EXHIBIT 99.1
CONSENT AND RELEASE
This consent AND RELEASE (this "Agreement") is made and entered into as
of the 22nd day of October, 2003 by LaSalle Bank National Association
("LaSalle"), Key Corporate Capital Inc. ("Key" and together with LaSalle,
"Lenders"), Key Equipment Finance, a Division of Key Corporate Capital Inc.
("KEF"), Information Resources, Inc. ("IRI") and its wholly-owned U.S.
subsidiaries (each, a "Borrower" and collectively, the "Borrowers"), Gingko
Corporation ("Parent") and Gingko Acquisition Corp. ("Merger Sub" and together
with Parent, the "Acquirors").
RECITALS
WHEREAS, on July 12, 2002, Lenders and Borrowers entered into that
certain Revolving Credit Agreement (as the same has been and may be amended in
accordance with its terms and as amended hereby, the "Credit Agreement"),
pursuant to which Lenders agreed to extend credit to Borrowers in an aggregate
principal amount not to exceed $40,000,000 (the "Credit Facility"); and
WHEREAS, on July 19, 2002, KEF and IRI entered into that certain Master
Equipment Lease Agreement, as amended (the "Master Lease"), pursuant to which
KEF agreed to lease IRI the Equipment (as defined in the Master Lease); and
WHEREAS, on September 8, 2003, pursuant to an Agreement and Plan of
Merger (as the same has been amended on October 19, 2003 and as the same may be
amended from time to time in accordance with its terms and conditions, the
"Merger Agreement"), the Acquirors and certain other affiliated persons
commenced a tender offer (the "Tender Offer") to acquire all the outstanding
shares of IRI for $3.30 in cash for each IRI share plus a registered and
tradable Contingent Value Right per share (each, a "CVR" and together with the
cash for each IRI share, the "Merger Consideration"); and
WHEREAS, each CVR will be evidenced by a CVR Certificate (as defined in
the Merger Agreement) issued by the Information Resources, Inc. Litigation
Contingent Payment Rights Trust (the "Trust") established pursuant to a the
Certificate of Trust filed with the Secretary of the State of Delaware and an
Amended and Restated Declaration of Trust to be entered into on and after the
date hereof (the "Declaration of Trust"); and
WHEREAS, pursuant to the Declaration of Trust and that certain
Contingent Value Rights Agreement to be entered into by IRI, the Acquirors, the
Rights Agents and the Trust, substantially in the form attached as Exhibit C to
the Merger Agreement (as the same has been amended on October 19, 2003 and as
the same may be amended from time to time in accordance with its terms and
conditions, the "CVR Agreement"), holders of CVR Certificates are entitled to
68% of the proceeds received by IRI, if any, from the antitrust suit pending
against ACNielsen (now owned by VNU NV), The Dun & Bradstreet Corp., and IMS
International, Inc. (the "Lawsuit"), to the extent those proceeds are equal to
or less than $200 million, and 75% of any such proceeds above $200 million, in
each case subject to certain adjustments as further provided in the CVR
Agreement (in the aggregate, the "CVR Litigation Proceeds"); and
WHEREAS, in the event the Tender Offer is successful, Merger Sub will
subsequently merge with and into IRI with IRI continuing as the surviving
corporation (the "Merger"); and
WHEREAS, the Credit Agreement and, derivatively through the Credit
Agreement, the Master Lease, prohibits Borrowers from consummating certain of
the transactions contemplated by the Merger Agreement and the CVR Agreement
without the express written consent of Lenders and KEF; and
WHEREAS, Borrowers and Acquirors desire that (i) Lenders and KEF
provide the consents set forth in this Agreement and (ii) Lenders release their
first priority security interest in the Lawsuit and the CVR Litigation Proceeds
(collectively, the "Collateral"); and
WHEREAS, Lenders and KEF agree to (i) grant those consents and (ii)
release their first priority security interest in the Collateral, subject to the
terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and for other good and valuable consideration (the receipt and
sufficiency of which is hereby acknowledged), the parties agree as follows:
AGREEMENT
1. Consent to Transactions under the Merger Agreement and the CVR
Agreement.
(a) Subject to Section 1(b) of this Agreement, Lenders
and KEF hereby consent to all of the actions and transactions
contemplated by the Merger Agreement, the CVR Agreement and the
Declaration of Trust, including, but not limited to (i) the Acquirors
acquiring (A) that number of shares of IRI common stock which, when
added together with all other shares of IRI common stock owned by the
Acquirors, would equal 16,000,000 shares, or such other number of
shares of IRI common stock as agreed to by the Acquirors and Borrowers
pursuant to the Tender Offer and (B) any other shares of IRI common
stock acquired, directly or indirectly, by the Acquirors after
consummation of the Tender Offer, whether in any "subsequent offering
period" or otherwise, (ii) the actions contemplated by Section
5.1(h)(ii) of the CVR Agreement and (iii) the subsequent Merger as
proposed by the Merger Agreement and related agreements. For the sake
of clarity, assuming Lenders' and KEF consent to an action or
transaction contemplated by the Merger Agreement, the CVR Agreement
and/or the Declaration of Trust shall not have been withdrawn in
accordance with Section 1(b), the consummation of that action or
transaction shall not (x) constitute a default, an event of default or
the failure of any condition, or a breach or violation of any covenant,
agreement, representation or warranty, in or under the Credit
Agreement, the Master Lease or any related documents or (y) give rise
to any rights or remedies that may be deemed to be otherwise available
to Lenders under the Credit Agreement, KEF under the Master Lease or
any related documents as a consequence of that action or transaction.
(b) Any consent granted by Lenders and KEF pursuant to
Section 1(a) of this Agreement to any action or transaction
contemplated by the Merger Agreement, the CVR Agreement, and/or the
Declaration of Trust may be withdrawn by means of written notice
provided to IRI and Acquirors in the event there is a change to the
terms of the Tender Offer or the Merger that is materially adverse to
Lenders or KEF without Lenders' and KEF's prior written consent,
provided, however, that it is expressly agreed that any extension of
the Expiration Date (as defined in the Merger Agreement) of the Tender
Offer to a date on or
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prior to February 29, 2004, or any other administrative change shall
not be deemed such a material adverse change. It is expressly
understood by Borrowers that any extension of the Expiration Date past
February 29, 2004 may be deemed by Lenders and KEF as such a material
adverse change. Lenders' and KEF's consent shall be deemed withdrawn in
the event (i) Borrowers accept a Superior Proposal made by a Potential
Acquiror (as such terms are defined in the Merger Agreement) prior to
the completion of the Merger, (ii) the Tender Offer is terminated for
any reason that is materially adverse to Lenders or KEF without
Lenders' and KEF's prior written consent or (iii) the Merger Agreement
is terminated for any reason.
2. Release of Collateral.
(a) Subject to the satisfaction of the conditions set
forth in Section 2(b) of this Agreement, on the Acceptance Date (as
defined in the Merger Agreement), Lenders shall release their first
priority security interest in the Collateral, provided, however,
Borrowers and Acquirors hereby acknowledge and agree that any
litigation proceeds that IRI is entitled to retain from the Lawsuit
consistently with the CVR Agreement and the Declaration of Trust (which
excludes, for the sake of clarity, the CVR Litigation Proceeds) shall
not be deemed part of the Collateral released and will remain subject
to Lenders' first priority security interest pursuant to the Credit
Agreement and related documents.
(b) Lenders' obligation pursuant to Section 2(a) to
release the Collateral on the Acceptance Date is conditioned upon the
satisfaction of all of the following:
(i) the Acquirors shall have accepted shares of
IRI common stock for payment pursuant to the Tender Offer;
(ii) the Merger Agreement shall have not been
terminated prior to the Acquirors accepting shares of IRI
common stock for payment pursuant to the Tender Offer, and the
Acquirors shall be paying the Merger Consideration to those
IRI shareholders who have tendered their shares pursuant to
the Tender Offer, including, but not limited to, the issuance
of the CVR Certificates;
(iii) Lenders shall not have provided prior
written notice to IRI and Acquirors in respect of any change
to the terms of the Tender Offer that shall have previously
occurred that is materially adverse to Lenders without
Lenders' prior written consent, provided, however, that it is
expressly agreed that any extension of the Expiration Date of
the Tender Offer or any other administrative change shall not
be deemed such a material adverse change; and
(iv) Borrowers shall not have accepted a Superior
Proposal made by a Potential Acquiror prior to the Acceptance
Date.
(c) In the event all of the conditions contained in
Section 2(b) have been satisfied on the Acceptance Date, the release of
the Collateral will be deemed effective on the Acceptance Date, and
Lenders will promptly file the requisite UCC financing statements, in
form and substance reasonably acceptable to Borrowers and Acquirors,
releasing Lenders' first priority security interest in the Collateral.
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(d) Lenders' agreement to release the Collateral pursuant
to this Section 2 will be terminated if (i) Borrowers accept a Superior
Proposal made by a Potential Acquiror prior to the completion of the
Merger or (ii) the Merger Agreement is terminated for any reason.
3. Payment of Fee to Lenders. In consideration of the consents
granted by Lenders pursuant to Section 1(a) of this Agreement and their
agreement to release the Collateral pursuant to Section 2(a) of this Agreement,
IRI agrees to pay Lenders a fee of One Hundred Thousand Dollars ($100,000) in
the aggregate (the "Fee"), which amount shall be divided between the Lenders in
accordance with their Revolving Credit Commitments relative to the Aggregate
Revolving Credit Commitments (as such terms are defined in the Credit
Agreement). The Fee will be paid in full in immediately available funds upon
execution of this Agreement by all parties and will be non-refundable in all
cases, irrespective of whether the Tender Offer is successful, the Merger is
completed, the Collateral is released, any consent granted pursuant to Section 1
of this Agreement is subsequently withdrawn in accordance with the terms of this
Agreement or otherwise.
4. Reduction in Revolving Credit Commitments. If and only if the
Acceptance Date shall have previously occurred and the Tender Offer shall have
been completed, Borrowers agree to a reduction in the Aggregate Revolving Credit
Commitments available under the Credit Agreement, effective as of the Acceptance
Date, to an amount not to exceed $25,000,000 (the "New Aggregate Revolving
Credit Commitments"), which shall have the effect of reducing each Lender's
Revolving Credit Commitment under the Credit Agreement to $15,625,000 for
LaSalle and $9,375,000 for Key (each, a "New Revolving Credit Commitment"). The
New Aggregate Revolving Credit Commitments and each New Revolving Credit
Commitment for each Lender shall only be effective upon completion of the Tender
Offer and the effective release of the Collateral, and shall remain in effect
until the Credit Termination Date (as defined in Section 7).
5. Firm Commitment Letter. Within twenty-eight (28) days after
the Acceptance Date, IRI (or the Acquirors on IRI's behalf) shall obtain a firm,
written commitment letter (the "Commitment Letter") from (or shall enter into a
credit agreement with) a national financial institution reasonably acceptable to
Lenders, which shall contemplate (or shall provide for one or more loans to IRI
in an aggregate amount that is sufficient to satisfy in full), among other
things, (i) the repayment of all Indebtedness (as defined in the Credit
Agreement) owed under the Credit Facility and termination of the Credit
Agreement and (ii) the termination of the Master Lease not later than fifteen
(15) days after the Credit Termination Date and the payment of all obligations
of IRI to KEF under and in respect of the termination of the Master Lease, such
amounts shall be detailed in the payoff letter to be issued by KEF and shall be
consistent with the terms and conditions of the Master Lease (the "Payoff
Letter"). In the event IRI is unable to obtain a Commitment Letter (or enter
into a credit agreement) that meets the foregoing criteria, Borrowers shall pay
to Lenders in lieu thereof a non-refundable fee in immediately available funds
of Fifty Thousand Dollars ($50,000), which amount shall be divided among the
Lenders in accordance with each New Revolving Credit Commitment relative to the
New Aggregate Revolving Credit Commitments.
6. Deposit Account. On or before the Credit Termination Date, IRI
shall have established a deposit account with KeyBank National Association (the
"Deposit Account") and shall maintain a balance of at least Two Million Seven
Hundred Thousand Dollars ($2,700,000) in such account until all amounts due
under the Payoff Letter have been paid in full.
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7. Repayment of Indebtedness under the Credit Agreement. If and
only if the Acceptance Date shall have previously occurred and the Tender Offer
shall have been completed, upon the earlier of (i) the consummation of the
Merger or (ii) the earlier of March 30, 2004 and thirty (30) days after
termination of the Merger Agreement (each, a "Credit Termination Date"),
Borrowers shall repay all Indebtedness owed to Lenders under the Credit
Agreement, including, but not limited to, all principal and interest due Lenders
under the Credit Agreement. In the event the Acceptance Date shall have occurred
and the Tender Offer shall have been completed, and Borrowers fail to repay all
Indebtedness (as such term is defined in the Credit Agreement) owed to Lenders
under the Credit Agreement on or before the Credit Termination Date, an "Event
of Default" will be deemed to have occurred under the Credit Agreement, and
Lenders will be entitled to all rights and remedies available to Lenders under
the Credit Agreement and related documents upon the occurrence of an Event of
Default thereunder. All Indebtedness still outstanding under the Credit
Agreement will accrue interest at the following rates during the following
periods: (i) the Default Rate (as defined in the Credit Agreement) for the first
30-day period following the Credit Termination Date, (ii) the Default Rate plus
2.00% from the 31st day through the 60th day, and (iii) Default Rate plus 4.00%
from the 60th day after the Credit Termination Date and thereafter.
8. Termination and Satisfaction of Obligations Under the Master
Lease. IRI and KEF agree that not later than fifteen (15) days after the Credit
Termination Date, IRI shall pay to KEF all amounts due pursuant to the
termination of the Master Lease, such amounts to be set forth in the Payoff
Letter and to be consistent with the terms and conditions of the Master Lease.
In the event IRI fails to pay all amounts due pursuant to the Payoff Letter
within fifteen (15) days after the Credit Termination Date, an "Event of
Default" will be deemed to have occurred under the Master Lease and KEF will be
entitled to all rights and remedies available to KEF under the Master Lease and
related documents upon the occurrence of an Event of Default thereunder. All
amounts due under the Payoff Letter still outstanding more than fifteen (15)
days after the Credit Termination Date will accrue interest at the following
rates during the following periods: (i) the Default Rate (as defined in the
Master Lease) from the 16th day through the 30th day following the Credit
Termination Date, (ii) the Default Rate plus 2.00% from the 31st day through the
60th day, and (ii) the Default Rate plus 4.00% from the 60th day after the
Credit Termination Date and thereafter.
9. Disputes; Specific Performance. Any disputes that arise under
this Agreement will be handled in the same manner as if such dispute arose under
the Credit Agreement (which shall include the provisions thereof with respect to
selection of jurisdiction and waiver of jury trial by the parties thereto),
except where such dispute is specific to the Master Lease, in which case, such
dispute shall be handled as if such dispute occurred under the Master Lease. The
parties hereto agree that irreparable harm would occur if any provision of this
Agreement were not performed in accordance with the terms hereof and that the
parties shall be entitled to seek and obtain an injunction or injunctions to
prevent breaches of this Agreement or to enforce specifically the performance of
the terms and provisions hereof in any federal court located in the State of
Illinois or any Illinois state court located in Xxxx County, Illinois, in
addition to any other remedy to which they are entitled at law or in equity.
10. Severability. If any clause, provision or part of a clause or
provision of this Agreement shall be adjudged invalid or unenforceable by a
court of competent jurisdiction or by operation of any applicable law, it shall
not affect the validity of any other clause, provision or part of a clause or
provision, which shall remain in full force and effect.
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11. Costs and Expenses. Borrowers shall be responsible for all
reasonable, documented and out-of-pocket fees, costs and expenses incurred by
Lenders and KEF, including attorneys' fees and costs, in connection with (i) the
negotiation and preparation of this Agreement and the transactions contemplated
hereby and (ii) the administration, enforcement and collection by Lenders or KEF
of their rights and remedies under this Agreement, the Credit Agreement and the
Master Lease, as the case may be.
12. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of all parties,
provided that no assignment of any party's rights or obligations under this
Agreement shall relieve that party of any of its obligations under this
Agreement.
13. Entire Agreement; Amendments and Waivers. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings with
respect to that subject matter. Any modification, amendment or waiver of any
right, remedy, obligation or provision of this Agreement may be made only by an
instrument in writing signed by (a) in the case of a modification or amendment,
all of the parties hereto or (b) in the case of a waiver, the party against
which that waiver is to be effective (and, if IRI is the waiving party, the
Acquirors). No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law. No provision of this Agreement is intended to confer any
rights, benefits, remedies, obligations or liabilities hereunder upon any
person, other than the parties hereto and their respective successors and
assigns.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Illinois, without
regard to choice or conflict of law provisions.
15. Counterpart Execution. This Agreement may be executed in two
or more counterparts, each of which will be deemed original, but all of which
together will constitute one and the same instrument.
16. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if provided in accordance with Section
10.10 of the Credit Agreement, provided that copies thereof are also delivered
personally, mailed by registered or certified mail (return receipt requested) or
sent via facsimile to the following parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
Gingko Corporation
c/o Symphony Technology Group
0000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Managing Partner
Facsimile: (000) 000-0000
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Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: 212 450 3010
No notice or other communication under this Agreement shall be deemed received
until the time set forth in the Credit Agreement and receipt by the above
persons on the date of actual receipt by such persons if received before 5:00
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place of
receipt by such persons.
[signature page attached]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
INFORMATION RESOURCES, INC.
a Delaware corporation, on behalf of all
Borrowers
By: ____________________________________
Its: ___________________________________
LASALLE BANK NATIONAL ASSOCIATION
By: ____________________________________
Its: ___________________________________
KEY CORPORATE CAPITAL INC.
By: ____________________________________
Its: ___________________________________
KEY EQUIPMENT FINANCE, a Division of Key
Corporate Capital Inc.
By: ____________________________________
Its: ___________________________________
GINGKO ACQUISITION CORP.
By: ____________________________________
Its: ___________________________________
GINGKO CORPORATION
By: ____________________________________
Its: ___________________________________
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