AMENDED AND RESTATED PLEDGE AGREEMENT among INFOUSA INC. AND AFFILIATES, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as and Administrative Agent Dated as of February 14, 2006
Exhibit 4.3
EXECUTION COPY
AMENDED AND RESTATED PLEDGE AGREEMENT
among
INFOUSA INC.
AND AFFILIATES,
AND AFFILIATES,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as
as
and Administrative Agent
Dated as of February 14, 2006
TABLE OF CONTENTS
| SECTION 1. | SECURITY FOR OBLIGATIONS
|
2 | ||||
| SECTION 2. | DEFINITIONS
|
3 | ||||
| SECTION 3. | PLEDGE OF SECURITIES, ETC.
|
6 | ||||
| Section 3.1 | Pledge
|
6 | ||||
| Section 3.2 | Procedures
|
8 | ||||
| Section 3.3 | Subsequently Acquired Collateral
|
10 | ||||
| Section 3.4 | Transfer Taxes
|
11 | ||||
| Section 3.5 | Definition of Pledged Notes
|
11 | ||||
| Section 3.6 | Certain Representations and Warranties Regarding the Collateral
|
11 | ||||
| SECTION 4. | APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC
|
11 | ||||
| SECTION 5. | VOTING, ETC., WHILE NO EVENT OF DEFAULT
|
11 | ||||
| SECTION 6. | DIVIDENDS AND OTHER DISTRIBUTIONS
|
12 | ||||
| SECTION 7. | REMEDIES IN CASE OF DEFAULT OR EVENT OF DEFAULT
|
12 | ||||
| SECTION 8. | REMEDIES, CUMULATIVE, ETC
|
13 | ||||
| SECTION 9. | APPLICATION OF PROCEEDS
|
14 | ||||
| SECTION 10. | PURCHASERS OF COLLATERAL
|
14 | ||||
| SECTION 11. | INDEMNITY
|
14 | ||||
| SECTION 12. | PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER
|
15 | ||||
| SECTION 13. | FURTHER ASSURANCES; POWER-OF-ATTORNEY
|
15 | ||||
| SECTION 14. | THE PLEDGEE AS AGENT
|
16 | ||||
| SECTION 15. | TRANSFER BY THE PLEDGORS
|
16 | ||||
| SECTION 16. | REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS
|
16 | ||||
| SECTION 17. | CHIEF EXECUTIVE OFFICE; JURISDICTION OF ORGANIZATION RECORDS
|
18 | ||||
| SECTION 18. | PLEDGORS’ OBLIGATIONS ABSOLUTE, ETC
|
18 | ||||
| SECTION 19. | REGISTRATION, ETC
|
19 | ||||
| SECTION 20. | TERMINATION; RELEASE
|
20 | ||||
| SECTION 21. | NOTICES, ETC
|
21 | ||||
| SECTION 22. | WAIVER; AMENDMENT
|
22 | ||||
| SECTION 23. | MISCELLANEOUS
|
22 | ||||
| SECTION 24. | RECOURSE
|
22 | ||||
| SECTION 25. | ADDITIONAL PLEDGORS
|
23 |
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (as amended, modified or supplemented from time to
time, this “Agreement”), dated as of February 14, 2006, 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 XXXXX FARGO BANK,
NATIONAL ASSOCIATION, in its capacity 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., a Delaware corporation (the “Borrower”), certain financial
institutions, and Xxxxx Fargo Bank, National Association (“Xxxxx Fargo”), as administrative agent,
have entered into an Amended and Restated Credit Agreement, dated as of June 4, 2004 (as amended to
date, the “Old Credit Agreement”) which amended and restated that certain Credit Agreement
dated as of March 25, 2004 among the Borrower, Xxxxx Fargo as administrative agent and certain
financial institutions;
WHEREAS, as a condition to the making of Loans to, and the issuance of Letters of Credit for
the account of, the Borrower under the Old Credit Agreement, each Pledgor executed and delivered to
Xxxxx Fargo as administrative agent a Pledge Agreement dated as of March 25, 2004, as amended by a
Reaffirmation of and First Amendment to Subsidiaries Guaranty, Security Agreement and Pledge
Agreement dated as of June 4, 2004;
WHEREAS, in connection with the Borrower’s request to restructure the Loans made under the Old
Credit Agreement, the Borrower, Xxxxx Fargo and certain other parties thereto have agreed to amend
and restate the Old Credit Agreement in the form of a Second Amended and Restated Credit Agreement
(as amended, modified, supplemented or restated from time to time, the “Credit Agreement”)
dated as of February 14, 2006, by and among the Borrower, the financial institutions from time to
time party thereto in the capacity of a lender (in such capacity, the “Lenders”), 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 as administrative agent (in such capacity, the
“Administrative Agent”), 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 collateral
agent, the Issuing Lender, the Syndication Agents, the Documentation Agent, and the Administrative
Agent 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 Amended and Restated Subsidiaries Guaranty dated as of February 14,
2006, 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 this Agreement to the Pledgee; 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:
SECTION 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”);
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(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 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.
SECTION 2. DEFINITIONS.
2.1 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.
2.2 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.
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“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.
“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.
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“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.
“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.
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“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.
SECTION 3. PLEDGE OF SECURITIES, ETC.
Section 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 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:
(i) 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;
(ii) 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;
(iii) 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;
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(iv) 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;
(v) 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 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
(vi) 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:
(i) 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;
(ii) 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;
(iii) 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;
(iv) all present and future claims, if any, of such Pledgor against any such
partnership for moneys loaned or advanced, for services rendered or otherwise;
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(v) 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
(vi) 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;
(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.
Section 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;
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(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;
(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 0-000 (x) 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;
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(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
(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).
Section 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.
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Section 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.
Section 3.5 Definition of Pledged Notes. All Notes at any time pledged or required to
be pledged hereunder are hereinafter called the “Pledged Notes”.
Section 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
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.
SECTION 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.
SECTION 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.
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SECTION 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
(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).
SECTION 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);
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(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, 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.
SECTION 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
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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.
SECTION 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, 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.
SECTION 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.
SECTION 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.
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SECTION 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 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.
SECTION 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
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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.
SECTION 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.
SECTION 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).
SECTION 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);
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(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 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
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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.
SECTION 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 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.
SECTION 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,
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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.
SECTION 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 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.
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(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 xxxxx xxxxx 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.
SECTION 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 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 13.12 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
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(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.
SECTION 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. 0000 Xxxxx 00xx Xxxxxx Xxxxx, Xxxxxxxx 00000 Attention: Chief Financial Officer Telephone No.: (000) 000-0000 Telecopier No.: (000) 000-0000 |
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| (b) | if to the Pledgee, at: Xxxxx Fargo Bank, National Association 0000 Xxxxxxxx XXX X0000-000 Xxxxxx, Xxxxxxxx 00000 Attention: Xxxxx Xxxxxx Telecopier: (000) 000-0000 |
(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.
infoUSA Amended and Restated Pledge Agreement
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SECTION 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 13.12 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.
SECTION 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 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.
SECTION 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.
infoUSA Amended and Restated Pledge Agreement
-22-
SECTION 25. ADDITIONAL PLEDGORS. 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 Amended and Restated Pledge Agreement in the form of
Annex J hereof and delivering the same to the Pledgee.
* * * *
-23-
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 /s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: CFO
Name: Xxxxxx X. Xxxx
Title: CFO
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., and
YESMAIL, INC.
each as a Pledgor
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., and
YESMAIL, INC.
each as a Pledgor
By /s/ XXXXXX X. XXXX
Name: Xxxxxx X. Xxxx
Title: CFO
Name: Xxxxxx X. Xxxx
Title: CFO
| Accepted and Agreed to: | ||||
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Pledgee, Collateral Agent |
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By: |
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Name: |
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Title: |
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