FIRST AMENDMENT TO TERM CREDIT AGREEMENT
This First Amendment to Term Credit Agreement (this "First Amendment"), dated as of January 28, 2002, is
by and between Acxiom Corporation, a Delaware corporation (the "Borrower") and JPMorgan Chase Bank, successor in
interest by merger to The Chase Manhattan Bank (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender are parties to that certain Term Credit Agreement dated as of
September 21, 2001 (the "Credit Agreement") (unless otherwise defined herein, all terms used herein with their
initial letter capitalized shall have the meaning given such terms in the Credit Agreement); and
WHEREAS, pursuant to the Credit Agreement, the Lender has made the Loan to the Borrower; and
WHEREAS, the Borrower has (a) advised the Lender that the Borrower desires to issue convertible
subordinated notes in an aggregate principal amount not to exceed $205,000,000 (the "New Subordinated Debt
Issuance"), the proceeds of which will be used to, among other things, (i) either (1) prepay the Borrower's 6.92%
Senior Notes due March 30, 2007 directly, or (2) reimburse the issuer of the letter of credit supporting the
payment of such 6.92% Senior Notes for a draw thereunder of all amounts owed in respect of such 6.92% Senior
Notes, (ii) provide the funds necessary to redeem the Acxiom/May & Xxxx, Inc. 5.25% convertible subordinated
notes due in April 2003, and (iii) prepay in part the Revolving Loan in accordance with the terms of the Restated
Revolving Credit Agreement (as hereafter defined), and (b) requested that the Lender consent to (A) the
incurrence of the indebtedness evidenced by the New Subordinated Debt Issuance, and (B) the application of the
proceeds thereof as described in clause (a) of this recital notwithstanding any contrary application required by
the Credit Agreement or the Intercreditor Agreement; and
WHEREAS, in connection with the New Subordinated Debt Issuance, the Borrower, the Revolver Agent and the
other parties thereto are entering into that certain Amended and Restated Credit Agreement (the "Restated
Revolving Credit Agreement"), pursuant to which the Revolving Credit Agreement shall be amended and restated on
the terms set forth in such Restated Revolving Credit Agreement; and
WHEREAS, in connection with (i) the New Subordinated Debt Issuance, and (ii) the amendment and
restatement of the Revolving Credit Agreement, the parties hereto desire to amend certain terms of the Credit
Agreement in certain respects.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed, the Borrower and the Lender hereby agree as follows:
Section 1. Amendments. In reliance on the representations, warranties, covenants and agreements contained
in this First Amendment, and subject to the terms and conditions contained herein, the Credit Agreement is hereby
amended effective as of the Effective Date (as defined in Section 3 hereof) in the manner provided in this 0.
1.1 Additional Definitions. Section 1.01 of the Credit Agreement is amended to add thereto in alphabetical
order the definitions of "Accumulated Asset Value," "Conway Facility," "First Amendment," "May & Xxxx Note
Documents," "May & Xxxx Notes" and "Net Proceeds" which shall read in full as follows:
"Accumulated Asset Value" has the meaning specified in Section 6.05.
"Conway Facility" means the Borrower's real property, improvements and fixtures located at the
Borrower's facility at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, which includes the Mortgaged Property
described in item 3 on Schedule 1.01 of the Revolving Credit Agreement and the office buildings OB-4 and ASB-1
excluded from such Mortgaged Property.
"First Amendment" means that certain First Amendment to Term Credit Agreement dated as of
January 28, 2002, between the Borrower and the Lender.
"May & Xxxx Note Documents" means the indenture under which the May & Xxxx Notes have been
issued and all other instruments, agreements and other documents evidencing or governing the May & Xxxx Notes or
providing for any Guarantee or other right in respect thereof.
"May & Xxxx Notes" means the Borrower's and Acxiom/May & Xxxx, Inc.'s 5.25% convertible
subordinated notes due in April 2003 with an aggregate outstanding principal amount as of January 24, 2002 equal
to $114,998,000 and the Indebtedness represented thereby.
"Net Proceeds" means, with respect to any event (a) the cash proceeds received in respect of
such event including any cash received in respect of any non-cash proceeds, but only as and when received, net of
(b) the sum of (i) all reasonable fees and out-of-pocket expenses paid by the Borrower and the Subsidiaries to
third parties (other than Affiliates) in connection with such event, including any sales commissions, investment
banking fees, or underwriting discounts, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a condemnation or similar proceeding),
the amount of all payments required to be made by the Borrower and the Subsidiaries as a result of such event to
repay Indebtedness (other than the Loan and other than the other Indebtedness entitled to the benefits of the
Intercreditor Agreement) secured by such asset or otherwise subject to mandatory prepayment as a result of such
event, and (iii) the amount of all taxes paid (or reasonably estimated to be payable) by the Borrower and the
Subsidiaries to fund contingent liabilities reasonably estimated to be payable, in the case of (A) taxes during
the year that such event occurred or the next succeeding year and that are directly attributable to such event
(as determined reasonably and in good faith by the chief financial officer of the Borrower) and (B) reserves for
contingent liabilities, during the period of any contractual indemnification obligation or statute of limitation
imposed upon the Borrower or any of its Subsidiaries.
1.2 Amendments to Definitions. The definitions of "Applicable Rate," "Change in Control," "Collateral
Agent," "Disclosed Matters," "Equity Interests," "Guarantor," "Intercreditor Agreement," "Lender," "Loan
Documents," "Material Indebtedness," "Revolving Credit Agreement," "Security Agreement," "Subordinated Debt" and
"Synthetic Real Property Lease" set forth in Section 1.01 of the Credit Agreement are amended to read in full as
follows:
"Applicable Rate" means (a) with respect to each ABR Tranche, and subject to Section 2.07(f)
hereof, 2.00%, and (b) with respect to each Eurodollar Tranche, and subject to Section 2.07(f) hereof, 3.75%.
"Change in Control" means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of Sections 13(d) or 14(d) of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) of Equity Interests representing more than 30% of either the aggregate ordinary voting power
or the aggregate equity value represented by the issued and outstanding Equity Interests in Borrower; or (b) the
acquisition of direct or indirect Control of the Borrower by any Person or group; or (c) any "Change of Control"
as defined in the Subordinated Debt Documents.
"Collateral Agent" means JPMorgan Chase Bank, successor in interest by merger to The Chase
Manhattan Bank, as collateral agent under the terms of the Intercreditor Agreement, and its successors and
assigns.
"Disclosed Matters" means all the matters disclosed in the Borrower's reports to the Securities
and Exchange Commission on form 10-Q for the quarterly period ended September 30, 2001 and on form 10-K for the
fiscal year ended March 31, 2001.
"Equity Interests" means shares of capital stock, partnership interests, membership interests
in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person
and any option, warrant or other right relating thereto. The term "Equity Interests" shall not include any
Indebtedness convertible into shares of capital stock, partnership interests, membership interests in a limited
liability company, beneficial interests in a trust or other equity ownership interests in a Person (including the
May & Xxxx Notes and the Subordinated Debt) but shall include the shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests issued upon the actual conversion of such Indebtedness.
"Guarantor" means Acxiom Asia, Ltd., Acxiom CDC, Inc., Acxiom/Direct Media, Inc., Acxiom/May &
Xxxx, Inc., Acxiom NJA, Inc., Acxiom Property Development, Inc., Acxiom/Pyramid Information Systems, Inc., Acxiom
RM-Tools, Inc., Acxiom RTC, Inc., Acxiom SDC, Inc., Acxiom Transportation Services, Inc., GIS Information
Systems, Inc., Acxiom UWS, Ltd. and each other Domestic Subsidiary who becomes a guarantor under the Subsidiary
Guaranty in accordance with Section 5.11.
"Intercreditor Agreement" means that certain Intercreditor Agreement, dated as of September 21,
2001, executed by and among the Borrower, the Guarantors, the Collateral Agent, the Revolver Agent, Bank of
America, N.A., as agent for the participants in the Synthetic Real Property Lease, the Lender and the Letter of
Credit Bank, as amended by that certain First Amendment to Intercreditor Agreement dated as of January 28, 2002,
and as the same may be further amended or otherwise modified.
"Lender" means, collectively, JPMorgan Chase Bank, successor in interest by merger to The Chase
Manhattan Bank, and any other Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
"Loan Documents" means this Agreement, the First Amendment, the Term Notes, the Subsidiary
Guaranty, the Security Agreement, the Mortgages, the Intercreditor Agreement and all other certificates,
agreements and other documents or instruments now or hereafter executed and/or delivered pursuant to or in
connection with the foregoing and any and all amendments, modifications, supplements, renewals, extensions or
restatements thereof.
"Material Indebtedness" means Indebtedness (other than the Loan) of any one or more of the
Borrower and the Subsidiaries in an aggregate principal amount exceeding a Dollar Amount equal to $5,000,000.
The term "Material Indebtedness" includes the Revolving Loan, the Synthetic Equipment Lease Facility, the
Synthetic Real Property Lease and the Subordinated Debt.
"Revolving Credit Agreement" means that certain Amended and Restated Credit Agreement dated as
of January 28, 2002, by and among the Borrower, JPMorgan Chase Bank, as agent, Firstar Bank, N.A., as
documentation agent, Bank of America, N.A., as syndication agent, the financial institutions from time to time
parties thereto as lenders, and the other entities party thereto, as such Amended and Restated Credit Agreement
may be modified, amended, renewed, extended, restated, increased, refinanced or replaced form time to time.
"Security Agreement" means that certain Security Agreement, dated as of September 21, 2001,
executed by and among the Borrower, the Guarantors and the Collateral Agent pursuant to the terms of the
Intercreditor Agreement.
"Subordinated Debt" means the Borrower's convertible subordinated notes due 2009 issued in
January or February of 2002 in the aggregate principal amount not to exceed $205,000,000 on substantially the
same terms as are set forth in the January 26, 2002 draft of the Preliminary Offering Memorandum prepared by the
Borrower and relating thereto and the Indebtedness represented by such notes.
"Synthetic Real Property Lease" means a synthetic lease arrangement under which a lessor has or
will commit to purchase and lease to the Borrower or a Subsidiary the real property and improvements
(i) consisting of two city blocks bounded by Xxxx 0xx Xxxxxx, Xxxx 0xx Xxxxxx, Xxxxx Xxxxxx and Commerce Street in
downtown Little Rock, Arkansas, and (ii) in Phoenix, Arizona including any related personal property and fixtures
related thereto.
1.3 Amendment to Interest Rate Provisions. Section 2.07(a) of the Credit Agreement is amended to read in
full as follows:
"(a) ABR Tranches shall bear interest at the Alternate Base Rate plus the Applicable Rate then
in effect."
1.4 Amendment to Reporting Covenant. Section 5.01(c) of the Credit Agreement is amended to read in full as
follows:
"(c) concurrently with any delivery of financial statements under Section 5.01(a) or
Section 5.01(b), a certificate of a Financial Officer of the Borrower (i) certifying as to
whether a Default has occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Article VII, and (iii) stating
whether any change in GAAP or in the application thereof has occurred since the date of the
Borrower's audited financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements accompanying such
certificate;".
1.5 Additional Affirmative Covenant. Article V of the Credit Agreement is amended to add a new Section 5.14
thereto to read in full as follows:
"SECTION 5.14 Application of Proceeds of the Subordinated Debt. The Borrower agrees
to promptly apply the Net Proceeds of the Subordinated Debt to the following, notwithstanding
anything in Section 4.02 of the Intercreditor Agreement to the contrary: (i) either (a) the
prepayment in full of the Senior Notes, or (b) the reimbursement of the issuer of the letter of
credit supporting the payment of the Senior Notes for a draw thereunder of all amounts owed in
respect of the Senior Notes; (ii) the redemption in full of the May & Xxxx Notes on or before
April 10, 2002 if such notes have not been previously converted by the holders thereof in
accordance with their terms; and (iii) the prepayment of the outstanding amount of the
Revolving Loans in accordance with, and as otherwise provided by, the terms of Section 5.14 of
the Revolving Credit Agreement as in effect on the date of the First Amendment. In furtherance
of this Section 5.14, the Borrower agrees to provide the Trustee under the May & Xxxx Note
Documents and the holders of the Indebtedness evidenced thereby with the notices of redemption
required under the May & Xxxx Note Documents on or before February 15, 2002."
1.6 Amendment to Debt Covenant. Section 6.01(a) of the Credit Agreement is amended to read in full as
follows:
"(a) The Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents and the Subordinated Debt Documents;
(ii) Indebtedness existing on January 28, 2002 and set forth in Schedule 6.01 and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date or decreased weighted average life thereof;
provided, that, the Indebtedness outstanding under or in respect of the Senior Notes, the
letter of credit securing the payment thereof, and the May & Xxxx Notes is not permitted after
May 31, 2002;
(iii) Indebtedness owed by a Subsidiary to the Borrower or owed by a Subsidiary to its parent incurred in
accordance with the restrictions set forth in Section 6.04; provided that (A) the obligations
of each obligor of such Indebtedness must be subordinated in right of payment to any liability
such obligor may have for the obligations arising hereunder from and after such time as any
portion of the obligations arising hereunder or under any other Loan Documents shall become due
and payable (whether at stated maturity, by acceleration or otherwise), (B) such Indebtedness
must be incurred in the ordinary course of business or incurred to finance general corporate
needs, (C) such Indebtedness must be provided on terms customary for intercompany borrowings
among the Borrower and the Subsidiaries or must be made on such other terms and provisions as
the Lender may reasonably require, and (D) the sum of the aggregate outstanding amount of the
obligations of Excluded Subsidiaries guaranteed pursuant to clause 1.6(iv) below plus the
aggregate outstanding principal amount of the loans and advances made to Excluded Subsidiaries
by the Borrower and the Subsidiaries (such sum the "Excluded Subsidiary Loan and Guaranty
Amount") shall not at any time exceed the Dollar Amount equal to $20,000,000 (the "Excluded
Subsidiary Loan and Guaranty Limit");
(iv) Guarantees by the Borrower or a Subsidiary of (A) Indebtedness of any of its wholly owned direct
Subsidiaries; (B) trade accounts payable owed by any of its wholly owned direct Subsidiaries
and arising in the ordinary course of business; or (C) operating leases of any of its wholly
owned direct Subsidiaries entered into in the ordinary course of business; provided that:
(1) the Indebtedness guaranteed is otherwise permitted hereunder; (2) no Default exists or would
result from such Guarantee; and (3) the Excluded Subsidiary Loan and Guaranty Amount shall not
exceed the Excluded Subsidiary Loan and Guaranty Limit;
(v) Guarantees incurred in the ordinary course of business with respect to surety and appeal bonds,
performance and return-of-money bonds, and other similar obligations not exceeding at any time
outstanding a Dollar Amount equal to $5,000,000 in aggregate liability;
(vi) Indebtedness constituting obligations to reimburse worker's compensation insurance companies for claims
paid by such companies on the Borrower's or a Subsidiaries' behalf in accordance with the
policies issued to the Borrower and the Subsidiaries;
(vii) Indebtedness arising in connection with Hedging Agreements entered into in the ordinary course of
business to enable the Borrower or a Subsidiary (A) to limit the market risk of holding
currency in either the cash or futures market, or (B) to fix or limit the Borrower's or any
Subsidiaries' interest expense;
(viii) the obligations arising under the Synthetic Real Property Lease, the Synthetic Airplane Lease Facility
and the Synthetic Equipment Lease Facility; provided, however, notwithstanding anything to the
contrary herein or in the Revolving Credit Agreement, the amount of funding for construction
after August 14, 2001 under the Synthetic Real Property Lease (excluding any fundings for
construction under the Synthetic Real Property Lease prior to August 14, 2001) shall not, at
any time, exceed $26,000,000 in aggregate amount;
(ix) Indebtedness arising in connection with preferred Equity Interest permitted to be issued in accordance
with Section 6.01(b);
(x) Indebtedness for borrowed money not otherwise permitted under this Section 6.01 of any Excluded
Subsidiary provided that the aggregate outstanding amount of all such Indebtedness shall not at
any time exceed the Dollar Amount equal to $5,000,000;
(xi) Indebtedness arising as a result of the licensing of software by the Borrower and the Subsidiaries; and
(xii) the following Indebtedness which may only be created, incurred, assumed or permitted to exist if no
Default exists or would result therefrom:
(A) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets (but excluding the acquisition of assets
which constitute a business unit of a Person), including Capital Lease Obligations and
any Indebtedness assumed in connection with the acquisition of any such assets or
secured by a Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof; provided that (1) such Indebtedness (other
than any Indebtedness incurred in connection with any sale and leaseback transactions
permitted hereby) is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement; (2) such Indebtedness does not exceed
the amount of the purchase price or the costs of construction or improvement, as the
case may be, of the applicable asset; and (3) after giving proforma effect to such
Indebtedness, the Borrower shall be in compliance with Section 7.02 as of the most
recently ended fiscal quarter of the Borrower;
(B) Indebtedness (including Capital Lease Obligations) of the Borrower incurred to refinance the Conway
Facility and extensions, renewals and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof or result in an earlier maturity
date or decreased weighted average life thereof; provided that (1) the aggregate
principal amount thereof does not exceed $45,000,000; (2) such Indebtedness does not
exceed the appraised value of the Conway Facility; (3) the maturity date of such
Indebtedness does not occur prior to the Maturity Date; (4) after giving proforma
effect to such Indebtedness, the Borrower shall be in compliance with Section 7.02 as
of the most recently ended fiscal quarter of the Borrower; and (5) the Borrower shall
comply with Section 6.06 in connection with the Net Proceeds of such financing;
(C) Indebtedness of any Person that becomes a Subsidiary after the date hereof or is merged with or into the
Borrower or a Subsidiary in accordance with the permissions herein set forth; provided
that (1) such Indebtedness exists at the time such Person becomes a Subsidiary or was
so merged and is not created in contemplation of or in connection with such Person
becoming a Subsidiary or merger; and (2)after giving proforma effect to such
Indebtedness and the EBITDAR of the Person who became a Subsidiary, the Borrower shall
be in compliance with Section 7.02 as of the most recently ended fiscal quarter of the
Borrower; and
(D) unsecured Indebtedness of the Borrower and of the Guarantors of the type described in clauses (a), (b),
(c), (e), and (l) of the definition thereof, in addition to the Indebtedness permitted
by clauses (i) through (xi) of this Section 6.01(a) and the foregoing clauses (A),
(B), and (C); provided, that, after giving proforma effect to the Indebtedness
incurred under the permissions of this clause (xii)(D), the Borrower shall be in
compliance with Section 7.02 as of the most recently ended fiscal quarter of the
Borrower and no Default shall exist as result therefrom."
1.7 Amendment to Lien Covenant. Section 6.02 of the Credit Agreement is amended to read in full as follows:
"SECTION 6.02 Liens. The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except:
(a) Permitted Encumbrances and Liens created by the Security Agreement, the Mortgages, the Intercreditor
Agreement and the other Loan Documents;
(b) any Lien on any property or asset of the Borrower or any Subsidiary existing on January 28, 2002 and set
forth in Schedule 6.02; provided that (i)such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary, and (ii) such Lien shall secure only those obligations which it secures on
such date and extensions, renewals and replacements thereof that do not increase the outstanding
principal amount thereof;
(c) Liens created in connection with the Synthetic Real Property Lease, the Synthetic Airplane Lease
Facility and the Synthetic Equipment Lease Facility on property leased pursuant to the applicable
related leases as long as such Liens do not encumber any other property of the Borrower or any
Subsidiary;
(d) Liens encumbering the property of an Excluded Subsidiary securing Indebtedness of such Excluded
Subsidiary incurred in accordance with the permissions of Section 6.01(a)(x); and
(e) the following Liens which may only be created, incurred, assumed or permitted to exist if no Default
exists or would result therefrom:
(i) any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any
Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after
the date hereof in accordance with Section 6.04 prior to the time such Person becomes a
Subsidiary; provided that (A) such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Subsidiary, as the case may be; (B) such Lien
shall not apply to any other property or assets of the Borrower or any Subsidiary; (C) such
Lien shall secure only those obligations which it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be, and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount thereof; and (D) the
Indebtedness secured thereby is otherwise permitted by Section 6.01;
(ii) Liens on fixed or capital assets (but excluding assets which constitute a business unit) acquired,
constructed or improved by the Borrower or any Subsidiary; provided that (A) such security
interests secure Indebtedness permitted by clause (xii)(A) of Section 6.01(a); (B) with
respect to all transactions other than sale and leaseback transactions permitted hereby, such
security interests and the Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or improvement; (C) the
Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving
such fixed or capital assets; and (D) such security interests shall not apply to any other
property or assets of the Borrower or any Subsidiary; and
(iii) consensual Liens on the Xxxxxx Facility; provided that such Liens
secure Indebtedness permitted by clause (xii)(B) of Section 6.01(a)."
1.8 Amendment to Investment Covenant. Section 6.04 of the Credit Agreement is amended as follows:
(a) clause (b) of Section 6.04 is amended to read in full as follows:
"(b) Investments, loans and advances existing on January 28, 2002 and set
forth on Schedule 6.04;"
(b) subclause (iii) of Section 6.04(i) is amended to read in full as follows:
"(iii) The cash portion of the Purchase Price for the proposed acquisition
in question together with the cash portion of the Purchase Prices paid for all acquisitions
consummated in the same fiscal year does not exceed a Dollar Amount equal to the greater of (A)
$40,000,000, or (B) twenty-five percent (25%) of the total of the following (i.e., ebitda),
each calculated for the Borrower without duplication on a consolidated basis for the most
recently completed four fiscal quarter period prior to the date of determination:
(a) Consolidated Net Income (as defined in Section 7.01); plus (b) any provision for (or less
any benefit from) income or franchise taxes included in determining Consolidated Net Income;
plus (c) interest expense (including the interest portion of Capital Lease Obligations)
deducted in determining Consolidated Net Income; plus (d) amortization and depreciation expense
deducted in determining Consolidated Net Income;" and
(b) Section 6.04(l) is amended to read in full as follows:
"(l) In addition to the investments, loans and advances permitted by
clauses (a) through (k) of this Section 6.04, investments in Equity Interests issued by, and
loans and advances to, Persons having an ongoing business similar to or consistent with the
Borrower's line of business; provided that the sum of the aggregate book value of all such
investments plus the aggregate outstanding principal amount of all such loans and advances
shall never exceed a Dollar Amount equal to the greater of (i) $30,000,000 or (ii) twelve
percent (12%) of Consolidated Tangible Net Worth (as defined in Section 7.01) calculated as of
the date of determination."
1.9 Amendment to Asset Sales Covenant. Section 6.05(d) of the Credit Agreement is amended to read in full
as follows:
"(d) sales, transfers and other dispositions of assets that are not permitted by
any other clause of this Section 6.05 (such other sales, transfers and other dispositions
herein the "Dispositions"), if: (i) no Default exists or would result therefrom and (ii) after
giving effect to such Disposition, the aggregate book value of all such assets sold,
transferred or otherwise disposed of since January 28, 2002, under the permissions of this
Section 6.05(d) would not exceed a Dollar Amount equal to the greater of (1) $45,000,000, or
(2) twelve percent (12%) of the Accumulated Asset Value, calculated as of the date of the
Disposition. Notwithstanding the foregoing, the Borrower may make a Disposition and the book
value of the assets shall not be required to be included in the foregoing computation if
(A) such Disposition is pursuant to the Synthetic Equipment Lease Facility, Synthetic Real
Property Lease or another sale and leaseback transaction permitted under Section 6.06, or
(B) the Borrower shall, within 180 days after such Disposition, invest the Net Proceeds thereof
in Collateral for use in the business of the Borrower and the Subsidiaries;
provided that all sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by Section 6.05(b) above) shall be made for fair value. For purposes of this
Section 6.05, "Accumulated Asset Value" means, as of the date of determination, the sum of
(a) the Asset Value (as defined in Section 7.04) as of December 31, 2001 plus (b) the increases
(or minus the decreases) in the Asset Value since December 31, 2001 as reflected in the
Borrower's consolidated balance sheet for each completed calendar year occurring subsequent to
December 31, 2001 prior to the date of determination."
1.10 Amendment to Sale and Leaseback Covenant. Section 6.06 of the Credit Agreement is amended to read in
full as follows:
"SECTION 6.06 Sale and Leaseback Transactions; Xxxxxx Facility Agreements. The
Borrower will not, and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or
lease such property or other property that it intends to use for substantially the same purpose
or purposes as the property sold or transferred, except for any such sale of any fixed or
capital assets that is made for cash consideration in an amount not less than the cost of such
fixed or capital asset and the lease thereof pursuant to:
(a) the Synthetic Equipment Lease Facility, the Synthetic Airplane Lease Facility
or the Synthetic Real Property Lease, or
(b) any other lease otherwise permitted hereby if, after giving effect to any sale
in connection with a lease permitted under this clause (b), the aggregate book value of all
assets sold pursuant to the permissions of this Section 6.06 (excluding those assets sold under
the Synthetic Equipment Lease Facility, the Synthetic Airplane Lease Facility or the Synthetic
Real Property Lease) in any fiscal year does not exceed a Dollar Amount equal to the greater of
(i) $25,000,000 or (ii) five percent (5%) of the Asset Value (as defined in Section 7.04)
calculated as of the date of such sale.
Notwithstanding the foregoing, the book value of the Xxxxxx Facility shall not be required to
be included in the foregoing computation in connection with the sale and leaseback transaction
contemplated therefor if the aggregate amount financed under the terms of such transaction does
not exceed $45,000,000 and if fifty percent (50%) of the Net Proceeds received in connection
with the sale of such assets are treated by the Borrower as Net Proceeds from an asset
disposition and applied as required by Section 4.02 of the Intercreditor Agreement. If the Net
Proceeds from such transaction are not used as "Net Proceeds" from an asset disposition as
provided in the foregoing sentence, then fifty percent (50%) of the aggregate amount of the
book value of such assets shall be required to be included in the computation required by the
first sentence of this Section 6.06. If the Borrower finances the Xxxxxx Facility in a
transaction permitted by Section 6.01(a)(xii)(B) which does not include a sale and leaseback,
then fifty percent (50%) of the aggregate amount of the book value of the Xxxxxx Facility shall
be included in the calculations under this Section 6.06 as if the Xxxxxx Facility had been sold
in a sale and leaseback transaction unless fifty percent (50%) of the Net Proceeds received in
connection with such financing are treated by the Borrower as Net Proceeds from an asset
disposition and applied as required by Section 4.02 of the Intercreditor Agreement."
1.11 Amendment to Restricted Payments Covenant. Section 6.08 of the Credit Agreement is amended as follows:
(a) clause (a) of Section 6.08 is amended to read in full as follows:
"(a) The Borrower will not, nor will it permit any Subsidiary to, declare
or make, or agree to pay or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except (i) Subsidiaries may declare and pay
dividends ratably with respect to their capital stock, and (ii) Subsidiaries may make payment
in respect of preferred Equity Interest issued under the permissions of Section 6.01(b) when
such payments become due."; and
(b) Section 6.08(b) is amended to add the following new clause (vii) thereto which
shall read in full as follows:
"(vii) prepayment in full of the Indebtedness evidenced by the Senior Notes
and the redemption in full of the Indebtedness evidenced by the May & Xxxx Notes."
1.12 Amendment to Restrictive Agreements Covenant. Clauses (i) and (ii) of Section 6.10 of the Credit
Agreement are amended to read in full as follows:
"(i) the foregoing shall not apply to restrictions and conditions imposed by law,
by any Loan Document or by any Subordinated Debt Document, (ii) the foregoing shall not apply
to restrictions and conditions existing on January 28, 2002 identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition)."
1.13 Deletion of Senior Note Covenant. Section 6.13 of the Credit Agreement shall be amended to read in full
as follows:
"SECTION 6.13 [Intentionally Deleted]."
1.14 Amendment to Consolidated Tangible Net Worth Covenant. The definition of "Consolidated Tangible Net
Worth" contained in Section 7.01 of the Credit Agreement is amended to read in full as follows:
"Consolidated Tangible Net Worth" means, at any particular time, the sum of (i) all
amounts which, in conformity with GAAP, would be included as stockholders' equity on a
consolidated balance sheet of the Borrower and the Subsidiaries; minus (ii) the sum of the
following: (a) the amount by which stockholders' equity has been increased by the write-up of
any asset of the Borrower and the Subsidiaries after July 1, 2001, plus (b) the amount of net
deferred income tax assets (less adjustments included in Consolidated Net Income after July 1,
2001), plus (c) any cash held in a sinking fund or other analogous fund established for the
purpose of redemption, retirement or prepayment of capital stock or Indebtedness (excluding,
however, any cash proceeds of the Subordinated Debt to be used to redeem the May & Xxxx Notes
and prepay the Senior Notes), plus (d) the cumulative foreign currency translation adjustment
(less adjustments included in Consolidated Net Income after July 1, 2001), plus (e) the amount
at which shares of capital stock of the Borrower is contained among the assets on the
consolidated balance sheet of the Borrower and the Subsidiaries, plus (f) the amount of any
preferred stock, plus (g) to the extent included in clause (i) above of this definition, the
amount properly attributable to the minority interests, if any, of other Persons in the stock,
additional paid-in capital, and retained earnings of the Subsidiaries, plus (h) the amount of
intangible assets carried on the balance sheet of the Borrower at such date determined in
accordance with GAAP on a consolidated basis, including goodwill, patents, trademarks,
tradenames, organizational expenses, deferred financing changes, debt acquisition costs, start
up costs, preoperating costs, prepaid pension costs, or any other similar deferred charges but
not including deferred charges relating to data processing contracts and software development
costs.
1.15 Amendment to Leverage Ratio Covenant. The definition of "Total Indebtedness" contained in Section 7.02
of the Credit Agreement is amended to read in full as follows:
"Total Indebtedness" means, at the time of determination, the sum of the following
determined for the Borrower and the Subsidiaries on a consolidated basis (without
duplication): (a) the amount of the outstanding principal balance of the Loan under this
Agreement as of the date of determination; plus (b) all obligations for borrowed money, other
than the Loan, or with respect to deposits or advances of any kind; plus (c) all obligations of
such Person evidenced by bonds, notes, debentures, or other similar instruments, other than the
Loan; plus (d) all obligations of such Person upon which interest charges are customarily paid,
other than the Loan; plus (e) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person; plus (f) all
obligations of such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of business); plus (g) all
obligations of others secured by (or for which the holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed (provided that
for purposes of this clause (g) the amount of any such Indebtedness shall be deemed not to
exceed the higher of the market value or the book value of such assets); plus (h) all Capital
Lease Obligations; plus (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty; plus (j) all
obligations, contingent or otherwise, of such Person in respect of bankers' acceptances; plus
(k) all obligations, contingent or otherwise, for the payment of money under any non-compete,
consulting or similar agreement entered into with the seller of a Target or any other similar
arrangements providing for the deferred payment of the purchase price for an acquisition; plus
(l) all Indebtedness arising in connection with Hedging Agreements and preferred Equity
Interests; plus (m) the net present value of all future payments to be made under all Synthetic
Leases (excluding the Synthetic Real Property Lease) and any other operating leases (calculated
by discounting all payments from their respective due dates to the date of determination in
accordance with accepted financial practice, on the basis of a 360-day year and at a discount
factor equal to 8%); plus (n) the total outstanding fundings under the Synthetic Real Property
Lease; minus (o) to the extent included in clauses (a) through (n) of this definition, the
amount reflected on the Borrower's consolidated balance sheet as software license liabilities;
minus (p) the actual outstanding principal amount of the May & Xxxx Notes and the Senior Notes;
provided that, in determining "Total Indebtedness," the amounts described in clause (p) shall
only be subtracted if "Total Indebtedness" is being calculated during the period after the
Borrower has received the proceeds of the Subordinated Debt but prior to the earlier of (i) the
first date when the May & Xxxx Notes are required to be redeemed and the Senior Notes prepaid
as determined herein, or (ii) the first date when the May & Xxxx Notes are actually redeemed or
converted in full and the Senior Notes actually prepaid either directly or as a result of a
draw on the letter of credit securing the payment thereof. The deferred purchase price of
property or services to be paid through earnings of the purchaser to the extent such amount is
not characterized as liabilities in accordance with GAAP shall not be included in "Total
Indebtedness."
1.16 Deletion of Capital Expenditures Covenant. Section 7.05 of the Credit Agreement shall be amended to
read in full as follows:
"SECTION 7.05 [Intentionally Deleted]."
1.17 Amendment to Default Provisions. Article VII of the Credit Agreement is amended as follows:
(a) clause (d) of Article VII is amended to add ", Section 5.14" immediately after "Section 5.10" and
immediately preceding the word "or" in the third (3rd) line thereof;
(b) clause (f) of Article VII is amended to add the phrase "and the Subordinated Debt Documents" immediately
after the phrase "the Synthetic Real Property Lease" in the fourth (4th) line thereof; and
(c) clause (g) of Article VII is amended to add the phrase "and the Subordinated Debt Documents" immediately
after the phrase "the Synthetic Real Property Lease" in the third (3rd) line thereof.
1.18 Revised Schedules. Schedules 3.12, 6.01, 6.04 and 6.10 of the Credit Agreement shall be replaced in
their entirety with Schedules 3.12, 6.01, 6.04 and 6.10 attached hereto and made a part hereof.
Section 2. Limited Waiver and Consent. The Borrower has (a) advised the Lender that the Borrower has
failed to comply with Section 5.11 of the Credit Agreement and Section 4.04 of the Intercreditor Agreement in
connection with the creation of its new Subsidiary named Acxiom UWS, Ltd., which failure constitutes a Default
under the terms of the Credit Agreement (the "Existing Default"), (b) requested that the Lender waive such
Existing Default, and (c) requested that the Lender consent to (i) the incurrence of the indebtedness evidenced
by the New Subordinated Debt Issuance, and (ii) the application of the proceeds thereof as described in the
Credit Agreement (as hereby amended). In reliance on the representations, warranties, covenants and agreements
contained in this First Amendment, the Lender hereby (A) waives the Existing Default (such waiver being referred
to herein as the "Limited Waiver"), and (B) consents to (1) the incurrence of the indebtedness evidenced by the
New Subordinated Debt Issuance, and (2) the application of the proceeds thereof as follows: (i) either (aa) the
prepayment in full of the Senior Notes directly, or (bb) to reimburse the issuer of the letter of credit
supporting the payment of the Senior Notes for a draw thereunder of all amounts owed in respect of the Senior
Notes; (ii) the redemption in full of the May & Xxxx Notes or if the May & Xxxx Notes are converted in accordance
with the terms thereof, then to the prepayment of the Revolving Loan (without reduction of the revolving
commitments under the Revolving Credit Agreement); and (iii) the prepayment of the outstanding amount of the
Revolving Loans (the consents described in clauses (B)(1) and (2) being collectively referred to herein as the
"Limited Consents"); provided, that the Limited Waiver and the Limited Consents are expressly limited as follows:
(x) such waiver and consents are limited solely to the Limited Waiver and Limited Consents, (y) such Limited
Waiver and Limited Consents shall not be applicable to any provision of any Loan Document other than as expressly
set forth herein, and (z) such Limited Waiver and Limited Consents are limited, one-time waivers and consents and
nothing contained herein shall obligate the Lender to grant any additional or future waiver or consent with
respect to any provision of any Loan Document.
Section 3. Conditions Precedent. The amendments to the Credit Agreement contained in Section 1 hereof
shall not become effective until the date (herein referred to as the "Effective Date") on which each of the
following conditions is satisfied (or waived in writing by the Lender), all of which must occur on or prior to
February 15, 2002:
3.1 Amendment. The Lender (or its counsel) shall have received from the Borrower and each Guarantor a
counterpart of this First Amendment signed on behalf of such party.
3.2 Guaranty. The Lender shall have received from Acxiom UWS, Ltd. a Subsidiary Guaranty (or a Subsidiary
Joinder Agreement) signed on behalf of such party.
3.3 Organizational Documents; Certificates; Opinions. The Lender shall have received such documents,
certificates and opinions as the Lender or its counsel may reasonably request relating to the organization,
existence and good standing of the Borrower and each Guarantor, the power and authority of the Borrower and each
Guarantor to execute, deliver and perform the Loan Documents to which each is a party and any other legal matters
relating to the Borrower, any Guarantor or the Loan Documents, all in form and substance satisfactory to the
Lender and its counsel.
3.4 Subordinated Debt Documents. The Lender shall have received copies of the Subordinated Debt Documents
which must be in form and substance acceptable to the Lender, and evidence that the Borrower has received the
gross cash proceeds from the New Subordinated Debt Issuance in an amount not less than $150,000,000.
3.5 Amendment to Intercreditor Agreement. The Lender shall have received from each required party thereto
either (a) a counterpart of that certain First Amendment to Intercreditor Agreement in the form attached as
Exhibit C to the Restated Revolving Credit Agreement, signed on behalf of each such required party, or
(b) written evidence satisfactory to the Lender that each such party has signed a counterpart of such amendment.
3.6 Revolving Credit Agreement. The Lender shall have received a fully executed copy of the Restated
Revolving Credit Agreement (or written evidence satisfactory to the Lender that such agreement has been fully
executed), and all conditions precedent set forth in Article IV of the Restated Revolving Credit Agreement shall
have been satisfied or otherwise waived in accordance with the terms set forth therein.
3.7 Synthetic Real Property Lease. The Lender shall have received a fully executed copy of an amendment to
the Synthetic Real Property Lease documentation (or written evidence satisfactory to the Lender that such
amendment has been fully executed) in form and substance acceptable to the Lender.
3.8 Fees and Expenses. The Lender shall have received all fees and other amounts due and payable on or
prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower
hereunder or under any other Loan Document.
3.9 Representations and Warranties. The representations and warranties of the Borrower set forth in
Section 4 hereof shall be true and correct.
3.10 No Default. No Default shall have occurred and be continuing.
The Lender shall notify the Borrower of the Effective Date, and such notice shall be conclusive and binding.
Section 4. Representations and Warranties of the Borrower. To induce the Lender to enter into this First
Amendment, the Borrower hereby represents and warrants to the Lender as follows:
4.1 Reaffirmation of Representations and Warranties. Each representation and warranty of the Borrower and
each Guarantor contained in the Credit Agreement and the other Loan Documents is true and correct on the date
hereof after giving effect to the amendments set forth in 0 hereof and the Limited Waiver and Limited Consents
set forth in Section 2 hereof.
4.2 Due Authorization, No Conflicts. The execution, delivery and performance by the Borrower of this First
Amendment are within the Borrower's corporate powers, have been duly authorized by necessary action, require no
action by or in respect of, or filing with, any governmental body, agency or official and do not violate or
constitute a default under any provision of applicable law or any material agreement binding upon the Borrower or
its Subsidiaries, or result in the creation or imposition of any Lien upon any of the assets of the Borrower or
its Subsidiaries except to the extent permitted by the Loan Documents.
4.3 Validity and Binding Effect. This First Amendment constitutes the valid and binding obligations of the
Borrower enforceable in accordance with its terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditor's rights generally, and (b) the availability of
equitable remedies may be limited by equitable principles of general application.
4.4 No Defenses. The Borrower has no defenses to payment, counterclaim or rights of set-off with respect to
the indebtedness, obligations and liabilities of the Borrower under the Loan Documents existing on the date
hereof.
4.5 Absence of Defaults. After giving effect to the amendments set forth in 0 hereof, and the Limited
Waiver and Limited Consents set forth in Section 2 hereof, neither a Default nor an Event of Default has occurred
which is continuing.
4.6 Senior Indebtedness. The Indebtedness under the Credit Agreement and the other Loan Documents
constitutes "Senior Indebtedness" and "Designated Senior Indebtedness" under and as defined in the Subordinated
Debt Documents.
Section 5. Miscellaneous.
5.1 Reaffirmation of Loan Documents. Any and all of the terms and provisions of the Credit Agreement and
the other Loan Documents shall, except as amended and modified hereby, remain in full force and effect. The
Borrower hereby agrees that the amendments and modifications herein contained shall in no manner adversely affect
or impair the indebtedness, obligations and liabilities of the Borrower under the Loan Documents.
5.2 Parties in Interest. All of the terms and provisions of this First Amendment shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns.
5.3 Counterparts. This First Amendment may be executed in counterparts, and all parties need not execute
the same counterpart; however, no party shall be bound by this First Amendment until counterparts hereof have
been executed by the Borrower and the Lender. Facsimiles shall be effective as originals.
5.4 Complete Agreement. THIS FIRST AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.
5.5 Headings. The headings, captions and arrangements used in this First Amendment are, unless specified
otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of this First
Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be duly executed by their
respective authorized officers on the date and year first above written.
[Signature Pages Follow]
SIGNATURE PAGE
TO
FIRST AMENDMENT TO TERM CREDIT AGREEMENT
BY AND BETWEEN
ACXIOM CORPORATION
AND JPMORGAN CHASE BANK
Signature Page
ACXIOM CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Company Business Development/Legal
JPMORGAN CHASE BANK
By: /s/ Xxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxx,
Vice President
Guarantor Consent
Each of the undersigned Guarantors (i) consent and agree to this First Amendment, 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.
ACXIOM ASIA, LTD.
ACXIOM CDC, INC.
ACXIOM/DIRECT MEDIA, INC.
ACXIOM/MAY & XXXX, INC.
ACXIOM NJA, INC.
ACXIOM PROPERTY DEVELOPMENT, INC.
ACXIOM/PYRAMID INFORMATION SYSTEMS, INC.
ACXIOM RM-TOOLS, INC.
ACXIOM RTC, INC.
ACXIOM SDC, INC.
ACXIOM TRANSPORTATION SERVICES, INC.
GIS INFORMATION SYSTEMS, INC.
ACXIOM UWS, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx, Vice President and Assistant
Treasurer of all Guarantors
SCHEDULE 3.12
to
ACXIOM CORPORATION
TERM CREDIT AGREEMENT
a. List of all Subsidiaries of the Borrower
=================================================================================================================================
DOMESTIC SUBSIDIARIES
=================================================================================================================================
============================================ =================== ============================== ================ ================
Name Incorporated In Authorized Issued and Warrants and
Capital Outstanding Other Equity
Stock Capital Stock Rights
============================================ =================== ============================== ================ ================
============================================ =================== ============================== ================ ================
Acxiom Asia, Ltd. Arkansas 300 shares of common stock 300 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom CDC, Inc.1 Arkansas 1000 shares of common stock 1000 shares of N/A
par value $0.10; 60 shares common stock;
of preferred stock par value 60 shares of
$100 preferred stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom/May & Xxxx, Inc. Delaware 1000 shares of common stock 1000 shares of N/A
par value $0.01 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
GIS Information Systems, Inc.2 Illinois 2000 shares of common stock 1000 shares of N/A
no par value common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom NJA, Inc. New Jersey 2500 shares of common stock 100 shares of N/A
no par value common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom Property Development, Inc. Arkansas 100 shares of common stock 100 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom / Pyramid Information Systems, Inc. California 1,000,000 shares 100 shares of N/A
common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom RM-Tools, Inc. Arkansas 1000 shares of common stock 1000 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom RTC, Inc. Delaware 100 shares of common stock 100 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom SDC, Inc. Arkansas 300 shares of common stock 300 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom / Direct Media, Inc. Arkansas 300 shares of common stock 300 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom Transportation Services, Inc. Arkansas 100 shares of common stock 50 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
Acxiom UWS, Ltd. Arkansas 100 shares of common stock 100 shares of N/A
par value $0.10 common stock
-------------------------------------------- ------------------- ------------------------------ ---------------- ----------------
=================================================================================================================================
FOREIGN SUBSIDIARIES
=================================================================================================================================
=========================================== =================== ============================== ================ =================
Name Incorporated In Authorized Capital Issued and Warrants and
Stock Outstanding Other Equity
Capital Stock Rights
=========================================== =================== ============================== ================ =================
=========================================== =================== ============================== ================ =================
Acxiom Limited3 United Kingdom 4,600,000 at 1 pound N/A
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
=========================================== =================== ============================== ================ =================
Acxiom Espan~a4 Spain 36,000,000 N/A
Ptas.
(3,600 shares/
10,000 Ptas.
Each)
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
Marketing Technology SA5 Spain 36,000,000 N/A
Ptas.
(3,600 shares/
10,000 Ptas.
Each)
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
Acxiom France SA France 300.00 FRANCS N/A
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
Acxiom Australia Pty Ltd. Australia 1 share N/A
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
------------------------------------------- ------------------- ------------------------------ ---------------- -----------------
Acxiom Personnel Pty Ltd.6 Australia 1 share N/A
=========================================== =================== ============================== ================ =================
Except as otherwise noted on this Schedule 3.12, all Subsidiaries are wholly-owned by
the Borrower.
b. Outstanding subscriptions, options, warrants, calls, or rights to acquire, and outstanding
securities or instruments convertible into any Equity Interests of the Borrower.
1. The Borrower currently maintains various option/incentive plans for directors, employees and/or
consultants pursuant to which options or other instruments convertible into Equity Interests of the
Borrower have been or will be issued.
2. The May & Xxxx Notes which are convertible into common stock of the Borrower.
3. The Subordinated Debt which is convertible into common stock of the Borrower.
4. The following warrants granting rights to acquire Equity Interests of the Borrower are currently
outstanding:
a. Warrants to acquire an aggregate amount of 206,773 shares at $17.50 per share held by the
various owners of SIGMA Marketing Group, Inc. All currently vested. Expiration date: 9/30/03.
b. Warrant to acquire 100,000 shares at $32.129 per share held by Allstate Insurance Company.
Vesting date: 3/31/05. Expiration date: 9/30/05.
c. Warrant to acquire 13,900 shares at $29.05 per share held by Allstate Insurance Company.
Vesting date: 3/31/05. Expiration date: 9/30/05.
d. Warrant to acquire 91,010 shares at $16.39 per share held by Allstate Insurance Company.
Vesting date: 3/31/05. Expiration date: 9/30/05.
--------
1 Borrower owns 100% of the outstanding common stock of Acxiom CDC, Inc. and 83% of the preferred.
2 Wholly-owned subsidiary of Acxiom/May & Xxxx, Inc.
3 Borrower owns 4,599,999 shares of Acxiom Limited.
4 Wholly-owned subsidiary of Acxiom Limited.
5 Wholly-owned subsidiary of Acxiom Espana.
6 Wholly-owned subsidiary of Acxiom Australia Pty Ltd.
SCHEDULE 6.01
to
ACXIOM CORPORATION
TERM CREDIT AGREEMENT
Existing Indebtedness and Preferred Equity Interest
A. Existing Indebtedness
======= ========================================== ===================== =============================================
Description Principal Liens
Outstanding as of
December 31, 2001
======= ========================================== ===================== =============================================
======= ========================================== ===================== =============================================
1. Subordinated Debt Not to exceed Unsecured
$205,000,000
(outstanding as of
the Effective Date
of the First
Amendment)
------- ------------------------------------------ --------------------- ---------------------------------------------
======= ========================================== ===================== =============================================
2. May & Xxxx Notes $114,998,000 Unsecured
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
3. 6.92% Senior Notes due March 30, 2007 $ 25,714,286 Secured pursuant to Intercreditor Agreement
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
4. Revolver Debt $175,000,0001 Secured pursuant to Intercreditor Agreement
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
5. Capital Lease Obligations $13,248,000 Secured by Lien on land located in Downers
Grove, Illinois and the related building
and other related real and personal
property assets of Acxiom/May & Xxxx, Inc.
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
6. Software license liabilities $89,655,000 Interest is software licenses arising under
related agreements.
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
7. Construction loan $9,211,000 Secured by Lien on land located in Conway,
Arkansas and the related building and other
related real and personal assets of Borrower
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
8. Mortgage loan $2,059,000 Secured by Lien on land located in Conway,
Arkansas and the related building and other
related real and personal assets of Borrower
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
9. Aircraft lease Agreement with General $11,222,0002 Secured by Lien on Aircraft (as defined in
Electric Capital Corporation the Aircraft Lease Agreement)
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
10. Other capital leases, debt and long-term $668,000 Secured by various Liens on assets of
liabilities Borrower and/or its Subsidiaries with a
book value of less than $500,000.
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
11. Synthethic lease with General Electric $159,699,0002 Secured by liens on equipment
Capital Corporation
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
12. Chenal Joint Venture building loan to $8,457,000 Secured by lien on Chenal building
partnership in which Borrower is a
general partner
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
13. Riverdale Joint Venture building loan $4,554,000 Secured by lien on Acxiom Plaza building
partnership in which Borrower is a (amount represents total loan)
general partner
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
14. Outstanding letters of credit $10,658,000 unsecured
------- ------------------------------------------ --------------------- ---------------------------------------------
------- ------------------------------------------ --------------------- ---------------------------------------------
15. Capital Lease obligations resulting from $4,035,000; balance Secured by liens on equipment underlying
refinancing of sale-leaseback is expected to lease.
transaction with Technology Investment increase to no more
Partners, LLC than $18,000,000
upon receiving
remaining funding
======= ========================================== ===================== =============================================
1 Amount represents total commitment under Revolving Credit Agreement.
2 Amount represents total amount drawn through December 31, 2001.
B. Preferred Equity Interests.
1. Acxiom CDC, Inc. has issued an outstanding 60 shares of preferred stock (50 shares issued to
Borrower and 10 shares to Trans Union LLC). All outstanding common and preferred stock of Acxiom CDC, Inc. has
been pledged to Trans Union LLC.
SCHEDULE 6.02
to
ACXIOM CORPORATION
TERM CREDIT AGREEMENT
Existing Liens
1. Liens described in Schedule 6.01
2. Lien 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)
SCHEDULE 6.04
to
ACXIOM CORPORATION
TERM CREDIT AGREEMENT
Existing Investments
=============================== ===================== =============================== ================= ==============
Issuer Book Value Type of Property Number of Units Percent of
At December 31, Borrower's
2001 (in thousands) Interest
=============================== ===================== =============================== ================= ==============
=============================== ===================== =============================== ================= ==============
Chenal Technology Office 1,454 Real Estate Partnership N/A 50%
Joint Venture1
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Exchange Applications2 159 Common Stock 64,173 shares <1%
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
City of Little Rock, Arkansas 1,300 Little Rock Revenue Bond N/A N/A
Series-A Bond
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Riverdale3 1,052 Real Estate Partnership N/A 50%
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Bigfoot International, Inc.4 800 Common Stock 5,000 shares <20%
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Think Direct Marketing, Inc.5 1,475 Equity interest in privately N/A 13%
held corporation
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
EMC6 0 Equity interest in joint N/A 50%
venture
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Constellation Venture7 3,284 Venture Capital Fund N/A 5.85%
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
The Personal Marketing 0 $250,000 loan N/A N/A
Company ("PMC")8
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------------------------------- --------------------- ------------------------------- ----------------- --------------
TheStreet.com9 164 Common Stock 57,075 shares <20%
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
USADATA.com10 7,650 Common Stock 1,976,357 shares 12.75%
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Healthcare ProConnect, LLC11 3,287 Equity interest in Joint N/A 50%
Venture
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------------------------------- --------------------- ------------------------------- ----------------- --------------
Landscape12 609 Stock in Japanese Company 207 shares 15%
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Sedona13 1,700 Common and Preferred Stock $1,500,000 <20%
preferred
541,363 common
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Australian Joint Venture14 7,629 Joint Venture N/A 50%
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------------------------------- --------------------- ------------------------------- ----------------- --------------
Market Advantage, LLC15 0 Membership in Limited 40 40%
Liability Company
------------------------------- --------------------- ------------------------------- ----------------- --------------
------------------------------- --------------------- ------------------------------- ----------------- --------------
Intrinsic Ltd. 69516 Maximum payment owed to N/A N/A
Borrower pursuant to
liquidation settlement
------------------------------- --------------------- ------------------------------- ----------------- --------------
Total $ 31,258
=============================== ===================== =============================== ================= ==============
---------------
1 General partner (50% ownership interest) in real estate partnership that owns the Acxiom Chenal Building.
2 Investment in software company. Exchange Application is a public company; its stock symbol is: EXAP.
3 General partner (50% ownership interest) in real estate partnership that owns the Acxiom Plaza Building.
4 Investment in company that provides internet/e-mail services. Bigfoot is a privately held company.
5 Equity interest in a privately held company that provides marketing services to small businesses. Formerly
doing business as Digital Asset Management, Inc. ("DAMI").
6 Equity interest in joint venture entered by May & Xxxx, Inc. Joint Venture is inactive.
7 Venture capital fund in which Acxiom's maximum total commitment is $5 million.
8 Represents $250,000 loan from Borrower to PMC (seed money to PMC to build data file of pre-mover data);
Borrower has written-off this loan.
9 Investment in company that provides financial/market research. XxxXxxxxx.xxx is a public company, its stock
symbol is: TSCM.
10 Investment in company that provides marketing services. XXXXXXX.XXX is a privately held company.
11 Joint venture with the American Medical Association. Established to be the data source of physician
information in the United States.
12 Investment in a Japanese data company.
13 Represents a non-cash investment gain received for the sale of CIMSBU (business unit of Borrower); Borrower
received $1,500,000 of preferred stock and warrants in Sedona. Subsequently, Borrower made an additional
investment that was converted into 541,363 shares of common stock.
14 Interest in Australian joint venture with Publishing & Broadcasting, Ltd.
15 Investment in privately held company. No cash investment is required.
16 SAS Institute, Inc. acquired Intrinsic Ltd. in March of 2001. In connection therewith, assets of Intrinsic
were placed in the custody of a receiver. This amount represents the maximum amount which Borrower may recover
on its investment after all debts and other liabilities of Intrinsic Ltd. are satisfied.
SCHEDULE 6.10
to
ACXIOM CORPORATION
TERM CREDIT AGREEMENT
Existing Restrictions
Existing restrictions include the restrictions and conditions on (a) the ability of the Borrower or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets, or (b) the ability of
any Subsidiary to pay dividends or other distributions with respect to any shares of its capital stock, to make
or repay loans or advances to the Borrower or any other Subsidiary, or to Guarantee Indebtedness of the Borrower
or any other Subsidiary, that are contained in the Loan Documents pertaining to the Indebtedness described in
items 1, 2, 3, 4, 5 and 11 of Schedule 6.01.
