EXHIBIT 10(a)
WAIVER AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS WAIVER AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "Amendment"), dated as of
May 13, 2002 is among ACXIOM CORPORATION, a Delaware Corporation (the "Borrower"), the lenders party hereto,
JPMORGAN CHASE BANK, as the agent (the "Agent") and BANK OF AMERICA, N.A., as syndication agent.
RECITALS:
A. The Borrower, the Agent, Bank of America, N.A., as syndication agent, and certain lenders have
entered into that certain Amended and Restated Credit Agreement dated as of January 28, 2002 (as amended or
otherwise modified from time to time, the "Agreement").
B. The Borrower has advised the Agent and the Lenders that certain Defaults and Events of Default
have occurred under clauses (c) and (d) of Article VIII of the Agreement as a result of (a) the Borrower
guaranteeing the obligations of Kidco Holdings, Inc. owing to Mercantile Bank of Arkansas National Association
(as more fully described in paragraph 2 of Exhibit A attached hereto), which guaranty obligations constitute
Indebtedness not permitted by Section 6.01 of the Agreement; (b) the Borrower guaranteeing the obligations of
Cope's Aircraft Services, Inc. owing to First Community Bank (as more fully described in paragraph 3 of Exhibit
A), which guaranty obligations constitute Indebtedness not permitted by Section 6.01 of the Agreement; (c) the
Borrower granting a Lien on substantially all of its personal property to Softech Financial in connection with a
lease agreement in violation of Section 6.02 of the Agreement (as more fully described in paragraph 1 of Exhibit
A); (d) the Borrower's inadvertent failure to disclose at the closing of the Agreement the existence of the
Indebtedness described in paragraphs 2 and 3 of Exhibit A as required by Section 3.04(b) of the Agreement; and
(e) the Borrower's inadvertent failure to disclose at the closing of the Agreement the existence of the Lien
described in paragraph 1 of Exhibit A as required by Section 3.05(a) of the Agreement (the "Existing Defaults"
and the covenants described in this paragraph, herein the "Violated Covenants"). In accordance with the
Agreement, the Borrower has requested that the Required Lenders waive the Existing Defaults.
C. The Borrower has requested that the Agent and the Lenders amend certain provisions of the
Agreement. Subject to satisfaction of the conditions set forth herein, the Agent and the Lenders party hereto
are willing to amend the Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
effective as of the date hereof unless otherwise indicated:
ARTICLE I.
Definitions
Section 1.1. Definitions. Capitalized terms used in this Amendment, to the extent not otherwise defined
herein, shall have the same meanings as in the Agreement, as amended hereby.
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ARTICLE II.
Amendments
Section 2.1. Amendment to Section 6.01. Clause (a) of Section 6.01 of the Agreement is amended as follows:
(a) The reference to the term "Guaranties" in clause (v) is amended to read as "Guarantees"; and
(b) The period at the end of clause (xii)(D) is replaced with the word "and"; and a new clause (E)
is added to clause (xii) and shall read in its entirety as follows:
(E) Unsecured Indebtedness arising under Guarantees which are not permitted under
clauses (ii), (iv) and (v) of this Section 6.01(a) provided that, after giving proforma effect
to the Indebtedness incurred under the permissions of this clause (xii)(E): (i) the Borrower
shall be in compliance with Section 7.02 as of the most recently ended fiscal quarter of the
Borrower, and (ii) the aggregate amount of Indebtedness incurred under the permissions of this
clause (xii)(E) shall not exceed $4,000,000.
Section 2.2. Amendment to Section 6.05. Clause (d) of Section 6.05 of the Agreement is amended to add the
phrase "no Default exists or would result from such Disposition and" after the word "if" and before the symbol
"(1)" in the second sentence thereof.
Section 2.3. Amendment to Section 7.02. Clause (i) of the definition of "Total Indebtedness" in Section 7.02
of the Agreement is amended in its entirety to read as follows:
(i) all obligations, contingent or otherwise, of such Person: (i) as an account party in respect of letters
of credit and letters of guaranty; (ii) arising under all Guarantees of such Person incurred
under the permissions of Section 6.01(a)(xii)(E); and (iii) arising under the Guarantees of
such Person described under item C on Schedule 6.01;
Section 2.4. Amendment to Schedule 6.01. Schedule 6.01 to the Agreement is amended to add the information
described on Schedule 6.01 hereto.
Section 2.5. Amendment to Schedule 6.02. Schedule 6.02 to the Agreement is amended in its entirety to read
as Schedule 6.02 attached hereto.
ARTICLE III.
Waiver
Section 3.1. Waiver. Subject to the satisfaction of the conditions precedent described in Article IV
hereof, each of the undersigned Lenders waives the Existing Defaults and agrees not to exercise any rights or
remedies available as a result of the occurrence thereof.
Section 3.2. Limitations on Waiver. To induce the Required Lenders to agree to the terms of Section 3.1,
the Borrower agrees that: (a) the Lien described on Schedule 6.02 in the Borrower's assets in favor of
Bankers/Softech Division of EAB Leasing Corp. shall not at any time secure debt or other obligations in an
aggregate amount in excess of $2,000,000; and (b) at no time shall both of the following have occurred: (i)
Bankers/Softech Division of EAB Leasing Corp. or any Affiliate thereof have a perfected security interest in any
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collateral or asset of the Borrower or any Subsidiary (other than the property that is leased under the
Borrower's lease agreement with EAB Leasing Corp.) and (ii) any judgment have been rendered against the Borrower
or any Subsidiary in favor EAB Leasing Corp. or any of its Affiliates which shall remain undischarged for a
period of five (5) or more Business Days during which execution shall not be effectively stayed, or any action
(including without limitation self-help remedies) shall be legally taken by EAB Leasing Corp. or any of its
Affiliates to attach, seize or levy upon any collateral or assets of the Borrower or any Subsidiary (other than
the property that is leased under the Borrower's lease agreement with EAB Leasing Corp.) to enforce or collect
the obligations of the Borrower or any Subsidiary. Furthermore, the Borrower agrees that the waiver specifically
described herein shall not constitute and shall not be deemed a waiver of any other Default or Event of Default,
whether arising as a result of the further violation the Violated Covenants or otherwise, or a waiver of any
rights or remedies arising as a result of such other Defaults or Events of Default. The failure to comply with
the Violated Covenants at any time other than as described above in the definition of Existing Defaults shall
constitute an Event of Default. The failure of any representation, warranty or certification made or deemed made
by or on behalf of the Borrower in connection with any Loan Document shall prove to have been incorrect any
material respect when made or deemed made shall constitute an Event of Default.
ARTICLE IV.
Miscellaneous
Section 4.1. Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede
all inconsistent terms and provisions set forth in the Agreement and except as expressly modified and superseded
by this Amendment, the terms and provisions of the Agreement and the other Loan Documents are ratified and
confirmed and shall continue in full force and effect. The Borrower, the Agent and the Lenders agree that the
Agreement as amended hereby and the other Loan Documents shall continue to be legal, valid, binding and
enforceable in accordance with their respective terms. For all matters arising prior to the effective date of
this Amendment, the Agreement (as unmodified by this Amendment) shall control.
Section 4.2. Representations and Warranties; Release. The Borrower hereby represents and warrants to the
Agent and the Lenders as follows: (a) after giving effect to this Amendment, no Default or Event of Default
exists; (b) the information contained in Exhibit A hereto is true, correct, and complete, and (c) after giving
effect to this Amendment, the representations and warranties set forth in the Loan Documents are true and correct
on and as of the date hereof with the same effect as though made on and as of such date except with respect to
any representations and warranties limited by their terms to a specific date. IN ADDITION, TO INDUCE THE AGENT
AND THE LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT, THE BORROWER AND EACH GUARANTOR (BY ITS EXECUTION BELOW)
REPRESENTS AND WARRANTS THAT AS OF THE DATE OF ITS EXECUTION OF THIS AMENDMENT THERE ARE NO CLAIMS OR OFFSETS
AGAINST OR RIGHTS OF RECOUPMENT WITH RESPECT TO OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS AND IN ACCORDANCE THEREWITH IT:
(A) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES OR COUNTERCLAIMS,
WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF ITS EXECUTION OF THIS AMENDMENT AND
(B) RELEASE. RELEASES AND DISCHARGES THE AGENT AND THE LENDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
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EMPLOYEES, AGENTS, SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED PARTIES") FROM ANY AND ALL
OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR
UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH THE BORROWER OR ANY GUARANTOR EVER HAD, NOW HAS,
CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND FROM OR IN CONNECTION
WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
Section 4.3. Survival of Representations and Warranties. All representations and warranties made in this
Amendment shall survive the execution and delivery of this Amendment, and no investigation by Agent or any Lender
or any closing shall affect the representations and warranties or the right of the Agent or any Lender to rely
upon them.
Section 4.4. Reference to Agreement. Each of the Loan Documents, including the Agreement and any and all
other agreements, documents, or instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Agreement as amended hereby, are hereby amended so that any reference in such
Loan Documents to the Agreement shall mean a reference to the Agreement as amended hereby.
Section 4.5. Expenses of Lender. As provided in the Agreement, Borrower agrees to pay on demand all costs
and expenses incurred by the Agent in connection with the preparation, negotiation, and execution of this
Amendment, including without limitation, the costs and fees of the Agent's legal counsel.
Section 4.6. Severability. Any provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or unenforceable.
Section 4.7. Applicable Law. This Amendment shall be governed by and construed in accordance with the laws
of the State of Texas and the applicable laws of the United States of America.
Section 4.8. Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the
Agent, each Lender and the Borrower and their respective successors and assigns, except Borrower may not assign
or transfer any of its rights or obligations hereunder without the prior written consent of the Lenders.
Section 4.9. Counterparts. This Amendment may be executed in one or more counterparts and on telecopy
counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken
together shall constitute one and the same agreement.
Section 4.10. Effect of Waiver. No consent or waiver, express or implied, by the Agent or any Lender to or
for any breach of or deviation from any covenant, condition or duty by the Borrower or any Guarantor shall be
deemed a consent or waiver to or of any other breach of the same or any other covenant, condition or duty.
Section 4.11. Headings. The headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
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Section 4.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO
AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR
ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES
HERETO.
Section 4.13. Required Lenders. The Agreement may be modified as provided in this Amendment with the
agreement of the Required Lenders which means Lenders having fifty-one percent (51%) of the sum of the total
Revolving Exposures and unused Revolving Commitment (such percentage applicable to a Lender, herein such Lender's
"Required Lender Percentage"). For purposes of determining the effectiveness of this Amendment, each Lender's
Required Lender Percentage is set forth on Schedule 4.13 hereto.
Executed as of the date first written above.
ACXIOM CORPORATION, as the Borrower
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Corporate Finance Leader
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JPMORGAN CHASE BANK, as the Agent, the Issuing Bank, the
Swingline Lender and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
BANK OF AMERICA, N.A., as syndication agent and as a Lender
By: /s/ B. Xxxxxxx Xxxxxx, Xx.
---------------------------------------
Name: B. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
U.S. BaNK National ASSOCIATION (formerly Firstar Bank N.A.),
as a co-administrative agent and as a Lender
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as co-agent and as a Lender
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
SUNTRUST BANK, as co-agent and as a Lender
By: /s/ Xxxxxxx X. XxXxxxxx
---------------------------------------
Name: Xxxxxxx X. XxXxxxxx
---------------------------------------
Title: Director
---------------------------------------
WACHOVIA BANK, N.A., as co-agent and as a Lender
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Title: Managing Director
---------------------------------------
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ABN AMRO BANK N.V., as co-agent and as a Lender
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx-Xxxxxxx
---------------------------------------
Title: Senior Vice President and Head
---------------------------------------
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxx
---------------------------------------
Title: Assistant Vice President
---------------------------------------
Union Planters BANK, N.A.
By:
---------------------------------------
Name:
---------------------------------------
Title:
---------------------------------------
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Guarantor Consent
Each of the undersigned Guarantors: (i) consent and agree to this Amendment, including, without
limitation, Section 4.2, and (ii) agree that the Loan Documents to which it is a party shall remain in full force
and effect and shall continue to be the legal, valid and binding obligation of such Guarantor enforceable against
it in accordance with their respective terms.
GUARANTORS:
Acxiom CDC, Inc.
Acxiom / May & Xxxx, Inc.
Acxiom RM-Tools, Inc.
ACXIOM ASIA, LTD.
ACXIOM PROPERTY DEVELOPMENT, INC.
ACXIOM / PYRAMID INFORMATION SYSTEMS, INC.
ACXIOM SDC, INC.
ACXIOM TRANSPORTATION SERVICES, INC.
ACXIOM / DIRECT MEDIA, INC.
GIS INFORMATION SYSTEMS, INC.
ACXIOM UWS, LTD.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Xxxxx X. Xxxxx, Authorized Officer
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SCHEDULE 4.13
to
WAIVER AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Required Lenders
================================================== ========================= =========================================
Lenders Agreeing to First Amendment
(insert % from prior column if Lender
Required Lender signs Amendment then total % in this
Lender Percentage Held column)
================================================== ========================= =========================================
JPMorgan Chase Bank 20.00000000% 20.00000000%
-------------------------------------------------- ------------------------- -----------------------------------------
U.S. Bank National Association 14.28571429% 14.28571429%
-------------------------------------------------- ------------------------- -----------------------------------------
Bank of America, N.A. 14.28571429% 14.28571429%
-------------------------------------------------- ------------------------- -----------------------------------------
ABN AMRO Bank, N.V. 11.42857143% 11.42857143%
-------------------------------------------------- ------------------------- -----------------------------------------
SunTrust Bank 11.42857143% 11.42857143%
-------------------------------------------------- ------------------------- -----------------------------------------
The Bank of Nova Scotia 11.00000000%
-------------------------------------------------- ------------------------- -----------------------------------------
Wachovia Bank, N.A. 14.28571429% 14.28571429%
-------------------------------------------------- ------------------------- -----------------------------------------
Union Planters Bank, N.A. 2.85714286%
-------------------------------------------------- ------------------------- -----------------------------------------
TOTAL 100.00% 85.7136286%
================================================== ========================= =========================================
SCHEDULE 6.01
to
Waiver and First Amendment to Amended and Restated Credit Agreement
C. Guarantees
1. Acxiom Corporation entered into that certain Continuing Payment and Performance Guaranty dated as of
October 30, 1998, as amended, pursuant to which Acxiom Corporation unconditionally guaranteed the
obligation of Kidco Holdings, LLC ("Kidco") to make timely payments of the principal amount owed, plus
accrued interest, when the same become due, under that certain Promissory Note, dated as of October 30,
1998, as amended, between Mercantile Bank of Arkansas National Association, as lender, and Kidco, as
borrower, in the principal amount of $1,184,500.00. As of March 22, 2002, the balance of such loan was
$1,138,176.00. It is currently contemplated that Kidco's obligations under the Promissory Note
referenced above will be refinanced at a new financial institution. Therefore, as a result of such
re-financing, each of the above-referenced Payment and Performance Guarantee and Promissory Note will be
restated in its entirety; provided, that the outstanding balance of the refinanced Promissory Note (and
resulting guarantee obligations of Acxiom Corporation) will not exceed in the aggregate $1,184,500.
2. Acxiom Corporation entered into a guaranty arrangement with First Community Bank ("First Community")
pursuant to which Acxiom Corporation guaranteed the obligation of Cope's Aircraft Services, Inc.
("Cope's") to make timely payments of the principal amount owed, when the same become due, under a loan
arrangement from First Community to Cope's in the principal amount of $280,000.00. As of February 13,
2002, the balance of such loan was $238,916.65.
SCHEDULE 6.02
to
Waiver and First Amendment to Amended and Restated Credit Agreement
Existing Liens
1. Liens relating to the Indebtedness described in Schedule 6.01
2. Liens against assets and capital stock of Acxiom CDC, Inc. in favor of Trans Union LLC to secure
performance of services (UCC-1 originally filed August 31, 1992; continuation filed March 12, 1997)
3. Liens against assets and capital stock of Acxiom Corporation in favor of Bankers/Softech Division of EAB
Leasing Corp.
EXHIBIT A
to
Waiver and First Amendment to Amended and Restated Credit Agreement
Existing Defaults
1. Acxiom Corporation entered into a lease agreement, dated as of September 22, 1999, with Softech
Financial ("Softech") pursuant to which Acxiom Corporation granted to Softech a security interest in
substantially all of the personal property of Acxiom Corporation. The debt or other obligations secured by such
security interest does not exceed a maximum amount equal to $2,000,000.
2. Acxiom Corporation entered into that certain Continuing Payment and Performance Guaranty dated as of
October 30, 1998, as amended, pursuant to which Acxiom Corporation unconditionally guaranteed the obligation of
Kidco Holdings, LLC ("Kidco") to make timely payments of the principal amount owed, plus accrued interest, when
the same become due, under that certain Promissory Note, dated as of October 30, 1998, as amended, between
Mercantile Bank of Arkansas National Association, as lender, and Kidco, as borrower, in the principal amount of
$1,184,500.00. As of March 22, 2002, the balance of such loan was $1,138,176.00. It is currently contemplated
that Kidco's obligations under the Promissory Note referenced above will be refinanced at a new financial
institution. Therefore, as a result of such re-financing, each of the above-referenced Payment and Performance
Guarantee and Promissory Note will be restated in its entirety; provided, that the outstanding balance of the
refinanced Promissory Note (and resulting guarantee obligations of Acxiom Corporation) will not exceed in the
aggregate $1,184,500.
3. Acxiom Corporation entered into a guaranty arrangement with First Community Bank ("First Community")
pursuant to which Acxiom Corporation guaranteed the obligation of Cope's Aircraft Services, Inc. ("Cope's") to
make timely payments of the principal amount owed, when the same become due, under a loan arrangement from First
Community to Cope's in the principal amount of $280,000.00. As of February 13, 2002, the balance of such loan was
$238,916.65.
