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EXHIBIT 10.15
RESTRUCTURING AGREEMENT,
Dated as of December 3, 1999
among
STOCKPOINT, INC., formerly known as
NEURAL APPLICATIONS CORPORATION,
as the Borrower,
and
THE NORTHERN TRUST COMPANY,
and
IOWA STATE BANK & TRUST
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RESTRUCTURING AGREEMENT
Dated as of December 3, 1999
THIS RESTRUCTURING AGREEMENT, dated as of December 3, 1999 (as it may
be amended or modified from time to time, this "Agreement"), is entered into by
and among STOCKPOINT, INC., formerly known as NEURAL APPLICATIONS CORPORATION, a
corporation organized under the laws of the State of Delaware (the "Borrower"),
THE NORTHERN TRUST COMPANY, an Illinois banking corporation ("Northern"), as
lead bank (the "Lead Bank") and as a lender to the Borrower, and IOWA STATE BANK
& TRUST, as Northern's participant (together with Northern, the "Lenders").
R E C I T A L S :
A Northern extended a line of credit (the "November 28, 1997 Line of
Credit") to the Borrower in the maximum principal amount of THREE MILLION
DOLLARS ($3,000,000), the Borrower's obligations relating to which being
evidenced by a promissory note dated as of November 28, 1997 (the "November 28,
1997 Note"), of the Borrower in favor of Northern.
B. ISB has purchased a $1,000,000.00 participating interest in the
November 28, 1997 Line of Credit.
C. Northern issued letters of credit (collectively, the "Letters of
Credit") in the maximum aggregate amount of $6,313,000 for the account of the
Borrower to support the repayment of certain debentures issued by the Borrower
(the "Debentures"), the Borrower's reimbursement obligations relating to which
being set forth in accompanying reimbursement agreements (collectively the "L/C
Reimbursement Agreements").
D. Iowa State Bank & Trust ("ISB"), an Iowa banking corporation, has
purchased a $2,000,000.00 participating interest in Northern's obligations
relating to the Letters of Credit.
E. Northern extended another line of credit (the "September 14, 1998
Line of Credit") to the Borrower in the maximum principal amount of TWO MILLION
DOLLARS ($2,000,000), the Borrower's obligations relating to which being
evidenced by a promissory note, dated as of September 14, 1998 (the "September
14, 1998 Note"), of the Borrower in favor of Northern.
F. The Borrower's obligations under and in relation to the November
28, 1997 Line of Credit, the Letters of Credit, and the September 14, 1998 Line
of Credit were guaranteed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and the sole original collateral
for these obligations was to be shares of UAL Corporation stock to be pledged by
▇▇. ▇▇▇▇▇ to secure his obligations under such guarantees.
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Consistent with the foregoing, ▇▇. ▇▇▇▇▇ ultimately delivered certificates to
Northern purporting to represent shares of UAL Corporation stock (the "Purported
UAL Stock Certificates").
G. Based on information obtained on December 1, 1998, the Lenders
believed and continue to believe that the Purported UAL Stock Certificates are
counterfeit. The Borrower states that its senior management (other than ▇▇.
▇▇▇▇▇) first learned that the certificates were alleged to be counterfeit on
December 3, 1998. ▇▇. ▇▇▇▇▇ has since become subject to an involuntary
bankruptcy petition. These constitute events of default under each promissory
note and the L/C Reimbursement Agreements, resulting, inter alia, in the
termination of the lines of credit.
H. The Borrower, Northern, ISB, and the Lead Bank have entered into
restructuring discussions regarding the existing events of default, particularly
in light of the Borrower's stated intent to provide for the payment in full of
all obligations owing to the Lenders through the consummation of a strategic
transaction such as an initial public offering of its common stock, and the
parties desire to amend the November 28, 1997 Note, the September 14, 1998 Note,
and the L/C Reimbursement Agreements to definitively reflect the terms of such a
restructuring, it being understood that the Lead Bank and the Lenders would not
have entered into such a restructuring in the absence of the Borrower's intent
(and its commitment to use its best efforts) to consummate such a strategic
transaction on or before June 30, 2001 and that, consequently, the Lead Bank and
the Lenders have materially relied thereupon in entering into this Agreement.
Therefore, the parties hereto agree, subject to the satisfaction of
the conditions precedent set forth in Section 11, to amend the November 28, 1997
Note, the September 14, 1997 Note, and the L/C Reimbursement Agreements as
follows:
1 SECTION ACKNOWLEDGMENTS OF AMOUNTS OWING
1.1 SECTION November 28, 1997 Line of Credit. Pursuant to the November 28, 1997
Note, Northern extended the November 28,1997 Line of Credit. The Borrower
acknowledges that the outstanding principal amount of such line of credit, as of
the date hereof, is $3,000,000.00 and that the accrued and unpaid interest on
such principal amount, as of November 30, 1999, is $218,969.52. The Borrower
further acknowledges that the November 27, 1997 Line of Credit has been
terminated and is no longer available to it.
1.2 SECTION September 14, 1998 Line of Credit. Pursuant to the September 14,
1998 Note, Northern extended the September 14, 1998 Line of Credit. The Borrower
acknowledges that the outstanding principal amount of such line of credit, as of
the date hereof, is $1,145,000.00 and that the accrued and unpaid interest on
such principal amount, as of November 30, 1999, is $79,412.17. The Borrower
further acknowledges that the September 14 1998 Line of Credit has been
terminated and is no longer available to it.
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1.3 SECTION Letter of Credit Fees. The Borrower acknowledges that the
aggregate face amount of the outstanding Letters of Credit is $6,313,000 and
that as of November 30, 1999, it owed an aggregate of $37,060.12 in fees
relating to the Letter of Credit.
1.4 SECTION Notes. The November 28, 1997 Note and the September 14, 1998
Note, as amended by the provisions of this Agreement, shall be collectively
referred to herein as the "Notes".
2 SECTION INTEREST AND FEES
2.1 SECTION Interest Rates. The unpaid principal amount of each Note from
time to time outstanding hereunder shall bear interest at the following rates
per year:
(a) before maturity, at the Prime Rate (as hereinafter defined); and
(b) after maturity, whether by acceleration or otherwise, until paid,
at a rate equal to two percent (2%) in addition to the Prime Rate.
"Prime Rate" shall mean that rate of interest per year announced from
time to time by Northern called its prime rate, which rate at any time may not
be the lowest rate charged by Northern. Changes in the rate of interest on the
Loans resulting from a change in the Prime Rate shall take effect on the date
set forth in each announcement for a change in the Prime Rate.
2.2 SECTION Payment. Absent maturity (whether by acceleration or
otherwise), interest and Letter of Credit fees shall be due and payable in
arrears on the last day of the calendar month. Consequently, after the payment
required pursuant to Section 11.5 hereof, the next regularly scheduled payment
of interest and Letter of Credit fees shall relate to the December, 1999
calendar month and shall be due and payable on December 31, 1999.
3 SECTION STATED MATURITY
3.1 SECTION Stated Maturity. The stated maturity of the September 14, 1998
Note shall be extended to June 30, 2001. The stated maturity of the November 28,
1997 Note shall remain November 2, 2002. The stated expiry of the Letters of
Credit shall remain November 29, 2002.
4 SECTION WAIVER OF EXISTING DEFAULTS
4.1 SECTION Waiver as to the Borrower Only. Upon the satisfaction of the
conditions of Section 11 hereof, and subject to the provisions of Section 12.2
hereof, the Lenders hereby waive, as to the Borrower only (and specifically not
as to any guarantor), any and all Events of Defaults or defaults existing as of
the date hereof under any of the Notes or the L/C Reimbursement Agreements;
provided, however, that such waiver shall under no circumstances
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nullify or otherwise affect the termination of the November 28, 1997 and
September 14, 1998 Lines of Credit, acknowledged in Sections 1.1 and 1.2,
respectively, of this Agreement. This waiver shall continue only until the
earlier to occur of its termination pursuant to Section 12.2 hereof and June 30,
2001.
4.2 SECTION No Waiver as to ▇▇▇▇▇▇ ▇ ▇▇▇▇▇. Without limiting the
generality of Section 4.1 hereof, the Lenders, in no manner whatsoever, waive
any of (but instead expressly reserve any and all) of their rights, claims,
powers or remedies against ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ under any guaranty or other agreement
and/or under applicable law. Specifically, but without limiting the generality
of the foregoing, the Lenders expressly reserve the right to exercise, in their
sole and absolute discretion (including at times as they determine advisable in
their sole and absolute discretion), any and all of such rights, claims, powers
or remedies against ▇▇. ▇▇▇▇▇, whether in the context of his pending involuntary
bankruptcy case or otherwise, all as if the Lenders had not entered into this
Agreement (including, without limitation, as if the Lenders had not extended the
waiver of defaults set forth in Section 4.1 hereof).
5 SECTION PAYMENTS AND PREPAYMENTS
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5.1 SECTION Mandatory Prepayment and/or Cash Collateralization; Strategic
Transaction. If, at any time on or before June 30, 2001, the Borrower shall
enter into or otherwise consummate one of the following (each, a "Strategic
Transaction"): (i) an initial public offering of common stock of or other equity
security of Borrower; (ii) a sale of substantially, all of Borrower's assets;
(iii) any other strategic transaction (including a merger or a joint venture)
involving substantially all of borrower's assets or a major component of
Borrower's business; provided, however, that the sale of the stock in or any
assets of Neural, Inc., a wholly owned subsidiary of the Borrower, as it is
constituted as of the date hereof, shall not constitute a Strategic Transaction
and with respect to Neural, Inc. (as it is constituted as of the date hereof),
the Borrower without being in violation of this Agreement, may either sell the
stock of Neural, Inc. or cause the assets of Neural, Inc. to be sold after
sufficiently providing for the liabilities of Neural, Inc. to be satisfied or
assumed by the purchaser and use the net proceeds realized from such a
transaction to be used in the operation of the Borrower's business, including
first towards the satisfaction of the Bridge Financing, so long as such net
proceeds do not exceed Three Million Dollars ($3,000,000), and such net proceeds
(whether or not they exceed $3,000,000) shall be treated as provided in Section
10.6(c) hereof. Consistent with the foregoing, any transaction involving Neural,
Inc. where, prior to or in connection with such transaction, Neural Inc. is
reconstituted in any manner from its assets, liabilities, and business
operations as of the date hereof (as a result of the transfer of assets from the
Borrower or otherwise) shall constitute a Strategic Transaction within the
meaning of this Agreement. Contemporaneously with the consummation of a
Strategic Transaction, (a) the Notes (and all interest and expenses owing in
connection therewith) automatically shall be immediately due and owing and shall
be paid in full in cash, (b) the Borrower shall pay in full the Debentures or to
obtain the cancellation of the Letters of Credit (whether through procuring
replacement letters of credit (or otherwise), and (c) in the event that the
Borrower is unable either to pay in full the Debentures or to obtain replacement
letters of credit, the Borrower shall provide the Lead Bank with cash collateral
equal to 120% of the outstanding amount of the Letters of Credit.
6 SECTION BRIDGE FINANCING
6.1 SECTION Bridge Financing. The Borrower has informed the Lenders that
it will seek from individuals and/or financial institutions other than the
Lenders (the "Bridge Lenders") a line of credit in the amount of $2.5 million at
an interest rate not to exceed the greater of (a) the Prime Rate and (b) LIBOR
plus 1.75% per annum to be secured by a first priority security interest and
lien in, to, and on substantially all of the Borrower's assets and the assets of
its subsidiary, Neural, Inc. (the "Bridge Financing") and that one of the
conditions precedent to the Bridge Financing may be that the Lead Bank and the
Lenders acknowledge that all obligations of the Borrower in favor of the Lead
Bank or the Lenders are unsecured as of the date hereof and that they have no
contractual right to prevent the Borrower from granting the security interests
and liens in favor of the Bridge Lenders contemplated by the Bridge Financing.
The Lead Bank and the Lenders hereby commit to deliver such an acknowledgment
directly to the Bridge Lenders upon the satisfaction of the conditions of
Section 11 hereof.
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7 SECTION AGREEMENT AS TO PRE-CLOSING DATE
PROFESSIONAL FEES AND EXPENSES OF THE LENDERS
7.1 SECTION Pre-Closing Fees and Expenses. The Lenders estimate the
aggregate amount of professional fees and expenses as of the date of the
execution of this Agreement for which they are entitled to receive reimbursement
from the Borrower to be $240,644.51. Notwithstanding any other provision of this
Agreement to the contrary, the Lenders agree that they shall limit the amount of
professional fees and expenses for which they will seek reimbursement from the
Borrower for the period from November 30, 1998 to and through the date of the
execution and delivery of this Agreement to an aggregate of $204,547.83, and the
Borrower agrees that it shall reimburse the Lead Bank in such an aggregate
amount of $204,547.83 on the earlier to occur of: (i) the consummation of a
Strategic Transaction and (ii) June 30, 2001. However, consistent with the
provisions of Section 4.2 hereof, the Lead Bank and the Lenders in no manner
limit (but instead expressly reserve) their right to collect the balance of any
such fees and expenses (as well as any other fees and expenses, whether arising
in connection with the Notes, any other Loan Document, or any guaranty) from
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, including the right to assert a claim therefor in his pending
involuntary bankruptcy case or in any subsequent proceeding.
8 SECTION UNDERTAKING TO DELIVER COVENANT
NOT TO ▇▇▇ AND COMPLETE RELEASE
8.1 SECTION Covenant Not to ▇▇▇ and Complete Release. Upon the payment in
full of all of the Borrowers' obligations under the Notes (as limited as to the
Borrower only by Section 7.1 hereof) and the L/C Reimbursement Agreements, and
subject to the provisions of Section 4.2 hereof and the last sentence of Section
7.1 hereof, (a) the Lead Bank and the Lenders shall deliver to the Borrower a
covenant not to ▇▇▇ relating to the Notes and the Letters of Credit
substantially in the form of Exhibit A hereto, and (b) the Borrower
contemporaneously shall deliver to the Lead Bank and the Lenders a complete
release substantially in the form of Exhibit B hereto.
9 SECTION REPRESENTATIONS AND WARRANTIES
To induce the Lenders, the Issuer and the Lead Bank to enter into this
Agreement, the Borrower represents and warrants unto the Lead Bank, and each
Lender that:
9.1 SECTION Organization. The Borrower is a corporation existing and in
good standing under the laws of the state indicated in the heading; any
Subsidiary is a corporation or partnership duly existing and in good standing
under the laws of the state of its formation as indicated on Schedule 9.5; the
Borrower and any Subsidiary are duly qualified, in good standing and authorized
to do business in each other jurisdiction where, because of the nature of their
activities or properties, such qualification is required and where the failure
to be so qualified may have a Material Adverse Effect; and the Borrower and any
Subsidiary have the power and authority to own their properties and to carry on
their businesses as now being conducted.
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9.2 SECTION Authorization; No Conflict. The execution and delivery of this
Agreement is within the Borrower's corporate powers, has been authorized by all
necessary corporate action, have received all necessary governmental approval
(if any shall be required) and do not and will not contravene or conflict with
any provision of law applicable to the Borrower or of the charter or by-laws of
the Borrower or any Subsidiary or of any agreement binding upon the Borrower or
any Subsidiary.
9.3 SECTION Taxes. Except in the case of state and local tax returns for
the fiscal year ended December 31, 1998 the Borrower and any Subsidiary have
filed or caused to be filed all federal, state and local tax returns which, to
the knowledge of the Borrower or any Subsidiary, are required to be filed, and
have paid or have caused to be paid all taxes as shown on such returns or on any
assessment received by them, to the extent that such taxes have become due
(except for current taxes not delinquent and taxes being contested in good faith
and by appropriate proceedings for which adequate reserves have been provided on
the books of the Borrower or the appropriate Subsidiary, and as to which no
foreclosure, distraint, sale or similar proceedings have been commenced).
Specifically, the Borrower is current in the filing of all of its federal income
tax returns, including for the calendar year ending December 31, 1998. The
Borrower and any Subsidiary have set up reserves which are adequate for the
payment of additional taxes for years which have not been audited by the
respective tax authorities.
9.4 SECTION Litigation and Contingent Liabilities. No litigation
(including derivative actions), arbitration proceedings or governmental
proceedings are pending or threatened against the Borrower which would (singly
or in the aggregate), if adversely determined, have a Material Adverse Effect,
except as set forth (including estimates of the dollar amounts involved) on
Schedule 9.4 hereto.
9.5 SECTION Subsidiaries. Attached hereto as Schedule 9.5 is a correct
and complete list of all Subsidiaries and Affiliates of the Borrower.
9.6 SECTION ERISA/Health. The Borrower does not maintain a Plan, but only
administers a 401(k) plan for its employees. The Borrower maintains a
self-funded health insurance plan, which represents a scheduled contingent
liability of no more than $100,000. Each of the foregoing complies in all
material respects with all applicable requirements of law and regulations.
9.7 SECTION Strategic Transaction Acknowledgment. The Borrower understands
and acknowledges that the Lead Bank and the Lenders would not have entered into
the restructuring set forth in this Agreement in the absence of the Borrower's
stated intent to use its best efforts to consummate a Strategic Transaction on
or before June 30, 2001 and that, consequently, the Lead Bank and the Lenders
have materially relied thereupon in entering into this Agreement; provided,
however, that the failure to actually consummate a Strategic Transaction on or
before such date shall not constitute an Event of Default.
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10 SECTION COVENANTS
Until all Letters of Credit have expired or have been earlier
terminated and all Obligations (other than those of the Obligations which
survive any termination of this Agreement) are paid and fulfilled in full, the
Borrower agrees that it shall, and shall cause any Subsidiary to, comply with
the following covenants, unless the Lead Bank consents otherwise in writing:
10.1 SECTION Corporate Existence, Mergers, Etc. The Borrower and any
Subsidiary shall preserve and maintain its corporate existence, rights,
franchises, licenses and privileges, and will not liquidate, dissolve, or merge,
or consolidate with or into any other corporation, or sell, lease, transfer or
otherwise dispose of all or a substantial part of its assets, except that:
(a) Any Subsidiary may merge or consolidate with or into the Borrower
or any one or more wholly-owned Subsidiaries; and
(b) Any Subsidiary may sell, lease, transfer or otherwise dispose of
any of its assets to the Borrower or one or more wholly-owned
Subsidiaries.
10.2 SECTION Reports, Certificates and Other Information. The Borrower
shall furnish to the Lead Bank and each Lender:
(a) Interim Reports. Within 30 days after the end of each month of
each fiscal year of the Borrower, a copy of an unaudited financial
statement of the Borrower and any Subsidiary prepared on a
consolidated basis, signed by an authorized officer of the Borrower
and consisting of at least (i) a balance sheet as at the close of such
month, (ii) a statement of earnings, for such month, for the period
from the beginning of such fiscal year to the close of such month and
for the comparable periods in the preceding fiscal year, (iii) a
statement of cash flows for such month and for the period from the
beginning of such fiscal year to the close of such month, and (iv) a
statement of cash flows, prepared and delivered weekly, that provides
results of the actual cash flow for the preceding calendar week and
further provides a rolling 90 day cash flow forecast.
(b) Audit Report. Within 90 days after the end of each fiscal year of
the Borrower, a copy of an annual audit report of the Borrower and any
Subsidiary prepared on a consolidated basis and in conformity with
generally accepted accounting principles applied on a consistent
basis, duly certified by independent certified public accountants of
recognized standing satisfactory to the Lenders, accompanied by an
opinion and a certificate from such accountants containing a
computation of, and showing compliance with, any financial restriction
contained in this Agreement, and to the effect that, in making the
examination necessary for the signing of such annual audit report by
such accountants, they have not become aware of any Event of Default
or any Unmatured Event of Default, or if they have become aware of any
such event, describing it.
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(c) Compliance Certificates. Contemporaneously with the furnishing of
a copy of each annual audit report and of each interim report provided
for in this Section, a certificate in the form of Exhibit C dated the
date of such annual report or such interim report and signed by any
one of the President, the Chief Financial Officer or the Treasurer of
the Borrower, to the effect that no Event of Default or Unmatured
Event of Default has occurred and is continuing, or, if there is any
such event, describing it and the steps, if any, being taken to cure
it, and showing compliance with the financial restrictions set forth
in Sections 10.4 and 10.11.
(d) Notice of Default, Litigation and ERISA Matters. Promptly and in
any event within three days after learning of the occurrence of any of
the following, written notice to the Lead Bank and each Lender
describing the same and the steps being taken by the Borrower or any
Subsidiary affected in respect thereof: (i) the occurrence of an Event
of Default or an Unmatured Event of Default; (ii) the institution of,
or any adverse determination in, any litigation, arbitration or
governmental proceeding which is material to the Borrower or any
Subsidiary on a consolidated basis; (iii) the occurrence of a
Reportable Event under, or the institution of steps by the Borrower or
any Subsidiary to withdraw from, or the institution of any steps to
terminate, any Plan; or (iv) any change in the Borrower's status as a
"C corporation" for federal income tax purposes.
(e) Subsidiaries. Promptly from time to time a written report of any
changes in the list of its Subsidiaries and Affiliates set forth on
Schedule 9.5.
(f) Strategic Transaction. Except as provided in the succeeding
sentence of this Section 10.2(f), promptly provide, on a continuing
basis, all information relating to any possible Strategic Transaction
(including, without limitation, any possible initial public offering
of common stock), including, without limitation, copies of any and all
valuations of the Borrower's assets or business operations undertaken
in connection therewith and/or any and all securities law filings made
or to be made in connection therewith. The Borrower does not need to
provide such information to the extent that it does not relate to an
initial public offering of common stock and further relates to a
unsolicited proposal made to the Borrower by an entity that the
Borrower reasonably believes does not have the financial ability to
consummate such a proposal.
(g) Other Information. From time to time such other information,
financial or otherwise, as the Lenders may reasonably request.
10.3 SECTION Inspection. Upon not less than 48 hours' prior notice (which
may be oral and need not be written) to the Borrower from the Lead Bank (except
if an Event of Default shall have occurred and be continuing, in which case
prior notice to the Borrower shall not be required), the Borrower and any
Subsidiary shall permit the Lead Bank and each Lender and their respective
representatives at any time during normal business hours to inspect the
properties of the Borrower and such Subsidiary and to inspect and make copies of
their books and records.
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10.4 SECTION Financial Requirements. The Borrower and any Subsidiary shall
continue to pay all of their respective operating expenses (including (a)
interest owning on the debentures, (b) interest, letters of credit fees, and
other fees and expenses owing to Lenders, and (c) fees and expenses of
completing the Borrower's certified audit for 1998 fiscal year) as they come due
in the ordinary course.
10.5 SECTION Indebtedness, Liens and Taxes. The Borrower and any
Subsidiary shall:
(a) Indebtedness. Not incur, permit to remain outstanding, assume or
in any way become committed for indebtedness in respect of borrowed
money, except (i) indebtedness existing on the date of this Agreement
shown on the financial statements furnished to the Lenders before this
Agreement was signed, including any extensions or renewals thereof so
long as the principal amount of such indebtedness is not increased by
such extension or renewal; (ii) the Bridge Financing; and (iii)
indebtedness incurred after the date hereof in the nature of
Capitalized Lease Liabilities and/or purchase money debt, provided
that the aggregate amount thereof outstanding at any one time does not
exceed (a) $750,000 in calendar 1999, (b) $1,500,000 in calendar 2000,
and (c) $1,500,000 through June 30, 2001 (assuming a total year
limitation of $2,500,000) for the Borrower and all Subsidiaries and
otherwise does not have a Material Adverse Effect on the Borrower and
its business operations at any time.
(b) Liens. Not create, suffer or permit to exist any lien or
encumbrance of any kind or nature upon any of their assets now or
hereafter owned or acquired, or acquire or agree to acquire any
property or assets of any character under any conditional sale
agreement or other title retention agreement, but this Section 10.5(b)
shall not be deemed to apply to liens, encumbrances and security
interests listed on Schedule 10.5(b) hereto, including, without
limitation, (ii) liens in favor of the Bridge Lenders to secure the
Bridge Financing.
(c) Taxes. (i) Not change, or permit any change to occur in, the
Borrower's status as a " C corporation" for federal income tax
purposes; and (ii) pay and discharge all taxes, assessments and
governmental charges or levies imposed upon them, upon their income or
profits or upon any properties belonging to them, prior to the date on
which penalties attach thereto, and all lawful claims for labor,
materials and supplies when due, except that no such tax, assessment,
charge, levy or claim need be paid which is being contested in good
faith by appropriate proceedings and as to which adequate reserves
shall have been established, and as to which no foreclosure,
distraint, sale or similar proceedings have commenced which, if not
stayed or terminated, would have a Material Adverse Effect.
(d) Keep Well Agreements. Not assume, guarantee, indorse or otherwise
become or be responsible in any manner (whether by agreement to
purchase any obligations, stock, assets, goods or services, or to
supply or advance any funds, assets, goods or services, or otherwise)
with respect to the obligation of any other Person, except
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for the indorsement of negotiable instruments for deposit or
collection in the ordinary course of business.
10.6 SECTION Capital Structure and Dividends; Ownership of Subsidiaries.
(a) Capital Structure and Dividends. Other than in the context of a
Strategic Transaction or as provided in subsection (c) hereof, neither
the Borrower nor any Subsidiary shall purchase or redeem, or obligate
itself to purchase or redeem, any shares of the Borrower's capital
stock, of any class, issued and outstanding from time to time; or
declare or pay any dividend (other than dividends payable in its own
common stock or to the Borrower) or make any other distribution in
respect of such shares other than to the Borrower.
(b) Ownership of Subsidiaries. Except as provided in subsection (c)
hereof, the Borrower shall continue to own, directly or indirectly,
the same (or greater) percentage of the stock of each Subsidiary that
it held on the date of this Agreement, and no Subsidiary shall issue
any additional securities other than to the Borrower.
(c) Neural, Inc. The Borrower may enter into any equity or sale
transaction involving Neural, Inc., its wholly owned subsidiary, as it
is presently constituted so long as it is with a third party on arm's
length terms. In the event that the consideration paid by such third
party as part of an equity transaction is required by the terms of the
definitive agreements relating thereto ("Neural Agreement") to remain
in Neural, Inc. for operational and capital expenditure purposes,
there shall be no violation of the provisions of this Agreement. In
the event that the consideration paid by such third party is not
required pursuant to the provisions of the Neural Agreement to remain
in Neural, Inc. for such purposes, but instead may be distributed to
the Borrower, such amount (up to the amount then owing to the Bridge
Lenders) shall be distributed to the Bridge Lenders for application
against the amounts outstanding under the Bridge Financing, with the
balance, if any, of such amount in excess of $500,000 being set aside
by the Borrower and not used for any purpose (operational or
otherwise) pending an agreement between the Borrower and the Lead
Bank, on behalf of the Lenders, regarding the disposition thereof.
10.7 SECTION Maintenance of Properties. The Borrower and any Subsidiary
shall maintain, or cause to be maintained, in a manner consistent with their
past practices, all their properties (whether owned or held under lease) in good
repair, working order and condition, and from time to time make, or cause to be
made, in a manner consistent with their past practices, all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times.
10.8 SECTION Insurance. The Borrower and any Subsidiary shall maintain
insurance with responsible companies in such amounts and against such risks as
is reasonably required by the
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Lenders and, at a minimum, insurance on their business, fixed assets, inventory
and other properties, workmen's compensation or similar insurance as required by
law, and adequate public liability (including product liability) insurance
against claims for personal injury, death or property damage arising out of its
products, facilities or operations, as is usually carried by similar businesses
conducting operations in similar areas.
10.9 SECTION Compliance With Law. The Borrower and any Subsidiary shall
comply in all respects with all applicable laws, rules, regulations and orders,
except where the failure to so comply would not have a Material Adverse Effect.
10.10 SECTION Environmental Covenant. The Borrower will, and will cause each
of its Subsidiaries to use and operate all of its facilities and properties
(including handling all Hazardous Materials) in material compliance with all
Environmental Laws.
10.11 SECTION Capital Expenditures. Neither the Borrower nor any Subsidiary
shall purchase or otherwise acquire (including, without limitation, acquisition
by way of capitalized lease), or commit to purchase or otherwise acquire, any
fixed asset if, after giving effect to such purchase or other acquisition, the
aggregate cost of all fixed assets purchased or otherwise acquired by the
Borrower and its Subsidiaries on a consolidated basis in any one fiscal year of
the Borrower would exceed the projected capital expenditures of the Borrower and
its Subsidiaries for the following calendar years (or portion of calendar
years): (a) $1,000,000 in calendar year 1999, (b) $2,500,000 in calendar year
2000, and (c) $2,500,000 through June 30, 2001 (assuming a total year limitation
of $3,500,000).
10.12 SECTION Remuneration. Except as provided in the immediately two
succeeding sentences, neither the Borrower nor any Subsidiary shall pay salaries
or other remuneration to officers or employees who are stockholders (or, in the
case of a stockholder which is a trust, officers or employees who are grantors
and/or beneficiaries of such trust, as appropriate) of the Borrower or any
Subsidiary. The Borrower may continue to pay the salaries of employees or
officers (other than ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇) who are direct or indirect
stockholders and who are ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, or any other member of senior management set forth on Schedule 10.12
hereof (a "Senior Manager") so long as such compensation is not at a rate or in
an amount in excess of that which is in effect on the date of this Agreement of
which the Lenders have been advised in writing. The Borrower may continue to
grant any employee or officer who is not a Senior Manager, or any employee or
officer who is a Senior Manager whose name appears on Schedule 10.12 hereof
(after satisfying the Lead Bank as to the market necessity therefor) such
compensation packages as the Borrower reasonably believes are necessary to
maintain compensation at market levels. Specifically, (a) no compensation shall
be paid to ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇, (b) no amount shall be payable by the
Borrower to Iowa Jet Services (presently scheduled in the amount of $99,280.50)
(the "Iowa Jet Receivable") unless and until the later of the following occurs:
(i) the Borrower's liability for such amount is established pursuant to a final
and nonappealable order or judgment of a court of competent jurisdiction and
(ii) all other property of the bankruptcy estate of Iowa Jet Services has been
liquidated, and (c) no amount shall be paid to ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇▇▇▇▇ in
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reimbursement of any expenses, including, without limitation, the scheduled
$59,170.08 in travel expenses. Nothing set forth herein shall be deemed to
impair in any manner ISB's rights and interests, as a secured creditor of Iowa
Jet Services, in the Iowa Jet Receivable.
10.13 SECTION Further Assurances. The Borrower agrees that, from time to
time at its own expense, the Borrower will promptly execute and deliver all
further instruments and documents, and take all further action, that may be
necessary or desirable, as reasonably determined by the Lead Bank, in order to
perfect, preserve and protect any lien or security interest granted or purported
to be granted by any Collateral Document or to enable the Lead Bank to exercise
and enforce its rights and remedies thereunder with respect to any collateral.
11 SECTION CONDITIONS TO EFFECTIVENESS OF AGREEMENT
This Agreement and the amendment of the November 28, 1997 Note, the
September 14, 1998 Note, and the L/C Reimbursement Agreements provided for
herein shall become effective as of the date hereof upon satisfaction of the
following conditions precedent:
11.1 SECTION Letters of Credit. There shall have been no demand for
payment made under any of the Letters of Credit.
11.2 SECTION Agreement. Each party hereto shall have received a counterpart
of this Agreement which has been executed by all of the parties hereto.
11.3 SECTION Documentation. The Lead Bank shall have received all of the
following, each duly executed and dated the closing date hereof or such earlier
date as is provided for herein or in an Exhibit hereto or is satisfactory to the
Lead Bank, in form and substance satisfactory to the Lead Bank and its counsel,
at the expense of the Borrower, and in such number of signed counterparts as the
Lead Bank may request (except for the Notes, of which only the originals shall
be signed):
(a) Borrower Resolution. A copy of a resolution of the Board of
Directors of the Borrower authorizing or ratifying the execution,
delivery and performance, respectively, of this Agreement, the Notes
and all other Loan Documents to be executed by the Borrower, certified
by the Secretary of the Borrower.
(b) Borrower Articles of Incorporation and By-laws. A certificate of
the Secretary of the Borrower to the effect that true and correct
copies of the articles of incorporation and the by-laws of the
Borrower the in effect are attached as exhibits to such certificate.
(c) Borrower Certificate of Incumbency. A certificate of the Secretary
of the Borrower certifying the names of the officer or officers of the
Borrower authorized to sign this Agreement, the Notes and the other
Loan Documents to be executed by the
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Borrower, together with a sample of the true signature of each such
officer (the Lead Bank and each Lender may conclusively rely on such
certificate until formally advised by a like certificate of any
changes therein).
(d) Opinion of Counsel to the Borrower. An opinion of counsel to the
Borrower to such effect as the Lead Bank may reasonably require.
(e) Insurance Policies. Certified copies of all liability, casualty,
and "at risk" insurance policies of the Borrower.
(f) Stockpoint/▇▇▇▇▇ Agreement. A copy of the Stockpoint/▇▇▇▇▇
Agreement (as such term is defined in Section 12.3 hereof)
substantially in the form of Exhibit D hereto, which has been fully
executed by the parties thereto.
(g) Miscellaneous. Such other documents and certificates as the Lead
Bank may reasonably request.
11.4 SECTION Bridge Financing. The Lead Bank shall have received copies of
the executed agreements and other documents relating to the Bridge Financing.
11.5 SECTION Payment of Accrued Interest and Letter of Credit Fees. The
Lead Bank, on behalf of the Lenders, shall have received payment in full of all
accrued and unpaid interest on the Notes and unpaid Letter of Credit Fees as of
November 30, 1999, which aggregate $335,441.81.
11.6 SECTION ▇▇▇▇▇▇ ▇. ▇▇▇▇▇. The Lenders shall have entered into such
agreement relating to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ substantially in the form of Exhibit E
hereto (the "▇▇▇▇▇▇ ▇▇▇▇▇/Lender Agreement"), which agreement will not be
subject to bankruptcy court approval, whether to be obtained before or after
closing.
12 SECTION DEFAULT
12.1 SECTION Events of Default. Each of the following occurrences is hereby
defined as an "Event of Default" under each of the Notes and the L/C
Reimbursement Agreements (unless waived in writing by the Lead Bank on behalf of
the Lenders in its sole and absolute discretion):
(a) Nonpayment. The Borrower shall fail to make any payment required
pursuant to Section 5.1 hereof when and as due and, with respect to
any payment other than a payment required pursuant to Section 5.1
hereof, the Borrower shall fail to make any payment of principal,
interest, Letter of Credit fees or other amounts payable under either
Note (as amended hereby) when and as due, which shall not be cured
within three (3) business days of the required date of such payment;
or
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(b) Loan Documents Not Enforceable, etc. Any Loan Document shall
(except in accordance with its terms), in whole or in part, terminate,
cease to be effective or cease to be the legal, valid, binding and
enforceable obligation of the Borrower or any other party thereto
(other than the Lead Bank or any Lender); or the Borrower or any other
party to a Loan Document (other than the Lead Bank or any Lender), or
any Affiliate of the Borrower or such other party, shall, directly or
indirectly, contest in any manner the effectiveness, validity, binding
nature or enforceability of any Loan Document; or
(c) Cross-Default. There shall occur any default or event of default,
or any event which might become such with notice or the passage of
time or both, or any similar event, or any event which requires the
prepayment of borrowed money or the acceleration of the maturity
thereof (other than the Debentures), under the terms of any evidence
of indebtedness or other agreement issued or assumed or entered into
by the Borrower, any Subsidiary, or under the terms of any indenture,
agreement or instrument under which any such evidence of indebtedness
or other agreement is issued, assumed, secured or guaranteed (except
for any such event which is being contested in good faith and by
appropriate proceedings, and as to which adequate reserves shall have
been established, and which involves indebtedness other than for
borrowed money), and such event shall continue beyond any applicable
period of grace. Consistent with the foregoing, a cross-default with
respect to the Debentures shall occur only upon the expiration of any
applicable cure period with respect to a payment obligation thereunder
and no cross-default shall be deemed to occur with respect to the CEBA
or Kirkwood debt so long as the Borrower is undertaking appropriate
measures to either pay such indebtedness in full or otherwise ensure
that any attempted collection of either such indebtedness will not
have a Material Adverse Effect; or
(d) Dissolutions, etc. The Borrower shall fail to comply with any
provision concerning its existence or that of any Subsidiary or any
prohibition against dissolution, liquidation, merger, consolidation or
sale of assets; or
(e) Warranties. Any representation, warranty, schedule, certificate,
financial statement, report, notice or other writing furnished to the
Lead Bank or any Lender by or on behalf of the Borrower or any other
party to a Loan Document (other than any Lender or the Lead Bank) is
false or misleading in any material respect on the date as of which
the facts therein set forth are stated or certified; or
(f) Change in Control. Other than with respect to a Strategic
Transaction, any Person presently not in control of the Borrower shall
obtain control directly or indirectly of the Borrower, whether by
purchase or gift of stock or assets, by contract, or otherwise; or
(g) ERISA. Any Reportable Event shall occur under ERISA in respect of
any Plan; or
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(h) Litigation. Any judgment or order for the payment of money in
excess of $250,000 or judgments in any number and of any individual
amount that, in the aggregate, exceed $500,000 shall be rendered
against the Borrower or any Subsidiary and either (i) enforcement
proceedings shall have been commenced by any creditor upon such
judgment or order; or (ii) there shall be any period of 20 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(i) Noncompliance with this Agreement or Other Loan Document. The
Borrower or any other party to a Loan Document (other than any Lender
or the Lead Bank) shall fail to comply with any provision hereof or of
any other Loan Document, which failure does not otherwise constitute
an Event of Default, and such failure shall continue for ten days
after written notice thereof to the Borrower by the Lead Bank; or
(j) Letters of Credit. Any demand for payment shall have been made
under any of the Letters of Credit; or
(k) ▇▇▇▇▇▇ ▇▇▇▇▇/Lender Agreement. The ▇▇▇▇▇▇ ▇▇▇▇▇/Lender Agreement
shall have been subsequently repudiated by ▇▇. ▇▇▇▇▇ in any manner or
otherwise vitiated in any respect, whether by an order of the
bankruptcy court or otherwise;
(l) Bankruptcy. Any bankruptcy, insolvency, reorganization,
arrangement, readjustment, liquidation, dissolution, or similar
proceeding, domestic or foreign, is instituted by or against the
Borrower or any Subsidiary and, if instituted against the Borrower or
any Subsidiary, is consented to or acquiesced in by the Borrower or
such Subsidiary or remains for 45 days undismissed; or the Borrower,
any Subsidiary shall take any step toward, or to authorize, such a
proceeding; or
(m) Insolvency. The Borrower or any Subsidiary shall become insolvent
(as defined in 11 U.S.C. ss. 101(32)(A)(1994)), generally shall fail
or be unable to pay its debts as they mature (other than the trade
debts set forth on Schedule 12.1(m) hereto, which the Borrower
disputes), shall admit in writing its inability to pay its debts as
they mature, shall make a general assignment for the benefit of its
creditors, shall enter into any composition or similar agreement, or
shall suspend the transaction of all or a substantial portion of its
usual business.
12.2 SECTION Remedies. Upon the occurrence of any Event of Default set
forth in subsections (a)-(k) of Section 12.1 and during the continuance thereof
and in addition to any other rights under the Notes or the L/C Reimbursement
Agreements, the waiver of existing defaults set forth in Section 4.1 hereof as
to the Borrower only shall automatically terminate (all without action of any
kind on the part of the Lead Bank or the Lenders), and the Lead Bank, upon the
direction of the Lenders (which direction the Lenders may or may not give in
each such instance and at such time(s) as they determine in their sole and
absolute discretion), shall (i)
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declare the Notes and any other amounts owed to the Lead Bank and the Lenders to
be immediately due and payable whereupon the Notes and any other amounts owed to
the Lead Bank and the Lenders shall forthwith become due and payable, (ii)
require the Borrower to supply the Lead Bank with cash collateral to secure the
Borrower's reimbursement obligations with respect to (a) the undrawn face amount
of any issued and unexpired Letters of Credit and (b) any unreimbursed amount in
respect of amounts drawn under any Letters of Credit (whether expired or
unexpired). Upon the occurrence of any Event of Default set forth in subsections
(l)-(m) of Section 12.1, the waiver of existing defaults set forth in Section
4.1 hereof as to the Borrower only shall automatically terminate (all without
action of any kind on the part of the Lead Bank or the Lenders), and (i) the
Notes and any other amounts owed to the Lead Bank and the Lenders shall be
immediately and automatically due and payable and (ii) the cash collateral
referred to in clause (ii) of the immediately preceding sentence shall be
immediately and automatically due to the Lead Bank, all without action of any
kind on the part of the Lead Bank or the Lenders. The Borrower expressly waives
presentment, demand, notice or protest of any kind in connection herewith. The
Lead Bank shall promptly give the Borrower notice of any such declaration, but
failure to do so shall not impair the effect of such declaration. No delay or
omission on the part of the Lead Bank or any of the Lenders in exercising any
power or right hereunder or under any Note shall impair such right or power or
be construed to be a waiver of any Event of Default or any acquiescence therein,
nor shall any single or partial exercise of any power or right hereunder
preclude other or further exercise thereof, or the exercise of any other power
or right.
12.3 SECTION Stockpoint/▇▇▇▇▇ Agreement. The Borrower and ▇▇▇▇▇▇ ▇▇▇▇▇ are
expected to enter into a settlement agreement (substantially in the form of
Exhibit D hereto) (the "Stockpoint/▇▇▇▇▇ Agreement"), whereby, in consideration
of the resolution of potential claims that the Borrower may or may not be able
to assert against ▇▇▇▇▇▇ ▇▇▇▇▇, (a) ▇▇. ▇▇▇▇▇ will transfer (or agree to the
cancellation of) certain (if not all) of the stock options and/or certain (but
not all) of the stock he presently holds or controls in the Borrower, but (b)
▇▇. ▇▇▇▇▇ will be permitted to retain and/or dispose of prior to the
consummation of any Strategic Transaction certain of the stock he presently
holds or controls in the Borrower. Stockpoint acknowledges that the Lenders are
not agreeing to be parties to the Stockpoint/▇▇▇▇▇ Agreement and that the
Lenders shall have no liability in connection therewith. The Lead Bank and the
Lenders acknowledge that the execution and delivery of the Stockpoint/▇▇▇▇▇
Agreement, so long as such execution and delivery occurs prior to the closing
hereunder, shall constitute neither an Event of Default under the Notes or this
Agreement nor a default under the ▇▇▇▇▇▇ ▇▇▇▇▇/Lender Agreement.
13 SECTION DEFINITIONS
13.1 SECTION Definitions. The definitions are set forth in Schedule I
hereof.
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14 SECTION MISCELLANEOUS
14.1 SECTION Waivers, Amendments, Etc. The provisions of this Agreement and
of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Lenders. No failure or delay on the part of the Lead
Bank, any Lender or the holder of any Note in exercising any power or right
under this Agreement or any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power or right
preclude any other or further exercise thereof or the exercise of any other
power or right. No notice to or demand on the Borrower in any case shall entitle
it to any notice or demand in similar or other circumstances. No waiver or
approval by the Lead Bank, any Lender or the holder of any Note under this
Agreement or any other Loan Document shall, except as may be otherwise stated in
such waiver or approval, be applicable to subsequent transactions. No waiver or
approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.
14.2 SECTION Notices. All notices and other communications provided to any
party hereto under this Agreement or any other Loan Document shall be in writing
(except as otherwise specifically provided in this Agreement) or by facsimile
and addressed, delivered or transmitted to such party at its address or
facsimile number set forth below its signature hereto or set forth in the Lender
Assignment Agreement or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted and the party
giving such notice shall have received (including either through telephonic
communication initiated by it or telephonic communication received by it)
telephonic, machine, or other confirmation that such notice has been received by
the intended recipient.
14.3 SECTION Nonwaiver; Cumulative Remedies. No failure to exercise, and no
delay in exercising, on the part of the Lead Bank or any Lender, any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies of the Lead Bank and the Lenders herein provided are cumulative and not
exclusive of any rights or remedies provided by law.
14.4 SECTION Survival of Agreements. All agreements, representations and
warranties made herein shall survive the delivery of this Agreement. The
obligations of the Borrower under Sections 14.9 survive any termination of this
Agreement, the payment in full of all Obligations (or, in the case of the
Borrower, all other Obligations), and the expiration or earlier termination of
all Letters of Credit.
14.5 SECTION Effectiveness and Successors. This Agreement shall, upon
execution and delivery by the Borrower, the Lenders and the Lead Bank in
Chicago, Illinois, become effective and shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Lead Bank
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and their respective successors and assigns, except that the Borrower may not
transfer or assign any of its rights or interest hereunder without the prior
written consent of the Lenders. Consistent with, but in no manner in limitation
of, the foregoing, in the event that ▇▇▇▇▇▇ ▇▇▇▇▇ shall satisfy in full all of
his obligations to the Lead Bank under his guarantees (including, without
limitation, the payment in full of all indebtedness owing under the Notes), ▇▇.
▇▇▇▇▇ shall be bound by the provisions of this Agreement (including, without
limitation, the provisions of Section 4.1 hereof).
14.6 SECTION Captions. Captions in this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof. References herein to Sections or provisions without reference to the
document in which they are contained are references to this Agreement.
14.7 SECTION Singular and Plural. Unless the context requires otherwise,
wherever used herein the singular shall include the plural and vice versa, and
the use of one gender shall also denote the other where appropriate.
14.8 SECTION Counterparts. This Agreement may be executed by the parties on
any number of separate counterparts, and by each party on separate counterparts;
each counterpart shall be deemed an original instrument; and all of the
counterparts taken together shall be deemed to constitute one and the same
instrument.
14.9 SECTION Payment of Costs and Expenses. Other than with respect to the
professional fees and expenses of the Lead Bank and the Lenders relating to the
period prior to the execution and delivery of this Agreement (which are
addressed in Section 7.1 hereof), the Borrower's obligations under the Notes
and/or the L/C Reimbursement Agreements to reimburse the Lead Bank and the
Lenders for their respective expenses remain unchanged. The aggregate limit set
forth in Section 7.1 hereof in no manner applies or otherwise limits the rights
of the Lead Bank and each Lender to be reimbursed for such fees and expenses,
which, for expenses incurred from the date hereof to such date, shall be due and
payable on the earlier to occur of the date of the consummation of a Strategic
Transaction (or other acceleration of the Obligations pursuant to any of the
other provisions hereof) and June 30, 2001 and which, for expenses incurred
after such date, shall be due and payable on demand.
14.10 SECTION Confidentiality. The Lenders shall hold all non-public
information (which has been identified as such by the Borrower) obtained
pursuant to the requirements of this Agreement in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure to any of their examiners, insurers, Affiliates, outside auditors,
counsel and other professional advisors in connection with this Agreement or as
reasonably required by any bona fide transferee, participant or assignee or as
required or requested by any governmental agency or representative thereof or
pursuant to legal process.
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14.11 SECTION Construction. This Agreement, the Notes (as amended by this
Agreement), the Loan Documents and any other document or instrument executed in
connection herewith shall be governed by, and construed and interpreted in
accordance with, the internal laws of the State of Illinois, and shall be deemed
to have been executed in the State of Illinois.
14.12 SECTION Reaffirmation of the Provisions of the Loan Documents. Except
as amended hereby, the provisions of the Notes and the L/C Reimbursement
Agreements remain unchanged, and the Borrower hereby reaffirms its obligations
thereunder. Consistent with the foregoing, any conflict between the provisions
of the Notes and/or the L/C Reimbursement Agreements prior to the date hereof,
on the one hand, and the provisions of this Agreement, on the other hand, shall
be governed by the provisions of this Agreement.
14.13 SECTION Relationship between this Agreement and Participation
Agreement. Iowa State Bank's execution and delivery of this Agreement shall be
deemed to satisfy any consent requirement under any of the existing
participation agreements (the "Participation Agreements") between Iowa State
Bank and Northern. Except as provided in the preceding sentence, the provisions
of the Participation Agreement shall remain unchanged and any conflict between
the provisions of the Participation Agreement and this Agreement shall be
governed by the provisions of the Participation Agreement.
14.14 SECTION Submission to Jurisdiction; Venue; Waiver of Right to Jury
Trial. THE BORROWER IRREVOCABLY AGREES THAT ALL SUITS, ACTIONS OR OTHER
PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR RELATED TO
THIS AGREEMENT, THE NOTES, THE LOAN DOCUMENTS OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH, SHALL BE SUBJECT TO LITIGATION IN COURTS HAVING SITUS
WITHIN CHICAGO, ILLINOIS. THE BORROWER HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND
STATE. THE BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY, TO
TRANSFER OR CHANGE THE VENUE OF ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT
AGAINST ANY PARTY IN ACCORDANCE WITH THIS SECTION, OR TO CLAIM THAT ANY SUCH
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
STOCKPOINT, INC., formerly known as
NEURAL APPLICATIONS CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
THE NORTHERN TRUST COMPANY
By: /s/ [illegible]
Its: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Credit Policy Division
Facsimile: 312/630-6105
Telephone: 312/▇▇▇-▇▇▇▇
IOWA STATE BANK & TRUST
By: /s/ [illegible]
Its: Senior Vice President
Address:
Attn:
Facsimile:
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SCHEDULE I
DEFINITIONS
General. The following terms when used in this Agreement, including
its preamble and recitals, shall, except where the context otherwise requires,
have the following meanings (such meanings to be equally applicable to the
singular and plural forms thereof):
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person. A Person shall be deemed to be "controlled by" any other Person if such
other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agreement" is defined in the preamble.
"Authorized Officer" means, relative to the Borrower, those of its
officers whose signatures and incumbency shall have been certified to the Lead
Bank and the Lenders pursuant to subsection (f) of Section 6.2.
"Borrower" is defined in the preamble.
"Bridge Financing" is defined in Section 6.1 hereof.
"Bridge Lenders" is defined in Section 6.1 hereof.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with generally accepted accounting principles, would be
classified as capitalized leases, and, for purposes of this Agreement, the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with generally accepted accounting principles.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Debentures" is defined in Recital C.
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"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to public health and safety
and protection of the environment.
"ERISA" means the federal Employee Retirement Income Security Act of
1974, as amended.
"Event of Default" is defined in Section 12.1.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Iowa Jet Receivable" is defined in Section 10.12.
"ISB" is defined in Recital D.
"Issuer" means Northern in its capacity as the issuer of any Letter of
Credit.
"Lead Bank" means Northern in its lead bank capacity or any of its
successors in that regard.
"Lenders" is defined in the preamble.
"Letters of Credit" is defined in Recital C.
"L/C Reimbursement Agreements" is defined in Recital C.
25
"Loan Documents" means this Agreement, the Notes, the L/C
Reimbursement Agreements, and each other document or agreement executed and
delivered in connection with this Agreement or any of the transactions
contemplated by this Agreement by the Borrower or any other Person directly or
indirectly obligated with respect to any of the Obligations.
"Material Adverse Effect" means a material and adverse effect on the
business, assets, liabilities, financial condition, operations or business
prospects of the Borrower and its Subsidiaries taken as a whole or on the
ability of the Borrower to perform its obligations under this Agreement, the
Notes or the other Loan Documents to which the Borrower is a party or on the
value of any of the collateral securing any of the Obligations or on the ability
of the Lead Bank to realize on any such collateral.
"Northern" is defined in the preamble.
"November 28, 1997 Line of Credit" is defined in Recital A.
"November 28, 1997 Note" is defined in Recital A.
"Notes" is defined in Section 1.4 hereof.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower arising under or in connection with this Agreement, the Note, each
other Loan Document to which the Borrower is a party, and the Letters of Credit.
"PBGC" means the Pension Benefit Guaranty Corporation and its
successors and assigns.
"Person" means any natural person, corporation, partnership, limited
liability company, firm, association, trust, government, governmental agency or
any other entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means an employee benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the
Internal Revenue Code as to which the Borrower or any Subsidiary may have any
liability.
"Prime Rate" is defined in Section 2.1.
"Purported UAL Stock Certificates" is defined in Recital F.
"Release" means a "release", as such term is defined in CERCLA.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such Section, with respect to a Plan,
excluding, however, such events which, singly or in the aggregate, do not and
will not have a Material Adverse Effect.
26
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq., as in effect from
time to time.
"▇▇▇▇▇▇ ▇▇▇▇▇ Agreement" is defined in Section 11.6 hereof.
"Senior Manager" is defined in Section 10.12 hereof.
"September 14, 1998 Line of Credit" is defined in Recital E.
"September 14, 1998 Note" is defined in Recital E.
"Strategic Transaction" is defined in Section 5.1 hereof.
"Subsidiary" means any corporation, partnership, joint venture, limited
liability company, trust, or other legal entity of which the Borrower owns
directly or indirectly 50% or more of the outstanding voting stock or interest,
or of which the Borrower has effective control, by contract or otherwise.
"Unfunded Liabilities" means
(a) in the case of single employer Plans, the amount (if any)
by which the present value of all vested nonforfeitable 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; and
(b) in the case of multi-employer plans, the withdrawal
liability of the Borrower and its Subsidiaries.
"Unmatured Event of Default" means an event or condition which would
become an Event of Default with notice or the passage of time or both.
Except as and unless otherwise specifically provided herein, all
accounting terms in this Agreement shall have the meanings given to them by
generally accepted accounting principles and shall be applied, and all reports
required by this Agreement shall be prepared, in a manner consistent with the
financial statements referred to in Section 10.2(a).
Applicability of Subsidiary and Affiliate References. Terms hereof
pertaining to any Subsidiary or Affiliate shall apply to the Borrower only
during such times as the Borrower has any Subsidiary or Affiliate.
27
SCHEDULE 9.4
SCHEDULE OF LITIGATION LIABILITIES OF THE BORROWER
List of pending litigation, arbitration proceedings or governmental proceedings
pending or threatened:
None.
28
SCHEDULE 9.5
SUBSIDIARIES AND AFFILIATES
1. Neural, Inc., a Delaware corporation, a wholly owned subsidiary.
2. Ethos Corporation, a California corporation, a wholly owned subsidiary.
29
SCHEDULE 10.5(b)
SCHEDULE OF LIENS AND ENCUMBRANCES ON PROPERTY OF THE BORROWER
1. Kirkwood Community College (unpaid balance $146,243)
2. Iowa Department of Economic Development
and City of Coralville, Iowa (unpaid balance $150,000)
3. New Resources, Inc. (unpaid balance $36,368)
4. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company (unpaid balance $10,411)
5. Bridge Lender/Norwest Bank Iowa,
National Association (unpaid balance of $2,500,000)
30
SCHEDULE 10.12
SCHEDULE OF SENIOR MANAGERS
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
31
SCHEDULE 12.1(m)
SCHEDULE OF TRADE CREDITORS WHOSE CLAIMS
ARE IN THE PROCESS OF BEING RESOLVED
North Star Steel $237,799
Belle Plaine Air Services $ 39,340
▇▇▇▇▇▇ Communications Public Relations $ 84,264
32
EXHIBIT A
FORM OF COVENANT NOT TO ▇▇▇
This Covenant Not to ▇▇▇ is from The Northern Trust Company
("Northern") and Iowa State Bank, & Trust ("ISBT") to and in favor of
Stockpoint, Inc., formerly known as Neural Applications Corporation
("Stockpoint").
W I T N E S S E T H:
WHEREAS, Stockpoint, Northern, and ISBT have entered into a certain
Restructuring Agreement, dated as of , 1999 (the "Restructuring
Agreement"); and
WHEREAS, under the Restructuring Agreement, Northern and ISBT agreed,
upon the satisfaction of the conditions of Section 8.1 thereof, to not seek the
imposition of personal liability on Stockpoint with respect to the Obligations
(including, without limitation, the Notes and Stockpoint's reimbursement
obligations under the Letter of Credit) (all as such terms are defined in the
Restructuring Agreement);
NOW, THEREFORE, each of Northern and ISBT hereby does agree as follows:
14.15 SECTION Modified Covenant Not to ▇▇▇. In consideration of the receipt of
$ and the release referred to in Section 8.1 of the Restructuring
Agreement, Northern and ISBT, severally, for themselves and their successors and
assigns, hereby agree not to seek the imposition of personal liability on
Stockpoint, its successors and assigns and each of the former, current and
future shareholders, directors, officers, employees, agents, attorneys, trustees
and representatives, their respective heirs, legal representatives, successors
and assigns, of Stockpoint, for any and all claims, counterclaims, demands,
liens, agreements, contracts, covenants, suits, actions, causes of action,
obligations, controversies, debts, compensation, losses, costs, expenses,
attorneys' fees, damages, judgments, orders and liabilities of whatever kind,
type, nature, character or description, in law, equity or otherwise, whether now
known or unknown, contingent or vested, liquidated or unliquidated, suspected or
unsuspected, and whether or not sealed or hidden, which have existed, or which
do exist as of the date hereof, or which may now or hereafter exist, pertaining
to or arising out of the Obligations (including, without limitation, the Notes
and Stockpoint's reimbursement obligations under the Letter of Credit);
provided, however, that (i) the Obligations are not canceled, discharged or
deemed paid hereby, (ii) each of Northern and ISBT reserves the right to implead
Stockpoint in any action in which a claim is made against either of Northern or
ISBT; moreover, each of Northern and ISBT reserves its rights to contribution
and indemnity in any action in which either is a party, and (iii) if any court
of competent jurisdiction shall at any time determine that any payment or other
transfer made pursuant to or in connection with the Obligations constitutes a
fraudulent transfer or preference under applicable law or otherwise, or shall
otherwise avoid such transfer, and shall require, whether by order, judgment,
declaration or otherwise, either of Northern or ISBT or any designee thereof to
reconvey any such transfer or any material part thereof, or to pay an amount,
33
representing the value of all or any material part thereof, to Stockpoint or to
any trustee, receiver of custodian for any thereof, then, any rule of law or
equity or agreement of the parties to the contrary notwithstanding, immediately
and without any notice or action by either Northern or ISBT or any designee
thereof or any other party, this Covenant Not to ▇▇▇ and each and every other
relief, indulgence or relinquishment of rights by Northern and/or ISBT set forth
in this Section A shall be void ab initio, and each of Northern and ISBT shall
be entitled to enforce its rights with respect to the Obligations, including
without limitation, its rights and claims under and in connection with the Notes
and the Letter of Credit, all as if this Covenant Not to ▇▇▇ had never been
executed and delivered (except that any pertinent statute of limitations shall
be deemed to have been tolled during the period from the date of the execution
and delivery of this Covenant Not to ▇▇▇ to and through the date that is 30 days
after any such avoidance determination becomes final and nonapplicable).
14.16 SECTION No Release of Third Parties. In executing and delivering this
Covenant Not to ▇▇▇, each of Northern and ISBT does not hereby release or
discharge in any manner whatsoever any other person or entity (including, in
particular, ▇▇▇▇▇▇ ▇▇▇▇▇) which is or may be liable to it in respect to any
matter relating directly or indirectly to the aforementioned claims, and each of
Northern and ISBT hereby expressly reserves all of its claims, rights, powers,
and remedies against all such other persons and entities (including, in
particular, ▇▇▇▇▇▇ ▇▇▇▇▇).
14.17 SECTION Binding Effect. This Covenant Not to ▇▇▇ shall be binding upon the
successors and assigns of Northern and ISBT and shall inure to the benefit of
the heirs, legal representatives, successors and assigns of Stockpoint.
Consistent with Section B hereof, there are no intended third party
beneficiaries of this Covenant Not to ▇▇▇.
14.18 SECTION Execution in Counterparts. This Covenant Not to ▇▇▇ ▇▇▇ be
executed in any number of counterparts each of which shall be deemed an original
and all of which shall be deemed for all purposes, one agreement.
14.19 SECTION Choice of Law. To the extent not governed by federal law, this
Covenant Not to ▇▇▇ shall be deemed to be a contract made under the laws of the
State of Illinois ad for all purposes shall be governed by and construed in
accordance with the laws of that state (except the choice of law rules thereof)
in all respects, including, without limitation, ▇▇▇▇▇▇ of construction, validity
and performance.
34
14.20 SECTION No Amendment. This Covenant Not to ▇▇▇ ▇▇▇ not be amended,
modified, altered or waived.
Dated: , 2000
-------------
THE NORTHERN TRUST COMPANY IOWA STATE BANK & TRUST
By: By:
--------------------------------- ----------------------------------
Its: Its:
-------------------------- ---------------------------------
Agreed to and Accepted this
day of , 200 .
By: STOCKPOINT, INC., formerly known
as Neural Applications Corporation
By:
-------------------------------
Its:
-------------------------
35
EXHIBIT B
FORM OF RELEASE
This Release is from Stockpoint, Inc., formerly known as Neural
Applications Corporation, a Delaware corporation ("Stockpoint"), to and in favor
of The Northern Trust Company, an Illinois banking corporation ("Northern") and
Iowa State Bank & Trust ("ISBT").
W I T N E S S E T H:
WHEREAS, Stockpoint, Northern and ISBT have entered into a certain
Restructuring Agreement, dated as of November __, 1999 (the "Restructuring
Agreement"); and
WHEREAS, under the Restructuring Agreement, Stockpoint agreed, upon the
satisfaction of the conditions of Section 8.1 thereof, to release each of
Northern and ISBT from any claim pertaining to or in any other manner relating
to the Obligations (including, without limitation, the Notes and the Letters of
Credit) (all such terms are defined in the Restructuring Agreement and used
herein with the same meaning), Stockpoint or its business operations, or ▇▇▇▇▇▇
▇▇▇▇▇;
NOW, THEREFORE, Stockpoint does hereby agree as follows:
14.21 SECTION Release. In consideration of Northern and ISBT entering into the
Restructuring Agreement, and for other consideration, Stockpoint, for itself and
its legal representatives, subsidiaries, affiliates, successors and assigns,
hereby knowingly and voluntarily, absolutely, finally and forever releases,
acquits and discharges each of Northern and ISBT, their successors and assigns,
and each of their respective former, current, and future affiliated corporations
(including parents and subsidiaries) and their respective successors and assigns
and each of the former, current and future shareholders, directors, officers,
employees, agents, attorneys, trustees and representatives, their respective
heirs, legal representatives, successors and assigns, of each of Northern and
ISBT (collectively, the "Released Parties"), from any and all claims
counterclaims, demands, liens, agreements, contracts, covenants, suits, actions,
causes of action, obligations, controversies, debts, compensation, losses,
costs, expenses, attorneys' fees, damages, judgments, orders and liabilities of
whatever kind, type, nature, character or description, in law, equity or
otherwise, whether now known or unknown, contingent or vested, liquidated or
unliquidated, suspected or unsuspected, and whether or not sealed or hidden,
which have existed, or which do exist as of the date hereof, or which may now or
hereafter exist, pertaining to, arising out of, or in any manner relating to the
Obligations (including, without limitation, the Notes and the Letters of
Credit), Stockpoint generally (including its business operations), or ▇▇▇▇▇▇
▇▇▇▇▇.
14.22 SECTION Unwind Provision. Northern and ISBT each has this date executed a
Covenant Not to ▇▇▇ in favor of Stockpoint. If such Covenant Not to ▇▇▇ is
determined to be void ab initio, and if, as a matter of applicable law, this
Release shall be void ab initio as a result thereof, then Stockpoint shall be
entitled to enforce its rights, if any, as though the Release had not been
executed.
36
14.23 SECTION Certain Representations and Warranties. Stockpoint represents and
warrants that (i) it has had the opportunity to obtain advice of counsel of its
own choosing in the negotiations for and preparation of this Release, that its
authorized officers have read this Release, that its authorized officers have
had this Release fully explained to them on behalf of Stockpoint by such counsel
(if consulted) and that it (through its authorized officers) is fully aware of
its contents and legal effects, and (ii) except as herein provided, it has not
assigned any claims, counterclaims, demands, liens, agreements, contracts,
covenants, suits, actions, causes of action, obligations, controversies, debts,
compensation, losses, costs, expenses, attorneys' fees, damages, judgments,
orders or liabilities that are the subject matter of this Release to any other
person or entity.
14.24 SECTION Binding Effect. This Release shall be binding upon the heirs,
legal representatives, successors and assigns of Stockpoint and shall inure to
the benefit of the Released Parties (including, without limitation, each of
Northern and ISBT and their respective successors and assigns).
14.25 SECTION Execution in Counterparts. This Release may be executed in any
number of counterparts each of which shall be deemed an original and all of
which shall be deemed for all purposes, one agreement.
14.26 SECTION Choice of Law. To the extent not governed by federal law, this
Release shall be deemed to be a contract made under the laws of the State of
Illinois and for all purposes shall be governed by and construed in accordance
with the laws of that state (except the choice of law rules thereof) in all
respects, including, without limitation, matters of construction, validity and
performance.
37
14.27 SECTION No Amendment. This Release may not be amended, modified,
altered and waived.
Dated: , 200
-------------- -
STOCKPOINT, INC., formerly known as
Neural Applications Corporation, a
Delaware corporation
By:
-------------------------------
Its:
-----------------------
Agreed to and Accepted this day of 200
---- -
By: THE NORTHERN TRUST COMPANY
By:
--------------------------------
Its:
--------------------------
By: IOWA STATE BANK & TRUST
By:
--------------------------------
Its:
--------------------------
38
EXHIBIT C - FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
To: The Northern Trust Company, as Lead Bank under the
Credit Agreement referred to below
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Reference is made to the Restructuring Agreement, dated as of November
, 1999 (herein, as it may be amended, supplemented, restated or otherwise
modified from time to time, called the "Restructuring Agreement"), among
Stockpoint, Inc., formerly known as Neural Applications Corporation (the
"Borrower"), the financial institutions parties thereto and The Northern Trust
Company, as Lead Bank. Terms used but not otherwise defined herein are used
herein as defined in the Restructuring Agreement.
The Borrower hereby certifies, represents and warrants, as of the date
hereof: (i) no Event of Default or Unnatural Event of Default has occurred and
is continuing and (ii) the Borrower is in compliance with the financial
restrictions set forth in Sections 10.5 and 10.11 of the Restructuring
Agreement.
Very truly yours,
STOCKPOINT, INC.
By:
------------------------------
Its:
-----------------------
