EXHIBIT 10.4
FOREIGN SUBSIDIARY PLEDGE AGREEMENT
This FOREIGN SUBSIDIARY PLEDGE AGREEMENT (this "AGREEMENT") is entered into
as of the 12th day of July, 2002 by and among 000 Xxxxxxxx Xx. #0, a Delaware
corporation, IRI Puerto Rico, Inc., a Puerto Rico corporation, IRI Venezuela
Holdings, Inc., a Delaware corporation, IRI Guatemala Holdings, Inc., a Delaware
corporation, IRI Greek Holdings, Inc., a Delaware corporation, IRI French
Holdings, Inc., a Delaware corporation, IRI Italy Holdings, Inc., a Delaware
corporation, InfoScan Italy Holdings, Inc., a Delaware corporation, Shoppers
Hotline, Inc., a Delaware corporation, and North Clinton Corporation, an
Illinois corporation (each, a "PLEDGOR" and collectively, "PLEDGORS"), in favor
of LASALLE BANK NATIONAL ASSOCIATION, as Administrative Agent for Lenders
("ADMINISTRATIVE AGENT") and the other Lenders executing this Agreement
(collectively, "LENDERS").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Information Resources, Inc., a Delaware corporation ("IRI"),
Pledgors, Administrative Agent and Lenders have entered into a Revolving Credit
Agreement of even date herewith (the "CREDIT AGREEMENT"), pursuant to which
Lenders have agreed to make available the Revolving Credit Facility to IRI and
Pledgors; and
WHEREAS, to induce Lenders to make the Loans and issue Letters of Credit
under the Credit Agreement, Pledgors agreed to enter into this Agreement and
grant a security interest in all the shares of stock of those subsidiaries
described in Schedule I (the "PLEDGED SHARES" ) to Lenders.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definitions. The following terms shall have the following meanings (such
meanings being equally applicable to both the singular and plural form of the
terms defined):
"BANKRUPTCY CODE" shall mean Xxxxx 00, Xxxxxx Xxxxxx Code, as amended
from time to time, and any successor statute thereto.
"PLEDGED COLLATERAL" shall have the meaning assigned to such term in
Section 2 hereof.
"PLEDGED SHARES" shall have the meaning assigned to such term in the
recitals.
"SECURED INDEBTEDNESS" shall have the meaning assigned to such term in
Section 3 hereof.
2. Pledge. To secure the Indebtedness of Pledgors and IRI under the Credit
Agreement, Pledgors hereby pledge to Administrative Agent, for its benefit and
for the ratable benefit of Lenders, and grants to Administrative Agent, for its
benefit and the ratable benefit of Lenders, a first priority security interest
in (subject to any limitation under applicable foreign law), all of the
following (collectively, the "PLEDGED COLLATERAL"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, if any, and all dividends, distributions, cash, instruments and
other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Pledged Shares of Pledgors; and
(b) such portion, as determined by Administrative Agent as provided in
Section 6(d) below, of any additional shares of stock of any Subsidiary
from time to time acquired by Pledgors in any manner (which shares shall be
deemed to be part of the Pledged Shares), and the certificates representing
such additional shares (if any), and all dividends, distributions, cash,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or
all of such shares; provided, however, that in no event shall any
additional shares of capital stock of the Subsidiaries or certificates
representing such shares be pledged hereunder if such pledge would result
in Pledgors pledging more than 66% of the outstanding capital stock of a
Subsidiary.
3. Security for Indebtedness. This Agreement secures, and the Pledged
Collateral is security for, the prompt payment in full when due, whether at
stated maturity, by acceleration or otherwise, and performance of all
Indebtedness now or hereafter existing under and as defined in the Credit
Agreement and all obligations of Pledgors now or hereafter existing under this
Agreement including, without limitation, for all fees, costs and expenses
whether in connection with collection actions hereunder or otherwise
(collectively, the "SECURED INDEBTEDNESS").
4. Delivery of Pledged Collateral. All certificates representing or
evidencing the Pledged Shares shall be delivered to and held by or on behalf of
Administrative Agent in escrow within 90 days from the date hereof, for its
benefit and the ratable benefit of the Lenders, pursuant hereto and shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to Administrative Agent.
5. Representations and Warranties. Pledgors, jointly and severally,
represent and warrant to Administrative Agent and the Lenders that:
(a) All of the Pledged Shares are presently represented, to the extent
available, by the stock certificates listed on Schedule I hereto, which
constitute 66% of the issued and outstanding shares of capital stock of
each of the Subsidiaries;
(b) All of the Pledged Shares have been validly issued and are fully
paid and non-assessable;
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(c) Each Pledgor is the sole holder of record and the sole beneficial
owner of the Pledged Collateral set forth opposite their name on Schedule I
free and clear of any Lien thereon or affecting the title thereto, except
for any Permitted Lien;
(d) As of the date hereof, there are no existing options, warrants,
calls or commitments of any character whatsoever relating to the Pledged
Shares;
(e) Pledgors have the right and requisite authority to pledge, assign,
transfer, deliver, deposit and set over the Pledged Collateral to
Administrative Agent, for its benefit and the ratable benefit of Lenders,
as provided herein;
(f) This Agreement has been duly authorized, executed and delivered by
Pledgors and constitutes a legal, valid and binding obligation of Pledgors
enforceable against Pledgors in accordance with its terms;
(g) None of the Pledged Shares has been issued or transferred in
violation of the securities registration, securities disclosure or similar
laws of any jurisdiction to which such issuance or transfer may be subject;
(h) No consent, approval, authorization or other order of any Person
and no consent, authorization, approval, or other action by, and no notice
to or filing with, any governmental authority is required (i) for the
pledge by Pledgors of the Pledged Collateral pursuant to this Agreement or
for the execution, delivery or performance of this Agreement by Pledgors or
(ii) for the exercise by Administrative Agent, for its benefit and the
ratable benefit of the Lenders, of the voting or other rights provided for
in this Agreement or the remedies in respect of the Pledged Collateral
pursuant to this Agreement, except as may be required in connection with
such disposition by laws affecting the offering and sale of securities
generally or which may be obtained in the ordinary course of business.
(i) The pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid and perfected first priority
(subject to any limitation under applicable foreign law) Lien on the
Pledged Collateral and the proceeds thereof; and
The representations and warranties set forth in this Section 5 shall
survive the execution and delivery of this Agreement.
6. Covenants. Except as provided herein or as otherwise permitted in the
Credit Agreement, Pledgors, jointly and severally, covenant and agree that until
the termination of this Agreement:
(a) Without the prior written consent of Administrative Agent,
Pledgors will not sell, assign, transfer, pledge, or otherwise encumber any
of its rights in or to the Pledged Collateral, or any unpaid dividends or
other distributions or payments with respect to the Pledged Collateral or
xxxxx x Xxxx in the Pledged Collateral;
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(b) For the purpose of carrying out the provisions of this Agreement,
Pledgors will, at its expense, promptly execute, acknowledge and deliver
all such instruments and take all such action as Administrative Agent from
time to time may reasonably request including authorizing Administrative
Agent's filing of any necessary financing statements, which may be filed by
Administrative Agent with or without the signature of Pledgors, and will
cooperate with Administrative Agent, at Pledgors' expense, in obtaining all
necessary approvals and making all necessary filings under federal or state
law in connection with such Liens or any sale or transfer of the Pledged
Collateral;
(c) Pledgors will defend the title to the Pledged Collateral and the
Liens of Administrative Agent in the Pledged Collateral against the claim
of any Person and will maintain and preserve such Liens until the
termination of all Revolving Credit Commitments and indefeasible payment in
full of the Secured Indebtedness; and
(d) Pledgors will, upon obtaining any additional shares of stock of
any of the Subsidiaries, which shares are not already Pledged Collateral,
or upon the formation of any new subsidiary, promptly (and in any event
within five (5) Business Days) deliver to Administrative Agent a Pledge
Amendment, duly executed by Pledgors, in substantially the form of Schedule
II hereto (a "PLEDGE AMENDMENT") in respect of any such additional shares,
pledging to Administrative Agent, for itself and the ratable benefit
Lenders, all of such additional shares. Pledgors hereby authorize
Administrative Agent to attach each Pledge Amendment to this Agreement and
agrees that all Pledged Shares listed on any Pledge Amendment delivered to
Administrative Agent shall for all purposes hereunder be considered Pledged
Collateral; provided, however, that in no event shall any additional shares
of capital stock of the Subsidiaries or certificates representing such
shares be pledged hereunder if such pledge would result in Pledgors
pledging more than 66% of the outstanding capital stock of the
Subsidiaries. Pledgors hereby authorize Administrative Agent to attach each
Pledge Amendment to this Agreement and agrees that all Pledged Shares
listed on any Pledge Amendment delivered to Administrative Agent shall for
all purposes hereunder be considered Pledged Collateral
7. Pledgors' Rights. Subject to the terms and conditions of the Credit
Agreement, until written notice shall be given by Administrative Agent to IRI on
behalf of Pledgors after the occurrence of an Event of Default in accordance
with Section 8(a) hereof:
(a) Pledgors shall have the right, from time to time, to vote and give
consents with respect to their respective Pledged Collateral, or any part
thereof, for all purposes not inconsistent with the provisions of this
Agreement, the Credit Agreement, and any Ancillary Agreement; provided,
however, that no vote shall be cast, and no consent shall be given or
action taken, which would have the effect of impairing the position or
interest of Administrative Agent in respect of the Pledged Collateral or
which would authorize or effect (except as and to the extent expressly
permitted by the Credit Agreement) (i) the dissolution or liquidation, in
whole or in part, of any of the entities representing the Pledged Shares,
(ii) the consolidation or merger of any of the entities representing the
Pledged Shares with any other Person, (iii) the sale, disposition or
encumbrance of all or substantially all of the assets of any of the
entities representing the Pledged Shares, (iv) any change in the authorized
number of shares, the stated capital or the authorized share
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capital of any of the entities representing the Pledged Shares or the
issuance of any additional shares of any entities representing the Pledged
Shares or (v) the alteration of the voting rights with respect to the stock
of any entities representing the Pledged Shares.
(b) (i) Pledgors shall be entitled, from time to time, to collect and
receive for its own use all dividends paid in respect of the Pledged Shares
to the extent not in violation of the Credit Agreement other than any and
all (A) dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Pledged Collateral, (B)
dividends and other distributions paid or payable in cash in respect of any
Pledged Collateral in connection with a partial or total liquidation or
dissolution, and (C) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Pledged Collateral; provided,
however, that until actually paid all rights to such distributions shall
remain subject to the Lien created by this Agreement; and (ii) all
dividends (other than such cash dividends as are permitted to be paid to
Pledgors in accordance with clause (i) above) and all other distributions
in respect of any of the Pledged Shares, whenever paid or made, shall be
delivered to Administrative Agent to hold as Pledged Collateral and shall,
if received by Pledgors, be received in trust for the benefit of
Administrative Agent, for its benefit and the ratable benefit Lenders, be
segregated from the other property or funds of Pledgors, and be forthwith
delivered to Administrative Agent as Pledged Collateral in the same form as
so received (with any necessary endorsement).
8. Defaults and Remedies.
(a) Upon the occurrence of an Event of Default and during the
continuation of such Event of Default, then on or at any time after such
declaration (provided that such declaration is not rescinded by the
Administrative Agent) and upon written notice to Pledgors, Administrative
Agent (personally or through an Administrative Agent) is hereby authorized
and empowered to transfer and register in its name or in the name of its
nominee the whole or any part of the Pledged Collateral, to exchange
certificates or instruments representing or evidencing Pledged Shares for
certificates or instruments of smaller or larger denominations, to exercise
the voting and all other rights as a stockholder with respect thereto
(provided, however, that if Administrative Agent fails to exercise its
voting power which failure could have a material adverse effect on a
Pledgor, as reasonably determined by Administrative Agent, then such
Pledgor shall be permitted to vote the Pledged Shares in connection with
such matter), to collect and receive all cash dividends and other
distributions made thereon, to sell in one or more sales after ten (10)
days' notice of the time and place of any public sale or of the time after
which a private sale is to take place (which notice Pledgors agree is
commercially reasonable) the whole or any part of the Pledged Collateral
and to otherwise act with respect to the Pledged Collateral as though
Administrative Agent was the outright owner thereof, Pledgors hereby
irrevocably constituting and appointing Administrative Agent as the proxy
and attorney-in-fact of Pledgors, with full power of substitution to do so,
and which appointment shall remain in effect until the Indebtedness is
indefeasibly paid in full; provided, however, Administrative Agent shall
not have any duty to exercise any such right or to preserve the same and
shall not be liable for any failure to do so or for any
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delay in doing so, except as otherwise provided herein. Any sale shall be
made at a public or private sale at Administrative Agent's place of
business, or at any place to be named in the notice of sale, either for
cash or upon credit or for future delivery at such price as Administrative
Agent may deem fair, and Administrative Agent or any Lender may be the
purchaser of the whole or any part of the Pledged Collateral so sold and
hold the same thereafter in its own right free from any claim of Pledgors
or any right of redemption. Each sale shall be made to the highest bidder,
but Administrative Agent reserves the right to reject any and all bids at
such sale which, in its discretion, it shall deem inadequate. Demands of
performance, except as otherwise herein specifically provided for, notices
of sale, advertisements and the presence of property at sale are hereby
waived and any sale hereunder may be conducted by an auctioneer or any
officer or agent of Administrative Agent.
(b) If, at the original time or times appointed for the sale of the
whole or any part of the Pledged Collateral, the highest bid, if there be
but one sale, shall be inadequate to discharge in full all the Secured
Indebtedness, or if the Pledged Collateral be offered for sale in lots, if
at any of such sales, the highest bid for the lot offered for sale would
indicate to Administrative Agent, in its discretion, the unlikelihood of
the proceeds of the sales of the whole of the Pledged Collateral being
sufficient to discharge all the Secured Indebtedness, Administrative Agent
may, on one or more occasions and in its discretion, postpone any of said
sales by public announcement at the time of sale or the time of previous
postponement of sale, and no other notice of such postponement or
postponements of sale need be given, any other notice being hereby waived;
provided, however, that any sale or sales made after such postponement
shall be after ten (10) days' notice to IRI on behalf of Pledgors.
(c) The proceeds of any sale, disposition or other realization upon
all or any part of the Pledged Collateral shall be distributed by
Administrative Agent, for the benefit of Administrative Agent and Lenders,
upon receipt, in the following order of priorities:
First, to Administrative Agent in an amount sufficient to pay in
full the expenses of Administrative Agent in connection with such
sale, disposition or other realization, including all expenses,
Indebtedness and advances incurred or made by Administrative Agent in
connection therewith, including reasonable attorneys' fees and
expenses;
Second, in accordance with Section 8.7 of the Credit Agreement;
and
Third, upon indefeasible payment in full of all of the Secured
Indebtedness, to Pledgors or their representatives or to whomsoever
may be lawfully entitled to receive the same, or as a court of
competent jurisdiction may direct.
(d) If, at any time when Administrative Agent shall determine to
exercise its right to sell the whole or any part of the Pledged Collateral
hereunder, such Pledged Collateral or the part thereof to be sold shall
not, for any reason whatsoever, be effectively registered under the
Securities Act of 1933, as amended (or any similar statute
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then in effect) (the "ACT"), Administrative Agent may, in its discretion
(subject only to applicable requirements of law), sell such Pledged
Collateral or part thereof by private sale in such manner and under such
circumstances as Administrative Agent may deem necessary or advisable,
subject to applicable securities laws. Without limiting the generality of
the foregoing, in any such event, Administrative Agent in its discretion
(i) may, in accordance with applicable securities laws, proceed to make
such private sale notwithstanding that a registration statement for the
purpose of registering such Pledged Collateral or part thereof could be or
shall have been filed under said Act (or similar statute), (ii) may
approach and negotiate with a single possible purchaser to effect such
sale, and (iii) may restrict such sale to a purchaser who will represent
and agree that such purchaser is purchasing for its own account, for
investment and not with a view to the distribution or sale of such Pledged
Collateral or part thereof. In addition to a private sale as provided above
in this Section 7, if any of the Pledged Collateral shall not be freely
distributable to the public without registration under the Act (or similar
statute) at the time of any proposed sale pursuant to this Section 7, then
Administrative Agent shall not be required to effect such registration or
cause the same to be effected but, in its discretion (subject only to
applicable requirements of law), may require that any sale hereunder
(including a sale at auction) be conducted subject to restrictions (i) as
to the financial sophistication and ability of any Person permitted to bid
or purchase at any such sale, (ii) as to the content of legends to be
placed upon any certificates representing the Pledged Collateral sold in
such sale, including restrictions on future transfer thereof, (iii) as to
the representations required to be made by each Person bidding or
purchasing at such sale relating to that Person's access to financial
information about Pledgors and such Person's intentions as to the holding
of the Pledged Collateral so sold for investment for its own account and
not with a view to the distribution thereof, and (iv) as to such other
matters as Administrative Agent may, in its discretion, deem necessary or
appropriate in order that such sale (notwithstanding any failure so to
register) may be effected in compliance with the Bankruptcy Code and other
laws affecting the enforcement of creditors' rights and the Act and all
applicable state securities laws.
(e) Pledgors acknowledge that notwithstanding the legal availability
of a private sale or a sale subject to the restrictions described above in
paragraph (d), Administrative Agent may, in its discretion, elect to
register any or all the Pledged Collateral under the Act (or any applicable
state securities law) in accordance with its rights hereunder. Pledgors,
however, recognizes that Administrative Agent may be unable to effect a
public sale of any or all the Pledged Collateral and may be compelled to
resort to one or more private sales thereof. Pledgors also acknowledge that
any such private sale may result in prices and other terms less favorable
to the seller than if such sale were a public sale and, notwithstanding
such circumstances, agrees that any such private sale shall be deemed to
have been made in a commercially reasonable manner. Administrative Agent
shall be under no obligation to delay a sale of any of the Pledged
Collateral for the period of time necessary to permit the registrant to
register such securities for public sale under the Act, or under applicable
state securities laws, even if Pledgors would agree to do so.
Administrative Agent hereby agrees that nothing in this Agreement or the
Credit Agreement shall constitute an indemnity or other agreement (by way
of guarantee, exculpation or otherwise) by any Borrower with respect to
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Administrative Agent's acts or omissions concerning the Pledged Collateral
that violate or fail to comply with applicable securities laws.
(f) Pledgors agree, to the maximum extent permitted by applicable law,
that following the occurrence and during the continuance of an Event of
Default, it will not at any time plead, claim or take the benefit of any
appraisal, valuation, stay, extension, moratorium or redemption law now or
hereafter in force in order to prevent or delay the enforcement of this
Agreement, or the absolute sale of the whole or any part of the Pledged
Collateral or the possession thereof by any purchaser at any sale
hereunder, and Pledgors waive the benefit of all such laws to the extent it
lawfully may do so. Pledgors agree that it will not interfere with any
right, power and remedy of Administrative Agent provided for in this
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise, or the exercise or beginning of the exercise by Administrative
Agent of any one or more of such rights, powers or remedies. No failure or
delay on the part of Administrative Agent to exercise any such right, power
or remedy and no notice or demand which may be given to or made upon
Pledgors by Administrative Agent with respect to any such remedies shall
operate as a waiver thereof, or limit or impair Administrative Agent's
right to take any action or to exercise any power or remedy hereunder,
without notice or demand, or prejudice its rights as against Pledgors in
any respect.
9. Waiver. No delay on Administrative Agent's part in exercising any power
of sale, Lien, option or other right hereunder, and no notice or demand which
may be given to or made upon Pledgors by Administrative Agent with respect to
any power of sale, Lien, option or other right hereunder, shall constitute a
waiver thereof, or limit or impair Administrative Agent's right to take any
action or to exercise any power of sale, Lien, option, or any other right
hereunder, without notice or demand, or prejudice Administrative Agent's rights
as against Pledgors in any respect.
10. Reinstatement of Pledgors' Rights. In the event Borrowers cure the
Event of Default prior to Administrative Agent or Lenders pursuing any remedies
available hereunder as a result of such Event of Default, Pledgors' rights under
Section 7 hereof shall be reinstated in full, provided, that Administrative
Agent and Lenders shall have been made whole.
11. Assignment. Subject to the restrictions set forth herein,
Administrative Agent or any Lender may assign, indorse or transfer any
instrument evidencing all or any part of the Secured Indebtedness as provided
in, and in accordance with, the Credit Agreement, and the holder of such
instrument shall be entitled to the benefits of this Agreement.
12. Termination. Upon the indefeasible payment in full of all Secured
Indebtedness and termination of the Commitments under the Credit Agreement,
Administrative Agent shall deliver to Pledgors the Pledged Collateral pledged by
Pledgors at the time subject to this Agreement and all instruments of assignment
executed in connection therewith, free and clear of the Liens hereof and, except
as otherwise provided herein, all of Pledgors' obligations hereunder shall at
such time terminate. If Administrative Agent is unable to deliver or locate the
Pledged Collateral for whatever reason, Administrative Agent and Lenders shall
indemnify Pledgors for any claims made by any Person relating to such
undelivered or lost Pledged Collateral.
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13. Lien Absolute. All rights of Administrative Agent and Lenders
hereunder, and all obligations of Pledgors hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit Agreement,
the Notes, any other Ancillary Agreements or any other agreement or
instrument governing or evidencing any Secured Indebtedness;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any part of the Secured Indebtedness, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, the Notes, any other Ancillary Agreement or any other agreement
or instrument governing or evidencing any Secured Indebtedness;
(c) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Secured Indebtedness; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, Pledgors.
14. Release. Pledgors consent and agree that Administrative Agent and
Lenders may at any time, or from time to time, in their discretion (a) renew,
extend or change the time of payment, and/or the manner, place or terms of
payment of all or any part of the Secured Indebtedness and (b) exchange, release
and/or surrender all or any of the Pledged Collateral, or any part thereof, by
whomsoever deposited, which is now or may hereafter be held by Administrative
Agent in connection with all or any of the Secured Indebtedness; all in such
manner and upon such terms as Administrative Agent and Lenders may deem proper,
and without notice to or further assent from Pledgors, it being hereby agreed
that Pledgors shall be and remain bound upon this Agreement, and notwithstanding
any such change, exchange, settlement, compromise, surrender, release, renewal
or extension, and notwithstanding also that the Secured Indebtedness may, at any
time, exceed the aggregate principal amount thereof set forth in the Credit
Agreement, or any other agreement governing any Secured Indebtedness. Except as
provided herein, no act or omission of any kind on Administrative Agent's part
shall in any event affect or impair this Agreement.
15. Reinstatement. This Agreement shall remain in full force and effect and
continue to be effective should any petition be filed by or against Pledgors or
any Subsidiary for liquidation or reorganization, should Pledgors or any
Subsidiary become insolvent or make an assignment for the benefit of creditors
or should a receiver or trustee be appointed for all or any significant part of
Pledgors' or any of the Subsidiaries' assets, and shall continue to be effective
or be reinstated, as the case may be, if at any time payment and performance of
the Secured Indebtedness, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee of the Secured Indebtedness, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Secured Indebtedness shall be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
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16. Miscellaneous.
(a) Administrative Agent may execute any of its duties hereunder by or
through its agents or employees and shall be entitled to advice of counsel,
at its own cost, concerning all administrative matters pertaining to this
Agreement; provided, however, that Pledgors agree to promptly reimburse
Administrative Agent for actual out-of-pocket expenses, including, without
limitation, reasonable counsel fees, incurred by Administrative Agent in
connection with the enforcement of this Agreement.
(b) Neither Administrative Agent nor any Lender nor any of their
respective officers, directors, employees, agents or counsel shall be
liable for any action lawfully taken or lawfully omitted to be taken by it
or them hereunder or in connection herewith, except for its or their own
gross negligence or willful misconduct.
(c) THIS AGREEMENT SHALL BE BINDING UPON PLEDGOR AND ITS SUCCESSORS
AND ASSIGNS, AND SHALL INURE TO THE BENEFIT OF, AND BE ENFORCEABLE BY,
ADMINISTRATIVE AGENT AND LENDERS AND THEIR SUCCESSORS AND ASSIGNS, AND
SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
INTERNAL LAWS IN EFFECT IN THE STATE OF ILLINOIS WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICT OF LAWS BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE
TO NATIONAL BANKS, AND NONE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT
MAY BE WAIVED, ALTERED, MODIFIED OR AMENDED EXCEPT IN WRITING DULY SIGNED
FOR AND ON BEHALF OF ADMINISTRATIVE AGENT AND PLEDGOR.
17. Severability. If for any reason any provision or provisions hereof are
determined to be invalid and contrary to any existing or future law, such
invalidity shall not impair the operation of or effect those portions of this
Agreement which are valid.
18. Notices. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval, declaration or other
communication shall or may be given to or served upon any of the parties by any
other party, or whenever any of the parties desires to give or serve upon any
other a communication with respect to this Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and either shall be delivered in person with receipt acknowledged or
sent by registered or certified mail, return receipt requested, postage prepaid,
or by confirmed facsimile addressed as follows:
(a) If to Administrative Agent, at:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Fax No.: (000) 000-0000
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With copies to:
Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
(b) If to any Pledgor, at:
Information Resources, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Fax No.: (000) 000-0000
With copies to:
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. X'Xxxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served upon (i) delivery in person by messenger, (ii)
the next Business Day by overnight courier service, (iii) at the end of the
Business Day after confirmed transmission by facsimile, (iv) or five (5)
Business Days after deposit in the United States certified or registered mails,
with proper postage prepaid. Failure or delay in delivering copies of any
notice, demand, request, consent, approval, declaration or other communication
to the persons designated above to receive copies shall in no way adversely
affect the effectiveness of such notice, demand, request, consent, approval,
declaration or other communication.
19. Section Titles. The Section titles contained in this Agreement are and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
20. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
11
21. Inconsistencies. To the extent that any terms or conditions of this
Agreement are inconsistent with the any terms or conditions of the Credit
Agreement, the Credit Agreement shall govern.
[signature page follows]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
INFORMATION RESOURCES, INC., IRI GUATEMALA HOLDINGS, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
564 XXXXXXXX CO. #2, IRI GREEK HOLDINGS, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
IRI PUERTO RICO, INC., IRI VENEZUELA HOLDINGS, INC.,
a Puerto Rico corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
IRI FRENCH HOLDINGS, INC., IRI ITALY HOLDINGS, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
INFOSCAN ITALY HOLDINGS, INC., SHOPPERS HOTLINE, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
NORTH CLINTON CORPORATION,
an Illinois corporation
By:
------------------------------------
Its:
-----------------------------------
13
Accepted and Acknowledged by:
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent for Lenders
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
14
SCHEDULE I
PLEDGED SHARES
---------------------------------------------------------------------------------------------------------------
Stock Issuer Class Stock Certificate Number Percentage of
------------ of Stock Number(s) of Shares Outstanding Shares
-------- --------- --------- ------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------
15
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ________________ __, 200[_] is delivered
pursuant to Section 6(d) of that certain U.S. Subsidiary Pledge Agreement (the
"PLEDGE AGREEMENT"), dated as of July 12, 2002, by the undersigned, as Pledgors,
to LaSalle Bank National Association as Administrative Agent for Lenders party
thereto. The undersigned hereby certifies that the representations and
warranties in Section 5 of the Pledge Agreement are and continue to be true and
correct, both as to the shares pledged prior to this Pledge Amendment and as to
the shares pledged pursuant to this Pledge Amendment. The undersigned further
agrees that this Pledge Amendment may be attached to the Pledge Agreement and
that the Pledged Shares listed on this Pledge Amendment shall be and become a
part of the Pledged Collateral referred to in said Pledge Agreement and shall
secure all Secured Indebtedness referred to in said Pledge Agreement. Except as
the set forth herein, the undersigned acknowledges that all the terms and
conditions of the Pledge Agreement shall remain in full force and effect.
[signature page attached]
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
INFORMATION RESOURCES, INC., IRI GUATEMALA HOLDINGS, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
564 XXXXXXXX CO. #2, IRI GREEK HOLDINGS, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
IRI PUERTO RICO, INC., IRI VENEZUELA HOLDINGS, INC.,
a Puerto Rico corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
IRI FRENCH HOLDINGS, INC., IRI ITALY HOLDINGS, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
INFOSCAN ITALY HOLDINGS, INC., SHOPPERS HOTLINE, INC.,
a Delaware corporation a Delaware corporation
By: By:
------------------------------------ -------------------------------
Its: Its:
----------------------------------- ------------------------------
NORTH CLINTON CORPORATION,
an Illinois corporation
By:
------------------------------------
Its:
-----------------------------------
17
Accepted and Acknowledged by:
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent for Lenders
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
18
----------------------------------------------------------------------------------------------------------------
Name and Class Certificate Number
Address of Pledgor Issuer of Stock Number(s) of Shares
------------------ ------ -------- --------- ---------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
:
19
EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned, ________________, a ________
corporation, hereby assigns and transfers unto ______________________, ____
shares of the Common Stock (the "Shares") of __________________ (the
"Corporation"), standing in the name of _____________________, on the books of
the Corporation represented by certificate no. ____; and does hereby irrevocably
constitute and appoint __________________ as ___________________________'s
attorney-in-fact to transfer the Shares on the books of the Corporation with
full power of substitution in the premises.
DATED: _____________________________
------------------------------------
a _________ corporation
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
20
