EXHIBIT 10.1
REVOLVING CREDIT AGREEMENT
DATED AS OF JULY 12, 2002
BY AND AMONG
INFORMATION RESOURCES, INC.,
564 XXXXXXXX CO. #2,
IRI PUERTO RICO, INC.,
IRI VENEZUELA HOLDINGS, INC.,
IRI GUATEMALA HOLDINGS, INC.,
IRI GREEK HOLDINGS, INC.,
IRI FRENCH HOLDINGS, INC.,
IRI ITALY HOLDINGS, INC.,
INFOSCAN ITALY HOLDINGS, INC.,
SHOPPERS HOTLINE, INC.,
AND
NORTH CLINTON CORPORATION,
AS BORROWERS,
AND
LENDERS,
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT FOR LENDERS
AND
KEY CORPORATE CAPITAL, INC.
AS SYNDICATION AGENT FOR LENDERS
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATIONS....................................................................1
1.1 Definitions........................................................................................1
1.2 Accounting Terms...................................................................................20
1.3 Other Terms........................................................................................20
1.4 Interpretation.....................................................................................20
1.5 Multiple Borrowers.................................................................................21
2. CREDIT FACILITY; ALTERNATIVE CURRENCY ADVANCES;
GENERAL TERMS......................................................................................22
2.1 Revolving Credit Facility..........................................................................22
2.2 Evidence of Debt...................................................................................22
2.3 Loan Accounts; Amount and Maintenance of Loans; Interest Rate Not
Determined.........................................................................................22
2.4 Interest Rate......................................................................................23
2.5 Borrowing Procedures...............................................................................23
2.6 Alternative Currency Advances......................................................................24
2.7 General Provisions.................................................................................25
2.8 Conversion Options; Continuance....................................................................25
2.9 Requirements of Law................................................................................26
2.10 Illegality.........................................................................................28
2.11 Indemnity..........................................................................................28
3. LETTERS OF CREDIT..................................................................................29
3.1 Letters of Credit..................................................................................29
3.2 Participating Interests............................................................................30
3.3 Letter of Credit Reimbursement Obligations.........................................................30
3.4 Procedure for Issuance.............................................................................32
3.5 Nature of Lenders' Obligations.....................................................................32
3.6 Compensation for Letters of Credit.................................................................33
4. FEES AND PAYMENTS..................................................................................33
4.1 Fees...............................................................................................33
4.2 Making of Payments.................................................................................33
4.3 Payment Terms......................................................................................34
4.4 Prepayment; Commitment Reductions..................................................................34
4.5 Lockbox ...........................................................................................35
4.6 Application of Payments and Collections............................................................35
4.7 Records............................................................................................35
4.8 Non-Funding Lenders................................................................................35
4.9 Holidays...........................................................................................36
5. WARRANTIES AND REPRESENTATIONS.....................................................................36
5.1 General Warranties and Representations.............................................................36
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5.2 Automatic Warranty and Representations and Reaffirmation of
Warranties and Representations.....................................................................40
5.3 Survival of Warranties and Representations.........................................................40
6. CONDITIONS TO LOANS................................................................................40
6.1 General Conditions Applicable to All Advances......................................................40
6.2 Conditions to Initial Advance......................................................................41
7. COVENANTS AND CONTINUING AGREEMENTS................................................................44
7.1 Financial Covenants................................................................................44
7.2 Affirmative Covenants..............................................................................45
7.3 Negative Covenants.................................................................................49
7.4 Contesting Charges.................................................................................52
7.5 Payment of Charges.................................................................................52
7.6 Insurance; Payment of Premiums.....................................................................52
7.7 Survival of Obligations Upon Termination of Agreement..............................................53
8. EVENTS OF DEFAULT; RIGHTS OF REMEDIES..............................................................53
8.1 Event of Default...................................................................................53
8.2 Effect of Event of Default.........................................................................55
8.3 Remedies...........................................................................................56
8.4 Notice.............................................................................................57
8.5 Default Interest Rate..............................................................................57
8.6 Preservation of Rights.............................................................................57
8.7 Distributions......................................................................................58
8.8 Method of Adjustment...............................................................................58
9. AGENT..............................................................................................59
9.1 Appointment and Authorization......................................................................59
9.2 Delegation of Duties...............................................................................59
9.3 Liability of Administrative Agent..................................................................59
9.4 Reliance by Administrative Agents..................................................................59
9.5 Notice of Default..................................................................................60
9.6 Credit Decision....................................................................................60
9.7 Indemnification....................................................................................61
9.8 Administrative Agent in Individual Capacity........................................................62
9.9 Successor Administrative Agent.....................................................................62
9.10 Appointment of Administrative Agent as Each Borrower's Lawful Attorney-In-Fact.....................62
10. MISCELLANEOUS......................................................................................63
10.1 Modification of Agreement..........................................................................63
10.2 Sale of Notes, Participation.......................................................................64
10.3 Attorneys' Fees and Expenses; Administrative Agent and Each Lender's
Out-of-Pocket Expenses.............................................................................64
10.4 No Offset; Right to Charge Accounts................................................................65
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10.5 Severability.......................................................................................65
10.6 Parties; Entire Agreement..........................................................................66
10.7 Conflict of Terms..................................................................................66
10.8 Waiver by Borrowers................................................................................66
10.9 Waiver and Governing Law...........................................................................66
10.10 Notice ..........................................................................................67
10.11 Section Titles, Etc................................................................................68
10.12 Mutilated, Destroyed, Lost and Stolen Notes........................................................68
11. CROSS-GUARANTY.....................................................................................68
11.1 Cross-Guaranty.....................................................................................68
11.2 Waivers by Borrowers...............................................................................69
11.3 Benefit of Guaranty................................................................................69
11.4 Subordination of Subrogation, Etc..................................................................69
11.5 Election of Remedies...............................................................................70
11.6 Limitation.........................................................................................70
11.7 Liability Cumulative...............................................................................71
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EXHIBITS
Exhibit A-1 Form of Revolving Credit Note for Administrative Agent
Exhibit A-2 Form of Revolving Credit Note for Lenders
Exhibit B Form of Security Agreement
Exhibit C Form of Foreign Subsidiary Pledge Agreement
Exhibit D Form of U.S. Subsidiary Pledge Agreement
Exhibit E Form of Lockbox Agreement
Exhibit F Form of Opinion of U.S. Counsel
Exhibit G Form of Financial Condition and Compliance Certificate
Exhibit H Form of Loss Payable Endorsement
Exhibit I Form of Notice of Borrowing
Exhibit J Form of Borrowing Base Certificate
Exhibit K Form of Solvency Certificate
Exhibit L Form of Master Letter of Credit Agreement
Exhibit M Form of Memorandum of Understanding
SCHEDULES
Schedule A Revolving Credit Commitments by Lenders
Schedule B States / Territories of Incorporation of Borrowers
Schedule 1 Eligible Collateral Locations
Schedule 2 Financials
Schedule 3 Permitted Debt
Schedule 4 Permitted Liens
Schedule 5 Litigation
Schedule 6 Owned Property
Schedule 7 Subsidiaries
Schedule 8 Insurance Policies
Schedule 9 Intellectual Property
Schedule 10 Loans
Schedule 11 Guarantees
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "AGREEMENT") is made as of the 12th
day of July, 2002 by and among INFORMATION RESOURCES, INC., a Delaware
corporation, 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 "BORROWER" and
collectively, "BORROWERS"), LASALLE BANK NATIONAL ASSOCIATION, as Administrative
Agent for Lenders ("LASALLE" or "ADMINISTRATIVE AGENT"), and Key Corporate
Capital, Inc., as Syndication Agent for Lenders ("SYNDICATION AGENT")
(Administrative Agent and Syndication Agent may also each hereinafter be
referred to as a "LENDER" and together, with any other lenders executing this
Agreement, "LENDERS").
WHEREAS, Borrowers have requested that Lenders extend credit in the form of
a revolving credit facility (including a letter of credit facility and sublimit)
in an aggregate principal amount not to exceed $40,000,000 at any time, and make
other financial accommodations for the purposes and subject to the terms and
conditions hereinafter set forth.
WHEREAS, Lenders are willing to make such credit facility available to
Borrowers and Borrowers are willing to borrow from Lenders, subject to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or extension of credit previously, now or to be made to
or for the benefit of Borrowers by Lenders, the parties agree as follows:
1. DEFINITIONS AND INTERPRETATIONS.
1.1 DEFINITIONS. When used in this Agreement, the following terms shall
have the following meanings:
"ACCOUNT DEBTOR" shall mean any Person who is or who may become
obligated to any Borrower under, with respect to, or on account of an
Account.
"ACCOUNTS" shall mean all accounts (including all rights to payment
for services rendered or goods sold or leased), payment obligations,
contract rights, leases, chattel paper, instruments, life insurance
policies, notes and documents of Borrowers, whether now owned or hereafter
acquired.
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"ACCOUNTS REPORT" shall mean a report delivered to Administrative
Agent by each Borrower in accordance with Section 7.2(C)(vi) consisting of
(i) a trial balance of all Accounts existing as of the last day of the
month preceding the date of such Accounts and Inventory Report and
specifying for each Account Debtor obligated on the Accounts, such Account
Debtor's name and outstanding balance, (ii) an aging of such Accounts,
(iii) a list of all xxxxxxxx booked in advance as of such day, and (iv) any
other information reasonably required herein.
"ADMINISTRATIVE AGENT" shall mean LaSalle in its capacity as
administrative, collateral and documentation agent for all Lenders,
including the Syndication Agent, and not in its individual capacity, and
any successor appointed pursuant to Section 9.9.
"ADMINISTRATIVE AGENT-RELATED PERSONS" shall mean Administrative Agent
and any successor agent appointed under Section 9.9, together with their
respective Affiliates and the officers, directors, employees, agents and
attorneys-in-fact of Administrative Agent and of such Persons and
Affiliates.
"AFFILIATE" shall mean any and all Persons which, in the reasonable
judgment of Administrative Agent, directly or indirectly, own or control,
are controlled by or are under common control of a Borrower. For the
purpose of this definition and where otherwise applicable herein, "CONTROL"
means the possession, directly or indirectly, of the power to direct or
cause the direction of management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise. For purposes
of this Agreement, no Borrower shall be deemed to be an Affiliate of any
other Borrower.
"AGGREGATE REVOLVING CREDIT COMMITMENTS" shall mean the combined
Revolving Credit Commitments of Lenders, which shall be, in the aggregate,
an amount not to exceed $40,000,000, as such amount may be reduced from
time to time pursuant to this Agreement.
"AGREEMENT" shall have the meaning ascribed to it in the introduction.
"ALTERNATIVE CURRENCY" shall mean Pound Sterling and the Euro.
"ALTERNATIVE CURRENCY ADVANCES" shall mean advances made to Borrowers
for borrowings in the Alternative Currency, which advances shall not exceed
the Alternative Currency Sublimit.
"ALTERNATIVE CURRENCY NOTICE OF BORROWING" shall mean the notice of
borrowing used for Alternative Currency Advances, which notice shall
contain, (i) the amount of the proposed Alternative Currency Advance, (ii)
the proposed Borrower for such Alternative Currency Advance, and (iii)
instructions for the disbursement of the proceeds of the proposed
Alternative Currency Advance.
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"ALTERNATIVE CURRENCY PAYMENT OFFICE" shall mean Administrative
Agent's office set forth on the signature page attached hereto, which shall
be used to make Alternative Currency Advances.
"ALTERNATIVE CURRENCY SUBLIMIT" shall mean an aggregate amount of
$7,000,000 (U.S. Dollar equivalent).
"ANCILLARY AGREEMENTS" shall mean all agreements, instruments and
documents, and all other written matter whether now, or to be executed by
or on behalf of a Borrower or any other Person or delivered to
Administrative Agent or any Lender with respect to this Agreement,
including the Notes, the Collateral Documents and the Memorandum of
Understanding.
"APPLICABLE MARGIN" shall mean:
(i) with respect to Base Rate Loans, the percentage interest rate
per annum, based upon the Cash Flow Coverage Ratio, as indicated in
the following chart:
CASH FLOW COVERAGE RATIO PERCENTAGE RATE
------------------------ ---------------
Greater than 1.50:1.00 0.25%
Greater than or equal to 1.25:1.00 but less than or 0.50%
equal to 1.50:1:00
Greater than or equal to 1.10:1.00 but less than 0.75%
1.25:1.00
Greater than or equal to 1.03:1.00 but less than 1.00%
1.10:1.00
provided, however, that notwithstanding the Cash Flow Coverage Ratio
calculation, for the first nine (9) months after the initial Loan, the
percentage interest rate per annum for Base Rate Loans shall be 0.75%.
(ii) with respect to LIBOR Rate Loans, the percentage interest
rate per annum, based upon the Cash Flow Coverage Ratio, as indicated
in the following chart:
CASH FLOW COVERAGE RATIO PERCENTAGE RATE
------------------------ ---------------
Greater than 1.50:1.00 2.25%
Greater than or equal to 1.25:1.00 but less than or 2.50%
equal to 1.50:1:00
Greater than or equal to 1.10:1.00 but less than 2.75%
1.25:1.00
Greater than or equal to 1.03:1.00 but less than 3.00%
1.10:1.00
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provided, however, that notwithstanding the Cash Flow Coverage Ratio
calculation, for the first nine (9) months after the initial Loan, the
percentage interest rate per annum for LIBOR Rate Loans shall be
2.75%.
(iii) with respect to Letters of Credit, the fee per annum, based
upon the Cash Flow Coverage Ratio, as indicated in the following
chart:
CASH FLOW COVERAGE RATIO FEE
------------------------ ---
Greater than 1.50:1.00 2.25%
Greater than or equal to 1.25:1.00 but less than or 2.50%
equal to 1.50:1:00
Greater than or equal to 1.10:1.00 but less than 2.75%
1.25:1.00
Greater than or equal to 1.03:1.00 but less than 3.00%
1.10:1.00
provided, however, that notwithstanding the Cash Flow Coverage Ratio
calculation, for the first nine (9) months after the initial Loan, the
percentage interest rate per annum for Letters of Credit shall be
2.75%.
"ASSET SALE" shall mean, with respect to any Person, the sale of any
tangible or intangible asset or property to any other Person, including,
but not limited to, any sale and leaseback transaction.
"BASE RATE" shall mean, with respect to any Base Rate Loan, the higher
of (i) the Prime Rate and (ii) the Federal Funds Rate plus 0.5% per annum.
"BASE RATE LOANS" shall mean any Loan (or portion thereof) bearing
interest at the Base Rate, as designated by a Borrower in the Notice of
Borrowing, Notice of Conversion or Notice of Continuance.
"BORROWER" shall have the meaning ascribed to it in the introduction.
"BORROWING BASE" shall mean the sum of: (i) 80% of value of the
Eligible Billed Receivables, and (ii) 35% of the value of the Eligible
Unbilled Receivables; provided, however, that when IRI develops and
implements a system reasonably acceptable to Required Lenders in accordance
with Section 7.2(N) which tracks the time required to convert Eligible
Unbilled Receivables into Eligible Billed Receivables, Lenders will advance
on 50% of Eligible Unbilled Receivables. Notwithstanding anything to the
contrary, advances based on Eligible Unbilled Receivables shall not exceed
$7,000,000.
"BORROWING BASE CERTIFICATE" shall have the meaning ascribed to it in
Section 7.2(C)(v).
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"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or
other day on which (i) commercial banks in the State of Illinois or (ii)
the New York Stock Exchange, are required or authorized by law to remain
closed; provided that, when used in connection with a LIBOR Loan, the term
"Business Day" shall also exclude any day on which banks are not open for
dealing in U.S. Dollar deposits in the interbank eurodollar market in
London, England.
"CAPITAL EXPENDITURES" shall be determined in accordance with GAAP and
shall include, for any period, the sum of all expenditures during that
period that are included in "additions to property, plant or equipment" or
a comparable item in the statement of cash flows of each Borrower such as
capitalized software costs, net of the amount of any reimbursement payments
made to any Borrower by any third party in connection with any such
expenditures, excluding Permitted Acquisitions.
"CAPITALIZED LEASE OBLIGATIONS" of a Person shall mean the obligations
of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, whether
such property is tangible or intangible, or a combination thereof, which
obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person in accordance with GAAP and, for
the purposes of this Agreement, the amount of such obligations at any time
shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"CAPITALIZED LEASE OBLIGATIONS LIMIT" shall mean (i) $11,000,000 in
fiscal year 2002, (ii) $12,000,000 in fiscal year 2003 and (iii)
$14,000,000 thereafter until the Revolving Credit Termination Date.
"CAPITAL RAISING TRANSACTION" shall mean a transaction or series of
transactions which, directly or indirectly, raise capital or have the
effect of raising capital for any Borrower, whether as the result of the
sale, transfer or swap of any equity security, any debt instrument or
otherwise.
"CASH FLOW COVERAGE RATIO" shall mean as of any date of measurement
thereof, the ratio of consolidated EBITDA plus Equity Proceeds to Fixed
Charges. For purposes of calculating Cash Flow Coverage Ratio for the
financial covenants set forth in Section 7.1 of this Agreement, the
numerator of the Cash Flow Coverage Ratio for the fiscal quarters ended
September 30, 2001, December 31, 2001 and March 31, 2002 shall be
$40,228,000, $41,571,000 and $36,555,000 respectively and the denominator
of the Cash Flow Coverage Ratio for the fiscal quarters ended September 30,
2001, December 31, 2001 and March 31, 2002 shall be $31,643,000,
$33,941,000 and $36,268,000 respectively.
"CHARGES" shall mean all national, federal, state, county, city,
municipal, or other governmental (including the Pension Benefit Guaranty
Corporation) taxes, levies, assessments, charges, Liens, claims or
encumbrances upon or relating to (i) the
5
Collateral, (ii) the Indebtedness, (iii) Borrowers' employees, payroll,
income or gross receipts, (iv) Borrowers' ownership or use of any of its
assets, or (v) any other aspect of Borrowers' respective businesses.
"CLOSING" shall have the meaning ascribed to it in Section 6.2.
"COLLATERAL" shall have the meaning ascribed to it in the Collateral
Documents.
"COLLATERAL DOCUMENTS" shall mean collectively the Security Agreement,
the U.S. Subsidiary Pledge Agreement, the Foreign Subsidiary Pledge
Agreement, the Guarantees, financing statements, mortgages, and such other
agreements, documents and instruments entered into now or in the future or
filed now or in the future to pledge or secure the Collateral.
"COMMITMENT" means, for each Lender, the sum of its Revolving Credit
Commitment.
"COMMITMENT FEE" shall have the meaning ascribed to it in Section
4.1(A).
"COMPLIANCE CERTIFICATE" shall have the meaning ascribed to it in
Section 7.2(C)(ii).
"CREDIT DOCUMENTS" shall mean, collectively, this Agreement and the
Ancillary Agreements.
"DATA PROCUREMENT ASSETS" shall mean those costs that are capitalized
as "data procurement assets" on any Borrower's balance sheet in accordance
with GAAP.
"DEFAULT RATE" shall mean the Base Rate plus 2.00%.
"DIRECT FOREIGN SUBSIDIARIES" shall mean any corporation, partnership,
limited liability company or other legal entity formed under the laws of
any country or territory other than the United States of which any Borrower
owns outstanding voting stock or in which a Borrower holds an equity
interest.
"DIRECT U.S. SUBSIDIARIES" shall mean any corporation, partnership,
limited liability company or other legal entity formed under the laws of
any state or territory of the United States of which a Borrower owns
outstanding voting stock or in which any Borrower hold an equity interest.
"EBITDA" shall mean with reference to any period (i) consolidated net
income (or net deficit) of Borrowers and their respective Subsidiaries for
such period as computed in accordance with GAAP consistently applied, plus
(ii) (a) Interest Expense, without duplication, excluding interest that is
paid in kind for such period, (b) all amounts deducted in arriving at such
net income (net deficit) in respect of federal, state
6
and local income taxes for such period, (c) all amounts properly charged
for depreciation of fixed assets and amortization of intangible assets and
software capitalization during such period on the books of such Persons and
(d) amounts for amortization of data procurement costs, all in accordance
with GAAP.
"EBITDAD" shall mean with reference to any period (i) consolidated net
income (or net deficit) of Borrowers and their respective Subsidiaries for
such period as computed in accordance with GAAP consistently applied, plus
(ii) (a) Interest Expense, without duplication, excluding interest that is
paid in kind for such period, (b) all amounts deducted in arriving at such
net income (net deficit) in respect of federal, state and local income
taxes for such period, (c) all amounts properly charged for depreciation of
fixed assets and amortization of intangible assets and software
capitalization during such period on the books of such Persons and (d)
amortization of data procurement costs, minus (iii) the cash payments made
for the procurement of data, all in accordance with GAAP. For purposes of
calculating EBITDAD for the fiscal quarters ended September 30, 2001,
December 31, 2001 and March 31, 2002, EBITDAD shall be $9,323,000,
$8,243,000 and $1,463,000 respectively.
"ELIGIBLE BILLED RECEIVABLES" means the aggregate amount of all
Accounts of each Borrower arising in the ordinary course of such Borrower's
business as presently conducted, valued at the lowest of invoice (adjusted
for credits, returns or the like), book value or the amount reasonably
expected by such Borrower to be collected from the particular Account
Debtor(s) and payable in U.S. Dollars, less any accounts and related
amounts without duplication :
(i) which remain fully or partially unpaid for more than 90 days
after their respective invoice dates; or
(ii) which are not due and payable in full in accordance with
such Borrower's credit and collection policy as disclosed by such
Borrower to Administrative Agent; provided, however, that regardless
of the terms of such credit and collection policy, no Eligible
Receivable (other than as provided in clause (vi) below) shall have a
payment term which is greater than forty-five (45) days from the date
of its related invoice; or
(iii) which are owed by a particular Account Debtor if
twenty-five percent (25%) or more of the balance owing by such Account
Debtor has not been paid within 90 days of the invoice date; or
(iv) with respect to which the Account Debtor is another Borrower
or is a partner, shareholder, director, officer, employee, or agent of
any such Borrower or is a Subsidiary or other Affiliate of any
Borrower; or
(v) with respect to which payment by the Account Debtor is or may
be conditional, and accounts commonly known as "xxxx and hold" or
accounts with a
7
similar or like arrangement; or
(vi) with respect to which the Account Debtor is not a resident
or citizen of or otherwise located in the United States, or with
respect to which the Account Debtor is not subject to service of
process in the United States, unless such Borrower has furnished
Administrative Agent with a letter of credit or account receivable
insurance in at least the amount of the account acceptable as to form,
substance and issuer to Administrative Agent in its sole discretion,
in which case such receivable may have a payment term not more than
ninety (90) days from the date of its related invoice; or
(vii) with respect to which the Account Debtor is the United
States or any department, agency or instrumentality thereof, unless
all necessary steps are taken to comply with the Assignment of Claims
Act of 1940, as amended; or
(viii) with respect to which such Borrower is liable to the
Account Debtor for goods sold or services rendered by such Account
Debtor to Borrower; or
(ix) with respect to which the goods giving rise thereto have not
been shipped and delivered to and accepted as satisfactory by the
Account Debtor thereof or with respect to which the services performed
giving rise thereto have not been completed and accepted as
satisfactory by the Account Debtor, other than Accounts which are
subject to a long-term written contract which provides, among other
things, advance payment to a Borrower not less frequently than
quarterly; or
(x) arising from a "sale on approval" or "sale or return"; or
(xi) which are subject to any Lien or security interest except in
favor of Administrative Agent, or are "bonded" or similar accounts; or
(xii) which are owed by an Account Debtor which has a dispute
with such Borrower, or as to which any adverse claim, dispute or
litigation relates (including without limitation any claim that any
amounts are not owed to such Borrower), but only in the amount of such
adverse claim, dispute or litigation; or
(xiii) which are owed by an Account Debtor which is located in
Minnesota or New Jersey or any other state denying creditors access to
its courts in the absences of a Notice of Business Activities Report,
unless such Borrower has qualified to do business in such State and
has filed appropriate Notices of Business Activities Reports (or other
appropriate filings) with the appropriate state authorities for the
then current year; or
(xiv) which are owed by an Account Debtor which (a) has filed a
8
petition or (b) is subject to an involuntary petition under any
section or chapter of the United States Bankruptcy Code or any similar
law or regulation or has made a general assignment for the benefit of
its creditors; or
(xv) which fails to meet or violates any warranty, representation
or covenant contained in this Agreement or any related document or
instrument relating directly to Accounts;
(xvi) against which Lenders are not legally permitted to make
advances and all applicable legal requirements with respect to such
Account have not been satisfied; or
(xvii) which Administrative Agent deems, in its reasonable
discretion, to be doubtful in their collection other than for which
adequate reserves have been established.
"ELIGIBLE COLLATERAL LOCATION" shall mean the locations identified on
SCHEDULE 1 attached hereto, together with such other locations as to which
Administrative Agent may, from time to time, reasonably agree.
"ELIGIBLE UNBILLED RECEIVABLES" shall mean any Account attributable to
any Borrower and created by an Account Debtor on account that such Account
Debtor has taken and accepted delivery of goods or services from a Borrower
but has not yet received an invoice stating the amount due for such goods
or services, less any amounts for such Account which remain fully or
partially unbilled for more than fifteen (15) days after acceptance of such
goods or services if Administrative Agent is advancing 50% of the value of
such Accounts or, if Administrative Agent is advancing only 35% of the
value of such Accounts, such 15-day restriction shall apply to Accounts
that have a value equal to or greater than $200,000.
"ENVIRONMENTAL LAWS" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public
health and safety and protection of the environment.
"EQUIPMENT" shall mean all of Borrowers' and their respective
Subsidiaries now owned and hereafter acquired equipment and fixtures,
including without limitation, furniture, machinery, vehicles and trade
fixtures, together with any and all accessories, parts, appurtenances,
substitutions and replacements.
"EQUITY PROCEEDS" shall mean equity proceeds from the exercise of
stock options and the stock associated with IRI's Employee Stock Purchase
Plan, effective as of May 19, 2000, as may be amended from time to time, as
it appears in IRI's consolidated statement of cash flows.
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"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, or any successor thereto.
"EURO" and the symbol "Euro" shall mean the single, lawful currency of
the participating member states of the European Union as constituted by the
Treaty of Rome of March 25, 1957, as amended by the Single European Act of
1986, the Maastricht Treaty of 1992, and the Amsterdam Treaty effective as
of May 1, 1999 and the Nice Treaty, each as amended from time to time.
"EVENT OF DEFAULT" shall mean the occurrence or existence of any one
or more of the events described in Section 8.1.
"FEDERAL FUNDS RATE" shall mean, for any day, the weighted average of
the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as released on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so released for any day which is a Business Day,
the arithmetic average (rounded upwards, if necessary, to the next 1/100th
of 1%), as determined by Administrative Agent, of the quotations for the
day of such transactions received by Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"FEES" shall mean the Commitment Fee, the Letter of Credit Fees, and
such other fees as may be charged to Borrowers in connection with the Loans
or pursuant to the Credit Documents or as set forth in any fee agreement
between Administrative Agent and Borrowers in connection herewith.
"FINANCIALS" shall mean those financial statements of Borrowers and
their respective Subsidiaries described on SCHEDULE 2 and delivered to
Administrative Agent pursuant to Section 7.2(C).
"FIXED CHARGES" shall mean the sum of (i) all principal and Interest
Expense paid to Lenders in any given fiscal quarter, (ii) all investments
made in Subsidiaries (excluding Permitted Acquisitions) and (iii) all cash
payments for the procurement of data, all in accordance with GAAP.
"FOREIGN SUBSIDIARY PLEDGE AGREEMENT" shall mean the Foreign
Subsidiary Pledge Agreement entered into by each Borrower owning stock in a
wholly owned Direct Foreign Subsidiary and Lenders pledging up to 66% of
the stock or equity interest in or to such Direct Foreign Subsidiaries,
substantially in the form attached hereto as EXHIBIT C.
"GAAP" shall mean generally accepted accounting principles as in
effect from time to time, which shall include the official interpretations
thereof by the Financial Accounting Standards Board.
10
"GENERAL INTANGIBLES" shall mean all contract rights, choses in
action, general intangibles, causes of action and all other intangible
personal property of Borrowers and their respective Subsidiaries of every
kind and nature (other than Accounts) now owned or to be acquired by
Borrowers and their respective Subsidiaries. Without in any way limiting
the generality of the foregoing, General Intangibles specifically include
all corporate or other business records, deposit accounts, inventions,
designs, patents, patent applications, trademarks, trademark applications,
service marks, service xxxx applications, trade names, trade secrets,
goodwill, copyrights, registrations, licenses, leasehold interests,
franchises and tax refund claims owned by a Borrower or its subsidiaries
and all letters of credit, banker's acceptances, guarantee claims, security
interests or other security held by or granted to a Borrower or its
Subsidiaries to secure payment by an Account Debtor of any Accounts, letter
of credit rights, payment intangibles, supporting obligations, commercial
tort claims, software and such other assets as Administrative Agent
reasonably determines to be intangible.
"XXXXXX CREDIT FACILITY" shall have the meaning ascribed to it in
Section 6.2(B)(iii).
"XXXXXX LETTERS OF CREDIT" shall have the meaning ascribed to it in
Section 6.2(B)(iii).
"INDEBTEDNESS" shall mean, without duplication, all of Borrowers' and
their respective Subsidiaries' liabilities, obligations and indebtedness to
Administrative Agent or any Lender of any and every kind and nature,
whether primary, secondary, direct, absolute, contingent, fixed, or
otherwise (including interest, charges, expenses, attorneys' fees and other
sums chargeable to a Borrower or its Subsidiaries by Administrative Agent
or any Lender, future advances made to or for the benefit of a Borrower),
whether arising under this Agreement or any Ancillary Agreement, whether
previously, now or to be owing, arising, due, or payable from a Borrower or
its Subsidiaries to Administrative Agent or any Lender, however evidenced,
created, incurred, acquired or owing and however arising, whether under
written or oral agreement, operation of law, or otherwise.
"INDEBTEDNESS FOR BORROWED MONEY" shall mean for any Borrower (without
duplication), the sum of (i) the Indebtedness; (ii) all Liabilities
created, assumed or incurred in any manner by such Person representing
money borrowed (including but not limited to the issuance of debt
securities); (iii) all Liabilities for the deferred purchase price of
property or services (other than trade accounts payable arising in the
ordinary course of business which are not more than sixty (60) days past
due), (iv) all Liabilities secured by any Lien upon property of such
Borrower, whether or not such Borrower has assumed or become liable for the
payment of such liability, (v) all Capitalized Lease Obligations of such
Borrower; and (vi) all obligations of such Borrower on or with respect to
letters of credit, bankers' acceptances and other extensions of credit
whether or not representing obligations for borrowed money.
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"INDEMNIFIED LIABILITIES" shall have the meaning ascribed to it in
Section 9.7.
"INITIAL LETTERS OF CREDIT" shall have the meaning ascribed to it in
Section 6.2(B)(iii).
"INTEREST EXPENSE" shall be determined in accordance with GAAP for any
period, and shall include the sum of all interest charges on Indebtedness
(including imputed interest charges with respect to Capitalized Lease
Obligations and all amortization of debt discount and expense) of Borrowers
and their respective Subsidiaries for such period.
"INTEREST PAYMENT DATE" shall mean: (i) (a) with respect to any Base
Rate Loan, the first Business Day of each calendar month and the date of
any conversion of such Base Rate Loan into a LIBOR Loan, and (b) with
respect to any LIBOR Loan, the last day of the applicable Interest Period;
provided, however, that for any LIBOR Loan having an Interest Period longer
than three months, accrued interest shall also be payable on the last day
of each three-month interval during such Interest Period; and (ii) for all
Loans, (a) the Revolving Credit Termination Date and (b) the date on which
each such Loan is paid in full or otherwise satisfied.
"INTEREST PERIOD" shall mean with respect to any LIBOR Loan (a)
initially, the period commencing on the initial date of borrowing as set
forth in the Notice of Borrowing or the conversion date, as the case may
be, with respect to such LIBOR Loan and ending one, two, three or six
months thereafter, as selected by Borrowers in the Notice of Borrowing or
Notice of Conversion, and (b) thereafter, each period commencing on and
including the first day of the next Interest Period applicable to such
LIBOR Loan and ending one, two, three, or six months thereafter, as
selected by Borrowers in the Notice of Continuance described in Section
2.8(B); provided that the foregoing provisions relating to Interest Periods
are subject to the following:
(i) If any Interest Period would otherwise end on a day which is
not a Business Day, that Interest Period shall be extended to the next
succeeding Business Day except if the result of such extension would
be for such Interest Period to end in another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period of a LIBOR Loan made pursuant to the
Revolving Credit Facility that would otherwise extend beyond the
Revolving Credit Termination Date shall end on the Revolving Credit
Termination Date;
(iii) if Borrowers fail to give notice of the length of the
Interest Period it requests with respect to the LIBOR Loan, it shall
be deemed to have selected a LIBOR Loan of one month; and
(iv) any Interest Period pertaining to a LIBOR Loan that begins
on the
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last Business Day of a calendar month (or a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month.
"INTEREST RATE" shall mean the interest rate determined in accordance
with Section 2.4.
"INVENTORY" shall mean all goods, inventory, merchandise, finished
goods, component goods, packaging materials and other personal property
including goods in transit, wherever located and whether now owned or to be
acquired by any Borrower or any Subsidiary which is or may at any time be
held for sale or lease, furnished under any contract of service or held as
raw materials, work in process, supplies or materials used or consumed in
Borrowers' and their respective Subsidiaries' business, and all such
property the sale or other disposition of which has given rise to Accounts
and which has been returned to or repossessed or stopped in transit by a
Borrower.
"IRI" shall mean Information Resources, Inc., a Delaware corporation.
"IRI REPRESENTATIVE" shall mean an authorized officer of IRI (or such
officer's designee) selected by IRI to be the liaison between all Borrowers
and Administrative Agent who shall, among other things, handle all requests
for Loans, including Alternative Currency Advances.
"ISSUANCE REQUEST" shall have the meaning ascribed to it in Section
3.4.
"ISSUING LENDER" shall mean any Lender in its capacity as issuer of
any Letter of Credit.
"LASALLE" shall have the meaning ascribed to it in the introduction.
"LETTER OF CREDIT" shall mean any letter of credit issued by the
Issuing Lender for the account of a Borrower in accordance with Section
3.1.
"LETTER OF CREDIT BENEFICIARIES" shall mean Fairfield Merritview Ltd.
Partnership, Boston Properties, Xxxxxxxx / Xxxxxxx Ltd. Partnership, Sentry
Insurance and Wellsford Greenbrook Corp.
"LETTER OF CREDIT EXPIRY DATE" shall mean, with respect to any Letter
of Credit, the date which is the earlier of (i) one (1) year after the date
of issuance thereof or (ii) twenty-five (25) days prior to the Revolving
Credit Termination Date.
"LETTER OF CREDIT FEES" shall have the meaning ascribed to it in
Section 3.6.
"LETTER OF CREDIT OBLIGATIONS" shall mean, as at the time of
determination thereof, the sum of (a) the Reimbursement Obligations then
outstanding and (b) the
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aggregate then undrawn face amount of the then outstanding Letters of
Credit.
"LETTER OF CREDIT SUBLIMIT" shall mean an aggregate amount of
$5,000,000. For purposes of calculation the Letter of Credit Sublimit, the
Initial Letters of Credit shall be included but the Xxxxxx Letters of
Credit shall be excluded.
"LEVERAGE RATIO" shall mean, as of any day, the ratio of the then
current amount of the consolidated funded Indebtedness for Borrowed Money
less: (i) any cash recorded on the consolidated balance sheet of Borrowers
and held in U.S. banks or held at ABN AMRO in the United Kingdom, (ii) all
Liabilities for the deferred purchase price of property or services (other
than trade accounts payable arising in the ordinary course of business
which are not more than sixty (60) days past due) and (iii) all Liabilities
secured by any Lien upon property of any Borrower, whether or not any
Borrower has assumed or become liable for the payment of such liability, to
consolidated EBITDAD, as of the end of the most recent fiscal quarter of
Borrowers based on the previous twelve (12) months.
"LIABILITIES" shall mean, without duplication, all of Borrowers' or
their respective Subsidiaries' liabilities, obligations and indebtedness to
all Persons of any and every kind and nature, whether primary, secondary,
direct, indirect, absolute, contingent, fixed, or otherwise, previously,
now or to be owing, due, or payable, however evidenced, created, incurred,
acquired or owing and however arising, whether under written or oral
agreement, by operation of law, or otherwise. Without in any way limiting
the generality of the foregoing, Liabilities specifically includes (i) the
Indebtedness or other Indebtedness for Borrowed Money, (ii) all obligations
or liabilities of any Person that are secured by any Lien, claim,
encumbrance, or security interest upon property owned by a Borrower or a
Subsidiary, even though such Borrower or such Subsidiary has not assumed or
become liable for the payment thereof, (iii) all obligations or liabilities
created or arising under any lease of real or personal property (including
Capitalized Lease Obligations, but excluding operating leases), or
conditional sale or other title retention agreement with respect to
property used or acquired by a Borrower or a Subsidiary, even though the
rights and remedies of the lessor, seller or lender thereunder are limited
to repossession of such property, (iv) all unfunded pension fund
obligations and liabilities and (v) deferred Taxes.
"LIBOR LOAN" shall mean any Loan (or portion thereof) bearing interest
at the LIBOR Rate, as designated by Borrowers in a Notice of Borrowing,
Notice of Conversion or Notice of Continuance.
"LIBOR RATE" shall mean, with respect to each Interest Period for any
LIBOR Loan, the rate of interest per annum equal to the quotient of (i) the
rate of interest per annum (expressed as a whole number) at which deposits
in Dollars in immediately available funds are offered to Administrative
Agent at approximately 11:00 a.m. (London, England time) two (2) Business
Days prior to the beginning of such Interest Period in the London interbank
eurodollar market for a period equal to such Interest
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Period and in a Dollar amount equal or comparable to the principal amount
of such LIBOR Loan, divided by (ii) a number equal to 1.0 minus the daily
average for the applicable Interest Period of the maximum rate (expressed
as a decimal) at which reserves (including basic, supplemental, marginal
and emergency reserves) are imposed during such Interest Period by the
Board (or any successor) under Regulation D on "eurocurrency liabilities"
as defined in such Board's Regulation D (or in respect of any other
category of liabilities that includes deposits by reference to which the
interest rate on the LIBOR Loans is determined by any category of extension
of credit or other assets that includes loans by non-United States offices
of any lender to United States residents) subject to any amendments of such
reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto (such LIBOR Rate to be adjusted to the
next higher 1/16 of one percent). For purposes of this definition, the
LIBOR Loans shall be deemed to be "eurocurrency liabilities" as defined in
Regulation D.
"LIEN" means any mortgage, pledge or lease of, security interest in or
lien, charge, restriction or encumbrance on any Property of the Person
involved in favor of or which secures any obligation to, any other Person.
"LOAN" shall mean any advance made by Lenders to Borrowers under the
Revolving Credit Facility.
"LOCKBOX" shall have the meaning ascribed to it in Section 4.5.
"LOCKBOX AGREEMENT" shall have the meaning ascribed to it in Section
4.5.
"MASTER LETTER OF CREDIT AGREEMENT" shall mean a Master Letter of
Credit Agreement substantially in the form of EXHIBIT L hereto as such form
may be amended by LaSalle from time to time and a letter of credit
application and reimbursement agreement in such form as the Issuing Lender
may from time to time employ in the ordinary course of business in
connection with this Revolving Credit Facility.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on (a)
the business, assets, property, condition (financial or otherwise) or
prospects of taken as a whole, or (b) the validity or enforceability of
this Agreement or any Ancillary Agreements or the rights and remedies of
Administrative Agent and Lenders thereunder.
"MEMORANDUM OF UNDERSTANDING" shall have the meaning ascribed to it in
Section 6.2(C)(xx).
"MORTGAGE" shall mean with respect to each Owned Property, a Mortgage
creating a valid, perfected first priority lien and security interest in
such Owned Property in favor of Lenders.
"NON-FUNDING LENDER" shall have the meaning ascribed to it in Section
4.8.
15
"NOTES" shall mean, collectively, each Note to be executed and
delivered by Borrowers to each Lender at the Closing on terms described in
Section 2.2, the forms of which are attached hereto as EXHIBITS A-1 AND
A-2.
"NOTICE OF BORROWING" shall mean a Notice of Borrowing described in
Section 2.5.
"NOTICE OF CONTINUANCE" shall mean a Notice of Continuance described
in Section 2.8(B).
"NOTICE OF CONVERSION" shall mean a Notice of Conversion described in
Section 2.8(A).
"PARTICIPANT" shall mean any Person, now or at any time or times to
be, participating with any Lender in the Loans made by such Lender to
Borrowers pursuant to this Agreement and the Ancillary Agreements.
"PERCENTAGE" shall mean, as to any Lender, the percentage which such
Lender's Revolving Credit Commitment is of the Aggregate Revolving Credit
Commitments, as reflected in the records of Administrative Agent. If the
Revolving Credit Commitments have terminated, such Lender's "Percentage" of
the Revolving Credit Commitments shall be deemed to be the percentage which
the aggregate amount of such Lender's outstanding Loans to Borrowers plus
all Reimbursement Obligations of Borrowers to such Lender is of the
aggregate amount of all of Lenders' outstanding Revolving Credit Loans to
Borrowers plus the aggregate amount of all Reimbursement Obligations of
Borrowers to all of Lenders.
"PERMITTED ACQUISITION" shall mean the acquisition by any Borrower of
(i) a controlling voting interest of any Person or (ii) substantially all
the assets of any Person, up to maximum consideration (including assumption
of debt) of $4,000,000 per acquisition or $10,000,000 in the aggregate,
provided, that (w) such acquisition is in a similar or related business as
currently being conducted by Borrowers, (x) no Event of Default has
occurred or is occurring, (y) such acquisition is a non-hostile
transaction, and (z) after such acquisition, Borrowers have the ability to
draw not less than $15,000,000 under the Revolving Credit Facility without
exceeding the Total Available Credit.
"PERMITTED DEBT" shall mean:
(i) the Indebtedness;
(ii) current unsecured Liabilities arising in the ordinary course
of business of Borrowers and their respective Subsidiaries, including
trade payables, utility costs, payroll and benefit obligations,
accrued tax liabilities and other non-extraordinary accounts payable
but excluding other Indebtedness for Borrowed Money;
16
(iii) Liabilities incurred by Borrowers to any Person at a time
no Event of Default exists constituting Capitalized Lease Obligations
provided that the aggregate amount owed during the term of such leases
at any time does not exceed the Capitalized Lease Obligations Limit;
and
(iv) any hedging obligations for the purpose of managing
Alternative Currency transactions and not for speculative purposes, as
determined by Administrative Agent in its sole discretion; and
(v) such other Liabilities as are outstanding on the date hereof
and described on SCHEDULE 3 and SCHEDULE 10 attached hereto.
"PERMITTED LIENS" shall mean:
(i) Liens in favor of Administrative Agent, whether granted under
or established by this Agreement, the Ancillary Agreements, or
otherwise;
(ii) subject to Section 7.4, Liens for taxes, assessments or
other governmental charges incurred by a Borrower or any of its
Subsidiaries in the ordinary course of business and for which no
interest, late charge or penalty is attaching or which are being
contested in good faith by appropriate proceedings diligently pursued
and for which adequate reserves in accordance with GAAP shall have
been set aside on its books;
(iii) Liens, not delinquent, incurred by a Borrower or its
Subsidiaries in the ordinary course of business created by statute in
connection with worker's compensation, unemployment insurance, social
security, old age pensions (subject to the applicable provisions of
this Agreement) and similar statutory obligations;
(iv) Liens incurred by a Borrower or its Subsidiaries in favor of
mechanics, materialmen, carriers, warehousemen, landlords or repairmen
or other like statutory or common law Liens securing obligations
incurred in good faith in the ordinary course of business that are not
overdue for a period of more than thirty (30) days or which are being
contested in good faith;
(v) Liens filed in favor of any lessor with respect to any
Capital Lease Obligation;
(vi) pledges and deposits to secure the performance of bids,
tenders, trade contracts (other than for borrowed money), leases
(other than capital leases), utility purchase obligations, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
17
(vii) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of property or minor imperfections in title
thereto;
(viii) Liens in favor of the Senior Lienholders under the Xxxxxx
Credit Facility with respect to the Xxxxxx Letters of Credit, until
terminated; and
(ix) any existing Liens identified in SCHEDULE 4 hereto to secure
Liabilities outstanding as of the date hereof.
"PERMITTED SALE" shall mean an Asset Sale or series of Asset Sales, or
a sale or series of sales of capital stock which shall not exceed, in the
aggregate during the Revolving Credit Term, more than 10% of the aggregate
total consolidated assets of IRI, as determined by Administrative Agent.
"PERSON" shall, mean and includes natural persons, corporations
(business, municipal or not-for-profit), limited partnerships, general
partnerships, limited liability companies, joint stock companies, joint
ventures, associations, companies, trusts, banks, trust companies, land
trusts, business trusts and other organizations, whether or not legal
entities, and governments and agencies and political subdivisions thereof.
"POUND STERLING" and the symbol "(POUND)" shall mean the lawful
currency of the United Kingdom.
"PRIME RATE" shall mean the rate per annum equal to the prime rate of
interest announced by LaSalle from time to time as its "prime rate."
"PROPERTY" means any and all rights, titles and interests in and to
any and all property whether real or personal, tangible (including cash) or
intangible, and wherever situated and whether now owned or hereafter
acquired.
"REIMBURSEMENT OBLIGATIONS" shall mean all amounts owed by any
Borrower to the Issuing Lender or any other Lender (whether or not
evidenced by any note or instrument), direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising,
representing the principal of and interest on payments made by the Issuing
Lender or any other Lender under or in connection with any Letter of
Credit, including but not limited to, all unpaid drawings, fees, premiums,
expenses, attorneys' fees, accountants' fees, capital adequacy charges,
increased costs and similar costs and expenses owed or payable under this
Agreement or any Letters of Credit, including but not limited to, the fees
set forth in Section 3.6 hereof.
"REPORTABLE EVENT" shall have the meaning ascribed to it in Section
5.1(P).
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"REQUIRED LENDERS" shall mean, if there are two Lenders, Lenders
having an aggregate percentage of 100% of the Commitments, and if there are
more than two Lenders (other than Non-Funding Lenders), such Lenders having
aggregate percentages of 75% or more, or if the Commitments have been
terminated, 75% of the aggregate outstanding principal amount of the
outstanding Loans and Reimbursement Obligations.
"REVOLVING CREDIT COMMITMENT" shall have the meaning ascribed to it in
Section 2.1.
"REVOLVING CREDIT FACILITY" shall have the meaning ascribed to it in
Section 2.1.
"REVOLVING CREDIT TERM" shall mean the period of time in which the
Revolving Credit Facility is available to Borrowers.
"REVOLVING CREDIT TERMINATION DATE" shall mean July 12, 2005.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"SECURITY AGREEMENT" shall mean the Security Agreement executed and
delivered by Borrowers on the Closing Date in favor of Lenders, in
substantially the form of EXHIBIT B, pursuant to which Borrowers grant
Lenders (i) a security interest in the Collateral described in such
Security Agreement, including, but not limited to, all the capital stock of
each wholly owned Direct U.S. Subsidiary and (ii) all the assets and
properties of each Borrower.
"SENIOR LIENHOLDERS" shall have the meaning ascribed to it in Section
6.2(c)(xi).
"SOLVENT" shall mean with respect to any Person on a particular date,
that on such date (a) the fair salable value of its property is greater
than the fair present value of its liabilities (including for purposes of
this definition all liabilities whether reflected on a balance sheet
prepared or otherwise and whether direct or indirect, fixed or contingent,
secured or unsecured, disputed or undisputed) and (b) the fair salable
value of its assets is not less than the amount that will be required to
pay the probable liability on its debts as they become absolute and
matured. The amount of contingent liabilities (such as litigation,
guarantee and pension plan liabilities) at any time shall be computed as
the amount which, in light of all the facts and circumstances existing at
the time, represents the amount which can be reasonably be expected to
become an actual or matured liability.
"SUBORDINATED DEBT" shall mean all Liabilities which are expressly
subordinated to the Indebtedness of Lenders.
"SUBSIDIARY" shall mean, as to any Person (a) any corporation, more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at
19
the time stock of any class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency) is
at the time owned by such Person and/or one or more Subsidiaries of such
Person and (b) any partnership, association, joint venture, or other entity
in which such Person and/or one or more Subsidiaries of such Person has
greater than a 50% equity interest at the time.
"SYNDICATION AGENT" shall have the meaning ascribed such term in the
introduction.
"TANGIBLE NET WORTH" shall mean the Total Net Assets, as determined on
a consolidated basis, excluding: (i) assets which would be classified as
goodwill, (ii) any fluctuations in Borrowers' foreign currency translation
gains and losses that occur subsequent to December 31, 2001 and (iii) any
adjustment with respect to the adoption of FAS 144 relating to asset
impairment at the German and Netherlands Subsidiaries for the Data
Procurement Assets capped at $14,000,000 and only for fiscal year 2002.
"TAXES" shall mean for any fiscal year the federal, state, local and
foreign taxes payable by each Borrower and their respective Subsidiaries.
"TOTAL AVAILABLE CREDIT" shall mean at any time, the lesser of (i) the
Aggregate Revolving Credit Commitments and (ii) the Borrowing Base, as
determined and based on the most recent Borrowing Base Certificate.
"TOTAL NET ASSETS" shall mean total assets of Borrowers and their
respective Subsidiaries less total Liabilities of Borrowers and their
respective Subsidiaries, in accordance with GAAP.
"UCC" shall have the meaning ascribed to it in Section 1.3.
"UNITED STATES" and "U.S." shall each mean the United States of
America.
"U.S. DOLLARS" and the symbol "$" shall mean the lawful currency of
the United States.
"U.S. SUBSIDIARY PLEDGE AGREEMENT" shall mean the U.S. Subsidiary
Pledge Agreement entered into by IRI pledging all of the stock or equity
interest owned by IRI in or to its wholly owned Direct U.S. Subsidiaries,
substantially in the form attached hereto as EXHIBIT D.
1.2 ACCOUNTING TERMS. Any accounting terms used in this Agreement which are
not specifically defined shall have the meanings customarily given them in
accordance with GAAP.
1.3 OTHER TERMS. All other terms, whether or not capitalized, contained in
this Agreement which are not otherwise defined in this Agreement shall, unless
the context indicates otherwise, have the meanings provided for by the Uniform
Commercial Code of the State of
20
Illinois (the "UCC") in effect from time to time, to the extent the same are
used or defined therein.
1.4 INTERPRETATION. In this Agreement and each Ancillary Agreement, unless
a clear contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by such documents, and reference to a Person in a particular
capacity excludes such Person in any other capacity;
(iii) reference to either gender includes the other gender;
(iv) reference to any agreement (including this Agreement and the
schedules and exhibits and the Ancillary Agreements) documents or
instruments means such agreement, document or instrument as amended,
modified, supplemented or replaced from time to time in accordance with the
terms thereof and, if applicable, the terms hereof and the Ancillary
Agreements, and reference to any promissory note includes any promissory
note which is an extension or renewal thereof or a substitute or
replacement therefor;
(v) reference to any law, rule, regulation, order, decree,
requirement, policy, guideline, directive or interpretation means as
amended, modified, codified, replaced or reenacted, in whole or in part,
and in effect on the determination date, including rules and regulations
promulgated thereunder;
(vi) reference to any article, section, paragraph, clause, other
subdivision of this Agreement, Schedule or Exhibit means such Article,
Section, paragraph, clause or other subdivision of this Agreement or
Schedule or Exhibit to this Agreement;
(vii) "hereunder," "hereof," "hereto" and words of similar import
shall be deemed references to this Agreement as a whole and not to any
particular Article, Section or other provision hereof;
(viii) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding such
term;
(ix) relative to the determination of any period of time, "from" means
"from and including" and "to" means "to but excluding"; and
(x) references herein to any Subsidiary shall apply only during such
times as a Borrower has any Subsidiary.
21
1.5 MULTIPLE BORROWERS Borrowers hereby designate IRI to act on behalf of
Borrowers for all purposes under this Agreement, including the requesting of
Loans hereunder, and reduction of any Commitment, and any delivery requirements
under Section 6. Notice when given to IRI shall be sufficient notice to
Borrowers. Any document delivered to IRI shall be considered delivered to each
of Borrowers.
2. CREDIT FACILITY; ALTERNATIVE ADVANCES; GENERAL TERMS.
2.1 REVOLVING CREDIT FACILITY. Each Lender, severally and not jointly,
agrees, on the terms and conditions hereinafter set forth, to make available for
Borrowers' use, from time to time until the Revolving Credit Termination Date,
upon request of Borrowers in accordance with Section 2.5(A), a revolving line of
credit (the "REVOLVING CREDIT FACILITY") in an aggregate amount not to exceed
the Total Available Credit. Each Lender agrees to participate in the Revolving
Credit Facility in the amount set forth opposite the Lender's name in SCHEDULE A
(with respect to each Lender, the "REVOLVING CREDIT COMMITMENT") as may be
modified from time to time. From the date hereof until the Revolving Credit
Termination Date, the Revolving Credit Facility may be utilized by borrowing,
repaying and reborrowing the Loans thereunder.
2.2 EVIDENCE OF DEBT. The Revolving Credit Facility and the Loans made by
each Lender to Borrowers thereunder shall be evidenced by a Note payable to the
order of such Lender, which note shall be in one of the forms attached hereto as
either EXHIBITS A-1 AND A-2 in an amount equal to such Lender's Revolving Credit
Commitment.
2.3 LOAN ACCOUNTS; AMOUNT AND MAINTENANCE OF LOANS; INTEREST RATE NOT
DETERMINED.
(A) Loan Accounts. Administrative Agent, on behalf of Lenders, shall
record on its books and records the amount of each Loan made, the interest
rate applicable, all payments of principal and interest thereon and the
principal balance thereof from time to time outstanding, and such record
shall, absent demonstrable error, be conclusive evidence of the amount of
the Loans made by Lenders to Borrowers and the interest and payments
thereon. Any failure to record or any error in doing so shall not, however,
limit or otherwise affect the obligation of Borrowers hereunder (and under
any Note) to pay any amount owing with respect to the Loans.
(B) Amount and Maintenance of Loans. The Loans may be made and
maintained as (i) Base Rate Loans, (ii) LIBOR Loans, or (iii) a combination
of Base Rate Loans and LIBOR Loans. The aggregate principal amount of each
LIBOR Loan, whether new, converted or continued, shall not be less than
$500,000. More than one borrowing may occur on the same date, but at no
time shall there be outstanding more than five (5) LIBOR Loans in the
aggregate under the Revolving Credit Facility. The amount of any Loan is
also subject to the limits contained in Section 2.1. No LIBOR Loan shall be
made at any time an Event of Default shall exist.
22
(C) Inability to Determine Interest Rate. In the event, and on each
occasion, that on the day two (2) Business Days prior to the commencement
of any Interest Period for a LIBOR Loan, Administrative Agent shall have
determined in good faith (which determination shall be conclusive and
binding upon Borrowers) that currency deposits in the amount of such LIBOR
Loan are not generally available in the London interbank market, or that
the rate at which such currency deposits are being offered will not
adequately and fairly reflect the cost to Administrative Agent of
maintaining the principal amount of such LIBOR Loan during such Interest
Period, Administrative Agent shall promptly, after such determination shall
have been made, give facsimile notice of such determination to Borrowers
and Lenders, and, until Administrative Agent shall notify Borrowers and
Lenders that the circumstances giving rise to such notice no longer exist,
any request by Borrowers for the making of, conversion to or continuation
of a LIBOR Loan shall be deemed to be a request for a Base Rate Loan.
Administrative Agent shall use its reasonable efforts to notify Borrowers
of a change in the circumstances causing the LIBOR Loan to be unavailable
but shall not incur any liability for any failure to so notify Borrowers.
2.4 INTEREST RATE; APPLICABLE MARGIN.
(A) Unless otherwise provided in writing evidencing such Indebtedness,
Borrowers agree, jointly and severally, to pay Administrative Agent, for
the benefit of each Lender, interest on the outstanding principal balance
of the Loans from time to time at a rate equal to (i) with respect to Base
Rate Loans, the Base Rate plus the Applicable Margin and (ii) with respect
to LIBOR Loans, the LIBOR Rate plus the Applicable Margin. The records of
Administrative Agent as to the interest rate applicable to a particular
advance shall be binding and conclusive absent manifest error. Interest
shall be payable from the date of such advance of the Loan to the day of
repayment of such advance. Interest shall be computed on the basis of a
year of 360 days and actual days elapsed and shall be payable as provided
in Section 4.2. Administrative Agent, for the ratable benefit of each
Lender, reserves the right to charge Borrowers' checking account(s) for
accrued interest on the applicable Interest Payment Date.
(B) Changes in the Prime Rate charged under this Agreement on Base
Rate Loans shall take effect on the date of each change in the Prime Rate
without further notice by LaSalle to Borrowers. The Prime Rate is not
necessarily the lowest rate of interest charged by LaSalle in connection
with extensions of credit.
(C) Except as set forth below, the Applicable Margin for any Loan
shall be based on the Compliance Certificate in effect at the time a
Borrower requests a Loan. Each Compliance Certificate becomes effective on
the date such Compliance Certificate is delivered. If Borrowers deliver a
new Compliance Certificate while any Base Rate Loan is outstanding, the new
Applicable Margin set forth in the Compliance Certificate shall apply to
all outstanding Base Rate Loans and any new Base Rate Loans or new LIBOR
Loans. If, however, Borrowers deliver a new Compliance Certificate while
any LIBOR Loan is outstanding, the new Applicable Margin set forth in the
Compliance
23
Certificate shall not become effective until the term on such LIBOR Loan
has expired.
2.5 BORROWING PROCEDURES. In order to effect a Loan under the Revolving
Credit Facility, a Borrower shall notify the IRI Representative who, in turn,
will give Administrative Agent irrevocable written notice (in form and substance
acceptable to Administrative Agent) or irrevocable telephone notice (promptly
confirmed by such written notice by facsimile) not later than 11:00 a.m.,
Chicago time, on (i) the proposed borrowing date in the case of Base Rate Loans,
and (ii) the second Business Day prior to the proposed borrowing date in the
case of LIBOR Loans (the "NOTICE OF BORROWING"). All requests for Loans shall be
requested through the IRI Representative. Borrowers hereby authorize
Administrative Agent and each Lender to extend advances and make Loans to
Borrowers based on written notice from the IRI Representative. Each Notice of
Borrowing shall specify (i) the principal amount of the Loan to be made pursuant
to such borrowing and the date of such borrowing (which shall be a Business
Day), (ii) whether the Loan is to be maintained as a Base Rate Loan or a LIBOR
Loan and, if a LIBOR Loan, the initial Interest Period to be applicable thereto,
and (iii) instructions for the disbursement of the proceeds of the proposed
Loan. Promptly after receipt of such written request, Administrative Agent shall
advise each Lender thereof. Not later than 2:30 p.m., Chicago time, on the date
of a proposed borrowing, each Lender shall provide Administrative Agent, at the
principal office of Administrative Agent in Chicago, with immediately available
funds equal to such Lender's pro rata share of the borrowing, and subject to
receipt by Administrative Agent of the documents required under Section [6.2(B)]
with respect to such borrowing, if any are required, Administrative Agent shall
pay over such funds received by it to the Borrower identified in the Notice on
Borrowing on the requested borrowing date or, if a LIBOR Loan, the second
Business Day after delivery of the Notice of Borrowing.
2.6 ALTERNATIVE CURRENCY ADVANCES.
(A) General. At the time a Borrower makes a request for a Loan, such
Borrower shall have the option to request such Loan be in the form of an
Alternative Currency; provided, however, that at no time shall Borrowers
have received Alternative Currency Advances in an amount that exceeds the
Alternative Currency Sublimit, which excess shall be subject to Section
4.4(B). The Alternative Currency Sublimit shall not affect Borrowers'
ability to draw up to the Total Available Credit.
(B) Interest Rate. Alternative Currency Advances shall be bear
interest at the LIBOR Rate plus the Applicable Margin for other LIBOR
Loans; provided, however, in the event the a LIBOR Rate is unavailable as
described in Section 2.3(C) or Section 2.10, all outstanding Alternative
Currency Advances shall convert to U.S. Dollars, bear interest at the Base
Rate and be deemed Base Rate Loans. All the provisions set forth in Section
2.4 with respect to non-Alternative Currency Advances shall apply to
Alternative Currency Advances
(C) Method of Borrowing. Promptly after receipt of an Alternative
Currency Notice of Borrowing, Administrative Agent shall notify each Lender
by telex or telecopy, or other similar form of transmission, of the
proposed Alternative Currency
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Advance. Any notice given pursuant to Section 2.6 shall be irrevocable. On
each proposed borrowing date, which shall be not be earlier than 11:00
a.m., Chicago time, on the third Business Day following the delivery of the
Alternative Currency Notice of Borrowing, Administrative Agent shall advise
each Lender thereof and not later than 3:00 p.m., Chicago time, on the date
of a proposed borrowing, each Lender shall provide Administrative Agent's
Alternative Currency Payment Office with immediately available funds in the
Alternative Currency equal to such Lender's Percentage of the borrowing.
Promptly upon making any Alternative Currency Advance, Administrative Agent
shall cause Administrative Agent's Alternative Currency Payment Office
shall give written notice to Administrative Agent by telex or telecopy of
the making of such Alternative Currency Advance, who shall, in turn, notify
the other Lenders.
(C) Repayment. On the Revolving Credit Termination Date, all
Alternative Currency Advances shall be paid in full by Borrowers.
(D) Conversion of Alternative Currency Advances. Immediately and
automatically upon the occurrence of an Event of Default, all Alternative
Currency Advances shall be converted to and redenominated in U.S. Dollars
equal to the dollar amount of each such Alternative Currency Advance
determined as of the date of such conversion, provide, that to the extent
such conversion shall occur other than at the end of the applicable
Interest Period, Borrowers shall pay to Administrative Agent all losses and
costs related thereto.
2.7 GENERAL PROVISIONS.
(A) One Loan. All Loans and advances by each Lender to Borrowers under
the Credit Documents, including Alternative Currency Advances, shall
constitute one loan and all indebtedness and obligations of Borrowers to
all of Lenders under the Credit Documents shall constitute one general
obligation secured pursuant to the Collateral Documents.
(B) Events of Default. Each Lender may, in its sole discretion,
refrain from making any Loans or extensions of credit to Borrowers under
this Agreement after the occurrence and during the continuation of an Event
of Default.
2.8 CONVERSION OPTIONS; CONTINUANCE.
(A) Conversion Requirements. Provided that no Event of Default has
occurred and is continuing and subject to the terms and conditions of this
Agreement, Borrowers may elect from time to time to convert a Base Rate
Loan, or any portion thereof, to a LIBOR Loan by Borrowers' giving
Administrative Agent at least two (2) Business Days' prior irrevocable
written notice of conversion, which notice must be in form and substance
acceptable to Administrative Agent and received by Administrative Agent
prior to 11:00 a.m. (Chicago time) (the "NOTICE OF CONVERSION"). If the
date on which a Base Rate Loan is to be converted to a LIBOR Loan is not a
Business Day, then
25
such conversion shall be made on the next succeeding Business Day, and
during the period from such date to such succeeding Business Day, such Base
Rate Loan shall bear interest as if it were a Base Rate Loan. All or any
part of outstanding borrowings may be converted as provided herein. Subject
to the terms and conditions of this Agreement, Borrowers may convert a
LIBOR Loan into a Base Rate Loan by Borrowers' giving Administrative Agent
a Notice of Conversion not later than 11:00 a.m. (Chicago time) on the
desired conversion date. Promptly upon receipt of each Notice of
Conversion, Administrative Agent shall advise each Lender thereof.
(B) Continuance. Any LIBOR Loan may be continued as such, in whole or
in part, upon the expiration of an Interest Period with respect thereto if
Borrowers give Administrative Agent irrevocable written notice of
continuance which notice must be in form and substance acceptable to
Administrative Agent and received by Administrative Agent prior to 11:00
a.m. (Chicago time), at least two (2) Business Days prior to the date of
expiration of the Interest Period expiring with respect to the LIBOR Loan
which is requested to be continued, specifying (i) the LIBOR Loan, or
portion thereof, requested to be continued; (ii) the date of expiration of
the Interest Period expiring with respect to the LIBOR Loan, or portion
thereof, which is requested to be continued; and (iii) the length of the
Interest Period with respect to such LIBOR Loan, or portion thereof, after
the continuation thereof (the "NOTICE OF Continuance"); provided, that no
LIBOR Loans may be continued as such when any Event of Default has occurred
and is continuing, but shall be automatically converted to a Base Rate Loan
on the last day of the Interest Period for such Loan. If Borrowers do not
comply with the notice provisions of this clause (B), such LIBOR Loan shall
be automatically converted to a Base Rate Loan upon the expiration of the
Interest Period with respect thereto. Promptly upon receipt of each Notice
of Continuance, Administrative Agent shall advise each Lender thereof.
(C) Restatement of Representations and Warranties. Any Notice of
Conversion or Notice of Continuance delivered pursuant to this Section 2.8
shall be deemed to be a representation that all of the representations and
warranties of Borrowers contained in this Agreement shall then be true and
correct in all material respects as if made on such date, except to the
extent that such representations and warranties expressly relate to an
earlier date, and that no Event of Default shall have occurred and be
continuing.
2.9 REQUIREMENTS OF LAW.
(A) Increased Costs. Notwithstanding any other provisions herein, in
the event that the introduction of or any change in any law, rule,
regulation, treaty or directive or in any codified interpretation or
application thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or
other governmental authority, agency or instrumentality or regulatory body:
(i) subjects such Lender to any tax of any kind whatsoever with
respect to the Credit Documents or the Loans made hereunder, or
changes the
26
basis of taxation of payments to such Lender of principal, interest or
any other amount payable hereunder (except for changes in the rate of
tax imposed on the overall net income of such Lender by the United
States, any state or subdivision thereof);
(ii) imposes, modifies, holds applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (which is not
otherwise included in the determination of the LIBOR Rate hereunder);
or
(iii) imposes on any Lender or the London interbank market any
other condition affecting this Agreement or the LIBOR Loans made by
such Lender;
and the result of any of the foregoing is to increase the cost to such
Lender of agreeing to make, making, continuing or maintaining or
participating in LIBOR Loans, or to reduce any amount receivable to such
Lender thereunder then, in any such case, Borrowers agree, jointly and
severally, to pay such Lender, within 15 days after demand by such Lender,
any additional amounts necessary to compensate such Lender on an after-tax
basis for such additional cost or reduced amount receivable or increased
withholding taxes payable which such Lender deems to be material as
determined by such Lender with respect to this Agreement, the Notes, the
other Ancillary Agreements or the Loans made hereunder. Notwithstanding the
preceding, such Borrower shall not be required to pay any such additional
costs if caused by the gross negligence or willful misconduct of
Administrative Agent or such Lender.
(B) Capital Adequacy. In the event that any Lender shall have
reasonably determined that the adoption of any law, rule, regulation,
treaty or guideline regarding capital adequacy, or any change in any of the
foregoing or in the interpretation or application of any of the foregoing
or compliance by such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central
bank or other governmental authority, agency or instrumentality or
regulatory body, does or shall have the effect of reducing the rate of
return on such Lender's or its parent's capital as a consequence of its
obligations under this Agreement to a level below that which such Lender or
such parent could have achieved but for such adoption, change, or
compliance (taking into consideration such Lender's or such parent's
policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, after submission by such
Lender to Borrowers of a written request therefor, Borrowers agree, jointly
and severally, to pay to such Lender, within fifteen (15) days after its
demand, such additional amount or amounts as will compensate such Lender or
such parent on an after-tax basis for such reduction; provided that such
Lender is charging such amounts to similarly situated borrowers.
(C) Certificate for Claim. If any Lender or its parent becomes
entitled to claim any additional amounts pursuant to this Section 2.9, it
shall promptly notify
27
Borrowers, Administrative Agent and the other Lenders of the event by
reason of which it has become so entitled. A certificate setting forth in
reasonable detail any additional amounts payable pursuant to the foregoing
sentence submitted by such Lender or its parent shall be conclusive and
binding on Borrowers in the absence of manifest error.
(D) No Waiver. Failure on the part of any Lender or its parent to
demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with respect to
any period shall not constitute a waiver of such Person's right to demand
compensation with respect to such period or any other period. The
protection of this Section 2.9 shall be available to such Person regardless
of any possible contention of the invalidity or inapplicability of the law,
rule, regulation, guideline or other change or condition which shall have
occurred or been imposed; provided, however, that if such Person shall have
recouped any amount theretofore paid to it by Borrowers under this Section
2.9, such Lender shall promptly pay to Borrowers an amount equal to
recoupment so received by such Person, as determined in good faith by such
Person.
(E) Replacement of Lenders. If any Lender determines in accordance
with Section 2.9 that, due to illegality, it is unable to make or maintain
a LIBOR Loan or requests reimbursement under this Section 2.9, or if any
Lender becomes a Non-Funding Lender, then Borrowers may, at their sole
expense and effort, upon notice to such Lender and Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance
with and subject to the restrictions contained in Section 9.2), all its
interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if
such Lender accepts such assignment); provided, that (i) Borrowers shall
have received the prior written consent of Administrative Agent, which
consent shall not be unreasonably withheld (ii) such Lender shall have
received payment of an amount equal to the outstanding principal amount of
its Loans (and unpaid Reimbursement Obligations), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest
and fees) or Borrowers (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under
this Section 2.9 such assignment will not result in a reduction of such
reimbursement. Notwithstanding the preceding, such Borrower shall not be
required to pay any such additional costs if caused by the gross negligence
or willful misconduct of Administrative Agent or such Lender.
2.10 ILLEGALITY. Any Lender may make or maintain LIBOR Loans at or for the
credit of any branch, subsidiary or affiliate office inside or outside the
United States or any international banking facility within the United States, as
such Lender may elect from time to time. Notwithstanding any other provisions
herein, if any law, rule, regulation, treaty or directive or any change therein
or in the interpretation or application thereof, shall make it unlawful for such
Lender to maintain LIBOR Loans as contemplated by this Agreement, the agreement
of such Lender to make or maintain LIBOR Loans shall terminate and all
outstanding LIBOR Loans shall be converted automatically to Base Rate Loans, on
the last day of the then
28
current Interest Period or within such earlier period as required by law.
2.11 INDEMNITY. Borrowers agree, jointly and severally, to indemnify any
Lender and to hold such Lender harmless from any cost, loss or expense which
such Lender may sustain or incur as a consequence of (i) Borrowers making a
payment or prepayment of principal or interest on any LIBOR Loan (including
through a conversion to the same or a different type of Loan or pursuant to
Sections 2.3(B) and 2.9 above) on a day which is not the last day of an Interest
Period with respect thereto (other than interest paid on the last day of a three
month interval in respect of a LIBOR Loan having an Interest Period longer than
three months), (ii) any failure by Borrowers to borrow or convert any Loan
hereunder after a Notice of Borrowing or Notice of Conversion has been given (in
the case of LIBOR Loans), (iii) default by Borrowers in making any prepayment of
a LIBOR Loan after Borrowers have given a notice of prepayment and (iv) any
acceleration of the maturity of the Loans in accordance with the terms of this
Agreement, including, but not limited to, any such reasonable cost, loss or
expense arising in liquidating the Loans and from interest or fees payable by
such Lender to lenders of funds obtained by it in order to maintain the Loans
hereunder. The provisions of this Section 2.11 shall survive the repayment of
the Loans and the termination of this Agreement.
3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT.
(A) From and after the date hereof, the Issuing Lender agrees, upon
the terms and conditions set forth in this Agreement, to issue at the
request and for the account of Borrowers, one or more Letters of Credit;
provided, however, that the Issuing Lender shall not be under any
obligation to issue, and shall not issue, any Letter of Credit if (i) any
order, judgment or decree of any governmental authority with jurisdiction
over the Issuing Lender shall purport by its terms to enjoin or restrain
such Issuing Lender from issuing such Letter of Credit, or any law or
governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) from any governmental authority with
jurisdiction over the Issuing Lender shall prohibit, or request that the
Issuing Lender refrain from, the issuance of Letters of Credit in
particular or shall impose upon the Issuing Lender with respect to any
Letter of Credit any restriction or reserve or capital requirement (for
which the Issuing Lender is not otherwise compensated) or any unreimbursed
loss, cost or expense which was not applicable, in effect and known to the
Issuing Lender as of the date of this Agreement and which the Issuing
Lender in good xxxxx xxxxx material to it (the Issuing Lender shall
promptly notify Borrowers of any event which, in the judgment of the
Issuing Lender, would preclude the issuance of a Letter of Credit pursuant
to this clause); (ii) one or more of the conditions to such issuance
contained in Section 6.1 is not then satisfied; or (iii) after giving
effect to such issuance, the aggregate outstanding amount of the Letter of
Credit Obligations would exceed the Letter of Credit Sublimit.
(B) In no event shall: (i) the aggregate amount of the Letter of
Credit
29
Obligations at any time exceed the Letter of Credit Sublimit; (ii) the sum
at any time of (a) the aggregate amount of Letter of Credit Obligations and
(b) the aggregate principal balance of all outstanding Loans issued
pursuant to the Revolving Credit Facility exceed the Total Available
Credit; or (iii) the expiration date of any Letter of Credit (including
Letters of Credit issued with an automatic "evergreen" provision providing
for renewal absent advance notice by Borrowers or the Issuing Lender), or
the date for payment of any draft presented thereunder and accepted by the
Issuing Lender, be later than the Letter of Credit Expiry Date, provided
that any Letter of Credit with a one-year term shall provide for the
renewal thereof for additional one-year periods (which shall in no event
extend beyond the date which is twenty-five (25) days prior to the
Revolving Credit Termination Date.
3.2 PARTICIPATING INTERESTS. Immediately upon the issuance by the Issuing
Lender of a Letter of Credit, each Lender shall be deemed to have irrevocably
and unconditionally purchased and received from the Issuing Lender, without
recourse, representation or warranty, an undivided participation interest equal
to its Percentage of the face amount of such Letter of Credit and each draw paid
by the Issuing Lender thereunder. Each Lender's obligation to pay its
proportionate share of all draws under the Letters of Credit, absent gross
negligence or willful misconduct by the Issuing Lender in honoring any such
draw, shall be absolute, unconditional and irrevocable and in each case shall be
made without counterclaim or set-off by such Lender.
3.3 LETTER OF CREDIT REIMBURSEMENT OBLIGATIONS.
(A) Borrowers agree to pay to the Issuing Lender the sum of: (i) the
amount so drawn plus all other charges and expenses with respect thereto or
in the applicable reimbursement agreement on each date that any amount is
drawn under each Letter of Credit and (ii) interest on any and all amounts
remaining unpaid under this Section 3.3 shall be charged at the rate set
forth in the Master Letter of Credit Agreement. Borrowers agree to pay to
the Issuing Lender the amount of all Reimbursement Obligations owing in
respect of any Letter of Credit immediately when due, under all
circumstances, including any of the following circumstances: (w) any lack
of validity or enforceability of this Agreement or any Ancillary Agreements
executed pursuant hereto; (x) the existence of any claim, set-off, defense
or other right which Borrowers may have at any time against a beneficiary
named in a Letter of Credit, any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), any Lender or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between Borrowers and the beneficiary
named in any Letter of Credit); (y) the validity, sufficiency or
genuineness of any document which the Issuing Lender has determined
reasonably and in good faith complies on its face with the terms of the
applicable Letter of Credit, even if such document should later prove to
have been forged, fraudulent, invalid or insufficient in any respect or any
statement therein shall have been untrue or inaccurate in any respect; or
(z) the surrender or material impairment of any security for the
performance or observance of any of the terms hereof.
(B) Notwithstanding any provisions to the contrary in any Master
Letter of
30
Credit Agreement, Borrowers agree to reimburse the Issuing Lender for
amounts which the Issuing Lender pays under such Letter of Credit no later
than the time specified in this Agreement. If Borrowers do not pay any such
Reimbursement Obligations when due, Borrowers shall be deemed to have
immediately requested that the Banks make a Base Rate Loan under this
Agreement in a principal amount equal to such unreimbursed Reimbursement
Obligations. Administrative Agent shall promptly notify Lenders of such
deemed request and, without the necessity of compliance with the
requirements of Sections 2.1 and 6.1, each Lender shall make available to
Administrative Agent its Loan in the manner prescribed for Base Rate Loans.
The proceeds of such Loans shall be paid over by Administrative Agent to
the Issuing Lender for the account of Borrowers in satisfaction of such
unreimbursed Reimbursement Obligations, which shall thereupon be deemed
satisfied by the proceeds of, and replaced by, such Base Rate Loan.
(C) If the Issuing Lender makes a payment on account of any Letter of
Credit and is not concurrently reimbursed therefore by Borrowers and if for
any reason a Base Rate Loan may not be made then as promptly as practical
during normal banking hours on the date of its receipt of such notice or,
if not practicable on such date, not later than noon (Chicago time) on the
Business Day immediately succeeding such date of notification, each Lender
shall deliver to Administrative Agent for the account of the Issuing
Lender, in immediately available funds, the purchase price for such
Lender's interest in such unreimbursed Reimbursement Obligations, which
shall be an amount equal to such Lender's pro-rata share of such payment.
Each Lender shall, upon demand by the Issuing Lender, pay the Issuing
Lender interest on such Lender's pro-rata share of such draw from the date
of payment by the Issuing Lender on account of such Letter of Credit until
the date of delivery of such funds to the Issuing Lender by such Lender at
a rate per annum, computed for actual days elapsed based on a 360-day year,
equal to the Federal Funds Rate for such period; provided, that such
payments shall be made by such Lender only in the event and to the extent
that the Issuing Lender is not reimbursed in full by Borrowers for interest
on the amount of any draw on the Letters of Credit.
(D) At any time after the Issuing Lender has made a payment on account
of any Letter of Credit and has received from any other Lender such
Lender's pro-rata share of such payment, the Issuing Lender shall,
forthwith upon its receipt of any reimbursement (in whole or in part) by
Borrowers for such payment, or of any other amount from Borrowers or any
other Person in respect of such payment (including any payment of interest
or penalty fees and any payment under any collateral account agreement of
Borrowers or any Ancillary Agreements executed pursuant hereto but
excluding any transfer of funds from any other Lender transfer to such
other Lender such other Lender's ratable share of such reimbursement or
other amount; provided, that interest shall accrue for the benefit of such
Lender from the time the Issuing Lender has made a payment on account of
any Letter of Credit; provided, further, that in the event that the receipt
by the Issuing Lender of such reimbursement or other amount is found to
have been a transfer in fraud of creditors or a preferential payment under
the Bankruptcy Code or is otherwise required to be returned, such Lender
shall promptly return to the Issuing Lender any portion thereof previously
transferred by the Issuing Lender to such Lender, but without interest to
the extent that interest is not payable by the Issuing
31
Lender in connection therewith.
3.4 PROCEDURE FOR ISSUANCE. Prior to the issuance of each Letter of Credit,
and as a condition of such issuance, Borrowers shall deliver to the Issuing
Lender (with a copy to Administrative Agent) a Letter of Credit application
signed by Borrowers, the form of which has been provided by Administrative Agent
to Borrowers, together with such other documents or items as may be required
pursuant to the terms thereof, and the proposed form and content of such Letter
of Credit shall be reasonably satisfactory to the Issuing Lender. Each Letter of
Credit shall be issued no earlier than two (2) Business Days after delivery of
the foregoing documents, which delivery may be by Borrowers to the Issuing
Lender by facsimile transmission, telex or other electronic means followed by
delivery of executed originals within five days thereafter. The documents so
delivered shall be in compliance with the requirements set forth in Section
3.1(A), and shall specify therein (i) the stated amount of the Letter of Credit
requested, (ii) the effective date of issuance of such requested Letter of
Credit, which shall be a Business Day, (iii) the date on which such requested
Letter of Credit is to expire, (iv) the entity for whose benefit the requested
Letter of Credit is to be issued, which shall be a Borrower and (v) the
aggregate amount of Letter of Credit Obligations which are outstanding and which
will be outstanding after giving effect to the requested Letter of Credit
issuance. The delivery of the foregoing documents and information shall
constitute an "ISSUANCE REQUEST" for purposes of this Agreement. Subject to the
terms and conditions of Section 3.1(A) and provided that the applicable
conditions set forth in Section 6.1 hereof have been satisfied, the Issuing
Lender shall, on the requested date, issue a Letter of Credit on behalf of
Borrowers in accordance with the Issuing Lender's usual and customary business
practices. In addition, any amendment of an existing Letter of Credit shall be
deemed to be an issuance of a new Letter of Credit and shall be subject to the
requirements set forth above. The Issuing Lender shall give Administrative Agent
prompt written notice of the issuance of any Letter of Credit.
3.5 NATURE OF LENDERS' OBLIGATIONS. Subject to Section 3.3 (A), as between
Borrowers and Lenders, Borrowers assume all risks of the acts and omissions of,
or misuse of the Letters of Credit by, the respective beneficiaries of the
Letters of Credit. Subject to Section 3.3 (A), in furtherance and not in
limitation of the foregoing, Lenders shall not be responsible for (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for an issuance of a
Letter of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; (iii) the failure of the beneficiary of a Letter of
Credit to comply fully with conditions required to be satisfied by any Person
other than the Issuing Lender in order to draw upon such Letter of Credit (other
than a failure to satisfy documentary conditions to drawing where payment of the
Letter of Credit despite such failure would constitute gross negligence or
willful misconduct of the Issuing Lender); (iv) errors, omissions, interruptions
or delays in transmission or delivery of any messages, by mail, cable,
telegraph, facsimile transmission, telex or otherwise; (v) the misapplication by
the beneficiary of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or (vi) any consequences arising from causes beyond control of
the Issuing Lender.
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3.6 COMPENSATION FOR LETTERS OF CREDIT. Borrowers shall pay to
Administrative Agent (for the benefit of the Issuing Lender and the other
Lenders) on the last Business Day of each calendar quarter, in arrears, a letter
of credit fee at a rate per annum (the "LETTER OF CREDIT FEES") equal to the
Applicable Margin for outstanding Letters of Credit. In addition, the Borrower
shall pay to Administrative Agent (for the benefit of the Issuing Lender and the
other Lenders) any other processing, issuance, amendment or other similar fees
customarily charged in connection with Letters of Credit, together with the
Issuing Lender's out-of-pocket costs of issuing and servicing letters of credit.
All Letter of Credit Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days.
4. FEES AND PAYMENTS.
4.1 FEES.
(A) Commitment Fee. Borrowers agree, jointly and severally, to pay to
Administrative Agent, to be allocated among Lenders in accordance with
their Percentage, an aggregate non-refundable commitment fee for any
undrawn or unutilized amounts equal to: (i) 0.25% per annum on the
difference between the Loans outstanding and the Aggregate Revolving Credit
Commitment (notwithstanding the Borrowing Base) if such Loans, in the
aggregate, are greater than or equal to $30,000,000, (ii) 0.375% per annum
on the difference between the Loans outstanding and the Aggregate Revolving
Credit Commitment (notwithstanding the Borrowing Base) if such Loans, in
the aggregate, are greater than $15,000,000 but less than $30,000,000; or
(iii) 0.5% per annum on the difference between the Loans outstanding and
the Aggregate Revolving Credit Commitment (notwithstanding the Borrowing
Base) if such Loans, in the aggregate, are equal to or less than
$15,000,000 (the "COMMITMENT FEE"). The Commitment Fee shall be computed on
the basis of the actual number of days elapsed in a year of 360 days,
calculated on an accrual basis and paid quarterly in arrears on the last
Business Day of each fiscal quarter. The undrawn amount of Letters of
Credit issued shall count as utilization of the Facility for purposes of
calculating the Commitment Fee.
(B) Other Fees. Borrowers agree, jointly and severally, to pay to
Administrative Agent such other Fees as Borrowers have agreed to pay in
this Agreement or under any other fee agreement between Borrowers and
Administrative Agent in connection herewith.
4.2 MAKING OF PAYMENTS. All payments and prepayments of principal of, or
interest on, the Notes shall be made by Borrowers to Administrative Agent in
immediately available funds for the account of the holders of the Notes pro rata
according to the respective unpaid amounts of principal or interest, as the case
may be, owed to such holders. All such payments shall be made to Administrative
Agent at its office in Chicago, not later than 12:30 p.m. Chicago time, on the
date due, and funds received after that hour shall be deemed to have been
received by Administrative Agent on the next following Business Day.
Administrative Agent
33
shall, on the Business Day a payment is deemed to be received in collected funds
by it, remit to each Lender or other holder of a Note its share of such payment.
4.3 PAYMENT TERMS. All of the Indebtedness shall be paid to Administrative
Agent in the currency in which it was borrowed at the address set forth in
Section 10.10. Subject to the remainder of this Section 4.3 and Section 8.7, the
Indebtedness will be payable as follows:
(i) accrued interest shall be payable in arrears on the
applicable Interest Payment Date;
(ii) fees, costs, expenses and similar charges shall be payable
as and when provided for in this Agreement or the Ancillary
Agreements; and
(iii) the then outstanding principal balance of the Revolving
Credit Facility shall be payable in full on the Revolving Credit
Termination Date.
4.4 PREPAYMENT; COMMITMENT REDUCTIONS.
(A) Voluntary Prepayment. Except as otherwise set forth herein
(including, but not limited to Section 2.10 hereof), Borrowers may prepay
all or any portion of the Loans upon notice from Borrowers to
Administrative Agent at least one (1) day before the date of prepayment,
without penalty or premium, at any time and from time to time; provided,
that, all prepayments of principal shall be in $100,000 increments and
shall include (i) all interest accrued to the date of prepayment on the
principal amount being prepaid and (ii) all costs associated with the
breakfunding of any LIBOR Loan. After maturity (whether upon acceleration
or otherwise) of any Indebtedness, accrued Interest on such Indebtedness
shall be payable upon demand.
(B) Mandatory Prepayment Events. Borrowers shall not permit (i) the
aggregate principal amount of Loans outstanding under the Revolving Credit
Facility at any time to exceed the Total Available Credit, (ii) the
aggregate principal amount of the Letters of Credit outstanding at any time
to exceed the Letter of Credit Sublimit or (iii) the aggregate principal
amount of the Alternative Currency Advances outstanding at any time to
exceed the Alternative Currency Sublimit. Such limits shall be tested every
thirty (30) days and Borrowers agree to deliver a certificate certifying as
to the amounts outstanding under each limit set forth above. In the event
Borrowers have exceeded any of the foregoing limits, Borrowers agree,
jointly and severally, to repay any excess to Administrative Agent within
two (2) Business Days after being provided of notice by Administrative
Agent of the occurrence thereof. No Lender shall be under an obligation to
make Loans under the Revolving Credit Facility during the period that any
such excess exists or would result from making a Loan. Any amount repaid
under Section 4.2(B) may, subject to the terms and conditions of this
Agreement, be borrowed, repaid and borrowed again.
Further, in the event any Borrower consummates an Asset Sale or a Capital
Raising
34
Transaction, such Borrower shall remit fifty percent (50%) of the
consideration paid to such Borrower from such Asset Sale to Administrative
Agent to repay the Loans.
(C) Commitment Reductions. IRI may, on behalf of all Borrowers,
permanently reduce the Aggregate Revolving Credit Commitments upon five (5)
days advance written notice to Administrative Agent; provided, however,
that (i) any permanent reduction of the Aggregate Revolving Credit
Commitment shall be in increments of not less than $3,000,000 and Borrowers
shall be responsible for all fees, costs and expenses associated with
modifying or terminating any LIBOR Loans and any other reasonable fees,
costs and expenses Lenders may incur resulting from such commitment
reduction.
4.5 LOCKBOX. Borrowers shall at all times maintain a lockbox arrangement
with Administrative Agent for all Accounts, collections and other proceeds of
Collateral (the "LOCKBOX") in Borrowers' name, the terms of which shall be set
forth in the Lockbox Agreement attached hereto as EXHIBIT E (the "LOCKBOX
AGREEMENT"), pursuant to which Borrowers and their respective Subsidiaries will
cause all Account Debtors to send all remittances on Accounts to Administrative
Agent.
4.6 APPLICATION OF PAYMENTS AND COLLECTIONS. Subject to the rights of
Borrowers to direct funds under Section 4.4(A), Borrowers irrevocably waive the
right to direct the application of payments and collections received by
Administrative Agent and/or any Lender from or on behalf of Borrowers, and
Borrowers agree that Administrative Agent shall have the continuing exclusive
right to apply and reapply any and all such payments and collections against the
Indebtedness in such manner as Administrative Agent may deem appropriate. To the
extent that Borrowers make a payment or payments to Administrative Agent or
Administrative Agent receives any payment or proceeds of the Collateral for
Borrowers' benefit, which payment(s) or proceeds are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, receiver or any other party under any bankruptcy act, state or
federal law, common law or equitable cause, then to the extent of such payment
or proceeds received, the Indebtedness intended to be satisfied shall be revived
and shall continue in full force and effect, as if such payments or proceeds had
not been received by Administrative Agent. Interest shall be payable out of the
first collections received with respect to any proceeds of Collateral.
4.7 RECORDS. All advances to Borrowers, and all other debits and credits
provided for in this Agreement, shall be evidenced by entries made by
Administrative Agent in its internal data control systems showing the date,
amount and reason for each such debit or credit.
4.8 NON-FUNDING LENDERS. Unless Borrowers or a Lender, as the case may be,
notify Administrative Agent prior to the date on which a Borrower is scheduled
to make payment to Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan under the Revolving Credit Facility, or (ii) in the case of
Borrowers, a payment of principal, interest or fees to Administrative Agent for
the account of Lenders, that it does not intend to make such payment,
Administrative Agent may assume that such payment has been made. Administrative
35
Agent may, but shall not be obligated to, make the amount of such payment
available to the intended recipient in reliance upon such assumption. If
Borrowers have not in fact made such payment to Administrative Agent, Lenders
shall, on demand by Administrative Agent, repay to Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount at
a rate per annum equal to the federal funds rate for such day. If any Lender has
not in fact made such payment to Administrative Agent (such a Lender herein
called a "NON-FUNDING LENDER"), such Non-Funding Lender or Borrowers shall, on
demand by Administrative Agent, repay to Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by
Administrative Agent until the date Administrative Agent recovers such amount at
a rate per annum equal to (i) in the case of payment by a Non-Funding Lender, an
amount equal to $200 plus the Federal Funds Rate for such day or (ii) in the
case of payment by Borrowers, the interest rate applicable to the relevant
Revolving Loan (it being understood and agreed that prior to making a request
pursuant to this clause (ii) Administrative Agent will use its best efforts to
request Lenders (other than a Non-Funding Lender) to reallocate such amount
among Lenders (other than a Non-Funding Lender) subject to Section 2.1.
4.9 HOLIDAYS. Whenever payment of a Loan to be made or taken hereunder
shall be due on a day which is not a Business Day, such payment shall be due on
the next Business Day and such extension of time shall be included in computing
interest and fees, except that the Loans shall be due on the Business Day
preceding any expiration date if such expiration date is not a Business Day.
Whenever any payment or action to be made or taken hereunder (other than payment
of the Loans) shall be stated to be due on a day which is not a Business Day,
such payment or action shall be made or taken on the next Business Day (except
with respect to Interest Periods), and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.
5. REPRESENTATIONS AND WARRANTIES.
5.1 GENERAL REPRESENTATIONS AND WARRANTIES. Each Borrower represents and
warrants to Administrative Agent and Lenders that:
(A) Such Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State or Territory set forth
opposite its name on SCHEDULE B attached hereto, and its State-issued or
Territory-issued organizational identification number is set forth opposite
its name on such SCHEDULE B;
(B) Such Borrower has not used, during the five (5) year period
preceding the date of this Agreement, and on the date hereof, does not
intend to use, any other corporate or fictitious name, other than as a
result of merger, restructuring or reorganization;
36
(C) Such Borrower has the right and power and is duly authorized and
empowered to enter into, execute, deliver and perform this Agreement and
the Ancillary Agreements;
(D) The execution, delivery and performance by such Borrower of this
Agreement and the Ancillary Agreements shall not, by its execution or
performance, the lapse of time, the giving of notice or otherwise,
constitute a violation of any material and any applicable law, rule,
regulation, judgment, order or decree applicable to such Borrower or its
assets or constitute a material breach of any provision contained in such
Borrower's charter or by-laws or contained in any material agreement,
instrument, indenture or other document to which such Borrower is now a
party or by which it or any of its property is bound;
(E) Such Borrower's use of the proceeds of any advances made by each
Lender hereunder are, and will continue to be, legal and proper corporate
uses (duly authorized by its board of directors, in accordance with any
applicable law, rule or regulation) and such uses are consistent with all
material and applicable laws, rules and regulations, as in effect as of the
date hereof;
(F) Such Borrower has, and is current and in good standing with
respect to, all material governmental approvals, permits, certificates,
inspections, consents and franchises necessary to conduct and to continue
to conduct its business and its intended business and to own or lease and
operate its properties as now owned or leased and operated by it;
(G) None of such approvals, permits, inspections, certificates,
consents or franchises contains any term, provision, condition or
limitation more burdensome than such as are generally applicable to Persons
engaged in the same or similar business as such Borrower;
(H) Such Borrower now has capital sufficient to carry on its business
and transactions and all businesses and transactions in which it is about
to engage and is now able to pay its debts as they mature and such Borrower
now owns property the fair saleable value of which is greater than the
amount required to pay such Borrower's debts;
(I) Except as disclosed in the Financials or on SCHEDULE 2, such
Borrower has no Liabilities and has not guaranteed the obligations of any
other Person (except for Permitted Debt);
(J) (i) There are no strikes, work stoppages, labor disputes
decertification petitions, union organizing efforts, grievances or other
claims pending or, to such Borrower's knowledge, threatened in writing,
between such Borrower and any of its employees, other than employee
grievances or other claims arising in the ordinary course of business
which, in the aggregate, would not have a Material Adverse Effect on each
37
Borrower and (ii) to the best of such Borrower's knowledge, such Borrower
has no obligation under any collective bargaining agreement or any
employment agreement. To such Borrower's knowledge, there is no organizing
activity pending or threatened in writing by any labor union or group of
employees. There are no representation proceedings pending or threatened
with the National Labor Relations Board or other applicable governmental
authority, and no labor organization or group of employees has made a
pending demand for recognition. There are no material complaints or charges
pending or, to such Borrower's knowledge, threatened to be filed with any
governmental authority or arbitrator based on, arising out of, in
connection with or otherwise relating to the employment or termination of
employment by such Borrower of any individual or group of individuals
which, if decided adversely to each Borrower, would have a Material Adverse
Effect on such Borrower or as set forth on SCHEDULE 5;
(K) Except as described in SCHEDULE 5, there are no actions, suits or
proceedings at law or in equity or by or before court, arbitrator or any
governmental instrumentality or other agency or regulatory authority now
pending or, to such Borrower's knowledge, threatened against or affecting
such Borrower or any of its subsidiaries or the businesses, assets or
rights of such Borrower or any of its Subsidiaries (a) which involve this
Agreement or any of the other Credit Documents or any of the transactions
contemplated hereby and thereby, or (b) as to which, if adversely
determined, could, individually or in the aggregate, have a Material
Adverse Effect;
(L) Such Borrower has good, indefeasible and merchantable title to and
ownership of its Collateral, free and clear of all Liens, claims, security
interests and other encumbrances, except those of Administrative Agent,
Lenders and Permitted Liens. All real property owned by Borrowers is set
forth on SCHEDULE 6 attached hereto (the "OWNED PROPERTY"). IRI holds fee
simple title to the Owned Property, subject only to real estate taxes not
delinquent or payable and to covenants, conditions, restrictions and
easements of record, none of which would have a Material Adverse Effect.
(M) Such Borrower is not in violation of any applicable statute, rule,
regulation or ordinance of any governmental entity of any country, state,
province, territory, region, city, town, municipality, county or of any
other jurisdiction, or of any agency thereof, in any respect which would
have a Material Adverse Effect;
(N) Such Borrower is not in default under any material indenture, loan
agreement, mortgage, lease, trust deed, deed of trust or other similar
agreement relating to the borrowing of monies to which it is a party or by
which it or any of its property is bound;
(O) The Financials fairly present in all material respects the assets,
liabilities and financial condition and results of operations of such
Borrower and such other Persons on a consolidated basis as are described
therein as of the stated dates; there are no omissions or other facts or
circumstances which are or may be material and there (i) has been no
material and adverse change in the assets, liabilities or financial or
other
38
condition of such Borrower or any such Person since the date of the
Financials and (ii) exists no equity or long term investments in or
outstanding advances to any Person not reflected in the Financials or
disclosed on SCHEDULE 2;
(P) Neither such Borrower nor any Subsidiary of such Borrower has
received a notice to the effect that it is not in full compliance with any
of the requirements of ERISA and the regulations promulgated thereunder
and, to the best of its knowledge, there exists no event described in
Section 4043 of ERISA, excluding subsections 4043(b)(2) and 4043(b)(3)
("REPORTABLE EVENT");
(Q) Such Borrower's execution and delivery of this Agreement and the
Ancillary Agreements do not directly or indirectly violate or result in any
violation of the Securities Exchange Act of 1934, as amended, or any
regulations issued pursuant thereto, including without limitation,
Regulation U, T or X of the Board of Governors of the Federal Reserve
System (12 CFR 221, 207, 220 and 224, respectively) and such Borrower does
not own or intend to purchase or carry any "MARGIN SECURITY," as defined in
such Regulations;
(R) Except as set forth on SCHEDULE 7, as of the date of this
Agreement such Borrower has no Subsidiaries and does not own an equity
interest in any other Person;
(S) Such Borrower has no knowledge of any fact or circumstance which
would impair the validity or collectibility of any material amount of its
Accounts or General Intangibles;
(T) None of such Borrower's Collateral has been pledged or sold to any
other Person or otherwise encumbered, except as permitted hereunder. Such
Borrower is the owner of its Collateral free of all Liens and encumbrances
except those of Administrative Agent and except for the Permitted Liens and
no financing statement concerning the Collateral, except any filed on
behalf of Administrative Agent and those relating to Permitted Liens;
(U) To the best of such Borrower's knowledge, each property (including
underlying ground water), operation and facility that such Borrower
operates or controls is in compliance with all statutes, judicial or
administrative orders, licenses, permits and governmental rules and
regulations applicable to them, including Environmental Laws, the
noncompliance with which is reasonably likely to have a Material Adverse
Effect;
(V) A true and correct list and description (including coverages,
deductibles and expiration dates) of all insurance policies which are owned
by such Borrower or which name such Borrower as an insured (or loss payee)
are set forth on SCHEDULE 8, including, but not limited to, property and
casualty insurance, Directors' and Officers' insurance and key-man
insurance. All such insurance policies are in full force and effect and
such Borrower has not received notice of cancellation of any such insurance
policies (other than routinely delivered in renewal notices on invoices);
39
(W) All U.S. registered copyrights, patents, service marks and
trademarks of each Borrower are listed on SCHEDULE 9 attached hereto. Such
Borrower possesses adequate intellectual property to conduct its business
as it is currently being conducted;
(X) Such Borrower and each of its Subsidiaries have filed or caused to
be filed all Federal, foreign, state and local tax returns which are
required to be filed by it, and have paid or caused to be paid all taxes
shown to be due and payable on such returns or on any assessments received
by it, other than any taxes or assessments, the validity of which such
Borrower or its Subsidiary are contesting in good faith by appropriate
proceedings, and with respect to which Borrowers shall have set aside on
its books adequate reserves; and
(Y) All factual information furnished by or on behalf of such Borrower
to Administrative Agent and the other Lenders for purposes of or in
connection with the Revolving Credit Facility is, and all other such
factual information hereafter furnished by or on behalf of such Borrower
will be, true and accurate in all material respects on the date as of which
such information is furnished and not materially incomplete by omitting to
state any fact necessary to make such information not misleading at such
time in light of the circumstances under which such information was
provided.
5.2 AUTOMATIC WARRANTY AND REPRESENTATION AND REAFFIRMATION OF WARRANTIES
AND REPRESENTATIONS. Each request for a Loan made by Borrowers pursuant to this
Agreement or the Ancillary Agreements shall constitute (i) an automatic warranty
and representation by Borrowers to Administrative Agent and each Lender that
there does not then exist an Event of Default and (ii) a reaffirmation as of the
date of such request of all of the warranties and representations of each
Borrower contained in this Agreement and in the Ancillary Agreements.
5.3 SURVIVAL OF WARRANTIES AND REPRESENTATIONS. Each Borrower covenants,
warrants and represents to Administrative Agent and each Lender that all
representations and warranties of such Borrower contained in this Agreement and
the Ancillary Agreements shall be true at the time of such Borrower's execution
of this Agreement and the Ancillary Agreements, and shall survive the execution,
delivery and acceptance by the parties and the closing of the transactions
described in this Agreement. Each Borrower and Administrative Agent and each
Lender expressly agree that any misrepresentation or breach of any
representation or warranty whatsoever contained in this Agreement or in any of
the Ancillary Agreements shall be deemed material.
6. CONDITIONS TO LOANS.
6.1 GENERAL CONDITIONS APPLICABLE TO ALL ADVANCES. At the time of (1) the
Closing and (2) of each advance under the Revolving Credit Facility after the
Closing:
(A) Each of the representations and warranties set forth in Section 5
with
40
respect to each Borrower shall be true and correct in all material respects
at the time of such Loan;
(B) Each Borrower shall be in material compliance with all of the
terms and conditions of this Agreement and the Ancillary Agreements, each
Borrower shall have received all third party approvals necessary and no
Event of Default shall have occurred and be continuing at the time of such
Loan;
(C) No event shall have occurred, with respect to any Borrower,
resulting in a Material Adverse Effect on such Borrower in Borrowers
collective ability to pay the Loans since the date of this Agreement or
since the Closing, as applicable;
(D) There shall have been no material change in the marketability and
ownership of the Collateral. The Collateral shall be and remain free from
any security interest, Lien or encumbrance except the Permitted Liens, and
no financing statement concerning the Collateral, excepting any filed on
behalf of Administrative Agent and those listed on SCHEDULE 4 or evidencing
a Permitted Lien, is on file in any public office;
(E) After giving effect to the requested advance, the aggregate
principal amount of all Loans outstanding under the Revolving Credit
Facility shall not exceed the then current Total Available Credit;
(F) A Notice of Borrowing duly executed by each Borrower, in the form
of EXHIBIT H attached hereto; and
(G) A Borrowing Base Certificate duly executed by each Borrower in the
form of EXHIBIT I attached hereto.
6.2 CONDITIONS TO INITIAL ADVANCE. In addition to all the conditions set
forth in Section 6.1 having been satisfied, on or prior to the date of the
disbursement of the initial Loans (hereinafter called the "Closing"), the
obligations of each Lender to make the initial Loans hereunder is subject to the
following conditions precedent:
(A) Administrative Agent shall have successfully located additional Lenders
to become Participant(s) in the Revolving Credit Facility in an aggregate amount
of not less than $15,000,000.
(B) Administrative Agent shall have delivered or caused to be delivered to
Borrowers the following:
(i) This Agreement, duly executed by each Lender;
(ii) The Security Agreement, duly executed by each Lender; and
(iii) Letters of Credit on behalf of Borrowers in favor of the Letter
of Credit
41
Beneficiaries in the aggregate amount of $3,846,970.25 (the "INITIAL
LETTERS OF CREDIT") for the purpose of replacing the letters of credit
issued by Xxxxxx Bank in favor of the Letter of Credit Beneficiaries (the
"XXXXXX LETTERS OF Credit") outstanding under that certain Credit Agreement
dated as of October 31, 1997, as amended (the "XXXXXX CREDIT FACILITY").
(C) Borrowers shall have delivered or caused to be delivered to each
Lender, including Administrative Agent, each in form and substance satisfactory
to Administrative Agent, the following:
(i) This Agreement, duly executed by each Borrower;
(ii) The Notes, which shall be duly executed by Borrowers collectively
in favor of each Lender, the forms of which are attached hereto as EXHIBITS
A-1 AND A-2;
(iii) The Security Agreement, duly executed by each Borrower, together
with all UCC financing statements and other instruments as may be necessary
to grant Lenders a first priority security interest in: (i) all the capital
stock held by IRI in each Borrower and (ii) all the assets of each
Borrower, the form of which is attached hereto as EXHIBIT B;
(iv) The Foreign Subsidiary Pledge Agreement, duly executed by IRI,
pledging 66% of the outstanding stock of the wholly owned Foreign IRI
Subsidiaries, the form of which is attached hereto as EXHIBIT C;
(v) The U.S. Subsidiary Pledge Agreement, duly executed by IRI,
pledging all of the outstanding stock of its wholly owned Direct U.S.
Subsidiaries, the form of which is attached hereto as EXHIBIT D;
(vi) The Lockbox Agreement, duly executed by Borrowers the form of
which is attached hereto as EXHIBIT E;
(vii) Certified (as of the date of the Closing) copies of resolutions
of each Borrower authorizing the execution, delivery and performance of
this Agreement, the Notes, and each other document to be delivered pursuant
hereto;
(viii) A certificate (dated the date of the Closing) of each
Borrower's corporate secretary as to the incumbency and signatures of the
officers of such Borrower signing this Agreement, the Notes, and each other
document to be delivered by such Borrower pursuant to this Agreement;
(ix) A copy of each Borrower's charter and by-laws, as each may have
been amended, together with a certificate (dated the date of the Closing)
of such Borrower's corporate secretary, as applicable, to the effect that
such charter and by-laws have not been amended since the date of the most
recent amendment certified therein;
42
(x) For each Borrower, certificates, as of the most recent dates
practicable, of the Secretary of State of such Borrower's state of
organization and the Secretary of State of each state in which each
Borrower is qualified as a foreign corporation as to the good standing of
such Borrower;
(xi) Pay-off letters from Xxxxxx Trust and Savings Bank and the other
lenders participating in the Xxxxxx Credit Facility (the "SENIOR
LIENHOLDERS") indicating the amount necessary to retire the existing
indebtedness of Borrowers to the Senior Lienholders and evidence,
satisfactory to Administrative Agent, of the release of any and all
Collateral in which the Senior Lienholders have a security interest and
such other documents as may be required, excluding the Xxxxxx Letters of
Credit;
(xii) An opinion of U.S. counsel to Borrowers (except for IRI Puerto
Rico, Inc.) in substantially the form of EXHIBIT F attached hereto;
(xiii) Third party consents from those Persons Administrative Agent
deems necessary;
(xiv) A certified copy of each policy of insurance, or, in lieu
thereof, certificates of such policies of insurance satisfactory to
Administrative Agent, and evidence of payment of all premiums therefor,
which shall contain a loss payable endorsement in the form of EXHIBIT H
attached hereto;
(xv) A solvency certificate certified by IRI's chief financial officer
in the form of EXHIBIT K attached hereto;
(xvi) A Master Letter of Credit Agreement duly executed by Borrowers,
the form of which is attached hereto as EXHIBIT L and acceptable Issuance
Requests to cover the Xxxxxx Letters of Credit;
(xvii) Payment of all Fees;
(xviii) An "authorization to pay proceeds" letter executed by each
Borrower in a form acceptable to Administrative Agent;
(xix) A memorandum of understanding (the "MEMORANDUM OF
UNDERSTANDING") duly executed by Borrowers and Administrative Agent
identifying certain post-Closing matters that will be satisfied by the date
set forth therein, the form of which is attached hereto as EXHIBIT M; and
(xxi) Lenders shall have received all further documents, notifications
and other assurances reasonably required by Lenders to evidence and secure
the Revolving Credit Facility.
43
7. COVENANTS AND CONTINUING AGREEMENTS.
7.1 FINANCIAL COVENANTS. From the date of this Agreement until the
Revolving Credit Termination Date:
(A) Minimum Cash Flow Coverage Ratio. Borrowers shall maintain a
minimum Cash Flow Coverage Ratio at such times in accordance with the table
below:
QUARTER ENDED RATIO
------------- -----
30-Jun-02 1.03x
30-Sep-02 1.04x
31-Dec-02 1.05x
31-Mar-03 1.07x
30-Jun-03 1.08x
30-Sep-03 1.09x
31-Dec-03 1.10x
31-Mar-04 1.12x
30-Jun-04 1.13x
30-Sep-04 1.14x
31-Dec-04 1.15x
31-Mar-05 1.15x
30-Jun-05 1.15x
(B) Maximum Leverage Ratio. So long as any Revolving Credit Commitment
remains outstanding, Borrowers shall maintain a maximum Leverage Ratio of
not more than 1.75x. The Leverage Ratio shall be tested on a date that is
the last day of each fiscal quarter and shall be based on the previous
twelve (12) months prior to such date.
(C) MINIMUM TANGIBLE NET WORTH. BORROWERS AND EACH OF THEIR
SUBSIDIARIES SHALL COLLECTIVELY MAINTAIN A MINIMUM TANGIBLE NET WORTH OF
NOT LESS THAN OF 90% OF THE TOTAL NET ASSETS AS REPORTED IN IRI'S FORM 10-K
FILED WITH THE SEC FOR THE FISCAL YEAR ENDED DECEMBER 31, 2001 PLUS 100% OF
CUMULATIVE POSITIVE NET INCOME (EXCLUDING (I) ANY ADJUSTMENT WITH RESPECT
TO THE ADOPTION OF FAS 144 RELATING TO ASSET IMPAIRMENT AT THE GERMAN AND
NETHERLANDS SUBSIDIARIES FOR THE DATA PROCUREMENT ASSETS CAPPED AT
$14,000,000 AND ONLY FOR FISCAL YEAR 2002 AND (II) ANY ADJUSTMENT MADE WITH
RESPECT TO THE ADOPTION OF FAS 142 RELATING TO THE WRITE DOWN OF GOODWILL).
THE TANGIBLE NET WORTH SHALL BE TESTED ON A DATE THAT IS THE LAST DAY OF
EACH FISCAL QUARTER.
(D) Maximum Capital Expenditures. Collectively with the other
Borrowers, make Capital Expenditures in an amount not greater than (i)
$26,000,000 in fiscal year 2002, (ii) $33,000,000 in fiscal year 2003, and
(iii) $34,000,000 in fiscal year 2004. Borrowers shall be permitted to
carry forward for one year only any unspent Capital
44
Expenditures, which amount shall be not more than $2,000,000.
7.2 AFFIRMATIVE COVENANTS. Each Borrower covenants, unless at any time the
Required Lenders shall otherwise expressly consent in writing, it shall:
(A) Fees and Costs. Pay to Administrative Agent on demand, any and all
reasonable fees, costs or expenses which Administrative Agent or any Lender
incurs arising out of or in connection with (i) the forwarding to Borrowers
or any other Person on behalf of Borrowers, by Administrative Agent of
proceeds of Loans made to Borrowers pursuant to this Agreement and (ii) the
depositing for collection by Administrative Agent, of any check or item of
payment received or delivered to Administrative Agent on account of the
Indebtedness;
(B) Insurance. At its sole cost and expense, keep and maintain and
cause each Subsidiary to keep and maintain the Collateral, its other assets
and its business insured in such amounts and against loss or damage by
fire, theft, explosion, sprinklers and all other hazards and risks
(including business interruption) as is ordinarily insured against by other
owners or users of such properties in similar businesses and notify
Administrative Agent promptly of any event or occurrence causing a material
loss or decline in value of the Collateral and the estimated (or actual, if
available) amount of such loss or decline;
(C) Financial Reports and Projections. Keep books of account and
prepare financial statements and furnish to Administrative Agent and each
Lender the following (all of the foregoing and following to be kept and
prepared in accordance with GAAP applied on a basis consistent with the
Financials, unless Borrowers' independent certified public accountants
concur in any changes therein and such changes are disclosed to
Administrative Agent and are consistent with GAAP as then in effect):
(i) as soon as available, but not later than ninety (90) days
after the close of each fiscal year of Borrowers, (a) financial
statements of Borrowers and Subsidiaries prepared on a consolidated
basis (including a balance sheet, statement of income and retained
earnings and cash flow, all with supporting footnotes) as at the end
of such year and for the year then ended, all in reasonable detail as
requested by Administrative Agent and audited by a firm of independent
certified public accountants of nationally recognized standing
selected by Borrowers, together with an unqualified opinion thereon
from such certified public accountants, and (b) internally prepared
financial statements of Borrowers and Subsidiaries prepared on a
consolidating basis by business line;
(ii) as soon as available, but no later than forty-five (45) days
after the end of each fiscal quarter of Borrowers, a Financial
Condition and Compliance Certificate (a "COMPLIANCE CERTIFICATE") in
the form of EXHIBIT G attached hereto for such period and such
financial statements, to the extent available, as described in clause
(i) of this Section 7.2(C) with respect to such quarter;
45
(iii) as soon as available, but no later than thirty (30) days
after the end of each month of each fiscal year of Borrowers on a
consolidated basis, internally prepared consolidated financial
statements of Borrowers and Subsidiaries (including a balance sheet,
statement of income and retained earnings and cash flow) as at the end
of and for the portion of Borrowers' fiscal year then elapsed, all in
reasonable detail as requested by Administrative Agent and certified
by Borrowers' principal financial officer as prepared in accordance
with GAAP and fairly presenting in all material respects the financial
position and results of operations of Borrowers and Subsidiaries for
such period (subject to normal year-end audit adjustments and omission
of footnotes);
(iv) such other data and information (financial and other) as
Administrative Agent or any Lender, from time to time, may reasonably
request, bearing upon or related to the Collateral, Borrowers' or any
Affiliate's financial condition or results of its operations, or the
financial condition of any Person who is a guarantor of any of the
Indebtedness;
(v) within three (3) Business Days after the last day of each
week, Borrowers shall furnish to Administrative Agent a properly
completed and executed certificate ("BORROWING BASE CERTIFICATE"), the
form of which is attached hereto as EXHIBIT J, setting forth a
calculation of the Borrowing Base as at the last day of such week; and
(vi) within fifteen (15) Business Days after the last day of each
month of each fiscal year of Borrowers, an Accounts Report; provided,
however, that in the event loans outstanding under the Revolving
Credit Facility are less than $5,000,000 (excluding Letters of Credit
and the Xxxxxx Letter of Credit), Borrowers shall not be required to
provide the information set forth in (ii) of the definition of
"ACCOUNTS REPORT."
(vii) not later than January 30 of any year, financial
projections and a budget for the year in which such projections and
budget have been delivered.
(D) SEC Reports. Furnish to Administrative Agent for distribution to
each Lender:
(i) within 90 days after the end of each fiscal year, IRI's Form
10-K as filed with the SEC, including all financial reports attached
thereto (to extent not provided under Section 7.2(C) hereof);
(ii) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, IRI's quarterly report on Form
10-Q as filed with the SEC, including all financial reports attached
thereto (to extent not provided under Section 7.2(C) hereof);
46
(iii) promptly after the same become publicly available, copies
of all reports on Form 8-K filed by it with the SEC, or any
governmental authority succeeding to any of or all the functions of
the SEC, or copies of all reports distributed to its shareholders, as
the case may be; and
(iv) such other public filings as may be deemed material to
Borrowers as a whole.
(E) Litigation and Other Events. Notify Administrative Agent and each
Lender, promptly upon such Borrower's learning of: (i) the institution or
threat of any litigation, suit, action, inquiry, investigation or
administrative proceeding which, if adversely determined, could reasonably
be expected to have a Material Adverse Effect on, the financial condition
or business of such Borrower or any Affiliate or which could reasonably be
expected to have a Material Adverse Effect on Administrative Agent's
security interest in the Collateral; (ii) the occurrence of an Event of
Default; (iii) any Borrowers use of any other corporate or fictitious name
other than as currently used; (iv) any Borrowers formation of any
Subsidiary; or (v) any Borrowers obtaining any copyrights, patents,
trademarks and similar intellectual property;
(F) Bank Accounts; Compensating Balances. In order to facilitate
Lenders' maintenance and monitoring of its security interest in the
Collateral, Borrowers shall maintain all of their primary bank accounts and
their respective primary banking relationships with Administrative Agent.
Without affecting such obligation to maintain such balances, if such
Borrower fails to maintain such balances, then on the last day of such
calendar quarter of each year such Borrower shall pay to Administrative
Agent in arrears, immediately upon demand, a reasonable fee, based on the
products and services procured by Borrowers from Administrative Agent, in
lieu of balances, as determined by Administrative Agent which may be
charged at Administrative Agent's option to any bank account of any
Borrower with Administrative Agent. Neither the maintenance of balances nor
payment of any fees shall obligate Administrative Agent or any Lender to
make any advances under the Revolving Credit Facility. Any balances in bank
accounts and fees shall compensate, and be deemed to compensate,
Administrative Agent for the cost incurred by Administrative Agent in being
prepared to respond to requests for credit under such facility and for
costs incurred by Administrative Agent in processing and servicing such
accounts;
(G) Reserve Costs. Upon demand by Administrative Agent or by any
Lender, reimburse Administrative Agent or such Lender for any reasonable
additional costs incurred by Administrative Agent or such Lender if at any
time after the date of this Agreement any law, regulation, treaty or any
change in any law, regulation, treaty or the interpretation thereof by any
governmental agency, central bank or other fiscal, monetary or other
authority having jurisdiction of Administrative Agent or such Lender shall
impose, modify or deem applicable any reserve (except reserve requirements
taken into account by Administrative Agent or such Lender in calculating
the Interest Rate) and/or special deposit requirement against
Administrative Agent or such Lender or impose any
47
other condition with respect to the loans or other financial accommodations
the result of which is to increase the cost to Administrative Agent or such
Lender in making or maintaining the Loans or to reduce the amount of
principal or interest received or receivable by Administrative Agent or
such Lender with respect to the Indebtedness. Borrowers' reimbursement
obligation shall apply only to those costs which directly result from the
imposition of such requirement and shall begin as of the date of any such
change in law, treaty, rule or regulation. Notwithstanding the preceding,
such Borrower shall not be required to pay any such additional costs which
could be avoided by Administrative Agent or such Lender with the exercise
of reasonable conduct and diligence;
(H) Existence and Status. Maintain and preserve and cause each
Subsidiary to maintain and preserve its existence as a limited partnership,
limited liability company or corporation, as applicable, in its state of
formation and all rights, privileges, licenses, copyrights, trademarks,
trade names, franchises and other authority to the extent material and
necessary for the conduct of its business in the ordinary course as
conducted from time to time. Such Borrower shall not take any action or
suffer any action to be taken by others and will not permit any Subsidiary
to take any action or suffer any action which will alter, change or destroy
its status as a limited partnership, limited liability company or
corporation;
(I) Use of Proceeds. Use proceeds of the Loans to refinance certain
existing debt and to finance working capital of Borrowers and their
Subsidiaries;
(J) Maintaining Records: Access to Premises and Inspections. Maintain
financial records in accordance with generally accepted practices and, upon
reasonable notice, at all reasonable times and as often as Administrative
Agent may reasonably request, permit any authorized representative
designated by the Lender to visit and inspect the properties and financial
records of Borrowers and any of its Subsidiaries and to make extracts from
such financial records at Borrowers' expense, and permit any authorized
representative designated by Administrative Agent to discuss the affairs,
finances and condition of Borrowers and any of its Subsidiaries with such
Borrower's or such Subsidiary's chief financial officer and such other
officers as such Borrower shall deem appropriate, and such Borrower's
independent public accountants;
(K) Environmental Covenant. (a) Use and operate and cause each
Subsidiary to use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all hazardous substances and waste in
material compliance with all applicable Environmental Laws; (b) immediately
notify Administrative Agent and each Lender and provide copies upon receipt
of all written claims, complaints, notices or inquiries relating to the
condition of its or any Subsidiary's facilities and properties or
compliance with Environmental Laws, and shall (i) promptly cure and have
dismissed with prejudice to the satisfaction of Administrative Agent any
actions and proceedings relating to compliance with Environmental Laws or
(ii) contest
48
any such actions or proceedings in good faith by appropriate proceedings
and establish adequate reserves therefor; and (c) provide such information
and certifications which Administrative Agent may reasonably request from
time to time to evidence compliance with this subsection;
(L) Obligations and Taxes. Pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits or in respect of its property before the same
shall become delinquent or in default, as well as all lawful claims for
labor, materials and supplies or otherwise, which, if unpaid, might give
rise to liens or charges upon such properties or any part thereof,
provided, however, that Borrowers shall not be required to pay and
discharge or to cause to be paid and discharged any such tax, assessment,
charge, levy or claim so long as the validity or amount thereof shall be
contested in good faith by appropriate proceedings and Borrowers shall have
set aside on its books adequate reserves with respect thereto;
(M) Mortgages. Execute a mortgage in a form acceptable to
Administrative Agent in favor of Administrative Agent and the other Lenders
in the event a Borrower acquires any real property that is valued, in the
aggregate of more than $1,000,000; and
(N) Tracking System. Develop and implement a tracking system
reasonably acceptable to Required Lenders to track Eligible Unbilled
Receivables within one-hundred twenty (120) days from the date hereof.
7.3 NEGATIVE COVENANTS. Each Borrower covenants that, unless at any time
the Required Lenders shall otherwise expressly consent in writing, it shall not:
(A) Mergers, Acquisitions and Dispositions. (i) Liquidate, dissolve or
merge or consolidate with or acquire any Person other than an acquisition
that is a Permitted Acquisition, (ii) permit any Subsidiary to liquidate,
dissolve or merge or consolidate with or acquire any Person other than an
acquisition that is a Permitted Acquisition, (iii) lose control (as such
term is defined in the definition of "AFFILIATE") of any Subsidiary, except
that any Borrower may merge or consolidate with any other Borrower and any
Borrower or (iv) sell, dispose of, or otherwise transfer any capital stock
or asset owned by a Borrower other than a Permitted Sale;
(B) Investments. (i) Make any investment in the securities of any
Person other than to a Subsidiary as permitted under Section 7.2(I);
provided, however, that Borrowers may make a Permitted Acquisition subject
to the terms contained herein, or (ii) use or permit any proceeds of the
Loans to be used, either directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of "purchasing or carrying" any margin
stock (such Borrower will furnish to Administrative Agent upon request, a
statement in conformity with the requirements of Federal Reserve Form U-1
referred to in Regulation U of the Federal Reserve Board). Notwithstanding
the foregoing, Borrowers may make capital contributions, whether in the
form of cash or otherwise, in any non wholly owned Subsidiary up to a
maximum aggregate amount of $3,000,000 per
49
annum;
(C) Loans. Except as set forth on SCHEDULE 10, make any loans or other
advances of money (other than salary) to any other Borrower, or any
Affiliate, officers, directors, employees or agents of Affiliates or such
Borrower or to any other Person in excess of $100,000, except for (i) such
loans or advances to employees in the ordinary course of business
consistent with past practice, and (ii) inter-company loans among Borrowers
or their Subsidiaries, which loans shall not exceed $2,700,000 in the
aggregate during the Revolving Credit Term without Administrative Agent's
express written consent and shall be subordinated to the Indebtedness;
(D) Foreign Deposits. Deposit funds with financial institutions
outside the United States in excess of $10,000,000 U.S. Dollars per account
or $10,000,000 U.S. Dollars in the aggregate, excluding any funds deposited
with ABN AMRO or an affiliate of ABN AMRO;
(E) Capital Structure and Business. Make any material change in such
Borrower's capital structure or in any of its business objectives, purposes
and operations or permit any Subsidiary to make any material change in such
Subsidiary's capital structure or in any of its business objectives,
purposes and operations;
(F) Affiliate Transactions. Enter into, or be a party to, any
transaction with any Affiliate or partner, shareholder, director or officer
of such Borrower or an Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of such Borrower's business and
upon fair and reasonable terms which are fully disclosed to Administrative
Agent and are no less favorable to such Borrower than could be obtained in
a comparable arm's length transaction with a Person not an Affiliate or
partner, shareholder, director or officer of such Borrower or an Affiliate;
(G) Adverse Transactions. (i) Enter or permit any Subsidiary to enter
into any transaction which materially and adversely affects the Collateral
or such Borrower's ability to repay the Indebtedness to Administrative
Agent or any Lender or (ii) permit or agree to any extension, compromise or
settlement or make any change or modification of any kind or nature with
respect to any Account, including any of the terms relating thereto, except
in accordance with such Borrower's current credit collection policy as
disclosed to Administrative Agent and each Lender;
(H) Guarantees. Except as set forth on SCHEDULE 11, guaranty or
otherwise, in any way, become liable or permit any Subsidiary to become
liable with respect to the obligations or liabilities of any other Person,
except as provided herein and in the Credit Documents, by endorsement of
instruments or items of payment for deposit to the general account of such
Borrower or for delivery to Administrative Agent on account of the
Indebtedness, except Borrowers may guaranty an additional $2,000,000;
(I) Other Liens; Transfer of Assets. Except for Permitted Liens and as
50
otherwise expressly permitted in this Agreement or in the Ancillary
Agreements, pledge, mortgage, grant a security interest in or permit to
exist a Lien on, encumber, assign, sell, lease, license or otherwise
dispose of or transfer, whether by sale, merger, consolidation,
liquidation, dissolution, or otherwise, any of such Borrower's assets or
permit any Subsidiary to pledge, mortgage, grant a security interest in or
permit to exist a Lien on, encumber, assign, sell or otherwise dispose of
or transfer, whether by sale, merger, consolidation, liquidation,
dissolution or otherwise, any of such Subsidiary's assets;
(J) Other Indebtedness. Incur or permit any Subsidiary to incur any
Liabilities, including Subordinated Debt, other than Permitted Debt;
(K) Organic Documents. Amend or otherwise modify or permit any
Subsidiary to amend or otherwise modify any material term of its
certificate of limited partnership or agreement of limited partnership or
charter and by-laws or other organic document, as applicable, in effect on
the date hereof or on the date of its later formation except for
amendments, modifications or waivers that are not adverse in any way to
Administrative Agent or Lenders;
(L) Restriction on Redemptions. Directly or indirectly purchase,
redeem or otherwise acquire or retire any interest of any shareholder of
such Borrower or any of such Borrower's common stock, except that a
Borrower may repurchase portions of its common stock so long as (i) at the
time of, and after giving effect to, any such repurchase, no Event of
Default exists, (ii) such repurchases are made only in connection with such
Borrower's existing employee stock purchase program, and (iii) total
expenditure by Borrowers, in the aggregate, for all such repurchases, net
of amounts received by Borrowers in respect of sales by Borrowers of its
common stock under its existing employee stock purchase program, shall not
exceed $2,000,000;
(M) Dividend Distributions and Fees. (a) Make or declare any partial
or full dividend or distribution to any shareholder, or (b) pay any
management fees in excess of $100,000 and
(N) Capital Raising Transactions. Consummate any Capital Raising
Transaction without thirty (30) days advance written notice to
Administrative Agent, each of which shall be subject to Section 4.4(B).
7.4 CONTESTING CHARGES. Notwithstanding anything to the contrary in this
Agreement, a Borrower may dispute any Charges without prior payment thereof, so
long as such non-payment will not cause a Lien except a Permitted Lien to attach
to such Borrower's assets, and provided that such Borrower shall give
Administrative Agent and each Lender prompt notice of such dispute and shall be
diligently contesting the same in good faith and by an appropriate proceeding
and there is no danger of a loss or forfeiture of any of the Collateral and
provided further that, if such disputed Charges are potentially or actually in
excess of $500,000 in the aggregate, such Borrower shall give Administrative
Agents and each Lender such additional collateral and assurances as
Administrative Agent and such Lender, in their
51
reasonable discretion, deem necessary under the circumstances, immediately upon
demand by Administrative Agent and such Lender.
7.5 PAYMENT OF CHARGES. Subject to the provisions of Section 7.4, a
Borrower shall pay promptly when due all of the Charges. In the event such
Borrower, at any time or times, shall fail to pay the Charges or to promptly
obtain the satisfaction of such Charges, such Borrower shall promptly so notify
Administrative Agent and each Lender and Administrative Agent and such Lender
may, without waiving or releasing any obligation or liability of such Borrower
under this Agreement or any Event of Default, in its sole discretion, at any
subsequent time or times, make such payment or any part thereof (but shall not
be obligated so to do), or obtain such satisfaction and take any other action
which Administrative Agent or such Lender deems advisable. All sums so paid by
Administrative Agent or any Lender and any expenses, including reasonable
attorneys' fees, court costs, expenses and other related charges, shall be
payable by such Borrower to Administrative Agent or such Lender upon demand and
shall be additional Indebtedness.
7.6 INSURANCE; PAYMENT OF PREMIUMS. All policies of insurance on the
Collateral or otherwise required under this Agreement shall be in form and
amount satisfactory to Administrative Agent and with insurers reasonably
recognized as adequate by Administrative Agent. Borrowers shall give
Administrative Agent written notice within two (2) days after a Borrower's
policy will be materially altered or canceled. Borrowers shall further deliver
any renewals of such policies to Administrative Agent at least thirty (30) days
prior to their expiration dates. Each Borrower hereby directs all insurers under
such policies to pay all proceeds directly to Administrative Agent after the
occurrence and during the continuation of an Event of Default. Each Borrower
irrevocably makes, constitutes and appoints Administrative Agent (and all
officers, employees or agents designated by Administrative Agent) as such
Borrower's true and lawful attorney and agent-in-fact for the purpose of making,
settling and adjusting claims under such policies (provided that Administrative
Agent shall consult with such Borrower prior to finally making, settling or
adjusting claims under such policies and provided further that no Borrower shall
have any liability to Administrative Agent or any Lender in the event that
Administrative Agent is deemed to be a liable lender for taking or omitting to
take any such actions), endorsing the name of such Borrower in writing or by
stamp on any check, draft, instrument or other item of payment for the proceeds
of such policies and for making all determinations and decisions with respect to
such policies. If such Borrower shall fail to obtain or maintain any of the
policies required by this Section 7.6 or to pay any premium relating thereto,
then Administrative Agent or any Lender, without waiving or releasing any
obligation or Event of Default by such Borrower hereunder, may (but shall be
under no obligation to do so) obtain and maintain such policies of insurance and
pay such premiums and take any other action which Administrative Agent or such
Lender deems advisable. All sums so disbursed by Administrative Agent or any
Lender, including reasonable attorneys' fees, court costs, expenses and other
charges relating thereto, shall be payable by Borrowers to Administrative Agent
or such Lender upon demand and shall be additional Indebtedness.
7.7 SURVIVAL OF OBLIGATIONS UPON TERMINATION OF AGREEMENT. Except as
otherwise expressly provided for in this Agreement and the other Credit
Documents, no
52
termination or cancellation (regardless of cause or procedure) of this Agreement
or any other Loan Document shall in any way affect or impair the powers,
obligations, duties, rights, and liabilities of Borrowers or Administrative
Agent or any Lender in any way with respect to (i) any transaction or event
occurring prior to such termination or cancellation, (ii) the Collateral, or
(iii) any of the undertakings, agreements, covenants, warranties and
representations of Borrowers or Administrative Agent or any Lender contained in
the Credit Documents. All such undertakings, agreements, covenants, warranties
and representations shall survive such termination or cancellation.
8. EVENTS OF DEFAULT; RIGHTS AND REMEDIES.
8.1 EVENT OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an Event of Default under this Agreement:
(A) Any Borrower fails to pay, within two (2) Business Days after the
same shall be due and payable or be declared due and payable, any part of
the Indebtedness; or
(B) Borrowers or any Subsidiary or any guarantor of the Indebtedness
fails or neglects to perform, keep or observe (i) any term, provision,
condition or covenant contained in Section 7 of this Agreement and such
failure continues unremedied for a period of ten (10) days or (ii) any
other term, provision, condition or covenant contained in this Agreement or
any other Credit Document, which is required to be performed, kept or
observed by a Borrower or such Subsidiary or guarantor and such failure
continues unremedied for a period of ten (10) days; or
(C) Any statement, warranty, representation, report, financial
statement, or certificate made or delivered by a Borrower, any of its
officers, employees or agents, to Administrative Agent or any Lender is not
true and correct in any material respect on the date it was made or
delivered or deemed re-made; or
(D) Any Borrower or any of its Subsidiaries is in default in the
payment of Indebtedness for Borrowed Money (other than the Indebtedness) in
the aggregate in excess of $500,000 beyond any applicable cure period,
excluding any reasonably disputed amounts; or
(E) There shall occur any material uninsured damage to or loss, theft,
or destruction of any of the Collateral in excess of $500,000 and such
Collateral is not replaced with Collateral with equal or greater value
within thirty (30) days; or
(F) Collateral or any of Borrowers' other assets or any assets of any
Subsidiary valued in the aggregate at $500,000 are attached, seized, levied
upon or subjected to a writ or distress warrant, or come within the
possession of any receiver, trustee, custodian or assignee for the benefit
of creditors and the same is not cured within ten (10) days; or an
application is made by any Person for the appointment of a receiver,
53
trustee, or custodian for any of the Collateral or any of Borrowers' other
assets or any assets of any Subsidiary valued in the aggregate at $500,000
and the same is not dismissed within sixty (60) days after such
application; or
(G) An application is made by a Borrower for the appointment of a
receiver, trustee or custodian for any of the Collateral or any of such
Borrower's other assets valued in the aggregate at $500,000; or an
application is made by any Subsidiary or any guarantor of the Liabilities,
for the appointment of a receiver, trustee or custodian for any of such
Subsidiary's or such guarantor's assets; or any case or proceeding is filed
by or against a Borrower, any Subsidiary or any such guarantor for its
dissolution, liquidation, or termination; or a Borrower or any Subsidiary
ceases to conduct its business as now conducted or is enjoined, restrained
or in any way prevented by court order from conducting all or any material
part of its business affairs; or
(H) A notice of Lien, levy or assessment is filed of record with
respect to all or any substantial portion of a Borrower's assets or any
Subsidiary's assets by the United States, or any department, agency or
instrumentality, or by any state, county, municipal or other governmental
agency including the Pension Benefit Guaranty Corporation, or any taxes or
debts owing to any of the foregoing becomes a Lien or encumbrance upon the
Collateral or any of a Borrower's other assets or upon any Subsidiary's
assets having a value equal to or greater than $500,000 and such Lien or
encumbrance is not released within sixty (60) days after its creation; or
(I) Judgment(s) is or are rendered against a Borrower or any
Subsidiary in the aggregate in excess of $500,000 and such Person fails to
either discharge the judgment or commence appropriate proceedings to appeal
such judgment(s) within the applicable appeal period or, after such appeal
is filed, such Person fails to diligently prosecute such appeal or such
appeal is denied; or
(J) A petition under any section or chapter of the United States
Bankruptcy Code or any similar law or regulation is filed by or against a
Borrower, any Subsidiary or any guarantor of the Liabilities with assets
affecting the Borrowing Base in an amount equal to or greater than
$500,000, and, if filed against a Borrower, any Subsidiary or any such
guarantor, is not dismissed within sixty (60) days after filing; or a
Borrower, any Subsidiary or any such guarantor makes an assignment for the
benefit of its creditors; or a Borrower or any Subsidiary becomes
insolvent, fails generally to pay its debts as they become due or admits
its inability to pay its debts as they become due; or
(K) A Borrower fails to furnish Administrative Agent and each Lender
with appropriate notice within thirty (30) days after the occurrence of any
of the following events: (i) the happening of a Reportable Event with
respect to any profit sharing or pension plan governed by ERISA (such
notice shall contain the statement of the chief financial officer of a
Borrower setting forth details as to such Reportable Event and the action
which such Borrower or the applicable Subsidiary proposes to take with
respect thereto and a copy of the notice of such Reportable Event to the
Pension Benefit
54
Guaranty Corporation), (ii) the termination of any such plan, (iii) the
appointment of a trustee by an appropriate United States District Court to
administer any such plan, or (iv) the institution of any proceedings by the
Pension Benefit Guaranty Corporation to terminate any such plan or to
appoint a trustee to administer any such plan; or
(L) A Borrower fails to: (i) notify Administrative Agent and each
Lender promptly upon receipt by such Borrower or any Subsidiary of any
notice of the institution of any proceeding or other actions which may
result in the termination of any profit sharing or pension plan and a
Liability to a Borrower equal to or greater than $500,000; or (ii) acquire
and maintain or cause any Subsidiary to acquire and maintain, when
available, the contingent employer liability coverage insurance provided
for under Section 4023 of ERISA in an amount satisfactory to the Required
Lenders; or
(M) This Agreement or any other Loan Document shall be repudiated or
become unenforceable or incapable of performance, in whole or in part; or
(N) Any Person(s) presently not in control of a Borrower shall obtain
control directly or indirectly of such Borrower; or
(O) Borrowers fail to (i) to complete any item enumerated in the
Memorandum of Understanding within the time period prescribed therein for
such item or (ii) materially perform or observe any other term, provision,
condition or covenant contained therein.
8.2 EFFECT OF EVENT OF DEFAULT. If (a) any Event of Default described in
Section 8.1(J) shall occur, the Commitments (if they have not theretofore
terminated) shall immediately terminate and all Notes shall become immediately
due and payable, all without presentment, demand, protest or notice of any kind,
or any action by Administrative Agent or any of Lenders; and (b) any other Event
of Default shall occur (other than an Event of Default described in Section
8.1(J)), Administrative Agent may (and upon written request of the Required
Lenders, shall) declare the Commitments (if they have not theretofore
terminated) to be terminated and all Notes to be due and payable, whereupon the
Commitments (if they have not theretofore terminated) shall immediately
terminate and all Notes shall become immediately due and payable, all without
presentment, demand, protest or notice of any kind. Administrative Agent shall
promptly advise Borrowers and each Lender of any such declaration, but failure
to do so shall not impair the effect of such declaration.
8.3 REMEDIES. Upon and after the occurrence of an Event of Default,
Administrative Agent shall have all of the following rights and remedies:
(A) All of the rights and remedies of a secured party under the
Illinois Uniform Commercial Code or other applicable law, all of which
rights and remedies shall be cumulative and non-exclusive, to the greatest
extent permitted by law, and in addition to any other rights and remedies
contained in this Agreement and in any of the Ancillary Agreements;
55
(B) The right to (i) peacefully enter upon the premises of each
Borrower or any other place or places where the Collateral is located and
kept, without any obligation to pay rent to such Borrower or any other
person, through self-help and without judicial process or first obtaining a
final judgment or giving such Borrower notice and opportunity for a hearing
on the validity of Administrative Agent's and each Lender's claim, and
remove the Collateral from such premises and places, for such time as
Administrative Agent and each Lender may require to collect or liquidate
the Collateral, and/or (ii) require each Borrower to assemble and deliver
the Collateral to Administrative Agent at a place to be designated by
Administrative Agent;
(C) The right to (i) open each Borrower's mail and collect any and all
amounts due from Account Debtors, (ii) notify Account Debtors that the
Accounts have been assigned to Administrative Agent and that Administrative
Agent has a security interest therein and (iii) direct such Account Debtors
to make all payments due from them upon the Accounts, directly to
Administrative Agent in accordance with the Lockbox Agreement.
Administrative Agent shall promptly furnish each Borrower with a copy of
any such notice sent and each Borrower hereby agrees that any such notice
in Administrative Agent's sole discretion, may be sent on Administrative
Agent's stationery, in which event, each Borrower shall, upon demand,
co-sign such notice with Administrative Agent; and
(D) The right to sell, lease or to otherwise dispose of all or any
Collateral in its then condition, or after any further manufacturing or
processing thereof, at public or private sale or sales, with such notice as
provided in Section 8.4, in lots or in bulk, for cash or on credit, all as
Administrative Agent, in its sole discretion, may deem advisable. At any
such sale or sales of the Collateral, the Collateral need not be in view of
those present and attending the sale, nor at the same location at which the
sale is being conducted. Administrative Agent shall have the right to
conduct such sales on each Borrower's premises or elsewhere and shall have
the right to use each Borrower's premises without charge by Borrowers or
their Affiliates for such sales for such time or times as Administrative
Agent may see fit, subject to the rights of any landlord to such premises.
In connection with any such sale or sales, Administrative Agent is granted
a license or other right to use, without charge, each Borrower's labels,
patents, copyrights, rights of use of any name, trade secrets, trade names,
trademarks and advertising matter, or any property of a similar nature, as
it pertains to the Collateral, in advertising for sale and selling any
Collateral and each Borrower's rights under all licenses and all franchise
agreements shall inure to Administrative Agent's benefit but Administrative
Agent shall have no obligations thereunder. Administrative Agent may
purchase all or any part of the Collateral at public or, if permitted by
law, private sale and, in lieu of actual payment of such purchase price,
may setoff the amount of such price against the Indebtedness. The proceeds
realized from the sale of any Collateral shall be applied as set forth in
Section 8.7. If any deficiency shall arise, Borrowers shall remain liable
to Administrative Agent and each Lender for the amount of such deficiency.
56
8.4 NOTICE. Each Borrower agrees that any notice required to be given by
Administrative Agent or any Lender of a sale, lease, other disposition of any of
the Collateral or any other intended action by Administrative Agent or such
Lender, which is personally delivered to such Borrower or which is deposited in
the United States mail, postage prepaid and duly addressed to such Borrower at
the address set forth in Section 10.10, at least ten (10) days prior to any such
public sale, lease or other disposition or other action being taken, or prior to
the time after which any private sale of the Collateral is to be held, shall
constitute commercially reasonable and fair notice to such Borrower.
8.5 DEFAULT INTEREST RATE. To compensate Administrative Agent and each
Lender for additional unreimbursed costs resulting from the occurrence of an
Event of Default, including acts associated with the uncertainty of future
funding and additional supervisory and administrative efforts, upon the
occurrence of and during the continuance of an Event of Default, the
Indebtedness shall continue to bear interest, calculated daily on the basis of a
360-day year, at the Default Rate until the Event of Default is cured or if the
Event of Default is not cured, until the Indebtedness is repaid in full,
provided, however, that in no contingency or event whatsoever shall the rate or
amount of interest paid by Borrowers under this Agreement or any of the
Ancillary Agreements exceed the maximum amount permissible under any law which a
court of competent jurisdiction shall, in a final determination, deem
applicable. In the event that such a court determines that Administrative Agent
or any Lender has received interest under this Agreement or under any Ancillary
Agreement in excess of the maximum amount permitted by such law, such Lender
shall promptly refund such excess interest to Borrowers and the provisions of
this Agreement shall be deemed amended to provide for such permissible rate. All
sums paid, or agreed to be paid, by Borrowers which are, or to be may be
construed to be, compensation for the use, forbearance or detention of money
shall, to the extent permitted by applicable law, be amortized, prorated, spread
and allocated throughout the term of all such indebtedness until the
indebtedness is paid in full.
8.6 PRESERVATION OF RIGHTS. No delay or omission of Administrative Agent or
any Lender to exercise any right under this Agreement or any Ancillary Agreement
shall impair such right or be construed to be a waiver of any Event of Default
or an acquiescence therein, and the making of a Loan notwithstanding the
existence of an Event of Default or the inability of Borrowers to satisfy the
conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of this Agreement or any Ancillary Agreement whatsoever shall be
valid unless in writing signed by the Required Lenders, and then only to the
extent in such writing specifically set forth. All remedies contained in this
Agreement or any Ancillary Agreement or by law afforded shall be cumulative and
all shall be available to Administrative Agent and Lenders until the
Indebtedness has been paid in full.
8.7 DISTRIBUTIONS. Administrative Agent shall distribute all proceeds and
other amounts received by it with respect to Collateral:
First, to the payment of any amounts owed to it under Section 10.3 or under
any
57
Ancillary Agreement executed pursuant hereto and any expenses incurred by
Administrative Agent in connection with the maintenance, preservation or
protection of any Collateral;
Second, to all Lenders pro rata according to the then outstanding amount of
Indebtedness held by each such Lender; and
Third, if any balance remains after the Indebtedness has been paid in full,
to Borrowers.
Each Lender shall apply any payment so received from Administrative Agent,
First, to unpaid accrued interest, if any, on its Indebtedness until paid
in full;
Second, to the unpaid premium, if any, on its Indebtedness;
Third, to the unpaid principal of its Indebtedness until paid in full; and
Fourth, to its other Indebtedness;
provided, however, that any Lender which receives any payment on account of
Borrowers' contingent obligations under a Letter of Credit shall hold such
payment as cash collateral for such contingent obligation (and shall have no
obligation to pay interest thereon), and, following any reduction of the stated
amount of such Letter of Credit or termination thereof, shall return to
Administrative Agent for distribution pursuant to this Section 8.7 any amounts
in excess of Borrowers' contingent obligations not used to reimburse such
Lender.
8.8 METHOD OF ADJUSTMENT. If any Lender shall obtain any payment with
respect to its Indebtedness in excess of its (or their) pro rata share pursuant
to Section 8.7, it shall be deemed to have received such excess on behalf of all
Lenders and shall promptly deliver such excess to Administrative Agent for
distribution in accordance with Section 8.7. If for any reason payments to
Administrative Agent in the preceding sentence shall be determined by
Administrative Agent to be improper or not advisable, then such Lender shall
purchase from each Lender receiving less than its pro rata share, such
participation in its Indebtedness as shall be necessary for such purchasing
Lender to share the excess payment received pro rata with such other Lenders;
provided, however, that if all or any portion of such excess payment be
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded to the extent of such recovery, but without interest or premium; and,
provided, further, that the nonperformance by any Lender of its obligation under
this Section shall not excuse any other Lender hereunder.
9. AGENT. Administrative Agent and Lenders (and not Borrowers, except for
Section 9.10) hereby agrees as follows in this Section 9:
9.1 APPOINTMENT AND AUTHORIZATION. Each Lender hereby irrevocably (subject
to Section 9.9) appoints, designates and authorizes Administrative Agent to take
such action on its
58
behalf under the provisions of the Credit Documents and to exercise such powers
and perform such duties as are expressly delegated to it by the terms of the
Credit Documents, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any Ancillary Agreement, Administrative Agent shall not
have any duties or responsibilities except those expressly set forth herein, nor
shall Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any Ancillary
Agreement.
9.2 DELEGATION OF DUTIES. Administrative Agent may perform any of its
duties under the Credit Documents by or through its agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Administrative Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
9.3 NO LIABILITY OF ADMINISTRATIVE AGENT. No Administrative Agent-Related
Persons shall (i) be liable for any action taken or omitted to be taken by any
of them under or in connection with this Agreement or any other Ancillary
Agreement or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct) or (ii) be responsible in any manner to any of
Lenders for any recital, statement, representation or warranty made by Borrowers
or any Subsidiary or Affiliate of Borrowers, or any officer thereof, contained
in this Agreement or in any other Ancillary Agreement, or in any certificate,
report, statement or other document referred to or provided for in, or received
by Administrative Agent under or in connection with, this Agreement or any other
Ancillary Agreement, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Credit Documents, or for any
failure of Borrowers or any other party to any Loan Document to perform its
obligations hereunder or thereunder. No Administrative Agent-Related Person
shall be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of Borrowers or any of Borrowers' Subsidiaries or Affiliates.
9.4 RELIANCE BY ADMINISTRATIVE AGENTS. Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to Borrowers), independent accountants and
other experts selected by Administrative Agent. Administrative Agent shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders and, if it so requests, confirmation from
Lenders of their obligation to indemnify Administrative Agent against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of
59
the Required Lenders (unless the consent of all Lenders is required in such
case, in which case unanimous consent of Lenders) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all of
Lenders. For purposes of determining compliance with the conditions specified in
Section 6 or in any comparable provision of any amendment hereto, each Lender
that has executed this Agreement or such amendment shall be deemed to have
consented to, approved or accepted, or to be satisfied with, each document or
other matter either sent by an Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Lender.
9.5 NOTICE OF DEFAULT. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Event of Default, except with
respect to defaults in the payment of principal, interest and fees required to
be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrowers referring to this Agreement, describing such Event of Default and
stating that such notice is a "notice of default". Administrative Agent will
notify Lenders of its receipt of any such notice. Administrative Agent shall
take such action with respect to such Event of Default as may be requested by
the Required Lenders in accordance with Section 8; provided, however, that
unless and until Administrative Agent has received any such request,
Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default as it
shall deem advisable or in the best interest of Lenders.
9.6 CREDIT DECISION. Each Lender acknowledges that neither Administrative
Agent nor any of Administrative Agent-Related Persons have made any
representation or warranty to it, and that no act by Administrative Agent
hereinafter taken, including any review of the affairs of Borrowers and their
Subsidiaries, shall be deemed to constitute any representation or warranty by
any Administrative Agent-Related Person to any Lender. Each Lender represents to
Administrative Agent that it has, independently and without reliance upon any
Administrative Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, prospects, operations, property, financial and other condition and
creditworthiness of Borrowers and their Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to Borrowers
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Administrative Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Credit Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrowers. Except for notices, reports and other documents
expressly herein required to be furnished to Lenders by Administrative Agent,
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
Borrowers which may come into the possession of any of Administrative
Agent-Related Persons.
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9.7 INDEMNIFICATION. Lenders shall indemnify, upon demand, Administrative
Agent and any Administrative Agent-Related Persons (to the extent not reimbursed
by or on behalf of Borrowers and without limiting the obligation of Borrowers to
do so), pro rata, from and against any and all Indemnified Liabilities (as
defined below); provided, however, that no Lender shall be liable for the
payment to Administrative Agent or any Administrative Agent-Related Persons of
any portion of such Indemnified Liabilities resulting solely from such Person's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender shall reimburse Administrative Agent and any Administrative
Agent-Related Persons upon demand for its ratable share of any fees, costs or
expenses (including reasonable attorneys' fees, costs and expenses for
Administrative Agent and Administrative Agent-Related Persons) incurred by
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that
Administrative Agent is not reimbursed for such expenses by or on behalf of
Borrowers. To the extent that Administrative Agent or any Administrative
Agent-Related Person shall thereafter be reimbursed by or on behalf of Borrowers
for any amount paid by Lenders pursuant to this Section 9.7, such Person shall
reimburse each Lender for its ratable share of any such amount. The undertaking
in this Section shall survive the expiration or termination of the Commitments
and payment of the Loans and other liabilities of Borrowers hereunder and the
resignation or replacement of Administrative Agent. For the purposes of this
Section 9.7, "INDEMNIFIED LIABILITIES" shall mean: any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including reasonable fees of attorneys for
Administrative Agent and Administrative Agent-Related Persons) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of
Administrative Agent or replacement of any Lender) be imposed on, incurred by or
asserted against any such Administrative Agent Related Person in any way
relating to or arising out of this Agreement or any document contemplated by or
referred to herein, or the transactions contemplated hereby, or any action taken
or omitted by any such Administrative Agent Related Person under or in
connection with any of the foregoing, including with respect to any
investigation, litigation or proceeding (including (i) any case, action or
proceeding before any court or other governmental authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors or (ii) any general assignment for the benefit
of creditors, composition, marshaling of assets for creditors, or other, similar
arrangement in respect of its creditors generally or any substantial portion of
its creditors; undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or not any
Administrative Agent-Related Person, any Lender or any of their respective
officers, directors, employees, counsel, agents or attorneys-in-fact is a party
thereto.
9.8 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY. LaSalle and its Affiliates
may make loans to, issue Letters of Credit for the account of, accept deposits
from and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with
61
Borrowers and their Subsidiaries and Affiliates as though it were not
Administrative Agent hereunder and without notice to or consent of Lenders.
Lenders acknowledge that, pursuant to such activities, Administrative Agent or
its Affiliates may receive information regarding Borrowers or their Affiliates
(including information that may be subject to confidentiality obligations in
favor of Borrowers or such Subsidiaries) and acknowledge that Administrative
Agent shall be under no obligation to provide such information to them. With
respect to their Loans, Administrative Agent and its Affiliates shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though such Administrative Agent were not an Administrative Agent,
and the terms Lender and Lenders include Administrative Agent and its
Affiliates, to the extent applicable, in their individual capacities.
9.9 SUCCESSOR ADMINISTRATIVE AGENT. Administrative Agent may resign as an
Administrative Agent upon 30 days' notice to Lenders. If Administrative Agent
resigns under this Agreement, the Required Lenders shall, with the prior written
consent of Borrowers, appoint from among Lenders a successor agent for Lenders.
If no successor agent is appointed prior to the effective date of the
resignation of Administrative Agent, Administrative Agent may appoint, after
consulting with Lenders and with the prior written consent of Borrowers, a
successor agent from among Lenders. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Administrative Agent and the term
Administrative Agent shall mean such successor agent and the retiring
Administrative Agent's appointment, powers and duties as an Administrative Agent
shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 9 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
an Administrative Agent under this Agreement. If no successor agent has accepted
appointment as an Administrative Agent by the date which is 30 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and Lenders shall perform all of the duties of an Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
9.10 APPOINTMENT OF ADMINISTRATIVE AGENT AS EACH BORROWER'S LAWFUL
ATTORNEY-IN-FACT. Each Borrower irrevocably designates, makes, constitutes and
appoints Administrative Agent (and all persons designated by Administrative
Agent) as such Borrower's true and lawful attorney and agent-in-fact and
Administrative Agent, or Administrative Agent's agent, may, without notice to
such Borrower:
(A) At any time after the occurrence of and during the continuance of
an Event of Default, endorse by writing or stamp each Borrower's name on
any checks, notes, drafts or any other payment relating to and/or proceeds
of the Collateral which come into the possession of Administrative Agent or
under Administrative Agent's control and deposit the same to the account of
Administrative Agent for application to the Indebtedness;
(B) At any time after the occurrence of and during the continuance of
an Event of Default, in each Borrower's or Administrative Agent's name: (i)
demand
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payment of the Collateral; (ii) enforce payment of the Collateral, by legal
proceedings or otherwise; (iii) exercise all of each Borrower's rights and
remedies with respect to the collection of the Collateral; (iv) settle,
adjust, compromise, extend or renew the Accounts; (v) settle, adjust or
compromise any legal proceedings brought to collect the Collateral; (vi) if
permitted by applicable law, sell or assign the Collateral upon such terms,
for such amounts and at such time or times as Administrative Agent deems
advisable; (vii) satisfy and release the Accounts; (viii) take control, in
any manner, of any item of payment or proceeds referred to in Section 4.3;
(ix) prepare, file and sign each Borrower's name on any proof of claim in
bankruptcy or similar document against any Account Debtor; (x) prepare,
file and sign each Borrower's name on any notice of Lien, assignment or
satisfaction of Lien or similar document in connection with the Collateral;
(xi) do all acts and things necessary, in Administrative Agent's sole
discretion, to fulfill each Borrower's obligations under this Agreement;
(xii) endorse by writing or stamp the name of each Borrower upon any
chattel paper, document, instrument, invoice, freight xxxx, xxxx of lading
or similar document or agreement relating to the Collateral; and (xiii) use
the information recorded on or contained in any data processing equipment
and computer hardware and software relating to the Collateral to which each
Borrower has access; and
(C) At any time after the occurrence of and during the continuance of
an Event of Default, notify the post office authorities to change the
address for delivery of Borrower's mail to an address designated by
Administrative Agent and receive, open and dispose of all mail addressed to
each Borrower.
10. MISCELLANEOUS.
10.1 MODIFICATION OF AGREEMENT. No amendment, modification or waiver of, or
consent with respect to, any provision of this Agreement or the Notes shall in
any event be effective unless the same shall be in writing and signed and
delivered by Borrowers and Lenders having an aggregate Percentage of not less
than the aggregate Percentage expressly designated herein with respect thereto
or, in the absence of such designation as to any provision of this Agreement or
the Notes, by the Required Lenders, and then any such amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No amendment, modification, waiver or consent
shall extend or increase the amount of the Commitments, extend the final
maturity of the Notes, reduce the principal thereof, reduce the fees hereunder
or the rate of interest payable with respect to the Notes (other than pursuant
to Section 2.1), reduce the aggregate Percentage required to effect an
amendment, modification, waiver or consent, reduce the amount of or extend the
date for the mandatory payments on the Notes, modify the definition of Borrowing
Base, amend this Section 10.1 or permit any assignment by Borrowers of their
obligations or rights hereunder or amend any covenants contained in Sections
7.1, 7.2 or 7.3, without the consent of the Required Lenders in each instance.
No provision of this Agreement relating to Administrative Agent shall be
amended, modified or waived without the consent of Borrowers and Administrative
Agent. No provision relating to Letters of Credit shall be amended, modified or
waived without the consent
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of Borrowers and Issuing Lender. No Borrower may sell, assign, transfer or
otherwise dispose of all or any portion of the Credit Documents, including such
Borrower's right, title, interest, remedies, powers, or duties.
10.2 ASSIGNMENT OF CREDIT DOCUMENTS; PARTICIPATIONS. Each Borrower consents
to any Lender's participation, sale, assignment, transfer or other disposition,
at any time or times, of the Credit Documents, including such Lender's right,
title, interest, remedies, powers, or duties. Each Borrower consents to any
Lender's pledge of its rights under this Agreement, any Note issued hereunder or
any Collateral Document or Ancillary Agreement to the Federal Reserve Bank. Any
Lender shall have the right to sell, assign or transfer all or part of any Note
to one or more banks or other financial institutions, or to grant participations
to one or more banks or other financial institutions, in or to any Loan
hereunder and any Note held by such Lender upon three (3) days prior written
notice to Borrowers (and if no Event of Default has occurred and is continuing
with the prior written consent of Borrowers) and Administrative Agent together
with, in the case of assignments only, execution and delivery to Administrative
Agent and Borrowers of an Assignment Agreement and payment of a $5,000 fee to
Administrative Agent for processing such assignment. Borrowers hereby consent to
the disclosure of any information obtained by Administrative Agent or any Lender
in connection herewith to any bank or other financial institution to which any
Lender now or hereafter has sold, assigned or transferred, or sold or proposed
to sell, assign or transfer, all or any part of any Note or any participation
interest in any Loan or Note. Upon the sale, transfer or assignment of all or a
portion of any Note pursuant to one or more Assignment Agreements, Borrowers
shall, upon the request of the assigning Lender, execute a new note or notes in
a form substantially similar to the Note or Notes so replaced. Each such
transferee shall be deemed to be a Lender under this Agreement. Each transferee
of any Note shall take such Note subject to the provisions of this Agreement and
to any request made, waiver or consent given or other action taken hereunder
prior to the receipt by Administrative Agent and Borrowers of written notice of
such transfer. Each Lender represents that it is the present intention of such
Lender to acquire each Note drawn to its order for its own account and not with
a view to the distribution or sale thereof, subject, nevertheless, to the
necessity that such Lender remain in control at all times of the disposition of
property held by it for its own account; it being understood that the foregoing
representation shall not affect the character of the Loans as commercial lending
transactions.
10.3 FEES, COSTS AND EXPENSES. Borrowers, jointly and severally, hereby
agree to pay for all fees, costs and expenses incurred by Administrative Agent
(including, but not limited to, reasonable external and internal legal and
paralegal fees, costs and expenses), whether or not an Even of Default has
occurred or is occurring, in connection with:
(A) The preparation, negotiation and execution of this Agreement, all
Ancillary Agreements, and any amendment of or modification of this
Agreement or the Ancillary Agreements;
(B) Any litigation, contest, dispute, suit, proceeding or action
(whether instituted by Administrative Agent, any Lender, a Borrower or any
other Person) arising from the Credit Documents;
64
(C) Any attempt to enforce any rights of Administrative Agent or any
Lender against a Borrower or any other Person which may be obligated to
Administrative Agent or such Lender by virtue of this Agreement or the
Ancillary Agreements, including the Account Debtors;
(D) Any attempt to inspect, verify, protect, collect, sell, liquidate
or otherwise dispose of any of the Collateral; or
(E) Any inspection, verification, protection, collection, sale,
liquidation or other disposition of any of the Collateral, including
without limitation, Administrative Agent's periodic field audits and audits
of a Borrower's books and records;
then, in any such event, the reasonable attorneys' and paralegals' fees and
expenses arising from such services and all reasonably incurred expenses, costs,
charges and other fees of or paid by Administrative Agent (or any Lender after
the occurrence of and during the continuation of an Event of Default) in any way
or respect arising in connection with or relating to any of the events or
actions described in this Section 10.3 shall be payable by Borrowers, jointly
and severally, to Administrative Agent (or any Lender after the occurrence of
and during the continuation of an Event of Default) upon demand and shall be
additional Indebtedness. Without limiting the generality of the foregoing, such
expenses, costs, charges and fees may include accountants' fees, costs and
expenses; court costs, fees and expenses; photocopying and duplicating expenses;
court reporter fees, costs and expenses; long distance telephone charges;
courier charges; telegram and telecopy charges.
10.4 NO OFFSET; RIGHT TO CHARGE ACCOUNTS. All payments due to
Administrative Agent or any Lender shall be made in immediately available funds,
without setoff or counterclaim. At Administrative Agent's or any Lender's sole
discretion, Administrative Agent or such Lender may charge against any demand
account of a Borrower all or any part of the Liabilities which is due and
payable.
10.5 SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10.6 PARTIES; ENTIRE AGREEMENT. The Credit Documents shall be binding upon
and inure to the benefit of the respective successors and assigns of each
Borrower, Administrative Agent and each Lender. Each Borrower's successors and
assigns shall include a trustee, receiver or debtor-in-possession of or for such
Borrower. Nothing contained in this Section 10.6 shall be deemed to modify
Section 10.2. This Agreement is the complete statement of the agreement by and
among Borrowers, Administrative Agent and each Lender and supersedes all prior
negotiations, understandings and representations between them with respect to
the subject matter of this Agreement.
65
10.7 CONFLICT OF TERMS. The provisions of the Collateral Documents and the
Ancillary Agreements are incorporated in this Agreement by this reference.
Except as otherwise provided in this Agreement and except as otherwise provided
in any Collateral Document or Ancillary Agreement, by specific reference to the
applicable provision of this Agreement, if any provision contained in this
Agreement is in conflict with, or inconsistent with, any provision in any
Collateral Document or Ancillary Agreement, the provision contained in this
Agreement shall govern and control.
10.8 WAIVER BY BORROWERS. Except as otherwise provided for in this
Agreement, each Borrower waives (i) presentment, demand and protest, notice of
protest, notice of presentment, default, non-payment, maturity, release,
compromise, settlement, extension or renewal of any or all commercial paper,
accounts, contract rights, documents, instruments, chattel paper and guaranties
at any time held by Administrative Agent or any Lender on which such Borrower
may in any way be liable and hereby ratifies and confirms whatever
Administrative Agent or such Lender may do in this regard; (ii) all rights to
notice and a hearing prior to Administrative Agent's or any Lender's taking
possession or control of, or Administrative Agent's or any Lender's replevy,
attachment or levy upon the Collateral or any bond or security which might be
required by any court prior to allowing Administrative Agent or any Lender to
exercise any of Administrative Agent's or any Lender's remedies; and (iii) the
benefit of all valuation, appraisement, extension and exemption laws. Each
Borrower acknowledges that it has been advised by its counsel with respect to
this Agreement and the transactions evidenced by this Agreement.
10.9 WAIVER AND GOVERNING LAW. THE LOANS EVIDENCED HEREBY HAVE BEEN MADE,
AND THIS AGREEMENT HAS BEEN DELIVERED, AT CHICAGO, ILLINOIS, AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT REGARD
TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS. EACH BORROWER (i)
WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION TO ENFORCE OR DEFEND ANY
MATTER ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY OF THE ANCILLARY
AGREEMENTS; (ii) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED IN XXXX COUNTY, ILLINOIS, OVER ANY ACTION OR PROCEEDING TO ENFORCE
OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY OF THE
ANCILLARY AGREEMENTS; (iii) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT SUCH
BORROWER MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING; (iv) AGREES THAT A FINAL,
NON-APPEALABLE JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND
MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW; AND (v) AGREES NOT TO INSTITUTE ANY LEGAL ACTION
OR PROCEEDING AGAINST AGENT, ANY LENDER OR ANY OF AGENT'S OR LENDER'S DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR PROPERTY, CONCERNING ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OF THE
66
ANCILLARY AGREEMENTS, IN ANY COURT OTHER THAN ONE LOCATED IN XXXX COUNTY,
ILLINOIS. EACH BORROWER WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR
OTHER PROCESS OR PAPERS ISSUED IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY MATTER ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY OF THE ANCILLARY
AGREEMENTS, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT, OR OTHER
PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
BORROWER AT THE ADDRESS SET FORTH IN SECTION 10.10. SHOULD SUCH BORROWER FAIL TO
APPEAR OR ANSWER ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SERVED WITHIN THIRTY
(30) DAYS AFTER THE RECEIPT THEREOF, IT SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED AGAINST IT AS DEMANDED OR PRAYED FOR IN SUCH
SUMMONS, COMPLAINT, PROCESS OR PAPERS. NOTHING IN THIS PARAGRAPH SHALL AFFECT OR
IMPAIR LENDER'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW OR
LENDER'S RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST SUCH BORROWER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
10.10 NOTICE. Except as otherwise provided in this Agreement, any notice
required shall be in writing and shall be deemed to have been validly served,
given or delivered 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, or (iv) five (5) Business Days after
deposit in the United States certified or registered mails, with proper postage
prepaid, addressed to the party to be notified as follows:
(A) If to Administrative Agent, at: LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
with a copy to: Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx, Esq.
Fax: (000) 000-0000
(B) If to Borrowers, at: Information Resources, Inc.
000 Xxxxx. Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
67
with a copy to: Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. X'Xxxxxxxxxxx, Esq.
Fax: (000) 000-0000
(C) If to any Lender, addressed to such Lender at the address shown below its
signature as its domestic office address, or to such other address or facsimile
number as each party may designate for itself by like notice.
10.11 SECTION TITLES, ETC. The section titles and table of contents, if
any, 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.
10.12 MUTILATED, DESTROYED, LOST AND STOLEN NOTES. If any mutilated Note is
surrendered to Borrowers, Borrowers shall execute therefor a new Note with the
same principal amount, containing identical terms and provisions. If there shall
be delivered to Borrowers (a) evidence to their satisfaction of the destruction,
loss or theft of any Note and (b) such security or indemnity as may be required
by them to hold Borrowers and any agent of Borrowers harmless, then, in the
absence of notice to Borrowers that such Note has been acquired by a bona fide
purchaser, Borrowers shall execute and deliver, in lieu of any such destroyed,
lost or stolen Note or in exchange for such Note, a new Note with the same
principal amount, containing identical terms and provisions at no cost to
Borrowers. Upon the issuance of any new Note under this Section, Borrowers may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. Every new Note, issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note, shall constitute an original contractual
obligation of Borrowers, whether or not the destroyed, lost or stolen Note shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Agreement.
11. CROSS-GUARANTY.
11.1 CROSS-GUARANTY. Each Borrower hereby agrees that such Borrower is
jointly and severally liable for, and hereby absolutely and unconditionally
guarantees to Administrative Agent and each Lender and their respective
successors and assigns, the full and prompt payment (whether at stated maturity,
by acceleration or otherwise) and performance of, all Indebtedness owed or
hereafter owing to Administrative Agent and each Lender by each other Borrower.
Each Borrower agrees that its guaranty obligation hereunder is a continuing
guaranty of payment and performance and not of collection, that its obligations
under this Section 11 shall not be discharged until payment and performance, in
full, of the Indebtedness has occurred, and that its obligations under this
Section 11 shall be absolute and unconditional, irrespective of, and unaffected
by, the genuineness, validity, regularity, enforceability or any future
amendment of, or change in, this Agreement, any other Ancillary Agreement or any
other agreement, document or instrument to which any Borrower is or may become a
party; the absence of any action to
68
enforce this Agreement (including this Section 11) or any other Ancillary
Agreement or the waiver or consent by Administrative Agent and each Lender with
respect to any of the provisions thereof; the existence, value or condition of,
or failure to perfect its Lien against, any security for the Indebtedness or any
action, or the absence of any action, by Administrative Agent and each Lender in
respect thereof (including the release of any such security); the insolvency of
any Borrower; or any other action or circumstances that might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Indebtedness guaranteed hereunder.
11.2 WAIVERS BY BORROWERS. Each Borrower expressly waives all rights it may
have now or in the future under any statute, or at common law, or at law or in
equity, or otherwise, to compel Administrative Agent or any Lender to marshal
assets or to proceed in respect of the Indebtedness guaranteed hereunder,
against any other party or against any security for the payment and performance
of the Indebtedness before proceeding against, or as a condition to proceeding
against, such Borrower. It is agreed among each Borrower, Administrative Agent
and each Lender that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the Ancillary Agreements and that, but for
the provisions of this Section 11.2 and such waivers, Administrative Agent and
Lenders would decline to enter into this Agreement.
11.3 BENEFIT OF GUARANTY. Each Borrower agrees that the provisions of this
Section 11.3 are for the benefit of Administrative Agent and each Lender and
their respective successors, transferees, endorsees and assigns, and nothing
herein contained shall impair, as between any other Borrower and Administrative
Agent or any Lender, the obligations of such other Borrower under this Agreement
and the Ancillary Agreements.
11.4 SUBORDINATION AND SUBROGATION, ETC. Notwithstanding anything to the
contrary in the Credit Documents, each Borrower hereby expressly and irrevocably
subordinates to payment of the Indebtedness any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution, indemnification
or set off and any and all defenses available to a surety, guarantor or
accommodation co-obligor until the Liabilities is indefeasibly paid in full in
cash; provided, however, that each Borrower may receive payments in the ordinary
course so long as no Event of Default has occurred or is occurring. Each
Borrower acknowledges and agrees that this subordination is intended to benefit
Administrative Agent and each Lender and shall not limit or otherwise affect
such Borrower's liability hereunder or the enforceability of this Section 11,
and that Administrative Agent, each Lender and their respective successors and
assigns are intended third party beneficiaries of the waivers and agreements set
forth in this Section 11.4.
11.5 ELECTION OF REMEDIES. If Administrative Agent or any Bank may, under
applicable law, proceed to realize its benefits under this Agreement or any
Ancillary Agreement giving Administrative Agent or such Lender a Lien upon any
Collateral, whether owned by any Borrower or by any other Person, either by
judicial foreclosure or by non-judicial sale or enforcement, Administrative
Agent or any Lender may, at its sole option, determine which of its
69
remedies or rights it may pursue without affecting any of its rights and
remedies under this Section 11. If, in the exercise of any of its rights and
remedies, Administrative Agent or any Lender shall forfeit any of its rights or
remedies, including its right to enter a deficiency judgment against any
Borrower or any other Person, whether because of any applicable laws pertaining
to "election of remedies" or the like, each Borrower hereby consents to such
action by Administrative Agent or such Lender and waives any claim based upon
such action, even if such action by Administrative Agent or such Lender shall
result in a full or partial loss of any rights of subrogation that each Borrower
might otherwise have had but for such action by Administrative Agent or such
LENDER. Any election of remedies that results in the denial or impairment of the
right of Administrative Agent or any Lender to seek a deficiency judgment
against any Borrower shall not impair any other Borrower's obligation to pay the
full amount of the Indebtedness. In the event Administrative Agent or any Lender
shall bid at any foreclosure or trustee's sale or at any private sale permitted
by law or this Agreement or any Ancillary Agreements, Administrative Agent or
such Lender may bid all or less than the amount of the Indebtedness and the
amount of such bid need not be paid by Administrative Agent or such Lender but
shall be credited against the Indebtedness. The amount of the successful bid at
any such sale, whether Administrative Agent, such Lender or any other party is
the successful bidder, shall be conclusively deemed to be the fair market value
of the Collateral and the difference between such bid amount and the remaining
balance of the Indebtedness shall be conclusively deemed to be the amount of the
Indebtedness guaranteed under this Section 11, notwithstanding that any present
or future law or court decision or ruling may have the effect of reducing the
amount of any deficiency claim to which Administrative Agent or any Lender might
otherwise be entitled but for such bidding at any such sale.
11.6 LIMITATION. Notwithstanding any provision herein contained to the
contrary, each Borrower's liability under this Section 11 (which liability is in
any event in addition to amounts for which such Borrower is primarily liable
under Section 2) shall be limited to an amount not to exceed as of any date of
determination the greater of: (i) the net amount of all Loans advanced to any
other Borrower under this Agreement and then re-loaned or otherwise transferred
to, or for the benefit of, such Borrower; and (ii) the amount that could be
claimed by Administrative Agent and Lenders from such Borrower under this
Section 11 without rendering such claim voidable or avoidable under Section 548
of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or
common law after taking into account, among other things, such Borrower's right
of contribution and indemnification from each other Borrower under Section 11.7.
11.7 LIABILITY CUMULATIVE. The liability of Borrowers under this Section 11
is in addition to and shall be cumulative with all liabilities of each Borrower
to Administrative Agent and each Lender under this Agreement and the Ancillary
Agreements to which such Borrower is a party or in respect of any Indebtedness
or obligation of the other Borrowers, without any limitation as to amount,
unless the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
[signature pages follow]
70
This Agreement has been duly executed as of the day and year first written
above.
BORROWERS:
---------
INFORMATION RESOURCES, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
000 XXXXXXXX XX. #0
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI PUERTO RICO, INC.
a Puerto Rico corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI VENEZUELA HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI GUATEMALA HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI GREEK HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI FRENCH HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI ITALY HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
INFOSCAN ITALY HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SHOPPERS HOTLINE, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
NORTH CLINTON CORPORATION
an Illinois corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ADMINISTRATIVE AGENT AND LENDER:
-------------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Address
LaSalle Bank National Association
000 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
SYNDICATION AGENT AND LENDER:
----------------------------
KEY CORPORATE CAPITAL, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Address
-------
Key Corporate Capital, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Fax:
---------------------------
