EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE, dated as of April 29, 2005, between Triad
Financial Corporation, a California corporation (the "Company") and XX Xxxxxx
Xxxxx, N.A., as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H :
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")
(capitalized terms used herein but not otherwise defined have the meanings
ascribed thereto in the Indenture);
WHEREAS, Section 5.01 of the Indenture provides that upon the
execution and delivery by the Company to the Trustee of this Supplemental
Indenture, the Company shall be the successor to the Issuer under the Indenture
and the Notes and shall succeed to, and be substituted for, and may exercise
every right and power of, the Issuer under the Indenture and the Notes and the
Issuer shall be discharged from all obligations and covenants under the
Indenture and the Notes;
WHEREAS, Section 9.01(3) of the Indenture provides that the Issuer
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 Five of the
Indenture; and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of each of the Company and the Trustee.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders as follows:
ARTICLE I
ASSUMPTION BY SUCCESSOR COMPANY
Section 1.1. Assumption of the Notes. The Company hereby expressly
assumes and agrees promptly to pay, perform and discharge when due each and
every debt, obligation, covenant and agreement incurred, made or to be paid,
performed or discharged by the Issuer under the Indenture and the Notes.
The Company hereby agrees to be bound by all the terms, provisions
and conditions of the Indenture and the Notes and that it shall be the successor
to the Issuer and shall succeed to, and be substituted for, and may exercise
every right and power of, the Issuer, as the predecessor to the Company, under
the Indenture and the Notes.
Section 1.2. Trustee's Acceptance. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
ARTICLE II
MISCELLANEOUS
Section 2.1. Effect of Supplemental Indenture. Upon the execution
and delivery of this Supplemental Indenture by the Company and the Trustee, the
Indenture shall be supplemented in accordance herewith, and this Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of Notes heretofore or hereafter authenticated and delivered under the Indenture
shall be bound thereby.
Section 2.2. Indenture Remains in Full Force and Effect. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
Section 2.3. Indenture and Supplemental Indenture Construed
Together. This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
Section 2.4. Confirmation and Preservation of Indenture. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
Section 2.5. Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision of
the TIA that is required under the TIA to be part of and govern any provision of
this Supplemental Indenture, the provision of the TIA shall control. If any
provision of this Supplemental Indenture modifies or excludes any provision of
the TIA that may be so modified or excluded, the provision of the TIA shall be
deemed to apply to the Indenture as so modified or to be excluded by this
Supplemental Indenture, as the case may be.
Section 2.6. Severability. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 2.7. Benefits of Supplemental Indenture. Nothing in this
Supplemental Indenture or the Notes, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the Notes, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Notes.
Section 2.8. Successors. All agreements of the Company in this
Supplemental Indenture shall bind their respective successors. All agreements of
the Trustee in this Supplemental Indenture shall bind its successors.
Section 2.9. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture and the Notes relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 2.10. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
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Section 2.11. Multiple Originals. The parties may sign any number of
copies of this Supplemental Indenture, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 2.12. Headings. The Article and Section headings herein are
inserted for convenience of reference only, are not intended to be considered a
part hereof and shall not modify or restrict any of the terms or provisions
hereof.
Section 2.13. The Trustee. The Trustee shall not be responsible in
any manner for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
are made by the Company and the Issuer.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed as of the date first written above.
TRIAD FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President & Chief
Financial Officer
JPMORGAN CHASE, N.A.,
as Trustee
By: /s/ X. X'Xxxxx
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Authorized Signatory
