TRIAD FINANCIAL HOLDINGS
LLC
|
|
|
|
|
|
|
New York, New York
|
|
|
|
December 31, 2008
|
FOR
VALUE RECEIVED, the undersigned, Triad Financial Holdings LLC, a
Delaware limited liability company (together with its successors
and permitted assigns, the “ Company ”), hereby
promises to pay to the order of Hunter’s Glen/Ford Ltd.
(together with its successors and permitted assigns, the “
Holder ”), in lawful money of the United States of
America, in immediately available funds on the earlier of
(x) April 30, 2009, (y) five business days following
the date upon which the aggregate amount of Managed Assets
(hereinafter defined) of Triad Financial SM LLC, a wholly-owned
subsidiary of the Company, is less than $2,000,000,000 and
(z) any earlier date upon which this Note becomes due and
payable pursuant to the terms hereof (such date, the “
Maturity Date ”), the principal sum of SEVENTEEN
MILLION United States Dollars ($17,000,000) or such lesser
principal amount as shall at the time be outstanding hereunder,
together with interest from the date hereof on the unpaid amount
owing hereunder until payment in full at a rate of interest per
annum equal to the lesser of (i) the maximum lawful rate of
interest in effect at such time under applicable law and
(ii) fifteen percent (15%) per annum, compounded quarterly.
Interest shall be calculated on the basis of a year of
360 days and shall accrue on the outstanding principal amount
of this Note and, to the extent permitted by law, on any accrued
but unpaid interest thereon until all payments hereunder have been
irrevocably paid in full. As used herein, the term “
Note ” includes this Note and any Note issued, in
whole or in part, in exchange herefor or in replacement hereof. As
used herein, “ Managed Assets ” means,
collectively, all receivables owned by Triad Financial SM LLC and
all receivables serviced by Triad Financial SM LLC and owned by any
other person.
1.
Payment of Interest and Principal of Note .
(a) Payments
due hereunder are to be made by wire transfer to such bank account
of the Holder as the Holder may from time to time designate, in
lawful money of the United States of America.
(b) The
principal amount of this Note shall be due and payable on the
Maturity Date. Accrued and unpaid interest shall be paid in cash on
the last day of each March, June, September and December to occur
while the Note is outstanding, commencing on March 31,
2009.
(c) The
Company may prepay this Note, in whole or in part, at any time,
without premium or penalty. Each such prepayment shall be
accompanied by payment of all interest accrued to the date of
payment on the amount so prepaid. Any payment made under this Note
shall be applied first to interest accrued and unpaid on the
outstanding principal balance as of such date.
2.
Security . The obligations of the Company hereunder are
secured by, and the Holders is entitled to the benefits of, that
certain Pledge Agreement, dated the date hereof, by and between the
Company and the Holder (“ Pledge Agreement
”).
3.
Representations and Warranties . The Company represents and
warrants to the Holder that:
-1-
(a) the
Company is duly formed and in good standing under the laws of the
state of its formation and has the power to own its property and to
carry on its business in each jurisdiction in which it
operates;
(b) the
Company has the power and authority to execute and deliver this
Note, which has been duly authorized by all necessary requisite
action;
(c) the
execution, delivery and performance by the Company of this Note and
the consummation of the transactions contemplated hereby and the
fulfillment of the terms hereof do not conflict with, result in a
material breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default
under, the constituent documents of the Company or any indenture,
agreement, mortgage, deed of trust, or other instrument to which
the Company is a party or by which it is bound or to which any of
its properties are subject; nor, except as contemplated by the
Pledge Agreement, result in the creation or imposition of any Lien
(as defined below) upon any of its properties pursuant to the terms
of any indenture, agreement, mortgage, deed of trust or other
instrument; nor violate any law, order, rule or regulation
applicable to the Company of any court or of any federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Company or its
properties;
(d) the
Note is a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms;
(e) the
Company is not required to obtain the consent of any other party or
any consent, license, approval or authorization, or registration or
declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity or
enforceability of this Note, except those which may have been
obtained and are in full force and effect;
(f) there
are no proceedings or investigations pending or, to the
Company’s best knowledge, threatened against the Company
before any court, regulatory body, administrative agency, other
government instrumentality, arbitral tribunal or other tribunal
having jurisdiction over the Company or its properties
(i) asserting the invalidity of this Note, (ii) seeking
to prevent the consummation of any of the transactions contemplated
by this Note, or (iii) seeking any determination or ruling
that would be reasonably likely to have a Material Adverse Effect
(hereinafter defined);
(g) the
Company is not in default in the performance, observance or
fulfillment of any obligation, covenant or condition in any
agreement or instrument to which it is a party or by which it is
bound the result of which would be reasonably likely to have a
Material Adverse Effect;
(h) no
proceeds from this Note will be used, directly or indirectly, by
the Company for the purpose of purchasing or carrying any Margin
Stock (as defined in Regulation U of the Board of Governors of
the Federal Reserve System) or for the purpose of reducing or
retiring any indebtedness which was originally incurred to purchase
or carry Margin Stock or for any other purpose that might cause
this Note to be a “purpose credit” within the meaning
of Regulation U; and
(i) the
Company is not an “investment company” or a company
“controlled” by an investment company within the
meaning of the Investment Company Act of 1940, as
amended.
4.
Restriction on Indebtedness . The Company covenants and
agrees that until it has paid to the Holder in full all amounts
owing in respect of this Note, the Company shall not create, incur,
issue, assume or guarantee or otherwise become directly or
indirectly liable, contingently or otherwise, with respect to any
indebtedness, unless such indebtedness is contractually
subordinated in right of payment to the Note on terms reasonably
satisfactory to the Holder.
-2-
5.
Events of Default . If any one or more of the following
events, herein called “ Events of Default ”,
shall occur, for any reason whatsoever, and whether such occurrence
shall be voluntary or involuntary or come about or be effected by
operation of law or pursuant to or in compliance with any judgment,
decree or order of a court of competent jurisdiction or any order,
rule or regulation of any administrative or other governmental
authority, and such Event of Default shall be
continuing:
(a) default
shall be made in the payment of the principal of this Note when and
as the same shall become due and payable, whether at maturity or by
acceleration or otherwise; or
(b) default
shall be made in the payment of any installment of interest on this
Note according to its terms when and as the same shall become due
and payable; or
(c) default
shall be made in the due observance or performance of any other
covenant, condition or agreement on the part of the Company to be
observed or performed pursuant to the terms of this Note or the
Pledge Agreement, and such default shall continue for thirty
(30) days after written notice thereof, specifying such
default and requesting that the same be remedied, shall have been
given to the Company by the Holder; or
(d) the
entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an
involuntary case under the Bankruptcy Reform Act of 1978 of the
United States of America, as amended, 11 U.S.C. Sections 101,
et seq . (the “ Bankruptcy Code ”)
or any other applicable federal or state bankruptcy, insolvency or
other similar laws, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the
Company or for any substantial part of its property, or ordering
the winding-up or liquidation of any of its affairs and the
continuance of any such decree or order unstayed and in effect for
a period of sixty (60) consecutive days;
(e) the
commencement by the Company of a voluntary case under the
Bankruptcy Code or any other applicable federal or state
bankruptcy, insolvency or other similar laws, or the consent by it
to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or for any substantial part of its
property, or the making by it of any assignment for the benefit of
creditors, or the admission by the Company in writing of its
inability to pay its debts generally as such debts become due, or
the taking of corporate action by the Company in furtherance of any
such action; or
(f) the
Company or any of its subsidiaries shall (i)
|