exv10w24






EXHIBIT 10.24




 






TRIAD FINANCIAL HOLDINGS LLC




 






LIMITED LIABILITY COMPANY AGREEMENT




Dated as of December 30, 2008



THE INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED OR UNDER ANY OTHER APPLICABLE SECURITIES
LAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME
WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH
THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.



THE INTERESTS REPRESENTED BY THIS LIMITED LIABILITY COMPANY AGREEMENT ARE SUBJECT TO RESTRICTIONS
ON TRANSFER SPECIFIED IN THIS LIMITED LIABILITY COMPANY AGREEMENT, AS AMENDED OR MODIFIED FROM TIME
TO TIME, AMONG THE ISSUER (THE “LLC”) AND CERTAIN INVESTORS, AND THE LLC RESERVES THE RIGHT TO
REFUSE THE TRANSFER OF SUCH INTERESTS UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO ANY
TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE LLC TO THE HOLDER HEREOF UPON
WRITTEN REQUEST AND WITHOUT CHARGE.





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE I CERTAIN DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	ARTICLE II ORGANIZATIONAL MATTERS	 	 	11	 
	 
	 	 	 	 	 	 
	2.1
	 	Formation	 	 	11	 
	2.2
	 	The Certificate, Etc	 	 	11	 
	2.3
	 	Name	 	 	11	 
	2.4
	 	Purpose	 	 	11	 
	2.5
	 	Powers of the LLC	 	 	11	 
	2.6
	 	Foreign Qualification	 	 	12	 
	2.7
	 	Principal Office; Registered Office	 	 	13	 
	2.8
	 	Term	 	 	13	 
	2.9
	 	No State-Law Partnership	 	 	13	 
	2.10
	 	[Intentionally Omitted]	 	 	13	 
	2.11
	 	Certification of Units	 	 	13	 
	 
	 	 	 	 	 	 
	ARTICLE III UNITS; CAPITAL ACCOUNTS	 	 	13	 
	 
	 	 	 	 	 	 
	3.1
	 	Unitholders	 	 	13	 
	3.2
	 	Unitholder Meetings	 	 	15	 
	3.3
	 	Action of Unitholders by Written Consent or Telephone Conference	 	 	17	 
	3.4
	 	Issuance of Additional Units and Interests, Preemptive Rights	 	 	18	 
	3.5
	 	Capital Accounts	 	 	19	 
	3.6
	 	Negative Capital Accounts	 	 	20	 
	3.7
	 	No Withdrawal	 	 	20	 
	3.8
	 	Loans From Unitholders	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE IV DISTRIBUTIONS; REDEMPTIONS AND ALLOCATIONS	 	 	21	 
	 
	 	 	 	 	 	 
	4.1
	 	Distributions	 	 	21	 
	4.2
	 	Redemption	 	 	22	 
	4.3
	 	Allocations Generally	 	 	22	 
	4.4
	 	Special Allocations	 	 	23	 
	4.5
	 	Tax Allocations	 	 	24	 
	4.6
	 	Indemnification and Reimbursement for Payments on Behalf of a Unitholder	 	 	24	 
	4.7
	 	Transfer of Capital Accounts	 	 	24	 
	 
	 	 	 	 	 	 
	ARTICLE V BOARD OF MANAGERS; OFFICERS	 	 	25	 
	 
	 	 	 	 	 	 
	5.1
	 	Management by the Board of Managers	 	 	25	 
	5.2
	 	Composition and Election of the Board of Managers	 	 	26	 
	5.3
	 	Board Meetings and Actions by Written Consent	 	 	29	 
	5.4
	 	Committees; Delegation of Authority and Duties	 	 	31	 
	5.5
	 	Officers	 	 	31	 
	 
	 	 	 	 	 	 
	ARTICLE VI GENERAL RIGHTS AND OBLIGATIONS OF UNITHOLDERS	 	 	33	 
	 
	 	 	 	 	 	 
	6.1
	 	Limitation of Liability	 	 	33	 






i









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	6.2
	 	Lack of Authority	 	 	34	 
	6.3
	 	No Right of Partition	 	 	34	 
	6.4
	 	Unitholders Right to Act	 	 	34	 
	6.5
	 	Conflicts of Interest	 	 	34	 
	6.6
	 	[Intentionally Omitted]	 	 	36	 
	6.7
	 	Approval Rights	 	 	36	 
	6.8
	 	Other Covenants	 	 	38	 
	6.9
	 	Nonsolicitation	 	 	40	 
	 
	 	 	 	 	 	 
	ARTICLE VII EXCULPATION AND INDEMNIFICATION	 	 	40	 
	 
	 	 	 	 	 	 
	7.1
	 	Exculpation	 	 	40	 
	7.2
	 	Right to Indemnification	 	 	40	 
	7.3
	 	Advance Payment	 	 	41	 
	7.4
	 	Indemnification of Employees and Agents	 	 	41	 
	7.5
	 	Appearance as a Witness	 	 	41	 
	7.6
	 	Nonexclusivity of Rights	 	 	41	 
	7.7
	 	Insurance	 	 	41	 
	7.8
	 	Savings Clause	 	 	42	 
	 
	 	 	 	 	 	 
	ARTICLE VIII BOOKS, RECORDS, ACCOUNTING AND REPORTS	 	 	42	 
	 
	 	 	 	 	 	 
	8.1
	 	Records and Accounting	 	 	42	 
	8.2
	 	Fiscal Year	 	 	42	 
	8.3
	 	Tax Information	 	 	42	 
	8.4
	 	Transmission of Communications	 	 	42	 
	8.5
	 	LLC Funds	 	 	42	 
	8.6
	 	Information Rights	 	 	43	 
	8.7
	 	Confidentiality	 	 	44	 
	 
	 	 	 	 	 	 
	ARTICLE IX TAXES	 	 	44	 
	 
	 	 	 	 	 	 
	9.1
	 	Tax Returns	 	 	44	 
	9.2
	 	Tax Elections	 	 	45	 
	9.3
	 	Tax Matters Partner	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE X TRANSFER OF UNITS	 	 	45	 
	 
	 	 	 	 	 	 
	10.1
	 	Transfers by Unitholders	 	 	45	 
	10.2
	 	Right of First Offer	 	 	46	 
	10.3
	 	Tag-Along Rights	 	 	47	 
	10.4
	 	Sale of the Company	 	 	48	 
	10.5
	 	Buy/Sell Arrangement	 	 	49	 
	10.6
	 	Change in Business Form	 	 	51	 
	10.7
	 	Legends	 	 	51	 
	10.8
	 	Effect of Assignment	 	 	52	 
	10.9
	 	Restriction on Transfer	 	 	52	 
	10.10
	 	Transfer Fees and Expenses	 	 	52	 
	10.11
	 	Void Transfers	 	 	52	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	 
	 	 	 	 	 	 
	ARTICLE XI WITHDRAWAL AND RESIGNATION OF UNITHOLDERS	 	 	53	 
	 
	 	 	 	 	 	 
	11.1
	 	Withdrawal and Resignation of Unitholders	 	 	53	 
	 
	 	 	 	 	 	 
	ARTICLE XII DISSOLUTION AND LIQUIDATION	 	 	53	 
	 
	 	 	 	 	 	 
	12.1
	 	Dissolution	 	 	53	 
	12.2
	 	Liquidation and Termination	 	 	53	 
	12.3
	 	Cancellation of Certificate	 	 	54	 
	12.4
	 	Reasonable Time for Winding Up	 	 	54	 
	12.5
	 	Return of Capital	 	 	54	 
	12.6
	 	Reserves Against Distributions	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE XIII VALUATION	 	 	55	 
	 
	 	 	 	 	 	 
	13.1
	 	Determination	 	 	55	 
	13.2
	 	Fair Market Value	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE XIV GENERAL PROVISIONS	 	 	55	 
	 
	 	 	 	 	 	 
	14.1
	 	Amendments	 	 	55	 
	14.2
	 	Investor Approval	 	 	56	 
	14.3
	 	Title to LLC Assets	 	 	56	 
	14.4
	 	Remedies	 	 	56	 
	14.5
	 	Successors and Assigns	 	 	56	 
	14.6
	 	Severability	 	 	56	 
	14.7
	 	Opt-in to Article 8 of the Uniform Commercial Code	 	 	57	 
	14.8
	 	Notice to Unitholder of Provisions	 	 	57	 
	14.9
	 	Counterparts	 	 	57	 
	14.10
	 	Consent to Jurisdiction	 	 	57	 
	14.11
	 	Descriptive Headings; Interpretation	 	 	57	 
	14.12
	 	Applicable Law	 	 	58	 
	14.13
	 	Mutual Waiver of Jury Trial	 	 	58	 
	14.14
	 	Addresses and Notices	 	 	58	 
	14.15
	 	Creditors	 	 	58	 
	14.16
	 	Waiver	 	 	59	 
	14.17
	 	Further Action	 	 	59	 
	14.18
	 	Offset	 	 	59	 
	14.19
	 	Entire Agreement	 	 	59	 
	14.20
	 	Delivery by Facsimile	 	 	59	 
	14.21
	 	Survival	 	 	59	 







iii











 





TRIAD FINANCIAL HOLDINGS LLC




LIMITED LIABILITY COMPANY AGREEMENT




          THIS LIMITED LIABILITY COMPANY AGREEMENT, dated as of December 30, 2008, is entered into by
and among Triad Financial Holdings LLC (the “LLC”) and the Unitholders.




          NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:




ARTICLE I




CERTAIN DEFINITIONS




     Capitalized terms used but not otherwise defined herein shall have the following meanings:



     “Acquisition Agreement” means the Stock Purchase Agreement, dated as of December 23,
2004, by and among Fairlane Credit LLC, a Delaware limited liability company, Ford Motor Credit
Company, a Delaware corporation, the Company and Purchaser, pursuant to which the Purchaser
acquired all of the outstanding stock of Triad Financial Corporation, as amended or modified from
time to time in accordance with the terms thereof.



     “Acquisition Closing” means the closing of the transactions contemplated by the
Acquisition Agreement.



     “Additional Securities” shall have the meaning set forth in Section 3.4.



     “Adjusted Capital Account Deficit” means with respect to any Capital Account as of the
end of any Taxable Year, the amount by which the balance in such Capital Account is less than zero.
For this purpose, such Person’s Capital Account balance shall be



               (i) reduced for any items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4),
(5), and (6), and



               (ii) increased for any amount such Person is obligated to contribute or is treated as being
obligated to contribute to the LLC pursuant to Treasury Regulation Section 1.704-1(b)(2)(ii)(c)
(relating to partner liabilities to a partnership) or 1.704-2(g)(1) and 1.704-2(i) (relating to
Minimum Gain).



     “Affiliate” of any particular Person means (i) any other Person controlling,
controlled by, or under common control with such particular Person, where “control” means the
possession,



1









 







directly or indirectly, of the power to direct the management and policies of a Person whether
through the ownership of voting securities, by contract, or otherwise, and (ii) if such Person is a
partnership, any partner thereof.



     “Agreement” means this Limited Liability Company Agreement, as amended or modified
from time to time in accordance with the terms hereof.



     “Approved Sale” has the meaning set forth in Section 10.4(a).



     “Authorization Date” has the meaning set forth in Section 10.2(a).



     “Board” means the Board of Managers established pursuant to Section 5.2.



     “Book Value” means, with respect to any LLC property, the LLC’s adjusted basis for
federal income tax purposes, adjusted from time to time to reflect the adjustments required or
permitted by Treasury Regulation Section 1.704-1(b)(2)(iv)(d)-(g); provided that the Book Value of
any asset contributed to the LLC shall be equal to the Fair Market Value of the contributed asset
on the date of contribution.



     “Buy/Sell Offer Notice” has the meaning set forth in Section 10.5(b).



     “Capital Account” means the capital account maintained for a Unitholder pursuant to
Section 3.5.



     “Capital Contributions” means any cash, cash equivalents, promissory obligations, or
the Fair Market Value of other property that a Unitholder contributes or is deemed to have
contributed to the LLC with respect to any Unit pursuant to Sections 3.1 or 3.4.



     “Cause” has the meaning ascribed to such term in the Management Agreement.



     “Certificate” means the LLC’s Certificate of Formation as filed with the Secretary of
State of Delaware.



     “Class A Preferred Unit” means a Unit representing a fractional part of the interest
of a Unitholder in Profits, Losses and Distributions and having the rights and obligations
specified with respect to the Class A Preferred Units in this Agreement.



     “Class A Unpaid Yield” of any Class A Preferred Unit means, as of any date, an amount
equal to the excess, if any, of (a) the aggregate Class A Yield accrued on such Class A Preferred
Unit for all periods prior to such date (including partial periods), over (b) the aggregate amount
of prior Distributions made by the LLC that constitute payment of Class A Yield on such Class A
Preferred Unit.



2









 





     “Class A Unreturned Capital” of any Class A Preferred Unit means, as of any date, the
aggregate Capital Contributions made or deemed to be made in exchange for such Class A Preferred
Unit reduced by all Distributions made by the LLC that constitute a return of Class A Unreturned
Capital under Section 4.1(a)(iii).



     “Class A Yield” means, with respect to each Class A Preferred Unit, the amount
accruing on such Class A Preferred Unit on a daily basis, at the rate of 6% per annum, compounded
on the last day of each calendar year, on (a) the Class A Unreturned Capital of such Class A
Preferred Unit plus (b) as the case may be, the Class A Unpaid Yield thereon for all prior
annual periods. In calculating the amount of any Distribution to be made during a period, the
portion of the Class A Yield with respect to such Class A Preferred Unit for the portion of the
annual period elapsing before such Distribution is made shall be taken into account in determining
the amount of such Distribution.



     “Class B Liquidation Preference” means, as of any date, an amount equal to (i)
$129,950,056 less (ii) the aggregate amount of any interest, including any interest added to the
principal amount of the New Facility in lieu of being paid in cash, theretofore paid pursuant to
the New Facility.



     “Class B Preferred Unit” means a Unit representing a fractional part of the interest
of a Unitholder in Profits, Losses and Distributions and having the rights and obligations
specified with respect to the Class B Preferred Units in this Agreement.



     “Class B Unreturned Liquidation Preference” means, as of any date, the Class B
Liquidation Preference reduced by all Distributions made by the LLC under Section
4.1(a)(i).



     “Code” means the United States Internal Revenue Code of 1986 and any successor
statute, as amended from time to time.



     “Common Unit” means a Unit representing a fractional part of the interest of a
Unitholder in Profits, Losses and Distributions and having the rights and obligations specified
with respect to the Common Units in this Agreement.



     “Company” means Triad Financial SM LLC, a Delaware limited liability company.



     “Confidential Information” has the meaning set forth in Section 8.7.



     “Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. L. § 18-101,
et seq., as it may be amended from time to time, and any successor to the Delaware Act.



     “Distribution” means each distribution made by the LLC to a Unitholder, whether in
cash, property or securities of the LLC and whether by liquidating distribution, redemption,
repurchase, or otherwise; provided that any recapitalization or exchange or conversion of



3









 







securities of the LLC, redemption of securities of the LLC pursuant to the Management
Agreement and any subdivision (by Unit split or otherwise) or any combination (by reverse Unit
split or otherwise) of any outstanding Units shall not be deemed a Distribution.



     “electronic transmission” means any form of communication not directly involving the
physical transmission of paper that creates a record that may be retained, retrieved and reviewed
by a recipient thereof and that may be directly reproduced in paper form by such a recipient
through an automated process.



     “Equity Securities” means (i) Units or other equity interests in the LLC or a
corporate successor (including other classes or groups thereof having such relative rights, powers,
and duties as may from time to time be established by the Board, including rights, powers, and/or
duties senior to existing classes and groups of Units and other equity interests in the LLC), (ii)
obligations, evidences of indebtedness, or other securities or interests convertible or
exchangeable into Units or other equity interests in the LLC or a corporate successor, and (iii)
warrants, options, or other rights to purchase or otherwise acquire Units or other equity interests
in the LLC or a corporate successor.



     “Executive Agreement” means any Executive Agreement entered into from time to time
among the LLC, the Company (or any other Subsidiaries of the LLC) and the Company’s chief executive
officer, as the same may be amended from time to time pursuant to the terms thereof.



     “Family Group” means a Unitholder’s spouse and descendants (whether natural or
adopted), and any trust, family limited partnership, limited liability company or other entity
wholly owned, directly or indirectly, by such Unitholder or such Unitholder’s spouse and/or
descendants that is and remains solely for the benefit of such Unitholder and/or such Unitholder’s
spouse and/or descendants and any retirement plan for such Unitholder.



     “Fair Market Value” means, with respect to any asset or equity interest, its fair
market value determined according to Sections 13.1 and 13.2.



     “Fiscal Quarter” means each calendar quarter ending March 31, June 30, September 30,
and December 31.



     “Fiscal Year” means the LLC’s annual accounting period established pursuant to
Section 8.2.



     “Ford Transferee” means (i) the spouse or descendants of Mr. Gerald J. Ford, (ii) a
trust, the primary beneficiaries of which are one or more Persons named in clause (i) of this
definition, (iii) any corporation in which each class of stock is at least ninety percent (90%)
owned by one or more Persons described in clause (i) or (ii) of this definition or Gerald J. Ford,
(iv) a partnership in which each class of partnership interests is at least ninety percent (90%)
owned by one or more Persons described in clause (i), (ii) or (iii) of this definition or Gerald J.
Ford, (v) a limited liability company in which each class of membership interests is at least
ninety percent



4









 







(90%) owned by one or more Persons described in clause (i), (ii) or (iii) of this definition
or Gerald J. Ford, or (vi) any of Gerald J. Ford, J. Randy Staff, Carl B. Webb or Donald J. Edwards
or any members of their respective Family Groups.



     “Goldman” means GS Capital Partners 2000, L.P., a Delaware limited partnership, GS
Capital Partners 2000 Employee Fund, L.P., a Delaware limited partnership, GSCP 2000 Offshore Triad
Holding, L.P., a Delaware limited partnership, Goldman Sachs Direct Investment Fund 2000, L.P., a
Delaware limited partnership, GSCP 2000 GmbH Triad Holding, L.P., a Delaware limited partnership,
MTGLQ Investors, L.P., a Delaware limited partnership, and GSCP 2000 Triad Holding, L.P., a
Delaware limited partnership.



     “Goldman Common Units” has the meaning set forth in Section 5.2(a)(ii).



     “Goldman Managers” has the meaning set forth in Section 5.2(a)(ii).



     “Governmental Entity” means the United States of America or any other nation, any
state or other political subdivision thereof, or any entity exercising executive, legislative,
judicial, regulatory or administrative functions of government or any agency or department or
subdivision of any governmental authority, including the United States federal government or any
state or local government.



     “GTCR” means (i) GTCR LLC, and (ii) any investment fund managed by GTCR LLC or GTCR
Golder Rauner II, L.L.C. that receives Units pursuant to the THI Liquidation.



     “GTCR Common Units” has the meaning set forth in Section 5.2(a)(iii).



     “GTCR LLC” means GTCR Golder Rauner, L.L.C., a Delaware limited liability company.



     “GTCR Managers” has the meaning set forth in Section 5.2(a)(iii).



     “HGF” means Hunter’s Glen/Ford Ltd., a Texas limited partnership.



     “HGF Buy Option” has the meaning set forth in Section 10.5(c).



     “HGF Common Units” has the meaning set forth in Section 5.2(a)(iv).



     “HGF Managers” has the meaning set forth in Section 5.2(a)(iv).



     “HGF Sell Option” has the meaning set forth in Section 10.5(c).



5









 





     “High Yield Debt” means the $150 million aggregate principal amount of 11.125% Senior
Notes due 2013 originally issued under the indenture dated as of the Initial Closing Date, among
the Purchaser, as issuer, and The Bank of New York Mellon, as successor to JPMorgan Chase Bank,
N.A., as trustee, as amended or modified from time to time in accordance with the terms thereof.



     “HSR Act” has the meaning set forth in Section 6.8(e).



     “Indebtedness” means at a particular time, without duplication, (i) any indebtedness
for borrowed money or issued in substitution for or exchange of indebtedness for borrowed money,
(ii) any indebtedness evidenced by any note, bond, debenture or other debt security, (iii) any
indebtedness for the deferred purchase price of property or services with respect to which a Person
is liable, contingently or otherwise, as obligor or otherwise (other than trade payables and other
current liabilities incurred in the ordinary course of business), and (iv) any commitment by which
a Person assures a creditor against loss (including contingent reimbursement obligations with
respect to letters of credit).



     “Initial Closing Date” means April 29, 2005.



     “Initial Managers” has the meaning set forth in Section 5.2(a)(i).



     “Investments” as applied to any Person means (i) any direct or indirect purchase or
other acquisition by such Person of any notes, obligations, instruments, stock, securities or
ownership interest (including partnership interests and joint venture interests) of any other
Person and (ii) any capital contribution by such Person to any other Person.



     “Investor Members” means Goldman, GTCR, HGF and their respective Affiliates,
collectively.



     “Liens” means any mortgage, pledge, security interest, encumbrance, lien, or charge of
any kind (including, without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof), any sale of receivables with recourse against the LLC, any Subsidiary
or any Affiliate thereof, any filing or agreement to file a financing statement as debtor under the
Uniform Commercial Code or any similar statute other than to reflect ownership by a third party of
property leased to the LLC, any Subsidiary or any Affiliate under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination arrangement in
favor of another Person (other than any subordination arising in the ordinary course of business).



     “LLC” means Triad Financial Holdings LLC, a Delaware limited liability company.



     “Losses” means items of LLC loss and deduction determined according to Section
3.5(b).



     “Management Agreement” means the Management Agreement, dated as of the Initial Closing
Date, as amended and restated as of the date hereof, by and among the LLC, the



6









 







Company and HGF, as the same may be amended from time to time pursuant to the terms thereof.



     “Manager” means a current manager on the Board, who, for purposes of the Delaware Act,
will be deemed a “manager” (as defined in the Delaware Act) but will be subject to the rights,
obligations, limitations and duties set forth in this Agreement.



     “Minimum Gain” means the partnership minimum gain determined pursuant to Treasury
Regulation Section 1.704-2(d).



     “New Facility” means a borrowing facility that is in effect from time to time that is
on terms no more materially adverse to the Company and its subsidiaries than those outlined in that
certain term sheet attached to a letter from Goldman dated May 15, 2008, including, without
limitation, the Senior Unsecured Demand Notes.



     “Non-HGF Investors” has the meaning set forth in Section 10.5(b).



     “Offer Notice” has the meaning set forth in Section 10.2(a).



     “Officers” means each person designated as an officer of the LLC to whom authority and
duties have been delegated pursuant to Section 5.5, subject to any resolution of the Board
appointing such person as an officer or relating to such appointment.



     “Permitted Transferee” means (i) with respect to any Unitholder who is a natural
person, a member of such Unitholder’s Family Group, (ii) with respect to any Unitholder which is an
entity, any of such Unitholder’s Affiliates, and (iii) with respect to HGF only, a Ford Transferee.



     “Person” means an individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint venture, an unincorporated
organization, any other business entity, or a Governmental Entity.



     “Proceeding” has the meaning set forth in Section 7.2.



     “Profits” means items of LLC income and gain determined according to Section
3.5(b).



     “Public Offering” means any sale of the common equity securities of the LLC (or a
successor thereto) pursuant to an effective registration statement under the Securities Act filed
with the Securities and Exchange Commission; provided that the following shall not be
considered a Public Offering: (i) any issuance of common equity securities as consideration for a
merger or acquisition, and (ii) any issuance of common equity securities or rights to acquire
common equity securities to employees of the LLC or its Subsidiaries as part of an incentive or
compensation plan.



7









 





     “Public Sale” means any sale of Equity Securities (i) to the public pursuant to an
offering registered under the Securities Act or (ii) to the public through a broker, dealer or
market maker pursuant to the provisions of Rule 144 (or any similar provision then in effect)
adopted under the Securities Act (other than Rule 144(k) prior to a Public Offering).



     “Purchaser” means Triad Acquisition Corp., a Delaware corporation and wholly owned
subsidiary of THI.



     “Qualified IPO” means an underwritten initial Public Offering of the common stock of a
corporate successor to the LLC or a Subsidiary of the LLC (including, without limitation, the
Company) with gross proceeds of at least $50.0 million in a firm commitment underwriting.



     “Regulatory Allocations” has the meaning set forth in Section 4.4(e).



     “Required Interest” means a majority of the Voting Units, voting together as a single
class.



     “Restricted Securities” means (i) the Securities initially issued to the initial
Unitholder and (ii) any securities issued with respect to the securities referred to in clause
(i) above by way of a unit dividend or unit split or in connection with a combination of units,
recapitalization, merger, consolidation or other reorganization. As to any particular Restricted
Securities, such securities shall cease to be Restricted Securities when they have (a) been
effectively registered under the Securities Act and disposed of in accordance with the registration
statement covering them, (b) become eligible for sale pursuant to Rule 144(k) (or any similar
provision then in force) under the Securities Act or (c) been otherwise transferred and new
certificates for them not bearing the Securities Act legend set forth in Section 10.7(b)
have been delivered by the LLC in accordance with Section 6.8(c)(ii). Whenever any
particular securities cease to be Restricted Securities, the holder thereof shall be entitled to
receive from the LLC, without expense, new securities of like tenor not bearing a Securities Act
legend of the character set forth in Section 10.7(b).



     “Sale of the Company” means any transaction or series of transactions pursuant to
which any Person or group of related Persons (other than any of the Investor Members) in the
aggregate acquire(s) (i) equity securities of the LLC or the Company possessing the voting power
(other than voting rights accruing only in the event of a default or breach) to elect a majority of
the LLC’s board of managers or a majority of the Company’s board of directors (whether by merger,
liquidation, consolidation, reorganization, combination, sale or transfer of equity securities,
securityholder or voting agreement, proxy, power of attorney or otherwise) or (ii) all or
substantially all of the LLC’s or the Company’s assets determined on a consolidated basis, but
excluding sales of motor vehicle installment sales contracts and installment loans in the ordinary
course of the Company’s business; provided that a Public Offering shall not constitute a
Sale of the Company.



     “Securities” means notes, stocks, bonds, debentures, evidences of indebtedness,
certificates of interest or participation in any profit-sharing agreement, partnership interests,



8









 







beneficial interests in trusts, collateral-trust certificates, pre-organization certificates
or subscriptions, transferable shares, investment contracts, voting-trust certificates,
certificates of deposit for securities, certificates of equity interests, notional principal
contracts and certificates of interest or participation in, temporary or interim certificates for,
receipts for or warrants or rights or options to subscribe to or purchase or sell any of the
foregoing, and any other items commonly referred to as securities.



     “Securities Act” means the Securities Act of 1933, as amended, and applicable rules
and regulations thereunder, and any successor to such statute, rules, or regulations. Any
reference herein to a specific section, rule, or regulation of the Securities Act shall be deemed
to include any corresponding provisions of future law.



     “Selling Unitholder” has the meaning set forth in Section 10.2(a).



     “Senior Unsecured Demand Notes” means, collectively (i) the Senior Unsecured Demand
Promissory Note between Triad Financial Corporation and HGF and (ii) the Senior Unsecured Demand
Promissory Note between Triad Financial Corporation and GTCR, in each case in the forms attached
hereto as Exhibit A.



     “Subsidiary” means, with respect to any Person, any corporation, limited liability
company, partnership, association, or business entity of which (i) if a corporation, a majority of
the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, or trustees thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited liability company,
partnership, association, or other business entity (other than a corporation), a majority of
partnership or other similar ownership interest thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination
thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association, or other business entity (other
than a corporation) if such Person or Persons shall be allocated a majority of limited liability
company, partnership, association, or other business entity gains or losses or shall be or control
any managing director or general partner of such limited liability company, partnership,
association, or other business entity. For purposes hereof, references to a “Subsidiary”
of any Person shall be given effect only at such times that such Person has one or more
Subsidiaries, and, unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary
of the LLC.



     “Tag-Along Notice” has the meaning set forth in Section 10.3(a).



     “Tag-Along Unitholders” has the meaning set forth in Section 10.3(a).



     “Tax Distribution” has the meaning set forth in Section 4.1(b).



     “Tax Matters Partner” has the meaning set forth in Section 9.3.



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     “Taxable Year” means the LLC’s Fiscal Year unless the Board determines otherwise in
compliance with applicable laws.



     “THI” means Triad Holdings Inc., a Delaware corporation.



     “THI Liquidation” means the liquidation and dissolution of THI, on or around the date
hereof, pursuant to which, among other things, Units shall be distributed by THI to the Investor
Members and certain other recipients of the Common Units. The THI Liquidation shall be deemed to
occur upon the date of such distribution.



     “Transaction Documents” means this Agreement, and all other agreements, instruments,
certificates, and other documents to be entered into or delivered by any Unitholder in connection
with the transactions contemplated to be consummated pursuant to this Agreement, and any side
agreements related to the foregoing.



     “Transfer” means any sale, transfer, assignment, pledge, mortgage, exchange,
hypothecation, grant of a security interest or other direct or indirect disposition or encumbrance
of an interest (including, without limitation, by operation of law) or the acts thereof, but
explicitly excluding conversions or exchanges of one class of Unit to or for another class of Unit.
The terms “Transferee,” “Transferred,” and other forms of the word
“Transfer” shall have correlative meanings.



     “Transferring Unitholders” has the meaning set forth in Section 10.3(a).



     “Treasury Regulations” means the income tax regulations promulgated under the Code and
in effect from time to time.



     “Triad Financial SM LLC Agreement” means the limited liability agreement of the
Company, dated as of December 29, 2008, by and among the LLC and the unitholders party thereto from
time to time, as amended from time to time.



     “Triggering Event” has the meaning set forth in Section 10.5(a).



     “Units” means Class A Preferred Units, Class B Preferred Units and Common Units.



     “Unitholder” means any owner of one or more Units as reflected on the LLC’s books and
records.



     “Voting Units” means the Common Units and the Class B Preferred Units; provided that
any Unitholder may by written notice to the Company or the other Unitholders voluntarily relinquish
its voting rights in respect of any Common Units or Class B Preferred Units, in which case such
Units shall thereafter no longer be considered Voting Units for any purpose herein or otherwise
have a right to vote on any matter.




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ARTICLE II




ORGANIZATIONAL MATTERS




          2.1 Formation. The LLC has been organized as a Delaware limited liability company by the
filing with the Secretary of State of the State of Delaware of the Certificate under and pursuant
to the Delaware Act and shall be continued in accordance with this Agreement.




          2.2 The Certificate, Etc. The Certificate was filed with the Secretary of State of the
State of Delaware on December 22, 2008. The Unitholders hereby agree to execute, file and record
all such other certificates and documents, including amendments to the Certificate, and to do such
other acts as may be appropriate to comply with all requirements for the formation, continuation
and operation of a limited liability company, the ownership of property, and the conduct of
business under the laws of the State of Delaware and any other jurisdiction in which the LLC may
own property or conduct business.




          2.3 Name. The name of the LLC shall be “Triad Financial Holdings LLC.” The Board in its
sole discretion may change the name of the LLC at any time and from time to time. Notification of
any such change shall be given to all Unitholders. The LLC’s business may be conducted under its
name and/or any other name or names deemed advisable by the Board.




          2.4 Purpose. The purpose and business of the LLC shall be to engage in any lawful act or
activity which may be conducted by a limited liability company formed pursuant to the Delaware Act
and engaging in all activities necessary or incidental to the foregoing. Notwithstanding anything
herein to the contrary, nothing set forth herein shall be construed as authorizing the LLC to
possess any purpose or power, or to do any act or thing, forbidden by law to a limited liability
company organized under the laws of the State of Delaware.




          2.5 Powers of the LLC. Subject to the provisions of this Agreement and the agreements
contemplated hereby, the LLC shall have the power and authority to take any and all actions
necessary, appropriate, proper, advisable, convenient or incidental to or for the furtherance of
the purposes set forth in Section 2.4, including the power:




          (a) to conduct its business, carry on its operations and have and exercise the powers granted
to a limited liability company by the Delaware Act in any state, territory, district or possession
of the United States, or in any foreign country that may be necessary, convenient or incidental to
the accomplishment of the purpose of the LLC;




          (b) to acquire by purchase, lease, contribution of property or otherwise, own, hold, operate,
maintain, finance, refinance, improve, lease, sell, convey, mortgage, transfer, demolish or dispose
of any real or personal property that may be necessary, convenient or incidental to the
accomplishment of the purpose of the LLC;




          (c) to enter into, perform and carry out contracts of any kind, including contracts with any
Unitholder or any Affiliate thereof, or any agent of the LLC necessary to, in connection with,
convenient to or incidental to the accomplishment of the purpose of the LLC;




11









 








          (d) to purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use,
employ, sell, mortgage, lend, pledge, or otherwise dispose of, and otherwise use and deal in and
with, shares or other interests in or obligations of domestic or foreign corporations,
associations, general or limited partnerships (including the power to be admitted as a partner
thereof and to exercise the rights and perform the duties created thereby), trusts, limited
liability companies (including the power to be admitted as a unitholder or appointed as a manager
thereof and to exercise the rights and perform the duties created thereby) or individuals or direct
or indirect obligations of the United States or of any government, state, territory, governmental
district or municipality or of any instrumentality of any of them;




          (e) to lend money for any proper purpose, to invest and reinvest its funds and to take and
hold real and personal property for the payment of funds so loaned or invested;




          (f) to sue and be sued, complain and defend, and participate in administrative or other
proceedings in its name;




          (g) to appoint employees and agents of the LLC and define their duties and fix their
compensation;




          (h) to indemnify any Person in accordance with the Delaware Act and to obtain any and all
types of insurance;




          (i) to cease its activities and cancel its Certificate;




          (j) to negotiate, enter into, renegotiate, extend, renew, terminate, modify, amend, waive,
execute, acknowledge or take any other action with respect to any lease, contract or security
agreement in respect of any assets of the LLC;




          (k) to borrow money and issue evidences of indebtedness and guaranty indebtedness (whether of
the LLC or any of its Subsidiaries), and to secure the same by a mortgage, pledge or other lien on
the assets of the LLC;




          (l) to pay, collect, compromise, litigate, arbitrate or otherwise adjust or settle any and all
other claims or demands of or against the LLC or to hold such proceeds against the payment of
contingent liabilities; and




          (m) to make, execute, acknowledge and file any and all documents or instruments necessary,
convenient or incidental to the accomplishment of the purpose of the LLC.




          2.6 Foreign Qualification. Prior to the LLC’s conducting business in any jurisdiction
other than Delaware, the Board shall cause the LLC to comply, to the extent procedures are
available and those matters are reasonably within the control of the Board, with all requirements
necessary to qualify the LLC as a foreign limited liability company in that jurisdiction. At the
request of the Board or any Officer, each Unitholder shall execute, acknowledge, swear to and
deliver all certificates and other instruments conforming with this Agreement that are necessary or
appropriate to qualify, continue and terminate the LLC as a foreign limited liability company in
all such jurisdictions in which the LLC may conduct business.




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          2.7 Principal Office; Registered Office. The principal office of the LLC shall be located
at 200 Crescent Court, Suite 1350, Dallas, Texas 75201, or at such other place as the Board may
from time to time designate, and all business and activities of the LLC shall be deemed to have
occurred at its principal office. The LLC may maintain offices at such other place or places as
the Board deems advisable. Notification of any such change shall be given to all Unitholders. The
registered office of the LLC required by the Delaware Act to be maintained in the State of Delaware
shall be the office of the initial registered agent named in the Certificate or such other office
(which need not be a place of business of the LLC) as the Board may designate from time to time in
the manner provided by law. The registered agent of the LLC in the State of Delaware shall be the
initial registered agent named in the Certificate or such other Person or Persons as the Board may
designate from time to time in the manner provided by law.




          2.8 Term. The term of the LLC commenced upon the filing of the Certificate in accordance
with the Delaware Act and shall continue in existence until termination and dissolution thereof in
accordance with the provisions of Article XIII.




          2.9 No State-Law Partnership. The Unitholders intend that the LLC not be a partnership
(including, without limitation, a limited partnership) or joint venture, and that no Unitholder be
a partner or joint venturer of any other Unitholder by virtue of this Agreement (except for tax
purposes as set forth in the next succeeding sentence of this Section 2.9), and neither
this Agreement nor any other document entered into by the LLC or any Unitholder relating to the
subject matter hereof shall be construed to suggest otherwise. The Unitholders currently intend
that the LLC shall be treated as a partnership for federal and, if applicable, state or local
income tax purposes, and that each Unitholder and the LLC shall file all tax returns and shall
otherwise take all tax and financial reporting positions in a manner consistent with such
treatment.




          2.10 [Intentionally Omitted].




          2.11 Certification of Units. The LLC may in its discretion issue certificates to the Unitholders representing the Units
held by each Unitholder.




ARTICLE III




UNITS; CAPITAL ACCOUNTS




          3.1 Unitholders.




          (a) General. Each Person named on Schedule A attached hereto has made Capital
Contributions to the LLC as set forth on Schedule A in exchange for the Units specified
thereon, and each Unitholder’s initial Capital Account established pursuant to such Capital
Contributions is set forth on Schedule A. In connection with the THI Liquidation,
Schedule A shall be amended to reflect such liquidation and the new Unitholders in
connection therewith, and each new Unitholder’s Capital
Account shall be stated as the fair market
value of such Unit on such date. Any reference in this Agreement to Schedule A shall be
deemed to be a reference to Schedule A as amended and in effect from time to time. The LLC
and each Unitholder shall file all tax returns, including any schedules thereto, in a manner
consistent with such initial Capital




13









 







Accounts. Each Person listed on Schedule A upon (i)
his, her or its execution of this Agreement or a counterpart thereto and (ii) receipt (or deemed
receipt) by the LLC of such Person’s Capital Contribution as set forth on Schedule A, is
hereby admitted to the LLC as a Unitholder of the LLC. Each Unitholder’s interest in the LLC,
including such Unitholder’s interest in Profits, Losses and Distributions of the LLC and the right
to vote on certain matters as provided in this Agreement, shall be represented by the Units owned
by such Unitholder. The ownership of Units shall entitle each Unitholder to allocations of Profits
and Losses and other items and distributions of cash and other property as set forth in Article
IV hereof. The Board may in its discretion issue certificates to the Unitholders representing
the Units held by each Unitholder.




          (b) Representations and Warranties of Unitholders. Each Unitholder hereby represents
and warrants to the LLC and acknowledges that: (i) such Unitholder has knowledge and experience in
financial and business matters and is capable of evaluating the merits and risks of an investment
in the LLC and making an informed investment decision with respect thereto; (ii) such Unitholder
has reviewed and evaluated all information necessary to assess the merits and risks of his, her or
its investment in the LLC and has had answered to such Unitholder’s satisfaction any and all
questions regarding such information; (iii) such Unitholder is able to bear the economic and
financial risk of an investment in the LLC for an indefinite period of time; (iv) such Unitholder
is acquiring interests in the LLC for investment only and not with a view to, or for resale in
connection with, any distribution to the public or public offering thereof; (v) the interests in
the LLC have not been registered under the securities laws of any jurisdiction and cannot be
disposed of unless they are subsequently registered and/or qualified under applicable securities
laws and the provisions of this Agreement have been complied with; (vi) to the extent applicable,
the execution, delivery and performance of this Agreement have been duly authorized by such
Unitholder and do not require such Unitholder to obtain any consent or approval that has not been
obtained and do not contravene or result in a default under any provision of any law or regulation
applicable to such Unitholder or other governing documents or any agreement or
instrument to which such Unitholder is a party or by which such Unitholder is bound; (vii) the
determination of such Unitholder to purchase interests in the LLC has been made by such Unitholder
independent of any other Unitholder and independent of any statements or opinions as to the
advisability of such purchase, which may have been made or given by any other Unitholder or by any
agent or employee of any other Unitholder; (viii) the interests in the LLC were not offered to such
Unitholder by means of general solicitation or general advertising; and (ix) this Agreement is
valid, binding and enforceable against such Unitholder in accordance with its terms.




          (c) No Liability of Unitholders.




               (i) No Liability. Except as otherwise required by applicable law and as expressly set
forth in this Agreement, no Unitholder shall have any personal liability whatsoever in such
Unitholder’s capacity as a Unitholder, whether to the LLC, to any of the other Unitholders, to the
creditors of the LLC or to any other third party, for the debts, liabilities, commitments or any
other obligations of the LLC or for any losses of the LLC. Each Unitholder shall be liable only to
make such Unitholder’s Capital Contribution to the LLC and the other payments provided expressly
herein.



14









 





               (ii) Distribution. In accordance with the Delaware Act and the laws of the State of
Delaware, a Unitholder of a limited liability company may, under certain circumstances, be required
to return amounts previously distributed to such Unitholder. It is the intent of the Unitholders
that no distribution to any Unitholder pursuant to Article IV hereof shall be deemed a
return of money or other property paid or distributed in violation of the Delaware Act. The
payment of any such money or distribution of any such property to a Unitholder shall be deemed to
be a compromise within the meaning of the Delaware Act, and the Unitholder receiving any such money
or property shall not be required to return to any Person any such money or property. However, if
any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement,
any Unitholder is obligated to make any such payment, such obligation shall be the obligation of
such Unitholder and not of any other Unitholder.



          3.2 Unitholder Meetings.




          (a) Voting of Unitholders. A quorum shall be present at a meeting of Unitholders if
the Unitholders holding the Required Interest are represented at the meeting in person or by proxy.
With respect to any matter, other than a matter for which the affirmative vote of the holders of a
specified portion of all Unitholders entitled to vote is required by the Delaware Act or by this
Agreement, the affirmative vote of the Unitholders holding the Required Interest at a meeting of
Unitholders at which a quorum is present shall be the act of the Unitholders.




          (b) Place. All meetings of the Unitholders shall be held at the principal place of
business of the LLC or at such other place within or without the State of Delaware as shall be
specified or fixed in the notices or waivers of notice thereof; provided that any or all
Unitholders may participate in any such meeting by means of conference telephone or similar
communications equipment pursuant to Section 3.3(d).




          (c) Adjournment. Notwithstanding the other provisions of the Certificate or this
Agreement, the chairman of the meeting or the Unitholders holding the Required Interest shall have
the power to adjourn such meeting from time to time, without any notice other than announcement at
the meeting of the time and place of the holding of the adjourned meeting. If such meeting is
adjourned by the Unitholders, such time and place shall be determined by a vote of the Unitholders
holding the Required Interest. Upon the resumption of such adjourned meeting, any business may be
transacted that might have been transacted at the meeting as originally called.




          (d) Annual Meeting. An annual meeting of the Unitholders, for the transaction of such
business as may properly come before the meeting, shall be held at such place, within or without
the State of Delaware, on such date and at such time as the Board shall fix and set forth in the
notice of the meeting, which date shall be within 18 months subsequent to the date of organization
of the LLC or the last annual meeting of Unitholders, whichever most recently occurred.




          (e) Special Meetings. Special meetings of the Unitholders for any proper purpose or
purposes may be called at any time by the Board or the Unitholders holding the Required Interest.
If not otherwise stated in or fixed in accordance with the remaining provisions hereof, the record
date for determining Unitholders entitled to call a special meeting is the date any




15









 







Unitholder
first signs the notice of that meeting. Only business within the purpose or purposes described in
the notice (or waiver thereof) required by this Agreement may be conducted at a special meeting of
the Unitholders.




          (f) Notice. A written or printed notice stating the place, day and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered not less than one or more than 30 days before the date of the meeting,
either personally or by mail, facsimile or electronic transmission, by or at the direction of the
Board or the Unitholders calling the meeting to each Unitholder. If mailed, any such notice shall
be deemed to be delivered two business days after it is deposited in the United States mail,
addressed to the Unitholder at its address provided for in the LLC’s books and records, or to such
other address or to the attention of such other person as the recipient party has specified by
prior written notice to the sending party.




          (g) Record Date. The date on which notice of a meeting of Unitholders is mailed or
the date on which the resolution of the Board declaring a distribution is adopted, as the case may
be, shall be the record date for the determination of the Unitholders entitled to notice of or to
vote at such meeting (including any adjournment thereof) or the Unitholders entitled to receive
such distribution.




          (h) Required Interest. Except as otherwise expressly provided for in this Agreement,
all matters to be voted on pursuant to this Agreement shall require the vote of Unitholders holding
the Required Interest, which vote shall only be valid and binding if a notice of the meeting at
which such vote is taken is given to all Unitholders in accordance with Section 3.2(f).




          (i) Proxies. A Unitholder may vote either in person or by proxy executed in writing
by the Unitholder. Any such proxy may be granted in writing, by means of electronic transmission
or as otherwise permitted by applicable law. A consent transmitted by electronic transmission by a
Unitholder or by a person or persons authorized to act for a Unitholder shall be deemed to be
written and signed for purposes of this Agreement. A photographic, photostatic, facsimile or
similar reproduction of a writing executed by the Unitholder shall be treated as an execution in
writing for purposes of this Section 3.2(i). Proxies for use at any meeting of Unitholders
or in connection with the taking of any action by written consent pursuant to Section 3.3
shall be filed with the Secretary of the LLC, before or at the time of the meeting or execution of
the written consent as the case may be. All proxies shall be received and taken charge of and all
ballots shall be received and canvassed by the Secretary of the LLC, who shall decide all questions
concerning the qualification of voters, the validity of the proxies and the acceptance or rejection
of votes, unless an inspector or inspectors shall have been appointed by the chairman of the
meeting, in which event such inspector or inspectors shall decide all such questions. No proxy
shall be valid after 11 months from the date of its execution unless otherwise provided in the
proxy. A proxy shall be revocable unless the proxy form conspicuously states that the proxy is
irrevocable and the proxy is coupled with an interest. Should a proxy designate two or more
Persons to act as proxies, unless that instrument shall provide to the contrary, a majority of such
Persons present at any meeting at which their powers thereunder are to be exercised shall have and
may exercise all the powers of voting or giving consents thereby conferred, or if only one be
present, then such powers may be exercised by that one; or, if an even number attend and a



16









 






majority
do not agree on any particular issue, the LLC shall not be required to recognize such proxy with
respect to such issue if such proxy does not specify how the Units that are the subject of such
proxy are to be voted with respect to such issue.




          (j) Conduct of Unitholder Meetings. All meetings of the Unitholders shall be presided
over by the chairman of the meeting, who shall be one of the Chairman or Vice Chairman (or a
representative thereof). The chairman of any meeting of Unitholders shall determine the order of
business and the procedure at the meeting, including such regulation of the manner of voting and
the conduct of discussion as seem to him in order.




          (k) Voting Rights. The holders of the Voting Units shall be entitled to notice of all
Unitholder meetings in accordance with this Agreement, and except as otherwise required by law, the
holders of the Voting Units shall be entitled to vote on all matters submitted to the Unitholders
for a vote with each Common Unit entitled to one vote, and each Class B Preferred Unit entitled to
one vote, voting together as a single class for all purposes except as expressly provided herein.
Except as otherwise required by this Agreement or by law, the holders of Class A Preferred Units
shall not be entitled to a vote on matters submitted to the Unitholders for a vote.




          3.3 Action of Unitholders by Written Consent or Telephone Conference.




          (a) Written Consent in Lieu of Meeting. Any action required or permitted to be taken
at any annual or special meeting of Unitholders may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the Unitholder or Unitholders holding not less than the minimum
percentages of Units that would be necessary to take such action at a meeting at which all
Unitholders entitled to vote on the action were present and voted. Every written consent shall
bear the date of signature of each Unitholder who signs the consent. No written consent shall be
effective to take the action that is the subject to the consent unless, within 60 days after the
date of the earliest dated consent delivered to the LLC in the manner required by this Section
3.3(a), a consent or consents signed by the Unitholder or Unitholders holding not less than the
minimum Units that would be necessary to take the action that is the subject of the consent are
delivered to the LLC by delivery to its registered office, its principal place of business or the
chief executive officer. Delivery shall be by hand or certified or registered mail, return receipt
requested. Delivery to the LLC’s principal place of business shall be addressed to the chief
executive officer. An electronic transmission by a Unitholder, or a photographic, photostatic,
facsimile or similar reproduction of a writing signed by a Unitholder, shall be regarded as signed
by the Unitholder for purposes of this Section 3.3(a). Prompt notice of the taking of any
action by Unitholders without a meeting by less than unanimous written consent shall be given to
those Unitholders who did not consent in writing to the action.




          (b) Record Date for Written Consent in Lieu of Meeting. The record date for
determining Unitholders entitled to consent to action in writing without a meeting shall be the
first date on which a signed written consent setting forth the action taken or proposed to be taken
is delivered to the LLC by delivery to its registered office, its principal place of business, or
the chief executive officer. Delivery shall be by hand or by certified or registered mail, return




17









 







receipt requested. Delivery to the LLC’s principal place of business shall be addressed to the
chief executive officer.




          (c) Filings. If any action by Unitholders is taken by written consent, any
certificate or documents filed with the Secretary of State of Delaware as a result of the taking of
the action shall state, in lieu of any statement required by the Delaware Act concerning any vote
of Unitholders, that written consent has been given in accordance with the provisions of the
Delaware Act and that any written notice required by the Delaware Act has been given.




          (d) Telephone Conference. Unitholders may participate in and hold a meeting by means
of conference telephone or similar communications equipment by means of which all Persons
participating in the meeting can hear each other, and participation in such meeting shall
constitute attendance and presence in person at such meeting, except where a Person participates in
the meeting for the express purpose of objecting to the transaction of any business on the ground
that the meeting is not lawfully called or convened.




          3.4 Issuance of Additional Units and Interests, Preemptive Rights.



          (a) Additional Securities. Subject to compliance with the provisions of this
Agreement, the Board shall have the right to cause the LLC to issue or sell to any Person
(including Unitholders and Affiliates) any of the following (which for purposes of this Agreement
shall be “Additional Securities”): (i) additional Units or other interests in the LLC
(including other classes or series thereof having different rights), (ii) obligations, evidences of
indebtedness, or other securities or interests convertible or exchangeable into Units or other
interests in the LLC, and (iii) warrants, options, or other rights to purchase or otherwise acquire
Units or other interests in the LLC. Subject to the provisions of this Agreement, the Board shall
determine the terms and conditions governing the issuance of such Additional Securities, including
the number and designation of such Additional Securities, the preference (with respect to
distributions, liquidations, or otherwise) over any other Units and any required contributions in
connection therewith. Any Person who acquires Units will be admitted to the LLC as a Unitholder
pursuant to the terms of this Agreement. If any Person acquires additional Units or other
interests in the LLC, Schedule A shall be amended to reflect such issuance or transfer, as
the case may be.




          (b) Preemptive Rights.




               (i) If the LLC authorizes the issuance or sale of any Units or other Equity Securities (other
than as a dividend or distribution on the outstanding Units or an issuance upon consummation of a
Sale of the Company or a Public Offering), the LLC shall first offer to sell to each holder of
Common Units or Class B Preferred Units who is an “accredited investor” as defined in Rule 501(e)
under the Securities Act, a portion of such securities equal to the quotient determined by dividing
(1) the number of Voting Units held by such holder by (2) the number of Voting Units then issued
and outstanding. Each holder of Voting Units shall be entitled to purchase such Units or Equity
Securities at the most favorable price and on the most favorable terms as such units or securities
are to be offered to any other Persons; provided that if all Persons entitled to purchase or
receive such Units or Equity Securities are required to also purchase other Securities of the LLC,
the holders of Voting Units exercising their rights pursuant



18









 




to this paragraph shall also be
required to purchase the same strip of Securities (on the same terms and conditions) that such
other Persons are required to purchase. The purchase price for all Securities offered to the
holders of the Voting Units shall be payable in cash (or such other consideration as was proposed
by the LLC initially).




               (ii) In order to exercise its purchase rights hereunder, a holder of Voting Units must within
15 days after receipt of written notice from the LLC describing in reasonable detail the Securities
being offered, the purchase price thereof, the payment terms and such holder’s ratable share
deliver a written notice to the LLC describing its election as to (A) whether and to what extent
such holder desires to purchase its ratable share and (B) if such holder elects to purchase its
full ratable share, whether and to what extent such holder desires to purchase an additional amount
of the securities being offered if all of the securities offered to the Unitholders are not fully
subscribed.



               (iii) Upon the expiration of the offering period described above, the LLC shall be entitled to
sell such Securities which the holders of Common Units or Class B Preferred Units have not elected
to purchase during the 90 days following such expiration on terms and conditions no more favorable
to the purchasers thereof than those offered to such holders. Any such Securities offered or sold
by the LLC after such 90-day period must be reoffered to the holders of Common Units or Class B
Preferred Units pursuant to the terms of this Section 3.4(b).



               (iv) The rights of the holders of Common Units or Class B Preferred Units under this
Section 3.4(b) shall terminate immediately prior to the consummation of a Sale of the
Company or a Qualified IPO.



          3.5 Capital Accounts.




          (a) The LLC shall maintain a separate Capital Account for each Unitholder according to the
rules of Treasury Regulation Section 1.704-1(b)(2)(iv). For this purpose, the LLC may (in the
discretion of the Board), upon the occurrence of the events specified in Treasury Regulation
Section 1.704-1(b)(2)(iv)(f), increase or decrease the Capital Accounts in accordance with the
rules of such regulation and Treasury Regulation Section 1.704-1(b)(2)(iv)(g) to reflect a
revaluation of LLC property. Without limiting the foregoing, each Unitholder’s Capital Account
shall be adjusted:




               (i) by adding any additional Capital Contributions made by such Unitholder in consideration
for the issuance of Units;



               (ii) by deducting any amounts paid to such Unitholder in connection with the redemption or
other repurchase by the LLC of Units;



               (iii) by adding any Profits allocated in favor of such Unitholder and subtracting any Losses
allocated in favor of such Unitholder; and



               (iv) by deducting any distributions paid in cash or other assets to such Unitholder by the
LLC.



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          (b) For purposes of computing the amount of any item of LLC income, gain, loss, or deduction
to be allocated pursuant to Article IV and to be reflected in the Capital Accounts, the
determination, recognition, and classification of any such item shall be the same as its
determination, recognition, and classification for federal income tax purposes (including any
method of depreciation, cost recovery, or amortization used for this purpose); provided
that:




               (i) The computation of all items of income, gain, loss, and deduction shall include those
items described in Code Section 705(a)(l)(B) or Code Section 705(a)(2)(B) and Treasury Regulation
Section 1.704-1(b)(2)(iv)(i), without regard to the fact that such items are not includable in
gross income or are not deductible for federal income tax purposes.



               (ii) If the Book Value of any LLC property is adjusted pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(e) or (f), the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such property.



               (iii) Items of income, gain, loss, or deduction attributable to the disposition of LLC
property having a Book Value that differs from its adjusted basis for tax purposes shall be
computed by reference to the Book Value of such property.



               (iv) Items of depreciation, amortization, and other cost recovery deductions with respect to
LLC property having a Book Value that differs from its adjusted basis for tax purposes shall be
computed by reference to the property’s Book Value in accordance with Treasury Regulation Section
1.704-1(b)(2)(iv)(g).



               (v) To the extent an adjustment to the adjusted tax basis of any LLC asset pursuant to Code
Sections 732(d), 734(b) or 743(b) is required, pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(m), to be taken into account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases
the basis of the asset) or loss (if the adjustment decreases such basis).



          3.6 Negative Capital Accounts. No Unitholder shall be required to pay to any other
Unitholder or the LLC any deficit or negative balance which may exist from time to time in such
Unitholder’s Capital Account (including upon and after dissolution of the LLC).



          3.7 No Withdrawal. No Person shall be entitled to withdraw any part of such Person’s
Capital Contributions or Capital Account or to receive any Distribution from the LLC, except as
expressly provided herein or in the other agreements referred to herein.



          3.8 Loans From Unitholders. Loans by Unitholders to the LLC shall not be considered
Capital Contributions. If any Unitholder shall loan funds to the LLC, the making of such loans
shall not result in any increase in the amount of the Capital Account of such Unitholder. The
amount of any such loans shall be a debt of the LLC to such Unitholder and shall be payable or
collectible in accordance with the terms and conditions upon which such loans are made.



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ARTICLE IV




DISTRIBUTIONS; REDEMPTIONS

AND ALLOCATIONS




          4.1 Distributions.



          (a) Distributions Generally. Except as otherwise set forth in this Section
4.1, and subject to the provisions of Section 6.7 of this Agreement and Section 18-607
of the Delaware Act, the Board may in its sole discretion make Distributions at any time or from
time to time. All Distributions shall be made only in the following order and priority:




               (i) First, to the Unitholders holding Class B Preferred Units, an amount equal to the
aggregate Class B Unreturned Liquidation Preference with respect to such
Units (in the proportion that each Unitholder’s share of Class B Unreturned Liquidation
Preference with respect to such Unitholder’s Class B Preferred Units bears to the aggregate amount
of Class B Unreturned Liquidation Preference with respect to all Class B Preferred Units) until
each such Unitholder has received Distributions in respect of such Unitholder’s Class B Preferred
Units in an amount equal to the aggregate Class B Unreturned Liquidation Preference with respect to
such Unitholder’s Class B Preferred Units as of the time of such Distribution, and no Distribution
or any portion thereof may be made pursuant to
Sections 4.1(a)(ii) - (iv) below until the
entire amount of Class B Unreturned Liquidation Preference with respect to the outstanding Class B
Preferred Units as of the time of such Distribution has been paid in full.



               (ii) Second, to the Unitholders holding Class A Preferred Units, an amount equal to
the aggregate Class A Unpaid Yield (in the proportion that each Unitholder’s share of Class A
Unpaid Yield bears to the aggregate Class A Unpaid Yield) until each such Unitholder has received
Distributions in respect of such Unitholder’s Class A Preferred Units in an amount equal to the
aggregate Class A Unpaid Yield on such Unitholder’s outstanding Class A Preferred Units as of the
time of such Distribution, and no Distribution or any portion thereof may be made pursuant to
Sections 4.1(a)(iii) or (iv) below until the entire amount of the Class A Unpaid Yield on
the outstanding Class A Preferred Units as of the time of such Distribution has been paid in full.



               (iii) Third, to the Unitholders holding Class A Preferred Units, an amount equal to
the aggregate Class A Unreturned Capital with respect to such Units (in the proportion that each
Unitholder’s share of Class A Unreturned Capital with respect to such Class A Preferred Units bears
to the aggregate amount of Class A Unreturned Capital with respect to all Class A Preferred Units)
until each such Unitholder has received Distributions in respect of such Unitholder’s Class A
Preferred Units in an amount equal to the aggregate Class A Unreturned Capital with respect to such
Unitholder’s Class A Preferred Units as of the time of such Distribution, and no Distribution or
any portion thereof may be made pursuant to Section 4.1(a)(iv) below until the entire
amount of Class A Unreturned Capital with respect to the outstanding Class A Preferred Units as of
the time of such Distribution has been paid in full.



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               (iv) Fourth, all remaining amounts shall be distributed to the Unitholders holding
Common Units, pro-rata according to such holders’ ownership of Common Units immediately prior to
such Distribution.



          (b) Tax Distributions. Notwithstanding any other provision herein to the contrary, so
long as the LLC is treated as a partnership for federal and state income tax purposes, the LLC
shall use its best efforts to distribute within 15 days after the end of each Fiscal Quarter of the
LLC, to the extent that funds are legally available therefor and would not impair the liquidity of
the LLC with respect to working capital, capital expenditures, debt service, reserves, or otherwise
and would not be prohibited under any credit facility to which the LLC or any Subsidiary is a
party, an amount of cash (a “Tax Distribution”) which in the good faith judgment of the
Board equals the excess, if any, of (i) the product of (x) the amount of taxable income allocable
to the Unitholders in respect of the period beginning on the date hereof and ending at the close of
such Fiscal Quarter, multiplied by (y) the combined maximum federal, state, and local income tax
rate to be applied with respect to such taxable income (calculated by using the
 highest maximum combined marginal federal, state, and local income tax rates to which any
Unitholder may be subject and taking into account the deductibility of state income tax for federal
income tax purposes) for such period (making an appropriate adjustment for any rate changes that
take place during such period) over (ii) all prior distributions made pursuant to this
subsection (b) and subsection (a) above. All Tax Distributions shall be treated as
an advance of Distributions for purposes of Section 4.1(a).




          (c) Persons Receiving Distributions. Each Distribution shall be made to the Persons
shown on the LLC’s books and records as Unitholders as of the date of such Distribution;
provided, however, that any transferor and transferee of Units may mutually agree
as to which of them should receive payment of any Distribution under Section 4.1.




          4.2 Redemption. At any time on or after the tenth anniversary of the date of the
Acquisition Closing, any Unitholder may request redemption of all of their Class A Preferred Units
by delivering written notice of such request to the LLC. Within five days after receipt of such
request, the LLC shall give written notice of such request to all other holders of Class A
Preferred Units, and such other holders may request redemption of their Class A Preferred Units by
delivering written notice to the LLC within ten days after receipt of the LLC’s notice. The LLC
shall be required to redeem all Class A Preferred Units with respect to which such redemption
requests have been made at a price per Class A Preferred Unit equal to the sum of the Class A
Unpaid Yield plus the Class A Unreturned Capital with respect to such Unit within 20 days after
receipt of the initial redemption request.




          4.3 Allocations Generally. Except as otherwise provided in Section 4.4, Profits
and Losses for any Fiscal Year shall be allocated among the Unitholders in such a manner that, as
of the end of such Fiscal Year, the sum of (i) the Capital Account of each Unitholder, (ii) such
Unitholder’s share of Minimum Gain (as determined according to Treasury Regulation Section
1.704-2(g)), and (iii) such Unitholder’s partner nonrecourse debt minimum gain (as defined in
Treasury Regulation Section 1.704-2(i)(3)) shall be equal to the respective net amounts that
would be distributed to them, determined as if the LLC were to (i) liquidate the assets of
the LLC for an amount equal to their Book Value, and (ii) distribute the proceeds of liquidation
pursuant to Section 12.2.





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          4.4 Special Allocations.



          (a) Losses attributable to partner nonrecourse debt (as defined in Treasury Regulation Section
1.704-2(b)(4)) shall be allocated in the manner required by Treasury Regulation Section 1.704-2(i).
If there is a net decrease during a Fiscal Year in partner nonrecourse debt minimum gain (as
defined in Treasury Regulation Section 1.704-2(i)(3)), Profits for such Fiscal year (and, if
necessary, for subsequent Fiscal Years) shall be allocated to the Unitholders in the amounts and of
such character as determined according to, and subject to the exceptions contained in, Treasury
Regulation Section 1.704-2(i)(4). This Section 4.4(a) is intended to be a minimum gain
chargeback provision that complies with the requirements of
Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted in a manner consistent
therewith.




          (b) Nonrecourse deductions (as determined according to Treasury Regulation Section
1.704-2(b)(1)) for any Taxable Year shall be allocated to each Unitholder ratably among such
Unitholders based upon the number of outstanding Units held by each such Unitholder immediately
prior to such allocation. If there is a net decrease in Minimum Gain during any Fiscal Year, each
Unitholder shall be allocated Profits for such Fiscal Year (and, if necessary, for subsequent
Fiscal Years) in the amounts and of such character as determined according to, and subject to the
exceptions contained in, Treasury Regulation Section 1.704-2(f). This Section 4.4(b) is
intended to be a minimum gain chargeback provision that complies with the requirements of Treasury
Regulation Section 1.704-2(f), and shall be interpreted in a manner consistent therewith.




          (c) If any Unitholder that unexpectedly receives an adjustment, allocation, or distribution
described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) has an Adjusted
Capital Account Deficit as of the end of any Taxable Year, computed after the application of
Sections 4.4(a) and 4.4(b) but before the application of any other provision of
this Article IV, then Profits for such Taxable Year shall be allocated to such Unitholder
in proportion to, and to the extent of, such Adjusted Capital Account Deficit. This Section
4.4(c) is intended to be a qualified income offset provision as described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in a manner consistent therewith.




          (d) Profits and Losses shall be allocated in a manner consistent with the manner that the
adjustments to the Capital Accounts are required to be made pursuant to Treasury Regulation Section
1.704-1(b)(2)(iv)(j), (k), and (m).




          (e) The allocations set forth in Sections 4.4(a)-(d) (the “Regulatory
Allocations”) are intended to comply with certain requirements of Sections 1.704-1(b) and
1.704-2 of the Treasury Regulations. The Regulatory Allocations may not be consistent with the
manner in which the Unitholders intend to allocate Profit and Loss of the LLC or make LLC
distributions. Accordingly, notwithstanding the other provisions of this Article IV, but
subject to the Regulatory Allocations, income, gain, deduction, and loss shall be reallocated among
the Unitholders so as to eliminate the effect of the Regulatory Allocations and thereby cause the
respective Capital Accounts of the Unitholders to be in the amounts (or as close thereto as
possible) they would have been if Profit and Loss (and such other items of income, gain, deduction,
and loss) had been allocated without reference to the Regulatory Allocations. In



23









 






general, the
Unitholders anticipate that this will be accomplished by specially allocating other Profit and Loss
(and such other items of income, gain, deduction, and loss) among the Unitholders so that the net
amount of the Regulatory Allocations and such special allocations to each such Unitholder is zero.




          4.5 Tax Allocations.




          (a) Except as provided in Sections 4.5(b), (c) and (d), the income, gains, losses,
deductions, and credits of the LLC will be allocated, for federal, state, and local income tax
purposes, among the Unitholders in accordance with the allocation of such income, gains, losses,
deductions, and credits among the Unitholders for computing their Capital Accounts; except that, if
any such allocation is not permitted by the Code or other applicable law, then the LLC’s subsequent
income, gains, losses, deductions, and credits will be allocated among the Unitholders so as to
reflect as nearly as possible the allocation set forth herein in computing their Capital Accounts.




          (b) Items of LLC taxable income, gain, loss, and deduction with respect to any property
contributed to the capital of the LLC shall be allocated among the Unitholders in accordance with
Code Section 704(c) so as to take account of any variation between the adjusted basis of such
property to the LLC for federal income tax purposes and its Book Value.




          (c) If the Book Value of any LLC asset is adjusted pursuant to the requirements of Treasury
Regulation Section 1.704-1(b)(2)(iv)(e) or (f) subsequent allocations of items of taxable income,
gain, loss, and deduction with respect to such asset shall take account of any variation between
the adjusted basis of such asset for federal income tax purposes and its Book Value in the same
manner as under Code Section 704(c).




          (d) Allocations of tax credits, tax credit recapture, and any items related thereto shall be
allocated to the Unitholders according to their interests in such items as determined by the Board
taking into account the principles of Treasury Regulation Section 1.704-1(b)(4)(ii).




          (e) Allocations pursuant to this Section 4.5 are solely for purposes of federal,
state, and local taxes and shall not affect, or in any way be taken into account in computing, any
Unitholder’s Capital Account or Unit of Profits, Losses, Distributions, or other LLC items pursuant
to any provision of this Agreement.




          4.6 Indemnification and Reimbursement for Payments on Behalf of a Unitholder. If the LLC
is required by law to make any payment that is specifically attributable to a Unitholder or a
Unitholder’s status as such (including federal withholding taxes, state personal property taxes,
and state unincorporated business taxes), then such Unitholder shall indemnify the LLC in full for
the entire amount paid (including interest, penalties and related expenses). The LLC may pursue
and enforce all rights and remedies it may have against each Unitholder under this Section
4.6, including instituting a lawsuit to collect such indemnification and contribution with
interest calculated at a rate equal to 10% per annum, compounded as of the last day of each year
(but not in excess of the highest rate per annum permitted by law).




          4.7 Transfer of Capital Accounts. If a Unitholder transfers an interest in the LLC to a new or existing Unitholder, the
transferee Unitholder shall succeed to that portion of



24









 






the transferor’s Capital Account that is
attributable to the transferred interest. Any reference in this Agreement to a Capital
Contribution of, or Distribution to, a Unitholder that has succeeded any other Unitholder shall
include any Capital Contributions or Distributions previously made by or to the former Unitholder
on account of the interest of such former Unitholder transferred to such Unitholder.




ARTICLE V




BOARD OF MANAGERS; OFFICERS




          5.1 Management by the Board of Managers.




          (a) No Management by Unitholders. The Unitholders shall not manage and control the
business and affairs of the LLC, except for situations in which the approval of Unitholders is
required by this Agreement or by non-waivable provisions of applicable law.




          (b) Authority of Board of Managers.




               (i) Except for situations in which the approval of the Unitholders is otherwise required
(including pursuant to Section 6.7), (x) the powers of the LLC shall be exercised by or
under the authority of, and the business and affairs of the LLC shall be managed under the
direction of, the Board and (y) the Board may make all decisions and take all actions for the LLC
not otherwise provided for in this Agreement, including the following:



                    (A) entering into, making and performing contracts, agreements and other undertakings binding
the LLC that may be necessary, appropriate or advisable in furtherance of the purposes of the LLC
and making all decisions and waivers thereunder;



                    (B) maintaining the assets of the LLC in good order;



                    (C) collecting sums due the LLC;



                    (D) opening and maintaining bank and investment accounts and arrangements, drawing checks and
other orders for the payment of money and designating individuals with authority to sign or give
instructions with respect to those accounts and arrangements;



                    (E) to the extent that funds of the LLC are available therefor, paying debts and obligations
of the LLC;



                    (F) acquiring, utilizing for LLC purposes and disposing of any asset of the LLC;



                    (G) hiring and employing executives, Officers, supervisors and other personnel;



                    (H) selecting, removing and changing the authority and responsibility of lawyers, accountants
and other advisers and consultants;



25









 





                    (I) entering into guaranties on behalf of the LLC’s Subsidiaries;



                    (J) obtaining insurance for the LLC;



                    (K) determining distributions of cash and other property of the LLC as provided in Article
IV;



                    (L) establishing reserves for commitments and obligations (contingent or otherwise) of the
LLC; and



                    (M) establishing a seal for the LLC.


In any event, the LLC shall not, without specific Board approval pursuant to clause (A) of
Section 5.1(b)(ii), enter into, or permit any Subsidiary to enter into, any agreement or
arrangement that provide for payments to or from the Company or any Subsidiary in excess of
$35,000,000 (other than securitization transactions in the ordinary course of business).




               (ii) The Board may act (A) by resolutions adopted at a meeting and by written consents
pursuant to Section 5.3, (B) by delegating power and authority to committees pursuant to
Section 5.4, and (C) by delegating power and authority to any Officer pursuant to
Section 5.5(a).



               (iii) Each Unitholder acknowledges and agrees that no Manager shall, as a result of being a
Manager (as such), be bound to devote all of his business time to the affairs of the LLC, and that
he and his Affiliates do and will continue to engage for their own account and for the accounts of
others in other business ventures.



          (c) Officers. The management of the business and affairs of the LLC by the Officers
and the exercising of their powers shall be conducted under the supervision of and subject to the
approval of the Board.




          5.2 Composition and Election of the Board of Managers.




          (a) Number and Designation. The number of Managers on the Board was initially
established at eight (8), and shall be hereafter adjusted to conform with the aggregate number of
Managers available for designation or appointed in accordance with this Section 5.2(a)
below. The Board shall be comprised of the following persons:




               (i) prior to the THI Liquidation and for so long as THI owns all Units of the LLC, eight (8)
representatives designated by THI (such representatives, the “Initial Managers”), which
representatives shall initially be Philip A. Canfield, David A. Donnini, Aaron D. Cohen, Donald J.
Edwards, J. Randy Staff, Carl B. Webb, Daniel D. Leonard and Gerald J. Ford.



               (ii) following the THI Liquidation, upon Goldman’s election, three (3) representatives
designated by Goldman, so long as Goldman and its Affiliates continue to hold at least 50% of the
Common Units distributed to Goldman and its Affiliates pursuant to the THI Liquidation (the
“Goldman Common Units”), and thereafter, two (2) representatives designated



26









 







by Goldman so
long as Goldman and its Affiliates continue to hold at least 25% of the Goldman Common Units, and
thereafter, one (1) representative designated by Goldman so long as Goldman and its Affiliates hold
at least one (1) Goldman Common Unit (collectively, the “Goldman Managers”);
provided that so long as GS Capital Partners 2000, L.P. continues to hold at least one (1)
Goldman Common Unit, at least one Goldman Manager shall be designated exclusively by GS Capital
Partners 2000, L.P.; provided further that if Goldman and its Affiliates continue
to hold at least 50% of the Goldman Common Units and GTCR and its Affiliates no longer hold any
GTCR Common Units, then Goldman shall have the right to designate one (1) additional representative
(for a total of four (4) representatives) so long as Goldman and its Affiliates continue to hold at
least 50% of the Goldman Common Units; provided further that, unless and until
otherwise specified by Goldman, the Board seats with respect to which Goldman is entitled to
designate representatives shall remain vacant.



               (iii) following the THI Liquidation, three (3) representatives designated by GTCR
(provided that at least one such representative shall be designated by GTCR Fund VIII, and
at least one by Fund VIII/B Triad Splitter, L.P.), which representatives initially shall be Philip
A. Canfield, David A. Donnini and Aaron D. Cohen, so long as GTCR and its Affiliates continue to
hold at least 50% of the Common Units distributed to GTCR and its Affiliates pursuant to the THI
Liquidation (the “GTCR Common Units”), and thereafter, two (2) representatives designated
by GTCR (provided that at least one such representative shall be designated by GTCR Fund
VIII, and at least one by Fund VIII/B Triad Splitter, L.P.) so long as GTCR and its Affiliates
continue to hold at least 25% of the GTCR Common Units, and thereafter, one (1) representative
designated by GTCR so long as GTCR and its Affiliates hold at least one (1) GTCR Common Unit
(collectively, the “GTCR Managers”); provided that if GTCR and its Affiliates
continue to hold at least 50% of the GTCR Common Units and Goldman and its Affiliates no longer
hold any Goldman Common Units, then GTCR shall have the right to designate one (1) additional
representative (for a total of four (4) representatives) so long as GTCR and its Affiliates
continue to hold at least 50% of the GTCR Common Units;



               (iv) following the THI Liquidation, three (3) representatives designated by HGF, who initially
shall be Donald J. Edwards, J. Randy Staff and Carl B. Webb, so long as HGF and its Affiliates
continue to hold at least 50% of the Common Units distributed to HGF and its Affiliates pursuant to
the THI Liquidation (the “HGF Common Units”), and thereafter, two (2) representatives
designated by HGF so long as HGF and its Affiliates continue to hold at least 25% of the HGF Common
Units, and thereafter, one (1) representative designated by HGF so long as HGF and its Affiliates
hold at least one (1) HGF Common Unit (collectively, the “HGF Managers”);



               (v) the LLC’s chief executive officer, who shall initially be Gerald J. Ford;



               (vi) one (1) representative designated by the holders of the Required Interest (the
“Additional Manager”);



               (vii) following the THI Liquidation, such number of representatives designated by the
appointees of HGF and GTCR, which number shall be equal to the number of



27









 







representatives designated
by Goldman pursuant to Section 5.2(a)(ii) at such time (the “HGF-GTCR Managers”);
and



               (viii) such number of independent Managers named by the majority of the total number of
Managers then serving on the Board at a meeting of the Board at which a quorum is present (the
“Independent Managers”).


If any of Investor Member becomes ineligible to designate a representative to fill a Manager
position pursuant to the terms of Sections 5.2(a)(ii) through (iv) above, such
Manager position shall remain vacant and such Investor Member shall promptly identify its
designee(s) who, as a result, will be automatically removed from the Board.




          (b) Term. Members of the Board shall serve from their designation in accordance with
the terms hereof until their resignation, death or removal in accordance with the terms hereof.
Members of the Board need not be Unitholders and need not be residents of the State of Delaware. A
person shall become a member of the Board effective upon receipt by the LLC at its principal place
of business of a written notice addressed to the Board (or at such later time or upon the happening
of some other event specified in such notice) of such person’s designation from the person or
persons entitled to designate such manager pursuant to Section 5.2(a) above. A member of
the Board may resign as such by delivering his, her or its written resignation to the LLC at the
LLC’s principal office addressed to the Board. Such resignation shall be effective upon receipt
unless it is specified to be effective at some other time or upon the happening of some other
event.




          (c) Removal. The removal from the Board or any of its committees (with or without
cause) of any Goldman Manager, GTCR Manager or HGF Manager shall become effective upon (and only
upon) the written request of the respective Investor Member entitled to designate such Manager to
serve on such Board or committee. The removal from the Board or any of its committees (with or
without cause) of any Additional Manager shall become effective upon (and only upon) the written
request of the holders of the Required Interest. The removal from the Board or any of its
committees (with or without cause) of any HGF-GTCR Manager shall become effective upon (and only
upon) the written request of either HGF or GTCR. The removal from the Board or any of its
committees (with or without cause) of any Independent Manager shall become effective upon (and only
upon) the written request of a majority of the Board.




          (d) Vacancies. In the event that any designee under clauses (ii), (iii), (iv), (v) or
(vii) of Section 5.2(a) for any reason ceases to serve as a member of the Board (other than
as the result of an Investor Member becoming ineligible to designate one or more representatives to
the Board pursuant to the terms of Section 5.2(a)), (i) the resulting vacancy on the Board
shall be filled by a Person designated by the respective Investor Member or Members originally
entitled to designate such Manager pursuant to such clause of Section 5.2(a) above
(provided that, if any party fails to designate a person to fill a vacancy on the Board
pursuant to the terms of this Section 5.2, such vacant managership shall remain vacant
until such managership is filled pursuant to this Section 5.2(d)), and (ii) such designee
shall be removed promptly after such time
from each committee of the Board. In the event that any designee under Section
5.2(a)(v) for any reason ceases to serve as a member of the Board, (i) the resulting vacancy on
the Board shall




28









 







be filled by a Person designated by the holders of the Required Interest (provided
that, if the holders of the Required Interest fail to designate a person to fill a vacancy on the
Board pursuant to the terms of this Section 5.2, such vacant managership shall remain
vacant until such managership is filled pursuant to this Section 5.2(d), unless the holders
of the Required Interest resolve otherwise), and (ii) such designee shall be removed promptly after
such time from each committee of the Board. In the event that any designee under Section
5.2(a)(viii) for any reason ceases to serve as a member of the Board, (i) the resulting vacancy
on the Board may be filled by a Person designated by the Board, and (ii) such designee shall be
removed promptly after such time from each committee of the Board.




          (e) Reimbursement. The LLC shall pay all reimbursable out-of-pocket costs and
expenses incurred by each member or former member of the Board incurred in the course of their
service hereunder, including in connection with attending regular and special meetings of the
Board, any board of managers or board of directors of each of the LLC’s Subsidiaries and/or any of
their respective committees.




          (f) Compensation of Managers. Except as approved by the Required Interest and subject
to the Management Agreement, Managers shall receive no compensation for serving in such capacity.




          (g) Reliance by Third Parties. Any Person dealing with the LLC, other than a
Unitholder, may rely on the authority of the Board (or any Officer authorized by the Board) in
taking any action in the name of the LLC without inquiry into the provisions of this Agreement or
compliance herewith, regardless of whether that action actually is taken in accordance with the
provisions of this Agreement. Every agreement, instrument or document executed by the Board (or
any Officer authorized by the Board) in the name of the LLC with respect to any business or
property of the LLC shall be conclusive evidence in favor of any Person relying thereon or claiming
thereunder that (i) at the time of the execution or delivery thereof, this Agreement was in full
force and effect, (ii) such agreement, instrument or document was duly executed according to this
Agreement and is binding upon the LLC and (iii) the Board or such Officer was duly authorized and
empowered to execute and deliver such agreement, instrument or document for and on behalf of the
LLC.




          5.3 Board Meetings and Actions by Written Consent.




          (a) Quorum; Voting. A majority of the total number of Managers then serving on the
Board (i.e., excluding any vacancies on the Board) must be present (including pursuant to
Section 5.3(h)) in order to constitute a quorum for the transaction of business of the
Board, and except as otherwise provided in this Agreement, the act of a majority of the total
number of Managers then serving on the Board (i.e., excluding any vacancies on the Board) at a
meeting of the Board at which a quorum is present shall be the act of the Board. A Manager who is
present at a meeting of the Board at which action on any matter is taken shall be presumed to have
assented to the action unless his dissent shall be entered in the minutes of the meeting or unless
he shall file his written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall deliver such dissent to the LLC immediately after
the adjournment of the meeting. Such right to dissent shall not apply to a Manager who voted in
favor of such action.





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          (b) Place; Attendance. Meetings of the Board may be held at such place or places as
shall be determined from time to time by resolution of the Board. At all meetings of the Board,
business shall be transacted in such order as shall from time to time be determined by resolution
of the Board. Attendance of a Manager at a meeting shall constitute a waiver of notice of such
meeting, except where a Manager attends a meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully called or convened.



          (c) Meeting In Connection With Unitholder Meeting. In connection with any meeting of
Unitholders, the Managers may, if a quorum is present, hold a meeting for the transaction of
business immediately after and at the same place as such meeting of the Unitholders. Notice of
such meeting at such time and place shall not be required.



          (d) Time, Place and Notice. Regular meetings of the Board shall be held at such times
and places as shall be designated from time to time by resolution of the Board. Notice of such
meetings shall not be required.



          (e) Special Meetings. Special meetings of the Board may be called by any Manager on
at least 24 hours’ notice to each other Manager. Such notice need not state the purpose or
purposes of, nor the business to be transacted at, such meeting, except as may otherwise be
required by law or provided for in this Agreement.



          (f) Chairman and Vice Chairman. The Board shall designate one of the Managers to
serve as Chairman and a different Manager to serve as Vice Chairman. The Chairman shall preside at
all meetings of the Board. If the Chairman is absent at any meeting of the Board, the Vice
Chairman shall preside over such Board meeting. If the Chairman and Vice Chairman are absent, the
Managers present shall designate a member to serve as interim chairman for that meeting. Neither
the Chairman nor Vice Chairman, except in their capacity as an Officer, shall have the authority or
power to act for or on behalf of the LLC, to do any act that would be binding on the LLC or to make
any expenditure or incur any obligation on behalf of the LLC or authorize any of the foregoing.



          (g) Board Meetings. There shall be meetings of the Board from time to time as
requested by holders of the Required Interest.



          (h) Action by Unanimous Written Consent or Telephone Conference. Any action permitted
or required by the Delaware Act, the Certificate or this Agreement to be taken at a meeting of the
Board or any committee designated by the Board may be taken without a meeting if a consent in
writing, setting forth the action to be taken, is signed by all of the Managers. Such consent
shall have the same force and effect as a vote at a meeting and may be stated as such in any
document or instrument filed with the Secretary of State of Delaware, and the execution of such
consent shall constitute attendance or presence in person at a meeting of the Board or any such
committee, as the case may be. A consent transmitted by electronic transmission by a Member shall
be deemed to be written and signed for purposes of this Agreement. Subject to the requirements of
the Delaware Act, the Certificate or this Agreement for notice of meetings, unless otherwise
restricted by the Certificate, the Managers or members of any committee designated by the Board may
participate in and hold a meeting of the Board or any committee, as



30









 







the case may be, by means of a conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each other, and participation in
such meeting shall constitute attendance and presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the transaction of any
business on the ground that the meeting is not lawfully called or convened.



          5.4
Committees; Delegation of Authority and Duties.



          (a) Committees; Generally. The Board may, from time to time, designate one or more committees. Following the THI Liquidation,
each Investor Member that is entitled to designate at least one (1) Manager to the Board pursuant
to Section 5.2(a) shall be entitled to designate at least one (1) of its designated
Managers to each of the Board’s material committees. Any such committee, to the extent provided in
the enabling resolution or in the Certificate or this Agreement, shall have and may exercise all of
the authority of the Board. At every meeting of any such committee, the presence of a majority of
all the members thereof shall constitute a quorum, and the affirmative vote of a majority of the
members present shall be necessary for the adoption of any resolution. The Board may dissolve any
committee at any time, unless otherwise provided in the Certificate or this Agreement.



          (b) Audit Committee. The Board may establish an audit committee to select the LLC’s
independent accountants and to review the annual audit of the LLC’s financial statements conducted
by such accountants.



          (c) Delegation; Generally. The Board may, from time to time, delegate to one or more
Persons (including any Manager or Officer) such authority and duties as the Board may deem
advisable in addition to those powers and duties set forth in Section 5.1(b) hereof. The
Board also may assign titles (including chairman, chief executive officer, president, vice
president, secretary, assistant secretary, treasurer and assistant treasurer) to any Manager,
Unitholder or other individual and may delegate to such Manager, Unitholder or other individual
certain authority and duties. Any number of titles may be held by the same Manager, Unitholder or
other individual. Any delegation pursuant to this Section 5.4(c) may be revoked at any
time by the Board.



          (d) Third-party Reliance. Any Person dealing with the LLC, other than a Unitholder,
may rely on the authority of any Officer in taking any action in the name of the LLC without
inquiry into the provisions of this Agreement or compliance herewith, regardless of whether that
action actually is taken in accordance with the provisions of this Agreement.



          5.5 Officers.



          (a) Designation and Appointment. The Board may (but need not), from
time to time, designate and appoint one or more persons as an Officer of the LLC. No Officer need
be a resident of the State of Delaware, a Unitholder or a Manager. Any Officers so designated
shall have such authority and perform such duties as the Board may, from time to time, delegate to
them. The Board may assign titles to particular Officers. Unless the Board otherwise decides, if
the title is one commonly used for officers of a business corporation formed, the assignment of
such title shall constitute the delegation to such Officer of the authority and duties that are



31









 







normally associated with that office, subject to (i) any specific delegation of authority and
duties made to such Officer by the Board pursuant to the third sentence of this Section
5.5(a) or (ii) any delegation of authority and duties made to one or more Officers pursuant to
the terms of Section 5.4(c) and 5.5(c). Each Officer shall hold office until such
Officer’s successor shall be duly designated and shall qualify or until such Officer’s death or
until such Officer shall resign or shall have been removed in the manner hereinafter provided. Any
number of offices may be held by the same individual. The salaries or other compensation, if any,
of the Officers and agents of the LLC shall be fixed from time to time by the Board.



          (b) Resignation. Any Officer (subject to any contract rights available to the LLC, if
applicable) may resign as such at any time. Such resignation shall be made in writing and shall
take effect at the time specified therein, or if no time be specified, at the time of its receipt
by the Board. The acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation. Any Officer may be removed as such, either with or
without cause, by the Board in its discretion at any time; provided, however, that such
removal shall be without prejudice to the contract rights, if any, of the individual so removed.
Designation of an Officer shall not of itself create contract rights. Any vacancy occurring in any
office of the LLC may be filled by the Board.



          (c) Duties of Officers; Generally. The following Officers, to the extent such
Officers have been appointed by the Board, shall have the following duties:



               (i) Chief Executive Officer. The initial chief executive officer of the LLC shall be
Gerald J. Ford. Subject to the powers of the Board, the chief executive officer of the LLC shall
be in the general and active charge of the entire business and affairs of the LLC, and shall be its
chief policy-making Officer. The president, chief financial officer and each other senior officer
of the LLC shall report directly to the chief executive officer. The chief executive officer shall
see that all orders and resolutions of the Board are carried into effect. The LLC’s chief
executive officer’s responsibilities will also include setting corporate strategy, overseeing the
performance of the Company’s chief executive officer, naming senior executives of the Company
(other than the chief executive officer and chief financial officer of the Company who shall be
named and approved by the full Board), and recommending to the Board compensation of such
executives. The chief executive officer shall have such other powers and perform such other duties
as may be prescribed by the Board.



               (ii) President. The president shall, subject to the powers of the Board and the chief
executive officer, be the chief administrative officer of the LLC and shall have general charge of
the business, affairs and property of the LLC, and control over its Officers (other than the chief
executive officer), agents and employees. The president shall see that all orders and resolutions
of the Board and the chief executive officer are carried into effect. He or she shall be
responsible for the employment of employees, agents and Officers (other than the chief executive
officer) as may be required for the conduct of the business and the attainment of the objectives of
the LLC. He or she shall have authority to suspend or to remove any employee, agent or Officer
(other than the chief executive officer) of the LLC and, in the case of the suspension for cause of
any such Officer, to recommend to the Board what further action should be taken. In the absence of
the president, his or duties shall be performed and his or her authority may be exercised by the
chief executive officer. In the absence of the president and the



32









 







chief executive officer, the duties of the president shall be performed and his or her
authority may be exercised by such Officer as may have been designated as the most senior officer
of the LLC. The president shall have such other powers and perform such other duties as may be
prescribed by the chief executive officer or the Board.



               (iii) Chief Financial Officer. The chief financial officer shall keep and maintain,
or cause to be kept and maintained, adequate and correct books and records of accounts of the
properties and business transactions of the LLC, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, capital and Units. The chief financial officer shall have
the custody of the funds and securities of the LLC, and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the LLC, and shall deposit all moneys and other
valuable effects in the name and to the credit of the LLC in such depositories as may be designated
by the Board. The chief financial officer shall have such other powers and perform such other
duties as may be prescribed by the chief executive officer or the Board.



               (iv) Vice President(s). The vice president(s) shall perform such duties and have such
other powers as the chief executive officer, the president, the chief operating officer or the
Board may from time to time prescribe, and may have such further denominations as “Executive Vice
President,” “Senior Vice President,” “Assistant Vice President,” and the like.



               (v) Secretary.



                    (A) The secretary shall attend all meetings of the Board and shall record all the proceedings
of the meetings in a book to be kept for that purpose, and shall perform like duties for the
standing committees of the Board when required.



                    (B) The secretary shall keep all documents as may be required under the Delaware Act or this
Agreement. The secretary shall perform such other duties and have such other authority as may be
prescribed elsewhere in this Agreement or from time to time by the Board. The secretary shall have
the general duties, powers and responsibilities of a secretary of a corporation.



                    (C) If the Board chooses to appoint an assistant secretary or assistant secretaries, the
assistant secretaries, in the order of their seniority, in the absence, disability or inability to
act of the secretary, shall perform the duties and exercise the powers of the secretary, and shall
perform such other duties as the Board may from time to time prescribe.



ARTICLE VI




GENERAL RIGHTS AND OBLIGATIONS OF UNITHOLDERS




          6.1 Limitation of Liability. Except as otherwise provided by applicable law, the debts,
obligations, and liabilities of the LLC, whether arising in contract, tort, or otherwise, shall be
solely the debts, obligations, and liabilities of the LLC, and no Unitholder shall be obligated
personally for any such debt, obligation, or liability of the LLC solely by reason of being a
Unitholder of the LLC; provided that a Unitholder shall be required to return to the LLC
any Distribution made to it in clear and manifest accounting or similar error. The immediately



33









 







preceding sentence shall constitute a compromise to which all Unitholders have consented within the
meaning of the Delaware Act. Notwithstanding anything contained herein to the contrary, the
failure of the LLC to observe any formalities or requirements relating to the exercise of its
powers or management of its business and affairs under this Agreement or the Delaware Act shall not
be grounds for imposing personal liability on the Unitholders for liabilities of the LLC.



          6.2 Lack of Authority. No Unitholder in his, her, or its capacity as such (other than the
members of the Board acting as the Board or an authorized Officer of the LLC) has the authority or
power to act for or on behalf of the LLC in any manner, to do any act that would be (or could be
construed as) binding on the LLC or to make any expenditures on behalf of the LLC, and the
Unitholders hereby consent to the exercise by the Board of the powers conferred on it by law and
this Agreement.



          6.3 No Right of Partition. No Unitholder shall have the right to seek or obtain partition
by court decree or operation of law of any LLC property, or the right to own or use particular or
individual assets of the LLC.



          6.4 Unitholders Right to Act. For situations which the approval of any Unitholders or
class thereof (rather than the approval of the Board on behalf of the Unitholders) is required, the
Unitholders shall act through meetings and written consents as described in Sections 3.2
and 3.3.



          6.5 Conflicts of Interest.



          (a) A Unitholder, a Manager, their respective Affiliates and each of their respective
stockholders, directors, officers, controlling persons, partners and employees and each Officer and
employee of the LLC at any time and from time to time, may engage in and possess interests in other
business ventures of any and every type and description, independently or with others, including
ones in competition with the LLC and its subsidiaries, with no obligation to offer to the LLC and
its subsidiaries or any Investor the right to participate therein, except as any such Person may
have otherwise agreed with the LLC or any of its Subsidiaries in writing. Without limiting the
generality of the foregoing, each such person may (i) engage in, and shall have no duty to refrain
from engaging in, separate businesses or activities from the LLC or any Subsidiary of the LLC,
including businesses or activities that are the same or similar to, or compete directly or
indirectly with, those of the LLC or any Subsidiary of the LLC and (ii) do business with any
potential or actual customer or supplier of the LLC or any Subsidiary of the LLC.



          (b) To the fullest extent permitted by applicable law, none of the Unitholders, the Managers
or any of their respective Affiliates shall have any obligation to present any business
opportunity to the LLC or any Subsidiary of the LLC, even if the opportunity is one that the
LLC or any Subsidiary of the LLC might reasonably be deemed to have pursued or had the ability or
desire to pursue if granted the opportunity to do so and no such person shall be liable to the LLC,
any Subsidiary of the LLC or any Unitholder for breach of any fiduciary or other duty, as a
Unitholder, Manager or otherwise, by reason of the fact that such person pursues or acquires such
business opportunity, directs such business opportunity to another person or fails to present such
business opportunity, or information regarding such business opportunity, to the LLC or



34









 







any Subsidiary of the LLC unless, in the case of any such Manager, such business opportunity is
expressly offered to such Manager in writing solely as a Manager of the LLC. Nothing in this
Agreement will impede the LLC’s ability to enter into contractual arrangements with any Unitholder
or any Manager, which arrangements restrict such Unitholder or Manager from engaging in activities
otherwise allowed by this Section 6.5.



          (c) Each Unitholder (for itself and on behalf of the LLC) hereby, to the fullest extent
permitted by applicable law but subject to Sections 6.5(d):



               (i) confirms that each Manager has no duty to the LLC or any Subsidiary of the LLC other than
the limited obligation set forth in Section 6.5(b) and those imposed by applicable law;



               (ii) confirms that each Manager has no duty to any Unitholder individually as a result of this
Agreement (it being understood that this provision does not limit any duty such person may have to
a Unitholder as a director, officer or employee of the Unitholder);



               (iii) confirms that each Unitholder has no duty to any other Unitholder or to the LLC or any
Subsidiary of the LLC as a result of this Agreement other than the specific covenants and
agreements set forth in this Agreement;



               (iv) acknowledges and agrees that (A) in the event of any conflict of interest between the
LLC, the Company and the Unitholders, any Affiliate of the Unitholders or any Manager that may from
time to time arise, each such person may act in its best interest (provided that, in the case of a
conflict of interest between a Manager and the LLC, the existence of such conflict is disclosed to
the Board) and (B) no such person shall be obligated (1) to reveal to the LLC or any Subsidiary of
the LLC confidential information belonging to or relating to the business of such person or (2) to
recommend or take any action in its capacity as such Unitholder or Manager, as the case may be,
that prefers the interest of the LLC or any Subsidiary of the LLC over the interest of such person;
and



               (v) waives any claim or cause of action against any other Unitholder, any Manager and any
officer, employee, agent or Affiliate of any such Unitholder or Manager that may from time to time
arise in respect of a breach by any such person of any duty or obligation disclaimed under
Sections 6.5(c)(i) through (iv).



          (d) Each Unitholder agrees that the waivers, acknowledgments and agreements set forth in
subsection (c) above shall not apply to any alleged claim or cause of action against a Manager,
Unitholder or any Unitholder’s Affiliates or any of their respective stockholders, directors,
officers, controlling persons, partners or employees based upon the breach or non-performance by
such person of this Agreement or other agreement to which the LLC or the Company and any such other
Unitholder, any of its Affiliates or any Manager designated by such other Unitholder is a party.



          (e) The provisions of this Section 6.5, to the extent that they restrict the duties
and liabilities of a Unitholder or Manager otherwise existing at law or in equity, are agreed by
the Unitholders to replace such other duties and liabilities of such person.



35









 





          6.6 [Intentionally Omitted].»



          6.7 Approval Rights. Notwithstanding the provisions of Article V, the LLC shall
not, without the prior written consent of the holders of the Required Interest:



          (a) directly or indirectly declare or pay any dividends or make any distributions upon any of
its equity securities, other than Tax Distributions, distributions of the Class B Liquidation
Preference on the Class B Preferred Units pursuant to Section 4.1(a)(i) of this Agreement,
and distributions of unpaid yield or unreturned capital on the Class A Preferred Units pursuant to
Sections 4.1(a)(ii) and 4.1(a)(iii) of this Agreement;



          (b) enter into, or permit any Subsidiary to enter into, any joint venture or similar
transaction;



          (c) enter into, or permit any Subsidiary to enter into, any agreement or arrangement that
materially limits or otherwise restricts the LLC or any Subsidiary from engaging or competing in
any material line of business or in any material geographic area;



          (d) enter into or amend, or permit any Subsidiary to enter into or amend, any transaction with
any of its or any Subsidiary’s officers, directors, members, employees or Affiliates or any
individual related by blood, marriage or adoption to any such Person or any entity in which any
such Person or individual owns a beneficial interest, except for normal employment arrangements and
benefit programs on reasonable terms (it being understood and agreed that loans or advances to
employees (other than travel advances and de minimus advances) shall not constitute normal
employment arrangements or benefit programs) and except as otherwise expressly contemplated by this
Agreement, the Executive Agreements and the Management Agreement;



          (e) directly or indirectly redeem, purchase or otherwise acquire, or permit any Subsidiary to
redeem, purchase or otherwise acquire, any equity securities of the LLC or any Subsidiary
(including, without limitation, warrants, options and other rights to acquire such equity
securities), other than the redemptions of Class A Preferred Units pursuant to Section 4.2
of this Agreement;



          (f) except as expressly contemplated by this Agreement, the Executive Agreements or the
Management Agreement, authorize, issue, sell or enter into any agreement providing for the issuance
(contingent or otherwise), or permit any Subsidiary to authorize, issue, sell or enter into any
agreement providing for the issuance (contingent or otherwise) of, (i) any notes or debt securities
containing equity features (including, without limitation, any notes or debt securities convertible
into or exchangeable for equity securities, issued in connection with the issuance of equity
securities or containing profit participation features) or (ii) any class, series, shares or units
of equity securities (or any securities convertible into or exchangeable for any equity securities)
of the LLC or any Subsidiary or rights, warrants or options to acquire or
any security convertible into any equity securities of the LLC or any Subsidiary, other than
the issuance of equity securities by a Subsidiary to the LLC or another Subsidiary;



          (g) create, incur, assume, refinance or suffer to exist, or permit any Subsidiary to create,
incur, assume, refinance or suffer to exist, third party Indebtedness exceeding an



36









 







aggregate principal amount of $50,000,000 outstanding at any time on a consolidated basis (whether by way of
authorizing, issuing or entering into any agreement providing for the issuance (contingent or
otherwise) of, any notes or debt securities or entering into any contract or agreement regarding
third party debt financing or otherwise), except for Indebtedness secured by receivables or
financial assets (including, without limitation, Indebtedness incurred pursuant to the New
Facility, the Senior Unsecured Demand Notes, and the High Yield Debt); provided that entry into any
agreement for the refinancing of more than $200,000,000 of such Indebtedness secured by receivables
or financial assets shall require the prior written consent of the holders of the Required
Interest;



          (h) merge or consolidate with any Person or permit any Subsidiary to merge or consolidate with
any Person (other than a wholly-owned Subsidiary);



          (i) sell, lease or otherwise dispose of, or permit any Subsidiary to sell, lease or otherwise
dispose of, more than 10% of the consolidated assets of the LLC and its Subsidiaries (computed on
the basis of book value, determined in accordance with United States generally accepted accounting
principles consistently applied, or fair market value, determined by the Board in its reasonable
good faith judgment) in any transaction or series of related transactions (other than sales of
inventory in the ordinary course of business);



          (j) except as contemplated by this Agreement in connection with a Public Offering, voluntarily
initiate a liquidation, dissolution or winding up of the LLC or any Subsidiary, or a
recapitalization or reorganization of the LLC or any Subsidiary in any form of transaction
(including, without limitation, any reorganization into a corporation or a partnership), or permit
the commencement of a proceeding for bankruptcy, insolvency, receivership or similar action with
respect to the LLC or any Subsidiary;



          (k) except as contemplated by this Agreement in connection with a Public Offering, change the
corporate or organizational structure of the LLC or any Subsidiary;



          (l) acquire or dispose of, or permit any Subsidiary to acquire or dispose of, any interest in
any business (whether by a purchase of assets, purchase of securities, merger or otherwise)
involving aggregate consideration (including, without limitation, the assumption of liabilities)
exceeding $35,000,000;



          (m) acquire, or permit any Subsidiary to acquire, portfolios of securities (including auto
loan portfolios) for aggregate consideration of more than $100,000,000 in any transaction or series
of related transactions;



          (n) enter into the ownership, active management or operation of any business other than the
ownership of the securities of its Subsidiaries or permit any Subsidiary to enter into the
ownership, active management or operation of any business other than a business in the automobile
loan industry;



          (o) become subject to, or permit any Subsidiary to become subject to, any agreement or
instrument that by its terms would (under any circumstances) restrict (A) the right of any
Subsidiary to make loans or advances or pay dividends to, transfer property to, or repay



37









 







any Indebtedness owed to, the LLC or any Subsidiary or (B) the LLC’s right to perform the
provisions of this Agreement, the Certificate, or the other Transaction Documents;



          (p) amend, alter or repeal, or permit any Subsidiary to amend, alter or repeal, by merger,
consolidation, combination, reclassification or otherwise, the Certificate or the certificate of
incorporation or bylaws any Subsidiary;



          (q) except as expressly contemplated by this Agreement, make any amendment to the Certificate
or the LLC Agreement that would increase the number of authorized Units or adversely affect or
otherwise impair the rights or the relative preferences and priorities of the holders of the Units
under this Agreement, the Certificate, or the other Transaction Documents;



          (r) terminate the employment of, appoint or hire, or enter into, amend or modify any Executive
Agreement or any employment agreement or arrangement with, the chief executive officer of the LLC,
other than a termination of employment and/or modification to such agreement or arrangement that
does not materially change the severance or other terms of such agreement or arrangement;



          (s) make, or permit any Subsidiary to make, any election to change the classification of the
LLC or any of its Subsidiary for Federal income tax purposes;



          (t) provide any waiver by, or consent of, the LLC under or pursuant to the Triad Financial SM
LLC Agreement;



          (u) settle or compromise, or permit any Subsidiary to settle or compromise, any pending or
threatened suit, action or claim of the LLC or any Subsidiary in excess of $5,000,000;



          (v) appoint or remove, or permit any Subsidiary to appoint or remove, the independent auditor
of the LLC or any Subsidiary;



          (w) approve the annual budget (and significant variances from the budget) of the LLC and its
Subsidiaries;



          (x) make, or permit any Subsidiary to make, any capital expenditures (including, without
limitation, payments with respect to capitalized leases, as determined in accordance with generally
accepted accounting principles consistently applied) exceeding an amount that is $1,000,000 greater
than the amount set forth in the then current annual budget approved pursuant to paragraph (w)
above in the aggregate on a consolidated basis during any twelve-month period; or



          (y) make, or permit any Subsidiary to make, any material changes in the accounting policies of
the LLC or any Subsidiary.



          6.8 Other Covenants.



          (a) Public Disclosures. The LLC shall not, nor shall it permit any Subsidiary to,
disclose any Unitholder’s name or identity as an investor in the LLC in any press release or other
public announcement or in any document or material filed with any governmental entity, without



38









 







the prior written consent of such Unitholder, unless such disclosure is required by applicable law
or governmental regulations or by order of a court of competent jurisdiction, in which case prior
to making such disclosure the LLC shall give written notice to such Unitholder describing in
reasonable detail the proposed content of such disclosure and shall permit such Unitholder to
review and comment upon the form and substance of such disclosure.



          (b) Hart-Scott-Rodino Compliance. In connection with any transaction in which the LLC
is involved that is required to be reported under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended from time to time (the “HSR Act”), the LLC shall prepare and file all
documents with the Federal Trade Commission and the United States Department of Justice which may
be required to comply with the HSR Act, and shall promptly furnish all materials thereafter
requested by any of the regulatory agencies having jurisdiction over such filings, in connection
with such transaction. The LLC shall take all reasonable actions and shall file and use reasonable
best efforts to have declared effective or approved all documents and notifications with any
governmental or regulatory bodies, as may be necessary or may reasonably be requested under federal
antitrust laws for the consummation of such transaction. Notwithstanding the foregoing, if any
Unitholder, rather than the LLC, is required to make a filing under the HSR Act in connection with
such a transaction, the LLC will provide to such Unitholder all necessary information for such
filing, will facilitate such filing and will pay all fees and expenses associated with such filing.



          (c) Transfer of Restricted Securities.



               (i) In addition to the transfer restrictions contained in Article X of this Agreement,
Restricted Securities are transferable only pursuant to (A) Public Offerings, (B) Rule 144 of the
Securities and Exchange Commission (or any similar rule or rules then in force) if such rule or
rules are available and (C) subject to the conditions specified in clause (ii) below, any other
legally available means of transfer.



               (ii) In connection with the transfer of any Restricted Securities (other than a transfer
described in Section 6.8(c)(i)(A) and other than a distribution pursuant to the THI
Liquidation), the holder thereof shall deliver written notice to the LLC describing in reasonable
detail the transfer or proposed transfer, together (except in the case of a transfer described in
Section 6.8(c)(i)(B)) with an opinion of counsel that (to the LLC’s reasonable
satisfaction) is knowledgeable in securities law matters to the effect that such transfer of
Restricted Securities may be effected without registration of such Restricted Securities under the
Securities Act. In addition, if the holder of the Restricted Securities delivers to the LLC an
opinion of such counsel that no subsequent transfer of such Restricted Securities shall require
registration under the Securities Act, the LLC shall promptly upon such contemplated transfer
deliver to the prospective transferor new certificates for such Restricted Securities that do not
bear the Securities Act legend set forth in Section 10.7(b). If the LLC is not required to
deliver new certificates for such Restricted Securities not bearing such legend, the holder thereof
shall not transfer the same until the prospective transferee has confirmed to the LLC in writing
its agreement to be bound by the conditions contained in this Section 6.8(c) and
Section 10.7(b).



               (iii) Upon the request of THI (in the case of a request prior to the THI Liquidation) or an
Investor Member (in the case of a request following the THI Liquidation), the



39









 







LLC shall promptly supply to such Investor Member or its prospective transferees all
information regarding the LLC required to be delivered in connection with a transfer pursuant to
Rule 144A of the Securities and Exchange Commission.



          6.9 Nonsolicitation. So long as a Unitholder holds any Units, such Unitholder shall not
solicit, or direct any other person to solicit, any employee of the LLC or any Subsidiary of the
LLC to leave the employ of the LLC or such Subsidiary; provided, however, that the following shall
not be deemed to cause a breach of this restriction: (i) generalized advertisement of employment
opportunities including in trade or industry publications or generalized employee searches by a
headhunter/search firm (in either case not focused specifically on the employees of the LLC or any
Subsidiary of the LLC), (ii) soliciting or hiring any former employee of the LLC or any Subsidiary
of the LLC who has been terminated by the LLC or any Subsidiary of the LLC prior to commencement of
employment discussions between such Unitholder and such former employee, or (iii) soliciting or
hiring any such person who contacts a Unitholder on his or her own initiative without any direct or
indirect solicitation from the Unitholder. The Unitholders acknowledge that breach of the
provisions of this Section 6.9 may cause irreparable injury to the LLC for which monetary
damages are inadequate, difficult to compute, or both. Accordingly, the Unitholders agree that the
provisions of this Section 6.9 may be enforced by injunctive relief for specific
performance.



ARTICLE VII




EXCULPATION AND INDEMNIFICATION




          7.1 Exculpation. No Officer, other employee of the LLC or Manager shall be liable to any
other Officer, other employee of the LLC, Manager, the LLC or to any Unitholder for any loss
suffered by the LLC unless such loss is caused by such Person’s bad faith, gross negligence or
willful misconduct. The Officers, other employees of the LLC and Managers shall not be liable for
errors in judgment or for any acts or omissions that do not constitute bad faith, gross negligence
or willful misconduct. Any Officer, other employee of the LLC or Manager may consult with counsel
and accountants in respect of LLC affairs, and provided such Person acts in good faith reliance
upon the advice or opinion of such counsel or accountants, such Person shall not be liable for any
loss suffered by the LLC in reliance thereon.



          7.2 Right to Indemnification. Subject to the limitations and conditions as provided in
this Article VII, each Person who was or is made a party or is threatened to be made a
party to or is involved in any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative, arbitrative (hereinafter a “Proceeding”), or any appeal in
such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason
of the fact that he or she, or a Person of whom he or she is the legal representative, is or was a
Unitholder, Manager, Officer or other employee of the LLC, or while a Unitholder, Manager, Officer
or employee of
the LLC is or was serving at the request of the LLC as a manager, director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or
domestic limited liability company, corporation, partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise shall be indemnified by the LLC to the fullest
extent permitted by the Delaware Act, as the same exist or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment



40









 







permits the LLC to provide broader indemnification rights than said law permitted the LLC to
provide prior to such amendment) against judgments, penalties (including excise and similar taxes
and punitive damages), fines, settlements and reasonable expenses (including attorneys’ fees)
actually incurred by such Person in connection with such Proceeding, and indemnification under this
Article VII shall continue as to a Person who has ceased to serve in the capacity which
initially entitled such Person to indemnity hereunder. The rights granted pursuant to this
Article VII shall be deemed contract rights, and no amendment, modification or repeal of
this Article VII shall have the effect of limiting or denying any such rights with respect
to actions taken or Proceedings arising prior to any amendment, modification or repeal. It is
expressly acknowledged that the indemnification provided in this Article VII could involve
indemnification for negligence or under theories of strict liability.



          7.3 Advance Payment. Reasonable expenses incurred by a Person of the type entitled to be
indemnified under Section 7.2 who was, is or is threatened to be made a named defendant or
respondent in a Proceeding shall be paid by the LLC in advance of the final disposition of the
Proceeding upon receipt of an undertaking by or on behalf of such Person to repay such amount if it
shall ultimately be determined by a court of competent jurisdiction in a final and non-appealable
judgment that he or she is not entitled to be indemnified by the LLC.



          7.4 Indemnification of Employees and Agents. The LLC, by adoption of a resolution of the
Board, may indemnify and advance expenses to an agent of the LLC to the same extent and subject to
the same conditions under which it may indemnify and advance expenses to Persons who are not or
were not Managers, Officers or employees of the LLC but who are or were serving at the request of
the LLC as a manager, director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of another foreign or domestic limited liability company, corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise
against any liability asserted against him and incurred by him in such a capacity or arising out of
his status as such a Person to the same extent that it may indemnify and advance expenses to
Managers, Officers and employees of the LLC under this Article VII.



          7.5 Appearance as a Witness. Notwithstanding any other provision of this Article
VII, the LLC shall pay or reimburse reasonable out-of-pocket expenses incurred by a Manager,
Officer or employee of the LLC in connection with his appearance as a witness or other
participation in a Proceeding at a time when he is not a named defendant or respondent in the
Proceeding.



          7.6 Nonexclusivity of Rights. The right to indemnification and the advancement and
payment of expenses conferred in this Article VII shall not be exclusive of any other right
which a Manager, Officer, employee or other Person indemnified pursuant to Section 7.2 may
have or hereafter acquire under any law (common or statutory), provision of the Certificate or this
Agreement, agreement, vote of Unitholders or disinterested Managers or otherwise.



          7.7 Insurance. The LLC shall purchase and maintain insurance, at its expense, to protect
itself and any Person who is or was serving as a Manager, Officer, employee or agent of the LLC or
is or was serving at the request of the LLC as a manager, director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign or



41









 







domestic limited ability company, corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other enterprise against any expense, liability or
loss, whether or not the LLC would have the power to indemnify such Person against such expense,
liability or loss under this Article VII.



          7.8 Savings Clause. If this Article VII or
any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then
the LLC shall nevertheless indemnify and hold harmless each Manager, Officer, employee or any other
Person indemnified pursuant to this Article VII as to costs, charges and expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement with respect to any
action, suit or proceeding, whether civil, criminal, administrative or investigative to the full
extent permitted by any applicable portion of this Article VII that shall not have been
invalidated and to the fullest extent permitted by applicable law.



ARTICLE VIII




BOOKS, RECORDS, ACCOUNTING AND REPORTS




          8.1 Records and Accounting. The LLC shall keep, or cause to be kept, appropriate books
and records with respect to the LLC’s business, including all books and records necessary to
provide any information, lists, and copies of documents required to be provided pursuant to
Section 8.3 or pursuant to applicable laws. All matters concerning (i) the determination
of the relative amount of allocations and distributions among the Unitholders pursuant to
Articles III and IV and (ii) accounting procedures and determinations, and other
determinations not specifically and expressly provided for by the terms of this Agreement, shall be
determined by the Board, whose determination shall be final and conclusive as to all of the
Unitholders absent manifest clerical error.



          8.2 Fiscal Year. The fiscal year (the “Fiscal Year”) of the LLC shall constitute
the 12-month period ending on December 31 of each calendar year, or such other annual accounting
period as may be established by the Board.



          8.3 Tax Information. The LLC shall use reasonable best efforts to deliver or cause to be
delivered, within 75 days after the end of each Fiscal Year, to each Person who was a Unitholder at
any time during such Fiscal Year all information necessary for the preparation of such Person’s
United States federal and state income tax returns.



          8.4 Transmission of Communications. Each Person that owns or controls Units on behalf of, or for the benefit of, another Person
or Persons shall be responsible for conveying any report, notice, or other communication received
from the Board to such other Person or Persons.



          8.5 LLC Funds. The Board and Officers may not commingle the LLC’s funds with the funds of
any Unitholder or Managers.



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          8.6 Information Rights.



          (a) Financial Statements and Other Information. The LLC shall deliver to each
Investor Member (if and for so long as such Investor Member holds any Units):



               (i) as soon as available but in any event within 45 days after the end of each monthly
accounting period in each fiscal year, unaudited consolidated statements of income and cash flows
of the LLC and its Subsidiaries for such monthly period and for the period from the beginning of
the fiscal year to the end of such month, and consolidated balance sheets of the LLC and its
Subsidiaries as of the end of such monthly period, all prepared in accordance with United States
generally accepted accounting principles, consistently applied, subject to the absence of footnote
disclosures and to normal year-end adjustments;



               (ii) as soon as available but in any event within 45 days after the end of each quarterly
accounting period in each fiscal year, unaudited consolidated statements of income and cash flows
of the LLC and its Subsidiaries for such quarterly period and for the period from the beginning of
the fiscal year to the end of such quarter, and consolidated balance sheets of the LLC and its
Subsidiaries as of the end of such quarterly period, all prepared in accordance with United States
generally accepted accounting principles, consistently applied, subject to the absence of footnote
disclosures and to normal year-end adjustments, together with a management discussion and analysis
of financial conditions and results of operations in a form reasonably satisfactory to the Investor
Members (an “MD&A”);



               (iii) within 90 days after the end of each fiscal year, consolidating and consolidated
statements of income and cash flows of the LLC and its Subsidiaries for such fiscal year, and
consolidating and consolidated balance sheets of the LLC and its Subsidiaries as of the end of such
fiscal year, setting forth in each case comparisons to the annual budget and to the preceding
fiscal year, all prepared in accordance with United States generally accepted accounting
principles, consistently applied, together with an MD&A, and accompanied by (a) with respect to the
consolidated portions of such statements (except with respect to budget data), an opinion
containing no exceptions or qualifications (except for qualifications regarding specified
contingent liabilities) of an independent accounting firm of recognized national standing
acceptable to the holders of the Required Interest, and (b) a copy of such accounting firm’s annual
management letter to the Board;



               (iv) promptly upon receipt thereof, any additional reports, management letters or other
detailed information concerning significant aspects of the LLC’s operations or
financial affairs given to the LLC by its independent accountants (and not otherwise contained
in other materials provided hereunder);



               (v) with reasonable promptness, such other information and financial data concerning the LLC
and its Subsidiaries as any Person entitled to receive information under this Section 8.6
may reasonably request and which the LLC can provide without undue burden, including, without
limitation, all securitization reporting, remittance reports and other similar reports of the LLC.



43









 





     Each of the financial statements referred to in subsections (i) and (iii)
shall be true and correct in all material respects as of the dates and for the periods stated
therein, subject in the case of the unaudited financial statements to changes resulting from normal
year-end audit adjustments (none of which would, alone or in the aggregate, be materially adverse
to the financial condition, operating results, assets, operations or business prospects of the LLC
and its Subsidiaries taken as a whole).



          (b) Inspection of Property. The LLC shall permit any representatives designated by any
Investor Member (if and for so long as such Investor Member holds any Units), upon reasonable
notice and during normal business hours and such other times as any such holder may reasonably
request, to (a) visit and inspect any of the properties of the LLC and its Subsidiaries, (b)
examine the corporate and financial records of the LLC and its Subsidiaries and make copies thereof
or extracts therefrom and (c) discuss the affairs, finances and accounts of any such entities with
the directors, officers, key employees and independent accountants of the LLC and its Subsidiaries;
provided that the LLC shall have the right to have its chief financial officer present at any
meetings with the LLC’s independent accountants.



          8.7 Confidentiality. The Unitholders acknowledge that, from time to time, they may
receive information from or concerning the other Unitholders, the LLC and its Subsidiaries in the
nature of trade secrets or that otherwise is confidential, the release of which is reasonably
expected to damage the LLC and its Subsidiaries or Persons with which it does business
(“Confidential Information”). In addition to any other obligations of any Unitholder
pursuant to any agreement between the LLC and such Unitholder or otherwise, each Unitholder agrees
that it shall hold in strict confidence any Confidential Information that it receives and may not
disclose it to any Person other than another Unitholder, a member of the Board or an Officer,
except for disclosures (i) compelled by law (but the Unitholder must notify the other Unitholders
promptly of any request for that information, before disclosing it, if legal and practicable), (ii)
to advisers, agents or representatives of the Unitholder or Persons to whom that Unitholder’s Units
may be Transferred as permitted by this Agreement, but only if the recipients have been notified
of, and have agreed to be bound by, the provisions of this Section 8.7, or (iii) of
information that the Unitholder also has received from a source independent of the LLC that the
Unitholder reasonably believes obtained that information without breach of any obligation of
confidentiality. The Unitholders acknowledge that breach of the provisions of this Section
8.7 may cause irreparable injury to the LLC for which monetary damages are inadequate,
difficult to compute,
or both. Accordingly, the Unitholders agree that the provisions of this Section 8.7
may be enforced by injunctive relief for specific performance. Each Unitholder also agrees to
cause the Managers designated by such Unitholder to treat any Confidential Information in the same
manner as required of the Unitholder in this Section 8.7.



ARTICLE IX




TAXES




          9.1 Tax Returns. The LLC shall prepare and file all necessary federal and state income
tax returns, including making the elections described in Section 9.2. The LLC shall
provide to each Unitholder within 75 days after the end of each Taxable Year, any applicable Form
K-1 for such Taxable Year, and such other information as may be necessary for the



44









 







preparation of each such Unitholder’s federal and state income tax returns. Each Unitholder shall furnish to the
LLC all pertinent information in its possession relating to LLC operations that is necessary to
enable the LLC’s income tax returns to be prepared and filed.



          9.2 Tax Elections. The LLC shall make any election the LLC may deem appropriate and in
the best interests of the Unitholders.



          9.3 Tax Matters Partner. HGF (or, to the extent allowed under applicable law, an Affiliate
so designated by HGF) shall be the “tax matters partner” of the LLC pursuant to Section 6231(a)(7)
of the Code (the “Tax Matters Partner”). The Tax Matters Partner shall be authorized and
required to represent the LLC (at the LLC’s expense) in connection with all examinations of the
LLC’s affairs by tax authorities, including resulting administrative and judicial proceedings, and
to expend LLC funds for professional services and other expenses reasonably incurred in connection
therewith. Each Unitholder agrees to cooperate with the LLC and to do or refrain from doing any or
all things reasonably requested by the LLC with respect to the conduct of such proceedings. The
Tax Matters Partner shall inform each other Unitholder of all significant matters that may come to
its attention in its capacity as Tax Matters Partner by giving notice thereof on or before the
fifth business day after becoming aware thereof and, within that time, shall forward to each other
Unitholder copies of all significant written communications he may receive in that capacity. The
Tax Matters Partner may not take any action contemplated by Sections 6222 through 6232 of the Code
without the consent of the Board, but this sentence does not authorize the Tax Matters Partner (or
any Manager) to take any action left to the determination of an individual Unitholder under
Sections 6222 through 6232 of the Code.



ARTICLE X




TRANSFER OF UNITS




          10.1 Transfers by Unitholders.



          (a) No Unitholder shall Transfer any interest in any Units except in compliance with this
Article X.



          (b) [Intentionally Omitted].



          (c) Each transferee of Units or other interest in the LLC shall, as a condition precedent to
such Transfer, execute a counterpart to this Agreement pursuant to which such transferee shall
agree to be bound by the provisions of this Agreement; provided, however, that in
connection with the THI Liquidation the new Unitholders shall only be required to execute a new
signature page to this Agreement. Each transferee of Units or other interest in the LLC (other
than a transferee in a Public Offering) shall, upon executing a counterpart to this Agreement, have
all of the economic rights and privileges of the transferor, but shall not, notwithstanding
anything herein to the contrary except the proviso in this Section 10.1(c), be entitled to
any voting rights or rights to designate members of the Board, without the prior consent of the
holders of at least two-thirds (2/3) of the Voting Units held by the Investor Members other than
the transferor; provided that voting rights and rights to designate members of the Board
shall transfer automatically to (i) a transferee of Units pursuant to the exercise of



45









 







first offer
rights set forth in Section 10.2 if such transferee is an existing Unitholder with existing
voting rights or rights to designate members of the Board, respectively, (ii) a Permitted
Transferee, and (iii) the Investor Members, in connection with the Units distributed pursuant to
the THI Liquidation.



          (d) The restrictions on the Transfer of Units or other interests in the LLC set forth in this
Section 10.1 shall continue with respect to each Unit or other interest in any Unit until
the date on which such Unit or other interest has been transferred in a Public Sale or pursuant to
a Sale of the Company that meets the conditions for Transfer set forth in this Article X.



          (e) The LLC may not recognize for any purpose any purported Transfer of all or part of a Unit
until the other applicable provisions of this Article X have been satisfied and the LLC has
received (other than in the case of transfers described in Sections 6.8(c)(i) above and the
Transfers pursuant to the THI Liquidation) a favorable opinion of legal counsel reasonably
acceptable to the Board to the effect that either (i) the Transfer of the Unit or part thereof
subject to the Transfer or admission has been registered under the Securities Act and any
applicable state securities laws or (ii) the Transfer or admission is exempt from registration
under those laws. The Board, however, may waive any or all of the requirements of this Section
10.1(e).



          (f) The LLC may not recognize for any purpose any purported Transfer of all or part of a Unit
until the other applicable provisions of this Article X have been satisfied and the LLC has
received (other than in the case of transfers described in Sections 6.8(c)(i) above and the
Transfers pursuant to the THI Liquidation) a favorable opinion of legal counsel reasonably
acceptable to the Board to the effect that the Transfer will not cause the LLC to be treated
as a “publicly traded partnership,” as defined in Code Section 7704, taxable as a corporation. The
Board, however, may waive any or all of the requirements of this Section 10.1(f).



          (g) If a Unitholder Transfers its Units or other interests in the LLC to a Permitted
Transferee, then for so long as such Permitted Transferee holds such Units or other interests in
the LLC, such Permitted Transferee must continue to be a Permitted Transferee (as defined in this
Agreement) of the initial holder of such Units or other interests in the LLC issued by the LLC.
For example, if Unitholder A transfers its Units to Unitholder B as a Permitted Transferee of
Unitholder A, then Unitholder B must continue to be a Permitted Transferee of Unitholder A for so
long as Unitholder B owns such Units. If Unitholder B transfers its Units to Unitholder C as a
Permitted Transferee of Unitholder B, then Unitholder C must continue to be a Permitted Transferee
of Unitholder A for so long as Unitholder C owns such Units.



          (h) No Unitholder may, directly or indirectly, Transfer any Class B Preferred Units
(including in a Sale of the Company) in exchange for consideration with a value in excess of the
Class B Liquidation Preference of such Units.



          10.2 Right of First Offer.



          (a) Prior to making any Transfer of Units or other interests in the LLC (other than a Transfer in
connection with a Public Offering, a Public Sale of the type referred to in clause (i) of the definition
thereof, a Sale of the Company or the THI Liquidation), any Unitholder desiring to make such Transfer
(the “Selling Unitholder”) will give written notice (the “Offer Notice”) to



46









 







the LLC and the other Unitholders
(the “Other Unitholders”). The Offer Notice will disclose in reasonable detail the number of Units or other
interests in the LLC to be offered for sale and the terms and conditions of the proposed sale. Such Selling
Unitholder will not consummate any Transfer until 45 days after the Offer Notice has been given to the Other
Unitholders, unless the parties to the Transfer have been finally determined pursuant to this Section 10.2 prior
to the expiration of such 45-day period. (The date of the first to occur of such events is referred to herein
as the “Authorization Date”.) The Offer Notice shall constitute a binding offer to sell the Units or other
interests in the LLC on such terms and conditions contained therein.



          (b) The Other Unitholders may elect to purchase all (but not less than all) of the Units or
other interests to be sold upon the same terms and conditions as those set forth in the Offer
Notice by giving written notice of such election to such Selling Unitholder within 25 days after
the Offer Notice has been given to the Other Unitholders. If more than one Unitholder elects to
purchase the Units or other interests to be transferred, the Units or other interests in the LLC to
be sold shall be allocated among the electing Other Unitholders pro rata according to the number of
Common Units and Class B Preferred Units that are owned by each electing Other Unitholder on a
fully diluted basis. If one or more of the Other Unitholders have elected to purchase Units or
other interests in the LLC from the Selling Unitholder, the transfer of such Units or other
interests shall be consummated as soon as practicable after delivery of the election notices to the
Selling Unitholder, but in any event within 15 days after the Authorization Date. If one or more
of the Other Unitholders do not elect to purchase all of the Units or other interests
specified in the Offer Notice, the Selling Unitholder may transfer the Units or other
interests specified in the Offer Notice at a price and on terms no more favorable to the
transferee(s) thereof than specified in the Offer Notice during the 90-day period immediately
following the Authorization Date. Any Units or other interests not Transferred within such 90-day
period will be subject to the provisions of this Section 10.2 upon subsequent Transfer.



          (c) The restrictions of this Section 10.2 will not apply with respect to Transfers to
Permitted Transferees or Transfers pursuant to the THI Liquidation.



          (d) Notwithstanding anything herein to the contrary, except pursuant to clause (c)
above, in no event shall any Transfer of Units pursuant to this Section 10.2 be made for
any consideration other than cash payable upon consummation of such Transfer.



          (e) The restrictions set forth in this Section 10.2 shall continue with respect to
each Unit or other interest in the LLC until the earlier of (i) the date on which such Units or
other interests have been transferred in a Public Sale, (ii) the consummation of an Approved Sale,
(iii) the consummation of a Qualified IPO, and (iv) the date on which such Units or other interests
have been transferred pursuant to this Section 10.2 (other than pursuant to Section
10.2(c) and other than a transfer to a Unitholder purchasing from a Selling Unitholder pursuant
to Section 10.2(b)).



          10.3 Tag-Along Rights.



          (a) At least 30 days prior to any Transfer of any Units or other interests in the LLC (other
than to a Permitted Transferee or a Transfer pursuant to the THI Liquidation) by one or more of the
Unitholders (each, a “Transferring Unitholder”), such Transferring Unitholders



47









 







shall deliver a written notice (the “Tag-Along Notice”) to the LLC and the other Unitholders of
the same class or classes as being included in the Transfer (the “Tag-Along Unitholders”)
specifying in reasonable detail the identity of the prospective transferee(s) and the terms and
conditions of the Transfer (which notice may be included in and given at the same time as the Offer
Notice under Section 10.2(a)). The Tag-Along Unitholders may elect to participate in the
contemplated Transfer by delivering written notice to each of the Transferring Unitholders within
30 days after delivery of the Tag-Along Notice. The Transferring Unitholder and such Tag-Along
Unitholders will be entitled to sell in the contemplated Transfer, at the same price and on the
same terms, a number of such class of Units proposed to be transferred equal to the product of (A)
the quotient determined by dividing the number of units of such class of Units owned by such Person
by the aggregate number of outstanding units of such class of Units owned by the Transferring
Unitholder and each such Tag-Along Unitholder participating in such sale and (B) the number of such
class of Units to be sold in the contemplated Transfer.



          (b) The Transferring Unitholder will use reasonable commercially reasonable efforts to obtain
the agreement of the prospective transferee(s) to the participation of the Tag-Along Unitholders
in any contemplated Transfer, and the Transferring Unitholder will not transfer any of its Units to
the prospective transferee(s) unless (A) the prospective transferee(s) agrees to allow the
participation of the Tag-Along Unitholders or (B) the Transferring Unitholder
agree to purchase the number of such class of Units from the Tag-Along Unitholders that the
Tag-Along Unitholders would have been entitled to sell pursuant to this Section 10.3(b) for
the consideration per unit to be paid to the Transferring Unitholder by the prospective
transferee(s).



          (c) [Intentionally Omitted].



          (d) The provisions of this Section 10.3 will terminate upon the first to occur of (i)
the consummation of a Sale of the Company and (ii) the consummation of a Qualified IPO.



          10.4 Sale of the Company.



          (a) If the Board and the holders of the Required Interest approve a Sale of the Company (an
“Approved Sale”), each holder of Units shall vote for, consent to and raise no objections
against such Approved Sale. If the Approved Sale is structured as a (i) merger or consolidation,
each holder of Units shall waive any dissenters’ rights, appraisal rights or similar rights in
connection with such merger or consolidation or (ii) sale of Units, each holder of Units shall
agree to sell all of his, her or its Units or rights to acquire Units on the terms and conditions
approved by the Board and the holders of the Required Interest. Each holder of Units shall take
all necessary or desirable actions in connection with the consummation of the Approved Sale as
requested by the LLC.



          (b) The obligations of the holders of Units with respect to an Approved Sale are subject to
the terms of Section 10.4(e) below.



          (c) If either the LLC or the holders of any class of Units enter into a negotiation or
transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities
and Exchange Commission may be available with respect to such negotiation or transaction (including
a merger, consolidation or other reorganization), the holders of Units will,



48









 







at the request of the LLC, appoint a purchaser representative (as such term is defined in Rule 501) reasonably acceptable
to the LLC. If any holder of Units appoints a purchaser representative designated by the LLC, the
LLC will pay the fees of such purchaser representative, but if any holder of Units declines to
appoint the purchaser representative designated by the LLC such holder will appoint another
purchaser representative, and such holder will be responsible for the fees of the purchaser
representative so appointed.



          (d) Holders of Units will bear their pro rata share (based upon the Common Units held) of the
costs of any sale of such Units pursuant to an Approved Sale to the extent such costs are incurred
for the benefit of all holders of Units and are not otherwise paid by the LLC or the acquiring
party. For purposes of this Section 10.4(d), costs incurred in exercising reasonable
efforts to take all actions in connection with the consummation of an Approved Sale in accordance
with Section 10.4(a) shall be deemed to be for the benefit of all holders of Units. Costs
incurred by holders of Units on their own behalf will not be considered costs of the transaction
hereunder. Each holder of Units transferring Units pursuant to an Approved Sale shall be obligated,
severally, not jointly, to join on a pro rata basis (based on the number of Common Units to be
sold) in any indemnification or other obligations that are part of the terms and conditions of the
Approved Sale (other than any such obligations that relate specifically to a
particular holder, such as indemnification with respect to representations and warranties
given by a holder regarding such holder’s title to and ownership of Units) (the “LLC Indemnity
Obligations”). Notwithstanding the foregoing, no holder shall be obligated in connection with
any Approved Sale to agree to indemnify or hold harmless the transferees with respect to LLC
Indemnity Obligations in an amount in excess of the net proceeds paid to such holder in connection
with the Approved Sale.



          (e) In the event of an Approved Sale, each Unitholder shall receive in exchange for the Units
held by such Unitholder the same portion of the aggregate consideration from such sale or exchange
that such Unitholder would have received if such aggregate consideration had been distributed by
the LLC pursuant to the terms of Section 4.1. Each holder of Units shall take all
necessary or desirable actions in connection with the distribution of the aggregate consideration
from such sale or exchange as requested by the LLC.



          10.5 Buy/Sell Arrangement.



          (a) Triggering Event. If (i) without the prior written consent of HGF, the Board or,
following the THI Liquidation, the Investor Members (A) cause the LLC or the Company to terminate
the Management Agreement, (B) fail to pay any amount owed to HGF under the Management Agreement in
full as and when due thereunder, (C) remove Mr. Gerald J. Ford as Chief Executive Officer of the
LLC or as Executive Chairman of the Company, or (D) eliminate or materially reduce HGF’s or Mr.
Ford’s responsibilities with respect to the LLC or the Company, except, with respect to each of the
subclauses (A), (C) and (D) above, as a result of a termination by the LLC for Cause, and (ii) such
action or actions are not cured by the Board or the Investor Members within 30 days after receipt
of notice thereof by the Board and the Investor Managers (after expiration of the cure period
without cure, a “Triggering Event”), then HGF shall have the right to make a fully financed
offer to purchase all of the Units and other interests in the LLC from Goldman, GTCR and their
respective Affiliates at a price specified by HGF.



49









 





          (b) Exercise of Buy/Sell Right. Within 180 days after the occurrence of a Triggering
Event, HGF may deliver a notice (a “Buy/Sell Offer Notice”) to Goldman and GTCR offering to
purchase all of the Units and other interests in the LLC held by Goldman, GTCR and their respective
Affiliates (collectively, the “Non-HGF Investors”) at price specified in the Buy/Sell Offer
Notice payable in cash or immediately available funds, which offer may be subject to customary
terms and conditions, but shall not be subject to any financing contingency. The Buy/Sell Offer
Notice shall constitute a binding offer to sell the Units and other interests in the LLC on such
terms and conditions contained therein.



          (c) Non-HGF Investors’ Response and Closing. Within 90 days after receipt of the
Buy/Sell Offer Notice (the “Response Period”), each of the Non-HGF Investors shall notify
HGF and the other Non-HGF Investor as to whether such Non-HGF Investor either (i) accepts such
offer and agrees to sell to HGF all of its Units and other interests in the LLC on the terms and
conditions set forth in the Buy/Sell Offer Notice (the “HGF Buy Option”) or (ii) elects to
purchase the Units and other interests of the LLC held by HGF and its Affiliates at the same price
per Unit and on the same other customary terms and conditions set forth in the Buy/Sell Offer
Notice, and such purchase shall not be subject to any financing contingency (the “HGF Sell
Option”); provided that if any Non-HGF Investor fails to respond within the Response
Period, such Non-HGF Investor shall be deemed to have elected the HGF Buy Option.



               (i) If both of the Non-HGF Investors elect the HGF Sell Option, HGF shall be required to sell
its Units and other interests in the LLC to the Non-HGF Investors in the percentages, at the price
and on the same other customary terms and conditions set forth in the Buy/Sell Offer Notice, and
such sale and corresponding purchase by the Non-HGF Investors shall not be subject to any financing
contingency. The closing of the transactions under the HGF Sell Option shall take place no later
than 60 days after the expiration of the Response Period.



               (ii) If both of the Non-HGF Investors elect the HGF Buy Option, HGF shall be required to
purchase all Units and other interests in the LLC held by the Non-HGF Investors at the price and on
the same other customary terms and conditions set forth in the Buy/Sell Offer Notice, and such
purchase and corresponding sale by the Non-HGF Investors shall not be subject to any financing
contingency. The closing of the transactions under the HGF Buy Option shall take place no later
than 60 days after the expiration of the Response Period.



               (iii) If one Non-HGF Investor elects the HGF Sell Option and the other Non-HGF Investor elects
the HGF Buy Option, then the Non-HGF Investor electing the HGF Sell Option shall, within 14 days
after the expiration of the Response Period, make a second election to either (A) purchase all of
the Units and other interests in the LLC held by HGF and the other Non-HGF Investor at the price
and on the same other customary terms and conditions set forth in the Buy/Sell Offer Notice, in
which case each of HGF and the other Non-HGF Investor shall be required to sell its Units and other
interests in the LLC to such Non-HGF Investor electing to purchase such Units at the price and on
the same other customary terms and conditions set forth in the Buy/Sell Offer Notice, and such sale
and corresponding purchase by such Non-HGF Investor shall not be subject to any financing
contingency, or (B) change its election to the HGF Buy Option, in which case
Section 10.5(c)(ii) shall apply. The closing of the transactions under this
Section 10.5(c)(iii) shall take place no later than 74 days after the expiration of the Response Period.




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          10.6 Change in Business Form. Each Unitholder hereby irrevocably delegates and cedes to
the Board the sole authority and power to, in its sole discretion, (i) convert the Company into a
corporation (by merger or otherwise) or another form of business entity at any time, in which event
the terms and conditions contained herein (including the terms and conditions relating to the Units
and Capital Accounts) shall be, as closely as possible, adopted by the new entity or (ii)
notwithstanding anything else in this Agreement to the contrary, make an election to have the
Company be treated as a corporation for federal income tax purposes and, if applicable, state
income or franchise tax purposes, rather than as a partnership (each, a “Conversion”).
Without limiting the generality of the foregoing, it is anticipated that a Conversion would occur
prior to, or in connection with, an initial Public Offering. In connection with any Conversion,
the Board may cause a recapitalization, reorganization, incorporation and/or exchange of the Units
into securities which, to the extent possible, reflect and are consistent with the Units and
Capital Accounts as in effect immediately prior to such transaction. No Unitholder shall have the
right or power to veto, vote for or against, amend, modify or delay any such Conversion. Further,
each Unitholder shall execute and deliver any documents and instruments and perform any additional
acts that may be necessary or appropriate, as determined by the Board, to effectuate and perform
any such Conversion.



          10.7 Legends.



          (a) Each certificate evidencing Units and each certificate issued in exchange for or upon the
transfer of any Units (if such securities remain Units as defined herein after such transfer) shall
be stamped or otherwise imprinted with legends in substantially the following form:




“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LIMITED
LIABILITY COMPANY AGREEMENT DATED AS OF ___, 2008 AMONG THE ISSUER OF SUCH
SECURITIES (THE “COMPANY”) AND CERTAIN OF THE COMPANY’S SECURITYHOLDERS. A
COPY OF SUCH LIMITED LIABILITY COMPANY AGREEMENT WILL BE FURNISHED WITHOUT
CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”



          (b) Each certificate evidencing Restricted Securities and each certificate issued in exchange
for or upon the transfer of any Restricted Securities (if such securities remain Restricted
Securities as defined herein after such transfer) shall be stamped or otherwise imprinted with
legends in substantially the following form:




“THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED ON
                    , 2008 AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THE TRANSFER OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SPECIFIED IN THE LIMITED
LIABILITY COMPANY AGREEMENT, DATED AS OF ___, 2008 BY AND AMONG THE ISSUER
(THE “COMPANY”) AND CERTAIN INVESTORS, AND THE COMPANY



51









 







RESERVES THE RIGHT TO
REFUSE THE TRANSFER OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN
FULFILLED WITH RESPECT TO SUCH TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE
FURNISHED BY THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND
WITHOUT CHARGE.”


The legend set forth in this Section 10.7(b) shall be removed from the certificates
evidencing any securities which cease to be Restricted Securities.




          10.8 Effect of Assignment.



          (a) Any Unitholder who assigns any Units or other interest in the LLC shall cease to be a
Unitholder of the LLC with respect to such Units or other interest and shall no longer have any
rights or privileges of a Unitholder with respect to such Units or other interest.



          (b) Any Person who acquires in any manner whatsoever any Units or other interest in the LLC,
irrespective of whether such Person has accepted and adopted in writing the terms and provisions of
this Agreement, shall be deemed by the acceptance of the benefits of the acquisition thereof to
have agreed to be subject to and bound by all of the terms and conditions of this Agreement that
any predecessor in such Units or other interest in the LLC of such Person was subject to or by
which such predecessor was bound, except that the rights of the Investor Members to designate
directors pursuant to Section 5.2(a) and any other rights expressly vested solely in the
Investor Members shall not be assignable without the written consent of the holders of a majority
of the Voting Units held by the non-assigning Unitholders.



          10.9 Restriction on Transfer. In order to permit the LLC to qualify for the benefit of a
“safe harbor” under Code Section 7704, notwithstanding anything to the contrary in this Agreement,
no Transfer of any Unit or economic interest shall be permitted or recognized by the LLC or the
Board (within the meaning of Treasury Regulation Section 1.7704-1(d)) if and to the extent that
such Transfer would cause the LLC to have more than 100 partners (within the meaning of Treasury
Regulation Section 1.7704-1(h), including the look-through rule in Treasury Regulation Section
1.7704-1(h)(3)).



          10.10 Transfer Fees and Expenses. The transferor and transferee of any Units or other
interest in the LLC shall be jointly and severally obligated to reimburse the LLC for all
reasonable expenses (including attorneys’ fees and expenses) of any Transfer or proposed Transfer,
whether or not consummated.



          10.11 Void Transfers. Any Transfer by any Unitholder of any Units or other interest in the
LLC in contravention of this Agreement (including, without limitation, the failure of the
transferee to execute a counterpart in accordance with Section 10.1(c)) or which would
cause the LLC to not be treated as a partnership for U.S. federal income tax purposes shall be void
and ineffectual and shall not bind or be recognized by the LLC or any other party. No purported
assignee shall have any right to any profits, losses or distributions of the LLC.



52









 





ARTICLE XI




WITHDRAWAL AND RESIGNATION OF UNITHOLDERS




          11.1 Withdrawal and Resignation of Unitholders. No Unitholder shall have the power or
right to withdraw or otherwise resign or be expelled from the LLC prior to the dissolution and
winding up of the LLC pursuant to Article XII, except simultaneous with the Transfer of all
of a Unitholder’s Units in a Transfer permitted by this Agreement and, if such Transfer is to a
person or entity that is not a Unitholder, the admission of such person or entity as a Unitholder
pursuant to Section 10.1. Notwithstanding that payment on account of a withdrawal may be
made after the effective time of such withdrawal, any completely withdrawing Unitholder will not be
considered a Unitholder for any purpose after the effective time of such complete withdrawal, and,
in the case of a partial withdrawal, such Unitholder’s Capital Account (and corresponding voting
and other rights) shall be reduced for all other purposes hereunder upon the effective time of such
partial withdrawal.



ARTICLE XII




DISSOLUTION AND LIQUIDATION




          12.1 Dissolution. The LLC shall not be dissolved by the admission of additional
Unitholders or the Transfer of Units, or by the death, retirement, resignation, expulsion,
bankruptcy or dissolution of a Unitholder or the occurrence of any other event that terminates the
continued membership of a Unitholder in the LLC. Subject to the rights of the Unitholders
contained herein, the LLC shall dissolve, and its affairs shall be wound up upon the first to occur
of the following:



          (a) at any time by the Board with the prior written consent of holders of the Required
Interest;



          (b) the entry of a decree of judicial dissolution of the LLC under Section 35-5 of the
Delaware Act or an administrative dissolution under Section 18-802 of the Delaware Act; or



          (c) after the consummation of a Qualified IPO, upon the election of any Investor Member.



          Except as otherwise set forth in this Article XII, the LLC is intended to have
perpetual existence.



          12.2 Liquidation and Termination. On dissolution of the LLC, the Board shall act as
liquidator or may appoint one or more representatives or Unitholders as liquidator. The
liquidators shall proceed diligently to wind up the affairs of the LLC, sell all or any portion of
the LLC assets for cash or cash equivalents as they deem appropriate, and make final distributions
as provided herein and in the Delaware Act. The costs of liquidation shall be borne as an LLC
expense. Until final distribution, the liquidators shall continue to operate the LLC properties
with all of the power and authority of the Board. The liquidators shall pay, satisfy, or discharge
from LLC funds all of the debts, liabilities, and obligations of the LLC (including all



53









 







expenses incurred in liquidation) or otherwise make adequate provision for payment and discharge thereof
(including the establishment of a cash fund for contingent liabilities in such amount and for such
term as the liquidators may reasonably determine) and shall promptly distribute the remaining
assets to the holders of Units in accordance with Section 4.1(a). Any non-cash assets will
first be written up or down to their Fair Market Value, thus creating Profit or Loss (if any),
which shall be allocated in accordance with Sections 4.3 and 4.4. In making such
distributions, the liquidators shall allocate each type of asset (i.e., cash, cash
equivalents, securities, etc.) among the Unitholders ratably based upon the aggregate amounts to be
distributed with respect to the Units held by each such holder. Any such distributions in kind
shall be subject to (x) such conditions relating to the disposition and management of such assets
as the liquidators deem reasonable and equitable and (y) the terms and conditions of any agreement
governing such assets (or the operation thereof or the holders thereof) at such time.


The distribution of cash and/or property to a Unitholder in accordance with the provisions of this
Section 12.2 constitutes a complete return to the Unitholder of its Capital Contributions
and a complete distribution to the Unitholder of its interest in the LLC and all the LLC’s property
and constitutes a compromise to which all Unitholders have consented within the meaning of the
Delaware Act. To the extent that a Unitholder returns funds to the LLC, it has no claim against
any other Unitholder for those funds.




          12.3 Cancellation of Certificate. On completion of the distribution of LLC assets as
provided herein, the LLC shall be terminated (and the LLC shall not be terminated prior to such
time), and the Board (or such other Person or Persons as the Delaware Act may require or permit)
shall file a certificate of cancellation with the Secretary of State of Delaware, cancel any other
filings made pursuant to this Agreement that are or should be canceled, and take such other actions
as may be necessary to terminate the LLC. The LLC shall be deemed to continue in existence for all
purposes of this Agreement until it is terminated pursuant to this Section 12.3.



          12.4 Reasonable Time for Winding Up. A reasonable time shall be allowed for the orderly winding up of the business and affairs
of the LLC and the liquidation of its assets pursuant to Section 12.2 in order to minimize
any losses otherwise attendant upon such winding up.



          12.5 Return of Capital. The liquidators shall not be personally liable for the return of
Capital Contributions or any portion thereof to the Unitholders (it being understood that any such
return shall be made solely from LLC assets).



          12.6 Reserves Against Distributions. The Board shall have the right to withhold from
Distributions payable to any Unitholder under this Agreement amounts sufficient to pay and
discharge any reasonably anticipated contingent liabilities of the LLC. Any amounts remaining
after payment and discharge of any such contingent liabilities of the LLC will be paid to the
Unitholders from whom the Distributions were withheld.



54









 





ARTICLE XIII




VALUATION




          13.1 Determination. Subject to Section 13.2, the Fair Market Value of the assets
of the LLC or of a Unit will be determined by the Board (or, if pursuant to Section 12.2,
the liquidators) in its good faith judgment in such manner as its deems reasonable and using all
factors, information and data deemed to be pertinent.



          13.2 Fair Market Value. “Fair Market Value” of (i) a specific LLC asset will mean
the amount which the LLC would receive in an all-cash sale of such asset (free and clear of all
Liens and after payment of all liabilities secured only by such asset) in an arms-length
transaction with an unaffiliated third party consummated on the day immediately preceding the date
on which the event occurred which necessitated the determination of the Fair Market Value (and
after giving effect to any transfer taxes payable in connection with such sale); and (ii) the LLC
will mean the amount which the LLC would receive in an all-cash sale of all of its assets and
businesses as a going concern (free and clear of all Liens and after payment of indebtedness for
borrowed money) in an arms-length transaction with an unaffiliated third party consummated on the
day immediately preceding the date on which the event occurred which necessitated the determination
of the Fair Market Value (assuming that all of the proceeds from such sale were paid directly to
the LLC other than an amount of such proceeds necessary to pay transfer taxes payable in connection
with such sale, which amount will not be received or deemed received by the LLC). After a
determination of the Fair Market Value of the LLC is made as provided above, the Fair Market Value
of a Unit will be determined by making a calculation reflecting the cash distributions which would
be made to the Unitholders in accordance with this Agreement in respect of such
Unit if the LLC were deemed to have received such Fair Market Value in cash and then
distributed the same to the Unitholders in accordance with the terms of this Agreement incident to
the liquidation of the LLC after payment to all of the LLC’s creditors from such cash receipts
other than payments to creditors who hold evidence of indebtedness for borrowed money, the payment
of which is already reflected in the calculation of the Fair Market Value of the LLC and assuming
that all of the convertible debt and other convertible securities were repaid or converted
(whichever yields more cash to the holders of such convertible securities) and all options to
acquire Units (whether or not currently exercisable) that have an exercise price below the Fair
Market Value of such Units were exercised and the exercise price therefor paid. Except as otherwise
provided herein or in any agreement, document or instrument contemplated hereby, any amount to be
paid under this Agreement by reference to the Fair Market Value shall be paid in full in cash, and
any Unit being transferred in exchange therefor will be transferred free and clear of all Liens.



ARTICLE XIV




GENERAL PROVISIONS




          14.1 Amendments. This Agreement may be amended from time to time by a written instrument by
the holders of the Required Interest; provided that (i) no amendment or modification
pursuant to this Section 14.1 that would adversely affect any class of Units in a manner
different than other Units shall be effective against the holders of such class of Units



55









 







without the prior written consent of holders of at least a majority of Units of such class so adversely
affected thereby; (ii) no amendment or modification pursuant to this Section 14.1
that would affect the rights of a Unitholder or group of Unitholders specifically granted such
rights by name shall be effective without that Unitholder’s (or a majority of that group of
Unitholders’) consent; (iii) no amendment or modification pursuant to this Section 14.1
that would adversely affect the Class A Preferred Units or the Common Units and any other Class of
Units shall be effective without the prior consent of the holders of a majority of the Class of
Units so adversely affected that do not also hold such other class of Units and (iv) no
amendment shall be made to Sections 4.6, 6.1, 6.3, Article VII or
this Section 14.1 without the consent of all of the Unitholders.



          14.2 Investor Approval. Whenever this Agreement calls for or refers to the consent or
approval of any matter by an Investor Member, such consent or approval shall be deemed given by the
Investor Member if each of such Investor Member’s designees on the Board has, in his capacity as a
Manager of the LLC, given his consent or approval with respect to such matter at a duly convened
meeting of the Board or pursuant to an effective written consent of the Board, unless, with respect
to any given matter, such Investor Member notifies the LLC in writing that the consent or approval
at the Board level by such Investor Member’s designees on the Board does not constitute the consent
or approval by such Investor Member itself.



          14.3 Title to LLC Assets. LLC assets shall be deemed to be owned by the LLC as an entity, and no Unitholder,
individually or collectively, shall have any ownership interest in such LLC assets or any portion
thereof. Legal title to any or all LLC assets may be held in the name of the LLC or one or more
nominees, as the Board may determine. The Board hereby declares and warrants that any LLC assets
for which legal title is held in its name or the name of any nominee shall be held in trust by the
Board or such nominee for the use and benefit of the LLC in accordance with the provisions of this
Agreement. All LLC assets shall be recorded as the property of the LLC on its books and records,
irrespective of the name in which legal title to such LLC assets is held.



          14.4 Remedies. Each Unitholder and the LLC shall have all rights and remedies set forth in
this Agreement and all rights and remedies which such Person has been granted at any time under any
other agreement or contract and all of the rights which such Person has under any law. Any Person
having any rights under any provision of this Agreement or any other agreements contemplated hereby
shall be entitled to enforce such rights specifically (without posting a bond or other security),
to recover damages by reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.



          14.5 Successors and Assigns. All covenants and agreements contained in this Agreement
shall bind and inure to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors, legal representatives, and permitted assigns, whether so expressed or
not.



          14.6 Severability. Whenever possible, each provision of this Agreement will be interpreted
in such manner as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality, or unenforceability will



56









 







not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and
this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid,
illegal, or unenforceable provision had never been contained herein.



          14.7 Opt-in to Article 8 of the Uniform Commercial Code. The Unitholders hereby agree that
the Units shall be securities governed by Article 8 of the Uniform Commercial Code of the State of
Delaware (and the Uniform Commercial Code of any other applicable jurisdiction).



          14.8 Notice to Unitholder of Provisions. By executing this Agreement, each Unitholder
acknowledges that it has actual notice of (a) all of the provisions hereof (including the
restrictions on the transfer set forth herein), and (b) all of the provisions of the Certificate.



          14.9 Counterparts. This Agreement may be executed in multiple counterparts with the same effect as if all
signing parties had signed the same document. All counterparts shall be construed together and
constitute the same instrument.



          14.10 Consent to Jurisdiction. Each Unitholder irrevocably submits to the nonexclusive
jurisdiction of the United States District Court for the State of Delaware and the state courts of
the State of Delaware for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each Unitholder further agrees that service of
any process, summons, notice or document by United States certified or registered mail to such
Unitholder’s respective address set forth in the LLC’s books and records or such other address or
to the attention of such other person as the recipient party has specified by prior written notice
to the sending party shall be effective service of process in any action, suit or proceeding in
Delaware with respect to any matters to which it has submitted to jurisdiction as set forth above
in the immediately preceding sentence. Each Unitholder irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or
the transactions contemplated hereby in the United States District Court for the State of Delaware
or the state courts of the State of Delaware and hereby irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or proceeding brought in
such court has been brought in an inconvenient forum.



          14.11 Descriptive Headings; Interpretation. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever
required by the context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs shall
include the plural and vice versa. The use of the word “including” in this Agreement shall be by
way of example rather than by limitation. Reference to any agreement, document, or instrument
means such agreement, document, or instrument as amended or otherwise modified from time to time in
accordance with the terms thereof, and, if applicable, hereof. Without limiting the generality of
the immediately preceding sentence, no amendment or other modification to any agreement, document,
or instrument that requires the consent of any Person pursuant to the terms of this Agreement or
any other agreement will be given effect hereunder unless such Person has consented in writing to
such amendment or modification. Wherever required by the context, references to a Fiscal Year
shall refer to a



57









 







portion thereof. The use of the words “or,” “either,” and “any” shall not be
exclusive. The parties hereto have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. Wherever a conflict exists between this Agreement and any other
agreement, this Agreement shall control but solely to the extent of such conflict.



          14.12 Applicable Law. This Agreement shall be governed by, and construed in accordance with, the laws of the
State of Delaware, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware. Any dispute relating
hereto shall be heard in the state or federal courts of Delaware, and the parties agree to
jurisdiction and venue therein.



          14.13 Mutual Waiver of Jury Trial. Because disputes arising in connection with complex
transactions are most quickly and economically resolved by an experienced and expert person and the
parties wish applicable state and federal laws to apply (rather than arbitration rules), the
parties desire that their disputes be resolved by a judge applying such applicable laws.
Therefore, to achieve the best combination of the benefits of the judicial system and of
arbitration, each party to this agreement (including the LLC) hereby waives all rights to trial by
jury in any action, suit, or proceeding brought to resolve any dispute between or among any of the
parties hereto, whether arising in contract, tort, or otherwise, arising out of, connected with,
related or incidental to this agreement, the transactions contemplated hereby and/or the
relationships established among the parties hereunder.



          14.14 Addresses and Notices. All notices, demands, or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given or made when (a) delivered personally to the recipient, (b) telecopied to
the recipient (with hard copy sent to the recipient by reputable overnight courier service (charges
prepaid) that same day) if telecopied before 5:00 p.m. Chicago, Illinois time on a business day,
and otherwise on the next business day, or (c) one business day after being sent to the recipient
by reputable overnight courier service (charges prepaid). Such notices, demands, and other
communications shall be sent to the address for such recipient set forth in the LLC’s books and
records, or to such other address or to the attention of such other person as the recipient party
has specified by prior written notice to the sending party. Any notice to the Board or the LLC
shall be deemed given if received by the Board at the principal office of the LLC designated
pursuant to Section 2.5.



          14.15 Creditors. None of the provisions of this Agreement shall be for the benefit of or
enforceable by any creditors of the LLC or any of its Affiliates, and no creditor who makes a loan
to the LLC or any of its Affiliates may have or acquire (except pursuant to the terms of a separate
agreement executed by the LLC in favor of such creditor) at any time as a result of making the loan
any direct or indirect interest in LLC Profits, Losses, Distributions, capital, or property other
than as a secured creditor.



58









 





          14.16 Waiver. No failure by any party to insist upon the strict performance of any
covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy
consequent upon a breach thereof shall constitute a waiver of any such breach or any other
covenant, duty,
agreement, or condition. Notwithstanding the other provisions of this Agreement, Section
18-305(a) of the Delaware Act shall not apply to the LLC and no Unitholder shall have any rights
thereunder.



          14.17 Further Action. The parties shall execute and deliver all documents, provide all
information, and take or refrain from taking such actions as may be necessary or appropriate to
achieve the purposes of this Agreement.



          14.18 Offset. Whenever the LLC is to pay any sum to any Unitholder or any Affiliate or
related person thereof, any amounts that such Unitholder or such Affiliate or related person owes
to the LLC may be deducted from that sum before payment.



          14.19 Entire Agreement. This Agreement, those documents expressly referred to herein, the
other documents of even date herewith, and the other Transaction Documents embody the complete
agreement and understanding among the parties and supersede and preempt any prior understandings,
agreements, or representations by or among the parties, written or oral, which may have related to
the subject matter hereof in any way, including without limitation the Original Agreement.



          14.20 Delivery by Facsimile. This Agreement, the agreements referred to herein, and each
other agreement or instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by
means of a facsimile machine, shall be treated in all manner and respects as an original agreement
or instrument and shall be considered to have the same binding legal effect as if it were the
original signed version thereof delivered in person. At the request of any party hereto or to any
such agreement or instrument, each other party hereto or thereto shall reexecute original forms
thereof and deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the use of a facsimile
machine as a defense to the formation or enforceability of a contract and each such party forever
waives any such defense.



          14.21 Survival. Sections 4.6, 6.1, 7.1 and 7.2 shall survive
and continue in full force in accordance with its terms notwithstanding any termination of this
Agreement or the dissolution of the LLC.



* * * * *




59









 








          IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf
this Limited Liability Company Agreement as of the date first written above.



	 	 	 	 	 
	 	TRIAD FINANCIAL HOLDINGS LLC

 	 
	 	By:  	/s/ Gerald J. Ford
 	 
	 	 	Name:  	Gerald J. Ford 	 
	 	 	Its:       Chief Executive Officer and Executive
Chairman 	 
	 
	 	TRIAD HOLDINGS INC.

 	 
	 	By:  	/s/ Jeffrey Butcher
 	 
	 	 	Name:  	Jeffrey Butcher 	 
	 	 	Its:    Vice President and Chief Financial Officer 	 
	 




 











 





	 	 	 	 	 
	 	GSCP 2000 TRIAD HOLDING, L.P.1




By: GS Capital Partners 2000, L.P.

Its: General Partner




By: GS Capital Advisors 2000, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ Christine Vollertsen
 	 
	 	 	Name:  	Christine Vollertsen 	 
	 	 	Its: Vice President 	 
	 
	 
	 	GS CAPITAL PARTNERS 2000 EMPLOYEE
 FUND, L.P.




By: GS Employee Funds 2000 GP, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ Christine Vollertsen
 	 
	 	 	Name:  	Christine Vollertsen 	 
	 	 	Its:  Vice President 	 
	 
	 
	 	GSCP 2000 OFFSHORE TRIAD HOLDING, L.P.




By: GS Capital Partners 2000 Offshore, L.P.

Its: General Partner




By: GS Capital Advisors 2000, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ Christine Vollertsen
 	 
	 	 	Name:  	Christine Vollertsen 	 
	 	 	Its:  Vice President 	 
	 





 




			
	1	 	The agreement was executed by Triad Financial Holdings LLC
 and Triad Holdings Inc. on December 30, 2008.  The agreement was
executed by all parties other than Triad Financial Holdings LLC and Triad
 Holdings Inc. on December 31, 2008, following the dissolution and liquidation
of Triad Holdings Inc. 




 









 










	 	 	 	 	 
	 	GOLDMAN SACHS DIRECT INVESTMENT
 FUND 2000, L.P.




By: GS Employee Funds 2000 GP, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ Christine Vollertsen
 	 
	 	 	Name:  	Christine Vollertsen 	 
	 	 	Its:  Vice President 	 
	 
	 
	 	GSCP 2000 GmbH TRIAD HOLDING, L.P.




By: GSCP 2000 GmbH Triad Holding I

Its: General Partner

 	 
	 	By:  	/s/ Christine Vollertsen
 	 
	 	 	Name:  	Christine Vollertsen 	 
	 	 	Its:  Vice President 	 
	 
	 
	 	MTGLQ INVESTORS, L.P.




By: MLQ L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ Peter C. Aberg
 	 
	 	 	Name:  	Peter C. Aberg 	 
	 	 	Its: Peter C. Aberg 	 
	 
	 
	 	GS CAPITAL PARTNERS 2000, L.P.




By: GS Capital Advisors 2000, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ Christine Vollertsen
 	 
	 	 	Name:  	Christine Vollertsen 	 
	 	 	Its:  Vice President 	 
	 



 









 






	 	 	 	 	 
	 	GTCR FUND VIII, L.P.



By: GTCR Partners VIII, L.P.

Its: General Partner



By: GTCR Golder Rauner II, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ David A. Donnini
 	 
	 	 	Name:  	David A. Donnini 	 
	 	 	Its:   Principal 	 
	 
	 
	 	FUND VIII/B TRIAD SPLITTER, L.P.




By: GTCR Partners VIII, L.P.

Its: General Partner




By: GTCR Golder Rauner II, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ David A. Donnini
 	 
	 	 	Name:  	David A. Donnini 	 
	 	 	Its:   Principal 	 
	 
	 
	 	GTCR CO-INVEST II, L.P.




By: GTCR Golder Rauner II, L.L.C.

Its: General Partner

 	 
	 	By:  	/s/ David A. Donnini
 	 
	 	 	Name:  	David A. Donnini 	 
	 	 	Its:    Principal 	 
	 
	 
	 	HUNTER’S GLEN/FORD LTD.




By: Ford Diamond Corporation

Its: General Partner

 	 
	 	By:  	/s/ Gerald J. Ford
 	 
	 	 	Name:  	Gerald J. Ford 	 
	 	 	Its:    President 	 
	 
	 	 	 
	 	                                              /s/ Gerald J. Ford
 	 
	 	Gerald J. Ford 	 
	 	 	 



 









 






	 	 	 	 	 
	 	 	 
	 
	 	                                              /s/ J. Randy Staff
 	 
	 	J. Randy Staff 	 
	 	 	 
	 	 	 
	 	                                              /s/ Carl B. Webb
 	 
	 	Carl B. Webb 	 
	 	 	 
	 	 	 
	 	                                              /s/ Donald J. Edwards
 	 
	 	Donald J. Edwards 	 
	 	 	 
	 




 











 





SCHEDULE A




[Intentionally omitted. Available upon request.]