EXHIBIT 10(l)
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the "Amendment"), dated as of
August 11, 2003 is among ACXIOM CORPORATION, a Delaware Corporation (the "Borrower"), the lenders party hereto,
and JPMORGAN CHASE BANK, as the agent (the "Agent").
RECITALS:
A. The Borrower, the Agent, and the lenders party thereto have entered into that certain Second
Amended and Restated Credit Agreement dated as of February 5, 2003 (as amended or otherwise modified from time to
time, the "Agreement").
B. 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.
ARTICLE II.
Amendments
Section 2.1. Amendment to Section 6.08. Section 6.08 of the Agreement is amended as follows:
(a) Subclause (i) of Section 6.08(a) is amended in its entirety to read as follows:
(i) The Borrower may declare and pay dividends ratably with respect to
its common stock in an aggregate amount not to exceed $15,000,000 in any fiscal year
of the Borrower and Subsidiaries may declare and pay dividends ratably with respect to
their common stock and;
(b) Subclause (viii) of Section 6.08(a) is amended in its entirety to read as follows:
(viii) In addition to the Restricted Payments permitted by clauses (i)
through (vii) of this Section 6.08(a), the Borrower may declare and make any other
Restricted Payment if:
(A) no Default exists or would result therefrom;
(B) the Borrower's Leverage Ratio (1) calculated as of the most
recent quarter end prior to the date of the Restricted Payment and (2) projected (on a
basis acceptable to the Agent) for the end of the quarter during which such Restricted
Payment is made does not exceed 2.00 to 1.00; and
(C) the aggregate amount paid by the Borrower for such
Restricted Payments made under the permission of this clause (viii) after the
Effective Date and made under clause (a)(iii) of Section 6.08 of the Prior Agreement
since November 12, 2002 does not exceed $125,000,000.
(c) Subclause (ix) of Section 6.08(a) is amended in its entirety to read as follows:
(ix) In addition to the Restricted Payments permitted by clauses (i)
through (viii) of this Section 6.08(a), the Borrower may prepay or repurchase all or
any portion of the Subordinated Debt on or after January 15, 2005 if as of the date of
any such prepayment or repurchase and after giving effect thereto:
(A) no Default exists or would result therefrom;
(B) Borrower shall have delivered to Agent a Covenant Change
Notice; and
(C) after giving proforma effect to the proposed prepayment or
repurchase, the Borrower's Leverage Ratio calculated on a proforma basis as of the
most recent quarter end prior to the date of prepayment or repurchase does not exceed
1.50 to 1.00.
Any prepayment or repurchase of Subordinated Debt made on or after January 15, 2005
shall first be counted in determining the use of the $125,000,000 basket set forth
above in clause (viii) of this Section 6.08(a) (if any of such basket is then
available) and then shall be made only under the permissions of this clause (ix) and
not counted as a use for purposes of determining compliance with clause (viii) of this
Section 6.08(a).
Section 2.2. Amendment to Section 7.01. The first sentence of Section 7.01 of the Agreement is amended in
its entirety to read as follows:
The Borrower will at all times maintain Consolidated Tangible Net Worth (as
defined below) in an amount not less than (a) $275,000,000 plus (b) 50% of the
Borrower's Consolidated Net Income for the period from April 1, 2004 through the
fiscal quarter to have completely elapsed as of the date of determination; plus
(c) 100% of the net cash proceeds of any sale of Equity Interests or other
contributions to the capital of the Borrower received by Borrower since April 1, 2004,
calculated without duplication.
Section 2.3. Amendment to Section 7.02. The first sentence of Section 7.02 of the Agreement is amended in
its entirety to read as follows:
As of the last day of each fiscal quarter ending after June 30, 2003, the
Borrower shall not permit the ratio of Total Indebtedness as of such date to Adjusted
EBITDAR for the four (4) Fiscal Quarters then ended to exceed 2.50 to 1.00; provided,
that, if the Borrower shall have delivered a Covenant Change Notice to the Agent, then
as of the last day of each fiscal quarter ending after such delivery, the Borrower
shall not permit the ratio of Total Indebtedness as of such date to Adjusted EBITDAR
for the four (4) Fiscal Quarters then ended to exceed 2.00 to 1.00.
Section 2.4. Amendment to Section 10.12. The following sentence is added to the end of Section 10.12 of the
Agreement:
Notwithstanding anything in the Prior Agreement or in any other Loan Document to the
contrary, the parties hereto may disclose to any Person, without limitation of any
kind, the "tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated by the Loan
Documents and all materials of any kind (including opinions or other tax analyses)
that are provided to the Borrower relating to such tax treatment and tax structure,
except that, with respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as well
as other information, this proviso shall only apply to such portions of the document
or similar item that relate to the tax treatment or tax structure of the transactions
contemplated thereby.
ARTICLE III.
Conditions Precedent
Section 3.1. Conditions. The effectiveness of Article II of this Amendment is subject to the satisfaction
of the following conditions precedent:
(a) The Agent shall have received this Amendment duly executed by the Borrower, the Guarantors and the
Required Lenders;
(b) Each Lender who has executed this Amendment by August 11, 2003 shall have received an amendment fee
equal to 0.070% of its Revolving Commitment in effect as of the date of this Amendment;
(c) The representations and warranties contained herein and in all other Loan Documents, as amended hereby,
shall be true and correct in all material respects as of the date hereof as if made on the date hereof, except
for such representations and warranties limited by their terms to a specific date;
(d) No Default shall exist; and
(e) All proceedings taken in connection with the transactions contemplated by this Amendment and all
documentation and other legal matters incident thereto shall be satisfactory to Agent and its legal counsel,
Jenkens & Xxxxxxxxx, a Professional Corporation.
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) no Default exists, and (b) 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,
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, the Borrower, each Guarantor and their respective successors and assigns, except neither
Borrower nor any Guarantor may 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.
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:
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Xxxxxx X. Xxxxxxx, Corporate Finance Leader
JPMORGAN CHASE BANK, as the Agent, the Issuing Bank, the
Swingline Lender and as a Lender
By:
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Xxxxxxx X. Xxxxxx, Vice President
BANK OF AMERICA, N.A., as syndication agent and as a Lender
By:
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Name:
Title:
U.S. BaNK National ASSOCIATION (formerly Firstar Bank N.A.),
as documentation agent and as a Lender
By:
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Name:
Title:
SUNTRUST BANK, as a Lender
By:
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Name:
Title:
WACHOVIA BANK, N.A., as a Lender
By:
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Name:
Title:
ABN AMRO BANK N.V., as a Lender
By:
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Name:
Title:
By:
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Name:
Title:
UNION PLANTERS BANK, N.A., as a Lender
By:
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Name:
Title:
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 E-PRODUCTS, INC.
ACXIOM TRANSPORTATION SERVICES, INC.
ACXIOM / DIRECT MEDIA, INC.
GIS INFORMATION SYSTEMS, INC.
ACXIOM UWS, LTD.
ACXIOM INFORMATION SECURITY SERVICES, INC.
ACXIOM INTERIM HOLDINGS, INC.
By:
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Xxxxxx Xxxxxxx, Authorized Officer of each Guarantor
SCHEDULE 4.13, Solo Page
DALLAS2 988580v6 12283-00139
SCHEDULE 4.13
to
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Required Lenders
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Lenders Agreeing to Second Amendment
(insert % from prior column if Lender
Required Lender signs Amendment then total % in this
Lender Percentage Held column)
================================================== ========================= =========================================
JPMorgan Chase Bank 20.00000000%
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U.S. Bank National Association 16.66666666%
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Bank of America, N.A. 16.66666666%
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ABN AMRO Bank, N.V. 13.33333333%
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SunTrust Bank 13.33333333%
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Wachovia Bank, N.A. 13.33333333%
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Union Planters Bank, N.A. 6.66666666%
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TOTAL 100.00%
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