FIFTH AMENDMENT
TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This
Fifth Amendment to Second Amended and Restated Credit Agreement
(this “ Amendment ”), dated as of March 23,
2009, is made by and among info GROUP INC., a Delaware
corporation, formerly known as info USA Inc. (the “
Borrower ”), the financial institutions party hereto
in the capacity of a Lender (as defined in the Credit Agreement
defined below), BANK OF AMERICA, N.A., successor in interest to
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 WELLS FARGO BANK, NATIONAL
ASSOCIATION, as sole lead arranger, sole book runner and
administrative agent (in such capacity, the “
Administrative Agent ”). This Amendment becomes
effective as provided in Section 8 hereof.
The
Borrower, the Administrative Agent, the Syndication Agents, the
Documentation Agent and certain financial institutions (including
those 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, that
certain Second Amendment to Second Amended and Restated Credit
Agreement dated as of May 16, 2007, that certain Third
Amendment to Second Amended and Restated Credit Agreement dated as
of March 26, 2008, and that certain Fourth Amendment to Second
Amended and Restated Credit Agreement dated as of June 27,
2008 (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 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 sale of certain assets and the application of proceeds from
that sale to the Obligations. The Administrative Agent, the
Syndication Agents, the Documentation Agent and the Lenders are
willing to grant the Borrower’s requests 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 used in this Amendment that are
defined in the Credit Agreement and not otherwise defined herein
have the meanings given them in the Credit Agreement.
1.1
(a) Section 1.1 of the Credit Agreement is amended to add
the following new definitions:
“
Disclosure Letter ” means the Disclosure Letter dated
as February 14, 2006, delivered by the Borrower to the
Administrative Agent and the Lenders, as supplemented and amended
on February 23, 2007, November 15, 2007, March 31,
2008, August 14, 2008 and March 23, 2009.
“
Divested EBITDA ” of any divested entity or business
means the consolidated EBITDA of such divested entity or business
calculated on a basis consistent with the calculation of
Consolidated EBITDA under this Agreement and in compliance with
laws, rules and regulations applicable to publicly traded companies
in the United States, including Regulation S-X promulgated by
the Securities and Exchange Commission, or as may be approved by
the Administrative Agent.
“ Fifth
Amendment ” means that certain Fifth Amendment to Amended
and Restated
Credit
Agreement by and among the Borrower, the Lenders and the
Administrative Agent dated as of March 23, 2009.
“ Macro
International Buyer ” means an affiliate of ICF
International, Inc., a Delaware corporation.
“ Macro
International Sale ” means the sale of all of the stock
of Macro International Inc. to the Macro International
Buyer.
“ Macro
International Sale Documents ” means (i) that
certain Stock Purchase Agreement by and among the Macro
International Buyer, ICF International, Inc., a Delaware
corporation, the Borrower, and Opinion Research Corporation, a
Delaware corporation, (ii) that certain Escrow Agreement, by
and among the Macro International Buyer, ICF International, Inc., a
Delaware corporation, the Borrower, Opinion Research Corporation, a
Delaware corporation and the escrow agent named therein, and
(iii) all other material documents related thereto.
1.2
(b) Section 1.1 of the Credit Agreement is further
amended by amending the definition “ Consolidated
EBITDA ” by replacing the existing clause (iii) of
that definition and adding a new clause (iv) as
follows:
(iii) Acquired
EBITDA; less
2. Consent
to Sale of Macro International . The Required Lenders hereby
consent to the Macro International Sale in accordance with the
Macro International Sale Documents and waive application of any
provision of the Credit Agreement that would prohibit the Macro
International Sale, including Section 10.2 of the Credit
Agreement.
3. Payment of
Macro International Net Sale Proceeds.
3.1 (a) Initial
Macro International Net Sales Proceeds Amount . Set forth on
Exhibit A hereto are:
3.1.1
(i) the gross sales price for the Macro International Sale
(“ Gross Sales Price ”);
3.1.2
(ii) the portion of the Gross Sales Price escrowed for working
capital adjustments (the “ Working Capital Escrow
Amount ”)
3.1.3
(iii) the portion of the Gross Sales Price escrowed for
potential indemnity claims (the “ Indemnity Escrow
Amount ”);
3.1.4
(iv) a reserve for estimated transaction expenses related to
the Macro International Sale (the “ Transaction Expense
Reserve Amount ”); and
3.1.5
(v) a reserve for incremental taxes resulting from the Macro
International Sale (the “ Tax Reserve Amount
”).
“
Initial Macro International Net Sales Proceeds Amount
” means the Gross Sales Price less the Working Capital Escrow
Amount, less the Indemnity Escrow Amount, less the Transaction
Expense Reserve Amount, less the Tax Reserve Amount.
3.2 (b) Payment
of Initial Macro International Net Sales Proceeds Amount . The
Borrower will instruct the Macro International Buyer to pay to the
Administrative Agent on the closing date for the Macro
International Sale, the Initial Macro International Net Sales
Proceeds Amount. Upon receipt, the Administrative Agent will
distribute the Initial Macro International Net Sales Proceeds
Amount to the Term Lenders for application to installments of the
Term Loans in inverse order of maturity.
3.3 (c)
Payments from Working Capital Amount and Indemnity Escrow
Amount . Within five Business Days after receiving any payment
with respect to the Working Capital Escrow Amount or the Indemnity
Escrow Amount, the Borrower will notify the Administrative Agent of
such event, describe the source of payment (whether from the
Working Capital Escrow Amount or the Indemnity Escrow Amount) and
pay such amount to the Administrative Agent. Upon receipt, the
Administrative Agent will distribute that amount to the Term
Lenders for application to installments of the Term Loans in
inverse order of maturity. The Borrower will promptly notify the
Administrative Agent in writing of any claims by the Marco
International Buyer with respect to the Working Capital Escrow
Amount or the Indemnity Escrow Amount.
3.4 (d)
Payments from Transaction Expense Reserve Amount . Not later
than the later to occur of April 30, 2009 or ten Business Days
after the closing of the Macro International Sale, the Borrower
will deliver to the Administrative Agent an accounting of all
transaction expenses related to the Macro International Sale (the
“ Actual Transaction Expense Amount ”). If the
Actual Transaction Expense Amount is less than the Transaction
Expense Reserve Amount, the Borrower will pay to the Administrative
Agent on such date an amount equal to such difference and upon
receipt, the Administrative Agent will distribute that amount to
the Term Lenders for application to installments of the Term Loans
in inverse order of maturity. If the Actual Transaction Expense
Amount is greater than the Transaction Expense Reserve Amount, the
Borrower may reduce amounts otherwise payable under subsection
(e) below by the difference between such amounts.
3.5 (e)
Payments from Tax Reserve Amount . Not later than ten
Business Days after the closing of the Macro International Sale,
the Borrower will deliver to the Administrative Agent a statement
as to the actual incremental taxes paid or payable by the Borrower
resulting from the Macro International Sale (the “ Actual
Tax Amount ”), including supporting documents reasonably
requested by the Administrative Agent. If the Actual Tax Amount is
less than the Tax Reserve Amount, the Borrower will pay to the
Administrative Agent on such date an amount equal to such
difference and upon receipt, the Administrative Agent will
distribute that
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