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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.
<PAGE>
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
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