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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
---------------------------
LEHMAN COMMERCIAL PAPER INC.,
Syndication Agent
WACHOVIA BANK, NATIONAL ASSOCIATION,
Documentation Agent
---------------------------
J.P. MORGAN SECURITIES INC.,
LEHMAN BROTHERS INC.
and
WACHOVIA SECURITIES INC.,
as Arrangers
J.P. MORGAN SECURITIES INC.
and
LEHMAN BROTHERS INC.,
as Joint Bookrunners
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TABLE OF CONTENTS
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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
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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
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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:
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(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 J.P. Morgan Securities Inc., Lehman 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
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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-
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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
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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
<PAGE>
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
<PAGE>
"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, J.P. Morgan 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
<PAGE>
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
<PAGE>
"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
<PAGE>
"JOINT BOOKRUNNERS" means J.P. Morgan Securities Inc. and Lehman
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
<PAGE>
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
Jones 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
<PAGE>
"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 Moody's 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
<PAGE>
"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
<PAGE>
"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
<PAGE>
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
<PAGE>
"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
<PAGE>
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
McGraw-Hill 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.
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"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 Lehman Commercial Paper Inc., in its
capacity as
Syndication Agent in respect of this Agreement.
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<PAGE>
"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.
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"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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<PAGE>
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
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$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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<PAGE>
(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
27
<PAGE>
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
<PAGE>
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
<PAGE>
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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<PAGE>
(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
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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
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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.
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(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
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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)
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<PAGE>
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 Le
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