Exhibit 10.9
EXHIBIT B
PROMISSORY NOTE
$[*]
Clinton Township, Michigan
March 30, 2007
FOR VALUE
RECEIVED, the undersigned, ALL NIGHT AUTO OF OKLAHOMA, INC., a
Michigan corporation ("Borrower"), promises to pay to the order of
ELITE
AUTOMOTIVE GROUP, LLC, an Oklahoma limited liability company
("Lender"), at the
address set forth below, the principal sum of [*] ($[*]) Dollars.
Except as
otherwise set forth in this Promissory Note ("Note"), no interest
shall accrue
on the principal amount of this Note. Principal and interest, if
any, shall be
paid by the Borrower in lawful money of the United States of
America at Lender's
address shown below, or at such other address as the Lender may
designate in
writing to the Borrower.
PAYMENT.
Principal shall be paid by the Borrower in consecutive
quarterly
installments on the (15th) day of each calendar quarter after the
date of this
Note and any remaining outstanding principal and interest shall be
due and
payable on March 30, 2012 (the "Maturity Date"). Payments of
principal shall be
the greater of (i) [*] dollars ($[*]) or, (ii) during the period
that Stephen J.
Stearman is employed by Midnight Holdings Group, Inc. or any of its
affiliates,
an amount equal to [*] percent ([*]%) of the Gross Sales (as
defined hereafter)
of the "Warr Acres," "Norman" and "Yukon" businesses (as those
terms are defined
in the Asset Purchase Agreement entered into on the date hereof
between and
among the Borrower, Lender, the undersigned Guarantors and others,
referred to
herein as the "Asset Purchase Agreement")(collectively, the
"Locations");
provided, however, no such quarterly payments shall be greater than
the
then-outstanding principal balance of this Note.
"Gross Sales" shall mean the total amount of cash received during
the calendar
quarter just completed from customers of the Locations, less any
refunds,
returns, reserves for warranty or repairs, and sales taxes.
PREPAYMENT. The Borrower shall have the right at any time to prepay
the
principal balance hereof without penalty in whole or in part.
DEFAULT.
The occurrence of any of the following events shall be deemed
an
Event of Default hereunder:
a. The failure of the Borrower to make any payment of any
installment of principal or any other payment required under this
Note
within
five (5) days of the due date and the corresponding failure of
the
undersigned Guarantors (the "Guarantors") to make such payment
within
fifteen
(15) Business Days of written notice.
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b. The
Borrower or any of the Guarantors: (a) executes an assignment
for the
benefit of creditors or takes any action in furtherance
thereof;
or (b)
admits in writing its inability to pay its debts generally as
they
become
due; or (c) as a debtor, files a petition, case, proceeding, or
other
action pursuant to, or voluntarily seeks the benefits of, any
debtor
relief law
or takes any action in furtherance thereof; or (d) seeks,
acquiesces
to, or suffers the appointment of a receiver, trustee, or
custodian
of the Borrower or any of the Guarantors or any property
belonging
to the Borrower or any of the Guarantors; or (e) voluntarily
becomes a
party to any proceeding seeking to effect a suspension or
having
the effect
of suspending any of the rights of the Lender granted or
referred
to herein or takes any action in furtherance thereof.
c. The filing of a petition, case, proceeding, or other action
against
the Borrower or any of the Guarantors as a debtor under any
debtor
relief
law, or seeking appointment of a receiver, trustee, or custodian
of
the
Borrower or any of the Guarantors or of any property belonging to
the
Borrower
or any of the Guarantors, or seeking to effect suspension or
having the
effect of suspending any of the rights of the Lender granted or
referred
to herein, and: (a) the Borrower or any of the Guarantors
admits,
acquiesces
in, or fails to contest the material allegations thereof; or
(b) the
petition, case, proceeding, or other action results in entry of
an
order for
relief or order granting the relief sought against the Borrower
or any of
the Guarantors; or (c) the petition, case, proceeding, or other
action against
the Borrower or any of the Guarantors is not permanently
dismissed
on or before the earlier of trial thereon or sixty (6) days
next
following
the date of its filing.
d. The Borrower or any of the Guarantors breaches any of the
terms,
conditions, covenants, representations, or warranties contained in
any of
the
Additional Agreements, except for the Employment Agreement (as
those
terms are
defined in the Asset Purchase Agreement) and such breach is not
cured
within fifteen (15) Business Days of the Lender's written notice
of
such
breach.
A
"Business Day" shall mean any day when national banks are open
for
business, excluding a Saturday, Sunday or a public holiday u
