SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amendment to Second Amended and Restated Credit Agreement (this
“Amendment”), dated as of May 16, 2007, is made by and among INFOUSA INC., a Delaware
corporation (the “Borrower”), the financial institutions a party hereto in the capacity of
a Lender (as defined in the Credit Agreement defined below), LASALLE BANK NATIONAL ASSOCIATION and
CITIBANK, N.A., formerly known as CITIBANK, F.S.B., as syndication agents (in such capacity, the
“Syndication Agents”), BANK OF AMERICA, N.A., as documentation agent (in such capacity, the
“Documentation Agent”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as sole lead arranger,
sole book runner and administrative agent (in such capacity, the “Administrative Agent”).
Recitals
The Borrower, the Administrative Agent, the Syndication Agents, the Documentation Agent and
certain financial institutions (including those a party hereto) are parties to that certain Second
Amended and Restated Credit Agreement dated as of February 14, 2006, as amended by that certain
First Amendment to Second Amended and Restated Credit Agreement dated as of March 16, 2007 (as so
amended and together with all further amendments, supplements, modifications and restatements from
time to time thereof the “Credit Agreement”). Capitalized terms used in these Recitals
shall have the meanings given in the Credit Agreement.
The Borrower has requested that the Administrative Agent, the Syndication Agents, the
Documentation Agent and the Lenders consent to the 2007 Real Estate Securitization Transaction
(defined below).
The Administrative Agent, the Syndication Agents, the Documentation Agent and the Lenders are
willing to grant the Borrower’s request on the terms and conditions set forth herein.
ACCORDINGLY, in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:
1. Definitions. All terms defined in the Credit Agreement that are not otherwise
defined herein shall have the meanings given them in the Credit Agreement. In addition, Section 1.1
of the Credit Agreement is amended by adding or by amending and restating, as applicable, the
following definitions in their entirety:
“2007 Real Estate Securitization Transaction” means the following transactions
collectively:
(a) the Borrower transferring fee title to the Papillion Real Estate to the
Papillion SPE and fee title to the Ralston Real Estate to the Ralston SPE;
(b) the Borrower leasing the Papillion Real Estate from the Papillion SPE and
leasing the Ralston Real Estate from the Ralston SPE;
(c) the Papillion SPE borrowing approximately $21.5 million in the aggregate
secured by first Liens on the Papillion Real Estate and lease and paying the
proceeds thereof to the Borrower;
(d) the Ralston SPE borrowing approximately $22 million in the aggregate
secured by first Liens on the Ralston Real Estate and lease and paying the proceeds
thereof to the Borrower;
(e) the Borrower using such proceeds to retire approximately $12.2 million of
Indebtedness owed to First National Bank of Omaha, to pay related transaction costs
and expenses and to pay Revolving Loans.
“2007 Real Estate Securitization Documents” means the documents executed and
delivered in connection with 2007 Securitization Transaction, in form and content approved
by the Administrative Agent.
“Papillion Real Estate” means the improved real property located at 0000 Xxxx
0xx Xxxxxx, Xxxxxxxxx, Xxxxxxxx.
“Ralston Real Estate” means the improved real property located at 0000 X. 00xx
Xxxxxx, Xxxxxxx, Xxxxxxxx and 0000 X. 00xx Xxxxxx, Ralston, Nebraska.
2. Consent to the 2007 Real Estate Securitization Transaction; Waiver of Mandatory
Prepayment of Term Loans. The Lenders and the Administrative Agent hereby consent to the 2007
Real Estate Securitization Transaction. The Lenders hereby waive any provision of Section 5.4 that
would otherwise require proceeds from the 2007 Real Estate Securitization Transaction be applied to
the Term Loans.
3. Permitted Liens. Section 10.1(s) of the Credit Agreement is amended to read as
follows:
(s) Liens on the Papillion Real Estate and the Ralston Real Estate securing Debt not
exceeding $43,500,000.
4. Purchase or Sale of Assets. Section 10.2 of the Credit Agreement is amended by
deleting the word “and” at the end of Subsection (j), by replacing the final period at the end of
Subsection (k) with “; and”, and by inserting the following new Subsection (l) thereafter:
(l) The Borrower may transfer the Papillion Real Estate to the Papillion SPE and the
Ralston Real Estate to the Ralston SPE pursuant to the 2007 Real Estate Securitization
Documents.
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Amended and Restated Credit Agreement
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5. Indebtedness. Section 10.4 of the Credit Agreement is amended by deleting the word
“and” at the end of Subsection (j), by replacing the final period at the end of Subsection (k) with
“; and”, and by inserting the following new Subsection (l) thereafter:
(l) Indebtedness of up to $43,500,000 secured by the Papillion Real Estate and the
Ralston Real Estate.
6. Investments. Section 10.5 of the Credit Agreement is amended by deleting the word
“and” at the end of Subsection (o), by replacing the final period at the end of Subsection (p) with
“; and”, and by inserting the following new Subsection (q) thereafter:
(q) Capital contributions to the Papillion SPE of the Papillion Real Estate and capital
contributions to the Ralston SPE of the Ralston Real Estate pursuant to the 2007 Real Estate
Securitization Documents.
7. Transactions with Affiliates. Section 10.6 of the Credit Agreement is amended by
deleting the word “and” at the end of Subsection (f), by replacing the final period at the end of
Subsection (g) with “; and”, and by inserting the following new Subsection (h) thereafter:
(h) the 2007 Real Estate Securitization Transaction.
8. Limitation on Certain Restrictions on Subsidiaries. Section 10.11 of the Credit
Agreement is amended:
(a) by adding the phrase “except pursuant to the 2007 Real Estate Securitization
Documents,” at the end of clause (a);
(b) by inserting the phrase, “except pursuant to the 2007 Real Estate Securitization
Documents,” before the second instance of the word “or” in clause (b); and
(c) by replacing “or (g)” at the end of clause (c)(viii) with, “, (g)
or (s)”.
9. Limitation on Creation of Subsidiaries. Subsection 10.14(b) of the Credit Agreement
is amended by inserting the following sentence at the end thereof:
This Section 10.14 shall not apply to the Papillion SPE and the Ralston SPE to the
extent compliance with this Section 10.14 is prohibited by or would cause a default
under the 2007 Real Estate Securitization Documents.
10. Operating Leases. Section 10.15 of the Credit Agreement is amended by replacing
the amount “$12,000,000” with the amount, “$16,000,000”.
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Amended and Restated Credit Agreement
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11. Representations and Warranties. The Borrower hereby represents and warrants to the
Administrative Agent and the Lenders as follows:
(a) The Borrower has all requisite power and authority, corporate or otherwise, to
execute and deliver this Amendment, and to perform this Amendment and the Credit Agreement
as amended hereby. This Amendment has been duly and validly executed and delivered to the
Administrative Agent, the Syndication Agents, the Documentation Agent and the Lenders by the
Borrower, and this Amendment, and the Credit Agreement as amended hereby, constitute the
Borrower’s legal, valid and binding obligations enforceable in accordance with their terms,
except to the extent that such enforcement may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally or by general
equitable principles.
(b) The execution, delivery and performance by the Borrower of this Amendment, and the
performance of the Credit Agreement as amended hereby, have been duly authorized by all
necessary corporate action and do not and will not (i) require any authorization, consent or
approval by any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) violate the Borrower’s articles of incorporation
or bylaws or any provision of any law, rule, regulation or order presently in effect having
applicability to the Borrower, or (iii) result in a breach of or constitute a default under
any indenture or agreement to which the Borrower is a party or by which the Borrower is
bound.
(c) All of the representations and warranties contained in Article VIII of the
Credit Agreement, as amended hereby, are correct on and as of the date hereof as though made
on and as of such date.
12. Conditions. This Amendment shall be effective only if the Administrative Agent has
received (or waived the receipt of) each of the following, in form and substance satisfactory to
the Administrative Agent, on or before the date hereof (or such later date as the Administrative
Agent may agree to in writing):
(a) This Amendment, duly executed by the Borrower and each of the Lenders below.
(b) The Acknowledgment and Agreement of Guarantors attached hereto, duly executed by
the Guarantors.
(c) A certificate of an officer of the Borrower (i) certifying that the execution,
delivery and performance of this Amendment, and the performance of the Credit Agreement as
amended hereby, have been duly approved by all necessary action of the board of directors of
the Borrower, and attaching true and correct copies of the applicable resolutions granting
such approval, (ii) certifying that there have been no amendments to or restatements of the
articles of incorporation or bylaws of
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the Borrower as furnished to the Administrative Agent in connection with the execution
and delivery of the Credit Agreement, other than those that may be attached to the
certificate, and (iii) certifying the names of the officers of the Borrower that are
authorized to sign this Amendment, together with the true signatures of such officers.
(d) Payment of all fees agreed to between the Administrative Agent and the Borrower
with respect to this Amendment and reimbursement for all costs and expenses.
13. References. All references in the Credit Agreement to “this Agreement” shall be
deemed to refer to the Credit Agreement as amended hereby; and any and all references in the
Security Documents to the Credit Agreement shall be deemed to refer to the Credit Agreement as
amended hereby.
14. No Waiver. The execution of this Amendment and any documents related hereto shall
not be deemed to be a waiver of any Default or Event of Default under the Credit Agreement or
breach, default or event of default under any Security Document or other document held by the
Administrative Agent and the Lenders, whether or not known to the Administrative Agent and the
Lenders and whether or not existing on the date of this Amendment.
15. Release. The Borrower and each Guarantor by signing the Acknowledgment and
Agreement of Guarantors set forth below, each hereby absolutely and unconditionally releases and
forever discharges the Administrative Agent and the Lenders, and any and all participants, parent
corporations, subsidiary corporations, affiliated corporations, insurers, indemnitors, successors
and assigns thereof, together with all of the present and former directors, officers, agents and
employees of any of the foregoing, from any and all claims, demands or causes of action of any
kind, nature or description, whether arising in law or equity or upon contract or tort or under any
state or federal law or otherwise, which the Borrower or such Guarantor has had, now has or has
made claim to have against any such person for or by reason of any act, omission, matter, cause or
thing whatsoever arising from the beginning of time to and including the date of this Amendment,
whether such claims, demands and causes of action are matured or unmatured or known or unknown.
16. Miscellaneous. This Amendment and the Acknowledgment and Agreement of Guarantors
may be executed in any number of counterparts, each of which when so executed and delivered shall
be deemed an original and all of which counterparts, taken together, shall constitute one and the
same instrument.
Signature pages follow
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Amended and Restated Credit Agreement
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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to
execute and deliver this Agreement as of the date first above written.
| infoUSA INC. | infoUSA INC. |
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0000 Xxxxx 00xx Xxxxxx |
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Xxxxx, Xxxxxxxx 00000 |
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Attn: Chief Financial Officer
|
By: | /s/ Xxxxxx Xxxx
|
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| Telephone No.: (000) 000-0000 | Name: Xxxxxx Xxxx | |||||
| Telecopier No.: (000) 000-0000 | Title: Chief Financial Officer | |||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| Xxxxx Fargo Bank, National Association
MAC N9305-051 00 Xxxxx Xxxxx Xxxxxx Xxxxxxxxxxx, Xxxxxxxxx 00000 Telecopier: (000) 000-0000 Attention: Xxxxxx Xxxxxxxx |
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and Lender | |||||
| By: | ||||||
| Name: Xxxxxx X. Xxxxxxxx | ||||||
| Title: Senior Vice President | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| LASALLE BANK NATIONAL | ||||||
| ASSOCIATION, as Co-Syndication Agent and Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| CITIBANK, N.A., as Co-Syndication Agent and Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| BANK OF AMERICA, N.A., as Documentation Agent and Lender | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| FIRST BANK | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| UNION BANK OF CALIFORNIA, N.A. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| FIRST NATIONAL BANK OF OMAHA | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| U.S. BANK, NATIONAL ASSOCIATION | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| COMMERCE BANK, N.A. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
| THE NORTHERN TRUST COMPANY | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
(Signature Page to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS
dated as of May 16, 2007
dated as of May 16, 2007
Each of the undersigned, a guarantor of the indebtedness of infoUSA, INC., a Delaware
corporation (the “Borrower”), to the financial institutions from time to time a party in
the capacity of a lender (in such capacity, the “Lenders” and each a “Lender”) to
that certain Second Amended and Restated Credit Agreement, dated as of February 14, 2006, as
amended by that certain First Amendment to Second Amended and Restated Credit Agreement dated as of
March 16, 2007 (as so amended, the “Credit Agreement”), by and among the Borrower, LASALLE
BANK NATIONAL ASSOCIATION and CITIBANK, F.S.B., as syndication agents (in such capacity, the
“Syndication Agents”), BANK OF AMERICA, N.A., as documentation agent (in such capacity, the
“Documentation Agent”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as sole lead arranger,
sole book runner and administrative agent (in such capacity, the “Administrative Agent”),
pursuant to an Amended and Restated Subsidiaries Guaranty dated as of February 14, 2006 (as so
amended, the “Guaranty”), hereby (i) acknowledges receipt of that certain Second Amendment
to Second Amended and Restated Credit Agreement (the “Second Amendment”) dated as of the
date hereof among the Borrower, various financial institutions, the Syndication Agents, the
Documentation Agent and the Administrative Agent; (ii) consents to the terms (including without
limitation the release set forth in paragraph 15 of the Second Amendment) and execution thereof;
(iii) reaffirms its obligations to the Administrative Agent pursuant to the terms of the Guaranty
and acknowledges that all indebtedness arising under the Credit Agreement as amended by the Second
Amendment, whether evidenced by the Notes (as defined therein) or otherwise, shall constitute
Guaranteed Obligations guarantied by the Guaranty, and that all such indebtedness and all
obligations of the undersigned under the Guaranty, including but not limited to those obligations
relating to the indebtedness arising under the Credit Agreement, as amended, shall constitute
Obligations secured by the Amended And Restated Security Agreement dated as of February 14, 2006,
by the Borrower and each of the undersigned in favor of the Administrative Agent as collateral
agent; and (iv) acknowledge that the Lenders, the Syndication Agents, the Documentation Agent and
the Administrative Agent may amend, restate, extend, renew or otherwise modify the Credit Agreement
and any indebtedness or agreement of the Borrower, or enter into any agreement or extend additional
or other credit accommodations, without notifying or obtaining the consent of any of the
undersigned and without impairing the liability of any of the undersigned under the Guaranty for
all of the Borrower’s present and future indebtedness to the Lenders and the Administrative Agent.
Signature Page follows
(Acknowledgement to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
XX XXXXXX INFORMATION, INC.,
CITY DIRECTORIES, INC.,
DONNELLEY MARKETING, INC.,
XXXX-XXXXXXXX CORPORATION,
XXXXX XXXXX HOLDINGS, INC.,
INFOUSA MARKETING, INC.,
XXXXXXX GROUP, INC.,
ONESOURCE INFORMATION SERVICES, INC.,
STOREFRONT IMAGES USA, INC.,
TGMVC CORPORATION,
XXXXXX XXXX, INC.
YESMAIL, INC.
MACRO INTERNATIONAL INC.
MOKRYNSKI & ASSOCIATES, INC.
OPINION RESEARCH CORPORATION
ORC TELECOMMUNICATIONS LTD.
CITY DIRECTORIES, INC.,
DONNELLEY MARKETING, INC.,
XXXX-XXXXXXXX CORPORATION,
XXXXX XXXXX HOLDINGS, INC.,
INFOUSA MARKETING, INC.,
XXXXXXX GROUP, INC.,
ONESOURCE INFORMATION SERVICES, INC.,
STOREFRONT IMAGES USA, INC.,
TGMVC CORPORATION,
XXXXXX XXXX, INC.
YESMAIL, INC.
MACRO INTERNATIONAL INC.
MOKRYNSKI & ASSOCIATES, INC.
OPINION RESEARCH CORPORATION
ORC TELECOMMUNICATIONS LTD.
each as a Guarantor
By:
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/s/ Xxxxxx Xxxx
|
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| Name: Xxxxxx Xxxx | ||||
| Title: Chief Financial Officer | ||||
(Acknowledgement to infoUSA Second Amendment
to Second Amended and Restated Credit Agreement)
to Second Amended and Restated Credit Agreement)
