EXHIBIT 10.2
GUARANTEE AND SECURITY AGREEMENT
dated as of
April 15, 2005
among
DEALERTRACK, INC.,
DEALERTRACK HOLDINGS, INC.
THE SUBSIDIARY GUARANTORS PARTY HERETO
and
JPMORGAN CHASE BANK, N.A.
as Administrative Agent
TABLE OF CONTENTS
PAGE
SECTION 1. Definitions................................................ 2
SECTION 2. Guarantees by Guarantors................................... 10
SECTION 3. Grant of Transaction Liens................................. 12
SECTION 4. General Representations and Warranties..................... 14
SECTION 5. Further Assurances; General Covenants...................... 16
SECTION 6. Accounts................................................... 17
SECTION 7. Equipment.................................................. 18
SECTION 8. Recordable Intellectual Property........................... 18
SECTION 9. Investment Property........................................ 18
SECTION 10. Controlled Deposit Accounts............................... 20
SECTION 11. Cash Collateral Accounts.................................. 21
SECTION 12. Operation of Collateral Accounts.......................... 22
SECTION 13. Transfer Of Record Ownership.............................. 23
SECTION 14. Right to Vote Securities.................................. 23
SECTION 15. Certain Cash Distributions................................ 24
SECTION 16. Remedies upon Event of Default............................ 24
SECTION 17. Application of Proceeds................................... 26
SECTION 18. Fees and Expenses; Indemnification........................ 27
SECTION 19. Authority to Administer Collateral........................ 29
SECTION 20. Limitation on Duty in Respect of Collateral............... 29
SECTION 21. General Provisions Concerning the Administrative Agent.... 30
SECTION 22. Termination of Transaction Liens; Release of Collateral... 31
SECTION 23. Additional Guarantors and Lien Grantors................... 32
SECTION 24. Additional Secured Obligations............................ 32
SECTION 25. Notices................................................... 32
SECTION 26. No Implied Waivers; Remedies Not Exclusive................ 33
SECTION 27. Successors and Assigns.................................... 33
SECTION 28. Amendments and Waivers.................................... 33
SECTION 29. Choice of Law............................................. 33
SECTION 30. Waiver of Jury Trial...................................... 33
SECTION 31. Severability.............................................. 34
SCHEDULES:
SCHEDULE 1 Equity Interests in Subsidiaries and Affiliates Owned by
Original Lien Grantors
SCHEDULE 2 Other Investment Property Owned by Original Lien Grantors
SCHEDULE 3 Other Secured Obligations
EXHIBITS:
EXHIBIT A Security Agreement Supplement
EXHIBIT B Copyright Security Agreement
EXHIBIT C Patent Security Agreement
EXHIBIT D Trademark Security Agreement
EXHIBIT E Perfection Certificate
EXHIBIT F Issuer Control Agreement
EXHIBIT G Securities Account Control Agreement
EXHIBIT H Deposit Account Control Agreement
GUARANTEE AND SECURITY AGREEMENT
GUARANTEE AND SECURITY AGREEMENT dated as of April __, 2005 among
DEALERTRACK, INC., a Delaware corporation (the "COMPANY"), DEALERTRACK HOLDINGS,
INC., a Delaware corporation ("HOLDINGS", and, together with the Company, the
"BORROWERS"), the SUBSIDIARY GUARANTORS party hereto (collectively, the
"SUBSIDIARY GUARANTORS", and, together with the Borrowers, the "LIEN GRANTORS")
and JPMORGAN CHASE BANK, N.A., as Administrative Agent (the "ADMINISTRATIVE
AGENT").
WHEREAS, the Borrowers are entering into the Credit Agreement described
below, pursuant to which the Borrowers intend to borrow funds and obtain letters
of credit for the purposes set forth therein;
WHEREAS, each of the Borrowers is willing to secure (i) its obligations
under the Credit Agreement and the other Loan Documents referred to therein and
(ii) its obligations under certain Hedging Agreements and Cash Management
Agreements, by granting Liens on its assets to the Administrative Agent as
provided herein and in the other Security Documents;
WHEREAS, Holdings is willing, and is willing to cause certain of its
Domestic Subsidiaries (including, with respect to such obligations of Holdings,
the Company), (i) to guarantee the obligations of Holdings and the Company under
the Credit Agreement and the other Loan Documents and certain Hedging Agreements
and Cash Management Agreements and (ii) to secure such guarantees by granting
Liens on their assets to the Administrative Agent as provided herein and in the
other Security Documents;
WHEREAS, the Lenders and the LC Issuing Bank are not willing to make Loans
or issue or participate in Letters of Credit under the Credit Agreement, and the
counterparties to the Hedging Agreements and Cash Management Agreements referred
to above are not willing to enter into or maintain them, unless (i) the
obligations of Holdings and the Company thereunder are secured and guaranteed as
described above and (ii) each such guarantee is secured by Liens on assets of
the relevant Guarantor as provided herein and in the other Security Documents;
and
WHEREAS, upon any foreclosure or other enforcement of the Security
Documents, the net proceeds of the relevant Collateral are to be received by or
paid over to the Administrative Agent and applied as provided herein;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1 Definitions.
(a) Terms Defined in Credit Agreement. Terms defined in the Credit
Agreement and not otherwise defined in this Agreement have, as used herein, the
respective meanings provided for therein.
(b) Terms Defined in UCC. As used in this Agreement, each of the
following terms has the meaning specified in the UCC:
Term UCC
------------------------ -----------
Account 9-102
Authenticate 9-102
Certificated Security 8-102
Chattel Paper 9-102
Commodity Account 9-102
Commodity Customer 9-102
Deposit Account 9-102
Document 9-102
Entitlement Holder 8-102
Entitlement Order 8-102
Equipment 9-102
Financial Asset 8-102 & 103
General Intangibles 9-102
Instrument ▇-▇▇▇
▇▇▇▇▇▇▇▇▇ 9-102
Investment Property 9-102
Record 9-102
Securities Account 8-501
Securities Intermediary 8-102
Security 8-102 & 103
Security Entitlement 8-102
Supporting Obligations 9-102
Uncertificated Security 8-102
(c) Additional Definitions. The following additional terms, as used in
this Agreement, have the following meanings:
"CASH COLLATERAL ACCOUNT" has the meaning specified in Section 11(a).
"CASH DISTRIBUTIONS" means dividends, interest and other distributions and
payments (including proceeds of liquidation, sale or other disposition) made or
received in cash upon or with respect to any Collateral.
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"CASH MANAGEMENT AGREEMENT" means any agreement in respect of any
overdrafts and related liabilities arising from treasury, depository and cash
management services or in connection with any automated clearing house transfers
of funds.
"COLLATERAL" means all property, whether now owned or hereafter acquired,
on which a Lien is granted or purports to be granted to the Administrative Agent
pursuant to the Security Documents. When used with respect to a specific Lien
Grantor, the term "Collateral" means all its property on which such a Lien is
granted or purports to be granted.
"COLLATERAL ACCOUNTS" means the Cash Collateral Accounts, the Controlled
Deposit Accounts and the Controlled Securities Accounts.
"CONTINGENT SECURED OBLIGATION" means, at any time, any Secured Obligation
(or portion thereof) that is contingent in nature at such time, including any
Secured Obligation that is:
(i) an obligation to reimburse a bank for drawings not yet made
under a letter of credit issued by it;
(ii) an obligation under a Hedging Agreement or a Cash Management
Agreement to make payments that cannot be quantified at such time;
(iii) any other obligation (including any guarantee) that is
contingent in nature at such time; or
(iv) an obligation to provide collateral to secure any of the
foregoing types of obligations.
"CONTROL" has the following meanings:
(a) when used with respect to any Security or Security Entitlement,
the meaning specified in UCC Section 8-106; and
(b) when used with respect to any Deposit Account, the meaning
specified in UCC Section 9-104.
"CONTROLLED DEPOSIT ACCOUNT" means a Deposit Account (i) that is subject
to a Deposit Account Control Agreement or (ii) as to which the Administrative
Agent is the Depositary Bank's "customer" (as defined in UCC Section 4-104).
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"CONTROLLED SECURITIES ACCOUNT" means a Securities Account that (i) is
maintained in the name of a Lien Grantor at an office of a Securities
Intermediary located in the United States and (ii) together with all Financial
Assets credited thereto and all related Security Entitlements, is subject to a
Securities Account Control Agreement among such Lien Grantor, the Administrative
Agent and such Securities Intermediary.
"COPYRIGHT LICENSE" means any written agreement now or hereafter in
existence granting to any Lien Grantor, or pursuant to which any Lien Grantor
grants to any other Person, any right to use, copy, reproduce, distribute,
prepare derivative works, display or publish any records or other materials on
which a Copyright is in existence or may come into existence, including any
agreement identified in Schedule 1 to any Copyright Security Agreement.
"COPYRIGHTS" means all the following: (i) all copyrights under the laws of
the United States or any other country (whether or not the underlying works of
authorship have been published), all registrations and recordings thereof, all
copyrightable works of authorship (whether or not published), and all
applications for copyrights under the laws of the United States or any other
country, including registrations, recordings and applications in the United
States Copyright Office or in any similar office or agency of the United States,
any State thereof or any other country or any political subdivision thereof,
including those described in Schedule 1 to any Copyright Security Agreement,
(ii) all renewals of any of the foregoing, (iii) all claims for, and rights to
▇▇▇ for, past or future infringements of any of the foregoing, and (iv) all
income, royalties, damages and payments now or hereafter due or payable with
respect to any of the foregoing, including damages and payments for past or
future infringements thereof.
"COPYRIGHT SECURITY AGREEMENT" means a Copyright Security Agreement,
substantially in the form of Exhibit B, executed and delivered by a Lien Grantor
in favor of the Administrative Agent for the benefit of the Secured Parties.
"CREDIT AGREEMENT" means the Credit Agreement dated as of April __, 2005
among Holdings, the Company, the Lenders party thereto and JPMorgan Chase Bank,
N.A., as Administrative Agent and LC Issuing Bank.
"DEPOSIT ACCOUNT CONTROL AGREEMENT" means, with respect to any Deposit
Account of any Lien Grantor, a Deposit Account Control Agreement substantially
in the form of Exhibit H (with any changes that the Administrative Agent shall
have approved) or such other form as the Administrative Agent shall have
approved, among such Lien Grantor, the Administrative Agent and the relevant
Depositary Bank.
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"DEPOSITARY BANK" means a bank at which a Controlled Deposit Account is
maintained.
"EQUITY INTEREST" means (i) in the case of a corporation, any shares of
its capital stock, (ii) in the case of a limited liability company, any
membership interest therein, (iii) in the case of a partnership, any partnership
interest (whether general or limited) therein, (iv) in the case of any other
business entity, any participation or other interest in the equity or profits
thereof, (v) any warrant, option or other right to acquire any Equity Interest
described in this definition or (vi) any Security Entitlement in respect of any
Equity Interest described in this definition.
"GUARANTORS" means Holdings (with respect to obligations of the Company),
the Company (with respect to obligations of Holdings), each Subsidiary Guarantor
listed on the signature pages hereof under the caption "Subsidiary Guarantors"
and each Subsidiary that shall, at any time after the date hereof, become a
"Guarantor" pursuant to Section 23.
"INTELLECTUAL PROPERTY FILING" means (i) with respect to any Patent,
Patent License, Trademark or Trademark License, the filing of the applicable
Patent Security Agreement or Trademark Security Agreement with the United States
Patent and Trademark Office, together with an appropriately completed
recordation form, and (ii) with respect to any Copyright or Copyright License,
the filing of the applicable Copyright Security Agreement with the United States
Copyright Office, together with an appropriately completed recordation form, in
each case sufficient to record the Transaction Lien granted to the
Administrative Agent in such Recordable Intellectual Property.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" means a Copyright Security
Agreement, a Patent Security Agreement or a Trademark Security Agreement.
"ISSUER CONTROL AGREEMENT" means an Issuer Control Agreement substantially
in the form of Exhibit F (with any changes that the Administrative Agent shall
have approved) or such other form as the Administrative Agent shall have
approved.
"LLC INTEREST" means a membership interest or similar interest in a
limited liability company.
"NON-CONTINGENT SECURED OBLIGATION" means, at any time, any Secured
Obligation (or portion thereof) that is not a Contingent Secured Obligation at
such time.
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"ORIGINAL LIEN GRANTOR" means any Lien Grantor that grants a Lien on any
of its assets hereunder on the Effective Date.
"OWN" refers to the possession of sufficient rights in property to grant a
security interest therein as contemplated by UCC Section 9-203, and "ACQUIRE"
refers to the acquisition of any such rights.
"PARTNERSHIP INTEREST" means a partnership interest, whether general or
limited.
"PATENT LICENSE" means any written agreement now or hereafter in existence
granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to
any other Person, any right with respect to any Patent now or hereafter in
existence, including any agreement identified in Schedule 1 to any Patent
Security Agreement.
"PATENTS" means (i) all letters patent and design letters patent of the
United States or any other country and all applications for letters patent or
design letters patent of the United States or any other country, including
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any State thereof or any other country or
any political subdivision thereof, including those described in Schedule 1 to
any Patent Security Agreement, (ii) all reissues, divisions, continuations,
continuations in part, revisions and extensions of any of the foregoing, (iii)
all claims for, and rights to ▇▇▇ for, past or future infringements of any of
the foregoing and (iv) all income, royalties, damages and payments now or
hereafter due or payable with respect to any of the foregoing, including damages
and payments for past or future infringements thereof.
"PATENT SECURITY AGREEMENT" means a Patent Security Agreement,
substantially in the form of Exhibit C, executed and delivered by a Lien Grantor
in favor of the Administrative Agent for the benefit of the Secured Parties.
"PERFECTION CERTIFICATE" means, with respect to any Lien Grantor, a
certificate substantially in the form of Exhibit E, completed and supplemented
with the schedules contemplated thereby to the satisfaction of the
Administrative Agent, and signed by an officer of such Lien Grantor.
"PERMITTED LIENS" means (i) the Transaction Liens and (ii) any other Liens
on the Collateral permitted to be created or assumed or to exist pursuant to
Section 6.02 of the Credit Agreement.
"PLEDGED", when used in conjunction with any type of asset, means at any
time an asset of such type that is included (or that creates rights that are
included)
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in the Collateral at such time. For example, "Pledged Equity Interest" means an
Equity Interest that is included in the Collateral at such time.
"PROCEEDS" means all proceeds of, and all other profits, products, rents
or receipts, in whatever form, arising from the collection, sale, lease,
exchange, assignment, licensing or other disposition of, or other realization
upon, any Collateral, including all claims of the relevant Lien Grantor against
third parties for loss of, damage to or destruction of, or for proceeds payable
under, or unearned premiums with respect to, policies of insurance in respect
of, any Collateral, and any condemnation or requisition payments with respect to
any Collateral.
"RECORDABLE INTELLECTUAL PROPERTY" means (i) any Patent registered with
the United States Patent and Trademark Office, and any Patent License with
respect to a Patent so registered, (ii) any Trademark registered with the United
States Patent and Trademark Office, and any Trademark License with respect to a
Trademark so registered, (iii) any Copyright registered with the United States
Copyright Office and any Copyright License with respect to a Copyright so
registered, and all rights in or under any of the foregoing.
"RELEASE CONDITIONS" means the following conditions for releasing all the
Secured Guarantees and terminating all the Transaction Liens:
(i) all Commitments under the Credit Agreement shall have expired or
been terminated;
(ii) all Non-Contingent Secured Obligations shall have been paid in
full; and
(iii) no Contingent Secured Obligation (other than contingent
indemnification and expense reimbursement obligations as to which no claim
shall have been asserted) shall remain outstanding;
provided that the condition in clause (iii) shall not apply to outstanding
Letters of Credit if (x) no Event of Default has occurred and is continuing and
(y) the relevant Borrower has granted to the Administrative Agent, for the
benefit of the LC Issuing Bank and the Revolving Lenders, a security interest in
Permitted Investments acceptable to the LC Issuing Bank and the Required
Revolving Lenders (or causes a bank acceptable to the LC Issuing Bank and the
Required Revolving Lenders to issue a letter of credit naming the Administrative
Agent as beneficiary) in an amount exceeding 115% of the LC Exposure (plus any
accrued and unpaid interest thereon) as of the date of such termination, on
terms and conditions and pursuant to documentation reasonably satisfactory to
the LC Issuing Bank and the Required Revolving Lenders.
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"SECURED AGREEMENT", when used with respect to any Secured Obligation,
refers collectively to each instrument, agreement or other document that sets
forth obligations of a Borrower, obligations of a guarantor and/or rights of the
holder with respect to such Secured Obligation.
"SECURED GUARANTEE" means, with respect to each Guarantor, its guarantee
of the Secured Obligations under Section 2 hereof or Section 1 of a Security
Agreement Supplement.
"SECURED OBLIGATIONS" means (i) all Borrower Loan Obligations, (ii) all
obligations of Holdings or the Company under the Hedging Agreements and Cash
Management Agreements listed on Schedule 3 and (iii) all obligations that have
been designated as additional Secured Obligations pursuant to Section 24, in
each case including all interest (including Post-Petition Interest) thereon.
"SECURED PARTIES" means the holders from time to time of the Secured
Obligations.
"SECURED PARTY REQUESTING NOTICE" means, at any time, a Secured Party that
has, at least five Business Days prior thereto, delivered to the Administrative
Agent a written notice (i) stating that it holds one or more Secured Obligations
and wishes to receive copies of the notices referred to in Section 21(e) and
(ii) setting forth its address, facsimile number and e-mail address to which
copies of such notices should be sent.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means, when used with respect to a
Securities Account, a Securities Account Control Agreement substantially in the
form of Exhibit G (with any changes that the Administrative Agent shall have
approved) or such other form as the Administrative Agent shall have approved,
among the relevant Securities Intermediary, the relevant Lien Grantor and the
Administrative Agent.
"SECURITY AGREEMENT SUPPLEMENT" means a Security Agreement Supplement,
substantially in the form of Exhibit A, signed and delivered to the
Administrative Agent for the purpose of adding a Subsidiary as a party hereto
pursuant to Section 23 and/or adding additional property to the Collateral.
"TRADEMARK LICENSE" means any agreement now or hereafter in existence
granting to any Lien Grantor, or pursuant to which any Lien Grantor grants to
any other Person, any right to use any Trademark, including any agreement
identified in Schedule 1 to any Trademark Security Agreement.
"TRADEMARKS" means: (i) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
8
marks, logos, brand names, trade dress, prints and labels on which any of the
foregoing have appeared or appear, package and other designs, and all other
source or business identifiers, and all general intangibles of like nature, and
the rights in any of the foregoing which arise under applicable law, (ii) the
goodwill of the business symbolized thereby or associated with each of them,
(iii) all registrations and applications (other than intent to use trademark
applications) in connection therewith, including registrations and applications
(other than intent to use trademark applications) in the United States Patent
and Trademark Office or in any similar office or agency of the United States,
any State thereof or any other country or any political subdivision thereof,
including those described in Schedule 1 to any Trademark Security Agreement,
(iv) all renewals of any of the foregoing, (v) all claims for, and rights to ▇▇▇
for, past or future infringements of any of the foregoing and (vi) all income,
royalties, damages and payments now or hereafter due or payable with respect to
any of the foregoing, including damages and payments for past or future
infringements thereof.
"TRADEMARK SECURITY AGREEMENT" means a Trademark Security Agreement,
substantially in the form of Exhibit D, executed and delivered by a Lien Grantor
in favor of the Administrative Agent for the benefit of the Secured Parties.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the State of New York; provided that, if perfection or the effect of perfection
or non-perfection or the priority of any Transaction Lien on any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than New York, "UCC" means the Uniform Commercial Code as in effect from time to
time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.
(d) Terms Generally. The definitions of terms herein (including those
incorporated by reference to the UCC or 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, (i) 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), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (iii) the words "HEREIN", "HEREOF" and "HEREUNDER", and words of
similar import, shall be
9
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (iv) all references herein to Sections, Exhibits and Schedules
shall be construed to refer to Sections of, and Exhibits and Schedules to, this
Agreement and (v) 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 2. Guarantees by Guarantors.
(a) Secured Guarantees. Each Guarantor unconditionally guarantees the
full and punctual payment of each Secured Obligation when due (whether at stated
maturity, upon acceleration or otherwise). If the relevant Borrower fails to pay
any Secured Obligation punctually when due, each Guarantor agrees that it will
forthwith on demand pay the amount not so paid at the place and in the manner
specified in the relevant Secured Agreement.
(b) Secured Guarantees Unconditional. The obligations of each Guarantor
under its Secured Guarantee shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of any Borrower, any other Guarantor
or any other Person under any Secured Agreement, by operation of law or
otherwise;
(ii) any modification or amendment of or supplement to any Secured
Agreement;
(iii) any release, impairment, non-perfection or invalidity of any
direct or indirect security for any obligation of any Borrower, any other
Guarantor or any other Person under any Secured Agreement;
(iv) any change in the corporate existence, structure or ownership
of any Borrower, any other Guarantor or any other Person or any of their
respective subsidiaries, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Borrower, any other Guarantor or
any other Person or any of their assets or any resulting release or
discharge of any obligation of any Borrower, any other Guarantor or any
other Person under any Secured Agreement;
(v) the existence of any claim, set-off or other right that such
Guarantor may have at any time against any Borrower, any other Guarantor,
any Secured Party or any other Person, whether in connection
10
with the Loan Documents or any unrelated transactions, provided that
nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or against any
Borrower, any other Guarantor or any other Person for any reason of any
Secured Agreement, or any provision of applicable law or regulation
purporting to prohibit the payment of any Secured Obligation by any
Borrower, any other Guarantor or any other Person; or
(vii) any other act or omission to act or delay of any kind by any
Borrower, any other Guarantor, any other party to any Secured Agreement,
any Secured Party or any other Person, or any other circumstance
whatsoever that might, but for the provisions of this clause (vii),
constitute a legal or equitable discharge of or defense to any obligation
of any Guarantor hereunder.
(c) Release of Secured Guarantees. (i) All the Secured Guarantees will
be released when all the Release Conditions are satisfied. If at any time any
payment of a Secured Obligation is rescinded or must be otherwise restored or
returned upon the insolvency or receivership of any Borrower or otherwise, the
Secured Guarantees shall be reinstated with respect thereto as though such
payment had been due but not made at such time.
(ii) If all the capital stock of a Guarantor or all the assets of a
Guarantor are sold to a Person other than a DealerTrack Company in a
transaction permitted by Section 6.05 of the Credit Agreement (any such
sale, a "SALE OF GUARANTOR"), the Administrative Agent shall release such
Guarantor from its Secured Guarantee; provided that, if such sale is a
Prepayment Event, arrangements satisfactory to the Administrative Agent
shall have been made to apply the Net Proceeds thereof as required by the
Credit Agreement. Such release shall not require the consent of any
Secured Party, and the Administrative Agent shall be fully protected in
relying on a certificate of an Authorized Officer as to whether any
particular sale constitutes a Sale of Guarantor.
(iii) In addition to any release permitted by subsection (ii), the
Administrative Agent may release any Secured Guarantee with the prior
written consent of all the Lenders.
(d) Waiver by Guarantors. Each Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by any Person
against any Borrower, any other Guarantor or any other Person.
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(e) Subrogation. A Guarantor that makes a payment with respect to a
Secured Obligation hereunder shall be subrogated to the rights of the payee
against the relevant Borrower with respect to such payment; provided that no
Guarantor shall enforce any payment by way of subrogation against any Borrower,
or by reason of contribution against any other guarantor of such Secured
Obligation, until all the Release Conditions have been satisfied.
(f) Stay of Acceleration. If acceleration of the time for payment of any
Secured Obligation by the relevant Borrower is stayed by reason of the
insolvency or receivership of such Borrower or otherwise, all Secured
Obligations otherwise subject to acceleration under the terms of any Secured
Agreement shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by the Administrative Agent.
(g) Continuing Guarantee. Each Secured Guarantee is a continuing
guarantee, shall be binding on the relevant Guarantor and its successors and
assigns, and shall be enforceable by the Administrative Agent or the Secured
Parties. If all or part of any Secured Party's interest in any Secured
Obligation is assigned or otherwise transferred, the transferor's rights under
each Secured Guarantee, to the extent applicable to the obligation so
transferred, shall automatically be transferred with such obligation.
(h) Limitation on Obligations of Subsidiary Guarantor. The obligations
of each Subsidiary Guarantor under its Secured Guarantee shall be limited to an
aggregate amount equal to the largest amount that would not render such Secured
Guarantee subject to avoidance under Section 548 of the United States Bankruptcy
Code or any comparable provisions of applicable law.
SECTION 3. Grant of Transaction Liens.
(a) Each Borrower, in order to secure its Secured Obligations, and each
Guarantor listed on the signature pages hereof, in order to secure its Secured
Guarantee, grants to the Administrative Agent for the benefit of the Secured
Parties a continuing security interest in all the following property of such
Borrower or such Guarantor, as the case may be, whether now owned or existing or
hereafter acquired or arising and regardless of where located:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Deposit Accounts;
(iv) all Documents;
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(v) all Equipment;
(vi) all General Intangibles (including any Equity Interests in
other Persons that do not constitute Investment Property);
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property;
(x) all books and records (including customer lists, credit files,
computer programs, printouts and other computer materials and records) of
such Lien Grantor pertaining to any of its Collateral;
(xi) such Lien Grantor's ownership interest in (1) its Collateral
Accounts, (2) all Financial Assets credited to its Collateral Accounts
from time to time and all Security Entitlements in respect thereof, (3)
all cash held in its Collateral Accounts from time to time and (4) all
other money in the possession of the Administrative Agent; and
(xii) all Proceeds of the Collateral described in the foregoing
clauses (i) through (xi);
provided that the following property is excluded from the foregoing security
interests: (A) motor vehicles the perfection of a security interest in which is
excluded from the Uniform Commercial Code in the relevant jurisdiction, (B)
voting Equity Interests in any Excluded Subsidiary, to the extent (but only to
the extent) required to prevent the Collateral from including more than 66% of
all voting Equity Interests in such Excluded Subsidiary, (C) Equipment leased by
any Lien Grantor under a lease that prohibits the granting of a Lien on such
Equipment and any general intangibles or other rights arising under any
contract, instrument, license or other document, in each such case if (but only
to the extent that) the grant of a security interest therein would constitute a
violation of a valid and effective restriction in favor of a third party, unless
and until all required consents shall have been obtained, (D) intent to use
trademark applications and (E) electronic chattel paper created and stored by
the Lien Grantors consisting of electronic contracts between motor vehicle
dealers and motor vehicle purchasers (and the Lien Grantors hereby disclaim any
right, title or interest in such electronic contracts). Each Lien Grantor shall
use all reasonable efforts to obtain any such required consent that is requested
by the Administrative Agent and reasonably obtainable.
(b) With respect to each right to payment or performance included in the
Collateral from time to time, the Transaction Lien granted therein includes a
13
continuing security interest in (i) any Supporting Obligation that supports such
payment or performance and (ii) any Lien that (x) secures such right to payment
or performance or (y) secures any such Supporting Obligation.
(c) The Transaction Liens are granted as security only and shall not
subject the Administrative Agent or any other Secured Party to, or transfer or
in any way affect or modify, any obligation or liability of any Lien Grantor
with respect to any of the Collateral or any transaction in connection
therewith.
SECTION 4. General Representations and Warranties. Each Original Lien
Grantor represents and warrants that:
(a) Such Lien Grantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction identified as its jurisdiction of
organization in its Perfection Certificate.
(b) Schedule 1 lists all Equity Interests in Subsidiaries and Affiliates
owned by such Lien Grantor as of the Effective Date. Such Lien Grantor holds all
such Equity Interests directly (i.e., not through a Subsidiary, a Securities
Intermediary or any other Person).
(c) Schedule 2 lists, as of the Effective Date, (i) all Securities owned
by such Lien Grantor (except Securities evidencing Equity Interests in
Subsidiaries and Affiliates) and (ii) all Securities Accounts to which Financial
Assets are credited in respect of which such Lien Grantor owns Security
Entitlements. Such Lien Grantor owns no Commodity Account in respect of which
such Lien Grantor is the Commodity Customer.
(d) All Pledged Equity Interests owned by such Lien Grantor are owned by
it free and clear of any Lien other than (i) the Transaction Liens and (ii) any
inchoate tax liens. All shares of capital stock included in such Pledged Equity
Interests (including shares of capital stock in respect of which such Lien
Grantor owns a Security Entitlement) have been duly authorized and validly
issued and are fully paid and non-assessable. None of such Pledged Equity
Interests is subject to any option to purchase or similar right of any Person.
Such Lien Grantor is not and will not become a party to or otherwise bound by
any agreement (except the Loan Documents) which restricts in any manner the
rights of any present or future holder of any Pledged Equity Interest with
respect thereto.
(e) Such Lien Grantor has good and marketable title to all its
Collateral (subject to exceptions that are, in the aggregate, not material),
free and clear of any Lien other than Permitted Liens.
14
(f) Such Lien Grantor has not performed any acts that might prevent the
Administrative Agent from enforcing any of the provisions of the Security
Documents or that would limit the Administrative Agent in any such enforcement.
No financing statement, security agreement, mortgage or similar or equivalent
document or instrument covering all or part of the Collateral owned by such Lien
Grantor is on file or of record in any jurisdiction in which such filing or
recording would be effective to perfect or record a Lien on such Collateral,
except financing statements, mortgages or other similar or equivalent documents
with respect to Permitted Liens. After the Effective Date, no Collateral owned
by such Lien Grantor will be in the possession or under the Control of any other
Person having a claim thereto or security interest therein, other than a
Permitted Lien.
(g) The Transaction Liens on all Collateral owned by such Lien Grantor
(i) have been validly created, (ii) will attach to each item of such Collateral
on the Effective Date (or, if such Lien Grantor first obtains rights thereto on
a later date, on such later date) and (iii) when so attached, will secure all
the Secured Obligations or such Lien Grantor's Secured Guarantee, as the case
may be.
(h) Such Lien Grantor has delivered a Perfection Certificate to the
Administrative Agent. The information set forth therein is correct and complete
as of the Effective Date.
(i) When UCC financing statements describing the Collateral as "all
personal property" have been filed in the applicable offices specified in such
Perfection Certificate, the Transaction Liens will constitute perfected security
interests in the Collateral owned by such Lien Grantor to the extent that a
security interest therein may be perfected by filing pursuant to the UCC, prior
to all Liens and rights of others therein except Permitted Liens. When, in
addition to the filing of such UCC financing statements, the applicable
Intellectual Property Filings have been made with respect to such Lien Grantor's
Recordable Intellectual Property (including any future filings required pursuant
to Sections 5(a) and 8(a)), the Transaction Liens will constitute perfected
security interests in all right, title and interest of such Lien Grantor in its
Recordable Intellectual Property to the extent that security interests therein
may be perfected by such filings, prior to all Liens and rights of others
therein except Permitted Liens. Except for the filing of such UCC financing
statements and such Intellectual Property Filings, no registration, recordation
or filing with any governmental body, agency or official is required in
connection with the execution or delivery of the Security Documents or is
necessary for the validity or enforceability thereof or for the perfection or
due recordation of the Transaction Liens or for the enforcement of the
Transaction Liens.
(j) Such Lien Grantor's Collateral is insured as required by the Credit
Agreement.
15
SECTION 5. Further Assurances; General Covenants. Each Lien Grantor
covenants as follows:
(a) Such Lien Grantor will, from time to time, at the relevant
Borrower's expense, execute, deliver, file and record any statement, assignment,
instrument, document, agreement or other paper and take any other action
(including any Intellectual Property Filing and any filing of financing or
continuation statements under the UCC) that from time to time may be necessary
or desirable, or that the Administrative Agent may reasonably request, in order
to:
(i) create, preserve, perfect, confirm or validate the Transaction
Liens on such Lien Grantor's Collateral;
(ii) in the case of Pledged Deposit Accounts and Pledged Investment
Property, cause the Administrative Agent to have Control thereof to the
extent required by Section 10;
(iii) enable the Administrative Agent and the other Secured Parties
to obtain the full benefits of the Security Documents; or
(iv) enable the Administrative Agent to exercise and enforce any of
its rights, powers and remedies with respect to any of such Lien Grantor's
Collateral.
To the extent permitted by applicable law, such Lien Grantor authorizes the
Administrative Agent to execute and file such financing statements or
continuation statements without such Lien Grantor's signature appearing thereon.
Such Lien Grantor agrees that a carbon, photographic, photostatic or other
reproduction of this Agreement or of a financing statement is sufficient as a
financing statement. Such Lien Grantor constitutes the Administrative Agent its
attorney-in-fact to execute and file all Intellectual Property Filings and other
filings required or so requested for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; and such power, being coupled with
an interest, shall be irrevocable until all the Transaction Liens granted by
such Lien Grantor terminate pursuant to Section 22. The relevant Borrower will
pay the costs of, or incidental to, any Intellectual Property Filings and any
recording or filing of any financing or continuation statements or other
documents recorded or filed pursuant hereto.
(b) Except as permitted by Section 6.05 of the Credit Agreement, such
Lien Grantor will not sell, lease, exchange, assign or otherwise dispose of, or
grant any option with respect to, any of its Collateral. The Administrative
Agent will, at the Borrowers' expense, execute and deliver to the relevant Lien
Grantor such documents as such Lien Grantor shall reasonably request to evidence
the fact
16
that any asset sold or disposed of in compliance with Section 6.05 of the Credit
Agreement is no longer subject to a Transaction Lien.
(c) Such Lien Grantor will, promptly upon request, provide to the
Administrative Agent all information and evidence concerning such Lien Grantor's
Collateral that the Administrative Agent may reasonably request from time to
time to enable it to enforce the provisions of the Security Documents.
SECTION 6. Accounts. Each Lien Grantor represents, warrants and covenants
as follows:
(a) Such Lien Grantor will use commercially reasonable efforts to cause
to be collected from its account debtors, when due, all amounts owing under its
Accounts (including delinquent Accounts, which will be collected in accordance
with lawful collection procedures) and will apply all amounts collected thereon,
forthwith upon receipt thereof, to the outstanding balances of such Accounts.
Subject to the rights of the Administrative Agent and the other Secured Parties
hereunder if an Event of Default shall have occurred and be continuing, such
Lien Grantor may allow in the ordinary course of business as adjustments to
amounts owing under its Accounts (i) any extension or renewal of the time or
times for payment, or settlement for less than the total unpaid balance, that
such Lien Grantor finds appropriate in accordance with sound business judgment
and (ii) refunds or credits, all in the ordinary course of business and
consistent with such Lien Grantor's historical collection practices. The costs
and expenses (including attorney's fees) of collection, whether incurred by such
Lien Grantor or the Administrative Agent, shall be paid by such Lien Grantor.
(b) If payments with respect to any of such Lien Grantor's Accounts are
received in a lockbox or similar account, such Lien Grantor will (i) at all
times, to the extent required by Section 10, cause such account to be a
Controlled Deposit Account and (ii) if such account is a Controlled Deposit
Account, cause the relevant depositary bank to subordinate to the relevant
Transaction Lien all its claims to such account (except its right to deduct its
normal operating charges and any uncollected funds previously credited thereto).
Funds credited to any such account shall be transferred to such Deposit Account
as designated by such Lien Grantor; provided that, if an Event of Default shall
have occurred and be continuing, the Administrative Agent may designate the
Deposit Account to which such funds are transferred.
(c) If an Event of Default shall have occurred and be continuing, such
Lien Grantor will, if requested to do so by the Administrative Agent, promptly
notify (and such Lien Grantor authorizes the Administrative Agent so to notify)
each account debtor in respect of any of its Accounts that such Accounts have
been assigned to the Administrative Agent hereunder, and that any payments due
17
or to become due in respect of such Accounts are to be made directly to the
Administrative Agent or its designee.
SECTION 7. Equipment. Each Lien Grantor covenants that it will permit any
of its material Pledged Equipment to become a fixture to real estate or an
accession to any personal property that is not included in the Collateral.
SECTION 8. Recordable Intellectual Property. Each Lien Grantor covenants
as follows:
(a) On the Effective Date (in the case of an Original Lien Grantor) or
the date on which it signs and delivers its first Security Agreement Supplement
(in the case of any other Lien Grantor), such Lien Grantor will sign and deliver
to the Administrative Agent Intellectual Property Security Agreements with
respect to all Recordable Intellectual Property then owned by it. Within 30 days
after the end of each Fiscal Quarter thereafter, it will sign and deliver to the
Administrative Agent an appropriate Intellectual Property Security Agreement
covering any Recordable Intellectual Property owned by it on the last day of
such Fiscal Quarter that is not covered by any previous Intellectual Property
Security Agreement so signed and delivered by it. In each case, it will promptly
make all Intellectual Property Filings necessary to record the Transaction Liens
on such Recordable Intellectual Property.
(b) Such Lien Grantor will notify the Administrative Agent promptly if
it knows that any application or registration relating to any Recordable
Intellectual Property owned or licensed by it may become abandoned or dedicated
to the public, or of any adverse determination or development (including the
institution of, or any adverse determination or development in, any proceeding
in the United States Copyright Office, the United States Patent and Trademark
Office or any court) regarding such Lien Grantor's ownership of such Recordable
Intellectual Property, its right to register or patent the same, or its right to
keep and maintain the same. If any of such Lien Grantor's rights to any
Recordable Intellectual Property are infringed, misappropriated or diluted by a
third party, such Lien Grantor will notify the Administrative Agent within 30
days after it learns thereof and will, unless such Lien Grantor shall reasonably
determine that such action would be of negligible value, economic or otherwise,
promptly ▇▇▇ for infringement, misappropriation or dilution and to recover any
and all damages for such infringement, misappropriation or dilution, and take
such other actions as such Lien Grantor shall reasonably deem appropriate under
the circumstances to protect such Recordable Intellectual Property.
SECTION 9. Investment Property. Each Lien Grantor represents, warrants and
covenants as follows:
18
(a) Certificated Securities. On the Effective Date (in the case of an
Original Lien Grantor) or the date on which it signs and delivers its first
Security Agreement Supplement (in the case of any other Lien Grantor), such Lien
Grantor will deliver to the Administrative Agent as Collateral hereunder all
certificates representing Pledged Certificated Securities then owned by such
Lien Grantor. Thereafter, such Lien Grantor will, within five Business Days
after it acquires any other certificate representing a Pledged Certificated
Security, deliver such certificate to the Administrative Agent as Collateral
hereunder. The provisions of this subsection are subject to the limitation in
Section 13(j) in the case of voting Equity Interests in an Excluded Subsidiary.
(b) Uncertificated Securities. On the Effective Date (in the case of an
Original Lien Grantor) or the date on which it signs and delivers its first
Security Agreement Supplement (in the case of any other Lien Grantor), such Lien
Grantor will enter into (and cause the relevant issuer to enter into) an Issuer
Control Agreement in respect of each Pledged Uncertificated Security then owned
by such Lien Grantor and deliver such Issuer Control Agreement to the
Administrative Agent (which shall enter into the same). Thereafter, whenever
such Lien Grantor acquires any other Pledged Uncertificated Security, such Lien
Grantor will enter into (and cause the relevant issuer to enter into) an Issuer
Control Agreement in respect of such Pledged Uncertificated Security and deliver
such Issuer Control Agreement to the Administrative Agent (which shall enter
into the same). The provisions of this subsection are subject to the limitation
in Section 13(j) in the case of voting Equity Interests in an Excluded
Subsidiary.
(c) Security Entitlements. Upon the occurrence and during the
continuance of an Event of Default, the Administrative Agent may, by notice to
Holdings or such Lien Grantor, require that such Lien Grantor enter into (and
cause the relevant Securities Intermediary to enter into) a Securities Account
Control Agreement in respect of each Security Entitlement owned by it and the
Securities Account to which the underlying Financial Asset is credited and
deliver such Securities Account Control Agreement to the Administrative Agent
(which shall enter into the same). Thereafter, whenever such Lien Grantor
acquires any other Security Entitlement, such Lien Grantor will, as promptly as
practicable, cause the underlying Financial Asset to be credited to a Controlled
Securities Account.
(d) Perfection as to Certificated Securities. When such Lien Grantor
delivers the certificate representing any Pledged Certificated Security owned by
it to the Administrative Agent and complies with Section 13(h) in connection
with such delivery, (i) the Transaction Lien on such Pledged Certificated
Security will be perfected, subject to no prior Liens or rights of others, (ii)
the Administrative Agent will have Control of such Pledged Certificated Security
and (iii) the
19
Administrative Agent will be a protected purchaser (within the meaning of UCC
Section 8-303) thereof.
(e) Perfection as to Uncertificated Securities. When such Lien Grantor,
the Administrative Agent and the issuer of any Pledged Uncertificated Security
owned by such Lien Grantor enter into an Issuer Control Agreement with respect
thereto, (i) the Transaction Lien on such Pledged Uncertificated Security will
be perfected, subject to no prior Liens or rights of others, (ii) the
Administrative Agent will have Control of such Pledged Uncertificated Security
and (iii) the Administrative Agent will be a protected purchaser (within the
meaning of UCC Section 8-303) thereof.
(f) Perfection as to Security Entitlements. So long as the Financial
Asset underlying any Security Entitlement owned by such Lien Grantor is credited
to a Controlled Securities Account, (i) the Transaction Lien on such Security
Entitlement will be perfected, subject to no prior Liens or rights of others
(except Liens and rights of the relevant Securities Intermediary that are
Permitted Liens), (ii) the Administrative Agent will have Control of such
Security Entitlement and (iii) no action based on an adverse claim to such
Security Entitlement or such Financial Asset, whether framed in conversion,
replevin, constructive trust, equitable lien or other theory, may be asserted
against the Administrative Agent or any other Secured Party.
(g) Agreement as to Applicable Jurisdiction. In respect of all material
Security Entitlements owned by such Lien Grantor, and all Securities Accounts to
which the related Financial Assets are credited, the Securities Intermediary's
jurisdiction (determined as provided in UCC Section 8-110(e)) will at all times
be located in the United States.
(h) Delivery of Pledged Certificates. All Pledged Certificates, when
delivered to the Administrative Agent, will be in suitable form for transfer by
delivery, or accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to the Administrative Agent.
(i) Excluded Subsidiaries. A Lien Grantor will not be obligated to
comply with the provisions of this Section 9 at any time with respect to any
voting Equity Interest in an Excluded Subsidiary if and to the extent (but only
to the extent) that such voting Equity Interest is excluded from the Transaction
Liens at such time pursuant to clause (B) of the proviso at the end of Section
3(a) and/or the comparable provisions of one or more Security Agreement
Supplements.
SECTION 10. Deposit Accounts. Each Lien Grantor represents, warrants and
covenants as follows:
20
(a) Upon the occurrence and during the continuance of an Event of
Default, the Administrative Agent may, by notice to Holdings or such Lien
Grantor, require that all cash owned by such Lien Grantor be deposited, upon or
promptly after the receipt thereof, in one or more Controlled Deposit Accounts.
Each Controlled Deposit Account will be operated as provided in Section 12.
(b) In respect of each Controlled Deposit Account, the Depositary Bank's
jurisdiction (determined as provided in UCC Section 9-304) will at all times be
a jurisdiction in which Article 9 of the Uniform Commercial Code is in effect.
(c) So long as the Administrative Agent has Control of a Controlled
Deposit Account, the Transaction Lien on such Controlled Deposit Account will be
perfected, subject to no prior Liens or rights of others (except the Depositary
Bank's right to deduct its normal operating charges and any uncollected funds
previously credited thereto).
SECTION 11. Cash Collateral Accounts. (a) If and when required for
purposes hereof, the Administrative Agent will establish (a) with respect to
each Borrower an account to be designated as such Borrower's "Cash Collateral
Account" (its "CASH COLLATERAL ACCOUNT") in the name and under the exclusive
control of the Administrative Agent, into which all amounts owned by such
Borrower that are to be deposited therein pursuant to the Loan Documents shall
be deposited from time to time. Each Cash Collateral Account will be operated as
provided in this Section and Section 12.
(b) The Administrative Agent shall deposit the following amounts, as and
when received by it, in the applicable Cash Collateral Account:
(i) each amount required by Section 2.04(k) of the Credit
Agreement to be deposited therein to cover outstanding LC Reimbursement
Obligations; and
(ii) each Cash Distribution required by Section 15 to be deposited
therein.
(c) The Administrative Agent shall maintain such records and/or
establish such sub-accounts as shall be required to enable it to identify the
amounts held in each Cash Collateral Account from time to time pursuant to each
clause of subsection ERROR! REFERENCE SOURCE NOT FOUND., as applicable.
(d) Unless (x) an Event of Default shall have occurred and be continuing
and the Required Lenders shall have instructed the Administrative Agent to stop
withdrawing amounts from the Cash Collateral Accounts pursuant
21
to this subsection or (y) the maturity of the Loans shall have been accelerated
pursuant to Article 7 of the Credit Agreement, the Administrative Agent shall
withdraw amounts from the Cash Collateral Accounts and apply them for the
following purposes:
(i) any amount deposited in a Cash Collateral Account pursuant to
Section 2.04(k) of the Credit Agreement to cover outstanding LC
Reimbursement Obligations shall be withdrawn and applied to pay such LC
Reimbursement Obligations as they become due; provided that such amount
(to the extent not theretofore so applied) shall be withdrawn and returned
to the relevant Borrower if and when permitted by said Section 2.04(k);
and
(ii) any Cash Distribution deposited in a Cash Collateral Account
pursuant to Section 15 shall, at the relevant Borrower's request, (x) be
withdrawn and applied to pay Secured Obligations that are then due and
payable or (y) if no Default has occurred and is continuing, be withdrawn
and returned to such Borrower.
SECTION 12. Operation of Collateral Accounts. (a) All Cash Distributions
received with respect to assets held in any Collateral Account shall be
deposited therein promptly upon receipt thereof.
(b) Funds held in any Controlled Securities Account may, until
withdrawn, be invested and reinvested in such Permitted Investments as the
relevant Lien Grantor shall request from time to time; provided that, if an
Event of Default shall have occurred and be continuing, Administrative Agent may
select such Permitted Investments.
(c) Funds held in any Deposit Account or any Cash Collateral Account
may, until withdrawn, be invested and reinvested in such Permitted Investments
as the relevant Lien Grantor shall request from time to time; provided that if
an Event of Default shall have occurred and be continuing, the Administrative
Agent may select such Permitted Investments.
(d) With respect to each Collateral Account (except a Cash Collateral
Account, as to which Section 11 applies), the Administrative Agent will instruct
the relevant Securities Intermediary or Depositary Bank that the relevant Lien
Grantor may withdraw, or direct the disposition of, funds held therein unless
and until the Administrative Agent rescinds such instruction. The Administrative
Agent will not rescind such instructions unless an Event of Default shall have
occurred and be continuing.
22
(e) If an Event of Default shall have occurred and be continuing, the
Administrative Agent may (i) retain, or instruct the relevant Securities
Intermediary or Depositary Bank to retain, all cash and investments then held in
any Collateral Account, (ii) liquidate, or instruct the relevant Securities
Intermediary or Depositary Bank to liquidate, any or all investments held
therein and/or (iii) withdraw any amounts held therein and apply such amounts as
provided in Section 17.
(f) If immediately available cash on deposit in any Collateral Account
is not sufficient to make any distribution or withdrawal to be made pursuant
hereto, the Administrative Agent will cause to be liquidated, as promptly as
practicable, such investments held in or credited to such Collateral Account as
shall be required to obtain sufficient cash to make such distribution or
withdrawal and, notwithstanding any other provision hereof, such distribution or
withdrawal shall not be made until such liquidation has taken place.
SECTION 13. Transfer Of Record Ownership. At any time when an Event of
Default shall have occurred and be continuing, the Administrative Agent may (and
to the extent that action by it is required, the relevant Lien Grantor, if
directed to do so by the Administrative Agent, will as promptly as practicable)
cause each of the Pledged Securities (or any portion thereof specified in such
direction) to be transferred of record into the name of the Administrative Agent
or its nominee. Each Lien Grantor will take any and all actions reasonably
requested by the Administrative Agent to facilitate compliance with this
Section. If the provisions of this Section are implemented, Section 9(b) shall
not thereafter apply to any Pledged Security that is registered in the name of
the Administrative Agent or its nominee. The Administrative Agent will promptly
give to the relevant Lien Grantor copies of any notices and other communications
received by the Administrative Agent with respect to Pledged Securities
registered in the name of the Administrative Agent or its nominee.
SECTION 14. Right to Vote Securities. (a) Unless an Event of Default
shall have occurred and be continuing, each Lien Grantor will have the right,
from time to time, to vote and to give consents, ratifications and waivers with
respect to any Pledged Security owned by it and the Financial Asset underlying
any Pledged Security Entitlement owned by it, and the Administrative Agent will,
upon receiving a written request from such Lien Grantor, deliver to such Lien
Grantor or as specified in such request such proxies, powers of attorney,
consents, ratifications and waivers in respect of any such Pledged Security that
is registered in the name of the Administrative Agent or its nominee or any such
Pledged Security Entitlement as to which the Administrative Agent or its nominee
is the Entitlement Holder, in each case as shall be specified in such request
and be in form and substance satisfactory to the Administrative Agent. Unless an
Event of Default shall have occurred and be continuing, the Administrative Agent
will
23
have no right to take any action which the owner of a Pledged Partnership
Interest or Pledged LLC Interest is entitled to take with respect thereto,
except the right to receive payments and other distributions to the extent
provided herein.
(b) If an Event of Default shall have occurred and be continuing, the
Administrative Agent will have the right to the extent permitted by law (and, in
the case of a Pledged Partnership Interest or Pledged LLC Interest, by the
relevant partnership agreement, limited liability company agreement, operating
agreement or other governing document) to vote, to give consents, ratifications
and waivers and to take any other action with respect to the Pledged Investment
Property, the other Pledged Equity Interests (if any) and the Financial Assets
underlying the Pledged Security Entitlements, with the same force and effect as
if the Administrative Agent were the absolute and sole owner thereof, and each
Lien Grantor will take all such action as the Administrative Agent may
reasonably request from time to time to give effect to such right.
SECTION 15. Certain Cash Distributions. Cash Distributions with respect to
assets held in a Collateral Account shall be deposited and held therein, or
withdrawn therefrom, as provided in Section 12. Cash Distributions with respect
to any Pledged Equity Interest or Pledged Debt that is not held in a Collateral
Account (whether held in the name of a Lien Grantor or in the name of the
Administrative Agent or its nominee) shall be deposited, promptly upon receipt
thereof, in a Controlled Deposit Account or other Deposit Account permitted by
Section 10(d) of the relevant Lien Grantor; provided that, if an Event of
Default shall have occurred and be continuing, the Administrative Agent may
deposit, or direct the recipient thereof to deposit, each such Cash Distribution
in the relevant Lien Grantor's Cash Collateral Account.
SECTION 16. Remedies upon Event of Default. (a) If an Event of Default
shall have occurred and be continuing, the Administrative Agent may exercise (or
cause its sub-agents to exercise) any or all of the remedies available to it (or
to such sub-agents) under the Security Documents.
(b) Without limiting the generality of the foregoing, if an Event of
Default shall have occurred and be continuing, the Administrative Agent may
exercise on behalf of the Secured Parties all the rights of a secured party
under the UCC (whether or not in effect in the jurisdiction where such rights
are exercised) with respect to any Collateral and, in addition, the
Administrative Agent may, without being required to give any notice, except as
herein provided or as may be required by mandatory provisions of law, withdraw
all cash held in the Collateral Accounts and apply such cash as provided in
Section 17 and, if there shall be no such cash or if such cash shall be
insufficient to pay all the Secured Obligations in full, sell, lease, license or
otherwise dispose of the Collateral or any part thereof.
24
Notice of any such sale or other disposition shall be given to the relevant Lien
Grantor(s) as required by Section 19.
(c) Without limiting the generality of the foregoing, if an Event of
Default shall have occurred and be continuing:
(i) the Administrative Agent may license or sublicense, whether
general, special or otherwise, and whether on an exclusive or
non-exclusive basis, any Pledged intellectual property (including any
Pledged Recordable Intellectual Property) throughout the world for such
term or terms, on such conditions and in such manner as the Administrative
Agent shall in its sole discretion determine; provided that such licenses
or sublicenses do not conflict with any existing license of which the
Administrative Agent shall have received a copy;
(ii) the Administrative Agent may (without assuming any obligation
or liability thereunder), at any time and from time to time, in its sole
and reasonable discretion, enforce (and shall have the exclusive right to
enforce) against any licensee or sublicensee all rights and remedies of
any Lien Grantor in, to and under any of its Pledged intellectual property
and take or refrain from taking any action under any thereof, and each
Lien Grantor releases the Administrative Agent and each other Secured
Party from liability for, and agrees to hold the Administrative Agent and
each other Secured Party free and harmless from and against any claims and
expenses arising out of, any lawful action so taken or omitted to be taken
with respect thereto, except for claims and expenses arising from the
Administrative Agent's or such Secured Party's gross negligence or willful
misconduct; and
(iii) upon request by the Administrative Agent (which shall not be
construed as implying any limitation on its rights or powers), each Lien
Grantor will execute and deliver to the Administrative Agent a power of
attorney, in form and substance satisfactory to the Administrative Agent,
for the implementation of any sale, lease, license or other disposition of
any of such Lien Grantor's Pledged intellectual property or any action
related thereto. In connection with any such disposition, but subject to
any confidentiality restrictions imposed on such Lien Grantor in any
license or similar agreement, such Lien Grantor will use reasonable
efforts to supply to the Administrative Agent its know-how and expertise
relating to the relevant intellectual property or the products or services
made or rendered in connection with such intellectual property, and to the
distribution of said products or services.
25
SECTION 17. Application of Proceeds. (a) If an Event of Default shall have
occurred and be continuing, the Administrative Agent may apply (i) any cash held
in the Collateral Accounts and (ii) the proceeds of any sale or other
disposition of all or any part of the Collateral, in the following order of
priorities:
first, to pay the expenses of such sale or other disposition,
including reasonable compensation to agents of and counsel for the
Administrative Agent, and all expenses, liabilities and advances incurred
or made by the Administrative Agent in connection with the Security
Documents, and any other amounts then due and payable to the
Administrative Agent pursuant to Section 18 or pursuant to Section 9.03 of
the Credit Agreement;
second, to pay the unpaid principal of the Secured Obligations
ratably (or provide for the payment thereof pursuant to Section 17(b)),
until payment in full of the principal of all Secured Obligations shall
have been made (or so provided for);
third, to pay ratably all interest (including Post-Petition
Interest) and fees on the Secured Obligations, until payment in full of
all such interest and fees shall have been made;
fourth, to pay all other Secured Obligations ratably (or provide for
the payment thereof pursuant to Section 17(b)), until payment in full of
all such other Secured Obligations shall have been made (or so provided
for); and
finally, to pay to the relevant Lien Grantor, or as a court of
competent jurisdiction may direct, any surplus then remaining from the
proceeds of the Collateral owned by it;
provided that Collateral owned by a Subsidiary Guarantor and any proceeds
thereof shall be applied pursuant to the foregoing clauses first, second, third
and fourth only to the extent permitted by the limitation in Section 2(h). The
Administrative Agent may make such distributions hereunder in cash or in kind
or, on a ratable basis, in any combination thereof.
(b) If at any time any portion of any monies collected or received by
the Administrative Agent would, but for the provisions of this Section 17(b), be
payable pursuant to Section 17(a) in respect of a Contingent Secured Obligation,
the Administrative Agent shall not apply any monies to pay such Contingent
Secured Obligation but instead shall request the holder thereof, at least 10
days before each proposed distribution hereunder, to notify the Administrative
Agent as to the maximum amount of such Contingent Secured Obligation if then
26
ascertainable (e.g., in the case of a letter of credit, the maximum amount
available for subsequent drawings thereunder). If the holder of such Contingent
Secured Obligation does not notify the Administrative Agent of the maximum
ascertainable amount thereof at least two Business Days before such
distribution, such holder will not be entitled to share in such distribution. If
such holder does so notify the Administrative Agent as to the maximum
ascertainable amount thereof, the Administrative Agent will allocate to such
holder a portion of the monies to be distributed in such distribution,
calculated as if such Contingent Secured Obligation were outstanding in such
maximum ascertainable amount. However, the Administrative Agent will not apply
such portion of such monies to pay such Contingent Secured Obligation, but
instead will hold such monies or invest such monies in Permitted Investments.
All such monies and Permitted Investments and all proceeds thereof will
constitute Collateral hereunder, but will be subject to distribution in
accordance with this Section 17(b) rather than Section 17(a). The Administrative
Agent will hold all such monies and Permitted Investments and the net proceeds
thereof in trust until all or part of such Contingent Secured Obligation becomes
a Non-Contingent Secured Obligation, whereupon the Administrative Agent at the
request of the relevant Secured Party will apply the amount so held in trust to
pay such Non-Contingent Secured Obligation; provided that, if the other Secured
Obligations theretofore paid pursuant to the same clause of Section 17(a) (i.e.,
clause second or fourth) were not paid in full, the Administrative Agent will
apply the amount so held in trust to pay the same percentage of such
Non-Contingent Secured Obligation as the percentage of such other Secured
Obligations theretofore paid pursuant to the same clause of Section 17(a). If
(i) the holder of such Contingent Secured Obligation shall advise the
Administrative Agent that no portion thereof remains in the category of a
Contingent Secured Obligation and (ii) the Administrative Agent still holds any
amount held in trust pursuant to this Section 17(b) in respect of such
Contingent Secured Obligation (after paying all amounts payable pursuant to the
preceding sentence with respect to any portions thereof that became
Non-Contingent Secured Obligations), such remaining amount will be applied by
the Administrative Agent in the order of priorities set forth in Section 17(a).
(c) In making the payments and allocations required by this Section, the
Administrative Agent may rely upon information supplied to it pursuant to
Section 21(c). All distributions made by the Administrative Agent pursuant to
this Section shall be final (except in the event of manifest error) and the
Administrative Agent shall have no duty to inquire as to the application by any
Secured Party of any amount distributed to it.
SECTION 18. Fees and Expenses; Indemnification. (a) Each Borrower will
forthwith upon demand pay to the Administrative Agent:
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(i) the amount of any taxes that the Administrative Agent may have
been required to pay by reason of the Transaction Liens or to free any
Collateral from any other Lien thereon;
(ii) the amount of any and all reasonable out-of-pocket expenses,
including transfer taxes and reasonable fees and expenses of counsel and
other experts, that the Administrative Agent may incur in connection with
(x) the administration or enforcement of the Security Documents, including
such expenses as are incurred to preserve the value of the Collateral or
the validity, perfection, rank or value of any Transaction Lien, (y) the
collection, sale or other disposition of any Collateral or (z) the
exercise by the Administrative Agent of any of its rights or powers under
the Security Documents; and
(iii) the amount required to indemnify the Administrative Agent for,
or hold it harmless and defend it against, any loss, liability or expense
(including the reasonable fees and expenses of its counsel and any experts
or sub-agents appointed by it hereunder) incurred or suffered by the
Administrative Agent in connection with the Security Documents, except to
the extent that such loss, liability or expense arises from the
Administrative Agent's gross negligence or willful misconduct.
Any such amount not paid to the Administrative Agent on demand will bear
interest for each day thereafter until paid at a rate per annum equal to the sum
of 2% plus the rate applicable to Base Rate Loans for such day.
(b) If any transfer tax, documentary stamp tax or other tax is payable
in connection with any transfer or other transaction provided for in the
Security Documents, the relevant Borrower will pay such tax and provide any
required tax stamps to the Administrative Agent or as otherwise required by law.
(c) Each Borrower shall indemnify each of the Secured Parties, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "INDEMNITEE") against, and hold each
Indemnitee harmless from, any and all liabilities, losses, damages, costs and
expenses of any kind (including reasonable expenses of investigation by
engineers, environmental consultants and similar technical personnel and
reasonable fees and disbursements of counsel) arising out of, or in connection
with any and all Environmental Liabilities. Without limiting the generality of
the foregoing, each Lien Grantor waives all rights for contribution and all
other rights of recovery with respect to liabilities, losses, damages, costs and
expenses arising under or related to Environmental Laws that it might have by
statute or otherwise against any Indemnitee.
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SECTION 19. Authority to Administer Collateral. Each Lien Grantor
authorizes the Administrative Agent to file UCC financing statements against it
describing the Collateral as "all personal property". Each Lien Grantor
irrevocably appoints the Administrative Agent its true and lawful attorney, with
full power of substitution, in the name of such Lien Grantor, any Secured Party
or otherwise, for the sole use and benefit of the Secured Parties, but at the
Borrowers' expense, to the extent permitted by law to exercise, at any time and
from time to time while an Event of Default shall have occurred and be
continuing, all or any of the following powers with respect to all or any of
such Lien Grantor's Collateral:
(a) to demand, ▇▇▇ for, collect, receive and give acquittance for
any and all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(c) to sell, lease, license or otherwise dispose of the same or
the proceeds or avails thereof, as fully and effectually as if the
Administrative Agent were the absolute owner thereof, and
(d) to extend the time of payment of any or all thereof and to
make any allowance or other adjustment with reference thereto;
provided that, except in the case of Collateral that is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market, the Administrative Agent will give the relevant Lien Grantor at least
ten days' prior written notice of the time and place of any public sale thereof
or the time after which any private sale or other intended disposition thereof
will be made. Any such notice shall (i) contain the information specified in UCC
Section 9-613, (ii) be Authenticated and (iii) be sent to the parties required
to be notified pursuant to UCC Section 9-611(c); provided that, if the
Administrative Agent fails to comply with this sentence in any respect, its
liability for such failure shall be limited to the liability (if any) imposed on
it as a matter of law under the UCC.
SECTION 20. Limitation on Duty in Respect of Collateral. Beyond the
exercise of reasonable care in the custody and preservation thereof, the
Administrative Agent will have no duty as to any Collateral in its possession or
control or in the possession or control of any sub-agent or bailee or any income
therefrom or as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Administrative Agent will be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession or control if such Collateral is accorded treatment substantially
equal to that which it accords its own property, and will not be liable or
responsible for
29
any loss or damage to any Collateral, or for any diminution in the value
thereof, by reason of any act or omission of any sub-agent or bailee selected by
the Administrative Agent in good faith, except to the extent that such liability
arises from the Administrative Agent's gross negligence or willful misconduct.
SECTION 21. General Provisions Concerning the Administrative Agent.
(a) The provisions of Article 8 of the Credit Agreement shall inure to
the benefit of the Administrative Agent, and shall be binding upon all Lien
Grantors and all Secured Parties, in connection with this Agreement and the
other Security Documents. Without limiting the generality of the foregoing, (i)
the Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether an Event of Default has occurred and is
continuing, (ii) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated by the Security Documents that the
Administrative Agent is required in writing to exercise by the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02 of the Credit Agreement), and
(iii) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for any
failure to disclose, any information relating to any DealerTrack Company that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be
responsible for the existence, genuineness or value of any Collateral or for the
validity, perfection, priority or enforceability of any Transaction Lien,
whether impaired by operation of law or by reason of any action or omission to
act on its part under the Security Documents. The Administrative Agent shall be
deemed not to have knowledge of any Event of Default unless and until written
notice thereof is given to the Administrative Agent by Holdings, the Company or
a Secured Party.
(b) Sub-Agents and Related Parties. The Administrative Agent may perform
any of its duties and exercise any of its rights and powers through one or more
sub-agents appointed by it. The Administrative Agent and any such sub-agent may
perform any of its duties and exercise any of its rights and powers through its
Related Parties. The exculpatory provisions of Section 20 and this Section shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent.
(c) Information as to Secured Obligations and Actions by Secured
Parties. For all purposes of the Security Documents, including determining the
amounts of the Secured Obligations and whether a Secured Obligation is a
Contingent Secured Obligation or not, or whether any action has been taken under
any Secured Agreement, the Administrative Agent will be entitled to rely on
30
information from (i) its own records for information as to the Lender Parties,
their Secured Obligations and actions taken by them, (ii) any Secured Party for
information as to its Secured Obligations and actions taken by it, to the extent
that the Administrative Agent has not obtained such information from its own
records, and (iii) Holdings or the Company, to the extent that the
Administrative Agent has not obtained information from the foregoing sources.
(d) Refusal to Act. The Administrative Agent may refuse to act on any
notice, consent, direction or instruction from any Secured Parties or any agent,
trustee or similar representative thereof that, in the Administrative Agent's
opinion, (i) is contrary to law or the provisions of any Security Document, (ii)
may expose the Administrative Agent to liability (unless the Administrative
Agent shall have been indemnified, to its reasonable satisfaction, for such
liability by the Secured Parties that gave such notice, consent, direction or
instruction) or (iii) is unduly prejudicial to Secured Parties not joining in
such notice, consent, direction or instruction.
(e) Copies of Certain Notices. Within two Business Days after it
receives or sends any notice referred to in this subsection, the Administrative
Agent shall send to the Lenders and each Secured Party Requesting Notice, copies
of any certificate designating additional obligations as Secured Obligations
received by the Administrative Agent pursuant to Section 24 and any notice given
by the Administrative Agent to any Lien Grantor, or received by it from any Lien
Grantor, pursuant to Section 16, 17, 19 or 22.
SECTION 22. Termination of Transaction Liens; Release of Collateral. (a)
The Transaction Liens granted by each Guarantor shall terminate when its Secured
Guarantee is released pursuant to Section 2(c).
(b) The Transaction Liens granted by each Borrower shall terminate when
all the Release Conditions are satisfied.
(c) At any time before the Transaction Liens granted by a Borrower
terminate, the Administrative Agent may, at the written request of such
Borrower, (i) release any Collateral (but not all or substantially all the
Collateral) with the prior written consent of the Required Lenders or (ii)
release all or substantially all the Collateral with the prior written consent
of all Lenders.
(d) Upon any termination of a Transaction Lien or release of Collateral,
the Administrative Agent will, at the expense of the relevant Lien Grantor,
execute and deliver to such Lien Grantor such documents as such Lien Grantor
shall reasonably request to evidence the termination of such Transaction Lien or
the release of such Collateral, as the case may be.
31
SECTION 23. Additional Guarantors and Lien Grantors. Any Subsidiary may
become a party hereto by signing and delivering to the Administrative Agent a
Security Agreement Supplement, whereupon such Subsidiary shall become a
"Guarantor" and a "Lien Grantor" as defined herein.
SECTION 24. Additional Secured Obligations. Any Borrower may from time to
time designate its obligations under any Hedging Agreement or Cash Management
Agreement in effect at such time with any Person which at such time is a Lender
or an Affiliate of an Lender as additional Secured Obligations for purposes
hereof by delivering to the Administrative Agent a certificate signed by an
Authorized Officer that (i) identifies such Hedging Agreement or Cash Management
Agreement and specifies (x) the name and address of each other party thereto and
(y) in the case of a Hedging Agreement, the notional principal amount thereof
and the expiration date thereof, or, in the case of a Cash Management Agreement,
the services provided thereunder and the term thereof, and (ii) states that such
Borrower's obligations thereunder are designated as Secured Obligations for
purposes hereof.
SECTION 25. Right Of Set-off. Each Secured Party and each of their
respective Affiliates is authorized at any time when (i) an Event of Default
shall have occurred and be continuing or (ii) any Secured Obligation shall not
have been paid when due, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations at any time owing by such Secured
Party or Affiliate to or for the credit or the account of any Lien Grantor
(other than any such obligations arising under or in respect of any agreement or
other arrangement into in the ordinary course of business of the Lien Grantors
pursuant to which such Secured Party or Affiliate is a customer of a Lien
Grantor, as to which any rights of setoff shall be determined without reference
to the provisions of this Section) against any Secured Obligations of any Lien
Grantor, now or hereafter existing and held by such Secured Party or Affiliate,
irrespective of whether or not such Secured Party or Affiliate shall have made
any demand therefor and although such obligations may be unmatured. The rights
of each Secured Party and each such Affiliate under this Section are in addition
to all other rights and remedies (including other rights of set-off) that such
Secured Party or Affiliate may have.
SECTION 26. Notices. Each notice, request or other communication given to
any party hereunder shall be given in accordance with Section 9.01 of the Credit
Agreement, and in the case of any such notice, request or other communication to
a Lien Grantor other than a Borrower, shall be given to it in care of Holdings.
32
SECTION 27. No Implied Waivers; Remedies Not Exclusive. No failure by the
Administrative Agent or any Secured Party to exercise, and no delay in
exercising and no course of dealing with respect to, any right or remedy under
any Security Document shall operate as a waiver thereof; nor shall any single or
partial exercise by the Administrative Agent or any Secured Party of any right
or remedy under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right or remedy. The rights and remedies specified
in the Loan Documents are cumulative and are not exclusive of any other rights
or remedies provided by law.
SECTION 28. Successors and Assigns. This Agreement is for the benefit of
the Administrative Agent and the Secured Parties. If all or any part of any
Secured Party's interest in any Secured Obligation is assigned or otherwise
transferred, the transferor's rights hereunder, to the extent applicable to the
obligation so transferred, shall be automatically transferred with such
obligation. This Agreement shall be binding on the Lien Grantors and their
respective successors and assigns.
SECTION 29. Amendments and Waivers. Neither this Agreement nor any
provision hereof may be waived, amended, modified or terminated except pursuant
to an agreement or agreements in writing entered into by the Administrative
Agent, with the consent of such Lenders as are required to consent thereto under
Section 9.02 of the Credit Agreement. No such waiver, amendment or modification
shall (i) be binding upon any Lien Grantor, except with its written consent, or
(ii) affect the rights of a Secured Party (other than a Lender) hereunder more
adversely than it affects the comparable rights of the Lenders hereunder,
without the consent of such Secured Party.
SECTION 30. Choice of Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York, except as otherwise
required by mandatory provisions of law and except to the extent that remedies
provided by the laws of any jurisdiction other than the State of New York are
governed by the laws of such jurisdiction.
SECTION 31. Waiver of Jury Trial. EACH PARTY HERETO WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO ANY SECURITY DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER BASED
ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO
33
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 32. Severability. If any provision of any Security Document is
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions of the Security Documents shall
remain in full force and effect in such jurisdiction and shall be liberally
construed in favor of the Administrative Agent and the Secured Parties in order
to carry out the intentions of the parties thereto as nearly as may be possible
and (ii) the invalidity or unenforceability of such provision in such
jurisdiction shall not affect the validity or enforceability thereof in any
other jurisdiction.
34
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
DEALERTRACK, INC.
By: _________________________________
Name:
Title:
DEALERTRACK HOLDINGS, INC.
By: _________________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By: _________________________________
Name:
Title:
SUBSIDIARY GUARANTORS:
CREDIT ONLINE, INC.
By: _________________________________
Name:
Title:
MENUTRACK, INC.
By: _________________________________
Name:
Title:
WEBALG, INC.
By: _________________________________
Name:
Title:
2