EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of
April 15, 2005
among
DEALERTRACK, INC.
DEALERTRACK HOLDINGS, INC.
THE LENDERS PARTY HERETO
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and LC Issuing Bank
---------------------------
XXXXXX COMMERCIAL PAPER INC.,
Syndication Agent
WACHOVIA BANK, NATIONAL ASSOCIATION,
Documentation Agent
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X.X. XXXXXX SECURITIES INC.,
XXXXXX BROTHERS INC.
and
WACHOVIA SECURITIES INC.,
as Arrangers
X.X. XXXXXX SECURITIES INC.
and
XXXXXX BROTHERS INC.,
as Joint Bookrunners
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS
Section 1.01. Defined Terms.................................................... 1
Section 1.02. Classification of Loans and Borrowings........................... 24
Section 1.03. Terms Generally.................................................. 24
Section 1.04. Accounting Terms; Changes in GAAP................................ 24
ARTICLE 2
THE CREDITS
Section 2.01. Revolving and Term Commitments................................... 25
Section 2.02. Revolving and Term Loans......................................... 25
Section 2.03. Requests to Borrow Revolving or Term Loans....................... 26
Section 2.04. Letters of Credit................................................ 27
Section 2.05. Funding of Revolving and Term Loans.............................. 32
Section 2.06. Interest Elections............................................... 33
Section 2.07. Termination or Reduction of Commitments.......................... 34
Section 2.08. Payment at Maturity; Evidence of Debt............................ 35
Section 2.09. Scheduled Amortization of Term Loans............................. 36
Section 2.10. Optional and Mandatory Prepayments............................... 37
Section 2.11. Fees............................................................. 38
Section 2.12. Interest......................................................... 40
Section 2.13. Alternate Rate of Interest....................................... 40
Section 2.14. Increased Costs.................................................. 41
Section 2.15. Break Funding Payments........................................... 42
Section 2.16. Taxes............................................................ 43
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs...... 45
Section 2.18. Lender's Obligation to Mitigate; Replacement of Lenders.......... 47
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Powers............................................. 47
Section 3.02. Authorization; Enforceability.................................... 48
Section 3.03. Governmental Approvals; No Conflicts............................. 48
Section 3.04. Financial Statements; No Material Adverse Change................. 48
Section 3.05. Properties....................................................... 49
Section 3.06. Litigation and Environmental Matters............................. 49
Section 3.07. Compliance with Laws and Agreements.............................. 50
Section 3.08. Investment and Holding Company Status............................ 50
Section 3.09. Taxes............................................................ 50
Section 3.10. ERISA............................................................ 50
Section 3.11. Disclosure....................................................... 51
Section 3.12. Subsidiaries..................................................... 51
Section 3.13. Insurance........................................................ 51
Section 3.14. Labor Matters.................................................... 51
Section 3.15. Solvency......................................................... 52
ARTICLE 4
CONDITIONS
Section 4.01. Effective Date................................................... 52
Section 4.02. Each Extension of Credit......................................... 54
ARTICLE 5
AFFIRMATIVE COVENANTS
Section 5.01. Financial Statements and Other Information....................... 55
Section 5.02. Notice of Material Events........................................ 57
Section 5.03. Information Regarding Collateral................................. 58
Section 5.04. Existence; Conduct of Business................................... 58
Section 5.05. Payment of Obligations........................................... 58
Section 5.06. Maintenance of Properties........................................ 58
Section 5.07. Insurance........................................................ 58
Section 5.08. Casualty and Condemnation........................................ 60
Section 5.09. Proper Records; Rights to Inspect and Appraise................... 60
Section 5.10. Compliance with Laws............................................. 60
Section 5.11. Use of Proceeds and Letters of Credit............................ 60
Section 5.12. Additional Subsidiaries.......................................... 61
Section 5.13. Further Assurances............................................... 61
ARTICLE 6
NEGATIVE COVENANTS
Section 6.01. Debt; Certain Equity Securities.................................. 62
Section 6.02. Liens............................................................ 65
Section 6.03. Fundamental Changes.............................................. 66
Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions........ 67
Section 6.05. Asset Sales...................................................... 69
Section 6.06. Sale and Leaseback Transactions.................................. 70
Section 6.07. Hedging Agreements............................................... 70
Section 6.08. Restricted Payments; Certain Payments of Debt.................... 70
Section 6.09. Transactions with Affiliates..................................... 71
Section 6.10. Restrictive Agreements........................................... 72
Section 6.11. Amendment of Material Documents; Change in Fiscal Year........... 72
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Section 6.12. Capital Expenditures............................................. 72
Section 6.13. Leverage Ratio................................................... 72
Section 6.14. Fixed Charge Coverage Ratio...................................... 73
ARTICLE 7
EVENTS OF DEFAULT
ARTICLE 8
THE AGENTS
Section 8.01. Appointment and Authorization.................................... 76
Section 8.02. Rights and Powers as a Lender.................................... 76
Section 8.03. Limited Duties and Responsibilities.............................. 76
Section 8.04. Authority to Rely on Certain Writings, Statements and Advice..... 77
Section 8.05. Sub-Agents and Related Parties................................... 77
Section 8.06. Resignation; Successor Administrative Agent...................... 77
Section 8.07. Credit Decisions by Lenders...................................... 78
Section 8.08. Other Agents..................................................... 78
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices.......................................................... 79
Section 9.02. Waivers; Amendments.............................................. 79
Section 9.03. Expenses; Indemnity; Damage Waiver............................... 82
Section 9.04. Successors and Assigns........................................... 83
Section 9.05. Survival......................................................... 86
Section 9.06. Counterparts; Integration; Effectiveness......................... 87
Section 9.07. Severability..................................................... 87
Section 9.08. Right of Set-off................................................. 87
Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process....... 88
Section 9.10. WAIVER OF JURY TRIAL............................................. 88
Section 9.11. Headings......................................................... 89
Section 9.12. Confidentiality.................................................. 89
SCHEDULES:
Schedule 1.01A -- Existing Letters of Credit
Schedule 1.01B -- Initial Investors
Schedule 1.01C -- Proposed Acquisitions
Schedule 2.01 -- Commitments
Schedule 3.05 -- Existing Real Properties
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- List of Subsidiaries; Holdings Preferred Stock
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Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Debt
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
Schedule 6.11 -- Material Agreements
EXHIBITS:
Exhibit A -- Form of Assignment
Exhibit B -- Form of Opinion of Special Counsel to the Credit Parties
Exhibit C -- Form of Guarantee and Security Agreement
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CREDIT AGREEMENT dated as of April 15, 2005 among DEALERTRACK, INC.,
DEALERTRACK HOLDINGS, INC., the LENDERS party hereto and JPMORGAN CHASE BANK,
N.A., as Administrative Agent and LC Issuing Bank.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ADJUSTED CONSOLIDATED EBITDA" means, for any period, Consolidated EBITDA
for such period less the aggregate amount of Capital Expenditures made during
such period.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Adjustment.
"ADMINISTRATIVE AGENT" means JPMorgan Chase Bank, N.A., in its capacity as
administrative agent under the Loan Documents.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with such specified Person.
"AGENTS" means, collectively, the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Joint Bookrunners and the Arrangers.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
will be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"APPLICABLE RATE" means for any day:
(a) with respect to any Revolving Loan or Term Loan that is Base
Rate Loan, a rate per annum of 0.50%;
(b) with respect to any Revolving Loan or Term Loan that is a
Eurodollar Loan, a rate per annum of 1.50%; and
(c) with respect to commitment fees, a rate per annum of 0.325%.
"ARRANGERS" means X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc. and
Wachovia Securities Inc., in their capacity as Arrangers in respect of this
Agreement.
"ASSET DISPOSITION" means a Prepayment Event described in clause (a) of
the definition of "Prepayment Event".
"ASSIGNMENT" means an assignment and assumption agreement entered into by
a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AUTHORIZED OFFICER" of any Person means, with respect to any action, any
of the chief executive officer, president, chief financial officer, treasurer,
controller, secretary or any vice president of such Person, in each case who is
duly authorized to take such action.
"BASE RATE", when used with respect to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"BORROWER" means Holdings or the Company, as the context may require, and
"BORROWERS" means Holdings and the Company. When used in connection with a
specific Loan, Borrowing or Letter of Credit, the term "BORROWER" means the
borrower (or proposed borrower) of such Loan or Borrowing or the account party
(or proposed account party) for such Letter of Credit.
"BORROWER LOAN OBLIGATIONS" means all principal of all Loans and LC
Reimbursement Obligations outstanding from time to time under this Agreement,
all interest (including Post-Petition Interest) on such Loans and LC
Reimbursement Obligations and all other amounts now or hereafter payable by the
Borrowers pursuant to the Loan Documents.
"BORROWING" means Loans to the same Borrower of the same Class and
Interest Type made, converted or continued on the same day and, in the case of
Eurodollar Loans, as to which the same Interest Period is in effect.
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"BORROWING REQUEST" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL EXPENDITURES" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of Holdings and its
Subsidiaries that are (or would be) set forth in a consolidated statement of
cash flows of Holdings and its Subsidiaries for such period prepared in
accordance with GAAP and (b) any Capital Lease Obligations incurred by Holdings
and its Subsidiaries during such period; provided that Capital Expenditures
shall not include any such expenditures which constitute a Permitted
Acquisition.
"CAPITAL LEASE OBLIGATIONS" of any Person means obligations of such Person
to pay rent or other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination thereof, which
obligations are required under GAAP to be classified and accounted for as
capital leases on a balance sheet of such Person. The amount of such obligations
will be the capitalized amount thereof determined in accordance with GAAP.
"CASH COLLATERAL ACCOUNT" has the meaning specified in the Security
Agreement.
"CASUALTY EVENT" means a Prepayment Event described in clause (b) of the
definition of "Prepayment Event".
"CHANGE IN CONTROL" means (a) before an IPO is consummated, the failure by
the Initial Investors to own, directly or indirectly, beneficially and of
record, Equity Interests in Holdings representing at least 50% of each of the
aggregate ordinary voting power and aggregate equity value represented by the
issued and outstanding Equity Interests in Holdings; (b) after an IPO is
consummated, the acquisition of ownership, directly or indirectly, beneficially
or of record, by any Person or group (within the meaning of the Exchange Act and
the rules of the SEC thereunder as in effect on the date hereof) other than any
Initial Investor, of Equity Interests representing more than either (i) 30% of
the aggregate ordinary voting power or the aggregate equity value represented by
the issued and outstanding Equity Interests in Holdings or (ii) the percentage
of the then outstanding ordinary voting power or the equity value represented by
the issued and outstanding Equity Interests in Holdings owned, directly or
indirectly, beneficially and of record, by the Initial Investors; (c) occupation
of a majority of
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the seats (other than vacant seats) on the board of directors of Holdings by
Persons who were neither (i) nominated by the board of directors of Holdings nor
(ii) appointed by directors so nominated; or (d) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person (except
Holdings) of any Equity Interest in the Company.
"CHANGE IN LAW" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after such date or (c) compliance by any Lender or the LC Issuing Bank (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's or the LC Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after such date.
"CHIEF FINANCIAL OFFICER" means the chief financial officer of the
Company.
"CLASS" (a) when used with respect to Lenders, refers to whether such
Lenders are Revolving Lenders or Term Lenders, (b) when used with respect to
Commitments, refers to whether to such Commitments are Revolving Commitments or
Term Commitments and (c) when used with respect to Loans or a Borrowing, refers
to whether such Loans, or the Loans comprising such Borrowing, are Revolving
Loans or Term Loans.
"COLLATERAL" means any and all "Collateral", as defined in any Security
Document.
"COLLATERAL AND GUARANTEE REQUIREMENT" means the requirement that:
(a) the Administrative Agent shall have received from each Credit
Party either (i) a counterpart of the Security Agreement duly executed and
delivered on behalf of such Credit Party or (ii) in the case of any Person
that becomes a Credit Party after the Effective Date, a supplement to the
Security Agreement, in the form specified therein, duly executed and
delivered on behalf of such Credit Party;
(b) all outstanding Equity Interests in any DealerTrack Company
owned by or on behalf of any Credit Party shall have been pledged pursuant
to the Security Agreement (except that the Credit Parties shall not be
required to pledge more than 66% of the outstanding voting Equity
Interests in any Excluded Subsidiary) and the Administrative Agent shall
have received all certificates or other instruments representing
4
such Equity Interests, together with stock powers or other instruments of
transfer with respect thereto endorsed in blank;
(c) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create the
Liens intended to be created by the Security Documents and perfect or
record such Liens to the extent, and with the priority, required by the
Security Agreement, shall have been filed, registered or recorded or
delivered to the Administrative Agent for filing, registration or
recording;
(d) each Credit Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and
delivery of all Security Documents to which it is a party, the performance
of its obligations thereunder and the granting of the Liens granted by it
thereunder; and
(e) each Credit Party shall have taken (or authorized and directed
the Administrative Agent to take) all other action required under the
Security Documents to perfect, register and/or record the Liens granted by
it thereunder.
"COMMITMENT" means a Revolving Commitment or Term Commitment, or any
combination thereof (as the context requires).
"COMPANY" means DealerTrack, Inc., a Delaware corporation.
"CONSOLIDATED CASH INTEREST EXPENSE" means, for any period, the amount by
which:
(a) the sum of (i) the interest expense (including imputed interest
expense in respect of Capital Lease Obligations) of Holdings and its
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, (ii) any interest accrued during such period, in
respect of Debt of Holdings or any Subsidiary, that is required under GAAP
to be capitalized rather than included in consolidated interest expense
for such period and (iii) any cash payments made during such period in
respect of obligations referred to in clause (b)(ii) below that were
amortized or accrued in a previous period, exceeds
(b) the sum of (i) to the extent included in such consolidated
interest expense for such period, non-cash amounts attributable to
amortization of financing costs paid in a previous period and (ii) to the
extent included in such consolidated interest expense for such period,
non-
5
cash amounts attributable to amortization of debt discount or accrued
interest payable in kind for such period.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net Income for
such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such period,
(iv) any extraordinary non-cash charges for such period, (v) restructuring and
relocation costs and expenses incurred during such period, provided that the
amount added back pursuant to this clause (v) in respect of cash items shall not
exceed up to $2,000,000 for any four Fiscal Quarter period, (vi) non-cash
charges for stock option compensation expenses for such period and (vii)
non-capitalized transaction costs incurred in connection with any Permitted
Acquisition, during such period and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, (i) any
extraordinary gains for such period and (ii) non-cash gains from stock option
compensation adjustments for such period, all determined on a consolidated basis
in accordance with GAAP; provided that, for purposes of calculating the Leverage
Ratio, if Holdings or any Subsidiary shall have consummated a material
acquisition or disposition during any measurement period, Consolidated EBITDA
shall be determined on a pro forma basis as if such acquisition or disposition
had occurred on the first day of such period.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of (a)
Consolidated Cash Interest Expense for such period, (b) the aggregate amount of
scheduled principal payments made during such period in respect of Long-Term
Debt of Holdings and its Subsidiaries (except payments made by Holdings or any
Subsidiary to Holdings or any Subsidiary), (c) the aggregate amount of principal
payments (except scheduled principal payments) made during such period in
respect of Long-Term Debt of Holdings and its Subsidiaries (other than the
Loans), in each case to the extent that such payment reduced any scheduled
principal payments that would have become due within one year after the date of
such payment, (d) the aggregate amount of payments made during such period in
respect of Permitted Seller Notes and (e) the aggregate amount of Restricted
Payments made during such period in reliance on clause (iii)(C) of Section
6.08(a).
"CONSOLIDATED GROSS REVENUE" means, for any period, the gross revenue of
Holdings and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP; provided that, if Holdings or any Subsidiary shall have
consummated a material acquisition or disposition during any measurement period,
Consolidated Gross Revenue shall be determined on a pro
6
forma basis as if such acquisition or disposition had occurred on the first day
of such period.
"CONSOLIDATED NET INCOME" means, for any period, the net income or loss of
Holdings and its Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP; provided that there shall be excluded (a) the income of
any Person (except Holdings or a Subsidiary) in which any other Person (except
Holdings, a Subsidiary or a director holding qualifying shares in compliance
with applicable law) owns an Equity Interest, except to the extent that
dividends or other distributions were actually paid by such Person to Holdings
or any Subsidiary during such period, and (b) the income or loss of any Person
accrued before (i) the date it becomes a Subsidiary, (ii) the date it is merged
into or consolidated with Holdings or any Subsidiary or (iii) the date its
assets are acquired by Holdings or any Subsidiary.
"CONSOLIDATED TOTAL ASSETS" means, as of any date, the consolidated total
assets of Holdings and its Subsidiaries as of such date, in the amount that
would be reflected on a balance sheet prepared as of such date on a consolidated
basis in accordance with GAAP.
"CONTROL" of any Person means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of such
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"CREDIT PARTIES" means the Borrowers and the Guarantors.
"DEALERTRACK COMPANIES" means Holdings and its Subsidiaries.
"DEBT" of any Person means, without duplication, (a) all obligations of
such Person for borrowed money or with respect to deposits or advances of any
kind, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person on which interest
charges are customarily paid, (d) all obligations of such Person under
conditional sale or other title retention agreements relating to property
acquired by such Person, (e) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (f) all Debt of others
secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Debt secured thereby has been
assumed, (g) all Guarantees by such Person of Debt of others, (h) all Capital
Lease Obligations of such Person, (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and letters
of guaranty and (j) all obligations, contingent or otherwise, of such Person
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in respect of bankers' acceptances. The Debt of any Person shall include the
Debt of any other entity (including any partnership in which such Person is a
general partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such entity,
except to the extent that contractual provisions binding on the holder of such
Debt provide that such Person is not liable therefor.
"DEBT INCURRENCE" means a Prepayment Event described in clause (d) of the
definition of "Prepayment Event".
"DEFAULT" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits, proceedings and
environmental matters disclosed in Schedule 3.06.
"DOCUMENTATION AGENT" means Wachovia Bank, National Association, in its
capacity as Documentation Agent in respect of this Agreement.
"DOLLARS" or "$" refers to lawful money of the United States.
"DOMESTIC SUBSIDIARY" means a Subsidiary that is not a Foreign Subsidiary.
"EFFECTIVE DATE" means the date on which each of the conditions specified
in Section 4.01 is satisfied (or waived in accordance with Section 9.02).
"ENVIRONMENTAL LAWS" means all applicable laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating in
any way to the environment, the preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of remediation, fines, penalties or
indemnities), of any DealerTrack Company directly or indirectly resulting from
or based on (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Material, (c) exposure to any Hazardous Material, (d) the release or threatened
release of any Hazardous Material into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
by or imposed upon any DealerTrack Company with respect to any of the foregoing.
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"EQUITY INTERESTS" means (i) shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person or (ii) any
warrants, options or other rights to acquire such shares or interests.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with Holdings or any Subsidiary, is treated as a
single employer under Section 414(b) or (c) of the Internal Revenue Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the Internal
Revenue Code, is treated as a single employer under Section 414 of the Internal
Revenue Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (except an
event for which the 30-day notice period is waived); (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Internal Revenue Code or Section 302 of ERISA), whether or
not waived; (c) the filing pursuant to Section 412(d) of the Internal Revenue
Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by Holdings or any
ERISA Affiliate of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by Holdings or any ERISA Affiliate from
the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by Holdings or any ERISA Affiliate of any liability with respect
to withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by Holdings or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from Holdings or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURODOLLAR", when used with respect to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"EVENTS OF DEFAULT" has the meaning specified in Article 7.
"EXCHANGE ACT" means the Securities Exchange Act of 1934.
"EXCLUDED SUBSIDIARY" means (a) any Foreign Subsidiary or (b) any Domestic
Subsidiary (i) which is treated as a corporation for United States federal
9
income tax purposes, (ii) substantially all of the assets of which consist of
Equity Interests in one or more Foreign Subsidiaries and which has never had
material operations and (iii) that has expressly agreed in writing to comply
with the proviso at the end of Section 6.01(a); it being understood that as of
the date hereof, dealerAccess, Inc. is an "Excluded Subsidiary".
"EXCLUDED TAXES" means, with respect to any Lender Party or other
recipient of a payment made by or on account of any obligation of any Credit
Party hereunder or under any other Loan Document:
(a) income or franchise taxes imposed on (or measured by) its net
income by the United States (or any political subdivision thereof), or by
the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending
office is located;
(b) taxes imposed as a result of a present or former connection
between such Lender Party and the jurisdiction imposing such tax (other
than any such connection arising solely from such Lender Party's having
executed, delivered or performed its obligations or received a payment
hereunder or under any other Loan Document);
(c) any branch profits taxes imposed by the United States or any
similar tax imposed by any other jurisdiction described in clause (a)
above; and
(d) in the case of a Foreign Lender, any withholding tax that (i) is
in effect and would apply to amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement or designates a
new lending office or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.16(e).
Notwithstanding the foregoing, a withholding tax will not be an "Excluded Tax"
to the extent that (A) it is imposed on amounts payable to a Foreign Lender
which becomes a Lender by means of an assignment and does not exceed the amount
for which the assignor would have been indemnified pursuant to Section 2.16(a)
or (B) in the case of designation of a new lending office, it does not exceed
the amount for which such Foreign Lender would have been indemnified if it had
not designated a new lending office.
"EXISTING LETTERS OF CREDIT" means the letters of credit listed on
Schedule 1.01A.
10
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published on such Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"FEDERAL RESERVE BOARD" means the Board of Governors of the Federal
Reserve System of the United States.
"FEE LETTER" means the Fee Letter dated April 8, 2005 among Holdings, the
Company, X.X. Xxxxxx Securities Inc. and JPMorgan Chase Bank, N.A.
"FINANCING TRANSACTIONS" means the execution, delivery and performance by
each Credit Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"FISCAL QUARTER" means a fiscal quarter of Holdings.
"FISCAL YEAR" means a fiscal year of Holdings.
"FIXED CHARGE COVERAGE RATIO" means, on any day, the ratio of (a) Adjusted
Consolidated EBITDA to (b) Consolidated Fixed Charges, in each case for the
period of four consecutive Fiscal Quarters ended on such day (or, if such day is
not the last day of a Fiscal Quarter, ended on the last day of the Fiscal
Quarter most recently ended before such day).
"FOREIGN LENDER" means any Lender that is organized under the laws of a
jurisdiction outside the United States.
"FOREIGN SUBSIDIARY" means a Subsidiary (which may be a corporation,
limited liability company, partnership or other legal entity) organized under
the laws of a jurisdiction outside the United States, and conducting
substantially all its operations outside the United States, other than any such
entity that is (whether as a matter of law, pursuant to an election by such
entity or otherwise) treated as a partnership in which any Credit Party is a
partner or as a branch of any Credit Party for United States income tax
purposes.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, applied on a basis consistent (except for
changes concurred in by Holdings' independent public accountants) with the most
recent
11
audited consolidated financial statements of Holdings and its consolidated
Subsidiaries delivered to the Lenders.
"GOVERNMENTAL AUTHORITY" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"GUARANTEE" by any Person (the "GUARANTOR") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Debt or other obligation of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or other
obligation or to purchase (or advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property, securities
or services for the purpose of assuring the owner of such Debt or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt or other obligation
or (d) as an account party in respect of any letter of credit or letter of
guaranty issued to support such Debt or other obligation; provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business.
"GUARANTORS" means Holdings (with respect to obligations of the Company),
the Company (with respect to obligations of Holdings) and the Subsidiary
Guarantors.
"HAZARDOUS MATERIALS" means all radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement or other
interest rate, currency exchange rate or commodity price hedging arrangement.
"HOLDINGS" means DealerTrack Holdings, Inc., a Delaware corporation.
"INDEMNIFIED TAXES" means all Taxes except Excluded Taxes.
12
"INITIAL INVESTORS" means the holders of Equity Interests in Holdings
listed on Schedule 1.01B and their respective Affiliates.
"INITIAL LENDERS" means the Lenders party hereto on the Effective Date.
"INTEREST ELECTION" means an election by the Borrower to change or
continue the Interest Type of a Borrowing in accordance with Section 2.06.
"INTEREST PAYMENT DATE" means (a) with respect to any Base Rate Loan, the
last day of each March, June, September and December, and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, if such Interest Period is longer
than three months, each day during such Interest Period that occurs at intervals
of three months' duration after the first day of such Interest Period.
"INTEREST PERIOD" means, with respect to any Eurodollar Borrowing, the
period beginning on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided that (a) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter shall
be deemed to be the effective date of the most recent conversion or continuation
of such Borrowing.
"INTEREST TYPE", when used with respect to any Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940.
"IPO" means an initial public offering of capital stock of Holdings.
13
"JOINT BOOKRUNNERS" means X.X. Xxxxxx Securities Inc. and Xxxxxx Brothers
Inc., in their capacity as Joint Bookrunners in respect of this Agreement.
"LC DISBURSEMENT" means a payment made by the LC Issuing Bank in respect
of a drawing under a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all Letters of Credit outstanding at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time will be its Revolving Percentage of the total LC Exposure at such time.
"LC ISSUING BANK" means JPMorgan Chase Bank, N.A., in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.04(j). The LC Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by its Affiliates, in which case
the term "LC Issuing Bank" shall include each such Affiliate with respect to
Letters of Credit issued by it.
"LC REIMBURSEMENT OBLIGATIONS" means, at any time, all obligations of the
Borrowers to reimburse the LC Issuing Bank for amounts paid by it in respect of
drawings under Letters of Credit, including any portion of such obligations for
which the LC Issuing Bank shall have received payment from any Lender pursuant
to Section 2.04(f).
"LENDER AFFILIATE" means, with respect to any Lender, (i) an Affiliate of
such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by such Lender or an Affiliate of such
Lender.
"LENDER PARTIES" means the Lenders, the LC Issuing Bank and the
Administrative Agent.
"LENDERS" means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment, other than any
such Person that ceases to be a party hereto pursuant to an Assignment.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
"LEVERAGE RATIO" means, on any day, the ratio of (a) Total Debt as of such
day to (b) Consolidated EBITDA for the period of four consecutive Fiscal
14
Quarters ended on such day (or, if such day is not the last day of a Fiscal
Quarter, ended on the last day of the Fiscal Quarter most recently ended before
such day).
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days before the beginning of
such Interest Period, as the rate for dollar deposits with a maturity comparable
to such Interest Period. If such rate is not available at such time for any
reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two Business
Days before the beginning of such Interest Period.
"LIEN" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"LOAN DOCUMENTS" means this Agreement, any Notes and the Security
Documents.
"LOANS" means loans made by the Lenders to the Borrower pursuant to this
Agreement.
"LONG-TERM DEBT" means any Debt that, in accordance with GAAP, constitutes
(or, when incurred, constituted) a long-term liability.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, assets, property, condition (financial or otherwise) or
prospects of the DealerTrack Companies taken as a whole, (b) the ability of any
Subject Person to perform its obligations under the Loan Documents or (c) the
validity or enforceability of, or the rights of or benefits available to any
Lender Party under, any Loan Document.
15
"MATERIAL AGREEMENT" means any agreement listed on Schedule 6.11, as in
effect on the date hereof or as hereafter amended, modified or waived in
accordance with Section 6.11.
"MATERIAL DEBT" means Debt (other than obligations in respect of the Loans
and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more DealerTrack Companies in an aggregate principal
amount exceeding $5,000,000. For purposes of determining Material Debt, the
"principal amount" of the obligations of any DealerTrack Company in respect of
any Hedging Agreement at any time will be the maximum aggregate amount (after
giving effect to any netting agreements) that such DealerTrack Company would be
required to pay if such Hedging Agreement were terminated at such time.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any Prepayment Event, (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty event, insurance proceeds, and (iii) in the case of a
condemnation or similar event, condemnation awards and similar payments, in each
case net of (b) the sum of (i) all fees and out-of-pocket expenses paid by the
DealerTrack Companies to third parties (other than Affiliates) in connection
with such event, (ii) in the case of an Asset Disposition or Casualty Event, the
amount of all payments required to be made by the DealerTrack Companies as a
result of such event to repay Debt (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by the
DealerTrack Companies, and (iv) the amount of any reserves established by the
DealerTrack Companies to fund contingent liabilities reasonably estimated to be
payable, in each case during the year that such event occurred or the next
succeeding year and that are directly attributable to such event (in each case
as determined reasonably and in good faith by the DealerTrack Companies and
certified by an Authorized Officer of Holdings).
"OTHER TAXES" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PARTICIPANTS" has the meaning specified in Section 9.04(e).
16
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERFECTION CERTIFICATE" means a certificate in the form of Exhibit E to
the Security Agreement or any other form approved by the Administrative Agent.
"PERMITTED ACQUISITION" has the meaning specified in Section 6.04(g).
"PERMITTED INVESTMENTS" means investments in:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States (or
by any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States), in each case maturing within
one year from the date of acquisition thereof;
(b) commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) certificates of deposit, banker's acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or
offered by, any domestic office of any commercial bank organized under the
laws of the United States or any State thereof which has a combined
capital and surplus and undivided profits of at least $500,000,000;
(d) securities issued, or fully and unconditionally guaranteed, by
any State of the United States or by any political subdivision or any
taxing authority of any such State, in each case (i) maturing within six
months from the date of acquisition thereof and (ii) having on or within
90 days prior to any measurement date a credit rating of "A" of higher
from S&P or "A2" or higher from Moody's;
(e) money market mutual funds (i) complying with the criteria set
forth in Rule 2a-7 of the Investment Company Act and (ii) having on or
within 90 days prior to any measurement date (A) credit ratings of "AAA"
of higher from S&P and "Aaa" from Moody's and (B) portfolio assets of at
least $200,000,000; and
(f) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above.
17
"PERMITTED LIENS" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article 7; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligation and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of any DealerTrack Company;
provided that the term "PERMITTED LIENS" shall not include any Lien that secures
Debt.
"PERMITTED SELLER NOTES" has the meaning specified in Section
6.01(a)(viii)(B).
"PERMITTED SUBORDINATED DEBT" has the meaning specified in Section
6.01(a)(x).
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any employee pension benefit plan (except a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the
Internal Revenue Code or Section 302 of ERISA, and in respect of which Holdings
or any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of
18
ERISA be deemed to be) a "contributing sponsor" as defined in Section
4001(a)(13) of ERISA.
"POST-PETITION INTEREST" means any interest that accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of any one or more of the Credit Parties (or would
accrue but for the operation of applicable bankruptcy or insolvency laws),
whether or not such interest is allowed or allowable as a claim in any such
proceeding.
"PREPAYMENT EVENT" means:
(a) any sale, transfer or other disposition (including pursuant to a
Sale and Leaseback Transaction) of any property of any DealerTrack
Company, except pursuant to (i) a Specified Equity Issuance, (ii) a
transaction permitted by Section 6.05(a) or (b) or (iii) other sales,
transfers and other dispositions resulting in aggregate Net Proceeds not
exceeding $5,000,000 during any Fiscal Year;
(b) any casualty or other insured damage to any property of any
DealerTrack Company, or any taking of any such property under power of
eminent domain or by condemnation or similar proceeding, or any transfer
of any such property in lieu of a condemnation or similar taking thereof;
(c) any sale or issuance by Holdings of its Equity Interests
pursuant to an IPO or a private placement or sale that is underwritten,
managed, arranged, placed or initially purchased by an investment bank,
but excluding any such sale or issuance (i) to any of the Initial
Investors, or (ii) resulting from the exercise of stock options by, or as
compensation to, employees, consultants or management of any DealerTrack
Company in the ordinary course of business; or
(d) the incurrence by any DealerTrack Company of any Debt, other
than Debt described in clauses (i) through (xv), inclusive, of Section
6.01(a).
"PRIME RATE" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its
principal office in New York City. Each change in the Prime Rate will be
effective for purposes hereof from and including the date such change is
publicly announced as being effective.
19
"PROPOSED ACQUISITIONS" means the acquisitions described on Schedule
1.01C.
"REGISTER" has the meaning specified in Section 9.04(c).
"RELATED PARTIES" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and its Affiliates.
"REQUIRED LENDERS" means, at any time, Lenders having Revolving Exposures,
outstanding Term Loans and unused Commitments representing (i) if there are 3 or
fewer Lenders, at least 66-2/3% of the sum of all Revolving Exposures,
outstanding Term Loans and unused Commitments at such time or (ii) if there are
4 or more Lenders, more than 50% of the sum of all Revolving Exposures,
outstanding Term Loans and unused Commitments at such time.
"REQUIRED REVOLVING LENDERS" means, at any time, Lenders having Revolving
Exposures and unused Revolving Commitments representing more than (i) if there
are 3 or fewer Revolving Lenders, at least 66-2/3% of the sum of all Revolving
Exposures and unused Revolving Commitments at such time or (ii) if there are 4
or more Revolving Lenders, more than 50% of the sum of all Revolving Exposures
and unused Revolving Commitments at such time.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any Equity Interest in any
DealerTrack Company, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any Equity Interest in any DealerTrack Company; provided that any such dividend,
distribution or payment will not constitute a "RESTRICTED PAYMENT" to the extent
it consists of Equity Interests of the same class, or common stock, of the same
issuer.
"REVOLVING AVAILABILITY PERIOD" means the period from and including the
Effective Date to but excluding the Revolving Maturity Date (or, if earlier, the
date on which all outstanding Revolving Commitments terminate).
"REVOLVING COMMITMENT" means, with respect to each Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Exposure hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.07 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's
20
Revolving Commitment is set forth on Schedule 2.01, or in the Assignment
pursuant to which such Lender shall have assumed its initial Revolving
Commitment, as applicable. The initial aggregate amount of the Revolving
Commitments is $25,000,000.
"REVOLVING EXPOSURE" means, with respect to any Lender at any time, the
sum of the aggregate outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure at such time.
"REVOLVING LENDER" means a Lender with a Revolving Commitment or, if the
Revolving Commitments have terminated or expired, a Lender with a Revolving
Exposure.
"REVOLVING LOAN" means a Loan made pursuant to Section 2.01(a)(ii).
"REVOLVING MATURITY DATE" means April 15, 2008.
"REVOLVING PERCENTAGE" means, with respect to any Revolving Lender, the
percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Revolving Percentages will be determined based on the Revolving Commitments
most recently in effect, adjusted to give effect to any assignments.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"SECURED GUARANTEE" has the meaning specified in the Security Agreement.
"SECURED OBLIGATIONS" has the meaning specified in the Security Agreement.
"SECURED PARTIES" has the meaning specified in the Security Agreement.
"SECURITY AGREEMENT" means the Guarantee and Security Agreement among the
Credit Parties and the Administrative Agent, substantially in the form of
Exhibit C.
"SECURITY DOCUMENTS" means the Security Agreement and each other security
agreement, instrument or other document executed and delivered pursuant to
Section 5.12 or 5.13 to secure any of the Secured Obligations.
21
"SPECIFIED EQUITY ISSUANCE" means a Prepayment Event described in clause
(c) of the definition of "Prepayment Event".
"STATUTORY RESERVE ADJUSTMENT" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Federal Reserve Board to which the Administrative Agent is
subject with respect to eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Federal Reserve Board). Such
reserve percentages will include those imposed pursuant to such Regulation D.
Eurodollar Loans will be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve
Adjustment will be adjusted automatically on and as of the effective date of any
change in any applicable reserve percentage.
"SUBJECT PERSONS" means (i) the Company, individually, and (ii) Holdings
and its Subsidiaries, taken as a whole.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any date,
(a) any corporation, limited liability company, partnership or other entity the
accounts of which would be consolidated with those of the parent in the parent's
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date and (b) any other corporation, limited
liability company, partnership or other entity (i) of which securities or other
ownership interests representing more than 50% of the equity or more than 50% of
the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
directly or indirectly, or (ii) that is otherwise Controlled as of such date, by
the parent and/or one or more of its subsidiaries.
"SUBSIDIARY" means any subsidiary of Holdings.
"SUBSIDIARY GUARANTORS" means each Subsidiary listed on the signature
pages of the Security Agreement under the caption "Subsidiary Guarantors" and
each Subsidiary that shall, at any time after the date hereof, become a
Guarantor pursuant to the Security Agreement.
"SYNDICATION AGENT" means Xxxxxx Commercial Paper Inc., in its capacity as
Syndication Agent in respect of this Agreement.
22
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TERM COMMITMENT" means, with respect to each Lender, the commitment, if
any, of such Lender to make a Term Loan, expressed as an amount representing the
maximum principal amount of such Term Loan, as such commitment may be (a)
reduced from time to time pursuant to Section 2.07 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Term Commitment is set forth
on Schedule 2.01, or in the Assignment pursuant to which such Lender shall have
assumed its initial Term Commitment, as applicable. The initial aggregate amount
of the Term Commitments is $25,000,000.
"TERM LENDER" means a Lender with a Term Commitment or an outstanding Term
Loan.
"TERM LOAN" means a Loan made pursuant to Section 2.01(a)(i).
"TERM LOAN AVAILABILITY PERIOD" means the period from and including the
Effective Date to but including June 10, 2005 (or, if earlier, the date on which
all Term Commitments terminate).
The "TERM LOAN EXTENSION CONDITION" shall be satisfied if a Registration
Statement relating to an IPO is filed with the SEC on or prior to December 31,
2005.
"TERM LOAN MATURITY DATE" means (i) if the Term Loan Extension Condition
has not been satisfied, April 15, 2009 and (ii) if the Term Loan Extension
Condition has been satisfied, April 15, 2010.
"TOTAL DEBT" means, as of any date, the aggregate principal amount of Debt
of Holdings and its Subsidiaries outstanding as of such date, in the amount that
would be reflected on a balance sheet prepared as of such date on a consolidated
basis in accordance with GAAP, and in any event including (with respect to any
determination of pro forma compliance with Sections 6.13 and 6.14 or otherwise)
any such Debt created, incurred, assumed or outstanding pursuant to clauses
(viii) and (x) of Section 6.01(a) after giving pro forma effect thereto and to
any other applicable transactions.
"TRANSACTION LIENS" means the Liens on Collateral granted by the Credit
Parties under the Security Documents.
"TRANSACTIONS" means the Financing Transactions and the Proposed
Acquisitions.
23
"UNITED STATES" means the United States of America.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "REVOLVING
LOAN") or by Interest Type (e.g., a "EURODOLLAR LOAN") or by Class and Interest
Type (e.g., a "EURODOLLAR REVOLVING LOAN"). Borrowings also may be classified
and referred to by Class (e.g., a "REVOLVING BORROWING") or by Interest Type
(e.g., a "EURODOLLAR BORROWING") or by Class and Interest Type (e.g., a
"EURODOLLAR REVOLVING BORROWING").
Section 1.03. Terms Generally. The definitions of terms herein (including
those incorporated by reference to another document) apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun includes the corresponding masculine, feminine and neuter
forms. The words "INCLUDE", "INCLUDES" and "INCLUDING" shall be deemed to be
followed by the phrase "WITHOUT LIMITATION". The word "WILL" shall be construed
to have the same meaning and effect as the word "SHALL". Unless the context
requires otherwise, (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "HEREIN", "HEREOF" and "HEREUNDER", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the word
"PROPERTY" shall be construed to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.
Section 1.04. Accounting Terms; Changes in GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP as in effect from time to time; provided
that, if Holdings notifies the Administrative Agent that Holdings requests an
amendment of any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof (or if the
Administrative Agent notifies Holdings that the Required Lenders request an
amendment of any provision hereof for such purpose), regardless of whether such
notice is given before or after such change in GAAP or in the application
thereof,
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then such provision shall be applied on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE 2
THE CREDITS
Section 2.01. Revolving and Term Commitments. (a) Subject to the terms and
conditions set forth herein:
(i) each Term Lender agrees to make up to two Term Loans to the
Borrowers from time to time during the Term Loan Availability Period in an
aggregate principal amount not exceeding its Term Commitment; and
(ii) each Revolving Lender agrees to make Revolving Loans to the
Borrowers from time to time during the Revolving Availability Period in an
aggregate principal amount that will not at any time result in such
Lender's Revolving Exposure exceeding its Revolving Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrowers may borrow, prepay and reborrow Revolving Loans. Amounts
repaid in respect of Term Loans may not be reborrowed.
(b) The Commitments of the Lenders are several (i.e., the failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder, and no Lender shall be responsible for any
other Lender's failure to make Loans as and when required hereunder).
Section 2.02. Revolving and Term Loans. (a) Each Revolving Loan and Term
Loan shall be made as part of a Borrowing consisting of Loans of the same Class
and Interest Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class, as the Borrower may request
(subject to Section 2.13) in accordance herewith; provided that all Borrowings
made on the Effective Date must be Base Rate Borrowings. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan. Any exercise of such option shall
not affect the Borrower's obligation to repay such Loan as provided herein.
(b) At the beginning of each Interest Period for any Eurodollar Borrowing,
the aggregate amount of such Borrowing shall be an integral multiple of $100,000
but not less than $1,000,000. When each Base Rate Borrowing is made, the
aggregate amount of such Borrowing shall be an integral multiple of
25
$100,000 but not less than $1,000,000; provided that a Base Rate Revolving
Borrowing may be in an aggregate amount that (i) is equal to the entire unused
balance of the Revolving Commitments or (ii) is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(f).
Borrowings of more than one Class and Interest Type may be outstanding at the
same time; provided that there shall not at any time be more than a total of 6
Eurodollar Borrowings outstanding.
(c) Notwithstanding any other provision hereof, no Borrower will be
entitled to request, or to elect to convert or continue, any Eurodollar
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date or Term Loan Maturity Date, as applicable.
Section 2.03. Requests to Borrow Revolving or Term Loans. To request a
Revolving Borrowing or Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of a
Base Rate Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of the proposed Borrowing; provided that any such notice of
a Base Rate Revolving Borrowing to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.04(f) may be given not later than
10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing
or Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be a Base Rate Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of "Interest Period"; and
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(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.05.
If no election as to the Interest Type of a Borrowing is specified, the
requested Borrowing will be a Base Rate Borrowing. If no Interest Period with
respect to a requested Eurodollar Borrowing is specified, the Borrower will be
deemed to have selected an Interest Period of one month's duration. Promptly
after it receives a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the relevant Class as to the
details of such Borrowing Request and the amount of such Lender's Loan to be
made pursuant thereto.
Section 2.04. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, each Borrower may request the issuance of Letters
of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the LC Issuing Bank, from time to time during the
Revolving Availability Period. If the terms and conditions of any form of letter
of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the LC Issuing Bank relating to any Letter of
Credit are not consistent with the terms and conditions of this Agreement, the
terms and conditions of this Agreement shall control.
(b) Existing Letters of Credit. On the Effective Date, without further
action by any party hereto, the LC Issuing Bank shall be deemed to have granted
to each other Revolving Lender, and each other Revolving Lender shall be deemed
to have acquired from the LC Issuing Bank, a participation in each Existing
Letter of Credit equal to such Revolving Lender's Revolving Percentage of (i)
the aggregate amount available to be drawn under such Existing Letter of Credit
and (ii) the aggregate amount of any outstanding reimbursement obligations in
respect thereof. With respect to each Existing Letter of Credit (i) if the LC
Issuing Bank has heretofore sold a participation therein to a Lender, the LC
Issuing Bank and such Lender agree that such participation shall be
automatically canceled on the Effective Date and (ii) if the relevant Lender has
heretofore sold a participation therein to any bank or financial institution
that is not a Lender, the LC Issuing Bank shall procure the termination of such
participation on or prior to the Effective Date. On and after the Effective
Date, each Existing Letter of Credit shall be a Letter of Credit issued
hereunder.
(c) Notice of Issuance, Amendment, Renewal or Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the LC Issuing Bank) to the LC
Issuing Bank and
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the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the requested date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with Section 2.04(d)), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the LC Issuing Bank, the Borrower also shall
submit a letter of credit application on the LC Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension, (i) the LC Exposure will not exceed $5,000,000 and (ii)
the total Revolving Exposures will not exceed the total Revolving Commitments.
(d) Expiration Date. Each Letter of Credit shall expire at or before the
close of business on the date that is the earlier of (i) one year after such
Letter of Credit is issued (or, in the case of any renewal or extension thereof,
one year after such renewal or extension) and (ii) the first anniversary of the
Revolving Credit Maturity Date (the "LETTER OF CREDIT TERMINATION DATE");
provided that a Letter of Credit may provide for automatic renewal thereof on an
annual basis unless notice of termination is given by the Issuing Bank so long
as such Letter of Credit also provides for a final expiration date that is not
later than the Letter of Credit Termination Date.
(e) Participations. Effective upon the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the LC Issuing Bank or the Revolving Lenders,
the LC Issuing Bank grants to each Revolving Lender, and each Revolving Lender
acquires from the LC Issuing Bank, a participation in such Letter of Credit
equal to such Lender's Revolving Percentage of the aggregate amount available to
be drawn thereunder. Pursuant to such participations, each Revolving Lender
agrees to pay to the Administrative Agent, for the account of the LC Issuing
Bank, such Lender's Revolving Percentage of (i) each LC Disbursement made by the
LC Issuing Bank and not reimbursed by the Borrower on the date due as provided
in Section 2.04(f) and (ii) any reimbursement payment required to be refunded to
the Borrower for any reason. Each Lender's obligation to acquire participations
and make payments pursuant to this subsection is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance
of a Default or any reduction or termination of the
28
Commitments, and each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(f) Reimbursement. If the LC Issuing Bank makes any LC Disbursement under
a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying
an amount equal to such LC Disbursement to the Administrative Agent not later
than 12:00 noon, New York City time, on the day that such LC Disbursement is
made, if the Borrower receives notice of such LC Disbursement before 10:00 a.m.,
New York City time, on such day, or, if such notice has not been received by the
Borrower before such time on such day, then not later than 12:00 noon, New York
City time, on the next Business Day; provided that, if such LC Disbursement is
at least $500,000, the Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 that such payment be made
with the proceeds of a Base Rate Revolving Borrowing in an equivalent amount
and, to the extent so financed, the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting Base Rate Revolving Borrowing.
If the Borrower fails to make such payment when due, the Administrative Agent
shall notify each Revolving Lender of the applicable LC Disbursement, the
payment then due from the Borrower in respect thereof and such Lender's
Revolving Percentage thereof. Promptly after it receives such notice, each
Revolving Lender shall pay to the Administrative Agent its Revolving Percentage
of the payment then due from the Borrower, in the same manner as is provided in
Section 2.05 with respect to Loans made by such Lender (and Section 2.05(b)
shall apply, mutatis mutandis, to such payment obligations of the Revolving
Lenders), and the Administrative Agent shall promptly pay to the LC Issuing Bank
the amounts so received by it from the Revolving Lenders. If a Revolving Lender
makes a payment pursuant to this subsection to reimburse the LC Issuing Bank for
any LC Disbursement (other than by funding Base Rate Revolving Loans as
contemplated above), (i) such payment will not constitute a Loan and will not
relieve the Borrower of its obligation to reimburse such LC Disbursement and
(ii) such Revolving Lender will be subrogated to its pro rata share of the LC
Issuing Bank's claim against the Borrower for such reimbursement. Promptly after
the Administrative Agent receives any payment from the Borrower pursuant to this
subsection, the Administrative Agent will distribute such payment to the LC
Issuing Bank or, if Revolving Lenders have made payments pursuant to this
subsection to reimburse the LC Issuing Bank, then to such Lenders and the LC
Issuing Bank as their interests may appear.
(g) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in Section 2.04(f) shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of
(i) any lack of validity or enforceability of any Letter of Credit or this
Agreement, or any
29
term or provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment
by the LC Issuing Bank under a Letter of Credit against presentation of a draft
or other document that does not comply with the terms of such Letter of Credit
or (iv) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower's obligations hereunder. None of the Administrative Agent,
the Lenders, the LC Issuing Bank and their respective Related Parties shall have
any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the LC Issuing Bank;
provided that the foregoing shall not excuse the LC Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by the LC
Issuing Bank's failure to exercise care when determining whether drafts and
other documents presented under a Letter of Credit comply with the terms
thereof. In the absence of gross negligence or willful misconduct on the part of
the LC Issuing Bank (as finally determined by a court of competent
jurisdiction), the LC Issuing Bank shall be deemed to have exercised care in
each such determination. Without limiting the generality of the foregoing, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
LC Issuing Bank may, in its sole discretion, either (A) accept and make payment
upon such documents without responsibility for further investigation, regardless
of any notice or information to the contrary, or (B) refuse to accept and make
payment upon such documents if such documents do not strictly comply with the
terms of such Letter of Credit.
(h) Disbursement Procedures. The LC Issuing Bank shall, promptly after its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The LC Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the LC Issuing Bank has made or will make an
LC Disbursement pursuant thereto; provided that any failure to give or delay in
giving such notice will not relieve the Borrower of its obligation to reimburse
the LC Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
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(i) Interim Interest. Unless the Borrower reimburses an LC Disbursement in
full on the day it is made, the unpaid amount thereof shall bear interest, for
each day from and including the day on which such LC Disbursement is made to but
excluding the day on which the Borrower reimburses such LC Disbursement, at the
rate per annum then applicable to Base Rate Revolving Loans; provided that, if
the Borrower fails to reimburse such LC Disbursement when due pursuant to
Section 2.04(f), then Section 2.12(c) and 2.12(d) shall apply. Interest accrued
pursuant to this subsection shall be for the account of the LC Issuing Bank,
except that a pro rata share of interest accrued on and after the day that any
Revolving Lender reimburses the LC Issuing Bank for a portion of such LC
Disbursement pursuant to Section 2.04(f) shall be for the account of such
Lender.
(j) Replacement of LC Issuing Bank. The LC Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the
replaced LC Issuing Bank and the successor LC Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement. At the time any such
replacement becomes effective, the Borrower shall pay all unpaid fees accrued
for the account of the replaced LC Issuing Bank pursuant to Section 2.11(b). On
and after the effective date of any such replacement, (i) the successor LC
Issuing Bank will have all the rights and obligations of the LC Issuing Bank
under this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "LC Issuing Bank" will be deemed to refer
to such successor or to any previous LC Issuing Bank, or to such successor and
all previous LC Issuing Banks, as the context shall require. After an LC Issuing
Bank is replaced, it will remain a party hereto and will continue to have all
the rights and obligations of an LC Issuing Bank under this Agreement with
respect to Letters of Credit issued by it before such replacement, but will not
be required to issue additional Letters of Credit.
(k) Cash Collateralization. (i) If an Event of Default shall occur and be
continuing, on the Business Day that a Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposures representing more than
50% of the total LC Exposure) demanding the deposit of cash collateral pursuant
to this subsection, such Borrower shall deposit in its Cash Collateral Account
an amount in cash equal to its LC Exposure as of such date plus any accrued and
unpaid interest thereon less any amounts held therein pursuant to paragraph (ii)
below; provided that the obligation to deposit such cash collateral will become
effective immediately, and such deposit will become immediately due and payable,
without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to either Borrower described in clause (h) or (i) of
Article 7. Any amount so deposited (including any earnings thereon) will be
withdrawn from such Cash Collateral Account by the Administrative Agent
31
and applied to pay LC Reimbursement Obligations of such Borrower as they become
due; provided that (x) if at any time all Events of Default have been cured or
waived, such amount (to the extent not theretofore so applied or required to be
held in such Cash Collateral Account pursuant to paragraph (ii) below) will be
returned to such Borrower upon its request and (y) if at any time the maturity
of the Loans has been accelerated, such amount (to the extent not theretofore so
applied or returned) will be applied to pay the Secured Obligations as provided
in the Security Agreement.
(ii) No later than 30 days prior to the Revolving Maturity Date (or, if
such day is not a Business Day, the immediately preceding Business Day), each
Borrower shall deposit in its Cash Collateral Account an amount in cash equal to
the aggregate undrawn amount of all Letters of Credit outstanding on such date
for the account of such Borrower (other than any such Letter of Credit that must
by its terms, without any action by the LC Issuing Bank or any other Person,
expire prior to the Revolving Maturity Date) less any amounts held in its Cash
Collateral Account pursuant to paragraph (i) above. If (x) any Letter of Credit
is issued, renewed or extended within 30 days of the Revolving Maturity Date and
(y) the expiration date of such Letter of Credit (after giving effect to any
renewal or extension) could be later than the Revolving Maturity Date, the
Borrower shall, on the date of such issuance, renewal or extension, deposit in
its Cash Collateral Account an amount in cash equal to the aggregate undrawn
amount of such Letter of Credit. Any amounts deposited pursuant to this
paragraph (ii) (including any earnings thereon) will be withdrawn from such Cash
Collateral Account by the Administrative Agent and applied to pay LC
Reimbursement Obligations of such Borrower as they become due; provided that (x)
if at any time after the Revolving Maturity Date no Default shall have occurred
and be continuing, any such amount in excess of the LC Exposure of such Borrower
as of such date (to the extent not theretofore so applied) will be returned to
such Borrower upon its request and (y) if at any time the maturity of the Loans
has been accelerated, such amount (to the extent not theretofore so applied or
returned) will be applied to pay the Secured Obligations as provided in the
Security Agreement.
Section 2.05. Funding of Revolving and Term Loans. (a) Each Lender making
a Term Loan or Revolving Loan hereunder shall wire the principal amount thereof
in immediately available funds, by 12:00 noon, New York City time, on the
proposed date of such Loan, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent shall make such funds available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; provided that Base Rate Revolving
Loans made to finance the reimbursement of an LC
32
Disbursement as provided in Section 2.04(f) will be remitted by the
Administrative Agent to the LC Issuing Bank.
(b) Unless the Administrative Agent receives notice from a Lender before
the proposed date of any Borrowing that such Lender will not make its share of
such Borrowing available to the Administrative Agent, the Administrative Agent
may assume that such Lender has made such share available on such date in
accordance with Section 2.05(a) and may, in reliance on such assumption, make a
corresponding amount available to the Borrower. In such event, if a Lender has
not in fact made its share of such Borrowing available to the Administrative
Agent, such Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the day such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to Base Rate Loans. If such Lender pays such amount
to the Administrative Agent, such amount shall constitute such Lender's Loan
included in such Borrowing.
Section 2.06. Interest Elections. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Interest Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Interest Type or, in
the case of a Eurodollar Borrowing, to continue such Borrowing for one or more
additional Interest Periods, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent thereof by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting that a Borrowing of the Interest Type resulting from such election be
made on the effective date of such election. Each such telephonic Interest
Election shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election in a form
approved by the Administrative Agent and signed by the Borrower.
33
(c) Each telephonic and written Interest Election shall specify the
following information in compliance with Section 2.02 and subsection (e) of this
Section:
(i) the Borrowing to which such Interest Election applies and, if
different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be specified pursuant to clauses (iii)
and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Base Rate Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is to be a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
"Interest Period".
If an Interest Election requests a Eurodollar Borrowing but does not specify an
Interest Period, the Borrower will be deemed to have selected an Interest Period
of one month's duration.
(d) Promptly after it receives an Interest Election, the Administrative
Agent shall advise each Lender of the relevant Class as to the details thereof
and such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election with
respect to a Eurodollar Borrowing before the end of an Interest Period
applicable thereto, such Borrowing (unless repaid) will be converted to a Base
Rate Borrowing at the end of such Interest Period. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing, (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
each Eurodollar Borrowing (unless repaid) will be converted to a Base Rate
Borrowing at the end of the Interest Period applicable thereto on the date of
such notice.
Section 2.07. Termination or Reduction of Commitments. (a) Unless
previously terminated, (i) the Term Commitments will (A) be permanently reduced,
immediately upon the making of any Term Loans at any time during the
34
Term Loan Availability Period, by an amount equal to the aggregate principal
amount of such Term Loans and (B) to the extent then in existence, terminate on
the last day of the Term Loan Availability Period and (ii) the Revolving
Commitments will terminate on the Revolving Maturity Date.
(b) Holdings may at any time terminate, or from time to time reduce, the
Commitments of any Class; provided that (i) the amount of each reduction of the
Commitments of any Class shall be an integral multiple of $100,000 but not less
than $500,000 and (ii) Holdings shall not terminate or reduce the Revolving
Commitments if, after giving effect thereto and to any concurrent prepayment of
Revolving Loans pursuant to Section 2.10, the total Revolving Exposures would
exceed the total Revolving Commitments.
(c) Holdings shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under Section 2.07(b) at least three
Business Days before the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly after it
receives any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each notice delivered by Holdings pursuant to this Section
will be irrevocable; provided that any such notice terminating the Revolving
Commitments may state that it is conditioned on the effectiveness of other
credit facilities, in which case such notice may be revoked by Holdings (by
notice to the Administrative Agent on or before the specified effective date) if
such condition is not satisfied. Any termination or reduction of the Commitments
of any Class will be permanent and will be made ratably among the Lenders in
accordance with their respective Commitments of such Class.
Section 2.08. Payment at Maturity; Evidence of Debt. (a) Each Borrower
unconditionally promises to pay to the Administrative Agent (i) on the Revolving
Maturity Date, for the account of each Revolving Lender, the then unpaid
principal amount of such Lender's Revolving Loans to such Borrower, and (ii) on
the Term Loan Maturity Date, for the account of each Term Lender, the then
unpaid principal amount of such Lender's Term Loans to such Borrower.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Borrower with respect
thereto, the Class and Interest Type thereof and each Interest Period (if any)
applicable thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder and
(iii)
35
the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to subsections
(b) and (c) of this Section shall, absent manifest error, be prima facie
evidence of the existence and amounts of the obligations recorded therein;
provided that any failure by any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not affect the Borrower's obligation to
repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it to any
Borrower be evidenced by a promissory note. In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
Section 2.09. Scheduled Amortization of Term Loans. (a) Subject to
adjustment pursuant to Section 2.09(b), the Borrowers shall repay Term Loans on
December 31, 2005 and on the last day of each March, June, September and
December thereafter to and including (i) if the Term Loan Extension Condition
shall have been satisfied, December 31, 2009, in each case in an aggregate
principal amount of $1,390,000 and (ii) if the Term Loan Extension Condition
shall not have been satisfied, December 31, 2008, in each case in an aggregate
principal amount of $1,780,000. On the Term Loan Maturity Date, the Borrowers
shall repay the principal amount of the Term Loans then outstanding.
(b) Any prepayment of Term Loans will be applied to reduce the subsequent
scheduled repayments of the Term Loans to be made pursuant to this Section (x)
if such prepayment is a mandatory prepayment pursuant to Section 2.10(d), in
inverse order of maturity, and (y) if such prepayment is a voluntary prepayment
pursuant to Section 2.10(a) or a mandatory prepayment pursuant to Section
2.10(b) or (c), ratably. If the aggregate amount of the Term Loans made during
the Term Loan Availability Period is less than the initial aggregate amount of
the Term Commitments, the scheduled repayments of the Term Loans shall be
reduced ratably to an aggregate amount equal to the aggregate amount of Term
Loans actually made.
(c) Before any repayment of Term Loans pursuant to this Section, the
Borrowers shall select the Borrowing or Borrowings to be repaid and shall notify
36
the Administrative Agent by telephone (confirmed by telecopy) of such selection
not later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment. Each such repayment of a Borrowing shall be
applied ratably to the Loans included in such Borrowing and shall be accompanied
by accrued interest on the amount repaid.
Section 2.10. Optional and Mandatory Prepayments. (a) Optional
Prepayments. Each Borrower will have the right at any time to prepay any of its
Borrowings in whole or in part, in a minimum amount of $500,000 or any larger
increment of $100,000, subject to the provisions of this Section. Any such
prepayment of Term Borrowings will be applied to reduce the subsequent scheduled
repayments of the Term Loans as provided in Section 2.09(b).
(b) Asset Dispositions and Casualty Events. Within four Business Days
after any Net Proceeds are received by or on behalf of Holdings or any
Subsidiary in respect of any Asset Disposition or Casualty Event, the Borrowers
shall prepay Term Borrowings in an aggregate amount equal to such Net Proceeds;
provided that, if Holdings shall deliver to the Administrative Agent a
certificate of an Authorized Officer to the effect that (i) the Company or the
applicable Subsidiary intends to apply the Net Proceeds from such Asset
Disposition or Casualty Event (or a portion thereof specified in such
certificate), within 180 days after receipt of such Net Proceeds, to (A) in the
case of an Asset Disposition, acquire real property, equipment or other tangible
assets to be used in the business of the Company or such Subsidiary or (B) in
the case of a Casualty Event, repair, restore or replace the property with
respect to which such Net Proceeds were received, (ii) any property so acquired
will be included in the Collateral at least to the extent that the property
disposed of or replaced was included therein and (iii) no Default has occurred
and is continuing, then no prepayment will be required pursuant to this
subsection in respect of such Net Proceeds (or the portion of such Net Proceeds
specified in such certificate, if applicable), except that, if any such Net
Proceeds have not been so applied by the end of such 180-day period, a
prepayment will be required at that time in an amount equal to the amount of
such Net Proceeds that have not been so applied. However, Holdings will not be
entitled to make elections pursuant to the immediately preceding proviso with
respect to Net Proceeds from Asset Dispositions aggregating more than $5,000,000
in any Fiscal Year.
(c) Debt Incurrences. Within four Business Days after any Net Proceeds are
received by or on behalf of Holdings or any Subsidiary in respect of any Debt
Incurrence, the Borrower shall prepay Term Borrowings in an aggregate amount
equal to such Net Proceeds.
(d) Equity Issuances. Within four Business Days after any Net Proceeds are
received by or on behalf of Holdings or any Subsidiary in respect of
37
any Specified Equity Issuance, the Borrowers shall prepay Term Borrowings in an
aggregate amount equal to 25% of such Net Proceeds.
(e) Allocation of Prepayments. Before any optional or mandatory prepayment
of Borrowings hereunder, the Borrowers shall, subject to Section 2.09(b), select
the Borrowing or Borrowings to be prepaid and shall specify such selection in
the notice of such prepayment pursuant to Section 2.10(h).
(f) Partial Prepayments. Each partial prepayment of a Borrowing shall be
in an amount that would be permitted under Section 2.02(b) for a Borrowing of
the same Interest Type, except as needed to apply fully the required amount of a
mandatory prepayment. Each partial prepayment of a Borrowing shall be applied
ratably to the Loans included in such Borrowing.
(g) Accrued Interest. Each prepayment of a Borrowing shall be accompanied
by accrued interest to the extent required by Section 2.12.
(h) Notice of Prepayments. The Borrower shall notify the Administrative
Agent by telephone (confirmed by telecopy) of any prepayment of any Borrowing
hereunder (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment and (ii)
in the case of a Base Rate Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.07(c), then such notice of prepayment may be revoked if such notice
of termination is revoked in accordance with Section 2.07(c). Promptly after it
receives any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof.
Section 2.11. Fees. (a) The Borrowers shall pay to the Administrative
Agent for the account of each Revolving Lender a commitment fee, which shall
accrue at the Applicable Rate on the average daily unused amount of the
Revolving Commitment of such Lender during the period from the Effective Date to
the date on which such Revolving Commitment terminates. Accrued commitment fees
will be payable in arrears on the last day of March, June, September and
December of each year and the day when the Revolving Commitments terminate,
commencing on the first such day to occur after the date hereof. All commitment
fees will be computed on the basis of a year of 360 days and will be payable for
the actual number of days elapsed (including the first day but excluding the
last day). For purposes of computing commitment fees, a
38
Lender's Revolving Commitment will be deemed to be used to the extent of its
outstanding Revolving Loans and LC Exposure.
(b) Each Borrower shall pay (i) to the Administrative Agent for the
account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue for each day, at the
Applicable Rate that applies to Eurodollar Revolving Loans, on the amount of
such Lender's LC Exposure to such Borrower (excluding any portion thereof
attributable to unreimbursed LC Disbursements) on such day, during the period
from the Effective Date to the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to have
any LC Exposure to such Borrower, and (ii) to the LC Issuing Bank a fronting
fee, which shall accrue at the rate or rates per annum specified in the Fee
Letter on the average daily amount of the LC Exposure to such Borrower
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from the Effective Date to the later of the date on which the
Revolving Commitments terminate and the date on which there ceases to be any LC
Exposure to such Borrower, as well as the LC Issuing Bank's standard fees with
respect to issuing, amending, renewing or extending any Letter of Credit for the
account of such Borrower or processing drawings thereunder. Participation fees
and fronting fees accrued through the last day of March, June, September and
December of each year will be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees accrued to the date on which the Revolving
Commitments terminate will be payable on such date, and any such fees accruing
after such date will be payable on demand. Any other fees payable to the LC
Issuing Bank pursuant to this subsection will be payable within 10 days after
demand. All such participation fees and fronting fees will be computed on the
basis of a year of 360 days and will be payable for the actual number of days
elapsed (including the first day but excluding the last day).
(c) The Borrowers shall pay to the Administrative Agent for the account of
each Lender an upfront fee, which shall be payable on the Effective Date, in an
amount equal to 0.25% of the sum of such Lender's Revolving Exposures,
outstanding Term Loans and unused Commitments on such date.
(d) The Borrowers shall pay to each Person entitled thereto the other fees
described in the Fee Letter in the amounts and at the times specified therein.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Person
entitled thereto) for distribution, in the case of commitment fees,
participation fees and upfront fees, to the Lenders entitled thereto. Fees paid
shall not be
39
refundable under any circumstances. The Borrowers will be jointly and severally
liable for the fees under subsections (a), (c) and (d).
Section 2.12. Interest. (a) The Base Rate Loans shall bear interest for
each day at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest for
each Interest Period in effect for such Borrowing at the Adjusted LIBO Rate for
such Interest Period plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by any Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding subsections
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to Base Rate Loans.
(d) Interest accrued on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
pursuant to Section 2.12(c) shall be payable on demand, (ii) upon any repayment
of any Loan (except a prepayment of a Base Rate Revolving Loan before the end of
the Revolving Availability Period), interest accrued on the principal amount
repaid shall be payable on the date of such repayment and (iii) upon any
conversion of a Eurodollar Loan before the end of the current Interest Period
therefor, interest accrued on such Loan shall be payable on the effective date
of such conversion.
(e) All interest hereunder will be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate will be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case will be payable for the actual number of days elapsed (including the first
day but excluding the last day). Each applicable Alternate Base Rate or Adjusted
LIBO Rate shall be determined by the Administrative Agent, and its determination
thereof will be conclusive absent manifest error.
Section 2.13. Alternate Rate of Interest. If before the beginning of any
Interest Period for a Eurodollar Borrowing:
(i) the Administrative Agent determines (which determination will be
conclusive absent manifest error) that adequate and reasonable
40
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(ii) Lenders whose Loans to be included in such Borrowing aggregate
more than 50% thereof advise the Administrative Agent that the Adjusted
LIBO Rate for such Interest Period will not adequately and fairly reflect
the cost to such Lenders of making or maintaining such Loans for such
Interest Period;
then the Administrative Agent shall give notice thereof to Holdings and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies Holdings and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election that requests the conversion of any Borrowing to, or continuation of
any Borrowing as, a Eurodollar Borrowing will be ineffective and (ii) if any
Borrowing Request requests a Eurodollar Borrowing, such Borrowing will be made
as a Base Rate Borrowing.
Section 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the LC Issuing Bank; or
(ii) impose on any Lender or the LC Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make Eurodollar Loans) or to increase the cost to such Lender or
the LC Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce any amount received or receivable by such Lender or the LC
Issuing Bank hereunder (whether of principal, interest or otherwise) (excluding,
for purposes of this Section 2.14, any such increased costs resulting from (x)
Taxes or Other Taxes (as to which Section 2.16 shall govern) and (y) changes in
the application, rate or basis of taxation of overall net income or overall
gross income by the United States, or by the State or foreign jurisdiction under
the laws of which such Lender or the LC Issuing Bank is organized or has its
applicable lending office, or any political subdivision thereof), then the
relevant Borrower shall pay to such Lender or the LC Issuing Bank, as the case
may be, such additional amount or
41
amounts as will compensate it for such additional cost incurred or reduction
suffered.
(b) If any Lender or the LC Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the LC Issuing Bank's capital or on the capital of
such Lender's or the LC Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the LC Issuing Bank, to
a level below that which such Lender or the LC Issuing Bank or such Lender's or
the LC Issuing Bank's holding company could have achieved but for such Change in
Law (taking into consideration such Lender's or the LC Issuing Bank's policies
and the policies of such Lender's or the LC Issuing Bank's holding company with
respect to capital adequacy), then from time to time the relevant Borrower shall
pay to such Lender or the LC Issuing Bank, as the case may be, such additional
amount or amounts as will compensate it or its holding company for any such
reduction suffered.
(c) A certificate of a Lender or the LC Issuing Bank setting forth the
amount or amounts necessary to compensate it or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section shall be delivered
to Holdings and shall be conclusive absent manifest error. The relevant Borrower
shall pay such Lender or the LC Issuing Bank, as the case may be, the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay by any Lender or the LC Issuing Bank to demand
compensation pursuant to this Section will not constitute a waiver of its right
to demand such compensation; provided that the Borrowers will not be required to
compensate a Lender or the LC Issuing Bank pursuant to this Section for any
increased cost or reduction incurred more than 270 days before it notifies
Holdings of the Change in Law giving rise to such increased cost or reduction
and of its intention to claim compensation therefor. However, if the Change in
Law giving rise to such increased cost or reduction is retroactive, then the
270-day period referred to above will be extended to include the period of
retroactive effect thereof.
Section 2.15. Break Funding Payments. If (a) any principal of any
Eurodollar Loan is repaid on a day other than the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) any
Eurodollar Loan is converted on a day other than the last day of an Interest
Period applicable thereto or (c) a Borrower fails to borrow, convert, continue
or prepay any Revolving Loan or Term Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.10(h) and is revoked in accordance therewith), then the relevant
Borrower shall
42
compensate each Lender for its loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost and expense to any
Lender shall be deemed to include an amount determined by such Lender to be the
excess, if any, of (i) the amount of interest that would have accrued on the
principal amount of such Loan had such event not occurred, at the Adjusted LIBO
Rate that would have been applicable to such Loan, for the period from the date
of such event to the end of the then current Interest Period therefor (or, in
the case of a failure to borrow, convert or continue, the Interest Period that
would have begun on the date of such failure), over (ii) the amount of interest
that would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the beginning of such period, for
dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to Holdings and shall be conclusive absent manifest error. The
relevant Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof.
Section 2.16. Taxes. (a) All payments by the Borrowers under the Loan
Documents shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that, if a Borrower shall be required
to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable will be increased as necessary so that, after all required
deductions (including deductions applicable to additional sums payable under
this Section) are made, each relevant Lender Party receives an amount equal to
the sum it would have received had no such deductions been made, (ii) such
Borrower shall make such deductions and (iii) such Borrower shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Each Borrower shall indemnify each Lender Party, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by such Lender Party with respect to any payment by or obligation of
such Borrower under the Loan Documents (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority, provided that the Borrowers shall not be required to indemnify any
Lender Party for any penalties or interest that would not have been imposed but
for the failure of such Lender Party to pay such Indemnified Taxes or Other
Taxes within 180 days of the later of (x) the due date thereof and (y) the date
on which such Lender Party became aware of the obligation to pay such
Indemnified Taxes
43
or Other Taxes. A certificate as to the amount of any such payment delivered to
Holdings by a Lender Party on its own behalf, or by the Administrative Agent on
behalf of a Lender Party, shall be conclusive absent manifest error.
(d) As soon as practicable after a Borrower pays any Indemnified Taxes or
Other Taxes to a Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Each Foreign Lender shall deliver to Holdings and the Administrative
Agent (in such number of copies as shall be reasonably requested by the
recipient) on the date on which such Foreign Lender becomes a Lender hereunder
(and from time to time thereafter upon the reasonable request of Holdings or the
Administrative Agent), whichever of the following is applicable: (i) duly
completed copies of Internal Revenue Service Form W-8BEN (or any subsequent
versions thereof or successors thereto), claiming eligibility for benefits of an
income tax treaty to which the United States is a party, (ii) duly completed
copies of Internal Revenue Service Form W-8ECI (or any subsequent versions
thereof or successors thereto), (iii) in the case of a Foreign Lender claiming
the benefits of the exemption for portfolio interest under section 871(h) or
881(c) of the Internal Revenue Code, (x) a certificate to the effect that such
Foreign Lender is not (A) a "bank" within the meaning of section 881(c)(3)(A) of
the Internal Revenue Code, (B) a "10 percent shareholder" of a Borrower within
the meaning of section 871(h)(3) or 881(c)(3)(B) of the Internal Revenue Code,
or (C) a "controlled foreign corporation" described in section 881(c)(3)(C) of
the Internal Revenue Code and (y) duly completed copies of Internal Revenue
Service Form W-8BEN (or any subsequent versions thereof or successors thereto)
or (iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States federal withholding tax duly
completed together with such supplementary documentation as may be prescribed by
applicable law to permit the relevant Borrower to determine the withholding or
deduction required to be made. In addition, in each of the foregoing
circumstances, each Foreign Lender shall deliver such forms promptly upon the
obsolescence, expiration, or invalidity of any form previously delivered by such
Foreign Lender. Each Foreign Lender shall promptly notify Holdings at any time
it determines that it is no longer in a position to provide any previously
delivered certificate to Holdings (or any other form of certification adopted by
the United States or other taxing authorities for such purpose). In addition,
each Lender that is not a Foreign Lender shall deliver to Holdings and the
Administrative Agent two copies of Internal Revenue Service Form W-9 (or any
subsequent versions thereof or successors thereto) on or before the date such
Lender becomes a party and upon the expiration of any form previously delivered
by such Lender. Notwithstanding
44
any other provision of this paragraph, a Lender shall not be required to deliver
any form pursuant to this paragraph that such Lender is not legally able to
deliver.
(f) If the Administrative Agent or a Lender receives a refund of any
Indemnified Taxes or Other Taxes as to which it has been indemnified by a
Borrower or with respect to which a Borrower has paid additional amounts
pursuant to this Section 2.16, it shall pay over such refund to such Borrower
(but only to the extent of indemnity payments made, or additional amounts paid,
by such Borrower under this Section 2.16 with respect to the Indemnified Taxes
or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent or such Lender (including any Taxes imposed with
respect to such refund) as is determined by the Administrative Agent or such
Lender in good faith and in its sole discretion, and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided that such Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay as soon as reasonably
practicable the amount paid over to such Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or
such Lender is required to repay such refund to such Governmental Authority.
This Section 2.16(f) shall not require the Administrative Agent or any Lender to
make available its Tax returns (or any other information relating to its Taxes
which it deems confidential) to any Borrower or any other Person.
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrowers shall make each payment under the Loan Documents (whether of
principal, interest or fees, or reimbursement of LC Disbursements, or amounts
payable under Section 2.14, 2.15 or 2.16 or otherwise) before the time expressly
required under the relevant Loan Document for such payment (or, if no such time
is expressly required, before 12:00 noon, New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any amount
received after such time on any day may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to the LC Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03
shall be made directly to the Persons entitled thereto and payments pursuant to
other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payment received by it for the
account of any other Person to the appropriate recipient promptly after receipt
thereof. If any payment under any Loan Document shall be due on a day that is
not a Business Day, the date for payment will be extended to the next succeeding
Business Day and, if such payment accrues interest, interest
45
thereon will be payable for the period of such extension. All payments under
each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, to pay principal and unreimbursed LC
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or any of its participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and participations in LC Disbursements and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements of other
Lenders to the extent necessary so that the benefit of all such payments shall
be shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations
in LC Disbursements; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this subsection
shall not apply to any payment made by a Borrower pursuant to and in accordance
with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in LC Disbursements to any assignee or participant,
other than to a Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this subsection shall apply). Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against such Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.
(d) Unless, before the date on which any payment is due to the
Administrative Agent for the account of one or more Lender Parties hereunder,
the Administrative Agent receives from the relevant Borrower notice that such
Borrower will not make such payment, the Administrative Agent may assume that
46
such Borrower has made such payment on such date in accordance herewith and may,
in reliance on such assumption, distribute to each relevant Lender Party the
amount due to it. In such event, if the relevant Borrower has not in fact made
such payment, each Lender Party severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender Party with
interest thereon, for each day from and including the day such amount is
distributed to it to but excluding the day it repays the Administrative Agent,
at the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender fails to make any payment required to be made by it
pursuant to 2.04(e), 2.04(f), 2.05(b), 2.17(d) or 9.03(c), the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
Section 2.18. Lender's Obligation to Mitigate; Replacement of Lenders. If
any Lender requests compensation under Section 2.14, or if any Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future, (ii) would not subject such Lender to any unreimbursed cost or expense
and (iii) would not otherwise be disadvantageous to such Lender. The relevant
Borrower shall pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Company represents and warrants to the Lender
Parties that:
Section 3.01. Organization; Powers. Each DealerTrack Company is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where failures to do so, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do
47
business in, and is in good standing in, every jurisdiction where such
qualification is required.
Section 3.02. Authorization; Enforceability. The Transactions to be
entered into by each DealerTrack Company are within its corporate powers and
have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of Holdings and the Company and constitutes, and each other Loan Document to
which any Credit Party is to be a party, when executed and delivered by such
Credit Party, will constitute, a legal, valid and binding obligation of
Holdings, the Company or such Credit Party, as the case may be, in each case
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditors'
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
Section 3.03. Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or other
action by, any Governmental Authority, except (i) such as have been obtained or
made and are in full force and effect and (ii) filings necessary to perfect the
Transaction Liens, (b) will not violate any applicable law or regulation or the
charter, by-laws or other organizational documents of any DealerTrack Company or
any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon any
DealerTrack Company or any of its properties, or give rise to a right thereunder
to require any DealerTrack Company to make any payment and (d) will not result
in the creation or imposition of any Lien (other than the Transaction Liens) on
any property of any DealerTrack Company.
Section 3.04. Financial Statements; No Material Adverse Change. (a)
Holdings has heretofore furnished to the Lenders (i) its consolidated balance
sheet as of December 31, 2003 and the related consolidated statements of income,
stockholders' equity and cash flows for the Fiscal Year then ended, reported on
by PricewaterhouseCoopers LLP, independent public accountants, and (ii) its
unaudited consolidated balance sheet as of December 31, 2004 and the related
consolidated statements of income, stockholders' equity and cash flows for the
Fiscal Year then ended, all certified by the Chief Financial Officer (other than
with respect to the possibility of non-cash charges relating to stock option
compensation expenses). Such financial statements present fairly, in all
material respects, the financial position of Holdings and its consolidated
Subsidiaries as of such dates and their results of operations and cash flows for
such periods in accordance with GAAP, subject to normal year-end adjustments and
the absence of footnotes in the case of the statements referred to in clause
(ii) above.
48
(b) Holdings has heretofore furnished to the Lenders its unaudited pro
forma consolidated statement of income for the Fiscal Year ended December 31,
2004, prepared giving effect to the Proposed Acquisitions as if the Proposed
Acquisitions had occurred on the first day of such Fiscal Year. Such pro forma
consolidated statement of income (i) has been prepared in good faith based on
assumptions believed by Holdings and the Company to be reasonable, (ii) is based
on the best information available to Holdings and the Company after due inquiry,
and (iii) to the knowledge of Holdings and the Company, (A) accurately reflects
all adjustments necessary to give effect to the Proposed Acquisitions and (B)
presents fairly, in all material respects, the pro forma results of operations
of Holdings and its consolidated Subsidiaries for the Fiscal Year ended December
31, 2004 as if the Proposed Acquisitions had occurred on the first day thereof.
(c) None of the DealerTrack Companies has as of the Effective Date (after
giving effect to the Transactions consummated prior to or to be consummated on
such date) any material contingent liabilities, unusual long-term commitments or
unrealized losses, except as disclosed in the financial statements referred to
above or the notes thereto or on Schedule 3.04(c).
(d) Since December 31, 2003, no event, development or circumstance has
occurred that has had or could reasonably be expected to have a material adverse
change on the business, operations, assets, property, condition (financial or
otherwise) or prospects of the DealerTrack Companies, taken as a whole.
Section 3.05. Properties. (a) Each DealerTrack Company has good title to,
or valid leasehold interests in, all real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each DealerTrack Company owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its
business, and the use thereof by the DealerTrack Companies does not infringe
upon the rights of any other Person, except for infringements that, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05 sets forth the correct address and a brief description
of each real property that is owned or leased by Holdings or any Subsidiary as
of the Effective Date.
Section 3.06. Litigation and Environmental Matters. (a) Except for the
Disclosed Matters, there are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of
49
Holdings or the Company, threatened against or affecting any DealerTrack Company
(i) as to which there is a reasonable possibility of adverse determinations
that, in the aggregate, could reasonably be expected to result in a Material
Adverse Effect or (ii) that involve any of the Loan Documents or the Financing
Transactions.
(b) Except for the Disclosed Matters and except for other matters that, in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect, no DealerTrack Company (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) is subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any reasonable basis for any
Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
Section 3.07. Compliance with Laws and Agreements. Each DealerTrack
Company is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding on it or its property, except where
failures to do so, in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect. No Default has occurred and is continuing.
Section 3.08. Investment and Holding Company Status. No DealerTrack
Company is (a) an "investment company" as defined in, or subject to regulation
under, the Investment Company Act or (b) a "holding company" or "subsidiary
company" of a holding company as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
Section 3.09. Taxes. Each DealerTrack Company has timely filed or caused
to be filed all Tax returns and reports required to have been filed by it and
has paid or caused to be paid all Taxes required to have been paid by it, except
(a) any Taxes that are being contested in good faith by appropriate proceedings
and for which the relevant DealerTrack Company has set aside on its books
adequate reserves or (b) to the extent that failures to do so, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
Section 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. Based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87, (i) with respect to each
50
Plan, the present value of the accumulated benefit obligations thereunder did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $2,000,000 the fair market value of the assets
thereof, and (ii) with respect to all underfunded Plans in the aggregate, the
present value of all the accumulated benefit obligations thereunder did not, as
of such date, exceed by more than $5,000,000 the fair market value of all the
assets thereof.
Section 3.11. Disclosure. Holdings and the Company have disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to which
any DealerTrack Company is subject, and all other matters known to any of them
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of any Credit Party
to the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder,
as modified or supplemented by other information so furnished, contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, Holdings and the Company represent only that such information was
prepared in good faith based on assumptions believed to be reasonable at the
time.
Section 3.12. Subsidiaries. Holdings does not have any subsidiaries other
than the Company and the other Subsidiaries. Schedule 3.12 sets forth, as of the
Effective Date, (a) the name of, and the ownership interest of Holdings in, the
Company and each of its other Subsidiaries and identifies each Subsidiary that
is a Guarantor and (b) the name of each holder of preferred stock or any other
preferred Equity Interest in Holdings and the amount and type of such Equity
Interests held by it. The Company and the other Subsidiaries are, and (except as
otherwise permitted under Section 6.04 or 6.05) will at all times be, fully
consolidated in Holdings' consolidated financial statements.
Section 3.13. Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of Holdings and the Subsidiaries as of the
Effective Date. As of the Effective Date, all premiums in respect of such
insurance have been paid. Each of Holdings and the Company believes that the
insurance maintained by or on behalf of Holdings and the Subsidiaries is
adequate.
Section 3.14. Labor Matters. Except for such matters that, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, (i) there are no strikes, lockouts or slowdowns against any DealerTrack
Company pending or, to the knowledge of Holdings or the Company, threatened,
(ii) the hours worked by and payments made to employees of the DealerTrack
51
Companies have not violated the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters, (iii) all
payments due from any DealerTrack Company, or for which any claim may be made
against any DealerTrack Company, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability
on the books of such DealerTrack Company and (iv) the consummation of the
Proposed Acquisitions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining agreement
by which any DealerTrack Company is (or will be, after the consummation of any
Proposed Acquisition) bound.
Section 3.15. Solvency. Immediately after the consummation of the
Financing Transactions to occur on the Effective Date and after giving effect to
the application of the proceeds of each Loan to be made thereon, (a) the fair
value of the assets of each Subject Person, at a fair valuation, will exceed its
debts and liabilities, subordinated, contingent or otherwise; (b) the present
fair saleable value of the assets of each Subject Person will exceed the amount
that will be required to pay the probable liability of its debts and other
liabilities as they become absolute and matured; (c) each Subject Person will be
able to pay its debts and liabilities as they become absolute and matured; and
(d) no Subject Person will have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and
proposed to be conducted after the Effective Date.
ARTICLE 4
CONDITIONS
Section 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the LC Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent, the LC Issuing Bank and the
Lenders and dated the Effective Date) of Xxxxxx & Xxxxxxx LLP, special counsel
for the Credit Parties, substantially in the form of Exhibit B, and covering
such other matters relating to the Credit Parties, the Loan Documents or the
Financing
52
Transactions as the Required Lenders shall reasonably request. Each of Holdings
and the Company requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Credit Party,
the authorization of the Financing Transactions and any other legal matters
relating to the Credit Parties, the Loan Documents or the Financing
Transactions, all in form and substance satisfactory to the Administrative Agent
and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by an Authorized Officer of Holdings,
confirming that, immediately before and immediately after giving effect to
the occurrence of the Effective Date, (i) the representations and
warranties of each Credit Party set forth in the Loan Documents shall be
true on and as of the Effective Date and (ii) no Default shall have
occurred and be continuing on such date.
(e) The Credit Parties shall have paid all fees and other amounts
due and payable to the Lender Parties on or before the Effective Date,
including, to the extent invoiced, all out-of-pocket expenses (including
fees, charges and disbursements of counsel) required to be reimbursed or
paid by any Credit Party under the Loan Documents.
(f) The Collateral and Guarantee Requirement shall have been
satisfied and the Administrative Agent shall have received a completed
Perfection Certificate dated the Effective Date and signed by an
Authorized Officer of Holdings, together with all attachments contemplated
thereby, including the results of searches of the Uniform Commercial Code
(or equivalent) filings made with respect to the Credit Parties in the
jurisdictions contemplated by the Perfection Certificate and copies of the
financing statements (or similar documents) disclosed by such searches and
evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(g) The Administrative Agent shall have received evidence that all
insurance required by Section 5.07 is in effect.
(h) All consents and approvals required or, in the discretion of the
Administrative Agent, advisable to be obtained from any Governmental
Authority or any other Person in connection with the Financing
Transactions or the continued operations of the DealerTrack Companies
shall have been obtained and shall be in full force and effect.
53
(i) The Lenders shall have received the financial statements described in
Sections 3.04(a) and (b), and the pro forma consolidated statement of income
described in Section 3.04(b) shall be consistent in all material respects with
the forecasts and other information previously provided to the Lenders. After
giving effect to the Financing Transactions consummated prior to or to be
consummated on the Effective Date, no DealerTrack Company shall have outstanding
any preferred Equity Interests or any Debt, except (i) the preferred stock in
Holdings listed on Schedule 3.12 and (ii) Debt permitted by Section 6.01.
(j) The Administrative Agent shall have received a solvency certificate,
in form and substance satisfactory to the Lenders, from the Chief Financial
Officer, with respect to the solvency of each of the Subject Persons after
giving effect to the Financing Transactions to occur on the Effective Date.
Promptly after the Effective Date occurs, the Administrative Agent shall notify
Holdings and the Lenders thereof, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans and of the LC Issuing Bank to issue Letters of Credit shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) before 5:00 p.m., New York City time, on April 15,
2005 (and, if any such condition is not so satisfied or waived, the Commitments
shall terminate at such time).
Section 4.02. Each Extension of Credit. The obligation of each Lender to
make a Loan on the occasion of any Borrowing and the obligation of the LC
Issuing Bank to issue, amend, renew or extend any Letter of Credit, are each
subject to receipt of the Borrower's request therefor in accordance herewith and
to the satisfaction of the following conditions:
(a) The representations and warranties of each Credit Party set forth in
the Loan Documents shall be true on and as of the date of such Borrowing or the
date of issuance, amendment, renewal or extension of such Letter of Credit, as
applicable.
(b) Immediately after giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Holdings
and the Company on the date thereof as to the matters specified in clauses (a)
and (b) of this Section.
54
ARTICLE 5
AFFIRMATIVE COVENANTS
Until all the Commitments have expired or terminated and all Borrower Loan
Obligations have been paid in full and all Letters of Credit have expired or
been cancelled, each of Holdings and the Company covenants and agrees with the
Administrative Agent and the Lenders that:
Section 5.01. Financial Statements and Other Information. Holdings will
furnish to the Administrative Agent and each Lender:
(a) (i) (A) as soon as available and in no event later than May 15, 2005,
drafts of its audited consolidated balance sheet as of the end of the Fiscal
Year ended December 31, 2004 and the related statements of operations,
stockholders' equity and cash flows for such Fiscal Year, (B) as soon as
available and in no event later than the earlier of (I) the date on which it
files its initial registration statement for an IPO with the SEC and (II) June
30, 2005, its audited consolidated balance sheet as of the end of the Fiscal
Year ended December 31, 2004 and the related statements of operations,
stockholders' equity and cash flows for such Fiscal Year, and (ii) as soon as
available and in no event later than 120 days (or, if Holdings shall be subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, 90
days) after the end of each subsequent Fiscal Year, its audited consolidated
balance sheet as of the end of such Fiscal Year and the related statements of
operations, stockholders' equity and cash flows for such Fiscal Year, (x) in the
case of all of the financial statements described in clauses (i) and (ii) above,
setting forth in comparative form the figures for the previous Fiscal Year, (y)
in the case of the financial statements described in clauses (i)(B) and (ii)
above, all reported on by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) as presenting fairly in all material respects the financial
position, results of operations and cash flows of Holdings and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP and (z) in the case
of the financial statements described in clause (i) above, which do not contain
any material differences from the financial statements described in Section
3.04(a)(ii), except for non-cash charges relating to stock option compensation
expenses, normal year-end adjustments, reclassifications between income
statement line items and the absence of footnotes;
(b) within 45 days after the end of each of the first three Fiscal
Quarters of each Fiscal Year, its consolidated balance sheet as of the end of
such Fiscal Quarter and the related statements of operations, stockholders'
equity and cash flows for such Fiscal Quarter and for the then elapsed portion
of such Fiscal Year, setting forth in each case in comparative form the figures
for the corresponding
55
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous Fiscal Year, all certified by the Chief Financial Officer as
presenting fairly in all material respects the financial position, results of
operations and cash flows of Holdings and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end
adjustments and the absence of footnotes;
(c) concurrently with each delivery of financial statements under clause
(a) or (b) above, a certificate of the Chief Financial Officer (i) certifying as
to whether a Default has occurred and is continuing and, if a Default has
occurred and is continuing, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.12, 6.13 and 6.14
and (iii) stating whether any change in GAAP or in the application thereof has
occurred since the date of Holdings' most recent audited financial statements
referred to in Section 3.04 or delivered pursuant to this Section and, if any
such change has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) unless Holdings shall be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, concurrently with each delivery of
financial statements under clause (a) above, (x) a certificate of the accounting
firm that reported on such financial statements stating whether during the
course of their examination of such financial statements they obtained knowledge
of any Default under or in respect of Section 6.12, 6.13 or 6.14 (which
certificate may be limited to the extent required by accounting rules or
guidelines) and (y) the certificate referred to in Section 5.03(b);
(e) no later than 60 days after the beginning of each Fiscal Year, a
detailed consolidated budget for such Fiscal Year (including a projected
consolidated balance sheet and related statements of projected operations and
cash flows as of the end of and for such Fiscal Year and setting forth the
assumptions used in preparing such budget) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any
DealerTrack Company with the SEC, or any Governmental Authority succeeding to
any or all of the functions of the SEC, or with any national securities
exchange, or, after an IPO is consummated, distributed by Holdings to its
shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information
(including unaudited consolidating financial statements) regarding the
operations,
56
business affairs and financial condition of any DealerTrack Company, or
compliance with the terms of any Loan Document, as the Administrative Agent or
any Lender may reasonably request.
Documents required to be delivered pursuant to Section 5.01(a), (b) or (f)
(to the extent such documents are included in materials filed with the SEC) may
be delivered by posting, or providing a link to, such documents on (i) the
Company's website on the Internet at the website address xxx.xxxxxxxxxxx.xxx or
(ii) an Internet or intranet website (including any commercial, third-party
website or any website sponsored by the Administrative Agent) to which each
Lender and the Administrative Agent have access (in which case such documents
shall be deemed to have been delivered on the later of the date of such posting
and the date of delivery of the related notice under clause (y) below); provided
that (x) Holdings shall deliver paper copies of such documents to any Person
entitled thereto that has so requested (which request will be effective until
such Person notifies Holdings in writing that it may cease delivering such paper
copies) and (y) Holdings shall notify the Administrative Agent and each Lender
(by telecopier or electronic mail) of the posting of any such documents and,
upon request, provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents.
Section 5.02. Notice of Material Events. Holdings and the Company will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any
DealerTrack Company or any Affiliate thereof that, if adversely determined,
could reasonably be expected to have a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liabilities of the DealerTrack Companies in an aggregate amount exceeding
$5,000,000; and
(d) any other development that has had, or could reasonably be expected
have, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
the Chief Financial Officer or another executive officer of Holdings setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
57
Section 5.03. Information Regarding Collateral. Holdings and the Company
will provide to the Administrative Agent at least 10 days' prior written notice
of (i) any change in any Credit Party's legal name or location (determined as
provided in UCC Section 9-307), or any Credit Party's identity or organizational
structure or Federal Taxpayer Identification Number or (ii) any Credit Party
becoming bound, as provided in UCC Section 9-203(d) or otherwise, by a security
agreement entered into by another Person. Holdings and the Company will not
effect or permit any change referred to in the preceding sentence unless (x) all
filings, registrations and recordations shall have been made under the Uniform
Commercial Code or otherwise, and all other actions shall have been taken, in
each case that are required so that such change will not at any time adversely
affect the validity, perfection or priority of any Transaction Lien on any of
the Collateral, and (y) unless otherwise agreed by the Required Lenders or all
of the Lenders if so required under Section 9.02, such action will not adversely
affect the perfection or priority of the Transaction Lien on any Collateral to
be owned by the Credit Parties after such action or the accuracy of any of the
representations and warranties in the Loan Documents relating to such
Collateral.
Section 5.04. Existence; Conduct of Business. Each DealerTrack Company
will do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits,
privileges, franchises, patents, copyrights, trademarks and trade names material
to the conduct of its business; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.03.
Section 5.05. Payment of Obligations. Each DealerTrack Company will pay
its Debt and other obligations, including Tax liabilities, before the same shall
become delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) the relevant
DealerTrack Company has set aside on its books adequate reserves with respect
thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
Section 5.06. Maintenance of Properties. Each DealerTrack Company will
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
Section 5.07. Insurance. (a) The DealerTrack Companies will maintain with
financially sound and reputable insurance companies selected by Holdings or the
applicable DealerTrack Company that customarily write insurance for the risks
covered thereby in the amounts contemplated thereby:
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(i) fire and extended coverage insurance, on a replacement cost
basis, with respect to all personal property and improvements to real
property, in such amounts as are customarily maintained by companies in
the same or similar business operating in the same or similar locations;
(ii) commercial general liability insurance against claims for
bodily injury, death or property damage occurring upon, about or in
connection with the use of any properties owned, occupied or controlled by
it, providing coverage on an occurrence basis with a combined single limit
of at least $1,000,000 and including the broad form CGL endorsement;
(iii) business interruption insurance, insuring against loss of
gross earnings for a period of at least 12 months arising from any risks
or occurrences required to be covered by insurance pursuant to clause (i)
above; and
(iv) such other insurance as may be required by law or as is usually
carried by companies of established repute engaged in the same or similar
business, owning similar properties, and located in the same general areas
as the DealerTrack Companies.
Deductibles or self-insured retention shall not exceed $25,000 for fire and
extended coverage policies, $25,000 for commercial general liability policies or
seven days for business interruption policies.
(b) Fire and extended coverage policies (and any policies required to be
maintained pursuant to subsection (c) of this Section) maintained with respect
to any Collateral shall be endorsed or otherwise amended to include (i) a
lenders' loss payable clause (regarding personal property) in favor of the
Administrative Agent and providing for losses thereunder to be payable to the
Administrative Agent or its designee as the sole or primary loss payee, (ii) a
provision to the effect that none of the Credit Parties, the Administrative
Agent nor any other Person shall be a coinsurer and (iii) such other provisions
as the Administrative Agent may reasonably require from time to time to protect
the interests of the Secured Parties. Commercial general liability policies
shall be endorsed to name the Administrative Agent as an additional insured.
Business interruption policies shall name the Administrative Agent as the sole
or primary loss payee. Unless otherwise agreed by the Administrative Agent with
respect to any such policy, each policy referred to in this subsection also
shall provide that it shall not be canceled, modified or not renewed (i) by
reason of nonpayment of premium except upon at least 10 days' prior written
notice thereof by the insurer to the Administrative Agent (giving the
Administrative Agent the right to cure defaults in the payment of premiums) or
(ii) for any other reason except upon at least 30
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days' prior written notice thereof by the insurer to the Administrative Agent.
Holdings or the Company shall deliver to the Administrative Agent, prior to the
cancellation, modification or nonrenewal of any policy referred to in this
subsection, a copy of a renewal or replacement policy (or other evidence of
renewal of a policy previously delivered to the Administrative Agent) together
with evidence satisfactory to the Administrative Agent of payment of the premium
therefor.
Section 5.08. Casualty and Condemnation. Holdings (a) will furnish to the
Administrative Agent and the Lenders prompt written notice of any destruction of
or damage to (whether or not insured) any material portion of the Collateral or
the commencement of any action or proceeding for the taking of any Collateral or
any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net Proceeds of
any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with Section 2.10.
Section 5.09. Proper Records; Rights to Inspect and Appraise. Each
DealerTrack Company will keep proper books of record and account in which
complete and correct entries are made of all transactions relating to its
business and activities. Each DealerTrack Company will permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
Section 5.10. Compliance with Laws. Each DealerTrack Company will comply
with all laws, rules, regulations and orders (including all Environmental Laws)
of any Governmental Authority applicable to it or its property, except where
failures to do so, in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.
Section 5.11. Use of Proceeds and Letters of Credit. The proceeds of the
Term Loans will be used only to pay amounts payable as consideration for, and
fees and expenses payable in connection with, the Proposed Acquisitions. The
proceeds of the Revolving Loans and Letters of Credit will be used only for
general corporate purposes of Holdings and its Subsidiaries, including the
Proposed Acquisitions and other Permitted Acquisitions. No part of the proceeds
of any Loan will be used, directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Federal Reserve Board, including
Regulations G, U and X.
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Section 5.12. Additional Subsidiaries. If any Subsidiary is formed or
acquired after the Effective Date, Holdings will, within three Business Days
after such Subsidiary is formed or acquired, notify the Administrative Agent and
the Lenders thereof and cause any Equity Interest in or Debt of such Subsidiary
owned by or on behalf of any Credit Party to be added to the Collateral (except
that the Credit Parties shall not be required to pledge more than 66% of the
outstanding voting Equity Interests in any Excluded Subsidiary). If such
Subsidiary is or subsequently becomes a wholly owned Subsidiary and is not an
Excluded Subsidiary (or if any Domestic Subsidiary ceases to be an Excluded
Subsidiary), and such Subsidiary is not prohibited by applicable law or
regulation from guaranteeing the Borrowers' obligations hereunder, Holdings
shall promptly cause the Collateral and Guarantee Requirement to be satisfied
with respect to such Subsidiary, whereupon such Subsidiary will become a
"Subsidiary Guarantor" and "Lien Grantor" for purposes of the Loan Documents.
Section 5.13. Further Assurances. (a) Each DealerTrack Company will
execute and deliver any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements and other documents), that may be
required under any applicable law, or that the Administrative Agent or the
Required Lenders may reasonably request, to cause the Collateral and Guarantee
Requirement to be and remain satisfied, all at the Holdings' expense. Holdings
will provide to the Administrative Agent, from time to time upon request,
evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Transaction Liens created or intended to be
created by the Security Documents.
(b) If any material assets are acquired by any Credit Party after the
Effective Date (other than (i) assets constituting Collateral that become
subject to Transaction Liens upon the acquisition thereof and (ii) any real
property or improvements thereto or any interest therein), Holdings will
promptly notify the Administrative Agent and the Lenders thereof, and, if
requested by the Administrative Agent or the Required Lenders, (x) cause such
assets to be subjected to a Transaction Lien securing the Secured Obligations
and (y) take, or cause the relevant Credit Party to take, any and all such
actions (including the actions described in Section 5.13(a)) as shall be
necessary or reasonably requested by the Administrative Agent to grant and
perfect or record such Transaction Lien, all at Holdings' expense.
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ARTICLE 6
NEGATIVE COVENANTS
Until all the Commitments have expired or terminated and all Borrower Loan
Obligations have been paid in full and all Letters of Credit have expired or
been cancelled, each of Holdings and the Company covenants and agrees with the
Administrative Agent and the Lenders that:
Section 6.01. Debt; Certain Equity Securities. (a) No DealerTrack Company
will create, incur, assume or permit to exist any Debt, except:
(i) Debt created under the Loan Documents;
(ii) Debt existing on the date hereof and listed in Schedule 6.01,
and extensions, renewals and replacements of any such Debt that do not
increase the outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof;
(iii) Debt of any DealerTrack Company to any other DealerTrack
Company;
(iv) Guarantees by any DealerTrack Company of Debt of any other
DealerTrack Company; provided that, if the Debt being Guaranteed is
subordinated to any of the Secured Obligations, such Guarantee shall be
subordinated to the related Secured Obligations on terms at least as
favorable to the Lenders as those applicable to such Debt;
(v) Debt of the Company or any other Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Debt assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets before the acquisition thereof, and extensions, renewals
and replacements of any such Debt that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof; provided that (A) such Debt is
incurred before or within 90 days after such acquisition or the completion
of such construction or improvement and (B) the aggregate principal amount
of Debt permitted by this clause shall not exceed $7,500,000 at any time
outstanding;
(vi) Debt of any Person that becomes a Subsidiary after the date
hereof; provided that (A) such Debt exists at the time such Person becomes
a Subsidiary and is not created in contemplation of or in connection with
such Person becoming a Subsidiary and (B) the aggregate
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principal amount of Debt permitted by this clause shall not exceed
$3,000,000 at any time outstanding;
(vii) obligations of the Company or any other Subsidiary to
customers in respect of security deposits provided to the DealerTrack
Companies in the ordinary course of their business and consistent with
past practice;
(viii) (A) unsecured obligations of any DealerTrack Company to pay
any portion of the purchase price of any Permitted Acquisition which is
contingent on (or calculated by reference to) the performance of the
acquired Person; and (B) unsecured Debt of any DealerTrack Company to any
seller of property acquired in a Permitted Acquisition, so long as,
immediately before and after giving pro forma effect to such Permitted
Acquisition and the creation or incurrence of such Debt, (x) no Default
shall exist or would result therefrom, and (y) Holdings and the Company
shall be in compliance with Sections 6.13 and 6.14, such compliance to be
determined based on Holdings' consolidated financial statements referred
to in Section 3.04(a)(ii) or most recently delivered pursuant to Section
5.01(a) or (b) as though such Debt had been created or incurred (and the
related Permitted Acquisition had been consummated) on the first day of
the four Fiscal Quarter period covered thereby (any Debt permitted by this
clause (viii)(B), "PERMITTED SELLER NOTES");
(ix) obligations of any DealerTrack Company under Hedging Agreements
permitted by Section 6.07;
(x) unsecured Debt of Holdings or the Company that (A) is expressly
subordinated to the prior payment in full in cash of the obligations of
such Person under the Loan Documents on terms and conditions satisfactory
to the Required Lenders, (B) will not mature, and has no scheduled
amortization or payments of principal, prior to the date which is 91 days
after the Term Loan Maturity Date, and (C) has covenant, default and
remedy provisions no more restrictive, and mandatory prepayment,
repurchase or redemption provisions not materially more onerous or
expansive in scope, taken as a whole, than those set forth in the Loan
Documents, in an aggregate principal amount not exceeding $5,000,000 at
any time outstanding; provided that, immediately before and after giving
pro forma effect to the creation, incurrence or assumption of any such
Debt, Holdings and the Company shall be in compliance with Sections 6.13
and 6.14, such compliance to be determined based on Holdings' consolidated
financial statements referred to in Section 3.04(a)(ii) or most recently
delivered pursuant to Section 5.01(a) or (b) as though such Debt had been
created, incurred or assumed
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on the first day of the four Fiscal Quarter period covered thereby (any
Debt permitted by this clause (x), "PERMITTED SUBORDINATED DEBT");
(xi) reimbursement obligations of any DealerTrack Company with
respect to standby letters of credit issued in the ordinary course of
business and having an aggregate face amount not exceeding $600,000;
provided that any such obligations are reimbursed within 10 days after the
drawing of the related letter of credit;
(xii) obligations of any DealerTrack Company under Cash Management
Agreements or otherwise in respect of netting services, overdraft
protections and similar arrangements, in each case in connection with
deposit accounts;
(xiii) Debt of any DealerTrack Company under agreements relating to
the financing of insurance premiums;
(xiv) Debt of Foreign Subsidiaries in an aggregate principal amount
not exceeding $10,000,000 at any time outstanding;
(xv) other unsecured Debt in an aggregate principal amount not
exceeding $5,000,000 at any time outstanding; and
(xvi) unsecured Debt of any DealerTrack Company that will not
mature, and has no scheduled amortization or payments of principal, prior
to the date that is 91 days after the Term Loan Maturity Date (or, if the
Term Loans have, at the time, been repaid in full, the Revolving Maturity
Date), so long as, immediately before and after giving pro forma effect to
the incurrence of such Debt, (x) no Default shall exist or would result
therefrom, and (y) Holdings and the Company shall be in compliance with
Sections 6.13 and 6.14, such compliance to be determined based on
Holdings' consolidated financial statements referred to in Section
3.04(a)(ii) or most recently delivered pursuant to Section 5.01(a) or (b)
as though such Debt had been incurred on the first day of the four Fiscal
Quarter period covered thereby;
provided that (x) Debt of a DealerTrack Company that is not a Credit Party to a
Credit Party (including Guarantees by a Credit Party of Debt of a DealerTrack
Company that is not a Credit Party) shall be subject to Section 6.04, and (y) no
Person that is an Excluded Subsidiary pursuant to clause (b) of the definition
thereof may incur any Debt or other obligations under any of the foregoing
clauses (i) through (xvi).
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(b) No DealerTrack Company will issue any preferred stock or other
preferred Equity Interests, except for any such preferred stock or other
Preferred Equity Interests in Holdings that does not require any cash payment
(including any sinking fund or similar deposit) to be made thereon (whether as a
dividend or distribution thereon or on account of the purchase, redemption,
retirement, acquisition, cancellation or termination thereof or otherwise) until
a payment date that is 91 days after the Term Loan Maturity Date (or, if the
Term Loans have, at the time, been repaid in full, the date that is 91 days
after the date of such repayment in full).
Section 6.02. Liens. No DealerTrack Company will create or permit to
exist any Lien on any property now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(i) Transaction Liens;
(ii) Permitted Liens;
(iii) any Lien on any property of the Company or any other
Subsidiary existing on the date hereof and listed in Schedule 6.02;
provided that (A) such Lien shall not apply to any other property of the
Company or any other Subsidiary and (B) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal
amount thereof;
(iv) any Lien existing on any property before the acquisition
thereof by the Company or any other Subsidiary or existing on any property
of any Person that becomes a Subsidiary after the date hereof before the
time such Person becomes a Subsidiary; provided that (A) such Lien is not
created in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, as the case may be, (B) such Lien will not
apply to any other property of the Company or any other Subsidiary and (C)
such Lien will secure only those obligations which it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the
case may be, and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any other Subsidiary; provided that (A) the
Debt secured by such Liens is permitted by Section 6.01(a)(v), (B) such
Liens and the Debt secured thereby are incurred before or within 90 days
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after such acquisition or the completion of such construction or
improvement and (C) such Liens will not apply to any other property of the
Company or any other Subsidiary;
(vi) Liens that are contractual rights of set-off relating to (A)
the establishment of depository relations with banks not given in
connection with the incurrence of Debt and/or (B) pooled deposit or sweep
accounts of any Credit Party to permit satisfaction of overdraft or
similar obligations incurred in the ordinary course of business of the
Credit Parties;
(vii) Liens on cash or cash equivalents securing obligations
permitted by Section 6.01(a)(xi); provided that the aggregate amount of
cash and cash equivalents subject to such Liens shall not exceed 110% of
the obligations secured thereby;
(viii) licenses of intellectual property in the ordinary course of
business; and
(ix) Liens not otherwise permitted by the foregoing clauses (i)
through (viii) securing Debt in an aggregate principal amount not
exceeding $2,000,000 at any time outstanding.
Section 6.03. Fundamental Changes. (a) No DealerTrack Company will merge
into or consolidate with any other Person, or liquidate or dissolve, or permit
any other Person to merge into or consolidate with it, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing, (i) any Person (other than Holdings) may merge into
the Company in a transaction in which the Company is the surviving corporation,
(ii) any Person (other than Holdings and the Company) may merge into any
Subsidiary in a transaction in which the surviving entity is a Subsidiary and,
if any party to such merger is a Subsidiary Guarantor, is a Subsidiary Guarantor
and (iii) any Subsidiary (other than the Company) may liquidate or dissolve if
Holdings determines in good faith that such liquidation or dissolution is in the
best interests of the DealerTrack Companies and is not materially
disadvantageous to the Lenders; provided that, if any such merger involves a
Person that is not a wholly owned Subsidiary immediately before such merger,
such merger shall not be permitted unless also permitted by Section 6.04.
(b) Neither the Company nor any other Subsidiary will engage to any
material extent in any business except businesses of the types conducted by the
Company and the other Subsidiaries on the date hereof and businesses reasonably
related thereto or to the automotive industry generally, provided that the
Company and the other Subsidiaries shall not engage in manufacturing.
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(c) Holdings will not engage in any business or activity, and will not own
or acquire any assets or incur any liabilities, except activities integral to,
and assets or liabilities consisting of or integral to, (i) its ownership of all
the outstanding Equity Interests in the Company and its other Subsidiaries (or
any lesser amount thereof to the extent so permitted by Section 6.04 or 6.05),
(ii) Debt permitted by Section 6.01(a), Investments permitted by Section 6.04
(including with respect to Permitted Acquisitions), sales, transfers and
dispositions of assets permitted by Section 6.05, Hedging Agreements permitted
by Section 6.07 and Restricted Payments permitted by Section 6.08, (iii) its
Equity Interests (including sales and/or issuances thereof permitted hereunder),
(iv) its existence and compliance with law (including with respect to tax
liabilities), (v) its status as a public company or (vi) its management of
Holdings (including, without limitation, the management of its Subsidiaries);
provided, however, that in no event shall Holdings engage in product sales or
provide any licensing or subscription services.
Section 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
No DealerTrack Company will purchase, hold or acquire (including pursuant to any
merger with any Person that was not a wholly owned Subsidiary before such
merger) any Equity Interest in or evidence of indebtedness or other security
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loan or advance to, Guarantee any obligation of,
or make or permit to exist any investment or other interest in, any other
Person, or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person constituting a business unit (any
of the foregoing, an "INVESTMENT"), except:
(a) Permitted Investments;
(b) Investments existing on the date hereof and listed on Schedule 6.04;
(c) Investments by the DealerTrack Companies in the Equity Interests in
their respective Subsidiaries; provided that any such Equity Interests held by
or on behalf of a Credit Party shall be pledged pursuant to the Security
Agreement as required by clause (b) of the definition of "Collateral and
Guarantee Requirement";
(d) loans or advances permitted by Section 6.01(a)(iii);
(e) Guarantees constituting Debt permitted by Section 6.01(a);
(f) Investments received by any DealerTrack Company in connection with the
bankruptcy or reorganization of, or settlement of delinquent accounts and
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disputes with, customers and suppliers and vendors, in each case in the ordinary
course of business;
(g) the purchase or other acquisition any DealerTrack Company (including
in any Proposed Acquisition) of all or substantially all of the property and
assets or business of any Person, or of assets constituting a business unit, a
line of business or division of any Person, or of all of the Equity Interests in
any Person that, upon the consummation of such purchase or acquisition, will be
owned directly by Holdings or one or more of its wholly owned Subsidiaries
(including as a result of a merger, amalgamation or consolidation) (any purchase
or other acquisition permitted by this subsection (g), a "PERMITTED
ACQUISITION"), including any Investments received by any DealerTrack Company in
connection therewith; provided that:
(i) each DealerTrack Company (including any Subsidiaries created or
acquired in connection with such purchase or acquisition) shall have
complied with, or within the times specified therein shall comply with,
Sections 5.12 and 5.13;
(ii) such purchase or acquisition shall not be pursuant or related
to or in connection with any hostile transaction;
(iii) immediately before and immediately after giving pro forma
effect to such purchase or acquisition (including any creation, incurred
or assumed of Debt in connection therewith), (A) no Default shall have
occurred and be continuing or would result therefrom, (B) the DealerTrack
Companies shall be in compliance with Section 6.03(b) and (C) Holdings and
the Company shall be in compliance with Sections 6.13 and 6.14, such
compliance to be determined based on Holdings' consolidated financial
statements referred to in Section 3.04(a)(ii) or most recently delivered
pursuant to Section 5.01(a) or (b) as though such purchase or acquisition
(and any creation, incurrence or assumption of Debt in connection
therewith) had been consummated on the first day of the four Fiscal
Quarter period covered thereby;
(iv) Holdings shall have delivered to the Administrative Agent a
certificate of the Chief Financial Officer, in form and substance
reasonably satisfactory to the Administrative Agent, (A) certifying that
all of the requirements specified in this subsection (g) have been
satisfied and (B) setting forth reasonably detailed calculations
demonstrating pro forma compliance with Sections 6.13 and 6.14;
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(v) in the case of any Proposed Acquisition financed with the
proceeds of Loans, such Proposed Acquisition is consummated substantially
simultaneously with the Borrowing of such Loans; and
(vi) if the aggregate consideration paid by the DealerTrack
Companies in connection with such purchase or acquisition exceeds
$5,000,000, the Lenders shall have received any information relating
thereto as they have reasonably requested to demonstrate compliance with
the foregoing clauses (i) through (v);
(h) advances by the DealerTrack Companies to their suppliers or vendors in
the ordinary course of business; and
(i) other Investments in an aggregate amount not exceeding $5,000,000 at
any time outstanding;
provided that the aggregate amount of Investments (whether existing on the
Effective Date or made thereafter) by Credit Parties in Persons that are not
Credit Parties (including (x) any consideration paid by Credit Parties in
connection with Permitted Acquisitions in respect of Equity Interests in (or
assets of) and (y) any Guarantees of obligations of, Persons that are not, and
will not be required to become, Credit Parties) shall not exceed $10,000,000 at
any time outstanding.
Section 6.05. Asset Sales. No DealerTrack Company will sell, transfer,
lease or otherwise dispose of any property, including any Equity Interest owned
by it, nor will the Company or any other Subsidiary issue any additional Equity
Interest, except:
(a) (i) sales, transfers and other dispositions of inventory, used or
surplus equipment or Permitted Investments, or licenses of intellectual
property, in any case in the ordinary course of business, and (ii) sales,
transfers and other dispositions of obsolete or worn out assets, immaterial
assets acquired in a Permitted Acquisition and assets that not used or useful in
the conduct of the business of the DealerTrack Companies;
(b) sales, transfers and other dispositions to another DealerTrack
Company; provided that any such sales, transfers or dispositions involving a
Subsidiary that is not a Credit Party shall comply with Section 6.09; and
(c) sales, transfers and other dispositions of assets (except Equity
Interests in the Company or another Subsidiary) that are not permitted by any
other clause of this Section; provided that the aggregate fair market value of
all assets sold, transferred or otherwise disposed of in reliance on this clause
during
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any Fiscal Year shall not exceed 10% of Consolidated Total Assets as of the last
day of the immediately preceding Fiscal Year;
provided that all sales, transfers, leases and other dispositions permitted by
this Section (except those permitted by clause (b) above) shall be made for fair
value and for at least 75% cash consideration.
Section 6.06. Sale and Leaseback Transactions. No DealerTrack Company
will enter into any arrangement, directly or indirectly, whereby it shall sell
or transfer any property, real or personal, used or useful in its business,
whether now owned or hereafter acquired, and thereafter rent or lease such
property or other property that it intends to use for substantially the same
purpose or purposes as the property sold or transferred (any of the foregoing, a
"SALE AND LEASEBACK TRANSACTION"), except for any such sale of any fixed or
capital asset by the Company or another Subsidiary that is (i) made for cash
consideration in an amount not less than the cost of such fixed or capital asset
and (ii) consummated within 90 days after the Company or such other Subsidiary
acquires or completes the construction of such fixed or capital asset.
Section 6.07. Hedging Agreements. No DealerTrack Company will enter into
any Hedging Agreement, except Hedging Agreements entered into in the ordinary
course of business to hedge or mitigate risks to which a DealerTrack Company is
exposed in the conduct of its business or the management of its liabilities.
Section 6.08. Restricted Payments; Certain Payments of Debt. (a) No
DealerTrack Company will declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that (i) Holdings may declare and pay dividends with
respect to its capital stock payable solely in additional shares of its common
stock, (ii) (A) any Subsidiary (other than the Company) may declare and pay
dividends with respect to its capital stock and (B) the Company may declare and
pay dividends with respect to its capital stock so long as any cash or other
property so distributed is applied, substantially simultaneously therewith, to
make an Investment permitted by Section 6.04, (iii) Holdings may make Restricted
Payments (A) pursuant to and in accordance with stock option plans or other
benefit plans of the DealerTrack Companies, (B) in connection with an IPO to the
extent required to pay accrued dividends on preferred Equity Interests in
Holdings which become due as a result thereof and (C) after the Term Loan
Maturity Date (or, if the Term Loans have, at the time, been repaid in full, the
date of such repayment in full), in an aggregate amount in any Fiscal Year not
exceeding 50% of Consolidated Net Income for the preceding Fiscal Year, and (iv)
the Company may declare and pay dividends to Holdings at such times and in such
amounts as shall be necessary to permit Holdings to conduct activities and
discharge
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liabilities permitted by Section 6.03(c) (including to pay taxes attributable to
its ownership in its Subsidiaries as permitted thereby) (it being understood
that Holdings may not use any such amount to make any Restricted Payment
(whether in connection with activities or liabilities permitted by Section
6.03(c) or otherwise) unless such Restricted Payment is expressly permitted by
clause (i) or (iii) above).
(b) No DealerTrack Company will make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities or
other property) of or in respect of principal of or interest on any Debt, or any
payment or other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, defeasance or termination of any Debt, except:
(i) payments in respect of Debt permitted by clauses (i) and (iii)
of Section 6.01(a);
(ii) payments of regularly scheduled interest and principal payments
as and when due in respect of Debt permitted by clauses (ii) and (iv)
through (xvi) of Section 6.01(a); provided that no such payment may be
made in respect of (A) (x) Permitted Seller Notes or (y) Debt existing
pursuant to clause (ii) of Section 6.01(a) owed to any seller of property,
in each case unless, immediately before and after giving pro forma effect
to such payment, no Default under clause (a), (b), (h) or (i) of Section
7.01 shall have occurred and be continuing or would result therefrom, or
(B) Permitted Subordinated Debt if such payment would be inconsistent with
any of the criteria set forth in clauses (A) and/or (B) of the definition
thereof;
(iii) refinancings of Debt to the extent permitted by Section
6.01(a); and
(iv) payment of secured Debt that becomes due as a result of the
voluntary sale or transfer of the property securing such Debt.
Section 6.09. Transactions with Affiliates. No DealerTrack Company will
sell, lease or otherwise transfer any property to, or purchase, lease or
otherwise acquire any property from, or otherwise engage in any other
transaction with, any of its Affiliates, except (a) transactions in the ordinary
course of business that are at prices and on terms and conditions not less
favorable to such DealerTrack Company than could be obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among the Credit
Parties not involving any other Affiliate, (c) transactions permitted by Section
6.01(iii) or (iv), mergers, consolidations, liquidations and dissolutions
permitted by Section 6.03(a),
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Investments permitted by Section 6.04(c) or (d), Restricted Payments permitted
by Section 6.08(a). payments of Debt permitted by Section 6.08(b)(i), (ii) or
(iii) and (d) cross-licensing of intellectual property consistent with current
business practices.
Section 6.10. Restrictive Agreements. No DealerTrack Company will,
directly or indirectly, enter into or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition on (a) the
ability of any DealerTrack Company to create or permit to exist any Lien on any
of its property or (b) the ability of any Subsidiary to pay dividends or other
distributions with respect to any shares of its capital stock or to make or
repay loans or advances to the Credit Parties or to Guarantee Debt of the Credit
Parties; provided that (i) the foregoing shall not apply to restrictions and
conditions imposed by law or by any Loan Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the date hereof and identified
on Schedule 6.10 (but shall apply to any amendment or modification expanding the
scope of, or any extension or renewal of, any such restriction or condition),
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Subsidiary pending such sale,
provided that such restrictions and conditions apply only to the Subsidiary that
is to be sold and such sale is permitted hereunder, and (iv) clause (a) of this
Section shall not apply to (A) restrictions or conditions imposed by any
agreement relating to secured Debt permitted by this Agreement if such
restrictions or conditions apply only to the property securing such Debt or (B)
customary provisions in leases and other contracts restricting the assignment
thereof.
Section 6.11. Amendment of Material Documents; Change in Fiscal Year. No
DealerTrack Company will (a) amend, modify or waive any of its rights under its
certificate of incorporation, by-laws or other organizational documents or any
Material Agreement, in each case in a manner adverse to such DealerTrack Company
or the Administrative Agent or any Lender (in its capacity as a Lender), or (b)
change its fiscal year from that in effect on the date hereof.
Section 6.12. Capital Expenditures. Holdings and the Company will not
permit the aggregate amount of Capital Expenditures made in any Fiscal Year to
exceed (i) $15,000,000 (in the case of the Fiscal Year ending December 31, 2005)
or (ii) 12.5% of Consolidated Gross Revenue for the preceding Fiscal Year (in
the case of each Fiscal Year ending thereafter).
Section 6.13. Leverage Ratio. Holdings and the Company will not permit
the Leverage Ratio at any time during any period set forth below to exceed the
ratio set forth opposite such period:
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Period Ratio
------ -----
From and including the Effective Date to and
Including December 30, 2005 2.75:1
From and including December 31, 2005 and
thereafter 2.50:1
Section 6.14. Fixed Charge Coverage Ratio. Holdings and the Company will
not permit the Fixed Charge Coverage Ratio at any time to be less than 1.50:1.
ARTICLE 7
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any LC
Reimbursement Obligation when the same shall become due, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay when due any interest on any Loan or
any fee or other amount (except an amount referred to in clause (a) above)
payable under any Loan Document, and such failure shall continue unremedied for
a period of three Business Days;
(c) any representation, warranty or certification made or deemed made by
or on behalf of any DealerTrack Company in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in
any report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been incorrect
when made or deemed made;
(d) Holdings or the Company shall fail to observe or perform any covenant
or agreement contained in Section 2.04(k)(ii), 5.01(a)(i), 5.02, 5.04 (with
respect to the existence of Holdings or the Company) or 5.11 or in Article 6;
(e) any Credit Party shall fail to observe or perform any covenant or
agreement contained in any Loan Document (other than those specified in clause
(a), (b) or (d) above), and such failure shall continue unremedied for a period
of 30 days after notice thereof from the Administrative Agent to Holdings (which
notice will be given at the request of any Lender);
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(f) any DealerTrack Company shall fail to make a payment or payments
(whether of principal or interest and regardless of amount) in respect of
Material Debt (i) in the case of principal, when the same shall become due,
whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise, and (ii) in the case of interest or any other amount, beyond any
grace period applicable thereto, if any;
(g) any event or condition occurs that results in Material Debt becoming
due before its scheduled maturity or that enables or permits (with or without
the giving of notice, the lapse of time or both) the holder or holders of
Material Debt or any trustee or agent on its or their behalf to cause Material
Debt to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, before its scheduled maturity; provided that this clause
shall not apply to secured Debt that becomes due as a result of a voluntary sale
or transfer of the property securing such Debt;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of any DealerTrack Company or its debts, or of a substantial part of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for any DealerTrack Company or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall be entered;
(i) any DealerTrack Company shall (i) voluntarily commence any proceeding
or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition described
in clause (h) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
any DealerTrack Company or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
(j) any DealerTrack Company shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate amount
exceeding $5,000,000 shall be rendered against one or more DealerTrack Companies
and shall remain undischarged for a period of 30 consecutive days
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during which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any asset of any
DealerTrack Company to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of the DealerTrack
Companies in an aggregate amount exceeding $5,000,000 for all periods;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Credit Party not to be, a valid and
perfected Lien on any Collateral, with the priority required by the applicable
Security Document, except (i) as a result of a sale or other disposition of the
applicable Collateral in a transaction permitted under the Loan Documents or
(ii) as a result of the Administrative Agent's failure to maintain possession of
any stock certificates, promissory notes or other documents delivered to it
under the Security Agreement;
(n) a Change in Control shall occur; or
(o) any Guarantor's Secured Guarantee shall at any time fail to constitute
a valid and binding agreement of such Guarantor or any party shall so assert in
writing;
then, and in every such event (except an event with respect to Holdings or the
Company described in clause (h) or (i) above), and at any time thereafter during
the continuance of such event, the Administrative Agent may, and at the request
of the Required Lenders shall, by notice to Holdings, take either or both of the
following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are waived by each Borrower; and in the case of any event
with respect to Holdings or the Company described in clause (h) or (i) above,
the Commitments shall automatically terminate and the principal of the Loans
then outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrowers accrued hereunder, shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are waived by each Borrower.
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ARTICLE 8
THE AGENTS
Section 8.01. Appointment and Authorization. (a) Each Lender Party (in
its capacities as a Lender, the LC Issuing Bank (if applicable) and a potential
Hedge Bank or Cash Management Bank) irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent (i) to sign and
deliver the Security Documents and (ii) to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the
terms of the Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
(b) The LC Issuing Bank shall act on behalf of the Revolving Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the LC Issuing Bank shall have all of the benefits and immunities
(i) provided to the Agents in this Article 8 with respect to any acts taken or
omissions suffered by the LC Issuing Bank in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the
term "Agent" as used in this Article 8 and in the definition of "Lender Party"
included the LC Issuing Bank with respect to such acts or omissions, and (ii) as
additionally provided herein with respect to the LC Issuing Bank.
Section 8.02. Rights and Powers as a Lender. A bank serving as any Agent
shall, in its capacity as a Lender, have the same rights and powers as any other
Lender and may exercise the same as though it were not such Agent. Such bank and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of business with any DealerTrack Company or Affiliate thereof as if it
were not an Agent.
Section 8.03. Limited Duties and Responsibilities. No Agent shall have
any duties or obligations except those expressly set forth in the Loan
Documents. Without limiting the generality of the foregoing, (a) no Agent shall
be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) no Agent shall have any duty to take
any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that such Agent is required in writing to exercise by the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) and (c) except as expressly set forth
in the Loan Documents, no Agent shall have any duty to disclose, and no Agent
shall be liable for any failure to disclose, any information relating to any
DealerTrack Company that is communicated to or obtained by the bank serving as
such Agent or any of its Affiliates in any capacity. No Agent shall be liable
for
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any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) or in the absence
of its own gross negligence or willful misconduct. Each Agent shall be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to such Agent by Holdings, the Company or a Lender, and no Agent shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered thereunder
or in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article 4 or elsewhere in any Loan
Document, other than to the responsibility of the Administrative Agent to
confirm receipt of items expressly required to be delivered to it.
Section 8.04. Authority to Rely on Certain Writings, Statements and
Advice. Each Agent shall be entitled to rely on, and shall not incur any
liability for relying on, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have
been signed or sent by the proper Person. Each Agent also may rely on any
statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. Each Agent
may consult with legal counsel (who may be counsel for any DealerTrack Company),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
Section 8.05. Sub-Agents and Related Parties. Each Agent may perform any
and all its duties and exercise its rights and powers by or through one or more
sub-agents appointed by it. Each Agent and any such sub-agent may perform any
and all its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions of the preceding Sections of this
Article shall apply to any such sub-agent and to the Related Parties of the
Agents and any such sub-agent, and shall apply to activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as such Agent.
Section 8.06. Resignation; Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided in
this Section, the Administrative Agent may resign at any time by notifying the
Lenders, the LC Issuing Bank and Holdings. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor, which, so long as
no
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Event of Default has occurred and is continuing, shall be reasonably acceptable
to Holdings. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the LC Issuing Bank,
appoint a successor Administrative Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed by the Borrowers and
such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.
Section 8.07. Credit Decisions by Lenders. Each Lender acknowledges that
it has, independently and without reliance on any Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance on any Agent or
any other Lender and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based on this Agreement, any other Loan Document or
related agreement or any document furnished hereunder or thereunder.
Section 8.08. Other Agents. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
"Syndication Agent", "Documentation Agent", "Joint Bookrunner" or "Arranger"
shall have any right, power, obligation, liability, responsibility or duty under
this Agreement other than those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders or other Persons so identified shall
have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any of the
Lenders or other Persons so identified in deciding to enter into this Agreement
or in taking or not taking action hereunder.
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ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Holdings or the Company, to it at 0000 Xxxxxx Xxxxxx, Xxxxx X00,
Xxxx Xxxxxxx, Xxx Xxxx 00000, Attention of Xxxx Xxxxxx, General Counsel
(Telecopy No. 516-734-3805);
(b) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., at 0000
Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention of Xxxxxx Xxxxx (Telecopy No.
713-750-2938) with copies to 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention of
Xxxxx Xxxx (Telecopy No. 212-391-6091) and 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention of Xxxx Xxxxxxxxx (Telecopy No. 212-534-3078);
(c) if to the LC Issuing Bank, to JPMorgan Chase Bank, N.A., at 0000
Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention of Xxxxxx Xxxxx (Telecopy No.
713-750-2938) with copies to 0000 Xxxxxxxx, Xxx Xxxx, XX 00000, Attention of
Xxxxx Xxxx (Telecopy No. 212-391-6091) and 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention of Xxxx Xxxxxxxxx (Telecopy No. 212-534-3078);
(d) if to any other Lender, to it at its address (or telecopy number) set
forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the Administrative Agent and Holdings. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement will be deemed to have been given on the date
of receipt.
Section 9.02. Waivers; Amendments. (a) No failure or delay by any Lender
Party in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of
the Lender Parties under the Loan Documents are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provision of any Loan Document or consent to any departure by any Credit Party
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therefrom shall in any event be effective unless the same shall be permitted by
subsection (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, neither the making of a Loan
nor the issuance, amendment, renewal or extension of a Letter of Credit shall be
construed as a waiver of any Default, regardless of whether any Lender Party had
notice or knowledge of such Default at the time.
(b) No Loan Document or provision thereof may be waived, amended or
modified except, in the case of this Agreement, by an agreement or agreements in
writing entered into by Holdings, the Company and the Required Lenders or, in
the case of any other Loan Document, by an agreement or agreements in writing
entered into by the parties thereto with the consent of the Required Lenders;
provided that no such agreement shall:
(i) increase the Commitment of any Lender without its written
consent;
(ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fee payable hereunder,
without the written consent of each Lender Party affected thereby;
(iii) postpone the maturity of any Loan, or any scheduled date of
payment of the principal amount of any Term Loan under Section 2.09, or
the required date of reimbursement of any LC Disbursement, or any date for
the payment of any interest or fee payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Lender
Party affected thereby;
(iv) change Section 2.17(b) or 2.17(c) in a manner that would alter
the pro rata sharing of payments required thereby, without the written
consent of each Lender;
(v) change any provision of this Section or the percentage set forth
in the definition of "Required Lenders" or any other provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to take any action thereunder, without the written consent
of each Lender, or each Lender of such Class, as the case may be;
(vi) release any Guarantor from its Secured Guarantee (except as
expressly provided in the Security Agreement), or limit its liability in
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respect of its Secured Guarantee, without the written consent of each
Lender;
(vii) release all or substantially all of the Collateral from the
Transaction Liens, without the written consent of each Lender;
(viii) waive any condition set forth in Section 4.02 (including by
amending or waiving any provision of Article 5, 6, 7 or 8 if the effect of
such amendment or waiver would be to waive any such condition) for
purposes of any Borrowing of Revolving Loans without the written consent
of the Required Revolving Lenders;
(ix) change any provision of this Agreement relating to the
repayment or prepayment of Loans of any Class, without the written consent
of Lenders holding (i) if there are 3 or fewer Lenders of such Class, at
least 66-2/3% of the outstanding Loans and unused Commitments of such
Class or (ii) if there are 4 or more Lenders of such Class, more than 50%
of the outstanding Loans and unused Commitments of such Class; or
(x) change any provision of any Loan Document in a manner that by
its terms adversely affects the rights in respect of payments due to
Lenders holding Loans of one Class differently than those holding Loans of
the other Class, without the written consent of Lenders holding at least
(i) if there are 3 or fewer Lenders of such Class, at least 66-2/3% of the
outstanding Loans and unused Commitments of the adversely affected Class
or (ii) if there are 4 or more Lenders of such Class, more than 50% of the
outstanding Loans and unused Commitments of the adversely affected Class;
provided further that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or the LC Issuing Bank
without its prior written consent, and (B) any waiver, amendment or modification
of this Agreement that by its terms affects the rights or duties under this
Agreement of one Class of Lenders (but not of any other Class of Lenders) may be
effected by an agreement or agreements in writing entered into by Holdings, the
Company and the requisite percentage in interest of the affected Class of
Lenders that would be required to consent thereto under this Section if such
Class of Lenders were the only Class of Lenders hereunder at the time.
(c) Notwithstanding the foregoing, if the Required Lenders enter into or
consent to any waiver, amendment or modification pursuant to subsection (b) of
this Section, no consent of any other Lender will be required if, when such
waiver, amendment or modification becomes effective, (i) the Commitment of
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each Lender not consenting thereto terminates and (ii) all amounts owing to it
or accrued for its account hereunder are paid in full.
Section 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrowers agree,
jointly and severally, to pay (i) all reasonable out-of-pocket expenses incurred
by the Agents, the Initial Lenders and their Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and the Lead Arrangers, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers of the provisions thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the LC
Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by any Lender Party, including the fees, charges
and disbursements of any counsel for any Lender Party, in connection with the
enforcement or protection of its rights in connection with the Loan Documents
(including its rights under this Section), the Letters of Credit or the Loans,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of the Letters of Credit or the Loans.
(b) The Borrowers agree, jointly and severally, to indemnify each of the
Lender Parties and their respective Related Parties (each such Person being
called an "INDEMNITEE") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including the
fees, charges and disbursements of counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of this Agreement or any other Loan
Document or any other agreement or instrument contemplated hereby or thereby,
the performance by the parties to the Loan Documents of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby or by the other Loan Documents, (ii)
any Loan or Letter of Credit or the use of the proceeds therefrom (including any
refusal by the LC Issuing Bank to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property currently or
formerly owned or operated by any DealerTrack Company, or any Environmental
Liability related in any way to any DealerTrack Company or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not be available to any Indemnitee to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and
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nonappealable judgment to have resulted from such Indemnitee's gross negligence
or willful misconduct.
(c) To the extent that any Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or the LC Issuing Bank under subsection
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the LC Issuing Bank, as the case may be, such Lender's
pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the LC Issuing Bank in its capacity as such. For
purposes hereof, a Lender's "PRO RATA SHARE" shall be determined based on its
share of the sum of the total Revolving Exposures, outstanding Term Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Holdings nor the
Company shall assert, and each hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any other Loan Document or any
agreement or instrument contemplated hereby or thereby or any Transaction or any
other transaction contemplated hereby or by the other Loan Documents, any Loan
or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable within 5 Business
Days after written demand therefor.
Section 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding on and inure to the benefit of the parties hereto and
their respective successors and assigns permitted hereby (including any
Affiliate of the LC Issuing Bank that issues any Letter of Credit), except that
neither Holdings nor the Company may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by Holdings or the Company without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (except the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the LC Issuing Bank that issues any Letter of Credit) and, to the
extent expressly provided herein, the Related Parties of the Lender Parties) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of any
83
Commitment it has at the time and any Loans at the time owing to it); provided
that:
(i) each of (A) the Administrative Agent, (B) in the case of an
assignment of all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure, the LC Issuing Bank and (C)
except (x) in the case of an assignment to a Lender or a Lender Affiliate
or (y) if an Event of Default has occurred and is continuing, Holdings
must give their prior written consent to such assignment (which consents
shall not be unreasonably withheld);
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (ii) shall not prohibit the
assignment of a proportionate part of all the assigning Lender's rights
and obligations in respect of one Class of Commitments or Loans;
(iii) unless each of Holdings and the Administrative Agent otherwise
consent, the amount of the Commitment or Loans of the assigning Lender
subject to each such assignment (determined as of the date on which the
relevant Assignment is delivered to the Administrative Agent) shall not be
less than $5,000,000 or, if only Term Loans are being assigned, shall not
be less than $1,000,000; provided that this clause (iii) shall not apply
to an assignment to a Lender or a Lender Affiliate or an assignment of the
entire remaining amount of the assigning Lender's Commitment or Loans;
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment, together with a processing and
recordation fee of $3,500; provided that only one such fee shall be due in
respect of a simultaneous assignment to more than one Lender Affiliate;
and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent a completed Administrative Questionnaire.
Subject to acceptance and recording thereof pursuant to subsection (d) of this
Section, from and after the effective date specified in each Assignment the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment, be released from its obligations under
this Agreement (and, in the case of an Assignment covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
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be a party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (e)
of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York City a copy of each
Assignment delivered to it and a register for the recordation of the names and
addresses of the Lenders, their respective Commitments and the principal amounts
of the Loans and LC Disbursements owing to each Lender pursuant to the terms
hereof from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, and the parties hereto may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by any party hereto at any reasonable time and from
time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment executed by an
assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in subsection (b) of this Section and
any written consent to such assignment required by subsection (b) of this
Section, the Administrative Agent shall accept such Assignment and record the
information contained therein in the Register. No assignment shall be effective
for purposes of this Agreement unless it has been recorded in the Register as
provided in this subsection.
(e) Any Lender may, without the consent of or notice to Holdings, the
Company or any other Lender Party, sell participations to one or more banks or
other entities ("PARTICIPANTS") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitments
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) Holdings, the Company and the other Lender Parties shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification
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or waiver described in the first proviso to Section 9.02(b) that affects such
Participant. Subject to subsection (f) of this Section, each Participant shall
be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
subsection (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided that such Participant agrees to be subject to Section 2.17(c)
as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with Holdings' prior
written consent. A Participant shall not be entitled to the benefits of Section
2.16 unless Holdings is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of Holdings and the Company, to
comply with Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
Section 9.05. Survival. All covenants, agreements, representations and
warranties made by the Credit Parties in the Loan Documents and in certificates
or other instruments delivered in connection with or pursuant to the Loan
Documents shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of the Loan Documents and
the making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Lender Party may have had notice or knowledge of any Default or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as any principal
of or accrued interest on any Loan or any fee or other amount payable hereunder
is outstanding and unpaid or any Letter of Credit is outstanding or any
Commitment has not expired or terminated. The provisions of Sections 2.14, 2.15,
2.16 and 9.03 and Article 8 shall survive and remain in full force and effect
regardless of the consummation of the Financing Transactions, the repayment of
the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
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Section 9.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent or the LC Issuing Bank constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. Except as provided in Section 4.01, this Agreement
(i) will become effective when the Administrative Agent shall have signed this
Agreement and received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto and (ii) thereafter will be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy will be effective as delivery of a manually
executed counterpart of this Agreement.
Section 9.07. Severability. If any provision of any Loan Document is
invalid, illegal or unenforceable in any jurisdiction then, to the fullest
extent permitted by law, (i) such provision shall, as to such jurisdiction, be
ineffective to the extent (but only to the extent) of such invalidity,
illegality or unenforceability, (ii) the other provisions of the Loan Documents
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Lender Parties in order to carry out the
intentions of the parties thereto as nearly as may be possible and (iii) the
invalidity, illegality or unenforceability of any such provision in any
jurisdiction shall not affect the validity, legality or enforceability of such
provision in any other jurisdiction.
Section 9.08. Right of Set-off. Each Lender and each of their respective
Lender Affiliates is authorized at any time when (i) an Event of Default shall
have occurred and be continuing, or (ii) any Borrower Loan Obligation shall not
have been paid when due, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations at any time owing by such Lender
or Lender Affiliate to or for the credit or the account of any Borrower (other
than any such obligations arising under or in respect of any agreement or other
arrangement entered into in the ordinary course of business of such Borrower
pursuant to which such Lender or Lender Affiliate is a customer of such
Borrower, as to which any rights of setoff shall be determined without reference
to the provisions of this Section) against any Borrower Loan Obligations now or
hereafter existing and held by such Lender or Lender Affiliate, irrespective of
whether or not such Lender or Lender Affiliate shall have made any demand
therefor and although such obligations may be unmatured. The rights of each
Lender and each such Lender Affiliate under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Lender or
Lender Affiliate may have.
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Section 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each of Holdings and the Company irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
relevant appellate court, in any action or proceeding arising out of or relating
to any Loan Document, or for recognition or enforcement of any judgment, and
each party hereto irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State court or, to the extent permitted by law, in such Federal court. Each
party hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. Nothing in any Loan Document shall
affect any right that any Lender Party may otherwise have to bring any action or
proceeding relating to any Loan Document against any Credit Party or its
properties in the courts of any jurisdiction.
(c) Each of Holdings and the Company irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to any Loan Document in any
court referred to in subsection (b) of this Section. Each party hereto
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of any such suit, action or proceeding in
any such court.
(d) Each party hereto irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in any Loan Document will
affect the right of any party hereto to serve process in any other manner
permitted by law.
Section 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO ANY LOAN DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
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IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.11. Headings. Article and Section headings and the Table of
Contents herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12. Confidentiality. Each Lender Party agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedy hereunder or any suit, action
or proceeding relating to any Loan Document or the enforcement of any right
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any actual or prospective assignee of or
Participant in any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to any Credit Party and its obligations, (g) with the
consent of Holdings or the applicable Credit Party or (h) to the extent such
Information either (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to any Lender Party on a
nonconfidential basis from a source other than a Credit Party. For the purposes
of this Section, "INFORMATION" means all information received from any Credit
Party relating to any Credit Party or its business, other than any such
information that is available to any Lender Party on a nonconfidential basis
before disclosure by such Credit Party. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
DEALERTRACK, INC.
By: ____________________________________________
Name:
Title:
DEALERTRACK HOLDINGS, INC.
By: ____________________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A., as a
Lender and as Administrative Agent
and LC Issuing Bank
By: ____________________________________________
Name:
Title:
XXXXXX COMMERCIAL PAPER INC.. as a Lender
By: ____________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By: ____________________________________________
Name:
Title:
