<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
X Quarterly Report Pursuant to Section 13 or 15(d) of The Securities
- --- Exchange Act of 1934.
For the quarterly period ended September 30, 1997
Transition report pursuant to Section 13 or 15(d) of the Securities
- --- Exchange Act of 1934.
Commission file number 0-11428
INFORMATION RESOURCES, INC.
-----------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 36-2947987
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
150 North Clinton Street, Chicago, Illinois 60661
------------------------------------------- -------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (312) 726-1221
Securities registered pursuant to Section 12(g) of the Act:
Title of each class
-------------------
Common, $.01 par value per share
Preferred Stock Purchase Rights
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
---- ----
The number of shares of the registrant's common stock, $.01 par value per share
outstanding, as of October 31, 1997 was 29,024,571.
<PAGE> 2
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
INDEX
-----
<TABLE>
<CAPTION>
PAGE
NUMBER
------
<S> <C>
PART I. FINANCIAL INFORMATION
- -----------------------------
Condensed Consolidated Balance Sheets 3
Condensed Consolidated Statements of Operations 4
Condensed Consolidated Statements of Cash Flows 5
Notes to Condensed Consolidated Financial Statements 6
Management's Discussion and Analysis of
Financial Condition and Results of Operations 9
PART II. OTHER INFORMATION
- ------------------------------
Item 6 - Exhibits and Reports on Form 8-K 14
Signatures 15
</TABLE>
2
<PAGE> 3
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
ASSETS SEPTEMBER 30, 1997 DECEMBER 31, 1996
- ------ ------------------- -----------------
(UNAUDITED)
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $ 21,993 $ 12,195
Accounts receivable, net 92,066 99,413
Prepaid expenses and other 7,172 6,575
----------- -----------
Total Current Assets 121,231 118,183
----------- -----------
Property and equipment, at cost 170,712 147,398
Accumulated depreciation and
amortization (106,480) (92,806)
----------- -----------
Net property and equipment 64,232 54,592
Investments 12,718 18,737
Other assets 157,086 142,981
----------- -----------
$ 355,267 $ 334,493
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
CURRENT LIABILITIES
Current maturities of
capitalized leases $ 1,730 $ 2,805
Accounts payable 39,950 36,059
Accrued compensation and benefits 14,806 17,660
Accrued property, payroll and
other taxes 2,946 4,506
Accrued expenses 8,861 7,015
Deferred revenue 24,226 15,558
----------- -----------
Total Current Liabilities 92,519 83,603
----------- -----------
Long-term bank debt -- 5,500
Long-term capitalized leases 1,848 2,392
Deferred income taxes, net 11,545 9,113
Deferred gain 3,320 3,632
Other liabilities 5,175 3,925
STOCKHOLDERS' EQUITY
Preferred stock-authorized,
1,000,000 shares $.01 par value -
none issued -- --
Common stock - authorized
60,000,000 shares,
$.01 par value; 28,874,412 and
27,886,406 shares issued and
outstanding, respectively 289 279
Capital in excess of par value 200,943 187,213
Retained earnings 42,436 38,270
Cumulative translation adjustment (2,808) 566
----------- -----------
Total Stockholders' Equity 240,860 226,328
----------- -----------
$ 355,267 $ 334,493
=========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
3
<PAGE> 4
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
UNAUDITED
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------ -----------------
SEPTEMBER 30 SEPTEMBER 30
------------ -------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues $ 115,601 $ 101,980 $ 334,702 $ 297,933
Costs and expenses:
Information services (101,645) (93,390) (297,818) (275,498)
Selling, general and administrative expenses (9,674) (8,562) (28,053) (26,110)
----------- ----------- ----------- -----------
(111,319) (101,952) (325,871) (301,608)
----------- ----------- ----------- -----------
Operating profit (loss) 4,282 28 8,831 (3,675)
Interest expense and other, net (130) (415) (634) (1,074)
Equity in earnings of affiliated companies 7 94 351 26
----------- ----------- ----------- -----------
Earnings (loss) before income taxes and
minority interests 4,159 (293) 8,548 (4,723)
Income tax (expense) benefit (2,000) -- (4,047) 2,038
----------- ----------- ----------- -----------
Earnings (loss) before minority interests 2,159 (293) 4,501 (2,685)
Minority interests (expense) benefit (177) 303 (335) 690
----------- ----------- ----------- -----------
Net earnings (loss) $ 1,982 $ 10 $ 4,166 $ (1,995)
=========== =========== =========== ===========
Net earnings (loss) per common and
common equivalent share $ .07 $ -- $ .15 $ (.07)
=========== =========== =========== ===========
Weighted average common and
common equivalent shares 28,610 27,775 28,307 27,727
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
4
<PAGE> 5
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
UNAUDITED
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30
------------------------------
1997 1996
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings (loss): $ 4,166 $ (1,995)
Adjustments to reconcile net earnings (loss) to net cash provided by
operating activities:
Amortization of deferred data procurement costs 74,985 64,698
Depreciation expense 15,144 14,921
Amortization of capitalized software costs 2,526 2,887
Amortization of intangibles 1,955 2,079
Deferred income tax provision 4,047 (2,038)
Equity in earnings (loss) of affiliated companies and minority interests (16) (716)
Other (2,236) (1,782)
Change in assets and liabilities:
Decrease (increase) in accounts receivable 10,462 (6,400)
Decrease (increase) in other current assets (38) 279
Decrease in accounts payable and accrued liabilities (1,441) (11,049)
Increase in deferred revenue 2,957 4,317
Other, net 630 915
---------- -----------
Total adjustments 108,975 68,111
---------- -----------
Net cash provided by operating activities 113,141 66,116
CASH FLOWS FROM INVESTING ACTIVITIES:
Deferred data procurement costs (83,240) (75,080)
Purchase of property and equipment (25,255) (14,578)
Capitalized software costs (2,648) (4,367)
Proceeds from disposition of assets and other 2,389 (600)
---------- -----------
Net cash used in investing activities (108,754) (94,625)
CASH FLOWS FROM FINANCING ACTIVITIES:
Net bank (repayments) borrowings (5,500) 10,750
Net repayments of capitalized leases (1,619) (1,387)
Proceeds from exercise of stock options and other 13,645 2,862
---------- -----------
Net cash provided by financing activities 6,526 12,225
EFFECT OF EXCHANGE RATE CHANGES ON CASH (1,115) (340)
---------- -----------
Net increase (decrease) in cash and cash equivalents 9,798 (16,624)
Cash and cash equivalents at beginning of period 12,195 24,884
---------- -----------
Cash and cash equivalents at end of period $ 21,993 $ 8,260
========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
5
<PAGE> 6
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Basis of presentation: The accompanying condensed consolidated
financial statements should be read in conjunction with the consolidated
financial statements included in Information Resources, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1996. The condensed consolidated
financial information furnished herein reflects all adjustments (consisting of
normal recurring accruals) which are, in the opinion of management, necessary
for a fair presentation of the condensed consolidated financial statements for
the periods shown.
Principles of consolidation: The condensed consolidated financial
statements include the accounts of Information Resources, Inc., ("IRI")
and its subsidiaries (collectively "the Company") after elimination of
intercompany transactions. Minority interests reflect the non-Company owned
stockholder interests in Information Resources Japan Ltd., IRI-SECODIP, S.C.S.,
(France), IRI InfoScan Limited (U.K.) and effective February 1, 1997 IRI/GfK
Retail Services GmbH (Germany) ("IRI/GfK Retail"). The equity method of
accounting is used for investments in which the Company has a 20% to 50%
ownership and exercises significant influence over operating and financial
policies. All significant intercompany accounts and transactions have been
eliminated in consolidation.
Reclassifications: Certain amounts in the 1996 condensed
consolidated financial statements have been reclassified to conform to the 1997
presentation.
Adoption of Statement of Financial Accounting Standards: In February
1997, the Financial Accounting Standards Board ("FASB") issued Statement of
Financial Accounting Standards No. 128, "Earnings per Share". In addition, the
FASB issued Statement of Financial Accounting Standards No. 130, "Reporting
Comprehensive Income" and Statement of Financial Accounting Standards No. 131,
"Disclosures about Segments of an Enterprise and Related Information"
(collectively "the Standards") in July 1997. Statement of Financial Accounting
Standards No. 128 is effective December 31, 1997 and is not expected to have a
material impact on the Company's consolidated financial statements. The other
Standards are effective for fiscal years beginning after December 15, 1997 and
the Company is currently investigating the impact of these Standards.
NOTE 2 - SUPPLEMENTAL CASH FLOW INFORMATION
Cash paid (refunded) for interest and income taxes during the period was
as follows (in thousands):
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30
------------------------------
1997 1996
-------- --------
<S> <C> <C>
Interest $ 1,042 $ 1,580
Income taxes 222 (550)
</TABLE>
6
<PAGE> 7
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS, CONT'D.
(UNAUDITED)
NOTE 3 - GERMAN OPERATIONS
In February 1997, the Company and GfK AG of Germany ("GfK") organized a
new joint venture company, IRI/GfK Retail. The Company has a 51% ownership
interest in IRI/GfK Retail, and GfK owns the remainder. IRI/GfK Retail
purchased the German retail tracking business and related software business of
GfK Panel Services GmbH ("GfK Panel") and will now provide those business
services to the German market. The consolidation of IRI/GfK Retail, which was
effective February 1, 1997, did not have a material impact on the financial
results or position of the Company.
In a separate transaction, the Company sold its previously held 15%
ownership interest in GfK Panel to GfK at no book gain or loss. GfK Panel
will continue to provide consumer panel and ad hoc research services to the
market, and GfK Panel and IRI/GfK Retail will cooperate in selling and
delivering services to appropriate customers.
NOTE 4 - ACCOUNTS RECEIVABLE
Accounts receivable were as follows (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997 DECEMBER 31, 1996
------------------ -----------------
<S> <C> <C>
Billed $ 59,481 $ 63,102
Unbilled 31,395 37,615
Other 5,773 3,033
--------- ---------
96,649 103,750
Reserve for accounts receivable (4,583) (4,337)
--------- ---------
$ 92,066 $ 99,413
========= =========
</TABLE>
7
<PAGE> 8
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS, CONT'D.
(UNAUDITED)
NOTE 5 - OTHER ASSETS
Other assets were as follows (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997 DECEMBER 31, 1996
------------------ -----------------
<S> <C> <C>
Deferred data procurement
costs - net of accumulated
amortization of of $106,412
in 1997 and $102,372 in 1996 $ 124,077 $ 113,926
Intangible assets, including
goodwill primarily related
to acquisitions - net of
accumulated amortization of
$14,569 in 1997 and $12,171
in 1996 17,137 13,940
Capitalized software costs -
net of accumulated amortization
of $4,111 in 1997 and $5,554
in 1996 6,417 11,516
Other 9,455 3,599
------------ ------------
$ 157,086 $ 142,981
============ ============
</TABLE>
NOTE 6 - LONG-TERM DEBT
The Company did not have any bank borrowings outstanding at September 30,
1997. In October 1997, the Company replaced its $50.0 million bank revolving
credit facility maturing in 1998 with a new $75.0 million facility maturing
in 2001, with fixed or floating interest rate options at or below prime.
Commitment fees of .25% are payable on the unused portion of the new facility.
The credit agreement contains covenants which restrict the Company's ability to
incur additional indebtedness or liens on its assets.
The financial covenants in the bank credit agreement, as well as in the
lease agreement for the Company's Chicago headquarters, require the Company to
maintain a minimum tangible net worth and to meet certain cash flow coverage
and leverage ratios. These agreements also limit IRI's ability to declare
dividends or make distributions to holders of capital stock, or redeem or
otherwise acquire shares of the Company. Approximately $50.0 million is
currently available for such distributions.
8
<PAGE> 9
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Based upon discussions with financial analysts, the Company considers
the aggregation of operating profit (loss), equity earnings (losses) and
minority interests ("Operating Results") by major geographic region to be a
meaningful measure of the Company's relative performance. A comparative
analysis of consolidated revenues and Operating Results for the three and nine
months ended September 30, 1997 and 1996 follows (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------ -----------------
SEPTEMBER 30 SEPTEMBER 30
------------ ------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Revenues:
U.S. Services $ 93,405 $ 86,848 $ 270,760 $ 253,783
International Services 22,196 15,132 63,942 44,150
---------- ---------- ----------- -----------
$ 115,601 $ 101,980 $ 334,702 $ 297,933
========== ========== =========== ===========
Operating Results:
U.S. Services operating profit $ 10,139 $ 8,168 $ 27,435 $ 20,764
International Services
Operating loss (4,932) (7,808) (16,591) (23,225)
Equity in earnings of affiliated companies 7 94 351 26
Minority interests (expense) benefit (177) 303 (335) 690
---------- ---------- ----------- -----------
Total International Services (5,102) (7,411) (16,575) (22,509)
Corporate and other expenses (925) (332) (2,013) (1,214)
---------- ---------- ----------- -----------
Operating Results $ 4,112 $ 425 $ 8,847 $ (2,959)
========== ========== =========== ===========
</TABLE>
In the third quarter of 1997, revenues from the Company's U.S. services
business were $93.4 million, an increase of 8% compared to $86.8 million for
the corresponding 1996 quarter. Revenues from the Company's U.S. services
business in the first nine months of 1997 were 7% higher than in the
corresponding period of 1996. Operating Results for the Company's U.S. services
business were $10.1 million in the third quarter of 1997 an increase of 24%
compared to the third quarter of 1996 as a result of improved operating
margins. Operating Results for the U.S. services business increased 32% to
$27.4 million for the nine months ended September 30, 1997 compared to the
same period of 1996 due to the growth in revenues together with the benefit of
lower expense growth resulting from the Company's continuing cost containment
and reengineering initiatives. Operating margins increased by nearly two
percentage points compared to 1996.
9
<PAGE> 10
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS, CONT'D.
Third quarter 1997 revenues from the Company's International services
business, primarily in Europe, were $22.2 million, an increase of 47% over
the corresponding 1996 quarter, despite the dampening effect of a strong U.S.
dollar against European currencies. Results in the third quarter of 1997 also
reflect a full period's consolidation of IRI's majority-owned German operation,
IRI/GfK Retail Services GmbH, effective February 1, 1997. Excluding the German
results and the foreign exchange impacts, European revenues increased 22%
compared to the 1996 quarter. Operating Results for the Company's International
services business were a ($5.1) million loss in the third quarter of 1997, 31%
below the ($7.4) million loss in the corresponding 1996 quarter as revenues
continued to grow significantly in each of the major European countries where
InfoScan has been introduced. For the nine months ended September 30, 1997,
International revenues were $63.9 million, an increase of 45% over the first
nine months of 1996 on the strength of expanding European operations. Excluding
the German results and foreign exchange effect noted earlier, European revenues
increased 22% compared to the first nine months of 1996. Operating Results for
the Company's International services business were a ($16.6) million loss for
the nine months ended September 30, 1997 compared to a ($22.5) million loss in
the corresponding 1996 period. The improved International Operating Results are
due to increasing revenues in each of the Company's major European countries,
France, Italy and the U.K.
The Company's consolidated net earnings were $2.0 million for the third
quarter of 1997 compared to essentially break-even results for the
corresponding 1996 quarter. Consolidated net earnings were $4.2 million for the
nine months ended September 30, 1997 compared to a net loss of ($2.0) million
for the same period of 1996, due to improved Operating Results both in the U.S.
and Europe.
Consolidated revenues for the three months ended September 30, 1997 were
$115.6 million, an increase of 13% over the corresponding quarter in 1996.
Consolidated revenues for the nine months ended September 30, 1997 were $334.7
million up 12% compared to the corresponding period of 1996. These increases
were the result of revenue growth in the U.S. services business and a
substantial increase in international revenues which was aided somewhat by the
inclusion of the German operation effective February 1, 1997.
Consolidated costs of information services increased 9% to $101.6 million
for the three months ended September 30, 1997 in relation to the 13% revenue
increase for the same period. Consolidated costs of information services
increased 8% to $297.8 million for the nine months ended September 30, 1997 in
relation to the 12% revenue increase for the same period. The expense increase
in the first nine months of 1997 was primarily due to: (a) an $11.5 million
increase in operating expenses due to the 1997 consolidation of IRI/GfK Retail
(b) a $7.2 million increase in the amortization of deferred data
procurement costs, principally resulting from the expansion of the information
services business in Europe; and (c) a $6.1 million increase in compensation
expense resulting primarily from higher headcount required for international
expansion, client servicing and software development.
10
<PAGE> 11
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS, CONT'D.
Consolidated selling, general and administrative expenses increased
13% to $9.7 million for the quarter ended September 30, 1997 and increased
7% to $28.1 million for the nine months ended September 30, 1997. These
increases were primarily attributable to higher compensation expenses worldwide
and legal expenses in the U.S. Increased legal expenses related directly to the
Company's antitrust lawsuit against The Dun & Bradstreet Corporation, A.C.
Nielsen Company and IMS International, Inc. In that suit the Company is seeking
$1 billion in trebled damages from the defendants for violations of U.S.
antitrust laws. The case recently entered the discovery phase, and the Company
anticipates incurring continued high legal expenses in the next several fiscal
quarters as the case progresses toward trial.
For all periods presented, the Company's effective income tax rate is
greater than the U.S. Federal statutory rate due to certain unbenefitted foreign
losses, goodwill amortization and other nondeductible expenses.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 1997, the Company's capital resources included
its $22.0 million consolidated cash balance and a $50.0 million bank line
of credit. The Company anticipates that it will have sufficient funds from
these resources and internally generated funds from its U.S. operations to
satisfy its cash needs for the foreseeable future.
In October 1997, the Company replaced its $50.0 million bank revolving
credit facility maturing in 1998 with a new $75.0 million facility
maturing in 2001, with fixed or floating interest rate options at or below
prime. Commitment fees of .25% are payable on the unused portion of the new
facility. The credit agreement contains covenants which restrict the Company's
ability to incur additional indebtedness or liens on its assets.
The financial covenants in the bank credit agreement, as well as in the
lease agreement for the Company's Chicago headquarters, require the Company to
maintain a minimum tangible net worth and to meet certain cash flow coverage
and leverage ratios. These agreements also limit IRI's ability to declare
dividends or make distributions to holders of capital stock, or redeem or
otherwise acquire shares of the Company. Approximately $50.0 million is
currently available for such distributions.
11
<PAGE> 12
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS, CONT'D.
Cash Flow: Consolidated net cash provided by operating activities
was $113.1 million for the nine months ended September 30, 1997 compared
to $66.1 million for the same period in 1996 primarily due to improved operating
performance both in Europe and in the U.S. and significantly lower working
capital investment in 1997. Consolidated cash used in net investing activities
was ($108.8) million in 1997 compared to ($94.6) million for the same period in
1996. Investing activity for the nine months of 1997 reflected higher purchases
of property and equipment and deferred data procurement costs offset by lower
investment in capitalized software compared to the first nine months of 1996.
Net cash provided before financing activities was $4.4 million for the nine
months ended September 30, 1997 and a net cash use of ($28.5) million for the
same period of 1996. Consolidated cash provided by financing activities was
$6.5 million for the nine months ended September 30, 1997 compared to $12.2
million for the same period in 1996 when the bank line was used to fund
international operating needs. Proceeds from exercises of stock options were
approximately $13.6 million and $2.9 million for the nine months ended September
30, 1997 and 1996, respectively.
Financings: The Company reduced its bank borrowings by $5.5 million
during the first nine months of 1997. There were no borrowings
outstanding under the line of credit at September 30, 1997. In recent years,
the primary use of borrowings has been the expansion of the Company's
information services business in Europe.
Common Stock Repurchase Plan: In November 1997, the Company's Board
of Directors approved a plan to repurchase up to two million shares of the
Company's Common Stock from time to time in the open market. Purchases under
the plan are subject to a number of considerations including the market price of
the Company's Common Stock and general market conditions. The Company
anticipates funding repurchases out of cash on hand or available through the
Company's credit facilities.
Other Deferred Costs and Capital Expenditures: Consolidated deferred
data procurement expenditures were $83.2 million for the nine months ended
September 30, 1997 and $75.1 million for the same period in 1996. These
expenditures are amortized over a period of 28 months and include payments to
retailers for point-of-sale data and costs related to collecting, reviewing and
verifying other data (i.e., causal factors) which are an essential part of the
InfoScan data base. Such expenditures for the Company's U.S. services business
were $53.8 million and $49.9 million for the nine months ended September 30,
1997 and 1996, respectively, and $29.4 million and $25.2 million, respectively,
for the Company's International services business.
Management expects to continue the development of its International
businesses, and accordingly, the Company's International operations will
continue to require substantial investment in data procurement and other costs.
Based upon currently projected operating results and cash flows, the Company's
assessment is that the realizability of its International assets is not
impaired. To the extent that actual Operating Results and cash flows are lower
than these current projections, the Company may be required to write down a
portion of these assets in future periods.
12
<PAGE> 13
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS, CONT'D.
Consolidated capital expenditures were $25.3 million and $14.6
million for the nine months ended September 30, 1997 and 1996, respectively.
Capital expenditures for the Company's U.S. services business were $21.7 million
and $11.7 million for the nine months ended September 30, 1997 and 1996,
respectively, while related depreciation expense was $12.1 million and $11.9
million, respectively. The Company's International services business capital
expenditures were $3.6 million and $2.9 million for the nine months ended
September 30, 1997 and 1996, respectively, while related depreciation expense
was $3.0 million in each nine-month period.
Consolidated capitalized software development costs were $2.6 million
and $4.4 million for the nine months ended September 30, 1997 and 1996,
respectively.
NOL Carryforwards: As of December 31, 1996, the Company had
cumulative U.S. Federal net operating loss ("NOL") carryforwards of
approximately $64.8 million that expire primarily in 2009 and 2011. Certain of
these carryforwards have not been examined by the Internal Revenue Service and,
therefore, are subject to adjustment. In addition, at December 31, 1996,
various foreign subsidiaries of IRI had aggregate cumulative NOL carryforwards
for foreign income tax purposes of approximately $6.2 million which are subject
to various income tax provisions of each respective country. Approximately $3.0
million of these foreign NOL's may be carried forward indefinitely, while the
remaining $3.2 million expire in 2000 and 2001. A majority of the European
foreign pre-tax losses are deducted as partnership losses in IRI's consolidated
U.S. income tax return in accordance with the Internal Revenue Code. At
December 31, 1996, the Company had general business tax credit carryforwards of
approximately $4.9 million which expire primarily between 1999 and 2010, and are
available to reduce future U.S. Federal income tax liabilities.
Forward Looking Information: Certain matters discussed above may
contain forward-looking statements that are subject to risks and
uncertainties that could cause actual results to differ materially from those
anticipated, including customer renewals of service contracts, the timing of
significant new customer engagements, competitive conditions in Europe, foreign
currency exchange rates and other factors beyond the Company's control. These
risks and uncertainties are described in reports and other documents filed by
the Company with the Securities and Exchange Commission.
13
<PAGE> 14
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
PART II
OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit Page
----------- ---------------------- ----
<S> <C> <C>
10 Credit Agreement dated October 31,
1997 among the Company, the Bank Parties
thereto and Harris Trust and Savings Bank,
as Agent (filed herewith). EF
27 Financial Data Schedule (filed herewith). EF
b. Reports on Form 8-K.
Form 8-K dated October 27, 1997
Items Reported:
Item 5: Amendment to Company's Preferred Stock Rights.
</TABLE>
14
<PAGE> 15
INFORMATION RESOURCES, INC. AND SUBSIDIARIES
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INFORMATION RESOURCES, INC.
---------------------------
(Registrant)
/s/ Gary M. Hill
---------------------------
Gary M. Hill
Executive Vice President
and Chief Financial Officer
(Authorized officer of Registrant and
principal financial officer)
/s/ John P. McNicholas, Jr.
---------------------------
John P. McNicholas, Jr.
Senior Vice President and Controller
(Principal accounting officer)
November 13, 1997
15
<PAGE> 1
==============================================================================
CREDIT AGREEMENT
DATED AS OF OCTOBER 31, 1997
AMONG
INFORMATION RESOURCES, INC.,
THE BANKS PARTY HERETO,
AND
HARRIS TRUST AND SAVINGS BANK,
as Agent
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION DESCRIPTION PAGE
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SECTION 1. THE CREDIT FACILITIES..................................... 1
Section 1.1. The Revolving Credit Commitments.............. 1
Section 1.2. Letters of Credit............................. 1
Section 1.2-A. Swing Loans................................... 4
Section 1.3. Applicable Committed Loan Interest Rates...... 6
Section 1.4. Minimum Borrowing Amounts..................... 8
Section 1.5. Manner of Borrowing Committed Loans and
Designating Applicable Interest Rates......... 8
Section 1.6. The Bid Loans................................. 10
Section 1.7. Requests for Bid Loans........................ 10
Section 1.8. Notice of Bids; Advice of Rate................ 11
Section 1.9. Acceptance or Rejection of Bids............... 11
Section 1.10. Notice of Acceptance or Rejection of Bids..... 12
Section 1.11. Interest on Bid Loans......................... 12
Section 1.12. Telephonic Notice............................. 12
Section 1.13. Interest Periods.............................. 13
Section 1.14. Maturity of Loans............................. 14
Section 1.15. Prepayments................................... 14
Section 1.16. Default Rate.................................. 14
Section 1.17. The Notes..................................... 15
Section 1.18. Funding Indemnity............................. 15
Section 1.19. Commitment Terminations....................... 16
SECTION 2. FEES AND EXTENSIONS....................................... 16
Section 2.1. Fees.......................................... 16
Section 2.2. Extensions of Termination Date................ 17
SECTION 3. PLACE AND APPLICATION OF PAYMENTS......................... 18
SECTION 4. DEFINITIONS; INTERPRETATION............................... 18
Section 4.1. Definitions................................... 18
Section 4.2. Interpretation................................ 25
Section 4.3. Change in Accounting Principles............... 25
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<TABLE>
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SECTION 5. REPRESENTATIONS AND WARRANTIES........................... 26
Section 5.1. Organization and Qualification............... 26
Section 5.2. Subsidiaries................................. 26
Section 5.3. Margin Stock................................. 27
Section 5.4. Financial Reports............................ 27
Section 5.5. Litigation and Other Controversies........... 27
Section 5.6. Taxes........................................ 28
Section 5.7. Approvals.................................... 28
Section 5.8. Investment Company........................... 28
Section 5.9. ERISA........................................ 28
Section 5.10. Compliance with Laws......................... 28
Section 5.11. Other Agreements............................. 29
SECTION 6. CONDITIONS PRECEDENT..................................... 29
Section 6.1. Initial Credit Event......................... 29
Section 6.2. All Credit Events............................ 30
SECTION 7. COVENANTS................................................ 31
Section 7.1. Corporate Existence, Etc..................... 31
Section 7.2. Maintenance of Properties.................... 31
Section 7.3. Taxes and Assessments........................ 31
Section 7.4. Insurance.................................... 31
Section 7.5. Financial Reports............................ 32
Section 7.6. Consolidated Tangible Net Worth.............. 33
Section 7.7. Leverage Ratio............................... 33
Section 7.8. Cash Flow Coverage Ratio..................... 33
Section 7.9. Restricted Payments.......................... 33
Section 7.10. Indebtedness for Borrowed Money and
Guarantees................................... 34
Section 7.11. Liens........................................ 34
Section 7.12. Leases....................................... 35
Section 7.13. Sales and Leasebacks......................... 35
Section 7.14. Mergers, Consolidations and Sales............ 35
Section 7.15. ERISA........................................ 36
Section 7.16. Compliance with Laws......................... 36
Section 7.17. Use of Proceeds.............................. 36
SECTION 8. EVENTS OF DEFAULT AND REMEDIES........................... 36
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<TABLE>
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Section 8.1. Events of Default............................ 36
Section 8.2. Non-Bankruptcy Defaults...................... 38
Section 8.3. Bankruptcy Defaults.......................... 39
Section 8.4. Collateral for Undrawn Letters of Credit..... 39
Section 8.5. Notice of Default............................ 40
Section 8.6. Expenses..................................... 40
SECTION 9. CHANGE IN CIRCUMSTANCES.................................. 40
Section 9.1. Change of Law................................ 40
Section 9.2. Unavailability of Deposits or Inability to
Ascertain, or Inadequacy of, LIBOR........... 40
Section 9.3. Increased Cost and Reduced Return............ 41
Section 9.4. Lending Offices.............................. 42
Section 9.5. Discretion of Bank as to Manner of Funding... 42
SECTION 10. THE AGENT................................................ 42
Section 10.1. Appointment and Authorization of Agent....... 42
Section 10.2. Agent and its Affiliates..................... 43
Section 10.3. Action by Agent.............................. 43
Section 10.4. Consultation with Experts.................... 43
Section 10.5. Liability of Agent; Credit Decision.......... 43
Section 10.6. Indemnity.................................... 44
Section 10.7. Resignation of Agent and Successor Agent..... 44
SECTION 11. MISCELLANEOUS............................................ 45
Section 11.1. Withholding Taxes............................ 45
Section 11.2. No Waiver, Cumulative Remedies............... 46
Section 11.3. Non-Business Days............................ 46
Section 11.4. Documentary Taxes............................ 46
Section 11.5. Survival of Representations.................. 46
Section 11.6. Survival of Indemnities...................... 46
Section 11.7. Sharing of Set-Off........................... 46
Section 11.8. Notices...................................... 47
Section 11.9. Counterparts................................. 47
Section 11.10. Successors and Assigns....................... 47
Section 11.11. Participants................................. 48
Section 11.12. Assignment of Commitments by Banks........... 48
Section 11.13. Amendments................................... 48
Section 11.14. Headings..................................... 49
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<TABLE>
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Section 11.15. Costs and Expenses............................... 49
Section 11.16. Set-off.......................................... 49
Section 11.17. Entire Agreement................................. 50
Section 11.18. Governing Law.................................... 50
Section 11.19. Severability of Provisions....................... 50
Section 11.20. Confidentiality.................................. 50
Section 11.21. Submission to Jurisdiction; Waiver of Jury Trial. 51
Signature Page....................................................... 52
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Exhibit A-1 - Committed Loan Note
Exhibit A-2 - Swing Line Note
Exhibit B - Bid Note
Exhibit C - Bid loan Request Confirmation
Exhibit D - Invitation to Bid
Exhibit E - Confirmation of Bid
Exhibit F - Notice of Acceptance of Bid
Exhibit G - Opinion of Counsel
Exhibit H - Notice of Payment Request
Schedule 5.5 - Pending Litigation
Schedule 7.5 - Compliance Certificate
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INFORMATION RESOURCES, INC.
CREDIT AGREEMENT
To each of the Banks signatory hereto
Ladies and Gentlemen:
The undersigned, Information Resources, Inc., a Delaware corporation (the
"Borrower"), applies to you for your several commitments, subject to the terms
and conditions hereof and on the basis of the representations and warranties
hereinafter set forth, to make a revolving credit for loans and letters of
credit (the "Revolving Credit") available to the Borrower, all as more fully
hereinafter set forth. Each of you is hereinafter referred to as a "Bank," all
of you are hereinafter referred to collectively as the "Banks," and Harris
Trust and Savings Bank in its capacity as agent for the Banks hereunder is
hereinafter referred to as the "Agent."
SECTION 1. THE CREDIT FACILITIES.
Section 1.1. The Revolving Credit Commitments. Subject to the terms and
conditions hereof, each Bank, by its acceptance hereof, severally agrees to
make a loan or loans (individually a "Committed Loan" and collectively the
"Committed Loans") to the Borrower from time to time on a revolving basis up to
the amount of such Bank's revolving credit commitment set forth on the
applicable signature page hereof or pursuant to Section 11.12 hereof (its
"Revolving Credit Commitment" and, cumulatively for all the Banks, the
"Revolving Credit Commitments"), subject to any reductions thereof pursuant to
the terms hereof, before the Termination Date. The sum of the aggregate
principal amount of all Loans (whether Committed Loans, Swing Loans or Bid
Loans) and of L/C Obligations at any time outstanding shall not exceed the
Revolving Credit Commitments in effect at such time. Each Borrowing of
Committed Loans shall be made ratably from the Banks in proportion to their
respective Percentages. As provided in Section 1.5(a) hereof, the Borrower may
elect that each Borrowing of Committed Loans be either Domestic Rate Loans or
Eurodollar Loans. Committed Loans may be repaid and the principal amount
thereof reborrowed before the Termination Date, subject to the terms and
conditions hereof.
Section 1.2. Letters of Credit. (a) General Terms. Subject to the terms
and conditions hereof, as part of the Revolving Credit, the Agent shall issue
standby letters of credit (each a "Letter of Credit") for the Borrower's
account in an aggregate undrawn face amount up to the amount of the L/C
Commitment,
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provided that the aggregate L/C Obligations at any time outstanding shall not
exceed the difference between the Revolving Credit Commitments in effect at
such time and the aggregate principal amount of all Loans (whether Committed
Loans, Swing Loans or Bid Loans) then outstanding. Each Letter of Credit shall
be in a face amount of not less than $100,000 at the time of issuance. Each
Letter of Credit shall be issued by the Agent, but each Bank shall be obligated
to reimburse the Agent for such Bank's Percentage of the amount of each drawing
thereunder and, accordingly, each Letter of Credit shall constitute usage of
the Revolving Credit Commitment of each Bank pro rata in accordance with its
Percentage.
(b) Applications. At any time before the Termination Date, the Agent
shall, at the request of the Borrower, issue one or more Letters of Credit, in
a form satisfactory to the Agent, with expiration dates no later than the
earlier of twenty-four (24) months from the date of issuance of the relevant
Letter of Credit or the Termination Date, in an aggregate face amount as set
forth above, upon the receipt of an application duly executed by the Borrower
for the relevant Letter of Credit in the form then customarily prescribed by
the Agent (each an "Application"). For purposes of this Agreement and the
other Loan Documents, Harris Trust and Savings Bank Standby Letter of Credit
SPL Nos. 35747 and 35038 in the amounts of $375,000 and $744,750, respectively,
issued for the account of the Borrower shall each be deemed a Letter of Credit
issued under this Agreement and each application therefor shall be deemed an
Application for all purposes of this Agreement (in which each Participating
Bank shall be deemed to have purchased a Participating Interest therein in
accordance with its Percentage). Notwithstanding anything contained in any
Application to the contrary: (i) the Borrower shall pay fees in connection
with each Letter of Credit as set forth in Section 2.1 hereof, (ii) before the
occurrence of a Default or an Event of Default, the Agent will not call for the
funding by the Borrower of any amount under a Letter of Credit, or for any
other form of collateral security for the Borrower's obligations in connection
with such Letter of Credit, before being presented with a drawing thereunder,
and (iii) if the Agent is not timely reimbursed for the amount of any drawing
under a Letter of Credit on the date such drawing is paid, the Borrower's
obligation to reimburse the Agent for the amount of such drawing shall bear
interest (which the Borrower hereby promises to pay) from and after the date
such drawing is paid at a rate per annum equal to the sum of 2% plus the
Domestic Rate from time to time in effect. If the Agent issues any Letter of
Credit with an expiration date that is automatically extended unless the Agent
gives notice that the expiration date will not so extend beyond its then
scheduled expiration date, the Agent will give such notice of non-renewal
before the time necessary to prevent such automatic
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extension if before such required notice date (i) the expiration date of such
Letter of Credit if so extended would be after the Termination Date, (ii) the
Commitments have been terminated, or (iii) an Event of Default exists and the
Required Banks have given the Agent instructions not to so permit the extension
of the expiration date of such Letter of Credit. The Agent agrees to issue
amendments to the Letter(s) of Credit increasing the amount, or extending the
expiration date, thereof at the request of the Borrower subject to the
conditions of Section 6.2 hereof and the other terms of this Section 1.2.
(c) The Reimbursement Obligations. Subject to Section 1.2(b) hereof, the
obligation of the Borrower to reimburse the Agent for all drawings under a
Letter of Credit (a "Reimbursement Obligation") shall be governed by the
Application related to such Letter of Credit, except that reimbursement shall
be made by no later than 12:00 Noon (Chicago time) on the date when each
drawing is paid in immediately available funds at the Agent's principal office
in Chicago, Illinois. If the Borrower does not make any such reimbursement
payment on the date due and the Participating Banks fund their participations
therein in the manner set forth in Section 1.2(d) below, then all payments
thereafter received by the Agent in discharge of any of the relevant
Reimbursement Obligations shall be distributed in accordance with Section
1.2(d) below.
(d) The Participating Interests. Each Bank (other than the Bank then
acting as Agent in issuing Letters of Credit), by its acceptance hereof,
severally agrees to purchase from the Agent, and the Agent hereby agrees to
sell to each such Bank (a "Participating Bank"), an undivided percentage
participating interest (a "Participating Interest"), to the extent of its
Percentage, in each Letter of Credit issued by, and each Reimbursement
Obligation owed to, the Agent. Upon any failure by the Borrower to pay any
Reimbursement Obligation at the time required on the date the related drawing
is paid, as set forth in Section 1.2(c) above, or if the Agent is required at
any time to return to the Borrower or to a trustee, receiver, liquidator,
custodian or other Person any portion of any payment of any Reimbursement
Obligation, each Participating Bank shall, not later than the Business Day it
receives a certificate in the form of Exhibit H hereto from the Agent to such
effect, if such certificate is received before 1:00 p.m. (Chicago time), or not
later than the following Business Day, if such certificate is received after
such time, pay to the Agent an amount equal to such Participating Bank's
Percentage of such unpaid or recaptured Reimbursement Obligation together with
interest on such amount accrued from the date the related payment was made by
the Agent to the date of such payment by such Participating Bank at a rate per
annum equal to the Federal Funds Rate for each such day. Each such
Participating
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Bank shall thereafter be entitled to receive its Percentage of each payment
received in respect of the relevant Reimbursement Obligation and of interest
paid thereon, with the Agent retaining its Percentage as a Bank hereunder.
The several obligations of the Participating Banks to the Agent under this
Section 1.2 shall be absolute, irrevocable and unconditional under any and all
circumstances whatsoever (except, without limiting the Borrower's obligations
under each Application, to the extent the Borrower is relieved from its
obligation to reimburse the Agent for a drawing under a Letter of Credit
because of the Agent's gross negligence or willful misconduct in determining
that documents received under the Letter of Credit comply with the terms
thereof) and shall not be subject to any set-off, counterclaim or defense to
payment which any Participating Bank may have or have had against the Borrower,
the Agent, any other Bank or any other Person whatsoever. Without limiting the
generality of the foregoing, such obligations shall not be affected by any
Default or Event of Default or by any reduction or termination of any
Commitment of any Bank, and each payment by a Participating Bank under this
Section 1.2 shall be made without any offset, abatement, withholding or
reduction whatsoever. The Agent shall be entitled to offset amounts received
for the account of a Bank under this Agreement against unpaid amounts due from
such Bank to the Agent hereunder (whether as fundings of participations,
indemnities or otherwise), but shall not be entitled to offset against amounts
owed to the Agent by any Bank arising outside of this Agreement.
(e) Indemnification. The Participating Banks shall, to the extent of
their respective Percentages, indemnify the Agent (to the extent not reimbursed
by the Borrower) against any cost, expense (including reasonable counsel fees
and disbursements), claim, demand, action, loss or liability (except such as
result from the Agent's gross negligence or willful misconduct) that the Agent
may suffer or incur in connection with any Letter of Credit. The obligations
of the Participating Banks under this Section 1.2(e) and all other parts of
this Section 1.2 shall survive termination of this Agreement and of all
Applications, Letters of Credit, and all drafts or other documents presented in
connection with drawings thereunder.
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Section 1.2-A. Swing Loans.
(a) Swing Loans. Subject to all of the terms and conditions hereof,
Harris Trust and Savings Bank ("Harris Bank") agrees to make loans ("Swing
Loans") to the Borrower under a swing line of credit from time to time before
the Termination Date in an aggregate amount at any one time outstanding not to
exceed the lesser of (i) the Swing Line Commitment then in effect and (ii) the
difference between the Revolving Credit Commitments in effect at such time and
the aggregate principal amount of all Loans (whether Committed Loans, Swing
Loans, or Bid Loans) then outstanding; provided, however, that the aggregate
amount of the Committed Loans and Swing Loans outstanding at any one time and
owing to Harris Bank shall not at any time exceed Harris Bank's Revolving
Credit Commitment then in effect. The Swing Line Commitment shall be available
to the Borrower and may be availed of by the Borrower from time to time and
borrowings thereunder may be repaid and used again during the period ending on
the Termination Date. Without regard to the face principal amount of the Swing
Line Note, the actual principal amount at any time outstanding and owing by the
Borrower on account of the Swing Line Note shall be the sum of all Swing Loans
then or theretofore made thereon less all payments actually received thereon.
(b) Minimum Borrowing Amount. Each Swing Loan shall be in an amount not
less than $250,000.
(c) Interest on Swing Loans. Each Swing Loan shall bear interest
(computed on the basis of a year of 360 days and actual days elapsed) for the
Interest Period selected by the Borrower therefor at the Domestic Rate or at
Harris Bank's Quoted Rate for such Interest Period, provided that if any Swing
Loan is not paid when due (whether by lapse of time, acceleration or otherwise)
such Swing Loan shall bear interest, whether before or after judgment, until
payment in full thereof through the end of the Interest Period then applicable
thereto at the rate per annum determined by adding 2% to the Domestic Rate.
Interest on each Swing Loan shall be due and payable on the last day of each
Interest Period applicable thereto, and interest after maturity (whether by
lapse of time, acceleration or otherwise) shall be due and payable upon demand.
Harris Bank's determination of the interest rate applicable to the Swing Loans
shall be conclusive and binding except in the case of manifest error or willful
misconduct.
(d) Requests for Swing Loans. The Borrower shall give Harris Bank prior
notice (which may be written or oral) no later than 12:00 Noon (Chicago time)
on the date any Swing Loan is to be made, specifying in each case the amount
and date of such Swing Line Loan and the Interest Period selected
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therefor. Within thirty (30) minutes after receiving such notice, Harris Bank
shall quote to the Borrower an interest rate determined in Harris Bank's
discretion at which Harris Bank would be willing to make such Swing Loan
available to the Borrower for such Interest Period (the rate so quoted for a
given Interest Period being herein referred to as "Harris Bank's Quoted Rate").
The Borrower acknowledges and agrees that the interest rate quote is given to
the Borrower for immediate and irrevocable acceptance, and if the Borrower does
not so immediately accept Harris Bank's Quoted Rate for the full amount
requested by the Borrower for such Swing Line Loan, the Harris Bank's Quoted
Rate shall be deemed immediately withdrawn and such Swing Loan shall be made at
the Domestic Rate. Subject to all of the terms and conditions hereof, the
proceeds of such Swing Loan shall be made available to the Borrower on the date
so requested at the offices of the Agent in Chicago, Illinois. Anything
contained in the foregoing to the contrary notwithstanding, (i) the obligation
of Harris Bank to make Swing Loans shall be subject to all of the terms and
conditions of this Agreement and (ii) Harris Bank shall not be obligated to
make more than one Swing Loan during any one day.
(e) Refunding Loans. In its sole and absolute discretion, Harris Bank may
at any time, on behalf of the Borrower (which hereby irrevocably authorizes
Harris Bank to act on its behalf for such purpose), request each Bank to make
Committed Loans in an amount equal to such Bank's Percentage of the amount of
the Swing Loans outstanding on the date such notice is given. Borrowings of
Committed Loans under this Section 1.2-A(e) shall initially bear interest at
the Domestic Rate unless timely notice is given pursuant to Section 1.5 hereof.
Unless the conditions of Section 6 are not fulfilled on such date, each Bank
shall make its requested Committed Loan available to Harris Bank, in
immediately available funds, at the principal office of Harris Bank in Chicago,
Illinois, before 11:00 a.m. (Chicago time) on the Business Day following the
day such notice is given. The proceeds of such Committed Loans shall be
immediately applied to repay the outstanding Swing Loans.
(f) Participations. If any Bank refuses or otherwise fails or is unable
to make a Committed Loan when requested by Harris Bank pursuant to Section
1.2-A(e) above (because the conditions in Section 6 are not satisfied or
otherwise), such Bank shall, by the time and in the manner such Committed Loan
was to have been funded to Harris Bank, purchase from Harris Bank an undivided
participating interest in the outstanding Swing Loans in an amount equal to its
percentage of the aggregate principal amount of Swing Loans that were to have
been repaid with such Committed Loans. Each Bank that so purchases a
participation in a Swing Loan shall thereafter be entitled to receive its
Percentage of each payment of
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principal received on the Swing Loan and of interest received thereon accruing
from the date such Bank funded to Harris Bank its participation in such Loan.
The obligation of the Banks to Harris Bank shall be absolute and unconditional
and shall not be affected or impaired by any Default or Event of Default which
may then be continuing hereunder.
(g) Voluntary Prepayment of Swing Loans. The Borrowers may voluntarily
prepay any Swing Loan bearing interest at the Domestic Rate before its maturity
at any time upon notice to the Agent prior to 2:00 p.m. (Chicago time) on the
date fixed for prepayment, each such prepayment to be made by the payment of
the principal amount to be prepaid and accrued interest thereon to the date of
prepayment; however, the Borrower may not voluntarily prepay any Swing Loan
bearing interest at Harris Bank's Quoted Rate before its maturity.
Section 1.3. Applicable Committed Loan Interest Rates. (a) Domestic Rate
Loans. Each Domestic Rate Loan made or maintained by a Bank shall bear
interest during each Interest Period it is outstanding (computed on the basis
of a year of 360 days and actual days elapsed) on the unpaid principal amount
thereof from the date such Loan is advanced, continued or created by conversion
from a Eurodollar Loan until maturity (whether by acceleration or otherwise) at
a rate per annum equal to the Domestic Rate from time to time in effect,
payable on the last day of its Interest Period and at maturity (whether by
acceleration or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Agent from time to time as
its prime commercial rate, or equivalent, as in effect on such day, with
any change in the Domestic Rate resulting from a change in said prime
commercial rate to be effective as of the date of the relevant change in
said prime commercial rate it being understood and agreed such rate may
not be the Agent's best or lowest rate; and
(ii) the sum of (x) the rate determined by the Agent to be the
prevailing rate per annum (rounded upwards, if necessary, to the next
higher 1/100 of 1%) at approximately 10:00 a.m. (Chicago time) (or as
soon thereafter as is practicable) on such day (or, if such day is not a
Business Day, on the immediately preceding Business Day) for the purchase
at face value of overnight Federal funds in an amount comparable to the
principal amount owed to the Agent for which such rate is being
determined, plus (y) 1/2 of 1% (0.50%).
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(b) Eurodollar Loans. Each Eurodollar Loan made or maintained by a Bank
shall bear interest during each Interest Period it is outstanding (computed on
the basis of a year of 360 days and actual days elapsed) on the unpaid
principal amount thereof from the date such Loan is advanced, continued, or
created by conversion from a Domestic Rate Loan until maturity (whether by
acceleration or otherwise) at a rate per annum equal to the sum of the
Eurodollar Margin plus the Adjusted LIBOR applicable for such Interest Period,
payable on the last day of the Interest Period and at maturity (whether by
acceleration or otherwise), and, if the applicable Interest Period is longer
than three months, on each day occurring every three months after the
commencement of such Interest Period.
"Adjusted LIBOR" means, for any Borrowing of Eurodollar Loans, a rate per
annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
-----------------------
1 - Eurodollar Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar Loans,
(a) the LIBOR Index Rate for such Interest Period, if such rate is available,
and (b) if the LIBOR Index Rate cannot be determined, the arithmetic average of
the rates of interest per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) at which deposits in U.S. Dollars in immediately available funds
are offered to the Agent at 11:00 a.m. (London, England time) two (2) Business
Days before the beginning of such Interest Period by three (3) or more major
banks in the interbank eurodollar market selected by the Agent for delivery on
the first day of and for a period equal to such Interest Period and in an
amount equal or comparable to the principal amount of the Eurodollar Loan
scheduled to be made by the Agent as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth of a
percentage point) for deposits in U.S. Dollars for a period equal to such
Interest Period, which appears on the Telerate Page 3750 as of 11:00 a.m.
(London, England time) on the day two (2) Business Days before the commencement
of such Interest Period.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Telerate Service (or such other page as may replace Page 3750 on that service
or such other service as may be nominated by the British Bankers' Association
as the
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information vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for U.S. Dollar deposits).
"Eurodollar Reserve Percentage" means, for any Borrowing of Eurodollar
Loans, the daily average for the applicable Interest Period of the maximum
rate, expressed as a decimal, at which reserves (including, without limitation,
any supplemental, marginal and emergency reserves) are imposed during such
Interest Period by the Board of Governors of the Federal Reserve System (or any
successor) 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 Eurodollar Loans is determined or any
category of extensions of credit or other assets that include loans by
non-United States offices of any Bank 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. For purposes of this
definition, the Eurodollar Loans shall be deemed to be "eurocurrency
liabilities" as defined in Regulation D without benefit or credit for any
prorations, exemptions or offsets under Regulation D.
"Eurodollar Margin" means 1.35% per annum from the date of this Agreement
until the next Pricing Date, and thereafter from one Pricing Date to the next a
rate per annum determined in accordance with the following schedule:
<TABLE>
<CAPTION>
CASH FLOW COVERAGE RATIO
FOR SUCH PRICING DATE: EURODOLLAR MARGIN:
<S> <C>
Less than 1.0 to 1.0 1.35%
Equal to or greater 1.0%
than 1.0 to 1.0, but
less than or equal to
1.15 to 1.0
Greater than 1.15 to
1.0, but less than or
equal to 1.25 to 1.0 0.80%
Greater than 1.25 to 1.0 0.60%
</TABLE>
(c) Rate Determinations. The Agent shall determine each interest rate
applicable to the Committed Loans and Reimbursement Obligations hereunder, and
its determination thereof shall be conclusive and binding except in the case of
manifest error or willful misconduct.
Section 1.4. Minimum Borrowing Amounts. Each Borrowing of Domestic Rate
Loan shall be in an amount equal to $250,000 or such greater amount which
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is an integral multiple of $250,000. Each Borrowing of Eurodollar Loan shall
be in an amount equal to $1,000,000 or such greater amount which is an integral
multiple of $1,000,000.
Section 1.5. Manner of Borrowing Committed Loans and Designating
Applicable Interest Rates. (a) Notice to the Agent. In order to borrow any
Committed Loans, the Borrower shall give notice to the Agent by no later than
10:00 a.m. (Chicago time): (i) at least three (3) Business Days before the
date on which the Borrower requests the Banks to advance a Borrowing of
Eurodollar Loans and (ii) on the date the Borrower requests the Banks to
advance a Borrowing of Domestic Rate Loans. The Loans included in each
Borrowing shall bear interest initially at the type of rate specified in such
notice of a new Borrowing. Thereafter, the Borrower may from time to time
elect to change or continue the type of interest rate borne by each Borrowing
or, subject to Section 1.4's minimum amount requirement for each outstanding
Borrowing, a portion thereof, as follows: (i) if such Borrowing is of
Eurodollar Loans, on the last day of the Interest Period applicable thereto,
the Borrower may continue part or all of such Borrowing as Eurodollar Loans or
convert part or all of such Borrowing into Domestic Rate Loans or (ii) if such
Borrowing is of Domestic Rate Loans, on any Business Day, the Borrower may
convert all or part of such Borrowing into Eurodollar Loans for an Interest
Period or Interest Periods specified by the Borrower. The Borrower shall give
all such notices requesting the advance, continuation or conversion of a
Borrowing to the Agent by telephone or telecopy (which notice shall be
irrevocable once given and, if by telephone, shall be promptly confirmed in
writing). Notices of the continuation of a Borrowing of Eurodollar Loans for
an additional Interest Period or of the conversion of part or all of a
Borrowing of Eurodollar Loans into Domestic Rate Loans or of Domestic Rate
Loans into Eurodollar Loans must be given by no later than 10:00 a.m. (Chicago
time) at least three (3) Business Days before the date of the requested
continuation or conversion. All such notices concerning the advance,
continuation or conversion of a Borrowing shall specify the date of the
requested advance, continuation or conversion of a Borrowing (which shall be a
Business Day), the amount of the requested Borrowing to be advanced, continued
or converted, the type of Committed Loans to comprise such new, continued or
converted Borrowing and, if such Borrowing is to be comprised of Eurodollar
Loans and the Interest Period applicable thereto. The Borrower agrees that the
Agent may rely on any such telephonic or telecopy notice given by any person it
in good faith believes is an Authorized Representative without the necessity of
independent investigation, and in the event any such notice by telephone
conflicts
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<PAGE> 17
with any written confirmation, such telephonic notice shall govern if the Agent
has acted in reliance thereon.
(b) Notice to the Banks. The Agent shall give prompt telephonic or
telecopy notice to each Bank of any notice from the Borrower received pursuant
to Section 1.5(a) above and, if such notice requests the Banks to make
Eurodollar Loans, the Agent shall give notice to the Borrower and each Bank by
like means of the interest rate applicable thereto (but, if such notice is
given by telephone, the Agent shall confirm such rate in writing) promptly
after the Agent has made such determination.
(c) Borrower's Failure to Notify; Automatic Continuations and Conversions.
Any outstanding Borrowing of Domestic Rate Loans shall automatically be
continued for an additional Interest Period on the last day of its then current
Interest Period unless the Borrower has notified the Agent within the period
required by Section 1.5(a) that the Borrower intends to convert such Borrowing,
subject to Section 6.2 hereof, into a Borrowing of Eurodollar Loans or such
Borrowing is prepaid in accordance with Section 1.15(a). If the Borrower fails
to give notice pursuant to Section 1.5(a) above of the continuation or
conversion of any outstanding principal amount of a Borrowing of Eurodollar
Loans before the last day of its then current Interest Period within the period
required by Section 1.5(a) or, whether or not such notice has been given, one
or more of the conditions set forth in Section 6.2 for the continuation or
conversion of a Borrowing of Eurodollar Loans would not be satisfied, and such
Borrowing is not prepaid in accordance with Section 1.15(a), such Borrowing
shall automatically be converted into a Borrowing of Domestic Rate Loans.
(d) Disbursement of Committed Loans. Not later than 12:00 noon (Chicago
time) on the date of any requested advance of a new Borrowing of Committed
Loans, subject to Section 6 hereof, each Bank shall make available its
Committed Loan comprising part of such Borrowing in funds immediately available
at the principal office of the Agent in Chicago, Illinois. The Agent shall
make the proceeds of each new Borrowing of Committed Loans available to the
Borrower at the Agent's principal office in Chicago, Illinois.
(e) Agent Reliance on Bank Funding. Unless the Agent shall have been
notified by a Bank prior to (or, in the case of a Borrowing of Domestic Rate
Loans, by 12:00 noon (Chicago time) on) the date on which such Bank is
scheduled to make payment to the Agent of the proceeds of a Loan (which notice
shall be effective upon receipt) that such Bank does not intend to make such
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<PAGE> 18
payment, the Agent may assume that such Bank has made such payment when due and
the Agent may in reliance upon such assumption (but shall not be required to)
make available to the Borrower the proceeds of the Loan to be made by such Bank
and, if any Bank has not in fact made such payment to the Agent, such Bank
shall, on demand, pay to the Agent the amount made available to the Borrower
attributable to such Bank together with interest thereon in respect of each day
during the period commencing on the date such amount was made available to the
Borrower and ending on (but excluding) the date such Bank pays such amount to
the Agent at a rate per annum equal to the Federal Funds Rate. If such amount
is not received from such Bank by the Agent immediately upon demand, the
Borrower will, on demand, repay to the Agent the proceeds of the Loan
attributable to such Bank with interest thereon at a rate per annum equal to
the interest rate applicable to the relevant Loan, but without such payment
being considered a payment or prepayment of a Loan under Section 1.18 hereof,
so that the Borrower will have no liability under such Section with respect to
such payment.
Section 1.6. The Bid Loans. At any time before the Termination Date, the
Borrower may request the Banks to offer to make uncommitted loans (each a "Bid
Loan" and collectively the "Bid Loans") to it or any other Borrower in the
manner set forth in Sections 1.6 through 1.12 and in amounts such that the
aggregate principal amount of all Committed Loans, Swing Loans and Bid Loans at
any time outstanding hereunder shall not exceed the Revolving Credit
Commitments of the Banks then in effect. The Banks may, but shall have no
obligation to, make such offers and the Borrower may, but shall have no
obligation to, accept any such offers in the manner set forth in Sections 1.6
through 1.12. Each Bank may offer to make Bid Loans in any amount (whether
greater than, equal to, or less than its Revolving Credit Commitment), subject
to the limitation that the aggregate principal amount of all Loans (whether
Committed Loans, Swing Loans or Bid Loans) outstanding at any time may not at
any time exceed the Revolving Credit Commitments then in effect and subject to
the other conditions of this Agreement.
Section 1.7. Requests for Bid Loans. (a) Requests and Confirmations. In
order to request a Borrowing of Bid Loans (a "Bid Loan Request"), the Borrower
shall give telephonic notice to the Agent no later than 2:00 p.m. (Chicago
time) one (1) Business Day before the proposed date of such borrowing, which
must be a Business Day (the "Borrowing Date"), followed on the same day by a
duly completed confirmation (a "Bid Loan Request Confirmation"), delivered by
telecopier or other means of facsimile communication, substantially in the form
of Exhibit C hereto or otherwise containing the information required by this
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<PAGE> 19
Section 1.7, to be received by the Agent no later than 2:30 p.m. (Chicago time)
on such day. Bid Loan Request Confirmations that do not conform substantially
to the format of Exhibit C or otherwise contain the information required by
this Section 1.7 shall be rejected by the Agent, and the Agent shall give
telephonic notice to the Borrower of such rejection promptly after it
determines (which determination shall be conclusive) that the Bid Loan Request
Confirmation does not substantially conform to the format of Exhibit C or
otherwise contain the information required by this Section 1.7. Requests for
Bid Loans shall in each case refer to this Agreement and specify (i) the
proposed Borrowing Date (which must be a Business Day), (ii) the aggregate
principal amount thereof (which shall not be less than $5,000,000 and shall be
an integral multiple of $1,000,000) and (iii) up to three (3) Interest Periods
of 7-180 days for the entire amount specified in such Bid Loan Request (and, if
so desired by the Borrower, specifying the maximum amount the Borrower would
borrow for any specific Interest Period).
(b) Invitation to Bid. Upon receipt by the Agent of a Bid Loan Request
Confirmation that conforms substantially to the format of Exhibit C hereto or
otherwise contains the information required by this Section 1.7, the Agent
shall, by telephone (no later than 3:30 p.m. (Chicago time) on the same day the
Agent receives a Bid Loan Request Confirmation), promptly confirmed by a
telecopy or other form of facsimile communication in the form of Exhibit D
hereto, invite each Bank to bid, on the terms and conditions of this Agreement,
to make Bid Loans pursuant to the Bid Loan Request.
(c) Bids. Each Bank may, in its sole discretion, offer to make a Bid Loan
or Loans (a "Bid") to the Borrower responsive to the Bid Loan Request. Each
Bid by a Bank must be received by the Agent by telephone not later than 9:00
a.m. (Chicago time) on the proposed Borrowing Date promptly confirmed in
writing by a duly completed confirmation (a "Confirmation of Bid") delivered by
telecopier or other means of facsimile communication substantially in the form
of Exhibit E hereto or otherwise containing the information required by this
subsection (c), to be received by the Agent on the same day; provided, however,
that any Bid made by the Agent must be made by telephone to the Borrower by no
later than 8:45 a.m. (Chicago time). Each Bid and each Confirmation of Bid
shall refer to this Agreement and specify (i) the principal amount (which shall
not be less than $5,000,000 and shall be an integral multiple of $1,000,000) of
each Bid Loan that the Bank is willing to make to the Borrower, (ii) the
interest rate (which shall be computed on the basis of a 360 day year and
actual days elapsed for a period equal to the Interest Period applicable
thereto) at which the Bank is prepared to make each Bid Loan, and (iii) the
Interest Period applicable to each such offered Bid
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<PAGE> 20
Loan. The Agent shall reject any Bid if such Bid (i) does not specify all of
the information specified in the immediately preceding sentence, (ii) contains
any qualifying, conditional, or similar language other than as provided for in
the immediately preceding sentence, (iii) proposes terms other than or in
addition to those set forth in the Bid Loan Request to which it responds other
than as provided for in the immediately preceding sentence, or (iv) is received
by the Agent later than 9:00 a.m. (Chicago time). Any Bid submitted by a Bank
pursuant to this Section 1.7 shall be irrevocable and shall be promptly
confirmed by a telecopy or other form of facsimile communication in the form of
Exhibit E; provided that in all events the telephone Bid received by the Agent
shall be binding on the relevant Bank and shall not be altered, modified, or in
any other manner affected by any inconsistent terms contained in, or terms
missing from, the Bank's Confirmation of Bid. Each offer contained in a Bid to
make a Bid Loan in a certain amount, at a certain interest rate, and for a
certain Interest Period is referred to herein as an "Offer".
. The Agent shall give telephonic notice to the Borrower no later than 9:15
a.m. (Chicago time) on the proposed Borrowing Date of the number of Bids
received, the interest rate(s) and Interest Period(s) applicable to each Bid,
the maximum principal amount bid at each interest rate for each Interest
Period, and the identity of the Bank making such Bid. The Agent shall send a
written summary of all Bids received by it to the Borrower on the same day.
Section 1.9. Acceptance or Rejection of Bids. The Borrower may in its
sole and absolute discretion, subject only to the provisions of this Section
1.9, irrevocably accept or reject, in whole or in part, any Offer contained in
a Bid. No later than 9:45 a.m. (Chicago time) on the proposed Borrowing Date,
the Borrower shall give telephonic notice to the Agent of whether and to what
extent it has decided to accept or reject any or all of the Offers contained in
the Bids made in response to a Bid Loan Request, which notice shall be promptly
confirmed by a telecopy or other form of facsimile communication to be received
by the Agent on the proposed Borrowing Date; provided, however, that in the
event any Offers are accepted (i) the Borrower shall accept Offers for any of
the Interest Periods specified by the Borrower in its Bid Loan Request
Confirmation solely on the basis of ascending interest rates for each such
Interest Period, (ii) if the Borrower declines to borrow the maximum principal
amount of Bid Loans in respect of which Offers at a particular interest rate
for a particular Interest Period have been made, or is prevented from doing so
by any other condition hereof, then the Borrower shall accept a pro rata
portion of each such Offer, based as nearly as possible on the ratio of the
maximum aggregate principal amounts of Bid Loans
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<PAGE> 21
for which each such Offer was made by each Bank (provided that, if the
available principal amount of Bid Loans to be so allocated is not sufficient to
enable Bid Loans to be so allocated to each relevant Bank in integral multiples
of $1,000,000, then the Borrower may round allocations up or down in integral
multiples not less than $500,000 as it shall deem appropriate), (iii) the
aggregate principal amount of all Offers accepted by the Borrower shall not
exceed the maximum amount contained in the related Bid Loan Request
Confirmation, and (iv) no Offer of a Bid Loan shall be accepted in a principal
amount less than $5,000,000. Any telephonic notice given by the Borrower
pursuant to this Section 1.9 shall be irrevocable and shall not be altered,
modified, or in any other manner affected by any inconsistent terms contained
in, or terms missing from, any written confirmation of such notice. Failure of
the Borrower to accept an Offer in accordance with the provisions of this
Section 1.9 shall constitute a rejection of such Offer.
Section 1.10. Notice of Acceptance or Rejection of Bids. (a) Notice to
Banks Making Bids. The Agent shall give telephonic notice to each Bank whether
any of the Offers contained in its Bid has been accepted (and if so, in what
amount, at what interest rate and for what Interest Period) no later than 10:00
a.m. (Chicago time) on the proposed Borrowing Date, and each successful bidder
will thereupon become bound, subject to Section 6 and the other applicable
conditions hereof, to make the Bid Loan(s) in respect of which its Bid has been
accepted. As soon as practicable thereafter the Agent shall send written
notice substantially in the form of Exhibit F hereto to each such successful
bidder; provided, however, that failure to give such notice shall not affect
the obligation of such successful bidder to disburse its Bid Loans as herein
required.
(b) Disbursement of Bid Loans. Not later than 12:00 Noon (Chicago time)
on the Borrowing Date for each Borrowing of a Bid Loan(s), each Bank bound to
make a Bid Loan(s) in accordance with Section 1.10(a) shall make available to
the Agent the principal amount of each such Bid Loan in immediately available
funds at the Agent's principal office in Chicago, Illinois. The Agent shall
promptly thereafter make available to the Borrower like funds as received from
each Bank at such office of the Agent in Chicago, Illinois.
(c) Bid Summaries to the Banks. Before the close of business on each
Borrowing Date for Bid Loans, the Agent shall notify each Bank of the aggregate
amount of Bid Loans advanced pursuant to a Bid Loan Request on such Borrowing
Date, the Interest Period(s) therefor, and the lowest and highest interest
rates at which Bid Loans were made for each Interest Period.
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<PAGE> 22
Section 1.11. Interest on Bid Loans. The Borrower shall pay interest on
the unpaid principal amount of each Bid Loan borrowed by the Borrower from the
applicable Borrowing Date to the maturity thereof at the rate of interest
applicable to such Bid Loan as determined pursuant to the above provisions
(calculated on the basis of a 360 day year and the actual number of days
elapsed) payable on the last day of the Interest Period applicable to such Bid
Loan and at maturity (whether by acceleration or otherwise), and, if the
applicable Interest Period is longer than 90 days, on each day occurring every
90 days after the date such Loan is made.
Section 1.12. Telephonic Notice. Each Bank's telephonic notice to the
Agent of its Bid pursuant to Section 1.7(c), and the Borrower's telephonic
acceptance of any Offer contained in a Bid pursuant to Section 1.9, shall be
irrevocable and binding on such Bank and the Borrower and shall not be altered,
modified, or in any other manner affected by any inconsistent terms contained
in, or missing from, any telecopy or other confirmation of such telephonic
notice. It is understood and agreed by the parties hereto that the Agent shall
be entitled to act, or to fail to act, hereunder in reliance on its records of
any telephonic notices provided for herein and that the Agent shall not incur
any liability to any Person in so doing if its records conflict with any
telecopy or other confirmation of a telephonic notice or otherwise, provided
that the Agent has acted, or failed to act, in good faith. It is further
understood and agreed by the parties hereto that the times of day as set forth
herein are for the convenience of all the parties for providing notices and
that no party shall incur any liability or other responsibility for any failure
to provide such notices within the specified times; provided, however, that the
Agent shall have no obligation to notify the Borrower of any Bid received by it
later than 9:00 a.m. (Chicago time) on the proposed Borrowing Date, and no
acceptance by the Borrower of any Offer contained in a Bid shall be effective
to bind any Bank to make a Bid Loan, nor shall the Agent be under any
obligation to notify any Person of an acceptance, if notice of such acceptance
is received by the Agent later than 9:45 a.m. (Chicago time) on the proposed
Borrowing Date.
Section 1.13. Interest Periods. As provided in Section 1.5(a) hereof in
the case of Committed Loans, Section 1.2-A(d) hereof in the case of Swing
Loans, and Section 1.7 hereof in the case of Bid Loans, at the time of each
request to advance, continue, or create by conversion a Borrowing of Loans
hereunder (other than Committed Loans consisting of Domestic Rate Loans), the
Borrower shall select an Interest Period applicable to such Loans from among
the available options. The term "Interest Period" means the period commencing
on the date a
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<PAGE> 23
Borrowing of Loans is advanced, continued, or created by conversion and ending:
(a) in the case of Domestic Rate Loans, on the last day of the calendar
quarter in which such Borrowing is advanced, continued, or created by
conversion (or on the last day of the following calendar quarter if such Loan
is advanced, continued or created by conversion on the last day of a calendar
quarter), (b) in the case of a Eurodollar Loan, 1, 2, 3, or 6 months
thereafter, (c) in the case of Bid Loans, the date, as the Borrower may select,
7-180 days thereafter and (d) in the case of Swing Loans, the date, as the
Borrower may select, 1-7 days thereafter; provided, however, that:
(a) any Interest Period for a Borrowing of Domestic Rate Loans that
otherwise would end after the Termination Date shall end on the Termination
Date;
(b) for any Borrowing of Fixed Rate Loans, the Borrower may not select an
Interest Period that extends beyond the Termination Date;
(c) whenever the last day of any Interest Period would otherwise be a day
that is not a Business Day, the last day of such Interest Period shall be
extended to the next succeeding Business Day, provided that, if such extension
would cause the last day of an Interest Period for a Borrowing of Eurodollar
Loans to occur in the following calendar month, the last day of such Interest
Period shall be the immediately preceding Business Day; and
(d) for purposes of determining an Interest Period for a Borrowing of
Eurodollar Loans, a month means a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next calendar
month; provided, however, that if there is no numerically corresponding day in
the month in which such an Interest Period is to end or if such an Interest
Period begins on the last Business Day of a calendar month, then such Interest
Period shall end on the last Business Day of the calendar month in which such
Interest Period is to end.
Section 1.14. Maturity of Loans. Each Committed Loan shall mature and
become due and payable by the Borrower on the Termination Date. Each Bid Loan
and each Swing Loan shall mature and become due and payable by the Borrower on
the last day of the Interest Period applicable thereto.
Section 1.15. Prepayments. (a) Committed Loans. The Borrower shall have
the privilege of prepaying without premium or penalty and in whole or in
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<PAGE> 24
part (but, if in part, then: (i) if such Borrowing is of Domestic Rate Loans,
in an amount not less than $250,000, (ii) if such Borrowing is of Eurodollar
Loans, in an amount not less than $1,000,000, and (iii) in each case, in an
amount such that the minimum amount required for a Borrowing of Committed Loans
pursuant to Section 1.4 hereof remains outstanding) any Borrowing of Eurodollar
Loans at any time upon three (3) Business Days' prior notice to the Agent or,
in the case of a Borrowing of Domestic Rate Loans, notice delivered to the
Agent by the Borrower no later than 10:00 a.m. (Chicago time) on the date of
prepayment, such prepayment to be made by the payment of the principal amount
to be prepaid and accrued interest thereon to the date fixed for prepayment.
In the case of Eurodollar Loans, such prepayment may only be made on the last
day of the Interest Period then applicable to such Loans. The Agent will
promptly advise each Bank of any such prepayment notice it receives from the
Borrower. Any amount paid or prepaid before the Termination Date may, subject
to the terms and conditions of this Agreement, be borrowed, repaid and borrowed
again.
(b) Bid Loans. The Borrower may not prepay any Bid Loan before its
maturity.
(c) Swing Loans. The Borrower may prepay any Swing Loan subject to the
terms of Section 1.2-A(g) hereof.
Section 1.16. Default Rate. If any payment of principal on any Loan is
not made when due (whether by acceleration or otherwise), such Loan shall bear
interest (computed on the basis of a year of 360 days and actual days elapsed)
from the date such payment was due until paid in full, payable on demand, at a
rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two percent (2%) plus the
Domestic Rate from time to time in effect; and
(b) for any Fixed Rate Loan, the sum of two percent (2%) plus the rate of
interest in effect thereon at the time of such default until the end of the
Interest Period applicable thereto and, thereafter, at a rate per annum equal
to the sum of two percent (2%) plus the Domestic Rate from time to time in
effect.
Section 1.17. The Notes. (a) The Committed Loans made to the Borrower by
a Bank shall be evidenced by a single promissory note of the Borrower issued to
such Bank in the form of Exhibit A hereto (individually, a "Committed Loan
Note" and, collectively, the "Committed Loan Notes"), each such Committed
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<PAGE> 25
Loan Note to be payable to the order of the applicable Bank in the principal
amount of its Commitment and otherwise in the form of Exhibit A hereto.
(b) All Bid Loans made to the Borrower by a Bank shall be evidenced by a
promissory note of the Borrower, payable to the order of such Bank and
otherwise in the form of Exhibit B hereto (individually a "Bid Note" and
collectively the "Bid Notes").
(c) All Swing Loans made to the Borrower by Harris Bank shall be evidenced
by a promissory note of the Borrower (the "Swing Line Note"), the Swing Line
Note to be payable to the order of Harris Bank in the principal amount of its
Swing Line Commitment and otherwise in the form of Exhibit A-1 hereto.
(d) Each Bank shall record on its books and records or on a schedule to
the appropriate Note the amount of each Loan advanced, continued or converted
by it, all payments of principal and interest and the principal balance from
time to time outstanding thereon, the type of such Loan, and, for any Fixed
Rate Loan, the Interest Period and the interest rate applicable thereto. The
record thereof, whether shown on such books and records of a Bank or on a
schedule to any Note, shall be prima facie evidence as to all such matters;
provided, however, that the failure of any Bank to record any of the foregoing
or any error in any such record shall not limit or otherwise affect the
obligation of the Borrower to repay all Loans made to it hereunder together
with accrued interest thereon. At the request of any Bank and upon such Bank
tendering to the Borrower the Note to be replaced, the Borrower shall furnish a
new Note to such Bank to replace any outstanding Note, and at such time the
first notation appearing on a schedule on the reverse side of, or attached to,
such Note shall set forth the aggregate unpaid principal amount of all Loans,
if any, then outstanding thereon.
Section 1.18. Funding Indemnity. If any Bank shall incur any loss, cost
or expense (including, without limitation, any loss of profit, and any loss,
cost or expense incurred by reason of the liquidation or re-employment of
deposits or other funds acquired by such Bank to fund or maintain any
Eurodollar Loan or the relending or reinvesting of such deposits or amounts
paid or prepaid to such Bank) as a result of:
(a) any payment, prepayment or conversion of a Fixed Rate Loan on a date
other than the last day of its Interest Period,
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<PAGE> 26
(b) any failure (because of a failure to meet the conditions of Section 6
or otherwise) by the Borrower to borrow or continue a Fixed Rate Loan, or to
convert a Domestic Rate Loan into a Eurodollar Loan, on the date specified in a
notice given pursuant to Section 1.2-A(d), 1.5(a) or 1.7 or established
pursuant to Section 1.5(c) hereof,
(c) any failure by the Borrower to make any payment of principal on any
Fixed Rate Loan when due (whether by acceleration or otherwise), or
(d) any acceleration of the maturity of a Fixed Rate Loan as a result of
the occurrence of any Event of Default hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any Bank
makes such a claim for compensation, it shall provide to the Borrower, with a
copy to the Agent, a certificate setting forth the amount of such loss, cost or
expense in reasonable detail (including an explanation of the basis for and the
computation of such loss, cost or expense) and the amounts shown on such
certificate if reasonably calculated shall be conclusive.
Section 1.19. Commitment Terminations. The Borrower shall have the right
at any time and from time to time, upon five (5) Business Days' prior written
notice to the Agent, to terminate the Revolving Credit Commitments without
premium or penalty and in whole or in part, any partial termination to be (i)
in an amount not less than $1,000,000, and (ii) allocated ratably among the
Banks in proportion to their respective Percentages, provided that the
Revolving Credit Commitments may not be reduced to an amount less than the sum
of the aggregate principal amount of Loans and of L/C Obligations then
outstanding. Any termination of the Revolving Credit Commitments below
$2,000,000 shall reduce the L/C Commitment by a like amount, and any
termination of the Revolving Credit Commitments below $5,000,000 shall reduce
the Swing Line Commitment by a like amount. The Agent shall give prompt notice
to each Bank of any such termination of Revolving Credit Commitments. Any
termination of the Commitments pursuant to this Section 1.19 may not be
reinstated.
SECTION 2. FEES AND EXTENSIONS.
Section 2.1. Fees. (a) Commitment Fee. The Borrower shall pay to the
Agent for the ratable account of the Banks in accordance with their Percentages
a commitment fee at the rate per annum equal to the Applicable Commitment Fee
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<PAGE> 27
(computed on the basis of a year of 360 days and the actual number of days
elapsed) on the average daily unused amount of Commitments hereunder. For
purposes of calculating the commitment fee, Swing Loans held by Harris Bank and
not participated to the other Banks pursuant to Section 1.2-A(f) shall be
deemed usage of the Revolving Credit Commitment of Harris Bank. Such
commitment fee shall be payable quarter-annually in arrears on the last day of
each March, June, September and December in each year and on the Termination
Date, unless the Revolving Credit Commitments are terminated in whole on an
earlier date, in which event the commitment fee for the period to the date of
such termination in whole shall be paid on the date of such termination. For
purposes hereof, the term "Applicable Commitment Fee" means .25% per annum from
the date of this Agreement until the next Pricing Date, and thereafter from one
Pricing Date to the next a rate per annum determined in accordance with the
following:
<TABLE>
<CAPTION>
Cash Flow Coverage Ratio
for such Pricing Date: Applicable Commitment Fee:
<S> <C>
Less than 1.0 to 1.0 0.25%
Equal to or greater than
1.0 to 1.0 0.15%
</TABLE>
(b) Letter of Credit Fees. On the date of issuance or extension, or
increase in the amount, of any Letter of Credit pursuant to Section 1.2 hereof,
the Borrower shall pay to the Agent for its own account an issuance fee equal
to 1/8 of 1% (computed on the basis of a year of 360 days and the actual number
of days elapsed) of the face amount of (or of the increase in the face amount
of) such Letter of Credit. Quarterly in arrears, on the last day of each
calendar quarter, the Borrower shall pay to the Agent, for the ratable benefit
of the Banks in accordance with their Percentages, a letter of credit fee at a
rate per annum equal to the Eurodollar Margin (computed on the basis of a year
of 360 days and the actual number of days elapsed) in effect during each day of
such quarter applied to the daily average face amount of Letters of Credit
outstanding during such quarter. In addition, the Borrower shall pay to the
Agent for its own account the Agent's standard drawing, negotiation, amendment,
and other administrative fees for each Letter of Credit. Such standard fees
referred to in the preceding sentence may be established by the Agent from time
to time.
(c) Agent Fees. The Borrower shall pay to the Agent fees with respect to
the syndication and administration of the credit facilities described in this
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Agreement as are agreed to between the Agent and the Borrower in that certain
fee letter dated October 23, 1997, or as otherwise agreed to between them.
Section 2.2. Extensions of Termination Date. (a) No later than August
31st of each year while this Agreement remains in effect, the Borrower may make
a request for a one year extension of the Termination Date in a written notice
to the Agent. The Agent will promptly inform the Banks of any such request,
and each Bank shall notify the Agent in writing by September 30th of such year
following such request whether such Bank agrees to the requested extension. If
a Bank fails to so notify the Agent whether such Bank agrees to such extension,
such Bank shall be deemed to have refused to grant the requested extension.
Upon receipt of the Agent of the written consent of all the Banks, the
Termination Date shall be automatically extended an additional year.
Otherwise, subject to subsection (b) below, the Termination Date will remain as
scheduled. All costs and expenses incurred by the Agent in connection with
each extension request (including reasonable attorneys' fees) shall be paid by
the Borrower in accordance with Section 11.15 hereof.
(b) If any Bank shall fail to consent to the extension of the Termination
Date within 30 days of receipt by such Bank of notice of any request pursuant
to Section 2.2(a), then upon termination of such 30-day period, the Borrower
may demand that such Bank assign in accordance with Section 11.12 to one or
more assignees designated by the Borrower and acceptable to the Agent in its
sole discretion all (but not less than all) of such Bank's Commitment and the
Committed Loans owing to it prior to the then scheduled Termination Date. The
Bank to be so replaced shall cooperate with the Borrower and substitute bank to
accomplish such substitution on the terms of Section 11.12 and shall execute an
assignment agreement reasonably satisfactory to such Bank.
SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
All payments of principal of and interest on the Loans and the
Reimbursement Obligations, and of all other Obligations payable by the Borrower
under this Agreement and the other Loan Documents, shall be made by the
Borrower to the Agent by no later than 12:00 noon (Chicago time) on the due
date thereof at the principal office of the Agent in Chicago, Illinois (or such
other location in the State of Illinois as the Agent may designate to the
Borrower) for the benefit of the Bank or Banks entitled thereto. Any payments
received after such time shall be deemed to have been received by the Agent on
the next Business Day. All such payments shall be made in U.S. Dollars, in
immediately available
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funds at the place of payment, in each case without set-off or counterclaim.
The Agent will promptly thereafter cause to be distributed like funds relating
to the payment of principal or interest on Committed Loans, facility fees and
on Reimbursement Obligations in which the Banks have purchased Participating
Interests ratably to the Banks and like funds relating to the payment of any
other amount payable to any Bank to such Bank, in each case to be applied in
accordance with the terms of this Agreement.
Section 4.1. Definitions. The following terms when used herein shall have
the following meanings:
"Account" is defined in Section 8.4 hereof.
"Adjusted LIBOR" is defined in Section 1.3(b) hereof.
"Affiliate" means any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to control another Person for the purposes of this
definition if such Person possesses, directly or indirectly, the power to
direct, or cause the direction of, the management and policies of the other
Person, whether through the ownership of voting securities, common directors,
trustees or officers, by contract or otherwise.
"Agent" means Harris Trust and Savings Bank and any successor pursuant to
Section 10.7 hereof.
"Application" is defined in Section 1.2(b) hereof.
"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(f) hereof or on any
update of any such list provided by the Borrower to the Agent, or any further
or different officer of the Borrower so named by any Authorized Representative
of the Borrower in a written notice to the Agent.
"Bank" is defined in the introductory paragraph of this Agreement and
includes each assignee bank pursuant to Section 11.12 hereof.
"Bid" is defined in Section 1.7(c) hereof.
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"Bid loan" is defined in Section 1.6 hereof.
"Bid Loan Request" is defined in Section 1.7(a) hereof.
"Bid Loan Request Confirmation" is defined in Section 1.7(a) hereof.
"Bid Note" is defined in Section 1.17(b) hereof.
"Borrower" is defined in the introductory paragraph of this Agreement.
"Borrowing" means the total of Loans of a single type advanced, continued
for an additional Interest Period, or converted from a different type into such
type by the Banks on a single date and for a single Interest Period.
Borrowings of Committed Loans are made and maintained ratably from each of the
Banks according to their Percentages. Borrowings of a Bid Loan or Bid Loans
are made from a Bank or Banks in accordance with the procedures of Section 1.6
through 1.12. Borrowings of Swing Loans are made by Harris Bank in accordance
with the procedures of Section 1.2-A hereof. A Borrowing is "advanced" on the
day Banks advance funds comprising such Borrowing to the Borrower, is
"continued" on the date a new Interest Period for the same type of Loans
commences for such Borrowing, and is "converted" when such Borrowing is changed
from one type of Loan to the other, all as requested by the Borrower pursuant
to Section 1.5(a) in the case of Committed Loans, Section 1.2-A(d) in the case
of Swing Loans, or Section 1.7 in the case of Bid Loans.
"Borrowing Date" is defined in Section 1.7(a) hereof.
"Business Day" means any day other than a Saturday or Sunday on which
banks are not authorized or required to close in Chicago, Illinois and, if the
applicable Business Day relates to the borrowing or payment of a Eurodollar
Loan, on which banks are dealing in U.S. Dollar deposits in the interbank
eurodollar market in London, England.
"Capital Lease" means any lease of Property which in accordance with GAAP
is required to be capitalized on the balance sheet of the lessee.
"Capitalized Lease Obligation" means the amount of the liability shown on
the balance sheet of any Person in respect of a Capital Lease determined in
accordance with GAAP.
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"Cash Flow Coverage Ratio" is defined in Section 7.9 hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute thereto.
"Commitments" means the Revolving Credit Commitments, the Swing Line
Commitment, and the L/C Commitment.
"Committed Loan" is defined in Section 1.1 hereof.
"Committed Loan Note" is defined in 1.17(a) hereof.
"Confirmation of Bid" is defined in Section 1.7(c).
"Consolidated Cash Flow" means, with reference to any period, the sum of
(a) Consolidated Net Income for such period plus all amounts deducted in
arriving at such Consolidated Net Income amount (but without duplication) in
respect of (i) Consolidated Interest Expense for such period, plus (ii)
federal, state and local income taxes for such period, plus (iii) all amounts
properly charged for depreciation of fixed assets and amortization of
intangible assets during such period on the books of the Borrower and its
Consolidated Subsidiaries, plus (iv) all amounts properly charged for
amortization of the InfoScan Costs and Software Costs during such period on the
books of the Borrower and its Subsidiaries, (b) 100% of the net proceeds
received by the Borrower from any new offering of equity securities of the
Borrower received at any time during such period and (c) 100% of the net
proceeds received by the Borrower from the issuance of any Subordinated Debt of
the Borrower received at any time during such period.
"Consolidated Fixed Charges" means, with reference to any period, the sum
of (i) the aggregate amount of payments required to be made by the Borrower and
its Consolidated Subsidiaries during such period in respect of principal on all
Indebtedness for Borrowed Money (whether at maturity, as a result of mandatory
sinking fund redemption, mandatory prepayment, acceleration or otherwise), plus
(ii) Consolidated Interest Expense for such period, plus (iii) capital
expenditures (as determined in accordance with GAAP) of the Borrower and its
Consolidated Subsidiaries during such period, plus (iv) dividends paid by the
Borrower and, to the extent not received by the Borrower, its Subsidiaries on
its capital stock during such period, plus (v) cash payments made in connection
with InfoScan Costs and
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Software Costs during such period and cash investments in joint ventures and
other investments and acquisitions during such period.
"Consolidated Interest Expense" means, with reference to any period, the
sum of all interest charges (including imputed interest charges with respect to
Capitalized Lease Obligations and all amortization of debt discount and
expense) of the Borrower and its Consolidated Subsidiaries for such period
determined in accordance with GAAP.
"Consolidated Net Income" means, with reference to any period, the net
income (or net loss) of the Borrower and its Consolidated Subsidiaries for such
period as computed on a consolidated basis in accordance with GAAP.
"Consolidated Tangible Net Worth" means, as of any time the same is to be
determined, the excess of total assets of the Borrower and its Consolidated
Subsidiaries over total liabilities of the Borrower and its Consolidated
Subsidiaries, total assets and total liabilities each to be determined on a
consolidated basis in accordance with GAAP, excluding, however, from the
determination of total assets all assets which would be classified as Goodwill
under GAAP.
"Consolidated Total Liabilities" means, as of any time the same is to be
determined, the aggregate of all indebtedness, obligations, liabilities,
reserves and any other items which would be listed as a liability on a balance
sheet of the Borrower and its Consolidated Subsidiaries determined on a
consolidated basis in accordance with GAAP.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower or any Subsidiary, are treated as a single
employer under Section 414 of the Code.
"Credit Event" means the advancing of any Loan, the continuation of or
conversion into a Eurodollar Loan, or the issuance of, or extension of the
expiration date or increase in the amount of, any Letter of Credit.
"Default" means any event or condition the occurrence of which would, with
the passage of time or the giving of notice, or both, constitute an Event of
Default.
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"Domestic Rate" is defined in Section 1.3(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity at a
rate specified in Section 1.3(a) hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute thereto.
"Eurodollar Loan" means a Loan bearing interest prior to maturity at the
rate specified in Section 1.3(b) hereof.
"Eurodollar Margin" is defined in Section 1.3(b) hereof.
"Eurodollar Reserve Percentage" is defined in Section 1.3(b) hereof.
"Event of Default" means any event or condition identified as such in
Section 8.1 hereof.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Domestic Rate
appearing in Section 1.3(a) hereof.
"Fixed Rate Loans" means Eurodollar Loans, Swing Loans bearing interest at
Harris Bank's Quoted Rate, and Bid Loans.
"GAAP" means generally accepted accounting principles as in effect from
time to time, and, subject to Section 4.3 hereof, applied by the Borrower and
its Subsidiaries on a basis consistent with the preparation of the Borrower's
financial statements referred to in Section 5.4 hereof.
"Headquarters Complex Lease" means the Lease Agreement dated as of
September 27, 1990 by and between Randolph/Clinton Limited Partnership and the
Borrower pursuant to which the Borrower has leased property formerly owned by
it and commonly known as 150 North Clinton Street, 162 North Clinton Street and
564 West Randolph Street, Chicago, Illinois and any buildings or improvements
now or hereafter existing thereon pursuant to the terms and conditions stated
therein.
"Indebtedness for Borrowed Money" means for any Person (without
duplication) (i) all indebtedness created, assumed or incurred in any manner by
such Person representing money borrowed (including by the issuance of debt
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securities), (ii) all indebtedness for the deferred purchase price of property
or services (other than trade accounts payable arising in the ordinary course
of business), (iii) all indebtedness secured by any Lien upon Property of such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness, (iv) all Capitalized Lease Obligations of such Person and
(v) all obligations of such Person on or with respect to letters of credit,
bankers' acceptances and other extensions of credit whether or not representing
obligations for borrowed money.
"InfoScan Costs" means the assets of the Borrower identified as InfoScan
Costs (consisting of deferred data procurement costs) on the consolidated
balance sheet of the Borrower dated as at December 31, 1994, which balance
sheet has heretofore been furnished to the Banks.
"Interest Period" is defined in Section 1.13 hereof.
"L/C Commitment" means $2,000,000.
"L/C Obligations" means the aggregate undrawn face amounts of all
outstanding Letters of Credit and all unpaid Reimbursement Obligations.
"Lending Office" is defined in Section 9.4 hereof.
"Letter of Credit" is defined in Section 1.2(a) hereof.
"LIBOR" is defined in Section 1.3(b) hereof.
"Lien" means any mortgage, lien, security interest, pledge, charge or
encumbrance of any kind in respect of any Property, including the interests of
a vendor or lessor under any conditional sale, capital lease or other title
retention arrangement.
"Loan" means and includes Committed Loans, Swing Loans and Bid Loans, and
each of them singly, and the term "type" of Loan refers to its status as a
Committed Loan, Swing Loan or Bid Loan or, if a Committed Loan, to its status
as a Domestic Rate Loan or Eurodollar Loan.
"Loan Documents" means this Agreement, the Notes and the Applications.
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"Note" means and includes the Committed Loan Notes, the Swing Line Note
and the Bid Notes and each individually, unless the context in which such term
is used shall otherwise require.
"Obligations" means all fees payable hereunder, all obligations of the
Borrower to pay principal and interest on Loans and Reimbursement Obligations,
and all other payment obligations of the Borrower arising under or in relation
to any Loan Document.
"Participating Bank" is defined in Section 1.2(d) hereof.
"Participating Interest" is defined in Section 1.2(d) hereof.
"PBGC" means the Pension Benefit Guaranty Corporation or any Person
succeeding to any or all of its functions under ERISA.
"Percentage" means, for each Bank, the percentage of the Revolving Credit
Commitments represented by such Bank's Revolving Credit Commitment or, if the
Revolving Credit Commitments have been terminated, the percentage held by such
Bank (including through participation interests in Reimbursement Obligations)
of the aggregate principal amount of all outstanding Obligations.
"Person" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof.
"Plan" means any employee pension benefit plan covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
that either (i) is maintained by a member of the Controlled Group for employees
of a member of the Controlled Group or (ii) is maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within
the preceding five plan years made contributions.
"Pricing Date" means, for any fiscal quarter of the Borrower ended on or
after September 30, 1997, the latest date by which the Borrower is required to
deliver a Compliance Certificate for such fiscal quarter pursuant to Section
7.5. The Eurodollar Margin and Applicable Commitment Fee established on a
Pricing Date shall remain in effect until the next Pricing Date. If the
Borrower has not delivered a Compliance Certificate by the date such Compliance
Certificate is
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required to be delivered under Section 7.5, until a Compliance Certificate is
delivered before the next Pricing Date, the Eurodollar Margin shall be 1.35%
per annum and the Applicable Commitment Fee shall be .25% per annum. If the
Borrower subsequently delivers such a Compliance Certificate before the next
Pricing Date, the Eurodollar Margin and Applicable Commitment Fee established
by such late delivered Compliance Certificate shall take effect from the date
of delivery until the next Pricing Date.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Reimbursement Obligation" is defined in Section 1.2(c) hereof.
"Required Banks" means, as of the date of determination thereof, (i) if
there are 2 or less Banks, then Banks holding 100% of the Percentages and (ii)
if there are 3 or more Banks, then Banks holding at least 65% of the
Percentages.
"Revolving Credit" is defined in the introductory paragraph of this
Agreement.
"Revolving Credit Commitment" is defined in Section 1.1 hereof.
"Software Costs" means the assets of the Borrower identified as Software
Costs on the consolidated balance sheet of the Borrower dated as at December
31, 1994, which balance sheet has heretofore been furnished to the Banks.
"Subordinated Debt" means Indebtedness for Borrowed Money of the Borrower
subordinated in right of payment to the Loans pursuant to a subordination
agreement in form and substance satisfactory to the Banks and certain other
Indebtedness for Borrowed Money, pursuant to documentation, containing interest
rates, payment terms, maturities, amortization schedules, covenants, defaults,
remedies, subordination provisions and other material terms in form and
substance satisfactory to the Banks.
"Subsidiary" means any corporation or other Person more than 50% of the
outstanding ordinary voting shares or other equity interests of which is at the
time directly or indirectly owned by the Borrower, by one or more of its
Subsidiaries, or by the Borrower and one or more of its Subsidiaries.
"Domestic Subsidiary" means any Subsidiary organized under the laws of any
state of the United States of America all or substantially all of whose assets
are located in and substantially all of whose revenues are derived from
operations in the United States of America.
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"Consolidated Subsidiary" means those Subsidiaries whose accounts are or should
be consolidated with those of the Borrower under GAAP.
"Swing Line Commitment" means the commitment of Harris Bank to make Swing
Loans in the aggregate amount of $5,000,000 at any one time outstanding.
"Swing Line Note" as defined in Section 1.17 hereof.
"Swing Loans" is defined in Section 1.2-A(a) hereof.
"Termination Date" means October 31, 2001, or such later date to which the
same may be extended pursuant to Section 2.2 hereof, or such earlier date on
which the Revolving Credit Commitments are terminated in whole pursuant to
Section 1.19, 8.2 or 8.3 hereof.
"Unfunded Vested Liabilities" means, for any Plan at any time, the amount
(if any) by which the present value of all vested nonforfeitable accrued
benefits under such Plan exceeds the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.
"U.S. Dollars" and "$" each means the lawful currency of the United States
of America.
"Unused Commitments" means, at any time, the difference between the
Revolving Credit Commitments then in effect (without giving effect to Section
7.19 hereof) and the aggregate outstanding principal amount of Loans and L/C
Obligations.
"Welfare Plan" means a "welfare plan" as defined in Section 3(1) of ERISA.
"Wholly-owned Subsidiary" means a Subsidiary of which all of the issued
and outstanding shares of capital stock (other than directors' qualifying
shares as required by law) or other equity interests are owned by the Borrower
and/or one or more Wholly-owned Subsidiaries within the meaning of this
definition.
Section 4.2. Interpretation. The foregoing definitions are equally
applicable to both the singular and plural forms of the terms defined. The
words
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"hereof", "herein", and "hereunder" and words of like import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. All references to time of day herein are
references to Chicago, Illinois time unless otherwise specifically provided.
Where the character or amount of any asset or liability or item of income or
expense is required to be determined or any consolidation or other accounting
computation is required to be made for the purposes of this Agreement, it shall
be done in accordance with GAAP except where such principles are inconsistent
with the specific provisions of this Agreement.
Section 4.3. Change in Accounting Principles. If, after the date of this
Agreement, there shall occur any change in generally accepted accounting
principles from those used in the preparation of the financial statements
referred to in Section 5.4 hereof and such change shall result in a change in
the method of calculation of any financial covenant, standard or term found in
this Agreement, either the Borrower or the Required Banks may by notice to the
Banks and the Borrower, respectively, require that the Banks and the Borrower
negotiate in good faith to amend such covenant, standard and term so as
equitably to reflect such change in accounting principles, with the desired
result being that the criteria for evaluating the financial condition of the
Borrower and its Subsidiaries shall be the same as if such change had not been
made. No delay by the Borrower or the Required Banks in requiring such
negotiation shall limit their right to so require such a negotiation at any
time after such a change in accounting principles. Until any such covenant,
standard, or term is amended in accordance with this Section 4.3, financial
covenants shall be computed and determined in accordance with generally
accepted accounting principles in effect prior to such change in accounting
principles. Without limiting the generality of the foregoing, the Borrower
shall neither be deemed to be in compliance with any financial covenant
hereunder nor out of compliance with any financial covenant hereunder if such
state of compliance or noncompliance, as the case may be, would not exist but
for the occurrence of a change in accounting principles after the date hereof.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to each Bank as follows:
Section 5.1. Organization and Qualification. The Borrower is duly
organized, validly existing and in good standing as a corporation under the
laws of the State of Delaware, has full and adequate corporate power to own its
Property and conduct its business as now conducted, and is duly licensed or
qualified and in
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good standing in each jurisdiction in which the nature of the business
conducted by it or the nature of the Property owned or leased by it requires
such licensing or qualifying, except where the failure to so qualify would not
have a material adverse effect upon the Borrower or its business. The Borrower
has full right and authority to enter into this Agreement, to make the
borrowings herein provided for, to issue its Notes in evidence thereof, to
execute and deliver the Applications, and to perform all of its obligations
hereunder and under the other Loan Documents; and this Agreement and the other
Loan Documents do not, nor does the performance or observance by the Borrower
of any of the matters and things herein or therein provided for, contravene or
constitute a default under any provision of law or any judgment, injunction,
order or decree binding upon the Borrower or any provision of the certificate
of incorporation or by-laws of the Borrower or any covenant, indenture or
agreement of or affecting the Borrower or any of its Properties, or result in
the creation or imposition of any Lien on any Property of the Borrower.
Section 5.2. Subsidiaries. Each Subsidiary is duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it is
incorporated or organized, as the case may be, has full and adequate power to
own its Property and conduct its business as now conducted, and is duly
licensed or qualified and in good standing in each jurisdiction in which the
nature of the business conducted by it or the nature of the Property owned or
leased by it requires such licensing or qualifying, except where the failure to
so qualify would not have a material adverse effect upon such Subsidiary or its
business. Schedule 5.2 hereto identifies each Subsidiary, the jurisdiction of
its incorporation or organization, as the case may be, the percentage of issued
and outstanding shares of each class of its capital stock or other equity
interests owned by the Borrower and the Subsidiaries and, if such percentage is
not 100% (excluding directors' qualifying shares as required by law), a
description of each class of its authorized capital stock and other equity
interests and the number of shares of each class issued and outstanding. All
of the outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and nonassessable
and all such shares and other equity interests indicated on Schedule 5.2 as
owned by the Borrower or a Subsidiary are owned, beneficially and of record, by
the Borrower or such Subsidiary free and clear of all Liens. Except as
contemplated by the Joint Venture Agreement dated as of June 12, 1992 by and
between the Borrower, GfK, AG, Taylor Nelson Group, Limited, Addison
Consultancy Group, PLC, and Precis [1137] Limited, there are no outstanding
commitments or other obligations of any Subsidiary to issue, and no
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options, warrants or other rights of any Person to acquire, any shares of any
class of capital stock or other equity interests of any Subsidiary.
Section 5.3. Margin Stock. Neither the Borrower nor any Subsidiary is
engaged in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System), and no part of the proceeds of any
Loan or Letter of Credit will be used to purchase or carry any such margin
stock or to extend credit to others for the purpose of purchasing or carrying
any such margin stock.
Section 5.4. Financial Reports. The consolidated balance sheet of the
Borrower and its Subsidiaries as at December 31, 1996, and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, and accompanying
notes thereto, which financial statements are accompanied by the audit report
of Ernst & Young LLP, independent public accountants, and the unaudited interim
consolidated balance sheet of the Borrower and its Subsidiaries as at June 30,
1997, and the related consolidated statements of income, retained earnings and
cash flows of the Borrower and its Subsidiaries for the six (6) month then
ended, heretofore furnished to the Banks, fairly present the consolidated
financial condition of the Borrower and its Subsidiaries as at said dates and
the consolidated results of their operations and cash flows for the periods
then ended in conformity with generally accepted accounting principles applied
on a consistent basis. Neither the Borrower nor any Subsidiary has contingent
liabilities which are material to it other than as indicated on such financial
statements or, with respect to future periods, on the financial statements
furnished pursuant to Section 7.5 hereof. Since June 30, 1997, there has been
no change in the condition (financial or otherwise) or business prospects of
the Borrower or any Subsidiary except those occurring in the ordinary course of
business, none of which in the aggregate have been materially adverse.
Section 5.5. Litigation and Other Controversies. Except as disclosed on
Schedule 5.5 attached hereto and made a part hereof, there is no litigation or
governmental proceeding or labor controversy pending, nor to the knowledge of
the Borrower threatened, against the Borrower or any Subsidiary which if
adversely determined would (i) impair the validity or enforceability of, or
impair the ability of the Borrower to perform its obligations under, this
Agreement or any other Loan Document or (ii) result in any material adverse
change in the financial condition, Properties, business or operations of the
Borrower or any Subsidiary.
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Section 5.6. Taxes. All tax returns required to be filed by the Borrower
or any Subsidiary in any jurisdiction have, in fact, been filed, and all taxes,
assessments, fees and other governmental charges upon the Borrower or any
Subsidiary or upon any of their respective Properties, income or franchises,
which are shown to be due and payable in such returns, have been paid. Except
for the outstanding dispute regarding a tax assessment against the Borrower's
Towne-Oller business unit, the Borrower does not know of any proposed
additional tax assessment against it or its Subsidiaries for which adequate
provision in accordance with GAAP has not been made on its accounts. Adequate
provisions in accordance with GAAP for taxes on the books of the Borrower and
each Subsidiary have been made for all open years, and for its current fiscal
period.
Section 5.7. Approvals. No authorization, consent, license, or exemption
from, or filing or registration with, any court or governmental department,
agency or instrumentality, nor any approval or consent of the stockholders of
the Borrower or any other Person, is or will be necessary to the valid
execution, delivery or performance by the Borrower of this Agreement or any
other Loan Document.
Section 5.8. Investment Company; Public Utility Holding Company. Neither
the Borrower nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "public utility holding company" within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
Section 5.9. ERISA. The Borrower and each other member of its Controlled
Group has fulfilled its obligations under the minimum funding standards of and
is in compliance in all material respects with ERISA and the Code to the extent
applicable to it and has not incurred any liability to the PBGC or a Plan under
Title IV of ERISA other than a liability to the PBGC for premiums under Section
4007 of ERISA. Neither the Borrower nor any Subsidiary has any contingent
liabilities with respect to any post-retirement benefits under a Welfare Plan,
other than liability for continuation coverage described in article 6 of Title
I of ERISA.
The Borrower and its Subsidiaries are in compliance with the requirements
of all federal, state and local laws, rules and regulations applicable to or
pertaining to their Properties or business operations (including, without
limitation, the Occupational Safety and Health Act of 1970, the Americans with
Disabilities Act
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of 1990, and laws and regulations establishing quality criteria and standards
for air, water, land and toxic or hazardous wastes and substances),
non-compliance with which could have a material adverse effect on the financial
condition, Properties, business or operations of the Borrower or any
Subsidiary. Neither the Borrower nor any Subsidiary has received notice to the
effect that its operations are not in compliance with any of the requirements
of applicable federal, state or local environmental, health and safety statutes
and regulations or are the subject of any governmental investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could have a material adverse effect on the financial
condition, Properties, business or operations of the Borrower or any
Subsidiary.
Section 5.11. Other Agreements. Neither the Borrower nor any Subsidiary
is in default under the terms of any covenant, indenture or agreement of or
affecting the Borrower, any Subsidiary or any of their Properties, which
default if uncured would have a material adverse effect on the financial
condition, Properties, business or operations of the Borrower or any
Subsidiary.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue or convert any Loan
(other than the continuation of, or conversion into, a Domestic Rate Loan) or
of the Agent to issue, extend the expiration date (including by not giving
notice of non-renewal) of or increase the amount of any Letter of Credit under
this Agreement, shall be subject to the following conditions precedent:
Section 6.1. Initial Credit Event. Before or concurrently with the
initial Credit Event:
(a) the Agent shall have received for each Bank the favorable
written opinions of Freeborn & Peters, counsel to the Borrower, in
substantially the form attached hereto as Exhibit G;
(b) the Agent shall have received for each Bank copies of the
Borrower's Certificate of Incorporation and bylaws (or comparable
constituent documents) and any amendments thereto, certified in each
instance by its Secretary or Assistant Secretary;
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(c) the Agent shall have received for each Bank copies of
resolutions of the Borrower's Board of Directors authorizing the
execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party and the consummation of the transactions
contemplated hereby and thereby, together with specimen signatures of the
persons authorized to execute such documents on the Borrower's behalf,
all certified in each instance by its Secretary or Assistant Secretary;
(d) the Agent shall have received for each Bank copies of the
certificates of good standing for the Borrower (dated no earlier than 30
days prior to the date hereof) from the office of the secretary of the
state of its incorporation and of the State of Illinois where it is
qualified to do business as a foreign corporation;
(e) the Agent shall have received for each Bank such Bank's duly
executed Notes of the Borrower dated the date hereof and otherwise in
compliance with the provisions of Section 1.17 hereof;
(f) the Agent shall have received for each Bank a list of the
Borrower's Authorized Representatives;
(g) the Agent shall have received for itself and for the Banks the
initial fees, if any, called for by Section 2.1 hereof;
(h) the Agent shall have received from the Borrower evidence that
the Credit Agreement dated as of November 10, 1995 between the Borrower
and the lenders party thereto has been terminated and, in the case of any
loans or letters of credit outstanding thereunder, all such loans have
been or will be repaid in full and all such letters of credit shall be
terminated on or prior to the initial Borrowing hereunder; and
(i) all legal matters incident to the execution and delivery of the
Loan Documents shall be satisfactory to the Banks.
Section 6.2. All Credit Events. As of the time of each Credit Event
hereunder:
(a) in the case of a Borrowing, the Agent shall have received the
notice required by Section 1.5 hereof (including any deemed notice under
Section 1.5(c), in the case of a Committed Loan or Section 1.7, in the
case
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of a Bid Loan) or by Section 1.2-A hereof (in the case of a Swing Loan),
in the case of the issuance of any Letter of Credit the Agent shall have
received a duly completed Application for such Letter of Credit together
with any fees called for by Section 2.1 hereof and, in the case of an
extension or increase in the amount of a Letter of Credit, a written
request therefor in a form acceptable to the Agent together with fees
called for by Section 2.1 hereof;
(b) each of the representations and warranties set forth in Section
5 hereof shall be and remain true and correct as of such time, except to
the extent that any such representation or warranty relates solely to an
earlier time;
(c) after giving effect to such Credit Event, the sum of the
aggregate principal amount of Loans and of L/C Obligations outstanding
hereunder shall not exceed the Revolving Credit Commitments in effect at
such time;
(d) the Borrower shall be in full compliance with all of the terms
and conditions hereof, and no Default or Event of Default shall have
occurred and be continuing hereunder or would occur as a result of such
Credit Event; and
(e) such Credit Event shall not violate any order, judgment or
decree of any court or other authority or any provision of law or
regulation applicable to any Bank (including, without limitation,
Regulation U of the Board of Governors of the Federal Reserve System).
Each request for a Borrowing hereunder and each request for the issuance
of, increase in the amount of, or extension of the expiration date of, a Letter
of Credit shall be deemed to be a representation and warranty by the Borrower
on the date on such Credit Event as to the facts specified in subsections (a)
through (d), both inclusive, this Section 6.2.
SECTION 7. COVENANTS.
The Borrower agrees that, so long as any Note or any L/C Obligation is
outstanding or any Commitment is available to or in use by the Borrower
hereunder, except to the extent compliance in any case or cases is waived in
writing by the Required Banks:
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Section 7.1. Corporate Existence, Etc. The Borrower shall, and shall
cause each Subsidiary to, preserve and maintain its corporate existence. The
Borrower shall preserve and keep in force and effect, and cause each Subsidiary
to preserve and keep in force and effect, all licenses, permits and franchises
necessary to the proper conduct of its business.
Section 7.2. Maintenance of Properties. The Borrower shall maintain,
preserve and keep its property, plant and equipment in good repair, working
order and condition (ordinary wear and tear excepted) and shall from time to
time make all needful and proper repairs, renewals, replacements, additions and
betterments thereto so that at all times the efficiency thereof shall be fully
preserved and maintained, and the Borrower shall cause each Subsidiary to do so
in respect of Property owned or used by it.
Section 7.3. Taxes and Assessments. The Borrower shall duly pay and
discharge, and shall cause each Subsidiary to duly pay and discharge, all
taxes, rates, assessments, fees and governmental charges upon or against it or
its Properties, in each case before the same become delinquent and before
penalties accrue thereon, unless and to the extent that the same are being
contested in good faith by appropriate proceedings which prevent enforcement of
the matter under contest and adequate reserves are provided therefor.
Section 7.4. Insurance. The Borrower shall insure and keep insured, and
shall cause each Subsidiary to insure and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is of
a character usually insured by Persons similarly situated and operating like
Properties against loss or damage from such hazards and risks, and in such
amounts, as are insured by Persons similarly situated and operating like
Properties; and the Borrower shall insure, and shall cause each Subsidiary to
insure, such other hazards and risks (including employers' and public liability
risks) with good and responsible insurance companies as and to the extent
usually insured by Persons similarly situated and conducting similar
businesses. The Borrower shall upon request of the Agent furnish a certificate
setting forth in summary form the nature and extent of the insurance maintained
pursuant to this Section 7.4.
Section 7.5. Financial Reports. The Borrower shall, and shall cause each
Domestic Subsidiary to independently or in consolidation with the Borrower,
maintain a standard system of accounting in accordance with GAAP and the
Borrower shall, and shall cause each Subsidiary to, furnish to the Bank and its
duly authorized representatives such information respecting the business and
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financial condition of the Borrower and its Subsidiaries as any Bank may
reasonably request; and without any request, shall furnish to each Bank:
(a) as soon as available, and in any event within fifty (50) days
(ninety-five (95) days in the case of the last quarter-annual accounting
period of the Borrower) after the close of each quarter-annual accounting
period of the Borrower, a copy of the consolidated balance sheet as of
the last day of such period and consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for
the fiscal year-to-date period then ended, all in reasonable detail
showing in comparative form the figures for the corresponding date and
period in the previous fiscal year, prepared by the Borrower in
accordance with GAAP and certified to by the chief financial officer of
the Borrower;
(b) as soon as available, and in any event within ninety-five (95)
days after the close of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its Subsidiaries as of the
last day of such fiscal year and the consolidated statements of income,
retained earnings and cash flows of the Borrower and its Subsidiaries for
the fiscal year then ended, and accompanying notes thereto, all in
reasonable detail showing in comparative form the figures for the
previous fiscal year, accompanied by an unqualified opinion thereon of
Ernst & Young LLP or another firm of independent public accountants of
recognized national standing, selected by the Borrower and satisfactory
to the Required Banks, to the effect that the financial statements have
been prepared in accordance with GAAP and present fairly in accordance
with GAAP the consolidated financial condition of the Borrower and its
Subsidiaries as of the close of such fiscal year and the results of their
operations and cash flows for the fiscal year then ended and that an
examination of such accounts in connection with such financial statements
has been made in accordance with generally accepted auditing standards
and, accordingly, such examination included such tests of the accounting
records and such other auditing procedures as were considered necessary
in the circumstances;
(c) promptly after the sending or filing thereof, copies of each
financial statement, report, notice or proxy statement sent by the
Borrower to its stockholders, and copies of each regular, periodic or
special report, registration statement or prospectus filed by the
Borrower with any securities exchange or the Securities Exchange
Commission or any successor agency; and
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(d) promptly after knowledge thereof shall have come to the
attention of any responsible officer of the Borrower, written notice of
any threatened or pending litigation or governmental proceeding or labor
controversy against the Borrower or any Subsidiary which, if adversely
determined, would materially adversely effect the financial condition,
Properties, business or operations of the Borrower or any Subsidiary or
of the occurrence of any Default or Event of Default hereunder.
Each of the financial statements furnished to the Banks pursuant to clauses (a)
and (b) of this Section 7.5 shall be accompanied by a written certificate in
the form attached hereto as Schedule 7.5 signed by the chief financial officer
of the Borrower to the effect that to the best of the chief financial officer's
knowledge and belief no Default or Event of Default has occurred during the
period covered by such statements or, if any such Default or Event of Default
has occurred during such period, setting forth a description of such Default or
Event of Default and specifying the action, if any, taken by the Borrower to
remedy the same. Such certificate shall also set forth the calculations
supporting such statements in respect of Sections 7.6, 7.7, and 7.8 of this
Agreement.
Section 7.6. Consolidated Tangible Net Worth. The Borrower shall, as of
the last day of each quarter-annual accounting period of the Borrower ending
during the periods specified below, maintain Consolidated Tangible Net Worth of
not less than the sum of (i) $160,000,000 plus (ii) 25% of Consolidated Net
Income for each fiscal year ending on and after December 31, 1998 for which
such Consolidated Net Income is a positive amount (i.e., there shall be no
reduction to the amount of Consolidated Tangible Net Worth required to be
maintained hereunder for any fiscal year in which Consolidated Net Income is
less than zero); provided that the minimum required amount of Consolidated
Tangible Net Worth set forth above shall be further increased by 100% of the
net proceeds received by the Borrower from any offering of equity securities of
the Borrower received at any time after December 31, 1996 (other than proceeds
received from the exercise of stock options to purchase shares of the
Borrower's common stock existing as of November 10, 1995).
Section 7.7. Leverage Ratio. The Borrower shall, as of the last day of
each quarter-annual accounting period of the Borrower, maintain a ratio of
Consolidated Total Liabilities to Consolidated Tangible Net Worth of not more
than 1.3 to 1.0.
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Section 7.8. Cash Flow Coverage Ratio. The Borrower shall, as of the last
day of each quarter-annual accounting period of the Borrower ending during the
periods specified below, maintain the ratio of Consolidated Cash Flow for the
four fiscal quarters of the Borrower then ended to Consolidated Fixed Charges
for the same four fiscal quarters then ended (the "Cash Flow Coverage Ratio")
of not less than:
<TABLE>
<CAPTION>
CASH FLOW COVERAGE
FROM AND TO AND RATIO SHALL NOT
INCLUDING INCLUDING BE LESS THAN:
<S> <C> <C>
12/31/96 03/30/98 .80 to 1.0
03/31/98 12/30/98 1.00 to 1.0
12/31/98 and at all times thereafter 1.05 to 1.0
</TABLE>
Section 7.9. Restricted Payments. The Borrower shall not directly or
indirectly purchase, redeem or otherwise acquire or retire any of its common
stock, except that the Borrower may repurchase from time to time portions of
its common stock for consideration not in excess of $50,000,000 in the
aggregate during the term of this Agreement so long as at the time of, and
after giving effect to, any such repurchase no Event of Default exists.
Section 7.10. Indebtedness for Borrowed Money and Guarantees. The
Borrower shall not, nor shall it permit any Subsidiary to, issue, incur,
assume, create or have outstanding any Indebtedness for Borrowed Money or be or
become liable as endorser, guarantor, surety or otherwise for any debt,
obligation or undertaking of any other Person, or otherwise agree to provide
funds for payment of the obligations of another, or supply funds thereto or
invest therein or otherwise assure a creditor of another against loss or apply
for or become liable to the issuer of a letter of credit which supports an
obligation of another; provided, however, that the foregoing provisions shall
not restrict nor operate to prevent:
(a) the Obligations of the Borrower owing to the Banks hereunder;
(b) purchase money indebtedness secured by Liens permitted by
Section 7.11(e) hereof in an aggregate amount not to exceed $5,000,000 at
any one time outstanding;
(c) Capitalized Lease Obligations to the extent permitted by Section
7.12 hereof;
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(d) indebtedness owing by Information Resources Japan Ltd. on one or
more revolving lines of credit in an aggregate principal amount not to
exceed JPY 1,000,000,000 at any one time outstanding;
(e) endorsement of items for deposit or collection of commercial
paper received in the ordinary course of business;
(f) the guarantee by the Borrower of the obligations of Information
Resources Japan Ltd., to the extent such obligations are permitted under
Section 7.10(d) hereof, provided that the obligations of the Borrower on
such guarantee shall not at any time exceed JPY 600,000,000; and
(g) other indebtedness and guarantees not to exceed $15,000,000 in
the aggregate at any one time outstanding.
Section 7.11. Liens. The Borrower shall not, nor shall it permit any
Subsidiary to, create, incur or permit to exist any Lien of any kind on any
Property owned by the Borrower or any Subsidiary; provided, however, that the
foregoing provisions shall not restrict nor operate to prevent:
(a) Liens arising by statute in connection with worker's
compensation, unemployment insurance, old age benefits, social security
obligations, taxes, assessments, statutory obligations or other similar
charges, good faith cash deposits in connection with tenders, contracts
or leases to which the Borrower or any Subsidiary is a party or other
cash deposits required to be made in the ordinary course of business,
provided in each case that the obligation is not for borrowed money and
that the obligation secured is not overdue or, if overdue, is being
contested in good faith by appropriate proceedings which prevent
enforcement of the matter under contest and adequate reserves have been
established therefor;
(b) mechanics', workmen's, materialmen's, landlords', carriers', or
other similar Liens arising in the ordinary course of business with
respect to obligations which are not due or which are being contested in
good faith by appropriate proceedings which prevent enforcement of the
matter under contest;
(c) the pledge of assets for the purpose of securing an appeal, stay
or discharge in the course of any legal proceeding, provided that the
aggregate amount of liabilities of the Borrower and its Subsidiaries
secured by a pledge of assets permitted under this clause, including
interest and
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penalties thereon, if any, shall not be in excess of $500,000 at any one
time outstanding;
(d) liens, mortgages and security interests existing as of December
22, 1992 and disclosed in the financial statements referred to in Section
5.4 hereof; and
(e) Liens upon property of the Borrower or any of its Subsidiaries
created solely for the purpose of securing indebtedness permitted by
Section 7.10(b) hereof, representing or incurred to finance, refinance or
refund the purchase price of Property, provided that no such Lien shall
extend to or cover other property of the Borrower or such Subsidiary
other than the respective Property so acquired, and the principal amount
of indebtedness secured by any such Lien shall at no time exceed the
original purchase price of such Property.
Section 7.12. Leases. The Borrower shall not, nor shall it permit any
Subsidiary to, enter into any operating lease or Capital Lease at any time if,
after giving effect thereto, the aggregate amount of rentals and other
consideration payable by the Borrower and its Subsidiaries under all such
leases or arrangements (which shall include the current portion of any
Capitalized Lease Obligation) would exceed $55,000,000 during any fiscal year
of the Borrower.
Section 7.13. Sales and Leasebacks. The Borrower shall not, nor shall it
permit any Subsidiary to, enter into any arrangement with any bank, insurance
company or any other lender or investor providing for the leasing by the
Borrower or any Subsidiary of any Property theretofore owned by it and which
has been or is to be sold or transferred by such owner to such lender or
investor.
Section 7.14. Mergers, Consolidations and Sales. The Borrower shall not,
nor shall it permit any Subsidiary to, be a party to any merger or
consolidation, or sell, transfer, lease or otherwise dispose of all or any
substantial part of its Property (except for sales of inventory in the ordinary
course of business), or in any event sell or discount (with or without
recourse) any of its notes or accounts receivable; provided, however, that the
foregoing provisions shall not apply to nor operate to prevent:
(a) any Subsidiary from merging into the Borrower or any
Wholly-owned Domestic Subsidiary if the Borrower or such Domestic
Subsidiary is the surviving corporation;
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(b) any Subsidiary from selling, transferring or leasing all or any
part of its assets and properties to the Borrower or any Wholly-owned
Domestic Subsidiary; and
(c) leases of store equipment by the Borrower and leases or licenses
by the Borrower of converters, software, computer hardware and other
technology, in each case in the ordinary course of business.
The term "substantial" as used in this Section 7.14 shall mean the sale, lease
or other disposition of ten percent (10%) or more of the consolidated total
assets of the Borrower in any fiscal year.
Section 7.15. ERISA. The Borrower shall, and shall cause each Subsidiary
to, promptly pay and discharge all obligations and liabilities arising under
ERISA of a character which if unpaid or unperformed might result in the
imposition of a Lien against any of its Properties. The Borrower shall, and
shall cause each Subsidiary to, promptly notify the Banks of (i) the occurrence
of any reportable event (as defined in ERISA) with respect to a Plan, (ii)
receipt of any notice from the PBGC of its intention to seek termination of any
Plan or appointment of a trustee therefor, (iii) its intention to terminate or
withdraw from any Plan, and (iv) the occurrence of any event with respect to
any Plan which would result in the incurrence by the Borrower or any Subsidiary
of any material liability, fine or penalty, or any material increase in the
contingent liability of the Borrower or any Subsidiary with respect to any
post-retirement Welfare Plan benefit.
Section 7.16. Compliance with Laws. The Borrower shall, and shall cause
each Subsidiary to, comply in all respects with the requirements of all
federal, state and local laws, rules, regulations, ordinances and orders
applicable to or pertaining to the Properties or business operations of the
Borrower or any Subsidiary, non-compliance with which could have a material
adverse effect on the financial condition, Properties, business or operations
of the Borrower or any Subsidiary or could result in a Lien upon any of their
Property.
Section 7.17. Use of Proceeds. The Borrower agrees that not more than
$50,000,000 of credit extended to the Borrower under this Agreement in the
aggregate shall be used during the period from October 1, 1997, and thereafter
through the final term of this Agreement to repurchase shares of its common
stock.
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SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
Section 8.1. Events of Default. Any one or more of the following shall
constitute an "Event of Default" hereunder:
(a) default for the period of three (3) days in the payment when due
of all or any part of the principal of or interest on any Note (whether
at the stated maturity thereof or at any other time provided for in this
Agreement) or of any Reimbursement Obligation, fee or other amount
payable by the Borrower hereunder or under any other Loan Document; or
(b) default in the observance or performance of any covenant set
forth in Sections 7.5(e), 7.6, 7.7, 7.8, 7.9, 7.10, 7.13, 7.14 or 7.17
hereof; or
(c) default in the observance or performance of any other provision
hereof or of any other Loan Document which is not remedied within twenty
(20) days after written notice thereof to the Borrower by the Agent; or
(d) any representation or warranty made by the Borrower herein or in
any other Loan Document, or in any statement or certificate furnished by
it pursuant hereto or thereto, or in connection with any Loan made or
Letter of Credit issued hereunder, proves untrue in any material respect
as of the date of the issuance or making thereof, and any such breach
which is capable of being cured shall not be remedied within twenty (20)
days after the date of the issuance or making thereof; or
(e) default shall occur under any Indebtedness for Borrowed Money
aggregating more than $500,000 issued, assumed or guaranteed by the
Company or any Subsidiary or under any indenture, agreement or other
instrument under which the same may be issued and such default shall
continue for a period of time sufficient to permit the acceleration of
the maturity of any such Indebtedness for Borrowed Money (whether or not
such maturity is in fact accelerated), or any such Indebtedness for
Borrowed Money shall not be paid when due (whether by lapse of time,
acceleration or otherwise); or
(f) any judgment or judgments, writ or writs, or warrant or warrants
of attachment, or any similar process or processes in an aggregate amount
in excess of $500,000 shall be entered or filed against the Borrower or
any of its Subsidiaries or against any of their Property and which
remains
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<PAGE> 53
unvacated, unbonded, unstayed or unsatisfied for a period of thirty (30)
days; or
(g) the Borrower or any member of its Controlled Group shall fail to
pay when due an amount or amounts aggregating in excess $500,000 which it
shall have become liable to pay to the PBGC or to a Plan under Title IV
of ERISA; or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Vested Liabilities in excess of $500,000
(collectively, a "Material Plan") shall be filed under Title IV of ERISA
by the Borrower or any other member of its Controlled Group, any plan
administrator or any combination of the foregoing; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer any Material Plan or a proceeding
shall be instituted by a fiduciary of any Material Plan against the
Borrower or any member of its Controlled Group to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within sixty (60) days thereafter; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that
any Material Plan must be terminated; or
(h) more than 51% of the capital stock of the Borrower which is
entitled to vote for the election of directors is held, either legally or
beneficially, by any Person or group of Persons acting in concert with
respect to the business affairs of the Borrower (the fact that particular
Persons are directors, officers or employees of the Borrower shall not be
deemed indicative of the fact that they are acting in concert); or
(i) any event of default (as defined in the Headquarters Complex
Lease) occurs under the Headquarters Complex Lease and the lessor
exercises or serves notice of its intention to exercise, any of its
remedies under the Headquarters Complex Lease; or
(j) the Borrower or any Subsidiary shall (i) have entered
involuntarily against it an order for relief under the United States
Bankruptcy Code, as amended, or any other comparable bankruptcy or
insolvency law applicable to it, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part
of its Property, (v) institute any proceeding seeking to have entered
against it an order for relief under the
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United States Bankruptcy Code, as amended, or any other comparable
bankruptcy or insolvency law applicable to it, to adjudicate it
insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors or fail to file an answer or other pleading denying the
material allegations of any such proceeding filed against it, or (vi)
fail to contest in good faith any appointment or proceeding described in
Section 8.1(k) hereof; or
(k) a custodian, receiver, trustee, examiner, liquidator or similar
official shall be appointed for the Borrower or any Subsidiary or any
substantial part of any of their Property, or a proceeding described in
Section 8.1(j)(v) shall be instituted against the Borrower or any
Subsidiary, and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of ninety (90)
days.
Section 8.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in subsections (j) or (k) of Section 8.1 hereof has
occurred and is continuing, the Agent shall, by written notice to the Borrower:
(a) if so directed by the Required Banks, terminate the remaining Commitments
and all other obligations of the Banks hereunder on the date stated in such
notice (which may be the date thereof); (b) if so directed by the Required
Banks, declare the principal of and the accrued interest on all outstanding
Notes to be forthwith due and payable and thereupon all outstanding Notes,
including both principal and interest thereon, shall be and become immediately
due and payable together with all other amounts payable under the Loan
Documents without further demand, presentment, protest or notice of any kind;
and (c) if so directed by the Required Banks, demand that the Borrower
immediately pay to the Agent the full amount then available for drawing under
each or any Letter of Credit, and the Borrower agrees to immediately make such
payment and acknowledges and agrees that the Banks would not have an adequate
remedy at law for failure by the Borrower to honor any such demand and that the
Agent, for the benefit of the Banks, shall have the right to require the
Borrower to specifically perform such undertaking whether or not any drawings
or other demands for payment have been made under any Letter of Credit. The
Agent, after giving notice to the Borrower pursuant to Section 8.1(c) or this
Section 8.2, shall also promptly send a copy of such notice to the other Banks,
but the failure to do so shall not impair or annul the effect of such notice.
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Section 8.3. Bankruptcy Defaults. When any Event of Default described in
subsections (j) or (k) of Section 8.1 hereof has occurred and is continuing,
then all outstanding Notes shall immediately become due and payable together
with all other amounts payable under the Loan Documents without presentment,
demand, protest or notice of any kind, the obligation of the Banks to extend
further credit pursuant to any of the terms hereof shall immediately terminate
and the Borrower shall immediately pay to the Agent the full amount then
available for drawing under all outstanding Letters of Credit, the Borrower
acknowledging and agreeing that the Banks would not have an adequate remedy at
law for failure by the Borrower to honor any such demand and that the Banks,
and the Agent on their behalf, shall have the right to require the Borrower to
specifically perform such undertaking whether or not any draws or other demands
for payment have been made under any of the Letters of Credit.
Section 8.4. Collateral for Undrawn Letters of Credit. (a) If the
prepayment of the amount available for drawing under any or all outstanding
Letters of Credit is required under Section 8.2 or 8.3 above, the Borrower
shall forthwith pay the amount required to be so prepaid, to be held by the
Agent as provided in subsection (b) below.
(b) All amounts prepaid pursuant to subsection (a) above shall be held by
the Agent in a separate collateral account (such account, and the credit
balances, properties and any investments from time to time held therein, and
any substitutions for such account, any certificate of deposit or other
instrument evidencing any of the foregoing and all proceeds of and earnings on
any of the foregoing being collectively called the "Account") as security for,
and for application by the Agent (to the extent available) to, the
reimbursement of any payment under any Letter of Credit then or thereafter made
by the Agent, and to the payment of the unpaid balance of any Loans and all
other Obligations. The Account shall be held in the name of and subject to the
exclusive dominion and control of the Agent for the benefit of the Agent and
the Banks. If and when requested by the Borrower, the Agent shall invest funds
held in the Account from time to time in direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the
United States of America with a remaining maturity of one year or less,
provided that the Agent is irrevocably authorized to sell investments held in
the Account when and as required to make payments out of the Account for
application to amounts due and owing from the Borrower to the Agent or Banks;
provided, however, that if (i) the Borrower shall have made payment of all such
obligations referred to in subsection (a) above, (ii) all relevant preference
or other disgorgement periods relating to the receipt of
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such payments have passed, and (iii) no Letters of Credit, Commitments, Loans
or other Obligations remain outstanding hereunder, then the Agent shall release
to the Borrower any remaining amounts held in the Account.
Section 8.5. Notice of Default. The Agent shall give notice to the
Borrower under Section 8.1(c) hereof promptly upon being requested to do so by
any Bank and shall thereupon notify all the Banks thereof.
Section 8.6. Expenses. The Borrower agrees to pay to the Agent and each
Bank, and any other holder of any Note outstanding hereunder, all expenses
reasonably incurred or paid by the Agent and such Bank or any such holder,
including reasonable attorneys' fees and court costs, in connection with any
Default or Event of Default by the Borrower hereunder or in connection with the
enforcement of any of the Loan Documents.
SECTION 9. CHANGE IN CIRCUMSTANCES.
Section 9.1. Change of Law. Notwithstanding any other provisions of this
Agreement or any Note, if at any time any change in applicable law or
regulation or in the interpretation thereof makes it unlawful for any Bank to
make or continue to maintain any Eurodollar Loans or to perform its obligations
as contemplated hereby, such Bank shall promptly give notice thereof to the
Borrower and the Agent and such Bank's obligations to make or maintain
Eurodollar Loans under this Agreement shall terminate until it is no longer
unlawful for such Bank to make or maintain Eurodollar Loans. The Borrower
shall prepay on demand the outstanding principal amount of any such affected
Eurodollar Loans, together with all interest accrued thereon and all other
amounts then due and payable to such Bank under this Agreement; provided,
however, subject to all of the terms and conditions of this Agreement, the
Borrower may then elect to borrow the principal amount of the affected
Eurodollar Loans from such Bank by means of Domestic Rate Loans from such Bank,
which Domestic Rate Loans shall not be made ratably by the Banks but only from
such affected Bank.
Section 9.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period
for any Borrowing of Eurodollar Loans:
(a) the Agent determines that deposits in U.S. Dollars (in the
applicable amounts) are not being offered to it in the interbank
eurodollar market for such Interest Period, or that by reason of
circumstances affecting
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the interbank eurodollar market adequate and reasonable means do not
exist for ascertaining the applicable LIBOR, or
(b) Banks having 50% or more of the aggregate amount of the
Revolving Credit Commitments advise the Agent that (i) LIBOR as
determined by the Agent will not adequately and fairly reflect the cost
to such Banks of funding their Eurodollar Loans for such Interest Period
or (ii) that the making or funding of Eurodollar Loans become
impracticable,
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks to
make Eurodollar Loans shall be suspended.
Section 9.3. Increased Cost and Reduced Return. (a) If, on or after the
date hereof, the adoption of any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof
by any governmental authority, central bank or comparable agency charged with
the interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency:
(i) shall subject any Bank (or its Lending Office) to any tax, duty
or other charge with respect to its Eurodollar Loans, its Notes, its
Letter(s) of Credit, or its participation in any thereof, any
Reimbursement Obligations owed to it or its obligation to make Eurodollar
Loans, issue a Letter of Credit, or to participate therein, or shall
change the basis of taxation of payments to any Bank (or its Lending
Office) of the principal of or interest on its Eurodollar Loans,
Letter(s) of Credit, or participations therein or any other amounts due
under this Agreement or any other Loan Document in respect of its
Eurodollar Loans, Letter(s) of Credit, any participation therein, any
Reimbursement Obligations owed to it, or its obligation to make
Eurodollar Loans, or issue a Letter of Credit, or acquire participations
therein (except for changes in the rate of tax on the overall net income
of such Bank or its Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
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requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Eurodollar Loans any such
requirement included in an applicable Eurodollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Lending Office) or shall impose on any Bank
(or its Lending Office) or on the interbank market any other condition
affecting its Eurodollar Loans, its Notes, its Letter(s) of Credit, or
its participation in any thereof, any Reimbursement Obligation owed to
it, or its obligation to make Eurodollar Loans, or to issue a Letter of
Credit, or to participate therein;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Eurodollar Loan, issuing or
maintaining a Letter of Credit, or participating therein, or to reduce the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under any other Loan Document with respect thereto, by
an amount deemed by such Bank to be material, then, within fifteen (15) days
after demand by such Bank (with a copy to the Agent), the Borrower shall be
obligated to pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If, after the date hereof, any Bank or the Agent shall have determined
in good faith that the adoption of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital as a consequence
of its obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within fifteen (15) days
after demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such reduction.
(c) A certificate of a Bank claiming compensation under this Section 9.3
and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and attribution methods.
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Section 9.4. Lending Offices. Each Bank may, at its option, elect to make
its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "Lending Office") for each type of
Loan available hereunder or at such other of its branches, offices or
affiliates as it may from time to time elect and designate in a written notice
to the Borrower and the Agent.
Section 9.5. Discretion of Bank as to Manner of Funding. Notwithstanding
any other provision of this Agreement, each Bank shall be entitled to fund and
maintain its funding of all or any part of its Loans in any manner it sees fit,
it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if each Bank had actually funded and
maintained each Eurodollar Loan through the purchase of deposits in the
interbank eurodollar market having a maturity corresponding to such Loan's
Interest Period and bearing an interest rate equal to LIBOR for such Interest
Period.
SECTION 10. THE AGENT.
Section 10.1. Appointment and Authorization of Agent. Each Bank hereby
appoints Harris Trust and Savings Bank as the Agent under the Loan Documents
and hereby authorizes the Agent to take such action as Agent on its behalf and
to exercise such powers under the Loan Documents as are delegated to the Agent
by the terms thereof, together with such powers as are reasonably incidental
thereto.
Section 10.2. Agent and its Affiliates. The Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
other Bank and may exercise or refrain from exercising the same as though it
were not the Agent, and the Agent and its affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower
or any Affiliate of the Borrower as if it were not the Agent under the Loan
Documents. The term "Bank" as used herein and in all other Loan Documents,
unless the context otherwise clearly requires, includes the Agent in its
individual capacity as a Bank. References in Section 1 hereof to the Agent's
Loans, or to the amount owing to the Agent for which an interest rate is being
determined, refer to the Agent in its individual capacity as a Bank.
Section 10.3. Action by Agent. If the Agent receives from the Borrower a
written notice of an Event of Default pursuant to Section 7.5(e) hereof, the
Agent shall promptly give each of the Banks written notice thereof. The
obligations of the Agent under the Loan Documents are only those expressly set
forth therein.
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Without limiting the generality of the foregoing, the Agent shall not be
required to take any action hereunder with respect to any Default or Event of
Default, except as expressly provided in Sections 8.2 and 8.5. In no event,
however, shall the Agent be required to take any action in violation of
applicable law or of any provision of any Loan Document, and the Agent shall in
all cases be fully justified in failing or refusing to act hereunder or under
any other Loan Document unless it shall be first indemnified to its reasonable
satisfaction by the Banks against any and all costs, expense, and liability
which may be incurred by it by reason of taking or continuing to take any such
action. The Agent shall be entitled to assume that no Default or Event of
Default exists unless notified to the contrary by a Bank or the Borrower. In
all cases in which this Agreement and the other Loan Documents do not require
the Agent to take certain actions, the Agent shall be fully justified in using
its discretion in failing to take or in taking any action hereunder and
thereunder.
Section 10.4. Consultation with Experts. The Agent may consult with legal
counsel, independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
. Neither the Agent nor any of its directors, officers, agents, or employees
shall be liable for any action taken or not taken by it in connection with the
Loan Documents: (i) with the consent or at the request of the Required Banks
or (ii) in the absence of its own gross negligence or willful misconduct.
Neither the Agent nor any of its directors, officers, agents or employees shall
be responsible for or have any duty to ascertain, inquire into or verify: (i)
any statement, warranty or representation made in connection with this
Agreement, any other Loan Document or any Credit Event; (ii) the performance or
observance of any of the covenants or agreements of the Borrower contained
herein or in any other Loan Document; (iii) the satisfaction of any condition
specified in Section 6 hereof, except receipt of items required to be delivered
to the Agent; or (iv) the validity, effectiveness, genuineness, enforceability,
perfection, value, worth or collectibility hereof or of any other Loan Document
or of any other documents or writing furnished in connection with any Loan
Document; and the Agent makes no representation of any kind or character with
respect to any such matter mentioned in this sentence. The Agent may execute
any of its duties under any of the Loan Documents by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Banks, the
Borrower, or any other Person for the default or misconduct of any such agents
or attorneys-in-fact selected with reasonable care. The Agent shall not incur
any liability by acting in reliance upon any notice, consent, certificate,
other
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document or statement (whether written or oral) believed by it to be genuine or
to be sent by the proper party or parties. In particular and without limiting
any of the foregoing, the Agent shall have no responsibility for confirming the
accuracy of any borrowing base certificate, compliance certificate or other
document or instrument received by it under the Loan Documents and shall be
entitled to rely exclusively on borrowing base certificates prepared by the
Borrower in computing the Borrowing Base. The Agent may treat the payee of any
Note as the holder thereof until written notice of transfer shall have been
filed with the Agent signed by such payee in form satisfactory to the Agent.
Each Bank acknowledges that it has independently and without reliance on the
Agent or any other Bank, and based upon such information, investigations and
inquiries as it deems appropriate, made its own credit analysis and decision to
extend credit to the Borrower in the manner set forth in the Loan Documents.
It shall be the responsibility of each Bank to keep itself informed as to the
creditworthiness of the Borrower, and the Agent shall have no liability to any
Bank with respect thereto.
Section 10.6. Indemnity. The Banks shall ratably, in accordance with
their respective Percentages, indemnify and hold the Agent, and its directors,
officers, employees, agents and representatives harmless from and against any
liabilities, losses, costs or expenses suffered or incurred by it under any
Loan Document or in connection with the transactions contemplated thereby,
regardless of when asserted or arising, except to the extent they are promptly
reimbursed for the same by the Borrower and except to the extent that any event
giving rise to a claim was caused by the gross negligence or willful misconduct
of the party seeking to be indemnified. The obligations of the Banks under
this Section 10.6 shall survive termination of this Agreement.
Section 10.7. Resignation of Agent and Successor Agent. The Agent may
resign at any time by giving written notice thereof to the Banks and the
Borrower. Upon any such resignation of the Agent, the Required Banks shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent's giving of
notice of resignation then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be any Bank hereunder or any commercial
bank organized under the laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $200,000,000.
Upon the acceptance of its appointment as the Agent hereunder, such successor
Agent shall thereupon succeed to and become vested with all the rights and
duties of the retiring Agent under the Loan Documents, and the retiring Agent
shall be discharged from its duties and
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obligations thereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Section 10 and all protective provisions of the
other Loan Documents shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent.
SECTION 11. MISCELLANEOUS.
Section 11.1. Withholding Taxes. (a) Payments Free of Withholding.
Except as otherwise required by law and subject to Section 11.1(b) hereof, each
payment by the Borrower under this Agreement or the other Loan Documents shall
be made without withholding for or on account of any present or future taxes
(other than overall net income taxes on the recipient) imposed by or within the
jurisdiction in which the Borrower is domiciled, any jurisdiction from which
the Borrower makes any payment, or (in each case) any political subdivision or
taxing authority thereof or therein. If any such withholding is so required,
the Borrower shall make the withholding, pay the amount withheld to the
appropriate governmental authority before penalties attach thereto or interest
accrues thereon and forthwith pay such additional amount as may be necessary to
ensure that the net amount actually received by each Bank and the Agent free
and clear of such taxes (including such taxes on such additional amount) is
equal to the amount which that Bank or the Agent (as the case may be) would
have received had such withholding not been made. If the Agent or any Bank
pays any amount in respect of any such taxes, penalties or interest, the
Borrower shall reimburse the Agent or such Bank for that payment on demand in
the currency in which such payment was made. If the Borrower pays any such
taxes, penalties or interest, it shall deliver official tax receipts evidencing
that payment or certified copies thereof to the Bank or Agent on whose account
such withholding was made (with a copy to the Agent if not the recipient of the
original) on or before the thirtieth day after payment.
(b) U.S. Withholding Tax Exemptions. Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
shall submit to the Borrower and the Agent on or before the earlier of the date
the initial Borrowing is made hereunder and thirty (30) days after the date
hereof, two duly completed and signed copies of either Form 1001 (relating to
such Bank and entitling it to a complete exemption from withholding under the
Code on all amounts to be received by such Bank, including fees, pursuant to
the Loan Documents and the Loans) or Form 4224 (relating to all amounts to be
received by such Bank, including fees, pursuant to the Loan Documents and the
Loans) of the United States Internal Revenue Service. Thereafter and from time
to time, each
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Bank shall submit to the Borrower and the Agent such additional duly completed
and signed copies of one or the other of such Forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may be (i) requested by the Borrower in a written notice,
directly or through the Agent, to such Bank and (ii) required under
then-current United States law or regulations to avoid or reduce United States
withholding taxes on payments in respect of all amounts to be received by such
Bank, including fees, pursuant to the Loan Documents or the Loans.
(c) Inability of Bank to Submit Forms. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit to
the Borrower or the Agent any form or certificate that such Bank is obligated
to submit pursuant to subsection (b) of this Section 11.1 or that such Bank is
required to withdraw or cancel any such form or certificate previously
submitted or any such form or certificate otherwise becomes ineffective or
inaccurate, such Bank shall promptly notify the Borrower and Agent of such fact
and the Bank shall to that extent not be obligated to provide any such form or
certificate and will be entitled to withdraw or cancel any affected form or
certificate, as applicable.
Section 11.2. No Waiver, Cumulative Remedies. No delay or failure on the
part of the Agent or any Bank or on the part of the holder or holders of any of
the Obligations in the exercise of any power or right under any Loan Document
shall operate as a waiver thereof or as an acquiescence in any default, nor
shall any single or partial exercise of any power or right preclude any other
or further exercise thereof or the exercise of any other power or right. The
rights and remedies hereunder of the Agent, the Banks and of the holder or
holders of any of the Obligations are cumulative to, and not exclusive of, any
rights or remedies which any of them would otherwise have.
Section 11.3. Non-Business Days. If any payment hereunder becomes due and
payable on a day which is not a Business Day, the due date of such payment
shall be extended to the next succeeding Business Day on which date such
payment shall be due and payable. In the case of any payment of principal
falling due on a day which is not a Business Day, interest on such principal
amount shall continue to accrue during such extension at the rate per annum
then in effect, which accrued amount shall be due and payable on the next
scheduled date for the payment of interest.
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Section 11.4. Documentary Taxes. The Borrower agrees to pay on demand any
documentary, stamp or similar taxes payable in respect of this Agreement or any
other Loan Document, including interest and penalties, in the event any such
taxes are assessed, irrespective of when such assessment is made and whether or
not any credit is then in use or available hereunder.
Section 11.5. Survival of Representations. All representations and
warranties made herein or in any other Loan Document or in certificates given
pursuant hereto or thereto shall survive the execution and delivery of this
Agreement and the other Loan Documents, and shall continue in full force and
effect with respect to the date as of which they were made as long as any
credit is in use or available hereunder.
Section 11.6. Survival of Indemnities. All indemnities and other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans and Letters of Credit,
including, but not limited to, Sections 1.18, 9.3 and 11.15 hereof, shall
survive the termination of this Agreement and the other Loan Documents and the
payment of the Obligations.
Section 11.7. Sharing of Set-Off. Each Bank agrees with each other Bank a
party hereto that if such Bank shall receive and retain any payment, whether by
set-off or application of deposit balances or otherwise ("Set-off"), on any
Borrowing or Reimbursement Obligations in excess of its ratable share of
payments on all Loans outstanding as part of such Borrowing or Reimbursement
Obligation then outstanding to the Banks, then such Bank shall purchase for
cash at face value, but without recourse, ratably from each of the other Banks
such amount of the Loans or Reimbursement Obligations, or participations
therein, held by each such other Banks (or interest therein) as shall be
necessary to cause such Bank to share such excess payment ratably with all the
other Banks; provided, however, that if any such purchase is made by any Bank,
and if such excess payment or part thereof is thereafter recovered from such
purchasing Bank, the related purchases from the other Banks shall be rescinded
ratably and the purchase price restored as to the portion of such excess
payment so recovered, but without interest. For purposes of this Section 11.7,
amounts owed to or recovered by, the Agent in connection with Reimbursement
Obligations in which Banks have been required to fund their participation shall
be treated as amounts owed to or recovered by the Agent as a Bank hereunder.
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Section 11.8. Notices. Except as otherwise specified herein, all notices
hereunder and under the other Loan Documents shall be in writing (including
cable, telecopy or telex) and shall be given to the relevant party at its
address or telecopier number set forth below, or such other address or
telecopier number as such party may hereafter specify by notice to the Agent
and the Borrower given by courier, by United States certified or registered
mail, by telecopy or by other telecommunication device capable of creating a
written record of such notice and its receipt. Notices under the Loan
Documents to the Banks and the Agent shall be addressed to their respective
addresses or telecopier numbers set forth on the signature pages hereof, and to
the Borrower to:
Information Resources, Inc.
150 North Clinton Street
Chicago, Illinois 60606
Attention: Chief Financial Officer
Telephone: (312) 726-1221
Telecopy: (312) 726-0360
Each such notice, request or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier number
specified in this Section 11.8 or on the signature pages hereof and a
confirmation of such telecopy has been received by the sender, (ii) if given by
mail, five (5) days after such communication is deposited in the mail,
certified or registered with return receipt requested, addressed as aforesaid
or (iii) if given by any other means, when delivered at the addresses specified
in this Section 11.8 or on the signature pages hereof; provided that any notice
given pursuant to Section 1 hereof shall be effective only upon receipt.
Section 11.9. Counterparts. This Agreement may be executed in any number
of counterparts, and by the different parties hereto on separate counterpart
signature pages, and all such counterparts taken together shall be deemed to
constitute one and the same instrument.
Section 11.10. Successors and Assigns. This Agreement shall be binding
upon the Borrower and its successors and assigns, and shall inure to the
benefit of the Agent and each of the Banks and the benefit of their respective
successors and assigns, including any subsequent holder of any of the
Obligations. The Borrower may not assign any of its rights or obligations
under any Loan Document without the written consent of all of the Banks.
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Section 11.11. Participants. Each Bank shall have the right at its own
cost to grant participations (to be evidenced by one or more agreements or
certificates of participation) in the Loans made and Reimbursement Obligations
and/or Commitments held by such Bank at any time and from time to time to one
or more other Persons; provided that no such participation shall relieve any
Bank of any of its obligations under this Agreement, and, provided, further
that no such participant shall have any rights under this Agreement except as
provided in this Section 11.11, and the Agent shall have no obligation or
responsibility to such participant. Any agreement pursuant to which such
participation is granted shall provide that the granting Bank shall retain the
sole right and responsibility to enforce the obligations of the Borrower under
this Agreement and the other Loan Documents including, without limitation, the
right to approve any amendment, modification or waiver of any provision of the
Loan Documents, except that such agreement may provide that such Bank will not
agree to any modification, amendment or waiver of the Loan Documents that would
reduce the amount of or postpone any fixed date for payment of any Obligation
in which such participant has an interest. Any party to which such a
participation has been granted shall have the benefits of Section 1.18 and
Section 9.3 hereof. The Borrower authorizes each Bank to disclose to any
participant or prospective participant under this Section 11.11 any financial
or other information pertaining to the Borrower, provided such purchaser or
prospective purchaser is advised of the duty of confidentiality contained in
Section 11.20 hereof.
Section 11.12. Assignment of Commitments by Banks. Each Bank shall have
the right at any time, with the prior consent of the Borrower and the Agent,
which shall not be unreasonably withheld, to sell, assign, transfer or
negotiate all or any part of its Commitments (including the same percentage of
its Note, outstanding Loans and Reimbursement Obligations owed to it) to one or
more commercial banks or other financial institutions, provided that such
assignment shall be of a fixed percentage (and not by its terms of varying
percentage) of the assigning Bank's Commitments; provided, however, that in
order to make any such assignment (i) the assigning Bank shall retain at least
$10,000,000 in Commitments, and (ii) the assignee bank shall have Commitments
of at least $5,000,000, (iii) each such assignment shall be evidenced by a
written agreement executed by such assigning Bank, such assignee bank or banks,
the Borrower and the Agent which agreement shall specify in each instance the
portion of the Obligations which are to be assigned to the assignee bank and
the portion of the Commitments of the assigning Bank to be assumed by the
assignee bank or banks, and (iv) the assigning Bank shall pay to the Agent a
processing fee of $5,000 and any out-of-pocket attorneys' fees and expenses
incurred by the Agent in
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connection with any such assignment agreement. Any such assignee shall become
a Bank for all purposes hereunder to the extent of the Commitments it assumes
and the assigning Bank shall be released from its obligations, and will have
released its rights, under the Loan Documents to the extent of such assignment.
The Borrower authorizes each Bank to disclose to any purchaser or prospective
purchaser of an interest in the Loans and Reimbursement Obligations owed to it
or its Commitments under this Section 11.12 any financial or other information
pertaining to the Borrower.
Section 11.13. Amendments. Any provision of this Agreement or the other
Loan Documents may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by (a) the Borrower, (b) the Required Banks,
and (c) if the rights or duties of the Agent are affected thereby, the Agent;
provided that:
(i) no amendment or waiver pursuant to this Section 11.13 shall (A)
increase any Commitment of any Bank without the consent of such Bank, (B)
reduce the amount of or postpone the date for payment of any principal of
or interest on any Loan or of any Reimbursement Obligation or of any fee
payable hereunder without the consent of the Bank to which such payment
is owing or which has committed to make such Loan or Letter of Credit (or
participate therein) hereunder or (C) change the definition of the
Termination Date or Section 2.2 without the consent of all the Banks; and
(ii) no amendment or waiver pursuant to this Section 11.13 shall,
unless signed by each Bank, change the provisions of this Section 11.13,
Section 6, Section 9, the definition of Required Banks, or affect the
number of Banks required to take any action hereunder or under any other
Loan Document.
Section 11.14. Headings. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
Section 11.15. Costs and Expenses. The Borrower agrees to pay all costs
and expenses of the Agent in connection with the preparation, negotiation, and
administration of the Loan Documents, including, without limitation, the
reasonable fees and disbursements of Chapman and Cutler, counsel to the Agent,
in connection with the preparation and execution of the Loan Documents, and any
amendment, waiver or consent related thereto, whether or not the transactions
contemplated herein are consummated. The Borrower further agrees to indemnify
-61-
<PAGE> 68
the Agent, each Bank, and their respective directors, officers and employees,
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitation, all expenses of litigation or
preparation therefor, whether or not the indemnified Person is a party thereto)
which any of them may pay or incur arising out of or relating to any Loan
Document or any of the transactions contemplated thereby or the direct or
indirect application or proposed application of the proceeds of any Loan or
Letter of Credit, other than those which arise from the gross negligence or
willful misconduct of the party claiming indemnification. The Borrower, upon
demand by the Agent or a Bank at any time, shall reimburse the Agent or such
Bank for any legal or other expenses incurred in connection with investigating
or defending against any of the foregoing except if the same is directly due to
the gross negligence or willful misconduct of the party to be indemnified. The
obligations of the Borrower under this Section 11.15 shall survive the
termination of this Agreement.
Section 11.16. Set-off. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any Event of Default, each Bank and each subsequent
holder of any Obligation is hereby authorized by the Borrower at any time or
from time to time, without notice to the Borrower or to any other Person, any
such notice being hereby expressly waived, to set-off and to appropriate and to
apply any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or
unmatured, but not including trust accounts, and in whatever currency
denominated) and any other indebtedness at any time held or owing by that Bank
or that subsequent holder to or for the credit or the account of the Borrower,
whether or not matured, against and on account of the obligations and
liabilities of the Borrower to that Bank or that subsequent holder under the
Loan Documents, including, but not limited to, all claims of any nature or
description arising out of or connected with the Loan Documents, irrespective
of whether or not (a) that Bank or that subsequent holder shall have made any
demand hereunder or (b) the principal of or the interest on the Loans or Notes
and other amounts due hereunder shall have become due and payable pursuant to
Section 8 and although said obligations and liabilities, or any of them, may be
contingent or unmatured.
Section 11.17. Entire Agreement. The Loan Documents constitute the entire
understanding of the parties thereto with respect to the subject matter thereof
and any prior or contemporaneous agreements, whether written or oral, with
respect thereto are superseded hereby.
-62-
<PAGE> 69
Section 11.18. Governing Law. This Agreement and the other Loan
Documents, and the rights and duties of the parties hereto, shall be construed
and determined in accordance with the internal laws of the State of Illinois.
Section 11.19. Severability of Provisions. Any provision of any Loan
Document which is unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.20. Confidentiality. The Agent and each Bank agrees to hold
any information designated as confidential by the Borrower which it may receive
from the Borrower pursuant to this Agreement in confidence, except for
information that becomes publicly available, and except for disclosures to (i)
other parties to the Agreement, (ii) legal counsel, accountants and other
professional advisors to the Agent or a Bank, (iii) as required by law,
regulation, or legal process, (iv) in connection with any legal proceeding to
which the Agent or a Bank is a party and (v) as permitted in accordance with
Section 11.11 hereof.
. The Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Northern District of Illinois and of any Illinois
State court sitting in the City of Chicago for purposes of all legal
proceedings arising out of or relating to this Agreement, the other Loan
Documents or the transactions contemplated hereby or thereby. The Borrower
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum. THE BORROWER, THE AGENT AND
EACH BANK HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
[SIGNATURE PAGE TO FOLLOW]
-63-
<PAGE> 70
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall constitute a contract between us for the uses and purposes
hereinabove set forth.
Dated as of this 31st day of October, 1997
INFORMATION RESOURCES, INC.
By
Name
--------------------------
Title
-------------------------
-64-
<PAGE> 71
Accepted and agreed to as of the day and year last above written.
HARRIS TRUST AND SAVINGS BANK, in
its individual capacity as a
Bank and as Agent
Address and Amount of Commitments: By
-------------------------------
Name
---------------------------
Address: Title Vice President
111 West Monroe Street
Chicago, Illinois 60603
Attention: Richard H. Robb
Telecopy: (312) 987-4856
Telephone: (312) 461-3539
Revolving Credit Commitment:
$50,000,000
Lending Office:
111 West Monroe Street
Chicago, Illinois
-65-
<PAGE> 72
LASALLE NATIONAL BANK
Address and Amount of Commitments: By
-------------------------------
Name
---------------------------
Address: Title
135 South LaSalle Street, No. 217 --------------------------
Chicago, Illinois 60603
Attention: John McGuire
Telecopy: (312) 904-4657
Telephone: (312) 904-4660
Revolving Credit Commitment:
$25,000,000
Lending Office:
135 South LaSalle Street
Chicago, Illinois 60603
-66-
<PAGE> 73
EXHIBIT A
COMMITTED LOAN NOTE
U.S. $_______________ ________________, 19___
FOR VALUE RECEIVED, the undersigned, Information Resources, Inc., a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
______________________ (the "Bank") on the Termination Date of the hereinafter
defined Credit Agreement, at the principal office of Harris Trust and Savings
Bank, in Chicago, Illinois, in immediately available funds, the principal sum
of ___________________ Dollars ($__________) or, if less, the aggregate unpaid
principal amount of all Committed Loans made by the Bank to the Borrower
pursuant to the Credit Agreement, together with interest on the principal
amount of each Committed Loan from time to time outstanding hereunder at the
rates, and payable in the manner and on the dates, specified in the Credit
Agreement.
The Bank shall record on its books or records or on a schedule attached to
this Note, which is a part hereof, each Committed Loan made by it pursuant to
the Credit Agreement, together with all payments of principal and interest and
the principal balances from time to time outstanding hereon, whether the
Committed Loan is a Domestic Rate Loan or a Eurodollar Loan, the interest rate
and Interest Period applicable thereto, provided that prior to the transfer of
this Note all such amounts shall be recorded on a schedule attached to this
Note. The record thereof, whether shown on such books or records or on a
schedule to this Note, shall be prima facie evidence of the same, provided,
however, that the failure of the Bank to record any of the foregoing or any
error in any such record shall not limit or otherwise affect the obligation of
the Borrower to repay all Committed Loans made to it pursuant to the Credit
Agreement together with accrued interest thereon.
This Note is one of the Notes referred to in the Credit Agreement dated as
of October 31, 1997, among Information Resources, Inc., Harris Trust and
Savings Bank, as Agent, and the Banks party thereto (as amended from time to
time, the "Credit Agreement"), and this Note and the holder hereof are entitled
to all the benefits provided for thereby or referred to therein, to which
Credit Agreement
<PAGE> 74
reference is hereby made for a statement thereof. All defined terms used in
this Note, except terms otherwise defined herein, shall have the same meaning
as in the Credit Agreement. This Note shall be governed by and construed in
accordance with the internal laws of the State of Illinois.
Prepayments may be made hereon and this Note may be declared due prior to
the expressed maturity hereof, all in the events, on the terms and in the
manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
INFORMATION RESOURCES, INC.
By
--------------------------------
Name
----------------------------
Title
---------------------------
-2-
<PAGE> 75
EXHIBIT A-1
SWING LINE NOTE
Chicago, Illinois
$5,000,000.00 __________, 1997
On the Termination Date, for value received, the undersigned, Information
Resources, Inc., a Delaware corporation (the "Borrower") hereby promises to pay
to the order of Harris Trust and Savings Bank (the "Bank"), at the principal
office of Harris Trust and Savings Bank in Chicago, Illinois, the principal sum
of (i) Five Million and 00/100 Dollars ($5,000,000.00), or (ii) such lesser
amount as may at the time of the maturity hereof, whether by acceleration or
otherwise, be the aggregate unpaid principal amount of all Swing Loans owing
from the Borrower to the Bank under the Swing Line Commitment provided for in
the Credit Agreement hereinafter mentioned.
This Note evidences Swing Loans made and to be made to the Borrower by the
Bank under the Swing Line Commitment provided for under that certain Credit
Agreement dated as of October 31, 1997, as amended, by and among the Borrower,
Harris Trust and Savings Bank, individually and as Agent thereunder, and the
other Banks which are now or may from time to time hereafter become parties
thereto (said Credit Agreement, as the same may from time to time be modified,
amended or restated being referred to herein as the "Credit Agreement"), and
the Borrower hereby promises to pay interest at the office described above on
each Swing Loan evidenced hereby at the rates and at the times and in the
manner specified therefor in the Credit Agreement.
Each Swing Loan made under the Swing Line Commitment provided for in the
Credit Agreement by the Bank to the Borrower against this Note, any repayment
of principal hereon and the interest rates applicable thereto shall be endorsed
by the holder hereof on a schedule to this Note or recorded on the books and
records of the holder hereof (provided that such entries shall be endorsed on a
schedule to this Note prior to any negotiation hereof). The Borrower agrees
that in any action or proceeding instituted to collect or enforce collection of
this Note, the
<PAGE> 76
entries so endorsed on a schedule to this Note or recorded on the books and
records of the holder hereof shall be prima facie evidence of the unpaid
principal balance of this Note and the interest rates applicable thereto.
This Note is issued by the Borrower under the terms and provisions of the
Credit Agreement, and this Note and the holder hereof are entitled to all of
the benefits and security provided for thereby or referred to therein, to which
reference is hereby made for a statement thereof. This Note may be declared to
be, or be and become, due prior to its expressed maturity, voluntary
prepayments may be made hereon, and certain prepayments are required to be made
hereon, all in the events, on the terms and with the effects provided in the
Credit Agreement. All capitalized terms used herein without definition shall
have the same meanings herein as such terms have in the Credit Agreement.
This Note shall be construed in accordance with, and governed by, the
internal laws of the State of Illinois without regard to principles of conflict
of law.
The Borrower hereby promises to pay all reasonable costs and expenses
(including attorneys' fees) suffered or incurred by the holder hereof in
collecting this Note or enforcing any rights in any collateral therefor. The
Borrower hereby waives presentment for payment and demand.
INFORMATION RESOURCES, INC.
By
--------------------------------
Name
----------------------------
Title
---------------------------
-2-
<PAGE> 77
EXHIBIT B
BID NOTE
___________
_______, _____
FOR VALUE RECEIVED, the undersigned, Information Resources, Inc., a
Delaware corporation (the "Borrower") promises to pay to the order of
______________________________ (the "Bank") on the Termination Date, at the
principal office of Harris Trust and Savings Bank in Chicago, Illinois in
immediately available funds, the aggregate unpaid principal amount of all Bid
Loans made by the Bank to the Borrower pursuant to the Credit Agreement and
with each Bid Loan to mature and become payable on the last day of the Interest
Period applicable thereto, but in no event later than the Termination Date,
together with interest on the principal amount of each Bid Loan from time to
time outstanding hereunder at the rates, and payable in the manner and on the
dates, specified in the Credit Agreement.
The Bank shall record on its books and records or on a schedule attached
to this Note, which is a part hereof, each Bid Loan made by it pursuant to the
Credit Agreement, together with all payments of principal and interest and the
principal balances thereof from time to time outstanding hereon and the
interest rate and Interest Period applicable thereto, provided that prior to
the transfer of this Note all such amounts shall be recorded on a schedule
attached to this Note. The record thereof, whether shown on such books and
records or on a schedule to this Note, shall be prima facie evidence of the
same, provided, however, that the failure of the Bank to record any of the
foregoing or any error in any such record shall not limit or otherwise affect
the obligation of the Borrower to repay all Bid Loans made to it pursuant to
the Credit Agreement together with accrued interest thereon.
This Bid Note is one of the Notes referred to in the Credit Agreement
dated as of October 31, 1997, among the Company, Harris Trust and Savings Bank
as Agent, and the Banks party thereto (as amended from time to time, the
"Credit Agreement"), and this Note and the holder hereof are entitled to all
the benefits provided for thereby or referred to therein, to which Credit
Agreement reference is hereby made for a statement thereof. All defined terms
used in this Note, except terms otherwise defined herein, shall have the same
meaning as in the Credit
<PAGE> 78
Agreement. This Note shall be governed by and construed in accordance with the
internal laws of the State of Illinois without regard to choice of law
doctrine.
This Note may be declared due prior to the expressed maturity hereof on
the terms and in the manner provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
INFORMATION RESOURCES, INC.
By
--------------------------------
Name
----------------------------
Title
---------------------------
-2-
<PAGE> 79
EXHIBIT C
BID LOAN REQUEST CONFIRMATION
[Date]
Harris Trust and Savings Bank,
as Agent for the Banks
party to the Credit Agreement
referred to below
Attention:
The undersigned, Information Resources, Inc. (the "Borrower") refers to
the Credit Agreement dated as of October 31, 1997 (the "Credit Agreement"),
among Information Resources, Inc., the Banks named therein and Harris Trust and
Savings Bank as Agent for the Banks. Capitalized terms used and not defined
herein have the meanings assigned to them in the Credit Agreement. The
Borrower hereby confirms that it has, on the date hereof, given you notice
pursuant to Section 1.7 of the Credit Agreement that it requests a Bid Loan
Borrowing under the Credit Agreement, and in that connection sets forth below
the terms on which such Bid Loan Borrowing is requested to be made:
(A) Date of Bid Loan Borrowing(1) ______________
(B) Aggregate Principal Amount of
Bid Loan Borrowing(2) ______________
(C) Interest Period(3) ______________
__________________
(1) The Bid Loan Request Confirmation must be received on a Business Day by the
Agent not later than 2:30 P.M. (Chicago time) one (1) Business Day before
the proposed Borrowing Date.
(2) Not less than $5,000,000 and in integral multiples of $1,000,000
(3) Which shall be no more than 180 days or less than 7 days and shall end not
later than the applicable Termination Date.
<PAGE> 80
______________
______________
(D) If applicable, maximum amount
______________
requested for each Interest
______________
Period(4) ______________
(E) Borrower for proposed Borrowing ______________
Upon acceptance of any or all of the Bids offered by Banks in response to
this request, the Borrower shall be deemed to affirm as of such date the
representations and warranties made in the Credit Agreement to the extent
specified in Section 6 thereof.
Very truly yours,
INFORMATION RESOURCES, INC.
By
Its
---------------------------
__________________
(4) May not exceed amount in (B) for any Interest Period and for each Interest
Period must be not less than $5,000,000 and in integral multiples of
$1,000,000.
-2-
<PAGE> 81
EXHIBIT D
INVITATION TO BID
[Name of Bank] [Date]
[Address]
Attention:
Reference is made to the Credit Agreement, dated as of October 31, 1997
(the "Credit Agreement") among Information Resources, Inc. (the "Borrower"),
the Banks named therein and Harris Trust and Savings Bank as Agent for the
Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement. The Borrower made a Bid Loan Request
on ______________, ____ pursuant to Section 1.7 of the Credit Agreement, and in
that connection you are invited to submit a Bid by_____[Date]____________. Your
Bid must comply with Section 1.7 of the Credit Agreement and the terms set
forth below on which the Bid Loan Request was made.
(A) Date of Proposed Bid Loan Borrowing ______________
(B) Aggregate Principal Amount
of Competitive Advance Interest Periods
1. ________________________
______________
2. ________________________
______________
3. ________________________
______________
(C) The Bid must be received by Harris Trust and Savings Bank not
later than 9:00 a.m. (Chicago time) on the proposed Borrowing Date.
<PAGE> 82
Very truly yours,
HARRIS TRUST AND SAVINGS BANK
as Agent for the Banks
By
Its
---------------------------
-2-
<PAGE> 83
EXHIBIT E
CONFIRMATION OF BID
[Date]
Harris Trust and Savings Bank,
as Agent for the Banks party to the
Credit Agreement referred to below
Attention:
The undersigned, [Name Of Bank], refers to the Credit Agreement dated as
of October 31, 1997 (the "Credit Agreement") among Information Resources, Inc.
(the "Borrower"), the Banks named therein and Harris Trust and Savings Bank as
Agent for the Banks. Capitalized terms used and not defined herein have the
meanings assigned to them in the Credit Agreement. The undersigned hereby
confirms that on the date hereof it has made a Bid pursuant to Section 1.7 of
the Credit Agreement, in response to the Bid Loan Request made by the Borrower
on _____________, ____, and in that connection sets forth below the terms on
which such Bid is made:
Date of proposed Bid Loan Borrowing: ________________________(1)
Principal Interest Interest
Amount(2) Period(3) Rate(4)
_______________
(1) As specified in the related Invitation to Bid.
(2) Principal amount bid for each Interest Period may not exceed the principal
amount requested by the Borrower or the maximum amount requested for that
Interest Period, if less. Bids must be made in a minimum amount of
$5,000,000 and in integral multiples of $1,000,000
(3) Up to 180 days and not less than 7 days, as specified in the related
Invitation to Bid.
(4) Specify rate of interest per annum computed on the basis of a year of 360
days and actual days elapsed.
<PAGE> 84
Very truly yours,
[Name of Bank]
By
Its
-----------------------------------
-2-
<PAGE> 85
EXHIBIT F
NOTICE OF ACCEPTANCE OF BID
[Name of Bank] [Date]
[Address]
Attention:
Reference is made to the Credit Agreement, dated as of October 31, 1997
(the "Credit Agreement") among Information Resources, Inc. (the "Borrower"),
the Banks named therein and Harris Trust and Savings Bank as Agent for the
Banks. Capitalized terms used and not defined herein have the meanings
assigned to them in the Credit Agreement. The Borrower made a Bid Loan Request
on _____________, ____ pursuant to Section 1.7 of the Credit Agreement, and in
that connection you have submitted a Bid. Your Bid has been accepted as set
forth below.
(A) Date of Bid Loan Borrowing __________
(B) Principal Amount of Bid Loan(s) __________
(C) Your Bid accepted:
Interest
Amount: __________ Period: __________ Rate:
__________
__________ __________
__________ __________
__________
__________
(D) Aggregate winning bids:
Interest
Amount: __________ Period: __________ Rate:
__________
__________ __________
__________ __________
__________
__________
<PAGE> 86
Very truly yours,
HARRIS TRUST AND SAVINGS BANK
as Agent for the Banks
By
Its
---------------------------
-2-
<PAGE> 87
EXHIBIT G
OPINION OF COUNSEL
[TO BE ATTACHED]
<PAGE> 88
EXHIBIT H
NOTICE OF PAYMENT REQUEST
[Name of Bank] [Date]
[Address]
Attention:
Reference is made to the Credit Agreement, dated as of October 31, 1997
among Information Resources, Inc., the Banks party thereto, and Harris Trust
and Savings Bank, as Agent (the "Credit Agreement"). Capitalized terms used
herein and not defined herein have the meanings assigned to them in the Credit
Agreement. [The Borrower has failed to pay its Reimbursement Obligation in the
amount of $_________. Your Bank's Percentage of the unpaid Reimbursement
Obligation is $_________] or [Harris Trust and Savings Banks has been required
to return a payment by the Borrower of a Reimbursement Obligation in the amount
of $________. Your Bank's Percentage of the returned Reimbursement Obligation
is $_________.]
Very truly yours,
HARRIS TRUST AND SAVINGS BANK, as
Agent
By
Its
----------------------------
<PAGE> 89
SCHEDULE 5.5
PENDING AND THREATENED LITIGATION
[TO BE ATTACHED]
<PAGE> 90
SCHEDULE 7.5
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Harris Trust and Savings Bank,
as Agent (the "Agent") pursuant to that certain Credit Agreement dated as of
October 31, 1997, among Information Resources, Inc. (the "Company"), Harris
Trust and Savings Bank, as Agent, and the Banks party thereto (the "Credit
Agreement"). Unless otherwise defined herein, the terms used in this
Compliance Certificate have the meanings ascribed thereto in the Credit
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________________________ of
the Borrower;
2. I have reviewed the terms of the Credit Agreement and I have
made, or have caused to be made under my supervision, a detailed review
of the transactions and conditions of the Borrower and its Subsidiaries
during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or the occurrence of
any event which constitutes a Default or Event of Default during or at
the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth
below; and
4. The Attachment hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the Credit
Agreement, all of which data and computations are, to the best of my
knowledge, true, complete and correct and have been made in accordance
with the relevant Sections of the Credit Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing, in
detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
<PAGE> 91
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The foregoing certifications, together with the computations set forth in
the Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _________ day of
__________________ 19___.
INFORMATION RESOURCES, INC.
By
----------------------------------
---------------, -----------------
(Name) (Title)
-2-
<PAGE> 92
ATTACHMENT TO COMPLIANCE CERTIFICATE
INFORMATION RESOURCES, INC.
Compliance Calculations for Credit Agreement
Dated as of October 31, 1997
Calculations as of ____________, _____
_______________________________________________________________________________
A. Consolidated Tangible Net Worth (Section 7.6)
<TABLE>
<S> <C> <C>
1. Consolidated total assets $_________
2. Goodwill $_________
3. Line A.1 minus A.2 $_________
4. Consolidated Total Liabilities $_________
5. Line A.3 minus A.4 (Consolidated Tangible
Net Worth) $
=========
6. Line A.5 shall not be less than $_________
</TABLE>
<PAGE> 93
B. Leverage Ratio (Section 7.7)
<TABLE>
<S> <C> <C>
1. Consolidated Total Liabilities (Line
A.4 above) $_________
2. Consolidated Tangible Net Worth (Line
A.5 above) $_________
3. Ratio of Line B.1 to B.2 _________:
1.0
4. Line B.3 Ratio shall not be more than 1.30:
1.0
C. Cash Flow Coverage Ratio (Section 7.8)
1. Consolidated Net Income $__________
2. Consolidated Interest Expense $__________
3. Income Taxes $__________
4. Depreciation and Amortization $__________
5. Amortization of InfoScan Costs and Software
Costs $__________
</TABLE>
-2-
<PAGE> 94
<TABLE>
<S> <C> <C>
6. Net Proceeds from Equity Security Offerings $__________
7. Net Proceeds from Subordinated Debt $
==========
8. Sum of Lines C.1 through C.7 (Consolidated
Cash Flow) $
==========
9. Principal payments on Indebtedness for
Borrowed Money $__________
10. Consolidated Interest Expense $__________
11. Capital Expenditures $__________
12. Dividends $__________
13. Cash Payments made in connection with
InfoScan Costs and Software Costs $__________
14. Cash Investments $__________
15. Sum of Lines C.9 through C.14 (Consolidated
</TABLE>
-3-
<PAGE> 95
<TABLE>
<S> <C> <C>
Fixed Charges) $
==========
16. Ratio of Line C.8 to C.15 ____ :
1.0
17. Line C.16 Ratio shall not be less than ____ :
1.0
</TABLE>
-4-
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 21,993
<SECURITIES> 0
<RECEIVABLES> 96,649
<ALLOWANCES> (4,583)
<INVENTORY> 0
<CURRENT-ASSETS> 121,231
<PP&E> 170,712
<DEPRECIATION> (106,480)
<TOTAL-ASSETS> 355,267
<CURRENT-LIABILITIES> 92,519
<BONDS> 1,848
0
0
<COMMON> 289
<OTHER-SE> 240,571
<TOTAL-LIABILITY-AND-EQUITY> 355,267
<SALES> 0
<TOTAL-REVENUES> 334,702
<CGS> 0
<TOTAL-COSTS> 297,818
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,053
<INCOME-PRETAX> 8,548
<INCOME-TAX> 4,047
<INCOME-CONTINUING> 4,166
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,166
<EPS-PRIMARY> .15
<EPS-DILUTED> .15
</TABLE>
