EXHIBIT 4.10
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as amended, modified or supplemented
from time to time, this "Agreement"), dated as of March 25, 2004, is made by
each of the undersigned pledgors (each a "Pledgor" and, together with any other
entity that becomes a pledgor hereunder pursuant to Section 25 hereof, the
"Pledgors") to WELLS FARGO BANK, NATIONAL ASSOCIATION, as Collateral Agent
together with any successor Collateral Agent (the "Pledgee"), for the benefit of
the Secured Creditors (as defined below). Except as otherwise defined herein,
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
WHEREAS, infoUSA Inc. (the "Borrower"), the financial
institutions from time to time party thereto in the capacity of a lender (in
such capacity, the "Lenders"), and Wells Fargo Bank, National Association, as
administrative agent (together with any successor Administrative Agent, the
"Administrative Agent"), have entered into a Credit Agreement, dated as of March
25, 2004 (as amended, modified or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to, and the issuance of Letters
of Credit for the account of, the Borrower as contemplated therein (the Lenders,
the Administrative Agent, the Issuing Lender and the Pledgee are herein called
the "Lender Creditors");
WHEREAS, the Borrower may at any time and from time to time
enter into one or more Interest Rate Protection Agreements or Other Hedging
Agreements with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to the Subsidiaries Guaranty, each
Subsidiary Guarantor has jointly and severally guaranteed to the Secured
Creditors the payment when due of all Guaranteed Obligations as described
therein;
WHEREAS, it is a condition to the making of Loans to, and the
issuance of Letters of Credit for the account of, the Borrower under the Credit
Agreement that each Pledgor shall have executed and delivered to the Pledgee
this Agreement; and
WHEREAS, each Pledgor desires to enter into this Agreement in
order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Pledgor, the receipt and sufficiency of which are
hereby acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by
each Pledgor for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and
indebtedness (including, without limitation, indemnities, Fees and
interest thereon) of such Pledgor to the Lender Creditors, whether now
existing or hereafter incurred under, arising out of, or in connection
with the Credit Agreement and the other Credit Documents to which such
Pledgor is a party (including, in the case of each Pledgor which is a
Subsidiary Guarantor, all such obligations and indebtedness of such
Pledgor under the Subsidiaries Guaranty) and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements contained in the Credit Agreement and in such other Credit
Documents (all such obligations and liabilities under this clause (i),
except to the extent consisting of obligations or indebtedness with
respect to Interest Rate Protection Agreements or Other Hedging
Agreements, being herein collectively called the "Credit Document
Obligations");
(ii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and
liabilities owing by such Pledgor to the Other Creditors under, or with
respect to (including, in the case of each Pledgor which is a
Subsidiary Guarantor, by reason of the Subsidiaries Guaranty), any
Interest Rate Protection Agreement or Other Hedging Agreement, whether
such Interest Rate Protection Agreement or Other Hedging Agreement is
now in existence or hereafter arising, and the due performance and
compliance by such Pledgor with all of the terms, conditions and
agreements contained therein (all such obligations and liabilities
described in this clause (ii) being herein collectively called the
"Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clauses (i) and (ii) above, after an Event of
Default (which term to mean and include any Event of Default under, and
as defined in, the Credit Agreement or any payment default by the
Borrower under any Interest Rate Protection Agreement or Other Hedging
Agreement and shall, in any event, include, without limitation, any
payment default on any of the Obligations (as hereinafter defined))
shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise
disposing of or realizing on the Collateral, or of any exercise by the
Pledgee of its rights hereunder, together with reasonable attorneys'
fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which
such Secured Creditor has the right to reimbursement under Section 11
of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1 being herein collectively called the
"Obligations," it being acknowledged and agreed
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that the "Obligations" shall include extensions of credit of the types described
above, whether outstanding on the date of this Agreement or extended from time
to time after the date of this Agreement.
2. DEFINITIONS.
(a) Unless otherwise defined herein, all capitalized
terms used herein and defined in the Credit Agreement shall be used herein as
therein defined. Reference to singular terms shall include the plural and vice
versa.
(b) The following capitalized terms used herein shall
have the definitions specified below:
"Administrative Agent" has the meaning set forth in the
Recitals hereto.
"Adverse Claim" has the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" has the meaning set forth in the first paragraph
hereof.
"Certificated Security" has the meaning given such term in
Section 8-102(a)(4) of the UCC.
"Class" has the meaning set forth in Section 22 hereof.
"Clearing Corporation" has the meaning given such term in
Section 8-102(a)(5) of the UCC.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" means any and all accounts established
and maintained by the Pledgee in the name of any Pledgor to which Collateral may
be credited.
"Credit Agreement" has the meaning set forth in the Recitals
hereto.
"Credit Document Obligations" has the meaning set forth in
Section 1 hereof.
"Domestic Corporation" has the meaning set forth in the
definition of "Stock."
"Event of Default" has the meaning set forth in Section 1
hereof.
"Financial Asset" has the meaning given such term in Section
8-102(a)(9) of the UCC.
"Foreign Corporation" has the meaning set forth in the
definition of "Stock."
"Indemnitees" has the meaning set forth in Section 11 hereof.
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"Instrument" has the meaning given such term in Section
9-102(a)(47) of the UCC.
"Investment Property" has the meaning given such term in
Section 9-102(a)(49) of the UCC.
"Lender Creditors" has the meaning set forth in the Recitals
hereto.
"Lenders" has the meaning set forth in the Recitals hereto.
"Limited Liability Company Assets" means all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Non-Voting Stock" means all capital stock which is not Voting
Stock.
"Notes" means all promissory notes from time to time issued
to, or held by, each Pledgor (including each Intercompany Note).
"Obligations" has the meaning set forth in Section 1 hereof.
"Other Creditors" has the meaning set forth in the Recitals
hereto.
"Other Obligations" has the meaning set forth in Section 1
hereof.
"Partnership Assets" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership.
"Pledged Notes" has the meaning set forth in Section 3.5
hereof.
"Pledgee" has the meaning set forth in the first paragraph
hereof.
"Pledgor" has the meaning set forth in the first paragraph
hereof.
"Proceeds" has the meaning given such term in Section
9-102(a)(64) of the UCC.
"Required Lenders" has the meaning given such term in the
Credit Agreement.
"Requisite Creditors" has the meaning set forth in Section 22
hereof.
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"Secured Creditors" has the meaning set forth in the Recitals
hereto.
"Secured Debt Agreements" has the meaning set forth in Section
5 hereof.
"Securities Account" has the meaning given such term in
Section 8-501(a) of the UCC.
"Securities Act" means the Securities Act of 1933, as amended,
as in effect from time to time.
"Security" and "Securities" has the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock
and all Notes.
"Security Entitlement" has the meaning given such term in
Section 8-102(a)(17) of the UCC.
"Stock" means (x) with respect to corporations incorporated
under the laws of the United States or any State or territory thereof (each a
"Domestic Corporation"), all of the issued and outstanding shares of capital
stock of any corporation at any time owned by any Pledgor of any Domestic
Corporation and (y) with respect to corporations not Domestic Corporations (each
a "Foreign Corporation"), all of the issued and outstanding shares of capital
stock at any time owned by any Pledgor of any Foreign Corporation.
"Termination Date" has the meaning set forth in Section 20
hereof.
"UCC" means the Uniform Commercial Code as in effect in the
State of Minnesota from time to time; provided that all references herein to
specific sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of Minnesota on the date hereof.
"Uncertificated Security" has the meaning given such term in
Section 8-102(a)(18) of the UCC.
"Voting Stock" means all classes of capital stock of any
Foreign Corporation entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter
owed or to be performed by such Pledgor, each Pledgor does hereby grant, pledge
and assign to the Pledgee for the benefit of the Secured Creditors, and does
hereby create a continuing security interest in favor of the Pledgee for the
benefit of the Secured Creditors in, all of the right, title and interest in and
to the following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) each of the Collateral Accounts, including any and
all assets of whatever type or kind deposited by such Pledgor in such Collateral
Account, whether now owned or
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hereafter acquired, existing or arising, including, without limitation, all
Financial Assets, Investment Property, moneys, checks, drafts, Instruments,
Securities or interests therein of any type or nature deposited or required by
the Credit Agreement or any other Secured Debt Agreement to be deposited in such
Collateral Account, and all investments and all certificates and other
Instruments (including depository receipts, if any) from time to time
representing or evidencing the same, and all dividends, interest, distributions,
cash and other property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the foregoing;
(b) all Securities owned by such Pledgor from time to
time and all options or warrants owned by such Pledgor from time to time to
purchase Securities;
(c) all Limited Liability Company Interests owned by such
Pledgor from time to time and all of its right, title and interest in each
limited liability company to which each such interest relates, whether now
existing or hereafter acquired, including, without limitation:
(A) all the capital thereof and its interest in
all profits, losses, Limited Liability Company Assets and
other distributions to which such Pledgor shall at any time be
entitled in respect of such Limited Liability Company
Interests;
(B) all other payments due or to become due to
such Pledgor in respect of Limited Liability Company
Interests, whether under any limited liability company
agreement or otherwise, whether as contractual obligations,
damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers,
privileges, authority, options, security interests, liens and
remedies, if any, under any limited liability company
agreement or operating agreement, or at law or otherwise in
respect of such Limited Liability Company Interests;
(D) all present and future claims, if any, of
such Pledgor against any such limited liability company for
moneys loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any
limited liability company agreement or operating agreement or
at law to exercise and enforce every right, power, remedy,
authority, option and privilege of such Pledgor relating to
such Limited Liability Company Interests, including any power
to terminate, cancel or modify any limited liability company
agreement or operating agreement, to execute any instruments
and to take any and all other action on behalf of and in the
name of any of such Pledgor in respect of such Limited
Liability Company Interests and any such limited liability
company, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing or for any Limited Liability Company Asset, to
enforce or
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execute any checks, or other instruments or orders, to file
any claims and to take any action in connection with any of
the foregoing; and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(d) all Partnership Interests owned by such Pledgor from
time to time and all of its right, title and interest in each partnership to
which each such interest relates, whether now existing or hereafter acquired,
including, without limitation:
(A) all the capital thereof and its interest in
all profits, losses, Partnership Assets and other
distributions to which such Pledgor shall at any time be
entitled in respect of such Partnership Interests;
(B) all other payments due or to become due to
such Pledgor in respect of Partnership Interests, whether
under any partnership agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or
otherwise;
(C) all of its claims, rights, powers,
privileges, authority, options, security interests, liens and
remedies, if any, under any partnership agreement or operating
agreement, or at law or otherwise in respect of such
Partnership Interests;
(D) all present and future claims, if any, of
such Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any
partnership agreement or operating agreement or at law to
exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such
Partnership Interests, including any power to terminate,
cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of any of such
Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Asset, to enforce or execute
any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the foregoing
and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or
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evidencing such other property and all cash, securities,
interest, dividends, rights and other property at any time and
from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all
thereof;
(e) all Security Entitlements owned by such Pledgor from
time to time in any and all of the foregoing;
(f) all Financial Assets and Investment Property owned by
such Pledgor from time to time; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this
Section 3.1, (x) except as otherwise provided in Section 9.13 of the Credit
Agreement, no Pledgor (to the extent that it is the Borrower or a Domestic
Subsidiary of the Borrower) shall be required at any time to pledge hereunder
more than 65% of the Voting Stock of any Foreign Corporation, and (y) each
Pledgor shall be required to pledge hereunder 100% of any Non-Voting Stock at
any time and from time to time acquired by such Pledgor of any Foreign
Corporation.
3.2 Procedures.
(a) To the extent that any Pledgor at any time or from
time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 days after it obtains such Collateral) for the
benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall deliver such Certificated Security to the
Pledgee, indorsed to the Pledgee or indorsed in blank;
(ii) with respect to an Uncertificated Security (other
than an Uncertificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall cause the issuer of such
Uncertificated Security (or, in the case of an issuer that is not a
Subsidiary of such Pledgor, will use its best efforts to cause such
issuer) to duly authorize and execute, and deliver to the Pledgee, an
agreement for the benefit of the Pledgee and the Secured Creditors
substantially in the form of Annex G hereto (appropriately completed to
the reasonable satisfaction of the Pledgee and with such modifications,
if any, as shall be reasonably satisfactory to the Pledgee) pursuant to
which such issuer agrees to comply with any and all instructions
originated by the Pledgee without further consent by the registered
owner and not to comply with instructions regarding such Uncertificated
Security (and any Partnership Interests and Limited Liability Company
Interests issued by such issuer) originated by any other Person other
than a court of competent jurisdiction;
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(iii) with respect to a Certificated Security,
Uncertificated Security, Partnership Interest or Limited Liability
Company Interest credited on the books of a Clearing Corporation
(including a Federal Reserve Bank, Participants Trust Company or The
Depository Trust Company), the respective Pledgor shall promptly notify
the Pledgee thereof and shall promptly take all actions required (i) to
comply with the applicable rules of such Clearing Corporation and (ii)
to perfect the security interest of the Pledgee under applicable law
(including, in any event, under Sections 9-106(a) and (b), 9-312(a),
9-314(c) and 8-106 (d) of the UCC). The Pledgor further agrees to take
such actions as the Pledgee deems reasonably necessary or desirable to
effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than (x) a Partnership Interest or
Limited Liability Interest credited on the books of a Clearing
Corporation or (y) a Limited Liability Company Interest of an Inactive
Subsidiary to the extent that same remains an "Inactive Subsidiary"),
(1) if such Partnership Interest or Limited Liability Company Interest
is represented by a certificate, the procedure set forth in Section
3.2(a)(i) hereof, and (2) if such Partnership Interest or Limited
Liability Company Interest is not represented by a certificate, the
procedure set forth in Section 3.2(a)(ii) hereof;
(v) with respect to any Note, delivery of such Note to
the Pledgee, indorsed to the Pledgee or indorsed in blank;
(vi) with respect to cash, (i) establishment by the
Pledgee of a cash account in the name of such Pledgor over which the
Pledgee shall have exclusive and absolute control and dominion (and no
withdrawals or transfers may be made therefrom by any Person except
with the prior written consent of the Pledgee) and (ii) deposit of such
cash in such cash account;
(vii) with respect to Collateral Accounts, the respective
Pledgor shall cause each securities intermediary or deposit account
bank to duly execute and deliver to the Pledgee an agreement for the
benefit of the Pledgee and the Secured Creditors, substantially in the
form of Annex H or I, as applicable (appropriately completed to the
reasonable satisfaction of the Pledgee and with such modifications, if
any, as shall be reasonably satisfactory to the Pledgee).
(b) In addition to the actions required to be taken
pursuant to proceeding Section 3.2(a) hereof, each Pledgor shall take the
following additional actions with respect to the Securities and Collateral :
(i) with respect to all Collateral of such Pledgor
whereby or with respect to which the Pledgee may obtain "control"
thereof within the meaning of Section 8-106 of the UCC (or under any
provision of the UCC as same may be amended or supplemented from time
to time, or under the laws of any relevant State other than the State
of Minnesota), the respective Pledgor shall take all actions as may be
reasonably requested from time to time by the Pledgee so that "control"
of such Collateral is obtained and at all times held by the Pledgee;
and
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(ii) each Pledgor shall from time to time cause
appropriate financing statements (on Form UCC-1 or other appropriate
form) under the Uniform Commercial Code as in effect in the various
relevant States, on form covering all Collateral hereunder (with the
form of such financing statements to be satisfactory to the Pledgee),
to be filed in the relevant filing offices so that at all times the
Pledgee has a security interest in all Investment Property and other
Collateral which is perfected by the filing of such financing
statements (in each case to the maximum extent perfection by filing may
be obtained under the laws of the relevant States, including, without
limitation, Section 9-312(a) of the UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor
shall acquire (by purchase, stock dividend or otherwise) any additional
Collateral at any time or from time to time after the date hereof, such
Collateral shall automatically (and without any further action being required to
be taken) be subject to the pledge and security interests created pursuant to
Section 3.1 hereof and, furthermore, the Pledgor will promptly thereafter take
(or cause to be taken) all action with respect to such Collateral in accordance
with the procedures set forth in Section 3.2 hereof, and will promptly
thereafter deliver to the Pledgee (i) a certificate executed by a principal
executive officer of such Pledgor describing such Collateral and certifying that
the same has been duly pledged in favor of the Pledgee (for the benefit of the
Secured Creditors) hereunder and (ii) supplements to Annexes A through F hereto
as are reasonably necessary to cause such annexes to be complete and accurate at
such time. Without limiting the foregoing, each Pledgor shall be required to
pledge hereunder any shares of stock at any time and from time to time after the
date hereof acquired by such Pledgor of any Foreign Corporation, provided that
(x) except as provided in Section 9.13 of the Credit Agreement, no Pledgor (to
the extent that it is the Borrower or a Domestic Subsidiary of the Borrower)
shall be required at any time to pledge hereunder more than 65% of the Voting
Stock of any Foreign Corporation and (y) each Pledgor shall be required to
pledge hereunder 100% of any Non-Voting Stock at any time and from time to time
acquired by such Pledgor of any Foreign Corporation.
3.4 Transfer Taxes. Each pledge of Collateral under
Section 3.1 or Section 3.3 hereof shall be accompanied by any transfer tax
stamps required in connection with the pledge of such Collateral.
3.5 Definition of Pledged Notes. All Notes at any time
pledged or required to be pledged hereunder are hereinafter called the "Pledged
Notes".
3.6 Certain Representations and Warranties Regarding the
Collateral. Each Pledgor represents and warrants that on the date hereof (i)
each Subsidiary of such Pledgor, and the direct ownership thereof, is listed in
Annex A hereto; (ii) the Stock (and any warrants or options to purchase Stock)
held by such Pledgor consists of the number and type of shares of the stock (or
warrants or options to purchase any stock) of the corporations as described in
Annex B hereto; (iii) such Stock constitutes that percentage of the issued and
outstanding capital stock of the issuing corporation as is set forth in Annex B
hereto; (iv) the Notes held by such Pledgor consist of the promissory notes
described in Annex C hereto where such Pledgor is listed as the lender; (v) the
Limited Liability Company Interests held by such Pledgor consist of the number
and type of interests of the Persons described in Annex D hereto; (vi) each such
Limited Liability
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Company Interest constitutes that percentage of the issued and outstanding
equity interest of the issuing Person as set forth in Annex D hereto; (vii) the
Partnership Interests held by such Pledgor consist of the number and type of
interests of the Persons described in Annex E hereto; (viii) each such
Partnership Interest constitutes that percentage or portion of the entire
partnership interest of the Partnership as set forth in Annex E hereto; (ix) the
Pledgor has complied with the respective procedure set forth in Section 3.2(a)
hereof with respect to each item of Collateral described in Annexes A through E
hereto; and (x) on the date hereof, such Pledgor owns no other Securities,
Limited Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and
to the extent necessary to enable the Pledgee to perfect its security interest
in any of the Collateral or to exercise any of its remedies hereunder, the
Pledgee shall have the right to appoint one or more sub-agents for the purpose
of retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and
until there shall have occurred and be continuing an Event of Default, each
Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Collateral owned by it, and to give consents, waivers
or ratifications in respect thereof; provided, that, in each case, no vote shall
be cast or any consent, waiver or ratification given or any action taken or
omitted to be taken which would violate or be inconsistent with any of the terms
of this Agreement, the Credit Agreement, any other Credit Document or any
Interest Rate Protection Agreement or Other Hedging Agreement (collectively, the
"Secured Debt Agreements"), or which would have the effect of impairing the
value of the Collateral or any part thereof or the position or interests of the
Pledgee or any other Secured Creditor in the Collateral. All such rights of each
Pledgor to vote and to give consents, waivers and ratifications shall cease in
case an Event of Default has occurred and is continuing, and Section 7 hereof
shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until
there shall have occurred and be continuing an Event of Default, all cash
dividends, cash distributions, cash Proceeds and other cash amounts payable in
respect of the Collateral shall be paid to the respective Pledgor. The Pledgee
shall be entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited
liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash
dividends other than as set forth above) paid or distributed by way of
dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, limited
liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash) paid
or distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
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(iii) all other or additional stock, notes, limited
liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash)
which may be paid in respect of the Collateral by reason of any
consolidation, merger, exchange of stock, conveyance of assets,
liquidation or similar corporate reorganization.
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
and Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
7. REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT. If
there shall have occurred and be continuing an Event of Default, then and in
every such case, the Pledgee shall be entitled to exercise all of the rights,
powers and remedies (whether vested in it by this Agreement, any other Secured
Debt Agreement or by law) for the protection and enforcement of its rights in
respect of the Collateral, and the Pledgee shall be entitled to exercise all the
rights and remedies of a secured party under the Uniform Commercial Code as in
effect in any relevant jurisdiction and also shall be entitled, without
limitation, to exercise the following rights, which each Pledgor hereby agrees
to be commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the respective
Pledgor;
(ii) to transfer all or any part of the Collateral into
the Pledgee's name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be
accelerated in accordance with its terms, and take any other lawful
action to collect upon any Pledged Note (including, without limitation,
to make any demand for payment thereon);
(iv) to vote all or any part of the Collateral (whether or
not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner thereof
(each Pledgor hereby irrevocably constituting and appointing the
Pledgee the proxy and attorney-in-fact of such Pledgor, with full power
of substitution to do so);
(v) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine,
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provided that at least 10 days' written notice of the time and place of
any such sale shall be given to the respective Pledgor. The Pledgee
shall not be obligated to make any such sale of Collateral regardless
of whether any such notice of sale has theretofore been given. Each
Pledgor hereby waives and releases to the fullest extent permitted by
law any right or equity of redemption with respect to the Collateral,
whether before or after sale hereunder, and all rights, if any, of
marshalling the Collateral and any other security for the Obligations
or otherwise. At any such sale, unless prohibited by applicable law,
the Pledgee on behalf of the Secured Creditors may bid for and purchase
all or any part of the Collateral so sold free from any such right or
equity of redemption. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any or
all of the Collateral or for any delay in so doing nor shall any of
them be under any obligation to take any action whatsoever with regard
thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from
any and all Collateral Accounts and to apply such cash and other
Collateral to the payment of any and all Obligations.
The Pledgee shall not exercise any rights under Section 3 of any Securities
Account Control Agreement, executed and delivered pursuant to Section
3.2(a)(vii) of this Agreement, or under Section 2 of any Deposit Account Control
Agreement, executed and delivered pursuant to Section 3.2(a)(vii) of this
Agreement, unless an Event of Default shall exist.
8. REMEDIES, CUMULATIVE, ETC. Each and every right,
power and remedy of the Pledgee provided for in this Agreement or in any other
Secured Debt Agreement, or now or hereafter existing at law or in equity or by
statute shall be cumulative and concurrent and shall be in addition to every
other such right, power or remedy. The exercise or beginning of the exercise by
the Pledgee or any other Secured Creditor of any one or more of the rights,
powers or remedies provided for in this Agreement or any other Secured Debt
Agreement or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by the Pledgee
or any other Secured Creditor of all such other rights, powers or remedies, and
no failure or delay on the part of the Pledgee or any other Secured Creditor to
exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without notice or demand. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, in each case acting upon the instructions of the Required
Lenders (or, after the date on which all Credit Document Obligations have been
paid in full, the holders of at least the majority of the outstanding Other
Obligations) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Pledgee for the benefit of the
Secured Creditors upon the terms of this Agreement.
9. APPLICATION OF PROCEEDS. All monies collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement,
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together with all other monies received by the Pledgee hereunder, shall be
applied in the manner provided in the Security Agreement. It is understood and
agreed that the Pledgors shall remain jointly and severally liable to the extent
of any deficiency between the amount of the proceeds of the Collateral hereunder
and the aggregate amount of the Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the
Collateral by the Pledgee hereunder (whether by virtue of the power of sale
herein granted, pursuant to judicial process or otherwise), the receipt of the
Pledgee or the officer making the sale shall be a sufficient discharge to the
purchaser or purchasers of the Collateral so sold, and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Pledgee or such officer or be answerable in any
way for the misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees
(i) to indemnify and hold harmless the Pledgee in such capacity and each other
Secured Creditor and their respective successors, assigns, employees, agents and
affiliates (individually an "Indemnitee," and collectively the "Indemnitees")
from and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all reasonable costs and expenses, including
reasonable attorneys' fees, in each case growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under any other Secured Debt Agreement (but excluding any claims,
demands, losses, judgments and liabilities or expenses to the extent incurred by
reason of gross negligence or willful misconduct of such Indemnitee). In no
event shall the Pledgee be liable, in the absence of gross negligence or willful
misconduct on its part, for any matter or thing in connection with this
Agreement other than to account for monies actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of any Pledgor
under this Section 11 are unenforceable for any reason, such Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY
MEMBER.
(a) Nothing herein shall be construed to make the Pledgee
or any other Secured Creditor liable as a member of any limited liability
company or as a partner of any partnership and neither the Pledgee nor any other
Secured Creditor by virtue of this Agreement or otherwise (except as referred to
in the following sentence) shall have any of the duties, obligations or
liabilities of a member of any limited liability company or partnership. The
parties hereto expressly agree that, unless the Pledgee shall become the
absolute owner of Collateral consisting of a Limited Liability Company Interest
or Partnership Interest pursuant hereto, this Agreement shall not be construed
as creating a partnership or joint venture among the Pledgee, any other Secured
Creditor, any Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph
(a) of this Section 12, the Pledgee, by accepting this Agreement, did not intend
to become a member of any limited liability company or a partner of any
partnership or otherwise be deemed to be a co-venturer with
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respect to any Pledgor, any limited liability company, partnership and/or any
other Person either before or after an Event of Default shall have occurred. The
Pledgee shall have only those powers set forth herein and the Secured Creditors
shall assume none of the duties, obligations or liabilities of a member of any
limited liability company or as a partner of any partnership or any Pledgor
except as provided in the last sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not
be obligated to perform or discharge any obligation of any Pledgor as a result
of the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with
all the rights, powers, privileges and authority so created, shall not at any
time or in any event obligate the Pledgee or any other Secured Creditor to
appear in or defend any action or proceeding relating to the Collateral to which
it is not a party, or to take any action hereunder or thereunder, or to expend
any money or incur any expenses or perform or discharge any obligation, duty or
liability under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY.
(a) Each Pledgor agrees that it will join with the
Pledgee in executing and, at such Pledgor's own expense, file and refile under
the Uniform Commercial Code or other applicable law such financing statements,
continuation statements and other documents in such offices as the Pledgee may
deem reasonably necessary and wherever required by law in order to perfect and
preserve the Pledgee's security interest in the Collateral and hereby authorizes
the Pledgee to file financing statements and amendments thereto relative to all
or any part of the Collateral without the signature of such Pledgor where
permitted by law, and agrees to do such further acts and things and to execute
and deliver to the Pledgee such additional conveyances, assignments, agreements
and instruments as the Pledgee may reasonably require or deem necessary to carry
into effect the purposes of this Agreement or to further assure and confirm unto
the Pledgee its rights, powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such
Pledgor's attorney-in-fact, with full authority in the place and stead of such
Pledgor and in the name of such Pledgor or otherwise, to act from time to time
solely after the occurrence and during the continuance of an Event of Default in
the Pledgee's reasonable discretion to take any action and to execute any
instrument which the Pledgee may deem reasonably necessary or advisable to
accomplish the purposes of this Agreement.
14. THE PLEDGEE AS AGENT. The Pledgee will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood and agreed by each Secured
Creditor that by accepting the benefits of this Agreement each such Secured
Creditor acknowledges and agrees that the obligations of the Pledgee as holder
of the Collateral and interests therein and with respect to the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this Agreement. The Pledgee shall act hereunder on the terms and conditions
set forth herein and in Article 12 of the Credit Agreement.
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15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Credit Agreement).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
PLEDGORS.
(a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and
has good and marketable title to, all Collateral consisting of one or
more Securities and that it has sufficient interest in all Collateral
in which a security interest is purported to be created hereunder for
such security interest to attach (subject, in each case, to no pledge,
lien, mortgage, hypothecation, security interest, charge, option,
Adverse Claim or other encumbrance whatsoever, except the liens and
security interests created by this Agreement);
(ii) it has full power, authority and legal right to
pledge all the Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no
consent of any other party (including, without limitation, any
stockholder, partner, member or creditor of such Pledgor or any of its
Subsidiaries) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required to
be obtained by such Pledgor in connection with (a) the execution,
delivery or performance of this Agreement, (b) the validity or
enforceability of this Agreement, (c) the perfection or enforceability
of the Pledgee's security interest in the Collateral or (d) except for
compliance with or as may be required by applicable securities laws,
the exercise by the Pledgee of any of its rights or remedies provided
herein;
(v) the execution, delivery and performance of this
Agreement will not violate any provision of any applicable law or
regulation or of any order, judgment, writ, award or decree of any
court, arbitrator or governmental authority, domestic or foreign,
applicable to such Pledgor, or of the certificate of incorporation,
operating agreement, limited liability company agreement, partnership
agreement or by-laws of such Pledgor or of any securities issued by
such Pledgor or any of its Subsidiaries, or of any mortgage, deed of
trust, indenture, lease, loan agreement, credit agreement or other
material contract, agreement or instrument or undertaking to which such
Pledgor or any of its
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Subsidiaries is a party or which purports to be binding upon such
Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries except as
contemplated by this Agreement;
(vi) all of the Collateral (consisting of Securities,
Limited Liability Company Interests or Partnership Interests) has been
duly and validly issued and acquired, is fully paid and non-assessable
and is subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes constituting an
Intercompany Note constitutes, or when executed by the obligor thereof
will constitute, the legal, valid and binding obligation of such
obligor, enforceable in accordance with its terms, except to the extent
that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws generally affecting creditors' rights and by equitable principles
(regardless of whether enforcement is sought in equity or at law); and
(viii) the pledge and collateral assignment to, and
possession by, the Pledgee of the Collateral consisting of Certificated
Securities and Pledged Notes pursuant to this Agreement creates a valid
and perfected first priority security interest in such Certificated
Securities and Pledged Notes, and the proceeds thereof, subject to no
prior Lien or encumbrance or to any agreement purporting to grant to
any third party a Lien or encumbrance on the property or assets of such
Pledgor which would include the Securities and the Pledgee is entitled
to all the rights, priorities and benefits afforded by the UCC or other
relevant law as enacted in any relevant jurisdiction to perfect
security interests in respect of such Collateral; and
(ix) "control" (as defined in Section 8-106 of the UCC)
has been obtained by the Pledgee over all Collateral consisting of
Securities (including Notes which are Securities) with respect to which
such "control" may be obtained pursuant to Section 8-106 of the UCC.
(b) Each Pledgor covenants and agrees that it will defend
the Pledgee's right, title and security interest in and to the Securities and
the proceeds thereof against the claims and demands of all persons whomsoever;
and each Pledgor covenants and agrees that it will have like title to and right
to pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
17. CHIEF EXECUTIVE OFFICE; JURISDICTION OF ORGANIZATION
RECORDS. The full legal name and jurisdiction of organization of each Pledgor is
as set forth in Annex F hereto. The chief executive office of each Pledgor is
located at the address specified in Annex F hereto. No Pledgor will move its
chief executive office except to such new location as such Pledgor may establish
in accordance with the last sentence of this Section 17. The originals of all
documents in the possession of such Pledgor evidencing all Collateral, including
but not
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limited to all Limited Liability Company Interests and Partnership Interests,
and the only original books of account and records of such Pledgor relating
thereto are, and will continue to be, kept at such chief executive office as
specified in Annex F hereto, or at such new locations as such Pledgor may
establish in accordance with the last sentence of this Section 17. All Limited
Liability Company Interests and Partnership Interests are, and will continue to
be, maintained at, and controlled and directed (including, without limitation,
for general accounting purposes) from, such chief executive office as specified
in Annex F hereto, or such new locations as such Pledgor may establish in
accordance with the last sentence of this Section 17. No Pledgor shall change
its chief executive office, name, form of organization from that of a
corporation or jurisdiction of organization until (i) it shall have given to the
Pledgee not less than 30 days' prior written notice of its intention so to do,
clearly describing the proposed changes and providing such other information in
connection therewith as the Pledgee may reasonably request and (ii) with respect
to such changes, it shall have taken all action, satisfactory to the Pledgee, to
maintain the security interest of the Collateral Agent in the Collateral
intended to be granted hereby at all times fully perfected and in full force and
effect. Promptly after establishing a new location for such offices in
accordance with the immediately preceding sentence, the respective Pledgor shall
deliver to the Pledgee a supplement to Annex F hereto so as to cause such Annex
F hereto to be complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations
of each Pledgor under this Agreement shall be absolute and unconditional and
shall remain in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise affected by, any
circumstance or occurrence whatsoever, including, without limitation: (i) any
renewal, extension, amendment or modification of or addition or supplement to or
deletion from any Secured Debt Agreement or any other instrument or agreement
referred to therein, or any assignment or transfer of any thereof; (ii) any
waiver, consent, extension, indulgence or other action or inaction under or in
respect of any such agreement or instrument including, without limitation, this
Agreement; (iii) any furnishing of any additional security to the Pledgee or its
assignee or any acceptance thereof or any release of any security by the Pledgee
or its assignee; (iv) any limitation on any party's liability or obligations
under any such instrument or agreement or any invalidity or unenforceability, in
whole or in part, of any such instrument or agreement or any term thereof; or
(v) any bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to any Pledgor or any
Subsidiary of any Pledgor, or any action taken with respect to this Agreement by
any trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing.
19. REGISTRATION, ETC.
(a) If there shall have occurred and be continuing an
Event of Default then, and in every such case, upon receipt by any Pledgor from
the Pledgee of a written request or requests that such Pledgor cause any
registration, qualification or compliance under any Federal or state securities
law or laws to be effected with respect to all or any part of the Collateral
consisting of Securities, Limited Liability Company Interests or Partnership
Interests, such Pledgor as soon as practicable and at its expense will cause
such registration to be effected (and be kept effective) and will cause such
qualification and compliance to be declared effected (and
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be kept effective) as may be so requested and as would permit or facilitate the
sale and distribution of such Collateral, including, without limitation,
registration under the Securities Act, as then in effect (or any similar statute
then in effect), appropriate qualifications under applicable blue sky or other
state securities laws and appropriate compliance with any other government
requirements, provided, that the Pledgee shall furnish to such Pledgor such
information regarding the Pledgee as such Pledgor may reasonably request in
writing and as shall be required in connection with any such registration,
qualification or compliance. Such Pledgor will cause the Pledgee to be kept
advised in writing as to the progress of each such registration, qualification
or compliance and as to the completion thereof, will furnish to the Pledgee such
number of prospectuses, offering circulars or other documents incident thereto
as the Pledgee from time to time may reasonably request, and will indemnify the
Pledgee, each other Secured Creditor and all others participating in the
distribution of such Collateral against all claims, losses, damages and
liabilities caused by any untrue statement (or alleged untrue statement) of a
material fact contained therein (or in any related registration statement,
notification or the like) or by any omission (or alleged omission) to state
therein (or in any related registration statement, notification or the like) a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same may have been caused by an
untrue statement or omission based upon information furnished in writing to such
Pledgor by the Pledgee or such other Secured Creditor expressly for use therein.
(b) If at any time when the Pledgee shall determine to
exercise its right to sell all or any part of the Collateral consisting of
Securities, Limited Liability Company Interests or Partnership Interests
pursuant to Section 7 hereof, and the Collateral or the part thereof to be sold
shall not, for any reason whatsoever, be effectively registered under the
Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral, as the case may be, or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, in good faith
deems reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until
after registration as aforesaid.
20. TERMINATION; RELEASE.
(a) After the Termination Date, this Agreement and the
security interest created hereby shall terminate (provided that all indemnities
set forth herein including, without limitation, in Section 11 hereof shall
survive any such termination), and the Pledgee, at the request and expense of
any Pledgor, will execute and deliver to such Pledgor a proper instrument or
instruments acknowledging the satisfaction and termination of this Agreement,
and will duly
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assign, transfer and deliver to such Pledgor (without recourse and without any
representation or warranty) such of the Collateral as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement, together with
any monies at the time held by the Pledgee or any of its sub-agents hereunder.
As used in this Agreement, "Termination Date" shall mean the date upon which the
Total Commitment and all Interest Rate Protection Agreements and Other Hedging
Agreements have been terminated, no Note under the Credit Agreement is
outstanding (and all Loans have been repaid in full), all Letters of Credit have
been terminated and all Obligations then due and payable have been paid in full.
(b) In the event that any part of the Collateral is sold
in connection with a sale permitted by Section 10.2 of the Credit Agreement
(other than a sale to any Pledgor or any Subsidiary thereof) or is otherwise
released at the direction of the Required Lenders (or all Lenders if required by
Section 13.11 of the Credit Agreement) and the proceeds of such sale or sales or
from such release are applied in accordance with the provisions of the Credit
Agreement, to the extent required to be so applied, the Pledgee, at the request
and expense of any Pledgor, will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral (and releases therefor) as is then being (or has been) so sold or
released and has not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires that the Pledgee
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 20(a) or (b) hereof, it shall deliver to the Pledgee a certificate
signed by a principal executive officer of such Pledgor stating that the release
of the respective Collateral is permitted pursuant to such Section 20(a) or (b).
(d) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 20.
21. NOTICES, ETC. All such notices and communications
hereunder shall be sent or delivered by mail, telegraph, telex, telecopy, cable
or overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier and when mailed shall be effective three Business Days
following deposit in the mail with proper postage, except that notices and
communications to the Pledgee or any Pledgor shall not be effective until
received by the Pledgee or such Pledgor, as the case may be. All notices and
other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
c/o infoUSA Inc.
5711 South 86th Circle
Omaha, Nebraska 68127
Attention: Chief Financial Officer
Telephone No.: (402) 593-4500
Telecopier No.: (402) 331-1505
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(b) if to the Pledgee, at:
Wells Fargo Bank, National Association
1740 Broadway
MAC: C7300-034
Denver, Colorado 80209
Attention: Kevin Rapp
Telephone No.: (___) ___________
Telecopier No.: (___) ___________
(c) if to any Lender Creditor, either (x) to the
Administrative Agent, at the address of the Administrative Agent specified in
the Credit Agreement or (y) at such address as such Lender Creditor shall have
specified in the Credit Agreement;
(d) if to any Other Creditor at such address as such
Other Creditor shall have specified in writing to the Pledgors and the Pledgee;
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
22. WAIVER; AMENDMENT. None of the terms and conditions
of this Agreement may be changed, waived, modified or varied in any manner
whatsoever unless in writing duly signed by each Pledgor directly affected
thereby and the Pledgee (with the written consent of either (x) the Required
Lenders (or all of the Lenders to the extent required by Section 13.11 of the
Credit Agreement) at all times prior to the time on which all Credit Document
Obligations have been paid in full or (y) the holders of at least 50% of the
aggregate principal amount of the outstanding Other Obligations at all times
after the time on which all Credit Document Obligations have been paid in full);
provided, that any change, waiver, modification or variance affecting the rights
and benefits of a single Class (as defined below) of Secured Creditors (and not
all Secured Creditors in a like or similar manner) shall also require the
written consent of the Requisite Creditors (as defined below) of such affected
Class. For the purpose of this Agreement, the term "Class" shall mean each class
of Secured Creditors, i.e., whether (i) the Lender Creditors as holders of the
Credit Document Obligations or (ii) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (i) with respect to the Credit
Document Obligations, the Required Lenders and (ii) with respect to the Other
Obligations, the holders of at least 50% of the aggregate principal amount of
the outstanding Other Obligations.
23. MISCELLANEOUS. This Agreement shall be binding upon
the parties hereto and their respective successors and assigns and shall inure
to the benefit of and be enforceable by each of the parties hereto and its
successors and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement without the prior consent of the Collateral
Agent. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MINNESOTA. EACH PLEDGOR
IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION PROCEEDING OR
COUNTERCLAIM
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ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. The headings in this Agreement are for purposes of reference only and
shall not limit or define the meaning hereof. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of this
Agreement shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Agreement which shall
remain binding on all parties hereto.
24. RECOURSE. This Agreement is made with full recourse
to the Pledgors and pursuant to and upon all the representations, warranties,
covenants and agreements on the part of the Pledgors contained herein and in the
other Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
25. ADDITIONAL PLEDGORS. It is understood and agreed that
any Subsidiary of the Borrower that is required to execute a counterpart of this
Agreement after the date hereof pursuant to the Credit Agreement shall become a
Pledgor hereunder by executing a counterpart hereof and delivering the same to
the Pledgee.
* * * *
-22-
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
infoUSA INC., as a Pledgor
By____________________________
Name:_________________________
Title: _______________________
AMERICAN CHURCH LISTS, INC.,
BJ HUNTER INFORMATION, INC.,
CD-ROM TECHNOLOGIES, INC.,
CITY DIRECTORIES, INC.,
CLICKACTION INC.,
DONNELLEY MARKETING, INC.,
HILL-DONNELLY CORPORATION
IDEXEC, INC.,
INFOUSA MARKETING, INC.,
LIST BAZAAR.COM, INC.,
MARKADO, INC.,
STRATEGIC INFORMATION MANAGEMENT, INC.,
TGMVC CORPORATION,
TRIPLEX DIRECT MARKETING CORP.,
WALTER KARL, INC., and
YESMAIL, INC.,
each as a Pledgor
By ___________________________
Name:_________________________
Title: _______________________
Signature Page
to
Pledge Agreement
Accepted and Agreed to:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Pledgee, Collateral Agent
By:_________________________________
Name:_______________________________
Title: _____________________________
Signature Page
to
Pledge Agreement
ANNEX A
to
PLEDGE AGREEMENT
LIST OF SUBSIDIARIES
See Schedule 3 and 7 of the Disclosure Letter to the Credit Agreement.
ANNEX B
to
PLEDGE AGREEMENT
LIST OF STOCK
See Schedule 3 and 7 of the Disclosure Letter to the Credit Agreement, provided
that with respect to the common stock of BJ Hunter Information, Inc., only 65%
of such common stock is required to be pledged.
ANNEX C
to
PLEDGE AGREEMENT
LIST OF NOTES
Various members of senior management of the Borrower owe the Borrower pursuant
to promissory notes an aggregate of $325,000 (as of February 29, 2004) in
connection with the exercise of stock options to acquire common stock of the
Borrower.
ANNEX D
to
PLEDGE AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
None.
ANNEX E
to
PLEDGE AGREEMENT
LIST OF PARTNERSHIP INTERESTS
None.
ANNEX F
to
PLEDGE AGREEMENT
LIST OF JURISDICTIONS OF ORGANIZATION
See Annex A to the Security Agreement.
LIST OF CHIEF EXECUTIVE OFFICES
See Annex B to the Security Agreement.
ANNEX G
to
PLEDGE AGREEMENT
Form of Agreement Regarding Uncertificated Securities, Limited Liability
Company Interests and Partnership Interests
THIS AGREEMENT (as amended, modified or supplemented from time
to time, this "Agreement"), is dated as of _______ __, ____, among the
undersigned pledgor (the "Pledgor"), Wells Fargo Bank, National Association, not
in its individual capacity but solely as Collateral Agent (the "Pledgee"), and
__________, as the issuer of the Uncertificated Securities, Limited Liability
Company Interests and/or Partnership Interests (each as defined below) (the
"Issuer").
WITNESSETH:
WHEREAS, the Pledgor, certain of its affiliates and the
Pledgee have entered into a Pledge Agreement, dated as of March __, 2004 (as
amended, amended and restated, modified or supplemented from time to time, the
"Pledge Agreement"), under which, among other things, in order to secure the
payment of the Obligations (as defined in the Pledge Agreement), the Pledgor
will pledge to the Pledgee for the benefit of the Secured Creditors (as defined
in the Pledge Agreement), and grant a security interest in favor of the Pledgee
for the benefit of the Secured Creditors in, all of the right, title and
interest of the Pledgor in and to any and all (1) "uncertificated securities"
(as defined in Section 8-102(a)(18) of the Uniform Commercial Code, as adopted
in the State of Minnesota) ("Uncertificated Securities"), (2) Partnership
Interests (as defined in the Pledge Agreement) and (3) Limited Liability Company
Interests (as defined in the Pledge Agreement), in each case issued from time to
time by the Issuer, whether now existing or hereafter from time to time acquired
by the Pledgor (with all of such Uncertificated Securities, Partnership
Interests and Limited Liability Company Interests being herein collectively
called the "Issuer Pledged Interests"); and
WHEREAS, the Pledgor desires the Issuer to enter into this
Agreement in order to perfect the security interest of the Pledgee under the
Pledge Agreement in the Issuer Pledged Interests, to vest in the Pledgee control
of the Issuer Pledge Interests and to provide for the rights of the parties
under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Pledgor hereby irrevocably authorizes and directs the
Issuer, and the Issuer hereby agrees, to comply with any and all instructions
and orders originated by the Pledgee (and its successors and assigns) regarding
any and all of the Issuer Pledged Interests without the
further consent by the registered owner (including the Pledgor), and not to
comply with any instructions or orders regarding any or all of the Issuer
Pledged Interests originated by any person or entity other than the Pledgee (and
its successors and assigns) or a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any
security interest, lien or other encumbrance or claim affecting the Issuer
Pledged Interests (other than the security interest of the Pledgee) has been
received by it, and (ii) the security interest of the Pledgee in the Issuer
Pledged Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the
pledge by the Pledgor of, and the granting by the Pledgor of a security interest
in, the Issuer Pledged Interests to the Pledgee, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to the Pledgor by the
Issuer in respect of the Issuer will also be sent to the Pledgee at the
following address:
Wells Fargo Bank, National Association
1740 Broadway
MAC: C7300-034
Denver, Colorado 80209
Attention: Kevin Rapp
Telephone No.: ____________
Telecopier No.: ___________
5. Until the Pledgee shall have delivered written notice to
the Issuer that all of the Obligations have been paid in full and this Agreement
is terminated, the Issuer will, upon receiving notice from the Pledgee stating
that an "Event of Default" has occurred and is continuing, send any and all
redemptions, distributions, interest or other payments in respect of the Issuer
Pledged Interests from the Issuer for the account of the Pledgor only by wire
transfers to the following address:
_________________________
_________________________
_________________________
ABA No.: _________________________
Account in the Name of: _________
Account No.: ____________________
6. Except as expressly provided otherwise in Sections 4 and 5,
all notices, shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph
G-2
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier and when mailed shall be effective three Business Days
following deposit in the mail with proper postage, except that notices and
communications to the Pledgee, the Pledgor or the Issuer shall not be effective
until received by the Pledgee, the Pledgor or the Issuer, as the case may be.
All notices and other communications shall be in writing and addressed as
follows:
(a) if to the Pledgor, at:
c/o infoUSA Inc.
5711 South 86th Circle
Omaha, Nebraska 68127
Attention: Chief Financial Officer
Tel: (402) 593-4500
Fax: (402) 331-1505
(b) if to the Pledgee, at:
Wells Fargo Bank, National Association
1740 Broadway
MAC: C7300-034
Denver, Colorado 80209
Attention: Kevin Rapp
Telephone No.: _____________
Telecopier No.: _____________
(c) if to the Issuer, at:
__________________________
__________________________
__________________________
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in Minnesota are authorized to remain closed.
7. This Agreement shall be binding upon the successors and
assigns of the Pledgor and the Issuer and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in the manner
whatsoever except in writing signed by the Pledgee, the Issuer and the Pledgor.
G-3
8. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota, without regard to its
principles of conflict of laws.
IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer
have caused this Agreement to be executed by their duly elected officers duly
authorized as of the date first above written.
[_______________________________],
as Pledgor
By________________________________________
Name:
Title:
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
not in its individual capacity but solely
as Collateral Agent and Pledgee
By________________________________________
Name:
Title:
[________________________________],
the Issuer
By_________________________________________
Name:
Title:
G-4
ANNEX H
to
PLEDGE AGREEMENT
SECURITIES ACCOUNT CONTROL AGREEMENT
This Securities Account Control Agreement dated as of ________
___, 2004 (this "Agreement") is made among _______________________, a
_________________ (the "Debtor"), Wells Fargo Bank, National Association, as
collateral agent for the Secured Parties (the "Collateral Agent") and
________________________, in its capacity as a "securities intermediary" as
defined in Section 8-102 of the UCC (in such capacity, the "Securities
Intermediary"). Capitalized terms used but not defined herein shall have the
meaning assigned thereto in the Pledge Agreement, dated as of March __, 2004,
among the Debtor and the Collateral Agent (as amended, modified or supplemented
from time to time, the "Pledge Agreement"). All references herein to the "UCC"
shall mean the Uniform Commercial Code as in effect in the State of Minnesota.
SECTION 1. ESTABLISHMENT OF SECURITIES ACCOUNT. The Securities
Intermediary hereby confirms and agrees that:
(a) The Securities Intermediary has established account number
______________ in the name "_____________" (such account and any
successor account, the "Securities Account") and the Securities
Intermediary shall not change the name or account number of the
Securities Account without the prior written consent of the Collateral
Agent;
(b) All securities or other property underlying any financial
assets credited to the Securities Account shall be registered in the
name of the Securities Intermediary, indorsed to the Securities
Intermediary or in blank or credited to another securities account
maintained in the name of the Securities Intermediary and in no case
will any financial asset credited to the Securities Account be
registered in the name of the Debtor, payable to the order of the
Debtor or specially indorsed to the Debtor except to the extent the
foregoing have been specially indorsed to the Securities Intermediary
or in blank;
(c) All property delivered to the Securities Intermediary
pursuant to the Pledge Agreement will be promptly credited to the
Securities Account; and
(d) The Securities Account is a "securities account" within
the meaning of Section 8-501 of the UCC.
SECTION 2. "FINANCIAL ASSETS" ELECTION. The Securities Intermediary
hereby agrees that each item of property (including, without limitation, any
investment property, financial asset, security, instrument, general intangible
or cash) credited to the Securities Account shall be treated as a "financial
asset" within the meaning of Section 8-102(a)(9) of the UCC.
SECTION 3. CONTROL OF THE SECURITIES ACCOUNT. If at any time the
Securities Intermediary shall receive any order from the Collateral Agent
directing transfer or redemption of any financial asset relating to the
Securities Account, the Securities Intermediary shall comply with such
5
entitlement order without further consent by the Debtor or any other person. The
Debtor is otherwise entitled to issue entitlement orders and if such orders
conflict with any entitlement order issued by the Collateral Agent, the
Securities Intermediary shall follow the orders issued by the Collateral Agent.
SECTION 4. SUBORDINATION OF LIEN; WAIVER OF SET-OFF. In the event that
the Securities Intermediary has or subsequently obtains by agreement, by
operation of law or otherwise a security interest in the Securities Account or
any security entitlement credited thereto, the Securities Intermediary hereby
agrees that such security interest shall be subordinate to the security interest
of the Collateral Agent. The financial assets and other items deposited to the
Securities Account will not be subject to deduction, set-off, banker's lien, or
any other right in favor of any person other than the Collateral Agent (except
that the Securities Intermediary may set off (i) all amounts due to the
Securities Intermediary in respect of customary fees and expenses for the
routine maintenance and operation of the Securities Account and (ii) the face
amount of any checks which have been credited to such Securities Account but are
subsequently returned unpaid because of uncollected or insufficient funds).
SECTION 5. CHOICE OF LAW. This Agreement and the Securities Account
shall each be governed by the laws of the State of Minnesota. Regardless of any
provision in any other agreement, for purposes of the UCC, Minnesota shall be
deemed to be the Securities Intermediary's jurisdiction (within the meaning of
Section 8-110 of the UCC) and the Securities Account (as well as the securities
entitlements related thereto) shall be governed by the laws of the State of
Minnesota.
SECTION 6. CONFLICT WITH OTHER AGREEMENTS.
(a) In the event of any conflict between this Agreement (or
any portion thereof) and any other agreement now existing or hereafter
entered into, the terms of this Agreement shall prevail;
(b) No amendment or modification of this Agreement or waiver
of any right hereunder shall be binding on any party hereto unless it
is in writing and is signed by all of the parties hereto;
(c) The Securities Intermediary hereby confirms and agrees
that:
(i) There are no other agreements entered into
between the Securities Intermediary and the Debtor with
respect to the Securities Account;
(ii) It has not entered into, and until the
termination of this Agreement, will not enter into, any
agreement with any other person relating to the Securities
Account and/or any financial assets credited thereto pursuant
to which it has agreed to comply with entitlement orders (as
defined in Section 8-102(a)(8) of the UCC) of such other
person; and
(iii) It has not entered into, and until the
termination of this Agreement, will not enter into, any
agreement with the Debtor or the Collateral Agent
6
purporting to limit or condition the obligation of the
Securities Intermediary to comply with entitlement orders as
set forth in Section 3 hereof.
SECTION 7. ADVERSE CLAIMS. Except for the claims and interest of the
Collateral Agent and of the Debtor in the Securities Account, the Securities
Intermediary does not know of any claim to, or interest in, the Securities
Account or in any "financial asset" (as defined in Section 8-102(a) of the UCC)
credited thereto. If any person asserts any lien, encumbrance or adverse claim
(including any writ, garnishment, judgment, warrant of attachment, execution or
similar process) against the Securities Account or in any financial asset
carried therein, the Securities Intermediary will promptly notify the Collateral
Agent and the Debtor thereof.
SECTION 8. MAINTENANCE OF SECURITIES ACCOUNT. In addition to, and not
in lieu of, the obligation of the Securities Intermediary to honor entitlement
orders as agreed in Section 3 hereof, the Securities Intermediary agrees to
maintain the Securities Account as follows:
(a) Notice of Sole Control. If at any time the Collateral
Agent delivers to the Securities Intermediary a Notice of Sole Control
in substantially the form set forth in Exhibit A hereto, the Securities
Intermediary agrees that after receipt of such notice, it will take all
instruction with respect to the Securities Account solely from the
Collateral Agent.
(b) Voting Rights. Until such time as the Securities
Intermediary receives a Notice of Sole Control pursuant to subsection
(a) of this Section 8, the Debtor shall direct the Securities
Intermediary with respect to the voting of any financial assets
credited to the Securities Account.
(c) Permitted Investments. Until such time as the Securities
Intermediary receives a Notice of Sole Control signed by the Collateral
Agent, the Debtor shall direct the Securities Intermediary with respect
to the selection of investments to be made for the Securities Account;
provided, however, that the Securities Intermediary shall not honor any
instruction to purchase any investments other than investments of a
type described on Exhibit B hereto.
(d) Statements and Confirmations. The Securities Intermediary
will promptly send copies of all statements, confirmations and other
correspondence concerning the Securities Account and/or any financial
assets credited thereto simultaneously to each of the Debtor and the
Collateral Agent at the address for each set forth in Section 12 of
this Agreement.
(e) Tax Reporting. All items of income, gain, expense and loss
recognized in the Securities Account shall be reported to the Internal
Revenue Service and all state and local taxing authorities under the
name and taxpayer identification number of the Debtor.
SECTION 9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SECURITIES
INTERMEDIARY. The Securities Intermediary hereby makes the following
representations, warranties and covenants:
7
(a) The Securities Account has been established as set forth
in Section I above and such Securities Account will be maintained in
the manner set forth herein until termination of this Agreement; and
(b) This Agreement is the valid and legally binding
obligations of the Securities Intermediary.
SECTION 10. INDEMNIFICATION OF SECURITIES INTERMEDIARY. The Debtor and
the Collateral Agent hereby agree that (a) the Securities Intermediary is
released from any and all liabilities to the Debtor and the Collateral Agent
arising from the terms of this Agreement and the compliance of the Securities
Intermediary with the terms hereof, except to the extent that such liabilities
arise from the Securities Intermediary's negligence and (b) the Debtor, its
successors and assigns shall at all times indemnify and save harmless the
Securities Intermediary from and against any and all claims, actions and suits
of others arising out of the terms of this Agreement or the compliance of the
Securities Intermediary with the terms hereof, except to the extent that such
arises from the Securities Intermediary's negligence, and from and against any
and all liabilities, losses, damages, costs, charges, counsel fees and other
expenses of every nature and character arising by reason of the same, until the
termination of this Agreement.
SECTION 11. SUCCESSORS; ASSIGNMENT. The terms of this Agreement shall
be binding upon, and shall inure to the benefit of, the parties hereto and their
respective corporate successors or heirs and personal representatives who obtain
such rights solely by operation of law. The Collateral Agent may assign its
rights hereunder only with the express written consent of the Securities
Intermediary and by sending written notice of such assignment to the Debtor.
SECTION 12. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth below.
Debtor: c/o infoUSA Inc.
5711 South 86th Circle
Omaha, Nebraska 68127
Attention: Chief Financial Officer
Telephone: (402) 593-4500
Telecopier: (402) 331-1505
Collateral Agent: Wells Fargo Bank, National Association
1740 Broadway
MAC C7300-034
Denver, Colorado 80209
Attention: Kevin Rapp
Telecopier: _____________
8
Financial Institution: __________________________
___________________________
___________________________
Attention: ________________
Telecopier: _______________
Any party may change its address for notices in the manner set forth above.
SECTION 13. TERMINATION. The obligations of the Securities Intermediary
to the Collateral Agent pursuant to this Agreement shall continue in effect
until the security interest of the Collateral Agent in the Securities Account
has been terminated pursuant to the terms of the Pledge Agreement and the
Collateral Agent has notified the Securities Intermediary of such termination in
writing. The Collateral Agent agrees to provide Notice of Termination in
substantially the form of Exhibit C hereto to the Securities Intermediary upon
the request of the Debtor on or after the termination of the Collateral Agent's
security interest in the Securities Account pursuant to the terms of the Pledge
Agreement. The termination of this Agreement shall not terminate the Securities
Account or alter the obligations of the Securities Intermediary to the Debtor
pursuant to any other agreement with respect to the Securities Account.
SECTION 14. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
9
IN WITNESS WHEREOF, the parties hereto have caused this Securities
Account Control Agreement to be executed as of the date first above written by
their respective officers thereunto duly authorized.
_______________________________________
By: ___________________________________
Name: _________________________________
Title:_________________________________
___________________________, as Securities
Intermediary
By: _____________________________________
Name: ___________________________________
Title:____________________________________
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Collateral Agent
By: ________________________________
Name: ______________________________
Title:________________________________
EXHIBIT A
TO SECURITIES ACCOUNT CONTROL AGREEMENT
[Letterhead of Collateral Agent]
[Date]
[Name and Address of Financial Institution]
Attention:
Re: Notice of Sole Control
Ladies and Gentlemen:
As referenced in the Securities Account Control Agreement dated as of
__________ __, 2004, among ____________________, you and the undersigned (a copy
of which is attached), we hereby give you notice of our sole control over
securities account number [ACCOUNT NUMBER] (the "Securities Account") and all
financial assets credited thereto. You are hereby instructed not to accept any
direction, instructions or entitlement orders with respect to the Securities
Account or the financial assets credited thereto from any person other than the
undersigned, unless otherwise ordered by a court of competent jurisdiction. You
are instructed to deliver a copy of this notice by facsimile transmission to
[NAME OF DEBTOR].
Very truly yours,
Wells Fargo Bank, National Association, as
Collateral Agent
By:__________________________________________
Name:________________________________________
Title:_______________________________________
cc: [NAME OF THE DEBTOR]
EXHIBIT B
TO SECURITIES ACCOUNT CONTROL AGREEMENT
Permitted Investments
EXHIBIT C
TO SECURITIES ACCOUNT CONTROL AGREEMENT
[Letterhead of the Collateral Agent]
[Date]
[Name and Address of Financial Institution]
Attention:
Re: Termination of Securities Account Control Agreement
You are hereby notified that the Securities Account Control Agreement
dated as of ____________ among you, ___________________ (the "Debtor") and the
undersigned (a copy of which is attached) is terminated and you have no further
obligations to the undersigned pursuant to such Agreement. Notwithstanding any
previous instructions to you, you are hereby instructed to accept all future
directions with respect to [ACCOUNT NUMBER(S)] from the Debtor. This notice
terminates any obligations you may have to the undersigned with respect to such
account, however nothing contained in this notice shall alter any obligations
which you may otherwise owe to the Debtor pursuant to any other agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Debtor.
Very truly yours,
Wells Fargo Bank, National Association., as
Collateral Agent
By:__________________________________________
Name:________________________________________
Title:_______________________________________
ANNEX I
to
PLEDGE AGREEMENT
DEPOSIT ACCOUNT CONTROL AGREEMENT
This Deposit Account Control Agreement dated as of March __, 2004 (this
"Agreement") is made among _________________ (the "Debtor"), Wells Fargo Bank,
National Association, as collateral agent for the Secured Parties (the
"Collateral Agent") and ____________________, in its capacity as a "bank" as
defined in Section 9-102 of the UCC (in such capacities, the "Financial
Institution"). Capitalized terms used but not defined herein shall have the
meaning assigned thereto in the Pledge Agreement, dated as of the date hereof,
among the Debtor and the Collateral Agent (as amended, modified or supplemented
from time to time, the "Pledge Agreement"). All references herein to the "UCC"
shall mean the Uniform Commercial Code as in effect in the State of Minnesota.
SECTION 1. ESTABLISHMENT OF DEPOSIT ACCOUNT. The Financial Institution
hereby confirms and agrees that:
(a) The Financial Institution has established account number
________________ in the name "___________________" (such account and
any successor account, the "Deposit Account") and the Financial
Institution shall not change the name or account number of the Deposit
Account without the prior written consent of the Collateral Agent; and
(b) The Deposit Account is a "deposit account" within the
meaning of Section 9-102(a)(29) of the UCC.
SECTION 2. CONTROL OF THE DEPOSIT ACCOUNT. If at any time the Financial
Institution shall receive any instructions originated by the Collateral Agent
directing the disposition of funds in the Deposit Account, the Financial
Institution shall comply with such instructions without further consent by the
Debtor or any other person. The Financial Institution hereby acknowledges that
for purposes of Section 9-309 of the Minnesota Uniform Commercial Code it has
received notice of the security interest of the Collateral Agent in the Deposit
Account and hereby acknowledges and consents to such lien.
SECTION 3. SUBORDINATION OF LIEN; WAIVER OF SET-OFF. In the event that
the Financial Institution has or subsequently obtains by agreement, by operation
of law or otherwise a security interest in the Deposit Account or any funds
credited thereto, the Financial Institution hereby agrees that such security
interest shall be subordinate to the security interest of the Collateral Agent.
Money and other items credited to the Deposit Account will not be subject to
deduction, set-off, banker's lien, or any other right in favor of any person
other than the Collateral Agent (except that the Financial Institution may set
off (i) all amounts due to the Financial Institution in respect of customary
fees and expenses for the routine maintenance and operation of the Deposit
Account and (ii) the face amount of any checks which have been credited to such
Deposit Account but are subsequently returned unpaid because of uncollected or
insufficient funds).
SECTION 4. CHOICE OF LAW. This Agreement and the Deposit Account shall
each be governed by the laws of the State of Minnesota. Regardless of any
provision in any other agreement, for purposes of the UCC, Minnesota shall be
deemed to be the Financial Institution's jurisdiction (within the meaning of
Section 9-304 of the UCC) and the Deposit Account shall be governed by the laws
of the State of Minnesota.
SECTION 5. CONFLICT WITH OTHER AGREEMENTS.
(a) In the event of any conflict between this Agreement (or
any portion thereof) and any other agreement now existing or hereafter
entered into, the terms of this Agreement shall prevail;
(b) No amendment or modification of this Agreement or waiver
of any right hereunder shall be binding on any party hereto unless it
is in writing and is signed by all of the parties hereto; and
(c) The Financial Institution hereby confirms and agrees that:
(i) There are no other agreements entered into
between the Financial Institution and the Debtor with respect
to the Deposit Account; and
(ii) It has not entered into, and until the
termination of this Agreement, will not enter into, any
agreement with any other person relating the Deposit Account
and/or any funds credited thereto pursuant to which it has
agreed to comply with instructions originated by such persons
as contemplated by Section 9-104 of the UCC.
SECTION 6. ADVERSE CLAIMS. The Financial Institution does not know of
any liens, claims or encumbrances relating to the Deposit Account. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Deposit Account, the Financial Institution will promptly notify the Collateral
Agent and the Debtor thereof.
SECTION 7. MAINTENANCE OF DEPOSIT ACCOUNT. In addition to, and not in
lieu of, the obligation of the Financial Institution to honor instructions as
set forth in Section 2 hereof, the Financial Institution agrees to maintain the
Deposit Account as follows:
(a) STATEMENTS AND CONFIRMATIONS. The Financial Institution
will promptly send copies of all statements, confirmations and other
correspondence concerning the Deposit Account simultaneously to each of
the Debtor and the Collateral Agent at the address for each set forth
in Section 11 of this Agreement; and
(b) TAX REPORTING. All interest, if any, relating to the
Deposit Account, shall be reported to the Internal Revenue Service and
all state and local taxing authorities under the name and taxpayer
identification number of the Debtor.
SECTION 8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE FINANCIAL
INSTITUTION. The Financial Institution hereby makes the following
representations, warranties and covenants:
(a) The Deposit Account has been established as set forth in
Section 1 and such Deposit Account will be maintained in the manner set
forth herein until termination of this Agreement; and
(b) This Agreement is the valid and legally binding
obligations of the Financial Institution.
SECTION 9. INDEMNIFICATION OF FINANCIAL INSTITUTION. The Debtor and the
Collateral Agent hereby agree that (a) the Financial Institution is released
from any and all liabilities to the Debtor and the Collateral Agent arising from
the terms of this Agreement and the compliance of the Financial Institution with
the terms hereof, except to the extent that such liabilities arise from the
Financial Institution's negligence and (b) the Debtor, its successors and
assigns shall at all times indemnify and save harmless the Financial Institution
from and against any and all claims, actions and suits of others arising out of
the terms of this Agreement or the compliance of the Financial Institution with
the terms hereof, except to the extent that such arises from the Financial
Institution's negligence, and from and against any and all liabilities, losses,
damages, costs, charges, counsel fees and other expenses of every nature and
character arising by reason of the same, until the termination of this
Agreement.
SECTION 10. SUCCESSORS; ASSIGNMENT. The terms of this Agreement shall
be binding upon, and shall inure to the benefit of, the parties hereto and their
respective corporate successors or heirs and personal representatives who obtain
such rights solely by operation of law. The Collateral Agent may assign its
rights hereunder only with the express written consent of the Financial
Institution and by sending written notice of such assignment to the Debtor.
SECTION 11. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given when delivered in person, or when sent by
telecopy or other electronic means and electronic confirmation of error free
receipt is received or two (2) days after being sent by certified or registered
United States mail, return receipt requested, postage prepaid, addressed to the
party at the address set forth below.
Debtor: infoUSA Inc.
5711 S. 86th Circle
Omaha, Nebraska 68127
Attention: Chief Financial Officer
Telecopier: (402) 592-4006
Collateral Agent: Wells Fargo Bank, National Association
1740 Broadway
MAC C7300-034
Denver, Colorado 80209
Attention: Kevin Rapp
Telecopier: _____________
Financial Institution: ____________________________
____________________________
____________________________
Attention: _________________
Telecopier: ________________
Any party may change its address for notices in the manner set forth above.
SECTION 12. TERMINATION. The obligations of the Financial Institution
to the Collateral Agent pursuant to this Agreement shall continue in effect
until the security interest of the Collateral Agent in the Deposit Account has
been terminated pursuant to the terms of the Pledge Agreement and the Collateral
Agent has notified the Financial Institution of such termination in writing. The
Collateral Agent agrees to provide Notice of Termination in substantially the
form of Exhibit A hereto to the Financial Institution upon the request of the
Debtor on or after the termination of the Collateral Agent's security interest
in the Deposit Account pursuant to the terms of the Pledge Agreement. The
termination of this Agreement shall not terminate the Deposit Account or alter
the obligations of the Financial Institution to the Debtor pursuant to any other
agreement with respect to the Deposit Account.
SECTION 13. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Deposit Account
Control Agreement to be executed as of the date first above written by their
respective officers thereunto duty authorized.
____________________________________________
By: ________________________________________
Name: ______________________________________
Title:______________________________________
____________________________________________
By: ________________________________________
Name: ______________________________________
Title:______________________________________
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
Collateral Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
EXHIBIT A
TO DEPOSIT ACCOUNT CONTROL AGREEMENT
[Letterhead of the Collateral Agent]
[Date]
[Name and Address of Financial Institution]
Attention:
Re: Termination of Deposit Account Control Agreement
You are hereby notified that the Deposit Account Control Agreement
dated as of ____________, 2004 among ____________________ (the "Debtor"), you
and the undersigned (a copy of which is attached) is terminated and you have no
further obligations to the undersigned pursuant to such Agreement.
Notwithstanding any previous instructions to you, you are hereby instructed to
accept all future directions with respect to account number(s) from the Debtor.
This notice terminates any obligations you may have to the undersigned with
respect to such account, however nothing contained in this notice shall alter
any obligations which you may otherwise owe to the Debtor pursuant to any other
agreement.
You are instructed to deliver a copy of this notice by facsimile
transmission to the Debtor.
Very truly yours,
Wells Fargo Bank, National Association, as
Collateral Agent
By:_________________________________________
Name:_______________________________________
Title:______________________________________
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