SECOND SUPPLEMENTAL
INDENTURE
SECOND
SUPPLEMENTAL INDENTURE (“ Second Supplemental
Indenture ”), dated as of December 29, 2008,
among Triad Financial SM LLC, a Delaware limited liability company
(“ SMLLC ”), Triad Financial SM Inc., a
Delaware corporation and wholly-owned subsidiary of SMLLC (“
SMINC ”), and The Bank of New York Mellon, a
New York banking corporation, as successor to JP Morgan Chase Bank,
N.A., as trustee under the Indenture referred to below (the “
Trustee ”).
WHEREAS, Triad
Acquisition Corp., a Delaware corporation (the “
Issuer ”) and the Trustee heretofore executed
and delivered an Indenture, dated as of April 29, 2005 (as
heretofore amended and supplemented, the “
Indenture ”), providing for the issuance of the
11.125% Senior Notes due 2013 (the “ Notes
”);
WHEREAS, pursuant
to Section 5.01 of the Indenture, on April 29, 2005,
Triad Financial Corporation, a California corporation (the “
Company ”), became the successor to the Issuer
by executing and delivering a Supplemental Indenture (the “
First Supplemental Indenture ”), dated as of
April 29, 2005, to the Trustee;
WHEREAS, pursuant
to an Agreement and Plan of Merger, dated as of December 29,
2008, by and between the Company and SMLLC, the Company will be
merged with and into SMLLC (such transaction, the “
Merger ”);
WHEREAS, pursuant
to Section 5.01(2) of the Indenture, as a condition to certain
permitted consolidations or mergers of the Company, which include
the Merger, the Person formed by or surviving any such
consolidation or merger (if other than the Company) (the “
Surviving Person ”) is required to assume all
the obligations of the Company under the Notes and the Indenture
pursuant to agreements reasonably satisfactory to the
Trustee;
WHEREAS, pursuant
to Section 5.01(1) of the Indenture, as a condition to certain
permitted consolidations or mergers of the Company, which include
the Merger, if the Surviving Person is a partnership or limited
liability company, then a corporation wholly owned by such Person
organized or existing under the laws of the United States, any
state of the United States or the District of Columbia that does
not and will not have any material assets or operations, is
required to become a co-issuer of the Notes pursuant to a
supplemental indenture substantially in the form set forth in the
Indenture;
WHEREAS,
Section 5.02 of the Indenture provides that upon the
completion of certain mergers that comply with Section 5.01 of
the Indenture, the applicable Surviving Person shall succeed to,
and be substituted for (so that from and after the date of such
merger, the provisions of the Indenture referring to the
“Company” shall refer instead to the successor Person
and not to the Company), and may exercise every right and power of
the Company under the Indenture with the same effect as if such
successor Person had been named as the Company therein;
WHEREAS,
Section 9.01(3) of the Indenture provides that the Company and
the Trustee may amend the Indenture and the Notes, without notice
to or consent of any Holders of the Notes, in order to comply with
Article 5 of the Indenture; and
WHEREAS, this
Second Supplemental Indenture has been duly authorized by all
necessary entity action on the part of SMLLC and SMINC.
NOW, THEREFORE, in
consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, SMLLC, SMINC and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders as
follows:
Section 1.1.
Definitions . For all purposes of the Indenture and this
Second Supplemental Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the
words “herein,” “hereo
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