EXHIBIT 4.12
REAFFIRMATION OF AND FIRST AMENDMENT TO
SUBSIDIARIES GUARANTY, SECURITY AGREEMENT AND PLEDGE AGREEMENT
This First Amendment to Subsidiaries Guaranty, Security Agreement
and Pledge Agreement (this "Amendment"), dated as of June 4, 2004, is made by
and among INFOUSA INC., a Delaware corporation (the "Borrower"), the
subsidiaries of the Borrower signatories hereto (with the Borrower, the
"Companies", and each a "Company"), and WELLS FARGO BANK, NATIONAL ASSOCIATION,
in its capacity as collateral agent (in such capacity, the "Collateral Agent")
for various financial institutions from time to time a party to the Credit
Agreement (defined below).
Recitals
1. The Borrower, various 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"), are parties to
a Credit Agreement, dated as of March 25, 2004 (the "Old Credit Agreement").
Under the Old Credit Agreement, the Lenders extended credit facilities in the
aggregate amount of $170 million.
2. In connection with the Old Credit Agreement, (i) the Companies
executed and delivered to the Collateral Agent a Security Agreement dated as of
March 25, 2004 (the "Security Agreement"), and a Pledge Agreement dated as of
March 25, 2004 (the "Pledge Agreement"), and (ii) the Guarantors executed and
delivered to the Collateral Agent a Subsidiaries Guaranty dated as of March 25,
2004 (the "Guaranty"). Except as otherwise defined herein, capitalized terms
used herein and defined in the Credit Agreement, Security Agreement, Pledge
Agreement or Guaranty shall be used herein as therein defined.
3. In connection with the Borrower's acquisition of OneSource
Information Services, Inc., the Borrower and the Administrative Agent (with the
approval of the Lenders) have agreed to amend and restate the Old Credit
Agreement by means of executing and delivering that certain Amended and Restated
Credit Agreement of even date herewith (as amended, restated or otherwise
modified from time to time, the "Credit Agreement"). Under the Credit Agreement,
the Lenders will extend credit facilities in the aggregate amount of $250
million.
4. To induce the Lenders to approve the Credit Agreement and to
extend the credit facilities under the Credit Agreement, the Lenders, the
Collateral Agent and the
infoUSA Inc. - Reaffirmation of and First Amendment
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Administrative Agent have required that the Companies execute and deliver this
Amendment.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements herein contained, it is agreed as follows:
1. Amendments to Subsidiaries Guaranty.
(a) Section 26 of the Guaranty is amended in its entirety to read as
follows:
"26. It is understood and agreed that any Subsidiary of the Borrower
that is required to become a Subsidiary Guarantor pursuant to the Credit
Agreement after the date hereof shall become a Guarantor hereunder by
executing the Joinder to Subsidiaries Guaranty in the form of Exhibit A
hereto and delivering the same to the Administrative Agent."
(b) The Form of Joinder to Subsidiaries Guaranty set forth in
Exhibit A to this Amendment shall be Exhibit A to the Guaranty.
2. Amendments to Pledge Agreement.
(a) Section 25 of the Pledge Agreement is amended in its entirety to
read as follows:
"25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required by the Credit Agreement to
become a Pledgor under this Agreement after the date hereof shall become a
Pledgor hereunder by executing the Joinder to Pledge Agreement in the form
of Annex I hereof and delivering the same to the Pledgee."
(b) The Form of Joinder to Pledge Agreement set forth in Exhibit B
to this Amendment shall be Annex I to Pledge Agreement.
3. Amendments to Security Agreement.
(a) Section 10.13 of the Security Agreement is amended in its
entirety to read as follows:
"10.13 Additional Assignors. It is understood and agreed that any
Subsidiary of the Borrower that is required by the Credit Agreement to
become an Assignor under this Agreement after the date hereof shall become
an Assignor hereunder by executing a Joinder to Security Agreement in the
form of Annex K hereof and delivering the same to the Collateral Agent (it
being understood that in connection therewith, such Subsidiary shall
supplement Annexes A through H with information pertaining to such
Subsidiary)."
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(b) The Form of Joinder to Security Agreement set forth in Exhibit C
to this Amendment shall be Annex K to Security Agreement.
4. No Other Changes. Except as explicitly amended by this Amendment,
all of the terms and conditions of the Guaranty, Pledge Agreement and Security
Agreement shall remain in full force and effect and shall apply to any advance
or letter of credit thereunder.
5. Reaffirmation. Each Company acknowledges that it has received a
copy of the Credit Agreement executed by the parties thereto. Each Company
further ratifies and reaffirms all of the terms, conditions, provisions,
agreements, requirements, promises, obligations, duties, covenants and
representations applicable to it in the Guaranty, Pledge Agreement and Security
Agreement, as amended above, and that the Guaranty, Pledge Agreement and
Security Agreement remain in full force and effect and each agreement is valid,
binding and fully enforceable in accordance with its terms. Each Company that is
a party to the Pledge Agreement or Security Agreement further acknowledges that
the total indebtedness under the Credit Agreement which is guaranteed or secured
by such documents has increased from $170,000,000 to $250,000,000.
6. Conditions Precedent. This Amendment shall be effective when the
Administrative Agent shall have received an executed original hereof.
7. Representations and Warranties. Each Company hereby represents
and warrants as follows:
(a) it has the corporate, partnership or limited liability company,
power and authority, as the case may be, to execute, deliver and perform
the terms and provisions of this Amendment and each other Credit Document
to which it is a party and has taken all necessary corporate, partnership
or limited liability company, action, as the case may be, to authorize the
execution, delivery and performance by it of this Amendment and each such
other Credit Document;
(b) it has duly executed and delivered this Amendment and each other
Credit Document to which it is a party, and this Amendment and each such
other Credit Document constitute its legal, valid and binding obligations,
enforceable in accordance with their terms, except to the extent that the
enforceability hereof or 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);
(c) all of the representations and warranties contained in the
Guaranty, Pledge Agreement and Security Agreement are correct on and as of
the date hereof as though made on and as of such date, except to the
extent that such representations and warranties relate solely to an
earlier date.
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Pledge Agreement
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8. References. From and after the date hereof:
(a) all references in the Guaranty, Pledge Agreement and Security
Agreement to "this Agreement" shall be deemed to refer to such agreement
as amended hereby.
(b) all references in the Guaranty, Pledge Agreement and Security
Agreement to "Credit Agreement" shall be deemed to refer to the Amended
and Restated Credit Agreement referenced above (as the same may be further
amended, restated or otherwise modified from time to time).
9. Miscellaneous. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Companies and the
Administrative Agent.
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date first written above.
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 Guarantor, a Pledgor and an Assignor
By /s/ Raj Das
---------------------------
Name: Raj Das
Title: Chief Financial Officer
infoUSA INC., as a Pledgor and an Assignor
By /s/ Raj Das
---------------------------
Name: Raj Das
Title: Chief Financial Officer
[Signature Page 1 of 2 to Reaffirmation of and First Amendment to Subsidiaries
Guaranty, Security Agreement and Pledge Agreement]
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Collateral Agent
By: Joseph G. Colianni
--------------------
Name: JOSEPH G. COLIANNI
Title: VICE PRESIDENT
[Signature Page 2 of 2 to Reaffirmation of and First Amendment to Subsidiaries
Guaranty, Security Agreement and Pledge Agreement]
EXHIBIT A
EXHIBIT A
to
SUBSIDIARIES GUARANTY
JOINDER TO SUBSIDIARIES GUARANTY
The undersigned (the "New Guarantor"), joins the Subsidiaries
Guaranty dated as of March 25, 2004 (as amended, modified, supplemented or
restated from time to time, the "Guaranty"), made by the Guarantors party
thereto (the "Existing Guarantors"), pursuant to which such Existing Guarantors
have jointly severally guaranteed to the Secured Creditors (as defined in the
Guaranty) the payment and performance of the Guaranteed Obligations of infoUSA
Inc. (the "Borrower") to the Secured Creditors, which Guaranteed Obligations
include, without limitation, the obligations of the Borrower under the Amended
and Restated Credit Agreement, dated as of June 4, 2004 between the Borrower,
the financial institutions from time to time party thereto, and Wells Fargo
Bank, National Association, as Administrative Agent (as amended, modified,
supplemented or restated from time to time, the "Credit Agreement"). Except as
otherwise defined herein, capitalized terms used herein and defined in the
Guaranty shall be used herein as therein defined.
The New Guarantor agrees to jointly and severally guaranty the
payment and performance of the Guaranteed Obligations with the same force and
effect as if it was an original party to the Guaranty, agrees to comply with the
covenants, terms and conditions of the Guaranty and represents and warrants that
each of the representations and warranties in the Guaranty are true and correct
as of the date hereof.
IN WITNESS WHEREOF, the undersigned has caused this Joinder to
Subsidiaries Guaranty to be executed as of____________, ______________, 200___.
[____________________________]
_____________________________
By: _________________________
Its: ________________________
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to Subsidiaries Guaranty, Security Agreement and
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EXHIBIT B
ANNEX I
to
PLEDGE AGREEMENT
JOINDER TO PLEDGE AGREEMENT
The undersigned (the "New Pledgor"), joins the Pledge Agreement
dated as of March 25, 2004 (the "Pledge Agreement") made by the Pledgors party
thereto (the "Existing Pledgors"), pursuant to which such Existing Pledgors have
pledged Collateral to the Pledgee for the benefit of the Secured Creditors to
jointly and severally secure the payment and performance of the Obligations of
infoUSA Inc. (the "Borrower") to the Secured Creditors, including without
limitation, the obligations of the Borrower under the Amended and Restated
Credit Agreement, dated as of June 4, 2004 among the Borrower, the financial
institutions from time to time party thereto, and Wells Fargo Bank, National
Association, as administrative agent (as amended, modified, supplemented or
restated from time to time, the "Credit Agreement"). Except as otherwise defined
herein, capitalized terms used herein and defined in the Pledge Agreement shall
be used herein as therein defined.
The New Pledgor hereby grants, pledges and assigns to the Pledgee
for the benefit of the Secured Creditors, all of its right, title and interest
in any Collateral to secure the payment and performance of the Obligations with
the same force and effect as if it was an original party to the Pledge
Agreement, agrees to comply with the terms and conditions of the Pledge
Agreement and represents and warrants to the Secured Creditors that each of the
representations and warranties in the Pledge Agreement are true and correct as
of the date hereof.
IN WITNESS WHEREOF, the undersigned has caused this Joinder to
Pledge Agreement to be executed as of __________, 200__.
[____________________________]
_____________________________
By: _________________________
Its: ________________________
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to Subsidiaries Guaranty, Security Agreement and
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EXHIBIT C
ANNEX K
to
SECURITY AGREEMENT
JOINDER TO SECURITY AGREEMENT
The undersigned (the "New Assignor"), joins the Security Agreement
dated as of March 25, 2004 (the "Security Agreement") made by the Assignors
party thereto (the "Existing Assignors"), pursuant to which such Existing
Assignors have granted to the Collateral Agent for the benefit of the Secured
Creditors a continuing security interest in all of the right, title and interest
of such Existing Assignor in the Collateral as required by the Amended and
Restated Credit Agreement dated as of June 4, 2004, among the Borrower, the
financial institutions from time to time party thereto, and Wells Fargo Bank,
National Association, as Administrative Agent (as amended, modified,
supplemented or restated from time to time, the "Credit Agreement"). Except as
otherwise defined herein, capitalized terms used herein and defined in the
Security Agreement shall be used herein as therein defined.
The New Assignor hereby grants to the Collateral Agent for the
benefit of the Secured Creditors a continuing security interest in all of its
right, title and interest in the Collateral to secure the payment and
performance of the Obligations with the same force and effect as if it was an
original party to the Security Agreement, agrees to comply with the covenants,
terms and conditions of the Security Agreement and represents and warrants that
each of the representations and warranties in the Security Agreement are true
and correct as of the date hereof.
IN WITNESS WHEREOF, the undersigned has caused this Joinder to
Security Agreement to be executed as of _________, _________ 200_ .
[____________________________]
_____________________________
By: _________________________
Its: ________________________
infoUSA Inc. - Reaffirmation of and First Amendment
to Subsidiaries Guaranty, Security Agreement and
Pledge Agreement
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