EXHIBIT (vv)
EXECUTION COPY
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (this "AMENDMENT"),
dated January 31, 2003, is entered into 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
(collectively, the "CURRENT BORROWERS"), IRI INFOSCAN S.R.L., an Italian
corporation (the "NEW BORROWER" and together with the Current Borrowers, the
"BORROWERS" and each, a "BORROWER"), LASALLE BANK NATIONAL ASSOCIATION, as
Administrative Agent for Lenders ("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
Amendment, "LENDERS").
W I T N E S S E T H:
WHEREAS, Current Borrowers and Lenders are parties to that certain
Revolving Credit Agreement, dated July 12, 2002 (the "CREDIT AGREEMENT")
pursuant to which Lenders agreed to make available to the Current Borrowers a
revolving credit facility up to $40,000,000 (the "CREDIT FACILITY");
WHEREAS, in connection with establishment of the Credit Facility, Borrowers
executed a Memorandum of Understanding dated July 12, 2002, as amended and
restated on December 31, 2002 and as further amended on January 31, 2003 (the
"MEMORANDUM") pursuant to which the Current Borrowers agreed to cause the New
Borrower to become a borrower under the Credit Agreement, and Lenders agreed to
make the Credit Facility available to the New Borrower on the same terms and
conditions as the Current Borrowers; and
WHEREAS, to satisfy the terms of the Memorandum and to amend the Credit
Agreement in certain respects, the Current Borrowers, the New Borrower and
Lenders have agreed to execute this Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
SECTION 1
DEFINED TERMS
Capitalized terms used herein but not defined herein shall have the meaning
ascribed to such terms in the Credit Agreement.
SECTION 2
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on the Amendment Effective Date, the Credit Agreement is amended
as follows:
2.1 By its execution hereof, the New Borrower hereby agrees to become party
to the Credit Agreement with the Current Borrowers and is hereby bound by its
terms and conditions in all respects as if it had been an original Borrower,
notwithstanding the fact that New Borrower's obligations under the Credit
Agreement, as amended hereby and as may from time to time be further amended or
modified, are evidenced by separate Revolving Credit Notes, the forms of which
are attached hereto as Exhibits A and B.
2.2 The first sentence of Section 2.4(A) is amended and restated to read in
its entirety as follows:
"Unless otherwise provided in writing evidencing such Indebtedness,
each Borrower agrees to pay Administrative Agent, for the benefit of
each Lender, interest on the outstanding principal balance of its
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."
2.3 Section 2.7(A) is amended and restated to read in its entirety as
follows:
"[Intentionally Omitted]".
2.4 The first sentence of Section 2.9(A) is amended by replacing the phrase
"Borrowers agree, jointly and severally, to pay such Lender" with "each
applicable Borrower agrees to pay such Lender".
2.5 Section 2.9(B) is amended by replacing the phrase "Borrowers agree,
jointly and severally, to pay to such Lender" with "each applicable Borrower
agrees to pay to such Lender".
2.6 The last sentence of Section 2.9(C) is amended by replacing the phrase
"conclusive and binding on Borrowers" with "conclusive and binding on each
applicable Borrower".
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2.7 Section 2.11 is amended and restated in its entirety to read as
follows:
"Each Borrower agrees 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) such Borrower 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 such Borrower 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) by it, (iii) default by such Borrower in
making any prepayment of a LIBOR Loan after such Borrower has 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."
2.8 The first sentence of Section 3.3(A) is amended by replacing the phrase
"Borrowers agree" with "Each Borrower for whose account a Letter of Credit is
issued agrees".
2.9 The second sentence of Section 3.3(A) is amended by: (a) replacing the
phrase "Borrowers agree" with "Each Borrower for whose account a Letter of
Credit is issued agrees" and (b) adding the phrase "issued for its account"
immediately after the phrase "Letter of Credit" and immediately before the
phrase "immediately when due".
2.10 Section 3.3(B) is amended and restated to read in its entirety as
follows:
"Notwithstanding any provisions to the contrary in any Master Letter
of Credit Agreement, each Borrower for whose account a Letter of
Credit is issued agrees 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 such Borrower does not
pay any such Reimbursement Obligations when due, such Borrower shall
be deemed to have immediately requested that the Lenders 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 such Borrower in satisfaction of such
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unreimbursed Reimbursement Obligations, which shall thereupon be
deemed satisfied by the proceeds of, and replaced by, such Base Rate
Loan."
2.11 The first sentence of Section 3.3(C) is amended by replacing the
phrase "reimbursed therefore by Borrowers" with "reimbursed therefore by the
Borrower for whose account such Letter of Credit was issued".
2.12 The first sentence of Section 3.4 is amended by (a) replacing the
phrase "Borrowers shall deliver" with "the requesting Borrower" and (b)
replacing the phrase "signed by Borrowers" with "signed by such Borrower".
2.13 Section 3.6 is amended and restated to read in its entirety as
follows:
"IRI 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 for whose
account a Letter of Credit is issued 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."
2.14 The first sentence of Section 4.1(A) is amended by replacing the
phrase "Borrowers agree, jointly and severally, to pay" with "IRI agrees to
pay".
2.15 Section 4.1(B) is amended and restated to read in its entirety as
follows:
"Each Borrower agrees to pay to Administrative Agent such other Fees
as such Borrower has agreed to pay in this Agreement or under any
other fee agreement between such Borrower and Administrative Agent in
connection herewith."
2.16 The third sentence of Section 4.4(B) is amended and restated to read
in its entirety as follows:
"In the event Borrowers have exceeded any of the foregoing limits,
each applicable Borrower agrees to repay any excess to Administrative
Agent within two (2) Business Days after being provided of notice by
Administrative Agent of the occurrence thereof."
2.17 Section 5.1(D) is amended and restated to read in its entirety as
follows:
"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
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and any applicable law, rule, regulation, judgment, order or decree
applicable to such Borrower or its assets (with respect to any
Borrower organized under the laws of a jurisdiction other than the
Unites States or a state or territory thereof (a "FOREIGN
JURISDICTION"), this representation as to applicable laws, rules,
regulations, judgments, orders or decrees is qualified to the extent
enforcement of the Credit Documents is sought in such Foreign
Jurisdiction, as such Foreign Jurisdiction may have mandatory
provisions of laws of public order that may be different than the
provisions set forth in the Credit Documents or applicable Illinois
law) 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;".
2.18 The first two sentences of Section 5.1(J) are amended and restated
read in their entirety as follows:
"Except for the Collective Labor Agreement to which IRI Infoscan
S.r.l. is a party and any other mandatory provisions of Italian labor
laws applicable to IRI Infoscan S.r.l. with respect to contracts with
its employees, (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 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. Except
for the Collective Labor Agreement to which IRI Infoscan S.r.l. is a
party, to such Borrower's knowledge, there is no organizing activity
pending or threatened in writing by any labor union or group of
employees."
2.19 Section 7.2(A) is amended and restated to read in its entirety as
follows:
"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 such
Borrower or any other Person on behalf of such Borrower, by
Administrative Agent of proceeds of Loans made to such Borrower
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;".
2.20 The first sentence of Section 7.2(G) is amended by adding the phrase
"of such Borrower" at the end of such sentence.
2.21 Section 7.2(M) is amended and restated to read in its entirety as
follows:
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"Execute a mortgage in a form acceptable to Administrative Agent in
favor of Administrative Agent and the other Lenders in the event a
Borrower (other than IRI Infoscan S.r.l.) acquires any real property
that is valued, in the aggregate of more than $1,000,000; and".
2.22 A new Section 7.8 shall be added to the end of Section 7 to state as
follows:
"7.8 OWNERSHIP OF SUBSIDIARIES. The Borrowers shall ensure that at all
times the shares of IRI Infoscan S.r.l., Information Resources S.A.,
and IRI Software Ltd. (each a "FOREIGN PLEDGED SUBSIDIARY") pledged
under the Collateral Documents, entered into on or about January 31,
2003, constitute, in the aggregate, 65% of the total capital stock of
each such Foreign Pledged Subsidiary, on a fully-diluted basis. IRI
shall ensure that at all times it owns 100% of the total capital stock
of IRI Software B.V. (the "DUTCH SUBSIDIARY"), on a fully-diluted
basis; provided that once Articles 8 and 9 of the Articles of
Association of the Dutch Subsidiary are amended to provide that a
transfer of shares of the Dutch Subsidiary shall require the approval
of a general shareholders' meeting (as opposed to granting other
shareholders a right of first refusal over such shares), IRI shall
only be required to own 65% of the total capital stock of the Dutch
Subsidiary, on a fully-diluted basis."
2.23 The first sentence of Section 10.3 is amended (a) by replacing the
phrase "Borrowers, jointly and severally, hereby agree to pay" with "IRI hereby
agrees to pay" and (b) by replacing the phrase "shall be payable by Borrowers,
jointly and severally, to Administrative Agent" with "shall be payable by IRI to
Administrative Agent".
2.24 Section 11.6 is amended by adding the following sentence at the end of
Section 11.6:
"Further, notwithstanding the foregoing and any provision herein
contained to the contrary, and with respect to any Borrower that is
organized under the laws of Italy, including IRI Infoscan S.r.l. (each
an "ITALIAN BORROWER"), the liability of any Italian Borrower under
this Section 11 (which liability is in any event in addition to
amounts for which such Italian Borrower may be primarily liable under
Section 2) shall be limited to an amount not to exceed as of any date
of determination the lesser 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 Italian
Borrower and for which such Italian Borrower is still owing to such
other Borrower at the time of determination; and (ii) $40,000,000."
2.25 The Schedules to the Credit Agreement are hereby amended and restated
to read in their entirety as set forth in Exhibit E hereto.
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SECTION 3
REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to Lenders that:
3.1 DUE AUTHORIZATION, ETC. The execution and delivery of this Amendment
and the performance of such Borrower's obligations under the Credit Agreement,
as amended by this Amendment, are duly authorized by all necessary corporate
action, do not require any filing or registration with or approval or consent of
any governmental agency or authority, do not and will not conflict with, result
in any violation of or constitute any default under any provision of its
articles of incorporation or by-laws of that of any of its Subsidiaries or any
material agreement or other document binding upon or applicable to it or any of
its Subsidiaries (or any of their respective properties) or any material law or
governmental regulation or court decree or order applicable to it or any of its
Subsidiaries, and will not result in or require the creation or imposition of
any Lien in any of its properties or the properties of any of its Subsidiaries
pursuant to the provisions of any agreement binding upon or applicable to it or
any of its Subsidiaries, except in favor of Lenders.
3.2 VALIDITY. This Amendment has been duly executed and delivered by such
Borrower and, together with the Credit Agreement, constitutes a legal, valid and
binding obligation of such Borrower to the extent such Borrower is a party
thereto, enforceable against such Borrower in accordance with their respective
terms subject, as to enforcement only, to bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforceability of the
rights of creditors generally, and with respect to the New Borrower, subject to
the application of mandatory provisions of Italian law if this Amendment or the
Credit Agreement is sought to be enforced in Italy.
3.3 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 5 of the Credit Agreement are true and correct on the date
of this Amendment, except to the extent (a) that such representations and
warranties solely relate to an earlier date or (b) changed by circumstances
permitted by the Credit Agreement.
3.4 ABSENCE OF DEFAULTS. No Event of Default or default has occurred or is
occurring as of the date hereof.
SECTION 4
CONDITIONS PRECEDENT
This Amendment shall become effective and the New Borrower shall have the
right (subject to the conditions set forth in Section 6.1 of the Credit
Agreement) to borrow funds under the Credit Facility upon satisfaction of all of
the following conditions precedent (the date on which such conditions are
satisfied or waived, the "AMENDMENT EFFECTIVE DATE"):
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4.1 RECEIPT OF DOCUMENTS. Administrative Agent shall have received all of
the following, each in form and substance satisfactory to Administrative Agent:
(a) Amendment. A counterpart original of this Amendment duly executed
by Borrowers and Syndication Agent.
(b) Revolving Credit Note for Administrative Agent. A Revolving Credit
Note in favor of the Administrative Agent in the form of Exhibit A to this
Amendment, duly executed by New Borrower.
(c) Revolving Credit Note for Syndication Agent. A Revolving Credit
Note in favor of the Syndication Agent in the form of Exhibit B to this
Amendment, duly executed by New Borrower.
(d) Opinion of Foreign Counsel. A legal opinion issued to Lenders by
New Borrower's local counsel, in form and substance reasonably acceptable
to Lenders.
(e) Opinion of US Counsel. A legal opinion issued to Lenders by
Current Borrower's U.S. counsel, in form and substance reasonably
acceptable to Lenders.
(f) Director's Certificate #1. A certificate dated of even date
herewith and signed by a director of the New Borrower, substantially in the
form of Exhibit C to this Amendment.
(g) Director's Certificate #2. A certificate dated of even date
herewith and signed by a director of the New Borrower, substantially in the
form of Exhibit D to this Amendment.
(h) Other. Such other documents as Administrative Agent may reasonably
request.
SECTION 5
MISCELLANEOUS
5.1 DOCUMENTS REMAIN IN EFFECT. Except as amended and modified by this
Amendment and the exhibits attached hereto, the Credit Agreement and the other
documents executed pursuant to the Credit Agreement remain in full force and
effect. Further, notwithstanding the amendments to the Credit Agreement
contained in Section 2 of this Amendment, it is still the intention of the
parties hereto that, except with respect to the new limitation for Italian
Borrowers contained in Section 2.24 of this Amendment (with the New Borrower
being an Italian Borrower), all Borrowers shall remain jointly and severally
liable and unconditionally guarantee the Indebtedness owed or hereafter owing to
Administrative Agent and each Lender pursuant to Section 11 of the Credit
Agreement.
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5.2 COUNTERPARTS. This Amendment may be executed in any number of
counterparts (including by fax), and by the parties hereto on the same or
separate counterparts, and each such counterpart, when executed and delivered,
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Amendment.
5.3 EXPENSES. Borrowers agree to pay all costs and expenses of Lenders
(including reasonable fees, charges and disbursements of Lenders' attorneys) in
connection with the preparation, negotiation, execution, delivery and
administration of this Amendment and all other instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection herewith,
including, without limitation, the transactions contemplated by the Memorandum.
In addition, Borrowers agree to pay, and save Lenders harmless from all
liability for, any stamp or other taxes which may be payable in connection with
the execution or delivery of this Amendment, the borrowings under the Credit
Agreement, as amended hereby, and the execution and delivery of any instruments
or documents provided for herein or delivered or to be delivered hereunder or in
connection herewith. All obligations provided in this Section 5.3 shall survive
any termination of the Credit Agreement.
5.4 GOVERNING LAW. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois. Wherever possible, each
provision of this Amendment shall be interpreted in such manner as to be
effective and valid under applicable laws, but if any provision of this
Amendment shall be prohibited by or invalid under such laws, such provisions
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Amendment.
5.5 SUCCESSORS. This Amendment shall be binding upon Borrowers, Lenders and
their respective successors and assigns, and shall inure to the benefit of
Borrowers, Lenders and the successors and permitted assigns of Lenders.
[signature page attached]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized and delivered at
Chicago, Illinois as of the date first above written.
CURRENT BORROWERS:
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INFORMATION RESOURCES, INC. 000 XXXXXXXX XX. #0
a Delaware corporation a Delaware corporation
By: By:
-------------------------------------------------- -------------------------------------------
Name: Name:
------------------------------------------------ -----------------------------------------
Title: Title:
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IRI PUERTO RICO, INC. IRI VENEZUELA HOLDINGS, INC.
a Puerto Rico corporation a Delaware corporation
By: By:
-------------------------------------------------- -------------------------------------------
Name: Name:
------------------------------------------------ -----------------------------------------
Title: Title:
----------------------------------------------- ----------------------------------------
IRI GUATEMALA HOLDINGS, INC. IRI GREEK HOLDINGS, INC.
a Delaware corporation a Delaware corporation
By: By:
-------------------------------------------------- -------------------------------------------
Name: Name:
------------------------------------------------ -----------------------------------------
Title: Title:
----------------------------------------------- ----------------------------------------
IRI ITALY HOLDINGS, INC. IRI FRENCH HOLDINGS, INC.
a Delaware corporation a Delaware corporation
By: By:
-------------------------------------------------- -------------------------------------------
Name: Name:
------------------------------------------------ -----------------------------------------
Title: Title:
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INFOSCAN ITALY HOLDINGS, INC. SHOPPERS HOTLINE, INC.
a Delaware corporation a Delaware corporation
By: By:
-------------------------------------------------- -------------------------------------------
Name: Name:
------------------------------------------------ -----------------------------------------
Title: Title:
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NORTH CLINTON CORPORATION
an Illinois corporation
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
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NEW BORROWER:
-------------
IRI INFOSCAN S.R.L.
an Italian corporation
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
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LENDERS:
--------
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender and as Administrative Agent
By:
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
KEY CORPORATE CAPITAL, INC.,
as a Lender and Syndication Agent
By:
-------------------------------------
Name:
-----------------------------------
Title:
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