Exhibit 10.1
LIMITED GUARANTEE
OF
GS CAPITAL PARTNERS VI, L.P.
LIMITED GUARANTEE, dated as of December 22, 2006 (this "Limited Guarantee"), by
GS Capital Partners VI, L.P. (together with GS Capital Partners VI Parallel,
L.P., GS Capital Partners VI Offshore, L.P. and GS Capital Partners VI GmbH &
Co. KG) ("Guarantor"), in favor of ADESA, INC., a Delaware corporation (the
"Company").
On the date hereof, the Company has entered into guarantees (the
"Other Guarantees") with (i) ValueAct Capital Master Fund, L.P., (ii) Parthenon
Investors II, L.P. and Insurance Auto Auctions, Inc. and (iii) Kelso Investment
Associates, VII, L.P. and Insurance Auto Auctions, Inc. (collectively, the
"Other Guarantors") on substantially similar terms, except as otherwise
expressly provided therein.
Any capitalized term not otherwise defined herein
shall be as defined in the Merger Agreement (as defined below).
1.
LIMITED GUARANTEE.
TO INDUCE THE COMPANY TO ENTER INTO THAT
CERTAIN AGREEMENT AND PLAN OF MERGER, DATED AS OF THE DATE HEREOF (AS AMENDED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE "MERGER AGREEMENT"),
BY AND AMONG THE COMPANY, KAR HOLDINGS II, LLC, A LIMITED LIABILITY COMPANY
("BUYER"), KAR HOLDINGS, INC, A DELAWARE CORPORATION AND WHOLLY-OWNED SUBSIDIARY
OF BUYER ("HOLDINGS") AND KAR ACQUISITION, INC, A DELAWARE CORPORATION AND
WHOLLY-OWNED SUBSIDIARY OF HOLDINGS ("MERGER SUB" AND TOGETHER WITH BUYER AND
HOLDINGS, THE "BUYER PARTIES"), THE GUARANTOR ABSOLUTELY, UNCONDITIONALLY AND
IRREVOCABLY GUARANTEES TO THE COMPANY, ON THE TERMS AND CONDITIONS SET FORTH
HEREIN, THE PROMPT AND COMPLETE PAYMENT, IF AND WHEN DUE OF 34.3373% (THE
"GUARANTEED PERCENTAGE") OF THE OBLIGATIONS OF THE BUYER PARTIES PURSUANT TO AND
IN ACCORDANCE WITH: (I) SECTION 8.3(D)(I) OF THE MERGER AGREEMENT WITH RESPECT
TO THE BUYER TERMINATION FEE; (II) SECTION 8.3(D)(II) OF THE MERGER AGREEMENT
WITH RESPECT TO THE REIMBURSEMENT OF THE COMPANY TRANSACTION EXPENSES; AND (III)
SECTION 8.3(D)(III) OF THE MERGER AGREEMENT WITH RESPECT TO THE REIMBURSEMENT OF
THE COMPANY FINANCING FEES AND EXPENSES AND THE CREDIT FACILITY FEES AND
EXPENSES (THE GUARANTEED PERCENTAGE OF THE PAYMENT OBLIGATIONS IDENTIFIED IN
CLAUSES (I) THROUGH (III) ABOVE, ARE COLLECTIVELY REFERRED TO HEREIN AS THE
"OBLIGATIONS"); PROVIDED, THAT, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
IN THE EVENT THAT GUARANTOR HAS ACTUALLY PAID THE GUARANTEED PERCENTAGE OF THE
BUYER TERMINATION FEE PURSUANT TO CLAUSE (I) ABOVE OR THE GUARANTEED PERCENTAGE
OF THE COMPANY TRANSACTION EXPENSES PURSUANT TO CLAUSE (II) ABOVE, GUARANTOR
SHALL HAVE NO PAYMENT OBLIGATION WITH RESPECT TO THE COMPANY FINANCING FEES AND
EXPENSES OR THE CREDIT FACILITY FEES AND EXPENSES REFERENCED IN CLAUSE (III)
ABOVE; AND PROVIDED, FURTHER THAT THE MAXIMUM AGGREGATE AMOUNT PAYABLE BY THE
GUARANTOR UNDER THIS LIMITED GUARANTEE (EXCLUSIVE OF ANY AMOUNTS REQUIRED TO BE
PAID BY GUARANTOR PURSUANT TO AND IN ACCORDANCE WITH SECTION 16 HEREOF (THE
"PREVAILING PARTY COSTS")) SHALL NOT EXCEED THE AGGREGATE OF THIRTEEN MILLION
SEVEN HUNDRED THIRTY FOUR THOUSAND AND NINE HUNDRED FORTY U.S. DOLLARS
(U.S.$13,734,940) (THE "CAP"); IT BEING UNDERSTOOD THAT THIS LIMITED GUARANTEE
MAY NOT BE ENFORCED WITHOUT GIVING EFFECT TO THE CAP.
EXCEPT FOR PREVAILING
PARTY COSTS, THE COMPANY