means of
reproducing words in a visible form; references to agreements and other contractual instruments
include all subsequent amendments thereto or changes therein entered into in accordance with their
respective terms and not prohibited by this Agreement or the Sale and Servicing Agreement;
references to Persons include their permitted successors and assigns; and the terms “include” or
“including” mean “include without limitation” or “including without limitation.” The words
“herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a
whole and not to any particular Article, Section or other subdivision, and Article, Section,
Schedule and Exhibit references, unless otherwise specified, refer to Articles and Sections of and
Schedules and Exhibits to this Agreement.




          Section 1.4 [Reserved].




          Section 1.5 No Recourse. Without limiting the obligations of the Originator or the
Depositor hereunder, no recourse may be taken, directly or indirectly, under this Agreement or any
certificate or other writing delivered in connection herewith or therewith, against any
stockholder, officer or director, as such, of the Originator or the Depositor, or of any
predecessor or successor of the Originator or the Depositor.




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          Section 1.6 [Reserved].




          Section 1.7 Material Adverse Effect. Whenever a determination is to be made under
this 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 Noteholders or the Insurer (or
any similar or analogous determination), such determination will be made without taking into
account the funds available from claims under the Note Policy.




ARTICLE II.




CONVEYANCE OF THE RECEIVABLES

AND THE OTHER CONVEYED PROPERTY




          Section 2.1 Conveyance of the Receivables and the Other Conveyed Property.





     (a) Subject to the terms and conditions of this Agreement, the Originator hereby sells,
transfers, assigns and otherwise conveys to the Depositor without recourse (but without
limitation of its obligations in this Agreement), and the Depositor hereby purchases, all
right, title and interest of the Originator in and to the Receivables and the Other Conveyed
Property, including all moneys received after the Cutoff Date. It is the intention of the
Originator and the Depositor that the sale and assignment contemplated by this Agreement
constitutes a sale and contribution of the Receivables and the Other Conveyed Property from
the Originator to the Depositor, conveying good title thereto free and clear of any liens,
and the beneficial interest in and title to the Receivables and the Other Conveyed Property
will not be part of the Originator’s estate in the event of the filing of a bankruptcy
petition by or against the Originator under any bankruptcy or similar law.




     (b) Simultaneously with the sale of the Receivables and the Other Conveyed Property to
the Depositor, the Depositor has paid or caused to be paid to or upon the order of the
Originator a purchase price equal to the aggregate Principal Balance of the Receivables. An
amount equal to the net proceeds of the Class A Notes (less the initial deposit to the
Spread Account) shall be paid by wire transfer of immediately available funds and the
remaining balance of the purchase price will be paid with a portion of the proceeds from the
sale of the Certificate by the Depositor to the Residual Holder.



ARTICLE III.




REPRESENTATIONS AND WARRANTIES




          Section 3.1 Representations and Warranties of the Originator. The Originator makes
the following representations and warranties as of the date hereof, on which the Depositor relies
in purchasing the Receivables and the Other Conveyed Property, on which the Issuer will rely in
purchasing the Receivables and the Other Conveyed Property and on which the Insurer will rely in
issuing the Note Policy. Such representations are made as of the execution and delivery of this
Agreement, but will survive the sale, transfer and assignment of the Receivables and the Other
Conveyed Property hereunder, and the sale, transfer and assignment thereof by the




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Depositor to the Issuer. The Originator and the Depositor agree that the Depositor will
assign to Issuer all the Depositor’s rights under this Agreement and that the Indenture Trustee
will thereafter be entitled to enforce this Agreement against the Originator in the Indenture
Trustee’s own name on behalf of the Noteholders.





     (a) Schedule of Representations. The representations and warranties set forth
on the Schedule of Representations with respect to the Receivables as of the date hereof,
are true and correct.




     (b) Organization and Good Standing. The Originator has been duly organized and
is validly existing as a corporation in good standing under the laws of the State of
California, with power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is currently conducted, and had at all
relevant times, and now has, corporate power, authority and legal right to acquire, own,
transfer and sell the Receivables and the Other Conveyed Property to the Depositor.




     (c) Due Qualification. The Originator 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 with respect to the Receivables requires such qualification.




     (d) Power and Authority. The Originator has the corporate power and authority
to execute and deliver this Agreement and its Related Documents and to carry out its terms
and their terms, respectively; the Originator has full power and authority to sell and
assign the Receivables and the Other Conveyed Property to be sold and assigned to the
Depositor hereunder and has duly authorized such sale and assignment to the Depositor by all
necessary corporate action; and the execution, delivery and performance of this Agreement
and the Originator’s Related Documents have been duly authorized by the Originator by all
necessary corporate action.




     (e) Valid Sale; Binding Obligations. This Agreement and the Originator’s
Related Documents have been duly executed and delivered and will effect a valid sale,
transfer and assignment of the Receivables and the Other Conveyed Property to the Depositor,
enforceable against the Originator and creditors of and purchasers from the Originator; this
Agreement and the Originator’s Related Documents constitute legal, valid and binding
obligations of the Originator enforceable in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors’ rights generally and by equitable limitations
on the availability of specific remedies, regardless of whether such enforceability is
considered in a proceeding in equity or at law.




     (f) No Violation. The consummation of the transactions contemplated by this
Agreement and the Related Documents, and the fulfillment of the terms of this Agreement and
the Related Documents, will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice, lapse of time or both) a default
under, the articles of incorporation or bylaws of the Originator, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Originator



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is a party or by which it is bound, 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 Agreement, the Sale and Servicing
Agreement and the Indenture, or violate any law, order, rule or regulation applicable to the
Originator of any court or of any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the Originator or any of its
properties.





     (g) No Proceedings. There are no proceedings or investigations pending or, to
the Originator’s best knowledge, threatened against the Originator, before any court,
regulatory body, administrative agency or other tribunal or governmental instrumentality
having jurisdiction over the Originator or its properties (i) asserting the invalidity of
this Agreement or any of the Related Documents, (ii) seeking to prevent the issuance of the
Notes or the consummation of any of the transactions contemplated by this Agreement or any
of the Related Documents, (iii) seeking any determination or ruling that might materially
and adversely affect the performance by the Originator of its obligations under, or the
validity or enforceability of, this Agreement or any of the Related Documents or (iv)
seeking to affect adversely the federal income tax or other federal, state or local tax
characterization of, or seeking to impose any excise, franchise, transfer or similar tax
upon, the transfer and acquisition of the Receivables and the Other Conveyed Property
hereunder or under the Sale and Servicing Agreement.




     (h) True Sale. The Receivables are being transferred with the intention of
removing them from the Originator’s estate pursuant to Section 541 of the Bankruptcy Code,
as the same may be amended from time to time.



          Section 3.2 Representations and Warranties of the Depositor. The Depositor makes the
following representations and warranties as of the date hereof, on which the Originator relies in
transferring the Receivables and the Other Conveyed Property to the Depositor, on which the Issuer
will rely in purchasing the Receivables and on which the Insurer will rely in issuing the Note
Policy. Such representations are made as of the execution and delivery of this Agreement, but will
survive the sale, transfer and assignment of the Receivables and the Other Conveyed Property
hereunder, and the sale, transfer and assignment thereof to the Issuer under the Sale and Servicing
Agreement.





     (a) Organization and Good Standing. The Depositor has been duly organized and
is validly existing as a limited liability company in good standing under the laws of the
State of Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is currently conducted,
and had at all relevant times, and now has, power, authority and legal right to acquire, own
and sell the Receivables and the Other Conveyed Property to be transferred to the Issuer.




     (b) Due Qualification. The Depositor 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 requires such qualification.



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     (c) Power and Authority. The Depositor has the power and authority to execute
and deliver this Agreement and its Related Documents and to carry out its terms and their
terms, respectively; and the execution, delivery and performance of this Agreement and the
Depositor’s Related Documents have been duly authorized by the Depositor by all necessary
action.




     (d) Valid Sale; Binding Obligations. This Agreement and the Depositor’s
Related Documents have been duly executed and delivered, and this Agreement and the
Depositor’s Related Documents constitute legal, valid and binding obligations of the
Depositor enforceable in accordance with their respective terms, except as enforceability
may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally and by equitable limitations on the availability
of specific remedies, regardless of whether such enforceability is considered in a
proceeding in equity or at law.




     (e) No Violation. The consummation of the transactions contemplated by this
Agreement and the Related Documents, and the fulfillment of the terms of this Agreement and
the Related Documents, will not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice, lapse of time or both) a default
under, the limited liability company agreement of the Depositor, or any indenture,
agreement, mortgage, deed of trust or other instrument to which the Depositor is a party or
by which it is bound, 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 Agreement, the Sale and Servicing Agreement and the
Indenture, or violate any law, order, rule or regulation applicable to the Depositor of any
court or of any federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or any of its
properties.




     (f) No Proceedings. There are no proceedings or investigations pending or, to
the Depositor’s knowledge, threatened against the Depositor, before any court, regulatory
body, administrative agency or other tribunal or governmental instrumentality having
jurisdiction over the Depositor or its properties (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the issuance of the Notes
or the consummation of any of the transactions contemplated by this Agreement or any of the
Related Documents, (iii) seeking any determination or ruling that might materially and
adversely affect the performance by the Depositor of its obligations under, or the validity
or enforceability of, this Agreement or any of the Related Documents or (iv) seeking to
affect adversely the federal income tax or other federal, state or local tax
characterization of, or seeking to impose any excise, franchise, transfer or similar tax
upon, the transfer and acquisition of the Receivables and the Other Conveyed Property
hereunder or under the Sale and Servicing Agreement.



          In the event of any breach of a representation and warranty made by the Depositor hereunder,
the Originator covenants and agrees that it will not take any action to pursue any remedy that it
may have hereunder, in law, in equity or otherwise, until a year and a day have passed since the
date on which all notes, certificates, pass-through certificates or other similar




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securities issued by the Depositor, or a trust or similar vehicle formed by the Depositor,
have been paid in full. The Originator and the Depositor agree that damages will not be an
adequate remedy for a breach of this covenant and that this covenant may be specifically enforced
by Issuer or by the Indenture Trustee on behalf of the Noteholders and Owner Trustee on behalf of
the Certificateholders.




ARTICLE IV.




COVENANTS OF SELLER




          Section 4.1 Protection of Title of the Depositor.





     (a) At or prior to the Closing Date, the Originator will have filed or caused to be
filed UCC-1 financing statements, (i) naming the Originator as seller or debtor and naming
the Depositor as purchaser or secured party, (ii) naming the Depositor as seller or debtor
and the Issuer as purchaser or secured party and (iii) naming Issuer as debtor and Indenture
Trustee as secured party and describing the Receivables and the Other Conveyed Property
being transferred as collateral, in such locations as are required in order to perfect the
transfers and pledges thereof under the Basic Documents. From time to time thereafter, the
Originator will execute and file such financing statements and cause to be executed and
filed such continuation statements, all in such manner and in such places as may be required
by law fully to preserve, maintain and protect the interest of the Depositor under this
Agreement, of the Issuer under the Sale and Servicing Agreement and of the Indenture Trustee
under the Indenture in the Receivables and the Other Conveyed Property and in the proceeds
thereof. The Originator will deliver (or cause to be delivered) to the Depositor, the
Indenture Trustee and the Insurer file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing. In the event
that the Originator fails to perform its obligations under this subsection, the Depositor,
Issuer or the Indenture Trustee may do so, at the expense of the Originator. In furtherance
of the foregoing, the Originator hereby authorizes the Depositor, the Issuer or the
Indenture Trustee to file a record or records (as defined in the applicable UCC), including
financing statements, in all jurisdictions and with all filing offices as each may
determine, in its sole discretion, are necessary or advisable to perfect the security
interest granted to the Depositor pursuant to Section 6.9. Such financing statements may
describe the collateral in the same manner as described herein or may contain an indication
or description of collateral that describes such property in any other manner as such party
may determine, in its sole discretion, is necessary, advisable or prudent to ensure the
perfection of the security interest in the collateral granted to the Depositor herein.




     (b) The Originator will not change its name, identity, state of incorporation or
corporate structure in any manner that would, could or might make any financing statement or
continuation statement filed by the Originator (or by the Depositor, Issuer or the Indenture
Trustee on behalf of the Originator) in accordance with Section 4.1(a) seriously misleading
within the meaning of §9-506 of the applicable UCC, unless the Originator will have given
the Depositor, Issuer, Insurer and the Indenture Trustee at



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least 60 days’ prior written notice thereof, and will promptly file appropriate
amendments to all previously filed financing statements and continuation statements.




     (c) The Originator shall at all times maintain each office from which it services
Receivables and its principal executive office within the United States of America.




     (d) Prior to the Closing Date, the Originator has maintained accounts and records as to
each Receivable accurately and in sufficient detail to permit (i) the reader thereof to know
at any time as of or prior to the Closing Date, the status of such Receivable, including
payments and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each Receivable and
the Principal Balance as of the Cutoff Date. The Originator will maintain its computer
systems so that, from and after the time of transfer under this Agreement of the Receivables
to the Depositor and the conveyance of the Receivables by the Depositor to the Issuer, the
Originator’s master computer records (including archives) that will refer to a Receivable
indicate clearly that such Receivable has been transferred to the Depositor and has been
conveyed by the Depositor to Issuer. Indication of the Issuer’s ownership of a Receivable
will be deleted from or modified on the Originator’s computer systems when, and only when,
the Receivable will become a Purchased Receivable or will have been paid in full.




     (e) If at any time the Originator proposes to sell, grant a security interest in, or
otherwise transfer any interest in any motor vehicle receivables to any prospective
purchaser, lender or other transferee, the Originator will give to such prospective
purchaser, lender or other transferee computer tapes, records or print-outs (including any
restored from archives) that, if they refer in any manner whatsoever to any Receivable
(other than a Purchased Receivable), will indicate clearly that such Receivable has been
sold by the Originator and is owned by the Issuer.



          Section 4.2 [Reserved].




          Section 4.3 Other Liens or Interests. Except for the conveyances hereunder and under
the other Basic Documents, the Originator will not sell, pledge, assign or transfer to any other
Person or grant, create, incur, assume or suffer to exist any Lien on the Receivables or the Other
Conveyed Property or any interest herein and the Depositor will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on the
Receivables or the Other Conveyed Property or any interest therein, and the Originator will defend
the right, title, and interest of the Depositor and the Issuer in and to the Receivables and the
Other Conveyed Property against all claims of third parties claiming through or under the
Originator and the Depositor will defend the right, title, and interest of the Issuer in and to the
Receivables and the Other Conveyed Property against all claims of third parties claiming through or
under the Depositor.




          Section 4.4 Costs and Expenses. Each of the Originator and the Depositor will pay all
reasonable costs and disbursements in connection with the performance of its obligations hereunder
and under its Related Documents.




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          Section 4.5 Indemnification by the Originator. (a) The Originator will defend,
indemnify and hold harmless the Depositor, the Issuer, the Indenture Trustee, the Backup Servicer,
the Owner Trustee, the Noteholders, the Certificateholders and the Insurer from and against any and
all costs, expenses, losses, damages, claims, and liabilities, arising out of or resulting from:
(i) any breach of any of the Originator’s representations and warranties contained herein, (ii) the
use, ownership or operation by the Originator or any affiliate thereof of a Financed Vehicle, (iii)
any action taken, or failed to be taken, by it in respect of the Receivables other than in
accordance with this Agreement or the Sale and Servicing Agreement or (iv) the negligence (except
for errors in judgment), willful misfeasance, or bad faith of the Originator in the performance of
its duties under this Agreement or by reason of reckless disregard of the Originator’s obligations
and duties under this Agreement.




          (b) The Originator will defend, indemnify and hold harmless the Issuer, the Indenture Trustee,
the Backup Servicer, the Owner Trustee, the Depositor, the Noteholders, the Certificateholders and
the Insurer from and against any and all costs, expenses, losses, damages, claims, and liabilities,
arising out of or resulting from any Taxes which may at any time be asserted against such Persons
with respect to (i) the conveyance or ownership of the Receivables or the Other Conveyed Property
hereunder, (ii) the conveyance or ownership of the Receivables under the Sale and Servicing
Agreement and (iii) the issuance and original sale of the Notes and the issuance of the
Certificates, and costs and expenses in defending against the same, arising by reason of the acts
to be performed by the Originator under this Agreement or imposed against such Persons.




          Indemnification under this Section 4.5 will include reasonable fees and expenses of counsel
and expenses of litigation and will survive payment of the Notes and the Certificates and
termination of this Agreement. The indemnity obligations hereunder will be in addition to any
obligation that the Originator may otherwise have.




          Section 4.6 Indemnification by the Depositor. (a) The Depositor will defend,
indemnify and hold harmless the Originator, the Issuer, the Indenture Trustee, the Backup Servicer,
the Owner Trustee, the Noteholders, the Certificateholders and the Insurer from and against any and
all costs, expenses, losses, damages, claims, and liabilities, arising out of or resulting from:
(i) any breach of any of the Depositor’s representations and warranties contained herein, (ii) the
use, ownership or operation by the Depositor or any affiliate thereof of a Financed Vehicle, (iii)
any action taken, or failed to be taken, by it in respect of the Receivables other than in
accordance with this Agreement or the Sale and Servicing Agreement or (iv) the negligence (except
for errors in judgment), willful misfeasance, or bad faith of the Depositor in the performance of
its duties under this Agreement or by reason of reckless disregard of the Depositor’s obligations
and duties under this Agreement.




          (b) The Depositor will defend, indemnify and hold harmless the Issuer, the Indenture Trustee,
the Backup Servicer, the Owner Trustee, the Noteholders, the Certificateholders and the Insurer
from and against any and all costs, expenses, losses, damages, claims, and liabilities, arising out
of or resulting from any Taxes which may at any time be asserted against such Persons with respect
to the transactions contemplated by this Agreement, including (i) the conveyance or ownership of
the Receivables or the Other Conveyed Property hereunder, (ii) the conveyance or ownership of the
Receivables under the Sale and Servicing




9









 




Agreement and (iii) the issuance and original sale of the Notes and the issuance of the
Certificates, and costs and expenses in defending against the same, arising by reason of the acts
to be performed by the Depositor under this Agreement or imposed against such Persons.




          Indemnification under this Section 4.6 will include reasonable fees and expenses of counsel
and expenses of litigation and will survive payment of the Notes and the Certificates and
termination of this Agreement. The indemnity obligations hereunder will be in addition to any
obligation that the Depositor may otherwise have.




ARTICLE V.




REPURCHASES




          Section 5.1 Repurchase of Receivables Upon Breach of Warranty. Upon the occurrence of
a Repurchase Event, the Originator will, unless the breach which is the subject of such Repurchase
Event will have been cured in all material respects, repurchase the Receivable relating thereto
from the Issuer and, simultaneously with the repurchase of the Receivable, the Originator will
deposit the Purchase Amount in full, without deduction or offset, to the Collection Account,
pursuant to Section 3.2 of the Sale and Servicing Agreement. It is understood and agreed that,
except as set forth in Section 4.5(a)(i) and Section 6.1, the obligation of the Originator to
repurchase any Receivable, as to which a breach occurred and is continuing, will, if such
obligation is fulfilled, constitute the sole remedy against the Originator for such breach
available to the Depositor, the Issuer, the Insurer, the Backup Servicer, the Noteholders, the
Certificateholders, the Indenture Trustee on behalf of the Noteholders or the Owner Trustee on
behalf of the Certificateholders. This Section 5.1 is intended to grant the Issuer and the
Indenture Trustee on behalf of the Noteholders and the Insurer a direct right against the
Originator to demand performance hereunder, and in connection therewith, the Originator waives any
requirement of prior demand against the Depositor with respect to such repurchase obligation. Any
such repurchase will take place in the manner specified in Section 3.2 of the Sale and Servicing
Agreement. Notwithstanding any other provision of this Agreement or the Sale and Servicing
Agreement to the contrary, the obligation of the Originator under this Section 5.1 will not
terminate upon a termination of the Originator as Servicer under the Sale and Servicing Agreement
and will be performed in accordance with the terms hereof notwithstanding the failure of the
Servicer or the Depositor to perform any of their respective obligations with respect to such
Receivable under the Sale and Servicing Agreement.




          Without limitation of the foregoing and notwithstanding whether the related Receivable will
have been purchased by the Originator, the Originator will indemnify the Depositor, the Issuer, the
Indenture Trustee, the Backup Servicer, the Owner Trustee, the Insurer, the Noteholders and the
Certificateholders from and 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
such Repurchase Events.




          Section 5.2 Reassignment of Purchased Receivables. Upon deposit in the Collection
Account of the Purchase Amount of any Receivable repurchased by the Originator under Section 5.1,
the Issuer and the Indenture Trustee will take such steps as may be reasonably




10









 




requested by the Originator in order to assign to the Originator all of the Issuer’s right,
title and interest in and to such Receivable and all security and documents and all Other Conveyed
Property conveyed to the Issuer directly relating thereto, without recourse, representation or
warranty, except as to the absence of Liens created by or arising as a result of actions of the
Issuer. Such assignment will be a sale and assignment outright, and not for security. If,
following the reassignment of a Purchased Receivable, in any enforcement suit or legal proceeding,
it is held that the Originator may not enforce any such Receivable on the ground that it will not
be a real party in interest or a holder entitled to enforce the Receivable, the Issuer and the
Indenture Trustee will, at the expense of the Originator, take such steps as the Originator deems
reasonably necessary to enforce the Receivable, including bringing suit in the Issuer’s name.




          Section 5.3 Waivers. No failure or delay on the part of the Depositor, or the Issuer
as assignee of the Depositor, in exercising any power, right or remedy under this Agreement will
operate as a waiver thereof, nor will any single or partial exercise of any such power, right or
remedy preclude any other or future exercise thereof or the exercise of any other power, right or
remedy.




ARTICLE VI.




MISCELLANEOUS




          Section 6.1 Liability of the Originator and the Depositor. Each of the Originator and
the Depositor will be liable in accordance herewith only to the extent of the obligations in this
Agreement specifically undertaken by each of the Originator, and the Depositor, respectively and
the representations and warranties of each of the Originator and the Depositor, respectively.




          Section 6.2 Merger or Consolidation of the Originator or the Depositor. Any
corporation, limited liability company or other entity (i) into which the Originator or the
Depositor may be merged or consolidated, (ii) resulting from any merger or consolidation to which
the Originator or the Depositor is a party or (iii) succeeding to the business of the Originator or
the Depositor, in the case of the Depositor, which corporation, limited liability company or other
entity has a certificate of incorporation or limited liability company agreement containing
provisions relating to limitations on business and other matters substantively identical to those
contained in the Depositor’s limited liability company agreement, provided that in any of the
foregoing cases such corporation or other entity will execute an agreement of assumption to perform
every obligation of the Originator or the Depositor, as the case may be, under this Agreement and,
whether or not such assumption agreement is executed, will be the successor to the Originator or
the Depositor, as the case may be, hereunder (without relieving the Originator or the Depositor of
their responsibilities hereunder, if it survives such merger or consolidation) without the
execution or filing of any document or any further action by any of the parties to this Agreement.
Notwithstanding the foregoing, so long as no Insurer Default has occurred and is continuing, the
Depositor will not merge or consolidate with any other Person or permit any other Person to become
the successor to the Depositor’s business without the prior written consent of the Insurer. The
Originator or the Depositor will promptly inform the other party hereto, the Issuer, the Indenture
Trustee, the Owner Trustee and, so long as no Insurer Default




11









 




has occurred and is continuing, the Insurer, of such merger, consolidation or purchase and
assumption. Notwithstanding the foregoing, as a condition to the consummation of the transactions
referred to in clauses (i), (ii) and (iii) above, (x) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Sections 3.1 (other than subsection (e)
thereof in connection with a change in control as provided in the Insurance Agreement) and 3.2 will
have been breached (for purposes hereof, such representations and warranties must be true and
correct as of the date of the consummation of such transaction) and with respect to a transaction
involving the Depositor, no event that, after notice or lapse of time, or both, would become an
event of default under the Insurance Agreement, has occurred and is continuing, (y) with respect to
a transaction involving the Depositor, the Depositor will have delivered written notice of such
consolidation, merger or purchase and assumption to the Rating Agencies prior to the consummation
of such transaction and will have delivered to the Issuer, the Insurer and the Indenture Trustee an
Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger or
succession and such agreement of assumption comply with this Section 6.2 and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction have been complied
with, and (z) the Originator or the Depositor, as applicable, will have delivered to the Issuer and
the Indenture Trustee an Opinion of Counsel, stating, in the opinion of such counsel, either (A)
all financing statements and continuation statements and amendments thereto have been executed and
filed that are necessary to preserve and protect the interest of the Issuer and the Indenture
Trustee in the Receivables and the Other Conveyed Property and reciting the details of the filings
or (B) no such action will be necessary to preserve and protect such interest.




          Section 6.3 Limitation on Liability of the Originator, and the Depositor and Others.
The Originator, the Depositor and any director, officer, employee or agent thereof may rely in good
faith on the advice of counsel or on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising under this Agreement. Neither the
Originator nor the Depositor will be under any obligation to appear in, prosecute or defend any
legal action that is not incidental to its obligations under this Agreement or its Related
Documents and that in its opinion may involve it in any expense or liability.




          Section 6.4 The Originator May Own Notes or the Certificates. Subject to the
provisions of the Basic Documents, the Originator and any Affiliate of the Originator may in their
individual or any other capacity become the owner or pledgee of Notes or the Certificates with the
same rights as they would have if they were not the Originator or an Affiliate thereof.




          Section 6.5 Amendment.





     (a) This Agreement may be amended by the Originator and the Depositor with the prior
written consent of the Insurer (so long as no Insurer Default has occurred and is
continuing) but without the consent of the Indenture Trustee, the Owner Trustee, the
Certificateholders or any of the Noteholders (i) to cure any ambiguity or (ii) to correct
any provisions in this Agreement; provided, however, that such action will not, as evidenced
by an Opinion of Counsel delivered to the Issuer, the Owner Trustee and the Indenture
Trustee, adversely affect in any material respect the interests of the Indenture Trustee,
any Certificateholder or any Noteholder.



12









 






     (b) This Agreement may also be amended from time to time by the Originator and the
Depositor, with the prior written consent of the Controlling Party, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of
this Agreement.




     (c) Prior to the execution of any such amendment or consent, the Originator will have
furnished written notification of the substance of such amendment or consent to each Rating
Agency.



          Section 6.6 Notices.




          All demands, notices and communications hereunder will be in writing and will be deemed to
have been duly given to the addressee if mailed, by first-class registered mail, postage prepaid
service, confirmed facsimile transmission, or a nationally recognized express courier, as follows:




          If to the Originator:



Triad Financial Corporation

7711 Center Avenue

Suite 100

Huntington Beach, California 92647

Attention: Chief Financial Officer




          With a separate copy to:



Attention: General Counsel




          If to the Depositor:



Triad Financial Special Purpose LLC

7711 Center Avenue

Suite 390

Huntington Beach, California 92647

Attention: Chief Financial Officer



or such other address as will be designated by a party in a written notice delivered to the other
party or to the Issuer, the Owner Trustee, the Indenture Trustee or the Insurer, as applicable.
Any such demand, notice or communication hereunder will be deemed to have been received on the date
delivered to or received at the premises of the addressee as evidenced by the date noted on the
return receipt.




          Section 6.7 Merger and Integration. Except as specifically stated otherwise herein,
this Agreement and Related Documents set forth the entire understanding of the parties relating to
the subject matter hereof, and all prior understandings, written or oral, are superseded by this
Agreement and the Related Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.




13









 








          Section 6.8 Severability of Provisions. If any one or more of the covenants,
provisions or terms of this Agreement will be for any reason whatsoever held invalid, then such
covenants, provisions or terms will be deemed severable from the remaining covenants, provisions or
terms of this Agreement and will in no way affect the validity or enforceability of the other
provisions of this Agreement.




          Section 6.9 Intention of the Parties.





     (a) The execution and delivery of this Agreement will constitute an acknowledgment by
the Originator and the Depositor that they intend that the assignments and transfers herein
contemplated constitute sales and assignments outright, and not for security, of the
Receivables and the Other Conveyed Property, conveying good title thereto free and clear of
any Liens, from the Originator to the Depositor and that the Receivables and the Other
Conveyed Property will not be a part of the Originator’s estate in the event of the
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other
proceeding under any federal or state bankruptcy or similar law, or the occurrence of
another similar event, of, or with respect to, the Originator. If such conveyance is
determined to be made as security for a loan made by the Depositor, the Issuer, the
Noteholders or the Certificateholders to the Originator the parties intend that the
Originator will have granted to the Depositor a security interest in all of the Originator’s
right, title and interest, respectively, whether now owned or existing or hereafter acquired
or arising, in and to:




               (1) the Receivables and all moneys received thereon after the Cutoff Date,




               (2) the Other Conveyed Property conveyed to the Depositor by the Originator pursuant to
this Agreement including (a) an assignment of the security interests in the Financed
Vehicles granted by Obligors pursuant to the Receivables, and any other interest of the
Originator or the Depositor in such Financed Vehicles, (b) any proceeds and the right to
receive any proceeds with respect to the Receivables from claims on any physical damage,
credit life or disability insurance policies covering Financed Vehicles or Obligors and any
proceeds from the liquidation of the Receivables, (c) the right to cause the related Dealer
or a Third-Party Lender to repurchase Receivables pursuant to a Dealer Agreement or an Auto
Loan Purchase and Sale Agreement, respectively, as a result of the breach of representation
or warranty in the related Dealer Agreement or Auto Loan Purchase and Sale Agreement,
respectively, (d) all rights, if any, to refunds for the costs of any Service Contracts on
the related Financed Vehicles, (e) the related Receivables Files and (f) the proceeds of any
and all of the foregoing, and




               (3) all proceeds and investments with respect to items (1) and (2) above.




     (b) This Agreement will constitute a security agreement under applicable law.



14









 





          Section 6.10 Governing Law. This Agreement will be construed in accordance with the
laws of the State of New York without regard to the principles of conflicts of laws thereof (other
than Section 5-1401 of the General Obligations Law of the State of New York) and the obligations,
rights and remedies of the parties under this Agreement will be determined in accordance with such
laws.




          Section 6.11 Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which counterparts will be deemed to be an original, and all of
which counterparts will constitute but one and the same instrument.




          Section 6.12 Conveyance of the Receivables and the Other Conveyed Property to the
Issuer. The Originator acknowledges that the Depositor intends, pursuant to the Sale and
Servicing Agreement, to convey the Receivables and the Other Conveyed Property, together with its
rights under this Agreement, to the Issuer on the date hereof. The Originator acknowledges and
consents to such conveyance and pledge and waives any further notice thereof and covenants and
agrees that the representations and warranties of the Originator contained in this Agreement and
the rights of the Depositor hereunder are intended to benefit the Insurer, the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Certificateholders. In furtherance of the
foregoing, the Originator covenants and agrees to perform its duties and obligations hereunder, in
accordance with the terms hereof for the benefit of the Insurer, the Issuer, the Owner Trustee, the
Indenture Trustee, the Noteholders and the Certificateholders and that, notwithstanding anything to
the contrary in this Agreement, the Originator will be directly liable to the Issuer, the Owner
Trustee, the Indenture Trustee, the Noteholders and the Certificateholders (notwithstanding any
failure by the Servicer or the Backup Servicer to perform its respective duties and obligations
hereunder or under the Related Documents) and that the Controlling Party may enforce the duties and
obligations of the Originator under this Agreement against the Originator for the benefit of the
Insurer, the Issuer, the Owner Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders.




          Section 6.13 Nonpetition Covenant. The Originator will not, prior to the date that is
one year and one day after the termination of this Agreement, petition or otherwise invoke the
process of any court or government authority for the purpose of commencing or sustaining a case
against the Depositor or the Issuer under any federal or state bankruptcy, insolvency or similar
law or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or the Issuer or any substantial part of their respective
property, or ordering the winding up or liquidation of the affairs of the Depositor or the Issuer.




          Section 6.14 Payment Obligations of the Depositor Limited. Notwithstanding anything
to the contrary herein, the payment obligations of the Depositor are limited to the extent it has
funds available to make such payment.




15









 





          IN WITNESS WHEREOF, the parties have caused this Purchase Agreement to be duly executed by
their respective officers as of the day and year first above written.




	 	 	 	 	 	 	 	 	 
	 	 	 	 	TRIAD FINANCIAL CORPORATION,	 	 
	 	 	 	 	     as Originator	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By

Name:
	 	/s/ Mike L. Wilhelms
 

Mike L. Wilhelms
	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	TRIAD FINANCIAL SPECIAL PURPOSE LLC,	 	 
	 	 	 	 	     as Depositor	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By
	 	/s/ Mike L. Wilhelms	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	Mike L. Wilhelms	 	 
	 

	 	 	 	Title:
	 	Chief Financial Officer	 	 
	 
	 	 	 	 	 	 	 	 
	Accepted:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	CITIBANK, N.A.,	 	 	 	 	 	 
	not in its individual capacity	 	 	 	 	 	 
	but solely as Indenture Trustee	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ John Hannon	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	Name:


	 	John Hannon	 	 	 	 	 	 
	Title:

	 	Vice President	 	 	 	 	 	 





[Signature
page to Purchase Agreement]

 









 






SCHEDULE A




SCHEDULE
OF RECEIVABLES


[Delivered to the Indenture Trustee at the Closing]





 









 








SCHEDULE B




REPRESENTATIONS AND WARRANTIES

OF THE ORIGINATOR 




     1. Characteristics of Receivables. Each Receivable (A) was originated (i) by the
Originator, (ii) by a Dealer and purchased by the Originator from such Dealer under an existing
Dealer Agreement or pursuant to a Dealer Assignment with the Originator and was validly assigned by
such Dealer to the Originator pursuant to a Dealer Assignment, or (iii) by a Third-Party Lender and
purchased by the Originator from such Third-Party Lender under an existing Auto Loan Purchase and
Sale Agreement or pursuant to a Third-Party Lender Assignment with the Originator and was validly
assigned by such Third-Party Lender to the Originator pursuant to a Third-Party Lender Assignment,
(B) was originated by the Originator, such Dealer or such Third-Party Lender for the retail sale or
refinancing of a Financed Vehicle in the ordinary course of the Originator’s, the Dealer’s or the
Third-Party Lender’s business, in each case, in accordance with the Originator’s credit policies
and was fully and properly executed by the parties thereto, and the Originator, each Dealer and
each Third-Party Lender had all necessary licenses and permits to originate Receivables in the
state where the Originator, each such Dealer or each such Third-Party Lender was located, (C)
contains customary and enforceable provisions such that the rights and remedies of the holder
thereof are adequate for realization against the collateral security, (D) is a Receivable which
provides for level monthly payments (provided that the period in the first Collection Period and
the payment in the final Collection Period of the Receivable may be minimally different from the
normal period and level payment) that, if made when due, will fully amortize the Amount Financed
over the original term and (E) has not been amended or collections with respect to which have not
been waived, other than as evidenced in the Receivable File relating thereto.



     2. Fraud or Misrepresentation. Each Receivable was originated (i) by the Originator,
(ii) by a Dealer and was sold by the Dealer to the Originator, or (iii) by a Third-Party Lender and
was sold by the Third-Party Lender to the Originator, and was transferred by the Originator to the
Depositor and by the Depositor to the Issuer without any fraud or misrepresentation on the part of
the Originator, the Depositor, such Dealer or Third-Party Lender in any case.



     3. Compliance with Law. 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 Billing Act, the Fair Credit Reporting Act,
the Fair Debt Collection Practices Act, the Federal Trade Commission Act, the Moss-Magnuson
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 Servicemembers Civil Relief Act, each applicable state Motor Vehicle
Retail Installment Sales 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) in respect of the Receivables and the Financed Vehicles, have been complied with in all
material respects, and each Receivable and the sale of the Financed Vehicle evidenced by each
Receivable complied at the time it was originated or made and now complies in all material respects
with all applicable legal requirements.



 









 





     4. Origination. Each Receivable was originated in the United States and the related
Obligor is a resident of the United States.



     5. Binding Obligation. Each Receivable represents the genuine, legal, valid and
binding payment obligation of the Obligor thereon, enforceable by the holder thereof in accordance
with its terms, except (A) as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the enforcement of creditors’ rights generally and by
equitable limitations on the availability of specific remedies, regardless of whether such
enforceability is considered in a proceeding in equity or at law and (B) as such Receivable may be
modified by the application after the applicable Cutoff Date of the Servicemembers Civil Relief
Act, as amended; 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.



     6. No Government Obligor. No Obligor is the United States of America or any State or
any agency, department, subdivision or instrumentality thereof.



     7. Obligor Bankruptcy. At the Cutoff Date no Obligor had been identified on the
records of the Originator as being the subject of a current bankruptcy proceeding.



     8. Schedule of Receivables. The information set forth in the Schedule of Receivables
has been produced from the Electronic Ledger and was true and correct in all material respects as
of the close of business on the Cutoff Date.



     9. Marking Records. By the Closing Date, the Originator will have caused the portions
of the Electronic Ledger relating to the Receivables to be clearly and unambiguously marked to show
that the Receivables have been sold to the Depositor by the Originator and sold by the Depositor to
the Issuer in accordance with the terms of the Sale and Servicing Agreement.



     10. Computer Tape. The Computer Tape made available by the Originator to the Issuer
on the Closing Date, was complete and accurate as of the Cutoff Date and includes a description of
the same Receivables that are described in the Schedule of Receivables.



     11. Adverse Selection. No selection procedures believed to be adverse to the
Noteholders or the Insurer were utilized in selecting the Receivables from those receivables owned
by the Originator which met the selection criteria contained in the Sale and Servicing Agreement.



     12. Tangible Chattel Paper. The Receivables constitute “tangible chattel paper”
within the meaning of the UCC as in effect in the States of California, New York and Delaware.



     13. One Original. There is only one original executed copy of each Receivable.



     14. Receivable Files Complete. There exists a Receivable File pertaining to each
Receivable and such Receivable File contains (a) a fully executed original of the Receivable, (b)
in the case of retail installment sale contracts, the original executed credit application, or a
paper or electronic copy thereof and (c) the original Lien Certificate or application therefor.
Each such document which is required to be signed by the Obligor has been signed by the Obligor in



SCH B-2









 




the appropriate spaces. All blanks on any form have been properly filled in and each form has
otherwise been correctly prepared. The complete Receivable File for each Receivable currently is
in the possession of the Custodian or in the possession of a third-party vendor.




     15. Receivables in Force. No Receivable has been satisfied, subordinated or
rescinded, and the Financed Vehicle securing each such Receivable has not been released from the
lien of the related Receivable in whole or in part. No terms of any Receivable have been waived,
altered or modified in any respect since its origination, except by instruments or documents
identified in the Receivable File. No Receivable has been modified as a result of application of
the Servicemembers Civil Relief Act, as amended. All funds payable to or on behalf of the Obligors
with respect to the Receivables have been fully disbursed.



     16. Lawful Assignment; No Consent Required. No Receivable was originated in, or is
subject to the laws of, any jurisdiction the laws of which would make unlawful, void or voidable
the sale, transfer and assignment of such Receivable and the Other Conveyed Property under this
Agreement. For the validity of the sale, transfer and assignment of the Receivables and Other
Conveyed Property to the Originator, the Depositor, and the Issuer, no consent by any Dealer,
Third-Party Lender or Obligor is required under any agreement or applicable law.



     17. Good Title. No Receivable has been sold, transferred, assigned or pledged by the
Dealer or Third-Party Lender, the Originator or the Depositor, as the case may be, to any Person
other than the Originator, the Depositor and the Issuer, as the case may be. Immediately prior to
the conveyance of the Receivables to the Depositor pursuant to this Agreement, as applicable, the
Originator was the sole owner thereof and had good title thereto, free of any Lien and, upon
execution and delivery of this Agreement by the Originator, the Depositor will have good title to
and will be the sole owner of such Receivables, free of any Lien, and upon execution and delivery
of the Sale and Servicing Agreement by the Depositor, the Issuer will have good title to and will
be the sole owner of the Receivables, free and clear from any Lien (other than the Lien of the
Indenture). No Dealer or Third-Party Lender has an unpaid participation in, or other right to
receive, proceeds of any Receivable. Neither the Originator nor the Depositor has taken any action
to convey any right to any Person that would result in such Person having a right to payments
received under the related Insurance Policies or the related Dealer Agreements, Auto Loan Purchase
and Sale Agreements, Dealer Assignments or Third-Party Lender Assignments or to payments due under
such Receivables.



     18. Security Interest in Financed Vehicle. Each Receivable created or will create a
valid, binding and enforceable first priority security interest in favor of the Originator in the
Financed Vehicle. The Lien Certificate and original certificate of title for each Financed Vehicle
show, or if a new or replacement Lien Certificate is being applied for with respect to such
Financed Vehicle the Lien Certificate will be received within 180 days of the Closing Date, as
applicable, and will show the Originator as the original secured party under each Receivable, or
that such Receivable has been assigned to the Originator, as the holder of a first priority
security interest in such Financed Vehicle. With respect to each Receivable for which the Lien
Certificate has not yet been returned from the Registrar of Titles, the Originator has applied for
or received written evidence from the related Dealer or Third-Party Lender that such Lien
Certificate showing the Originator as first lienholder has been applied for and the Originator’s
security interest has been validly assigned by the Originator to the Depositor pursuant to this



SCH B-3









 




Agreement and by the Depositor to the Issuer pursuant to the Sale and Servicing Agreement.
Immediately after the sale, transfer and assignment thereof by the Originator to the Depositor and
by the Depositor to the Issuer, each Receivable will be secured by an enforceable and perfected
first priority security interest in the Financed Vehicle in favor of the Indenture Trustee 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 any lien for taxes, labor or materials affecting a Financed Vehicle). As of the Cutoff Date
there were no Liens or claims for taxes, work, labor or materials affecting a Financed Vehicle,
which Liens are or may be prior or equal to the Liens of the related Receivable.




     19. All Filings Made. All filings (including, without limitation, UCC filings)
required to be made by any Person, and actions required to be taken or performed by any Person in
any jurisdiction to give the Issuer a first priority perfected lien on, or ownership interest in,
the Receivables and the proceeds thereof and the Other Conveyed Property have been made, taken or
performed.



     20. No Impairment. Neither the Originator nor the Depositor has done anything to
convey any right to any Person that would result in such Person having a right to payments due
under the Receivable or otherwise to impair the rights of the Issuer, the Insurer, the Indenture
Trustee and the Noteholders in any Receivable or the proceeds thereof.



     21. Receivable 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 Originator
with respect to such Receivable.



     22. No Defenses. No Receivable is subject to any right of rescission, setoff,
counterclaim or defense and no such right has been asserted or threatened with respect to any
Receivable.



     23. No Default. There has been no default, breach, violation or event permitting
acceleration under the terms of any Receivable (other than payment delinquencies of not more than
30 days and other defaults that will not have a material adverse effect on the ability of the
Obligor to make, nor the enforceability of Obligor’s obligation to make, Scheduled Receivables
Payments and will not have a material adverse effect on the validity or priority of the
Originator’s lien on the Financed Vehicle), and no condition exists or event has occurred and is
continuing that with notice, the lapse of time or both, would constitute a default, breach,
violation or event permitting acceleration under the terms of any Receivable, and there has been no
waiver of any of the foregoing. As of the Cutoff Date no Financed Vehicle had been repossessed by
or at the direction of the Originator.



     24. Insurance. At the time of an origination of a Receivable by the Originator or a
purchase of a Receivable by the Originator from a Dealer or Third-Party Lender, each Financed
Vehicle was required to be covered by a comprehensive and collision insurance policy (i) subject to
maximum deductibles of $1,000 for collision coverage and $1,000 for comprehensive coverage, (ii)
naming the Originator as loss payee and (iii) insuring against loss and damage due to fire, theft,
transportation, collision and other risks generally covered by comprehensive and collision
coverage. Each Receivable requires the Obligor to maintain physical loss and damage



SCH B-4









 




insurance, naming the Originator and its successors and assigns as additional insured parties,
and each Receivable permits the holder thereof to obtain physical loss and damage insurance at the
expense of the Obligor if the Obligor fails to do so. No Financed Vehicle is insured under a
policy of force-placed insurance on the Cutoff Date.




     25. Past Due. At the Cutoff Date no Scheduled Receivable Payment was more than 30
days past due.



     26. Remaining Principal Balance. At the Cutoff Date the Principal Balance of each
Receivable set forth in the Schedule of Receivables is true and accurate in all material respects.



     27. Certain Characteristics of Receivables. (A) Each Receivable had a remaining
maturity, as of the Cutoff Date, of not more than 73 months and not less than one month; (B) each
Receivable had an original maturity of not more than 73 months; (C) not more than 75% of
Receivables (calculated by Aggregate Principal Balance) will have an original term to maturity of
73 months; (D) each Receivable had a remaining Principal Balance as of the Cutoff Date of at least
$1,000 and not more than $59,000; and (E) each Receivable has an Annual Percentage Rate of at least
5.80% and not more than 26.00%.




SCH B-5