EXHIBIT (b)(1)
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF
MARCH 26, 1998
BETWEEN
ACXIOM CORPORATION
AND
MERCANTILE BANK
NATIONAL ASSOCIATION, AS
ADMINISTRATIVE AND DOCUMENTATION AGENT,
CHASE BANK OF TEXAS,
N. A., AS SYNDICATION AGENT,
AND
THE BANKS NAMED HEREIN
TABLE OF CONTENTS*
Page
ARTICLE I DEFINITIONS.................................................1
SECTION 1.1. Definitions....................................1
SECTION 1.2. Accounting Terms and Determinations............9
ARTICLE II THE CREDITS.................................................9
SECTION 2.1. Loans..........................................9
A. Loans............................................9
B. Letters of Credit................................9
SECTION 2.2. Method of Borrowing...........................13
SECTION 2.3. Notes.........................................14
SECTION 2.4. Duration of Interest Periods and
Selection of Interest Rates.................15
SECTION 2.5. Interest Rates................................15
SECTION 2.6. Commitment Fee................................17
SECTION 2.7. Termination or Reduction of Commitment........18
SECTION 2.8. Payments Prior to Maturity....................18
SECTION 2.9. General Provisions as to Payments.............19
SECTION 2.10. Funding Losses................................20
SECTION 2.11. Computation of Interest.......................20
ARTICLE III CONDITIONS TO BORROWINGS...................................20
SECTION 3.1. All Borrowings................................20
SECTION 3.2. First Borrowing...............................21
SECTION 3.3. All Letters of Credit.........................21
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................22
SECTION 4.1. Representations and Warranties................22
(a) Corporate Existence and Power...................22
(b) Corporate and Governmental Authorization;
Contravention.................................22
(c) Binding Effect..................................23
(d) Financial Information...........................23
(d) Litigation......................................23
(e) ERISA -Absence of Reportable Events.............24
(f) Tax Returns and Payment.........................24
(g) Not an Investment Company.......................24
(h) Liens...........................................24
(i) Subsidiaries....................................24
ARTICLE V COVENANTS..................................................24
SECTION 5.1. Covenants of the Company......................24
(a) Information.....................................24
(b) Limitations on Liens............................25
(c) Merger or Consolidation.........................26
(d) Sale of Assets..................................26
(e) Payment of Debt.................................27
(f) Consultations and Inspections...................27
(g) Payment of Taxes; Corporate Existence;
Maintenance of Properties; Insurance..........27
(h) Financial Covenants.............................28
(i) Maintenance of Books and Records................29
(j) Stock Redemptions and Distributions.............29
(k) Transactions with Related Parties...............29
(l) Change in Fiscal Year...........................29
(m) Compliance with Law.............................29
(n) Notice of Subsequent Events.....................29
SECTION 5.2. Use of Proceeds...............................30
ARTICLE VI DEFAULTS...................................................30
SECTION 6.1. Events of Default.............................30
ARTICLE VII CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS.........32
SECTION 7.1. Basis for Determining Interest Rate
Inadequate or Unfair........................32
SECTION 7.2. Illegality....................................33
SECTION 7.3. Increased Cost................................33
SECTION 7.4. Prime Loans Substituted for Affected
Fixed Rate Loans............................34
SECTION 7.5. Indemnity.....................................35
ARTICLE VIII THE AGENT..................................................35
SECTION 8.1. Appointment and Authorization.................35
SECTION 8.2. Agent and Affiliates..........................35
SECTION 8.3. Action by Agent...............................36
SECTION 8.4. Consultation with Experts.....................36
SECTION 8.5. Liability of Agent............................36
SECTION 8.6. Indemnification...............................36
SECTION 8.7. Credit Decision...............................36
SECTION 8.8. Resignation of Agent..........................36
SECTION 8.9. Agent's Fee...................................37
ARTICLE IX MISCELLANEOUS..............................................37
SECTION 9.1. Notices.......................................37
SECTION 9.2. No Waivers....................................37
SECTION 9.3. Expenses; Documentary Taxes...................37
SECTION 9.4. Participations................................38
SECTION 9.5. Amendments and Waivers........................38
SECTION 9.6. Successors and Assigns........................39
SECTION 9.7. Severability..................................39
SECTION 9.8. Missouri Law..................................39
SECTION 9.9. CHOICE OF FORUM; WAIVER OF JURY TRIAL.........39
SECTION 9.10. Resurrection of Obligations...................40
SECTION 9.11. Counterparts; Effectiveness...................40
SECTION 9.12. Continuing Obligations........................40
Exhibit A - $32,500,000.00 Promissory Note
Exhibit B - $32,500,000.00 Promissory Note
Exhibit C - $30,000,000.00 Promissory Note
Exhibit D - $15,000,000.00 Promissory Note
Exhibit E - $15,000,000.00 Promissory Note
Exhibit F - Opinion of Counsel
Exhibit G - Compliance Certificate
Exhibit H - Form of Borrowing Request
Exhibit I - Standby Letter of Credit Application and Reimbursement
Agreement
Exhibit J - Letter of Credit Request
Exhibit K - Letter of Credit Participation Certificate
Schedule 4.1(e) - Litigation
Schedule 4.1(i) - Liens
Schedule 4.1(j) - List of Subsidiaries
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the
"Agreement") is made and entered into as of March 26, 1998 between ACXIOM
CORPORATION, a Delaware corporation (the "Company"), and MERCANTILE BANK
NATIONAL ASSOCIATION, a national banking association ("Mercantile"),
NATIONSBANK, N. A., a national banking association ("NationsBank"), FIRST
COMMERCIAL BANK, N. A., a national banking association ("First
Commercial"), FIRST AMERICAN NATIONAL BANK, a national bank ("First
American") and CHASE BANK OF TEXAS, N. A., a national banking association
("Chase," and collectively with Mercantile, NationsBank, First Commercial
and First American referred to herein as "Banks"), CHASE BANK OF TEXAS, N.
A., a national banking association, as syndication agent for the Banks (in
such capacity "Syndication Agent"), and MERCANTILE BANK NATIONAL
ASSOCIATION, a national banking association, as administrative and
documentation agent for the Banks (in such capacity "Agent").
WITNESSETH:
WHEREAS, the Company, Agent, Mercantile (formerly Mercantile Bank
of St. Louis National Association), NationsBank (formerly The Boatmen's
National Bank of St. Louis) and Chase (formerly Texas Commerce Bank,
National Association) are parties to that certain Amended and Restated
Credit Agreement dated August ___, 1996 (which replaced a prior Credit
Agreement dated as of September 21, 1993, as amended) as amended by a First
Amendment to Amended and Restated Credit Agreement dated as of March ___,
1997 (as amended, the "Prior Credit Agreement"); and
WHEREAS, the Company has requested that the maximum Commitment for
Loans and Letters of Credit be increased from $75,000,000.00 to
$125,000,000.00; and
WHEREAS, Banks are willing to provide such increased credit
amounts on the terms and conditions set forth in this Agreement and
provided First Commercial and First American are each added as a Bank with
a commitment as provided for herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein,
have the following meanings:
"Acquisition" shall mean any transaction or series of related
transactions, consummated on or after the date of this Agreement, by which
the Company or any Subsidiary of the Company: (a) acquires any going
business or all or substantially all of the assets of any corporation,
partnership or other organization or entity, whether through purchase of
assets, merger or otherwise or (b) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions)
at least (i) a majority (in number of votes) of the stock and/or other
securities of a corporation having ordinary voting power for the election
of directors (other than stock and/or other securities having such power
only by reason of the happening of a contingency), (ii) a majority (by
percentage of voting power) of the outstanding partnership interests of a
partnership or (iii) a majority of the ownership interests in any
organization or entity other than a corporation or partnership, provided,
that for any such Acquisition, the Company shall remain a surviving
corporate entity.
"Agent" means Mercantile Bank National Association in its capacity
as administrative and documentation agent for the Banks hereunder, and its
successors and assigns in such capacity.
"Banks" mean each of Mercantile Bank National Association and its
successors and assigns, NationsBank, N. A. and its successors and assigns,
First Commercial Bank, N. A. and its successors and assigns, First American
National Bank and its successors and assigns, and Chase Bank of Texas, N.
A. and its successors and assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made
to Company pursuant to the terms hereof. A Borrowing is a "Domestic
Borrowing" if such Loans are Domestic Loans or a "Eurocurrency Borrowing"
if such Loans are Eurocurrency Loans. A Borrowing is a "Fed Funds
Borrowing" if such Domestic Loans are Fed Funds Loans or a "Prime
Borrowing" if such Domestic Loans are Prime Loans.
"Chase" means Chase Bank of Texas, N. A. and its successors and
assigns.
"Commitment" means One Hundred Twenty-Five Million Dollars
($125,000,000.00) at all times during the Term hereof, and with respect to
each Bank, the amount specified as such and set opposite the name of such
Bank on the signature pages of this Agreement.
"Company" means Acxiom Corporation, a Delaware corporation, and
its successors and assigns.
"Debt" of any Person means at any date, without duplication, to
the extent obligations and liabilities of such type are required to be
disclosed in such Person's financial statements according to generally
accepted accounting principles, consistently applied, (i) all obligations
of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of
property or services, (iv) all obligations of such Person as lessee under
leases capitalized or required to be capitalized in accordance with
generally accepted accounting principles, consistently applied, (v) all
Debt of others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person (provided that for purposes of this
clause (v) the amount of any such Debt shall be deemed not to exceed the
higher of the market value or the net book value of such asset), and (vi)
all other obligations and liabilities required to be disclosed on such
Person's financial statements according to generally accepted accounting
principles, consistently applied.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
legal holiday observed by Bank.
"Domestic Loans" means Fed Funds Loans or Prime Loans or both.
"EBITDA" shall mean on any date the Company's net income
(exclusive of any extraordinary gains or losses) plus interest expense,
plus expenses for income taxes, plus depreciation, plus amortization, all
for the four-quarter period ending on the date of any such calculation, as
determined on a consolidated basis in accordance with generally accepted
accounting principles, consistently applied.
"Effective Date" means the date on which this Agreement shall
become effective in accordance with Section 9.11.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Eurocurrency Business Day" means any Domestic Business Day on
which commercial banks are open for international business in London.
"Eurocurrency Loans" means any loans bearing interest at the rates
set forth in Section 2.5(c).
"Eurocurrency Margin" has the meaning set forth in Section 2.5(c).
"Event of Default" has the meaning set forth in Section 6.1.
"Fed Funds Loan" means any loans bearing interest at the Fed Funds
Rate as set forth in Section 2.5(b).
"Fed Funds Rate" has the meaning set forth in Section 2.5(b).
"First American" means First American National Bank and its
successors and assigns.
"First Commercial" means First Commercial Bank, N. A. and its
successors and assigns.
"Fixed Rate Borrowing" means a Fed Funds Borrowing or a
Eurocurrency Borrowing or both.
"Fixed Rate Loans" means Fed Funds Loans or Eurocurrency Loans or
both.
"Funded Debt" shall mean as of any fiscal quarter-end or fiscal
year-end the sum of (a) the average outstanding Loans under this Agreement
for the four-quarter period ending as of such date of calculation (computed
on the basis of the average of the daily balances outstanding), plus (b)
the outstanding principal balance of any and all other borrowed money Debt
as of such fiscal quarter-end or fiscal year-end date, including, without
limitation, amounts due under any leases capitalized or required to be
capitalized in accordance with generally accepted accounting principles,
consistently applied.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person or in
any manner providing for the payment of any Debt of any other Person or
otherwise protecting the holder of such Debt against loss (whether by
agreement to keep-well, to purchase assets, goods, securities or services,
or to take-or-pay or otherwise); provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a correlative meaning.
"Guarantors" shall mean each of Acxiom RM-Tools, Inc., an Arkansas
corporation, Acxiom/Direct Media, Inc., an Arkansas corporation, Acxiom
CDC, Inc., an Arkansas corporation, DataQuick Information Systems, a
California corporation and Acxiom U. K., Ltd., a corporation organized
under the laws of the United Kingdom, and their respective successors and
assigns, and "Guarantor" shall mean any of them.
"Interest Period" means:
(A) with respect to each Eurocurrency Borrowing:
(i) Initially, the period commencing on the date
of such Borrowing and ending 1, 2, 3 or 6 months thereafter, as
the Company may elect in the applicable Notice of Borrowing; and
(ii) Thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Borrowing and ending 1, 2, 3 or 6 months thereafter, as the
Company may elect pursuant to Section 2.4;
provided that:
(a) Subject to clauses (b) and (c) below, any
Interest Period which would otherwise end on a day which is not a
Eurocurrency Business Day shall be extended to the next succeeding
Eurocurrency Business Day, except that if the next succeeding
Eurocurrency Business Day falls within a different calendar month,
the Interest Period shall end on the next preceding Eurocurrency
Business Day;
(b) Any Interest Period which includes January
31, 2003 shall end on such date; and
(c) Any Interest Period which includes a date on
which a payment of principal is required to be made on a Loan to
which such Interest Period applies shall end on such date.
(B) with respect to each Fed Funds Borrowing shall mean a period
of one day.
"Letter of Credit" and "Letters of Credit" shall have the
meanings ascribed thereto in Section 2.1B(a).
"Letter of Credit Application" shall mean an application and
agreement for irrevocable standby letter of credit in the form of Exhibit I
attached to this Agreement and incorporated herein by reference, executed
by the Company, as account party, and delivered to Agent pursuant to
Section 2.1B(a), as the same may from time to time be amended, modified,
extended or renewed.
"Letter of Credit Commitment Fee" shall have the meaning ascribed
thereto in Sections 2.1B(d)(ii) and (iii).
"Letter of Credit Issuance Fee" shall have the meaning ascribed
thereto in Section 2.1B(d)(i).
"Letter of Credit Request" shall have the meaning ascribed thereto
in Section 2.1B(a).
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Company shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Eurocurrency Loan and "Loans"
means any or all of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.5(c).
"Mercantile" means Mercantile Bank National Association and its
successors and assigns.
"NationsBank" means NationsBank, N. A. and its successors and
assigns.
"Notes" mean the promissory notes of the Company in the form of
Exhibits A, B, C, D and E attached hereto, evidencing the obligation of the
Company to repay the Loans.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
"Permitted Acquisition" shall mean any Acquisition of an ongoing
business similar to or consistent with the Company's current lines of
business which: (a) has been: (i) in the event a corporation or its assets
is the subject of such Acquisition, either (x) approved by the Board of
Directors of the corporation which is the subject of such Acquisition or
(y) recommended by such Board of Directors to the shareholders of such
corporation, (ii) in the event a partnership is the subject of such
Acquisition, approved by a majority (by percentage of voting power) of the
partners of the partnership which is the subject of such Acquisition, (iii)
in the event an organization or entity other than a corporation or
partnership is the subject of such Acquisition, approved by a majority (by
percentage of voting power) of the governing body, if any, or by a majority
(by percentage of ownership interest) of the owners of the organization or
entity which is the subject of such Acquisition or (iv) in the event the
corporation, partnership or other organization or entity which is the
subject of such Acquisition is in bankruptcy, approved by the bankruptcy
court or another court of competent jurisdiction; and (b) both as of the
date of any such Acquisition and immediately following such Acquisition the
Company is, and on a pro forma basis projects that it will continue to be,
in compliance with the terms, covenants and conditions contained in this
Agreement and the other loan documents, which pro forma compliance shall be
demonstrated by the Company pursuant to such financial and other
information concerning such acquisition provided to the Agent and the Banks
as Agent or any of the Banks may reasonably require.
"Permitted Investments" shall mean any investment by the Company
or any Subsidiary in any of the following:
(a) Direct obligations of the United States of America or
any instrumentality or agency thereof, the payment of which is
unconditionally guaranteed by the United States of America or any
instrumentality or agency thereof (all of which Investments must mature
within twelve (12) months from the time of acquisition thereof);
(b) Investments in readily marketable commercial paper
which, at the time of acquisition thereof by the Company or any Subsidiary,
is rated A-1 or better by Standard & Poor's or P-1 or better by Xxxxx'x
Investment Service and which matures within 270 days from the date of
acquisition thereof, provided that the issuer of such commercial paper
shall, at the time of acquisition of such commercial paper, have a senior
long-term debt rating of at least A by Standard & Poor's and Xxxxx'x
Investment Service;
(c) Negotiable certificates of deposit or negotiable
bankers acceptances issued by any of the Banks or any other bank or trust
company organized under the laws of the United States of America or any
state thereof, which bank or trust company (other than any of the Banks to
which such restrictions shall not apply) is a member of both the Federal
Deposit Insurance Corporation and the Federal Reserve System and is rated B
or better by Xxxxxxxx Bank Watch Service (all of which Permitted
Investments must mature within twelve (12) months from the time of
acquisition thereof);
(d) Repurchase agreements, which shall be collateralized
for at least 100% of face value, issued by any of the Banks or any other
bank or trust company organized under the laws of the United States or any
state thereof, which bank or trust company (other than any of the Banks to
which such restrictions shall not apply) is a member of both the Federal
Deposit Insurance Corporation and the Federal Reserve System and is rated B
or better by Xxxxxxxx Bank Watch Service (all of which Permitted
Investments must mature within twelve (12) months from the time of
acquisition thereof);
(e) Investments in mutual funds the investments of which
are limited to domestic securities;
(f) Investments of equity, whether through the purchase
of capital stock, membership interests, partnership or joint venture
interests, options, warrants or otherwise, in any Person having an ongoing
business similar to or consistent with the Company's current lines of
business; and
(g) the making of any loans to any Person having an
ongoing business similar to or consistent with the Company's current lines
of business.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Prime Loan" means a Loan bearing interest at the Prime Rate
pursuant to Section 2.5(a) or Article 7.
"Prime Rate" shall mean the interest rate announced from time to
time by Agent as its "prime rate" on commercial loans, which rate shall
fluctuate as and when said "prime rate" shall change, and which rate may
not be Agent's best or lowest rate or a favored rate, and any statement,
representation or warranty in that regard or to that respect is expressly
disclaimed by Agent and Banks.
"Pro Rata Share" shall mean the pro rata share of loans to be made
by each of the Banks hereunder or of other amounts to be shared between
Banks, which shall be 26.0% for Mercantile, 26.0% for Chase, 12.0% for
First Commercial, 12.0% for First American, and 24.0% for NationsBank.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
"Required Banks" shall mean Banks having sixty-six and two thirds
percent (66-2/3%) of the aggregate amount of Loans and Letters of Credit
then outstanding hereunder, or if no Loans or Letters of Credit are then
outstanding, having sixty-six and two thirds percent (66-2/3%) of the
Commitment.
"Reserve Percentage" shall mean for any day, with respect to a
Eurocurrency Loan, the highest percentage (including any supplemental
percentage applied on a marginal basis or any other reserve requirement
having a similar effect), expressed as a decimal, which is applicable to
any of the Banks and is in effect on such day, as prescribed by the Board
of Governors of the Federal Reserve System under Regulation D (or any other
then applicable regulation of the Board of Governors) with respect to
"Eurocurrency Liabilities".
"Subsidiary" means with respect to any Person any corporation of
which more than 50% of the issued and outstanding stock entitled to vote
for the election of directors is at the time owned directly or indirectly
by such Person.
"Subsidiary Guaranties" means each of the unlimited continuing
guaranties executed now or hereafter by each of the Guarantors, and
"Subsidiary Guaranty" shall mean any of them.
"Syndication Agent" means Chase Bank of Texas, N. A. in its
capacity as syndication agent for the Banks hereunder, and its successors
and assigns in such capacity.
"Tangible Net Worth" of any Person means, at any date, the
stockholders' equity of such Person less such Person's Intangible Assets as
of such date. For purposes of this definition, "Intangible Assets" means
the amount (to the extent reflected in determining such stockholders'
equity) of (i) all write-ups subsequent to September 30, 1997 in the book
value of any asset owned by such Person, (ii) investments in unconsolidated
subsidiaries, and (iii) goodwill, unamortized debt discount and expense,
unamortized deferred charges (other than relating to the Company's data
processing contracts), patents, trademarks, service marks, trade names,
copyrights, organizational or developmental expenses, capitalized computer
software costs and leasehold improvements (except leasehold improvements
relating to the Company's 50 year land lease with the City of Conway,
Arkansas), and other similar intangible items and assets.
"Term" means the period from the Effective Date up to and
including January 31, 2003 or such earlier time as Agent, Syndication Agent
and/or Banks may terminate their obligations hereunder pursuant to Article
6 herein.
SECTION 1.2. Accounting Terms and Determinations. Except as
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared
in accordance with generally accepted accounting principles as in effect
from time to time, applied on a basis consistent (except for changes
approved by Banks and by the Company's independent public accountants) with
the most recent audited financial statements of the Company delivered to
Banks.
ARTICLE II
THE CREDITS
SECTION 2.1. Loans.
A. Loans. During the Term hereof, Banks agree, on the
terms and conditions set forth in this Agreement, to lend to the Company
from time to time their Pro Rata Shares of Borrowings in a principal amount
not to exceed, in the aggregate at any one time outstanding, the amount of
the Commitment minus the undrawn face amount of any Letters of Credit then
issued and outstanding under Section 2.1B herein; provided, however, that
no Bank shall be required to advance any Borrowing requested by the Company
hereunder which, when added to the principal amount of such Bank's then
outstanding Loans plus such Bank's Pro Rata Share of the undrawn face
amount of any Letters of Credit then outstanding, would exceed the amount
of such Bank's Commitment. Each Fed Funds Borrowing under this Section 2.1A
shall be for an aggregate principal amount of at least $100,000.00. Each
Eurocurrency Borrowing under this Section 2.1A shall be for an aggregate
principal amount of at least $1,000,000.00 or any larger multiple of
$100,000.00. Company may borrow under this Section 2.1A, prepay under
Section 2.8 and reborrow at any time during the Term hereof under this
Section subject to the terms of this Agreement. The failure of any Bank to
advance any requested Borrowing under this Agreement shall not release any
other Bank from its obligation to make any such Borrowing as provided
herein.
B. Letters of Credit.
(a) Subject to the terms and conditions of this Agreement,
during the Term hereof, and so long as no Default or Event of Default under
this Agreement has occurred and is continuing (provided, however, that
Agent shall have no liability to any Bank for issuing a Letter of Credit
after the occurrence of any Default or Event of Default under this
Agreement unless Agent has previously received notice in writing from the
Company or any Bank of the occurrence of such Default or Event of Default),
Agent hereby agrees to issue irrevocable standby letters of credit for the
account of the Company (individually, a "Letter of Credit" and
collectively, the "Letters of Credit") in an amount and for the term
specifically requested by the Company by notice in writing to Agent in the
form of Exhibit J attached to this Agreement and incorporated herein by
reference (a "Letter of Credit Request") at least three (3) Domestic
Business Days prior to the requested issuance thereof; provided, however,
that:
(i) The Company shall have executed and
delivered to Agent a Letter of Credit Application with respect to
such Letter of Credit;
(ii) The term of the Letter of Credit in the
face amount of $6,600,000.00 issued by Mercantile on April 29,
1996 for the Company's account (which Letter of Credit was issued
by Mercantile under the Prior Credit Agreement and shall be deemed
to be a Letter of Credit issued and outstanding hereunder) shall
not extend beyond the last day of the Term hereof or such earlier
expiry date as shall be set forth in such Letter of Credit; and
the term of any other Letter of Credit shall not extend beyond the
earlier of (A) the last day of the Term hereof or (B) three
hundred sixty-five (365) days from the issuance thereof;
(iii) Any Letter of Credit may only be utilized
to guaranty or support the payment of obligations of the Company
or any Subsidiary to third parties;
(iv) The sum of (A) the aggregate undrawn face
amount of all outstanding Letters of Credit plus (B) the aggregate
principal amount of all outstanding Loans shall not at any one
time exceed the sum of One Hundred Twenty-Five Million Dollars
($125,000,000.00);
(v) The aggregate undrawn face amount of all
outstanding Letters of Credit shall not at any one time exceed the
sum of Thirty Million Dollars ($30,000,000.00); and
(vi) The text of any such Letter of Credit is
provided to Agent no less than three (3) Domestic Business Days
prior to the requested issuance date, which text must be
acceptable to Agent in its sole and absolute discretion.
(b) The acceptance or payment of drafts under each Letter
of Credit shall be made in accordance with the terms thereof and, in that
connection, Agent shall be entitled to honor any drafts and accept any
documents presented to it by the beneficiary of such Letter of Credit in
accordance with the terms of such Letter of Credit and believed by Agent to
be genuine. Agent shall not have any duty to inquire as to the accuracy or
authenticity of any draft or other drawing document that may be presented
to it other than the duties contemplated by the applicable Letter of Credit
Application. If Agent shall have received documents that in its judgment
constitute all of the documents that are required to be presented before
payment or acceptance of a draft under a Letter of Credit issued by it, it
shall be entitled to pay or accept such draft provided such documents
conform on their face to the requirements of such Letter of Credit.
(c) In the event of any payment by Agent of a draft
presented or accepted under a Letter of Credit, the Company agrees to pay
to Agent in immediately available funds at the time of such drawing an
amount equal to the sum of such drawing plus Agent's negotiation,
processing and other fees related thereto. The Company hereby authorizes
Agent to charge or cause to be charged the Company's bank accounts at
Mercantile to the extent there are balances of immediately available funds
therein, in an amount equal to the sum of such drawing plus Agent's
negotiation, processing and other fees related thereto, and the Company
agrees to pay the amount of any such drawing (and/or Agent's negotiation,
processing and other fees related thereto) not so charged prior to the
close of business of such Bank on the day of such drawing. In the event any
payment under a Letter of Credit is made by Agent without same day receipt
of payment from the Company, such payment by Agent shall constitute a Loan
by Agent to the Company, payable on demand of Agent. The Company agrees to
pay interest on demand of Agent on any unpaid Loan made pursuant to the
preceding sentence at a rate per annum equal to the rate on the Company's
Loans under Section 2.1A, calculated on an actual day, 360-day year basis,
until such Loan is paid in full.
(d) The Company hereby further agrees to pay to the order
of Agent:
(i) With respect to each Letter of Credit issued
by Agent on or after the date hereof, a nonrefundable issuance fee
in the amount of One Hundred Twenty-Five Dollars ($125.00) for the
issuance of each such Letter of Credit (the "Letter of Credit
Issuance Fee"), which Letter of Credit Issuance Fee shall be due
and payable on the date of issuance of each such Letter of Credit;
(ii) With respect to the Letter of Credit in the
face amount of $6,600,000.00 issued by Mercantile on April 29,
1996 for the Company's account, a nonrefundable commitment fee in
an amount equal to eighty-five hundredths of one percent (0.85%)
per annum (calculated on an actual day, 360-day year basis) times
the face amount (taking into account any scheduled increases or
decreases therein during the period in question) of such
$6,600,000.00 Letter of Credit issued hereunder (the "Letter of
Credit Commitment Fee" for the $6,600,000.00 Letter of Credit),
which Letter of Credit Commitment Fee shall be due and payable in
advance on the date of issuance of such $6,600,000.00 Letter of
Credit for the remainder of the then current calendar quarter and
on the first (1st) day of each calendar quarter thereafter or
portion thereof for which such $6,600,000.00 Letter of Credit
remains outstanding, and a pro rata portion of such Letter of
Credit Commitment Fee paid in any quarter shall be refunded to the
Company in the event the $6,600,000.00 Letter of Credit is
terminated or fully drawn upon prior to its expiry date during
such quarter based upon the remainder of such quarter or its
remaining term to such expiry date, whichever is less;
(iii) With respect to each other Letter of
Credit, a nonrefundable commitment fee at a rate per annum to be
determined by Agent and agreed to by the Company prior to the
issuance of each such Letter of Credit (calculated on an actual
day, 360-day year basis) times the face amount (taking into
account any scheduled increases or decreases therein during the
period in question) of each such Letter of Credit issued hereunder
("Letter of Credit Commitment Fee" for such other Letters of
Credit), which Letter of Credit Commitment Fee shall be due and
payable in advance on the date of issuance of each such Letter of
Credit for the remainder of the then current calendar quarter and
on the first (1st) day of each calendar quarter thereafter or
portion thereof for which each such Letter of Credit remains
outstanding, and a pro rata portion of any such Letter of Credit
Commitment Fee shall be refunded to the Company for any Letter of
Credit which terminates or is fully drawn upon prior to its expiry
date during a quarter based upon the remainder of such quarter or
its remaining term to such expiry date, whichever is less;
(iv) With respect to each Letter of Credit, such
other fees as may be charged by Agent from time to time in
accordance with Agent's published schedule of fees in effect from
time to time, which fees shall be due and payable on demand by
Agent.
(e) Participation by Other Banks. Upon the issuance of a
Letter of Credit by Agent, an undivided participation interest therein
(including, without limitation, an undivided participation interest in the
reimbursement risk relating to such Letter of Credit and in all payments
and Loans made by Agent in connection with any such Letter of Credit) shall
automatically be granted by Agent to, and accepted by each of the other
Banks in an amount based on each such Bank's Pro Rata Share of the face
amount of such Letter of Credit, which participations shall be evidenced by
a single Letter of Credit Participation Certificate executed by Agent in
favor of such Bank in the form attached to this Agreement as Exhibit K and
incorporated herein by reference. If Agent shall make payment on any draft
presented or accepted under a Letter of Credit, Agent shall give notice of
such payment to the Banks, and each of the Banks hereby authorizes and
requests Agent to advance for their respective accounts, pursuant to the
terms hereof, their respective shares of any such payment based upon their
respective Pro Rata Shares. If such drawing is not paid by the Company in
immediately available funds prior to the close of business of Agent on the
date of such drawing, Agent shall promptly so notify the Banks and each of
the Banks agrees to immediately reimburse Agent in immediately available
funds for its Pro Rata Share of the amount of such drawing, plus interest
calculated on its Pro Rata Share of such amount at a rate per annum equal
to the then current fed funds rate calculated from the date of such payment
by Agent to but excluding the date of reimbursement by such Bank and on an
actual-day, 360-day year basis. Following such advance by each Bank to
Agent of its Pro Rata Share of any such Loan pursuant to the preceding
sentence, each such Bank shall thereafter receive its Pro Rata Share of all
interest and other amounts due with respect to such Loan when paid by the
Company to the Agent hereunder. Each of the Banks will be entitled to its
Pro Rata Share of any Letter of Credit Commitment Fees paid by the Company
(which shall be paid through the Agent under Section 2.1B, but such Banks
shall have no right to share in any Letter of Credit Issuance Fees or any
other fees paid by the Company to Agent in connection with any of the
Letters of Credit.
(f) Replacement or Collateralization of Letters of Credit.
Notwithstanding any provision contained in this Agreement or any of the
Letter of Credit Applications to the contrary, upon the occurrence of any
Event of Default under this Agreement, at Agent's option and without demand
or further notice to the Company, an amount equal to the aggregate undrawn
face amount of all Letter(s) of Credit then outstanding shall be deemed (as
between Agent and the Company) to have been paid or disbursed by Agent
(notwithstanding that such amounts may not in fact have been so paid or
disbursed by Agent), and a Loan to the Company in such amount to have been
made and accepted by the Company, which Loan shall be immediately due and
payable. In lieu of the foregoing, at the election of Agent, the Company
shall, upon Agent's demand, deliver to Agent cash or other collateral
acceptable to Agent in its sole and absolute discretion, having a value, as
determined by Agent at least equal to aggregate undrawn face amount of all
outstanding Letters of Credit issued by Agent for the Company's Account.
Any such collateral and/or any amounts received by Agent in payment of any
Loan made pursuant to this Section 2.1B shall be held by Agent in a
separate account at Agent appropriately designated as a cash collateral
account in relation to this Agreement and the Letters of Credit and
retained by Agent as collateral security for the payment of the Company's
Loans and other obligations to Agent and the Banks. Cash amounts delivered
to Agent pursuant to the foregoing requirements of this Section 2.1B(f)
shall be invested, at the request and for the account of the Company, in
investments of a type and nature and with a term acceptable to Agent. Such
amounts, including in the case of cash amounts invested in the manner set
forth above, any investment realized thereon, shall not be used by Agent to
pay any amounts drawn or paid under or pursuant to any Letter of Credit,
but may be applied to reimburse Agent for drawings or payments under or
pursuant to the Letters of Credit which Agent has paid, or if no such
reimbursement is required shall be applied to such other of the Company's
Loans and other obligations to Agent and the Banks as Agent shall
determine. Any amounts remaining in any cash collateral account established
pursuant to this Section 2.1B(f) after the payment in full of all of the
Company's obligations to Agent and the Banks and the expiration or
cancellation of all of the Letters of Credit shall be returned to the
Company (after deduction of Agent's expenses, if any).
SECTION 2.2. Method of Borrowing.
(a) The Company shall give notice (a "Notice of
Borrowing") to Agent (1) by 10:00 a.m. (St. Louis time) on the day of each
Domestic Borrowing, and (2) by 10:00 a.m. (St. Louis time) at least two
Eurocurrency Business Days before each Eurocurrency Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Eurocurrency
Business Day in the case of a Eurocurrency Borrowing,
(ii) the aggregate principal amount of such Borrowing,
(iii) whether such Borrowing is to be a Fed Funds
Borrowing, a Prime Borrowing or a Eurocurrency Borrowing, and
(iv) in the case of a Eurocurrency Borrowing, the
duration of the initial Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period.
(b) A Notice of Borrowing shall not be required in
connection with a Prime Borrowing pursuant to Section 7.1. A Notice of
Borrowing for Eurocurrency Borrowings must be given in writing in a form
substantially similar to Exhibit H attached hereto; a Notice of Borrowing
for a Domestic Borrowing may be oral or in writing, but if oral, shall be
confirmed in writing to Agent within five (5) days. A Notice of Borrowing
shall not be revocable by the Company. Upon receipt of a Notice of
Borrowing, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's Pro Rata Share of such Borrowing.
(c) Not later than 3:00 P.M. (St. Louis time) on the date
of each Borrowing during the Term hereof, each Bank shall make available
its Pro Rata Share of such Borrowing, in federal or other funds immediately
available in St. Louis, Missouri, to the Agent at its address specified on
the signature pages hereof. Following receipt of such funds from each of
the Banks, unless Agent determines that any applicable condition specified
in Article 3 has not been satisfied, the Agent will make available to the
Company such Borrowing in federal or other funds immediately available in
St. Louis, Missouri, by crediting such funds to a demand deposit account
(or such other account mutually agreed upon in writing between Agent and
the Company) of the Company with Mercantile.
(d) If the Company requests a Borrowing hereunder on a
day on which the Company is required to or has elected to repay all or any
part of an outstanding Loan, each Bank shall apply the proceeds of such
Borrowing to make such repayment and only an amount equal to the difference
(if any) between the amount being borrowed and the amount being repaid
shall be made available by each such Bank to the Agent for delivery to the
Company as provided in subsection (c) of this Section.
SECTION 2.3. Notes. The Loans of each Bank to the Company shall be
evidenced, respectively, by a Note payable to the order of such Bank, which
shall be in the form of Exhibit A, Exhibit B, Exhibit C, Exhibit D or
Exhibit E attached hereto. Each Bank shall record, and prior to any
transfer of its Note shall endorse on the schedules forming a part thereof,
appropriate notations to evidence the date and amount of each Loan and the
date and amount of each payment of principal made by the Company with
respect thereto. Each Bank is hereby irrevocably authorized by the Company
so to endorse its Note and to attach to and make a part of any such Note a
continuation of any such schedule as and when required; provided, however
that the obligation of the Company to repay each Loan shall be absolute and
unconditional, notwithstanding any failure of any Bank to endorse or any
mistake by any Bank in connection with endorsement on the schedules
attached to its Note. The books and records of the Banks (including without
limitation the schedules attached to the Notes) showing the account between
Banks and the Company shall be admissible in evidence in any action or
proceeding and shall constitute prima facie proof of the items therein set
forth.
SECTION 2.4. Duration of Interest Periods and Selection of
Interest Rates.
(a) The duration of the initial Interest Period for each
Eurocurrency Borrowing shall be as specified in the applicable Notice of
Borrowing. The Company shall elect the duration of each subsequent Interest
Period applicable to such Eurocurrency Borrowing and the interest rate and
currency to be applicable during such subsequent Interest Period (and the
Company shall have the option, in the case of any Prime or Fed Funds
Borrowing, to elect that such Borrowing become a Eurocurrency Borrowing
specifying the Interest Period and currency to be applicable thereto), by
giving written notice of such election to the Agent (i) by 10:00 a.m. (St.
Louis time) on the day of, in the case of the election of the Prime Rate or
the Fed Funds Rate, or (ii) by 10:00 a.m. (St. Louis time) at least two
Eurocurrency Business Days before, in the case of the election of a rate
based on the London Interbank Offered Rate plus the Eurocurrency Margin for
a Eurocurrency Borrowing, the end of the immediately preceding Interest
Period applicable thereto, if any.
(b) If in respect of any Eurocurrency Borrowing or part
thereof, the Company fails to give a notice in accordance with Section
2.4(a) prior to the end of any Interest Period relating thereto, such
Borrowing shall be for an Interest Period of equal duration to such
immediately preceding Interest Period.
(c) Notwithstanding the foregoing, the duration of each
Interest Period shall be subject to the provisions of the definition of
Interest Period.
SECTION 2.5. Interest Rates.
(a) Each Prime Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Prime Rate (which
rate shall fluctuate as and when the Prime Rate shall change). Such
interest shall be payable monthly in arrears on the last day of each month,
commencing with the month ending on March 31, 1998, and at maturity. Any
overdue principal of and, to the extent permitted by law, overdue interest
on, any Prime Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 3% plus the otherwise
applicable rate for such day.
(b) Each Fed Funds Loan shall bear interest on the
outstanding principal amount thereof, for each overnight Interest Period
applicable thereto, at a rate per annum equal to the applicable Fed Funds
Rate. Such interest shall be payable for each Fed Funds Loan on the last
day of each month, commencing with the month ending on March 31, 1998, and
at maturity. Any overdue principal of and, to the extent permitted by law,
overdue interest on, any Fed Funds Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 3%
plus the rate applicable to Prime Loans for such day.
The "Fed Funds Rate" applicable to any Fed Funds Loan for
any overnight Interest Period means a rate per annum equal to the rate
quoted by Agent as its daily "Opening Fed Funds Rate" (which interest rate
shall fluctuate as and when said "Opening Fed Funds Rate" shall change)
plus the then applicable Fed Funds Margin. As used herein, the applicable
"Fed Funds Margin" shall be determined as follows:
If the Company's ratio of Applicable
Funded Debt to EBITDA is: Fed Funds Margin
------------------------- ----------------
Less than .75 to 1.0 0.85%
Greater than or equal to .75 to 1.0 but less 1.05%
than 1.50 to 1.0
Greater than or equal to 1.50 to 1.0 1.15%
The Company's ratio of Funded Debt to EBITDA shall be computed by Agent
following delivery of the Company's most recent fiscal quarter-end or
fiscal year-end financial statements pursuant to Section 5.1(a)(i) or (ii)
and the Compliance Certificate pursuant to Section 5.1(a)(iii), and the
applicable Fed Funds Margin shall be adjusted in accordance with the
foregoing, with each such adjustment to be effective as of the date the
Agent notifies the Company and the Banks of the adjusted amount. Such
applicable Fed Funds Margin shall continue in effect until the next such
adjustment pursuant to the delivery of the next subsequent quarter-end or
year-end financial statements and Compliance Certificate of the Company.
Each determination by the Agent of the applicable Fed Funds Margin shall be
deemed prima facie correct.
(c) Each Eurocurrency Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period applicable
thereto at a rate per annum equal to the sum of the Eurocurrency Margin
plus the applicable London Interbank Offered Rate. Except in the case of an
acceleration of payment by the Agent under Section 6.1 (when interest shall
be paid with the principal amount repaid), interest shall be payable for
each Interest Period on the last day thereof, unless the duration of the
applicable Interest Period exceeds three months, in which case such
interest shall be payable on the last day of the third month of such
Interest Period and on the last day of such Interest Period.
"Eurocurrency Margin" as used herein, shall be determined as
follows:
If the Company's ratio of Applicable
Funded Debt to EBITDA is: Eurocurrency Margin
------------------------- -------------------
Less than .75 to 1.0 0.50%
Greater than or equal to .75 to 1.0 but less 0.75%
than 1.50 to 1.0
Greater than or equal to 1.50 to 1.0 0.90%
The Company's ratio of Funded Debt to EBITDA shall be computed by Agent
following delivery of the Company's most recent fiscal quarter-end or
fiscal year-end financial statements pursuant to Section 5.1(a)(i) or (ii)
and the Compliance Certificate pursuant to Section 5.1(a)(iii), and the
applicable Eurocurrency Margin shall be adjusted in accordance with the
foregoing, with each such adjustment to be effective as of the date the
Agent notifies the Company and the Banks of the adjusted amount. Such
applicable Eurocurrency Margin shall continue in effect until the next such
adjustment pursuant to the delivery of the next subsequent quarter-end or
year-end financial statements and Compliance Certificate of the Company.
Each determination by the Agent of the applicable Eurocurrency Margin shall
be deemed prima facie correct.
The "London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the following formula:
[ LIBOR-BR ]**
LIBOR = [----------]
[ 1.00 - RP]
LIBOR = London Interbank Offered Rate
LIBOR-BR = LIBOR Base Rate
RP = Reserve Percentage
The term "LIBOR Base Rate" shall mean, with respect to the
applicable Interest Period, the rate per annum of interest determined by
Agent to be the arithmetic average of the respective average rates per
annum at which deposits in U.S. dollars are offered to Agent in the London
interbank market for Eurocurrency deposits by two (2) Eurocurrency dealers
of recognized standing, selected by Agent in its sole discretion, at
approximately 10:00 a.m. St. Louis time (or as soon thereafter as
practicable), two (2) Eurocurrency Business Days before the first day of
such Interest Period for a number of days comparable to the number of days
in such Interest Period and in an amount comparable to the amount of the
applicable Eurocurrency Borrowing. Any overdue principal of and, to the
extent permitted by law, overdue interest on, any Eurocurrency Borrowing
shall bear interest, payable on demand, for each day until paid, at a rate
per annum equal to the sum of 3% plus the rate applicable to Prime Loans
for such day.
(d) Agent shall determine each interest rate applicable to
the Loans as provided above. Agent shall give prompt notice to the Company
by telephone, telecopy, telex or cable of each rate of interest so
determined, and its determination thereof shall be conclusive in the
absence of manifest error.
SECTION 2.6. Commitment Fee. Provided the Company's ratio of
Funded Debt to EBITDA is less than 1.0 to 1.0, the Company shall pay to the
Agent for the benefit of Banks a nonrefundable commitment fee of Three
Sixteenths of One Percent (3/16%) per annum on the average daily balance of
the unused portion of the Commitment determined based upon the Commitment
amount minus the sum of the principal amount of all Loans plus the face
amount of all issued and outstanding Letters of Credit from time to time
outstanding during the Term hereof. In the event the Company's financial
statements delivered to Banks pursuant to Sections 5.1(a)(i) or (ii) at any
time disclose that the Company's ratio of Funded Debt to EBITDA is greater
than or equal to 1.0 to 1.0 as of the end of any fiscal quarter or fiscal
year, the Company agrees to pay to the Agent for the benefit of Banks a
nonrefundable commitment fee of One-Fourth of One Percent (1/4%) per annum
on the average daily balance of the unused portion of the Commitment
determined based upon the Commitment amount minus the sum of the principal
amount of all Loans plus the face amount of all Letters of Credit from time
to time outstanding hereunder for the next succeeding quarter during the
Term hereof. Said fee shall be payable quarterly in arrears, on each July
30, October 30, January 30 and April 30 during the Term hereof, and on the
last day of the Term hereof. Upon Agent's receipt of the Commitment Fee
payable under this Section 2.6, the Agent shall promptly deliver to each
Bank its Pro Rata Share of such Commitment Fee actually received by Agent.
SECTION 2.7. Termination or Reduction of Commitment. The Company
may, by notice to Agent, which notice Agent shall promptly deliver to
Banks, terminate entirely at any time, or proportionately reduce from time
to time by an aggregate amount of $500,000.00 or any larger multiple of
$500,000.00, the unused portion of the Commitment; provided, however, that
(i) at no time shall the Commitment be reduced to a figure less than the
total of the outstanding principal amount of all Loans, and (ii) at no time
shall the Commitment be reduced to a figure greater than zero but less then
$1,000,000.00. The respective Commitments of each of the Banks shall be
reduced by such Bank's Pro Rata Share of the aggregate reduction made by
the Company.
SECTION 2.8. Payments Prior to Maturity.
(a) The Company may, upon notice to Agent specifying that
it is paying its Prime Loans or Fed Funds Loans, pay without penalty or
premium its Prime Loans or Fed Funds Loans in whole or in part at any time,
or from time to time, by paying the principal amount to be paid together
with accrued interest thereon to the date of payment; provided, however,
that no such prepayment shall be made with respect to the Company's Fed
Funds Loans which would leave the total outstanding principal balance of
the Company's remaining Fed Funds Loans at greater than zero but less than
$100,000.00.
(b) The Company may, upon at least two Eurocurrency
Business Days' notice to Agent, in the case of Eurocurrency Loans, pay
without penalty or premium on the last day of any Interest Period its
Eurocurrency Loans to which such Interest Period applies, in whole, or in
part, by paying the principal amount to be paid together with accrued
interest thereon to the date of payment; provided, however, that the
portion of any Eurocurrency Loan, which is not prepaid and which is to be
extended for a new Interest Period, must be in a minimum principal amount
of at least $1,000,000.00 or any larger multiple of $100,000.00. A notice
of payment given to Agent pursuant to this subsection (b) shall not
thereafter be revocable by the Company. The Company shall not be permitted
to prepay any Eurocurrency Loan on any day other than the last day of an
Interest Period.
(c) Agent shall promptly notify each of the Banks of its
receipt of any notice of prepayment under Section 2.8(a) or 2.8(b) above.
SECTION 2.9. General Provisions as to Payments.
(a) All payments to be made by the Company under this
Agreement shall be made to the Agent for value on the due date and in
immediately available funds to the account of the Agent at 000 Xxxxxx
Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or to the account of the Agent at such
other bank as the Agent may from time to time designate. All payments of
interest and principal, whether voluntary or involuntary, from whatever
source, including payments by reason of liquidation or collateral, setoff,
bankruptcy proceedings or otherwise, and whether received by Agent or any
of the Banks, shall be shared between the Banks in accordance with their
respective Pro Rata Shares.
(b) Whenever any payment of principal of, or interest on,
Domestic Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, Eurocurrency Loans shall be due on a day which is not a
Eurocurrency Business Day, the date for payment thereof shall be extended
to the next succeeding Eurocurrency Business Day, except that if the next
succeeding Eurocurrency Business Day falls within a different calendar
month, such payment shall be made on the next preceding Eurocurrency
Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon, at the then applicable
rate, shall be payable for such extended time.
(c) All payments to be made by the Company under this
Agreement shall be made without setoff or counterclaim and without
deduction for or on account of any present or future taxes or other charges
unless the Company is compelled by law to make payment subject to such tax
or other charge. All such taxes or other charges shall be paid by the
Company for its own account prior to the date on which penalties attach
thereto. The Company will indemnify the Agent and each of the Banks in
respect of all such taxes and other charges. Should any such payment be
subject to any tax or other charge, and the above provisions either cannot
be effected or do not result in the Agent or the Banks actually receiving
and remaining beneficially entitled to and in possession of an amount equal
to the full amount provided for hereunder, the Company shall pay to the
Agent, for itself or for the benefit of the Banks, as the case may be, such
additional amounts as may be necessary to ensure that Agent and each of the
Banks receive and remain in possession of and beneficially entitled to
(free from any liability in respect of any deduction, withholding or
payment other than in respect of any tax on the overall net income of Agent
or the Banks) a net amount equal to the full amount which it would have
received and retained had payment not been subject to such tax or other
charge. The Company shall send to the Agent or the Banks such certificates
or certified copy receipts as the Agent or the Banks shall reasonably
require as proof of the payment by the Company of any taxes or other
charges payable by the Company as a result of the provisions of this
Section 2.9(c).
SECTION 2.10. Funding Losses. If the Company makes any payment of
principal with respect to any Eurocurrency Loan (pursuant to Article 6 or 7
or otherwise) on any day other than the last day of an Interest Period
applicable thereto, or if the Company fails to borrow or pay any
Eurocurrency Loans after notice has been given to Agent in accordance with
Section 2.2, 2.4, or 2.8(b), the Company shall reimburse the Agent and each
of the Banks on demand for any resulting loss or expense incurred by them,
including (without limitation) any loss incurred in obtaining, liquidating
or employing deposits from third parties, and including loss of margin for
the period after any such payment, provided that the Agent or such Bank, as
the case may be, shall have delivered to the Company a certificate as to
the amount and particulars of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.11. Computation of Interest. Interest on all Loans shall
be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed.
ARTICLE III
CONDITIONS TO BORROWINGS
The obligations of each of the Banks to make Loans are subject to
the performance by the Company of all of its obligations under this
Agreement and to the satisfaction of the following further conditions:
SECTION 3.1. All Borrowings. In the case of each Borrowing
hereunder:
(a) Agent shall have received notice of such Borrowing as
required by Section 2.2;
(b) On the date of, and as a result of such Borrowing, no
Default or Event of Default shall have occurred and be continuing;
(c) On the date of, and as a result of such Borrowing, no
material adverse change in the business, financial position or results of
operation, of the Company and its Subsidiaries, taken as a whole, has
occurred since the Effective Date and is continuing; and
(d) The representations and warranties of the Company
contained in this Agreement shall be true on and as of the date of such
Borrowing.
Each Borrowing by the Company hereunder shall be deemed to be a
representation and warranty by the Company on the date of such Borrowing as
to the facts specified in clauses (b), (c) and (d) of this Section.
SECTION 3.2. First Borrowing. In the case of the first Borrowing
the following additional conditions must be met:
(a) Each Bank shall have received the duly executed Note
of the Company payable to the order of such Bank in the amount of such
Bank's Commitment, dated on or before the date of the first Borrowing;
(b) Each Bank shall have received the opinion of counsel
for the Company, in the form of Exhibit F hereto;
(c) Agent shall have received the duly executed Subsidiary
Guaranty of each of the Guarantors made in favor of all of the Banks, dated
on or before the date of the first Borrowing;
(d) Agent shall have received all documents it may
reasonably request relating to the existence of the Company (including
without limitation certified copies of the Articles of Incorporation and
Bylaws, and any amendments thereto), the corporate authority for and the
validity of this Agreement and the Notes (including without limitation
certified copies of corporate resolutions of the Board of Directors of the
Company and incumbency certificates), and any other matters relevant
hereto, all in form and substance satisfactory to Agent and each of the
Banks; and
(e) Agent shall have received all documents it may
reasonably request relating to the existence of each of the Guarantors
(including without limitation certified copies of the Articles of
Incorporation and Bylaws, and any amendments thereto), the corporate
authority for and the validity of each such Guarantor's respective
Subsidiary Guaranty (including without limitation certified copies of
corporate resolutions of the Board of Directors of each such Guarantor and
incumbency certificates), and any other matters relevant hereto, all in
form and substance satisfactory to Agent and each of the Banks.
The documents and opinions referred to in this Section shall be
delivered to the Agent or the Banks, as applicable, on the date hereof.
SECTION 3.3. All Letters of Credit. Notwithstanding any provision
contained herein to the contrary, Agent shall have no obligation to issue
any Letter of Credit hereunder unless:
(a) Agent shall have received a Letter of Credit Request
for such Letter of Credit as required by Section 2.1B(a);
(b) Agent shall have received a Letter of Credit
Application for such Letter of Credit as required by Section 2.1B(a), duly
executed by an authorized officer of the Company as account party;
(c) The Company shall have complied with all of the
procedures and requirements set forth in Section 2.1B;
(d) On the date of and immediately after the issuance of
such Letter of Credit, no Default or Event of Default under this Agreement
shall have occurred and be continuing;
(e) No change in the properties, assets, liabilities,
business, operations, prospects, income or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole and having
a material adverse effect shall have occurred since the date of this
Agreement and be continuing;
(f) All of the representations and warranties of the
Company contained in this Agreement shall be true and correct in all
material respects on and as of the date of the issuance of such Letter of
Credit as if made on and as of the date of the issuance of such Letter of
Credit; and
(g) Agent shall have received such other documents,
certificates and agreements as it may reasonably request.
Each request for the issuance of a Letter of Credit by the Company
hereunder shall be deemed to be a representation and warranty by the
Company on the date of the issuance of such Letter of Credit as to the
facts specified in clauses (d), (e) and (f) of this Section 3.3,
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. The Company
represents and warrants that:
(a) Corporate Existence and Power. The Company: (a) is
duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation; (b) has all requisite corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted; and (c) is
qualified to do business in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and where
failure to so qualify would have a material adverse effect on its business,
financial condition or operations.
(b) Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the Company of
this Agreement, the Notes and the other documents contemplated hereby are
within the corporate powers of the Company, have been duly authorized by
all necessary corporate action and require no action by or in respect of,
or filing with, any governmental body, agency or official. The execution,
delivery, and performance by the Company of this Agreement, the Notes and
the other documents contemplated hereby do not conflict with, or result in
a breach of the terms, conditions or provisions of, or constitute a default
under or result in any violation of, and the Company is not now in default
under or in violation of, the terms of the Articles of Incorporation or
Bylaws of the Company, any applicable law, any rule, regulation, order,
writ, judgment or decree of any court or government agency or
instrumentality, or any agreement or instrument to which the Company is a
party or by which it is bound or to which it is subject.
(c) Binding Effect. This Agreement has been duly executed
and delivered and constitutes a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, and the Notes and the
other documents contemplated hereby, when executed and delivered in
accordance with this Agreement, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
except as may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general.
(d) Financial Information.
(i) The balance sheet of the Company as of March
31, 1997 and the related statements of income, retained earnings
and changes in financial position for the fiscal year then ended,
reported on by KPMG Peat Marwick LLP, copies of which have been
provided to Banks, fairly present, in conformity with generally
accepted accounting principles, consistently applied, the
financial position of the Company as of such date and the results
of operations and changes in financial position for such fiscal
year.
(ii) The unaudited balance sheet of the Company
as of December 31, 1997, and the related unaudited internal
statements of income for the period then ended, copies of which
have been provided to Banks, present, substantially in conformity
with generally accepted accounting principles applied on a basis
consistent with the financial statements referred to in paragraph
(d)(i) of this Section, the financial position of the Company as
of such date and the results of operations for such period
(subject to normal year end adjustments).
(iii) Since December 31, 1997 there has been no
material adverse change in the business, financial position or
results of operations of the Company on a cumulative basis.
(e) Litigation. Except as disclosed in Schedule 4.1(e),
there are no actions, suits or proceedings pending or threatened against or
affecting the Company or any of its Subsidiaries, at law or in equity, or
before or by any Federal, State or municipal court or arbitrator or any
other governmental department, commission, board, bureau, agency, official
or instrumentality, domestic or foreign, which are reasonably likely to
result, either individually or collectively, in any material adverse change
in the business, properties, operations or condition, financial or other,
of the Company and its Subsidiaries taken as a whole, or in which there is
a reasonable likelihood of recovery of an amount that exceeds $500,000.00.
(e) ERISA - Absence of Reportable Events. No Reportable
Event as defined in ERISA and the rules and regulations thereunder has
occurred and is continuing with respect to any employee benefit plan or
other plan maintained for employees of the Company and covered by ERISA,
which materially and adversely affects the ability of the Company to
perform its obligations hereunder and under the Notes, and the minimum
funding standards imposed by ERISA on each such plan have been satisfied.
(f) Tax Returns and Payment. The Company has filed all
federal and state income tax returns and all other material tax returns
which are required to be filed and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company, except for
the filing of such returns, if any, in respect of which an extension of
time for filing is in effect and except for such taxes, if any, as are
being contested in good faith and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the Company in
respect of any taxes or other governmental charges are, in the opinion of
the Company, adequate.
(g) Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(h) Liens. At the date of this Agreement no Liens exist on
any property of the Company other than those described on Schedule 4.1(i).
(i) Subsidiaries. The Company has the Subsidiaries
described on Schedule 4.1(j) attached hereto.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Company. The Company agrees
that, so long as any Bank has any Commitment hereunder or any amount
payable under any Note remains unpaid, unless the prior written consent of
the Required Banks is obtained:
(a) Information. The Company will deliver to each of the
Banks:
(i) as soon as available and in any event within
90 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company as of the end of such
fiscal year and the related consolidated statements of income,
retained earnings and changes in financial position for such
fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by and
accompanied by the unqualified opinion of independent public
accountants of nationally recognized standing acceptable to Banks,
accompanied by a letter from said accountants certifying that, to
the best of their knowledge after due inquiry, no Default or Event
of Default has occurred hereunder and is continuing as at the end
of the fiscal year covered by said financial statements, and
accompanied by an unaudited consolidating balance sheet and
unaudited consolidating statement of income of the Company for
such fiscal year certified to Banks by the Company's chief
financial officer.
(ii) as soon as available and in any event
within 45 days after the end of each of the first three quarters
of each fiscal year of the Company, a consolidated balance sheet
of the Company as of the end of such quarter and the related
consolidated statements of income, retained earnings and changes
in financial position for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter, setting
forth in each case in comparative form, the figures for the
corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency by the chief
financial officer of the Company;
(iii) simultaneously with the delivery of each
set of financial statements referred to in clauses (i) and (ii)
above, a Compliance Certificate of the chief financial officer of
the Company, in the form attached hereto as Exhibit G and made a
part hereof, accompanied by supporting financial work sheets where
appropriate, and stating whether there exists on the date of such
certificate any Default or Event of Default and, if any Default or
Event of Default then exists, setting forth the details thereof
and the action which the Company is taking or proposes to take
with respect thereto;
(iv) forthwith upon the occurrence of any
Default or Event of Default, and in any event within five days
after knowledge of such occurrence, a certificate of an officer of
the Company setting forth the details thereof and the action which
the Company is taking or proposes to take with respect thereto;
(v) promptly upon the mailing thereof to the
shareholders of the Company generally, and in any event within ten
days after such mailing, copies of all financial statements,
reports, proxy statements and other material information so
mailed;
(vi) from time to time, with reasonable
promptness, upon being informed by Banks of the purpose of the
inquiry, such further information regarding the business, affairs
and financial position of the Company as Agent or any Bank may
reasonably request.
(b) Limitations on Liens. The Company will not create,
assume, guarantee or suffer to exist any Debt secured by any Lien on any of
the Company's accounts receivable, or any notes, instruments or other
documents evidencing any such accounts receivable.
(c) Merger or Consolidation. The Company will not, and
will not permit any Subsidiary to, merge or consolidate with any other
person, except that:
(i) The Company may consolidate with or merge
into any Person or permit any other Person to merge into, provided
that immediately after giving effect thereto,
(1) The Company shall be the successor corporation;
(2) The Company shall be in compliance with all
provisions of this Agreement; and
(3) The Company and the acquired Person, on a
consolidated basis as determined after giving effect to any such
Permitted Acquisition, have a net worth of not less than 100% of
the Company's net worth determined immediately prior to said
Acquisition;
(ii) Any Subsidiary may (i) merge into the
Company or another wholly-owned Subsidiary or (ii) sell, transfer
or lease all or any part of its assets to the Company or to
another wholly-owned Subsidiary or (iii) merge into any Person
which, as a result of such merger, concurrently become a
wholly-owned Subsidiary.
(d) Sale of Assets. The Company will not, and will not
permit any Subsidiary to, sell, lease, transfer or otherwise dispose of
(collectively, a "Disposition") any assets, in one or a series of
transactions, other than in the ordinary course of business, to any Person,
other than the Company or any Subsidiary, if (1) in any fiscal year of the
Company, after giving effect to such Disposition, the aggregate book value
of all such assets sold, leased, transferred or otherwise disposed of in
such fiscal year would exceed 10% of Consolidated Total Assets as of the
end of the immediately preceding fiscal year or (2) if the assets
constituting the Disposition contributed in excess of 15% to income of the
Company and its Subsidiaries before income taxes and interest, as
determined in accordance with generally accepted accounting principles, for
the prior fiscal year; provided, that the aggregate book value of all
assets sold, leased, transferred or otherwise disposed of pursuant to this
paragraph 5.1(d) shall not exceed (i) 25% of Consolidated Total Assets as
of December 31, 1997, plus (ii) the cumulative sum of the increase (or
decrease) in Consolidated Total Assets as of the end of each subsequent
fiscal year; provided, that, for purposes of this paragraph 5.1(d), in no
year shall such increase exceed 10% of the prior year's Consolidated Total
Assets. Notwithstanding the foregoing, the Company may make a Disposition
and the book value of the assets shall not be required to be included in
the foregoing computation if the Company shall, within one year after such
Disposition, invest the net proceeds thereof in other tangible property of
a similar nature and at least equivalent value (whether new, additional or
replacement property but excluding property purchased as part of regular
upkeep and maintenance) for use in the business of the Company and its
Subsidiaries.
(e) Payment of Debt. The Company will pay any and all Debt
payable or Guaranteed by the Company, and any interest or premium thereon,
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) in accordance with the agreement or instrument
relating to such Debt or Guarantee.
(f) Consultations and Inspections. Solely for the purpose
of permitting Agent and Banks to determine compliance by the Company with
this Agreement, the Company will permit Agent and/or Banks (and any Person
appointed by Agent or any Bank to whom the Company does not reasonably
object) to discuss the affairs, finances and accounts of the Company with
the officers of the Company, all at such reasonable times and as often as
may reasonably be requested. The Company will also permit inspection of its
properties, books and records by Agent and Banks during normal business
hours or at other reasonable times.
(g) Payment of Taxes; Corporate Existence; Maintenance of
Properties; Insurance. The Company will:
(i) pay and discharge promptly all taxes,
assessments and other governmental charges imposed upon it or any
of its property; provided, however, that the Company shall not be
required to pay any such tax, assessment or other governmental
charge the payment of which is being contested in good faith and
by appropriate proceedings and for which adequate reserves have
been provided, except that the Company will pay or cause to be
paid all such taxes, assessments and governmental charges
forthwith upon the commencement of proceedings to foreclose any
Lien which is attached as security therefor, unless such
foreclosure is stayed by the filing of an appropriate bond;
(ii) do all things necessary to preserve and
keep in full force and effect its corporate existence, rights and
franchise and to be duly qualified to do business in all
jurisdictions where the nature of its business requires such
qualification;
(iii) maintain and keep its properties as a
whole in good repair, working order and condition; provided,
however, that nothing in this subsection (iii) shall prevent any
abandonment of any of its properties which is not disadvantageous
in any material respect to Banks and which, in the opinion of the
management of the Company, is in the best interests of the
Company; and
(iv) insure with responsible and reputable
insurance companies its assets and business in such manner and to
such extent as is customary with similar business enterprises of
comparable size and subject to comparable hazards.
(h) Financial Covenants. The Company will:
(i) Have a Tangible Net Worth at all times of not less
than:
(1) $95,000,000.00; plus
(2) The cumulative sum (without reduction for
any losses) of Forty Percent (40%) of the Company's Net Income for
each of its fiscal quarters ending after March 31, 1998.
"Net Income" for purposes of this Section 5.1(h)(i) shall mean the
Company's net income after taxes but before extraordinary gains,
all determined in accordance with generally accepted accounting
principles, consistently applied.
(ii) Have a ratio of Operating Cash Flow to Debt
Service of not less than the following amounts during the periods
set forth below:
Minimum Operating Cash
Period: Flow to Debt Service:
------ ----------------------
March ___, 1998 through March 31, 1998 2.50 to 1.0
April 1, 1998 through March 31, 1999 2.75 to 1.0
April 1, 1999 through March 31, 2000 3.00 to 1.0
April 1, 2000 and thereafter 3.25 to 1.0
As used herein the term "Operating Cash Flow" shall mean the
Company's after-tax net income plus interest expense, plus
depreciation, amortization, and operating lease rentals, as
determined in accordance with generally accepted accounting
principles consistently applied, for the four quarter period
ending on the date of such calculation. As used herein the term
"Debt Service" shall mean the Company's interest expense plus
operating lease rentals plus other actual Off Balance Sheet
Liabilities paid during the four quarter period ending on the date
of such calculation, plus current maturities of long-term debt for
the four quarter period following the date of such calculation,
all as determined in accordance with generally accepted accounting
principles. For purposes of said ratio, the amount of current
maturities of long-term debt shall be taken from the balance sheet
of the Company for the four quarter period then ended, and all
other amounts shall be taken from the income statement of the
Company for the four quarter period then ending. The term "Off
Balance Sheet Liabilities" as used herein shall mean all payments
of leases or other obligations assumed from customers under a
service agreement to the extent such arrangements are not treated
as operating leases, capitalized leases or long term debt.
(iii) Not incur any Funded Debt (other than
Funded Debt existing as of December 31, 1997, Funded Debt under
this Agreement and capitalized leases assumed by the Company after
the date of this Agreement as a condition to a contract between
the Company and one of its customers) in excess of $30,000,000.00
outstanding at any time during the Term hereof.
(iv) Deliver a certificate of the chief
financial officer of the Company containing the financial ratio
calculations required in clauses (i) through (iii) simultaneously
with the financial statements referred to in Section 5.1(a)(i) and
(ii).
(i) Maintenance of Books and Records. The Company will
maintain its books and records in accordance with generally accepted
accounting principles, consistently applied.
(j) Stock Redemptions and Distributions. With respect to
its capital stock, the Company will not make any redemptions, stock
repurchases, dividend distributions, or other distributions to its
shareholders unless, immediately after giving effect to the proposed
redemption, repurchase or distribution, such proposed redemption,
repurchase or distribution, when aggregated with all other redemptions,
repurchases and distributions made during the same fiscal year of the
Company and any other events occurring with respect to the Company would
not result in a violation of any covenant set forth in this Article.
(k) Transactions with Related Parties. The Company will
not engage in any material transaction with any affiliated, related or
parent company or any Subsidiary (except any wholly-owned Subsidiary of the
Company) or any shareholder, director, officer, or beneficiary of a trust
that is a shareholder of the Company unless such transaction is upon fair
market terms, is not disadvantageous in any material respect to Banks, and
has been approved by a majority of the disinterested directors of the
Company (or, if none of such directors are disinterested, by a majority of
the directors) as being in the best interests of the Company.
(l) Change in Fiscal Year. The Company will not change its
fiscal year without the prior written consent of Banks.
(m) Compliance with Law. The Company will comply with any
and all laws, ordinances and governmental rules and regulations to which it
is subject and obtain any and all licenses, permits, franchises and other
governmental authorizations necessary to the ownership of its properties or
to the conduct of its business, which violation or failure to obtain might
materially adversely affect the condition or operation, financial or
otherwise, of the Company.
(n) Notice of Subsequent Events. Forthwith upon the
president or a principal financial officer of the Company obtaining
knowledge of (i) any material adverse change in the condition or operation,
financial or otherwise, of the Company, (ii) any default by the Company
under or with respect to any instrument, contract or agreement to which the
Company is a party or by which the Company is bound, (iii) any default by
the Company under or with respect to any order, writ, injunction, decision
or decree of any court, governmental authority or arbitral body to which
the Company is a party or by which the Company is bound which materially
adversely affects the Company's condition or operation, financial or
otherwise, or (iv) any action or proceeding pending or, to the knowledge of
the president or a principal financial officer of the Company, threatened
against the Company before any court, governmental authority or arbitral
body which, if decided adversely to the Company, would result in any
material adverse change in the condition or operation, financial or
otherwise, of the Company, the Company will deliver to Banks a written
certificate signed by such officer specifying the nature thereof, the
period of existence thereof and what action the Company has taken and
proposes to take with respect thereto.
(o) Loans, Acquisitions and Investments. Neither the
Company nor any Subsidiary of the Company will make any loans, advances or
extensions of credit to, or purchase any stocks, bonds, notes, debentures
or other securities of, make any investment in or any expenditures on
behalf of, or in any manner assume liability (direct, contingent or
otherwise) for the Indebtedness of any Person or make or suffer to exist
any Acquisition of any Person, except for (i) Permitted Acquisitions, (ii)
other Permitted Investments not to exceed $25,000,000.00 in the aggregate
at any one time outstanding, (iii) loans to employees of the Company and
its Subsidiaries in the ordinary course of business, and (iv) loans made to
the selling shareholders of Direct Media/DMI, Inc. for purposes of
assisting such selling shareholders in making personal income tax payments
or paying other expenses arising in connection with the asset sale by
Direct Media/DMI, Inc. and the note of the Company payable pursuant
thereto.
SECTION 5.2. Use of Proceeds. The Company agrees that none of such
proceeds will be used in violation of any applicable law or regulation; and
Company will not engage principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or
carrying "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended from time to time.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. If:
(a) The Company shall fail to pay any principal of or
interest on the Notes or any other amount payable by Company hereunder or
under the Notes, within five (5) days after the due date thereof;
(b) The Company shall violate or fail to perform any of
its covenants or agreements contained in Section 5.1 or Section 5.2 (other
than Sections 5.1(e), 5.1(g) and 5.1(m));
(c) The Company shall fail to perform any term, covenant
or agreement herein contained (other than those specified in clause (a) or
(b)) for 30 days after written notice of Default is given to the Company by
Agent;
(d) The Company shall have made any representation or
warranty in or pursuant to this Agreement, or in any certificate or
document delivered pursuant hereto, which shall have been materially
incorrect, false or misleading when made;
(e) The Company shall fail (and such failure shall not
have been cured or waived) to: (i) make any payment of principal of or
premium, if any, or interest on any Funded Debt when due (whether at
schedule maturity or by required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Funded Debt, or (ii) perform or observe any other provision, term or
condition of, or any other default shall occur under, any agreement or
instrument relating to any Funded Debt outstanding; in either case if the
effect of such failure or default is to cause or permit such Funded Debt to
be declared to be due and payable or otherwise accelerated, or to be
required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof;
(f) The Company shall have entered against it by a court
having jurisdiction in the premises a judgment in excess of $10,000.00, and
the Company (or an insurer on behalf of the Company) shall not appeal or
satisfy such judgment within the time permitted by law for an appeal of
such judgment;
(g) The Company shall have filed against it an involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the
Company, or for any substantial part of its property, or for the winding-up
or liquidation of its affairs and such involuntary case or proceeding shall
remain unstayed and in effect for a period of 60 consecutive days, or if
any order for relief is entered in any such case;
(h) The Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company, or for any substantial
part of its property, or make any general assignment for the benefit of any
of the foregoing;
(i) Any of the Letter of Credit Applications shall at any
time for any reason cease to be in full force and effect or shall be
declared to be null and void by a court of competent jurisdiction, or if
the validity or enforceability of any of the Letter of Credit Applications
shall be contested or denied by the Company, or if the Company shall deny
that it has any further liability or obligation under any of the Letter of
Credit Applications or if the Company shall fail to comply with or observe
any of the terms, provisions or conditions contained in any of the Letter
of Credit Applications;
then, and in every such event (an "Event of Default") if such Event of
Default still exists, Agent may, or upon direction of Banks or participants
of Banks holding in excess of 51% of the then outstanding Commitments
shall, by notice in writing to the Company terminate the Commitments of
each of the Banks and declare each of the Notes to be and they shall
thereupon forthwith become due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly
waived; provided, however, that in the case of the occurrence of any Event
of Default described in the foregoing clause (g) or (h) the Notes shall
become due and payable forthwith without the requirement of any such
notice, and without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived.
ARTICLE VII
CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS
SECTION 7.1. Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to any Interest Period:
(a) By reason of circumstances affecting the London
interbank Eurocurrency market, adequate and fair means do not exist for
ascertaining the rate of interest payable pursuant to Section 2.5(c) in
respect of such Eurocurrency Borrowing for such Interest Period; or
(b) Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered to any one or more of the Banks
in the relevant London interbank Eurocurrency market for such Interest
Period, or
(c) Agent determines that the London Interbank Offered
Rate will not adequately and fairly reflect the cost to any one or more of
the Banks of maintaining or funding the Eurocurrency Loans for such
Interest Period,
Agent shall forthwith give notice thereof to the Company, whereupon until
Agent notifies the Company that the circumstances giving rise to such
suspension no longer exist, (a) the obligations of Banks to make
Eurocurrency Loans shall be suspended, and (b) the Company shall repay in
full then outstanding principal amount of each of its Eurocurrency Loans,
together with accrued interest thereon, on the last day of then current
Interest Period applicable to such Loan. Concurrently with repaying each
such Eurocurrency Loan pursuant to this Section, the Company shall borrow a
Prime Loan or Fed Funds Loan in an equal principal amount from Banks, and
Banks shall make such a Prime Loan or Fed Funds Loan, unless the Company
notifies Agent at least one Domestic Business Day before the date of such
repayment that it elects not to borrow any Prime Loans or Fed Funds Loans
on such date.
SECTION 7.2. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any one or more
of the Banks with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency shall make
it unlawful or impossible for any one or more of the Banks to make,
maintain or fund its Eurocurrency Loans to the Company, such Bank shall
forthwith give notice thereof to the Agent and Agent shall give notice
thereof to the Company. Upon receipt of such notice, the Company shall
repay in full then outstanding principal amount of each of its Eurocurrency
Loans, together with accrued interest thereon, on either (a) the last day
of then current Interest Period applicable to such Eurocurrency Loan if
such Bank may lawfully continue to maintain and fund such Eurocurrency Loan
to such day or (b) immediately if such Bank may not lawfully continue to
fund and maintain such Eurocurrency Loan to such day. Concurrently with
repaying each Eurocurrency Loan of Bank, the Company shall borrow a Prime
Loan in an equal principal amount from Banks, and Banks shall make such a
Prime Loan.
SECTION 7.3. Increased Cost.
(a) If (i) Regulation D or (ii) after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any one or more
of the Banks with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency (a
"Regulatory Change"):
(A) shall subject any such Bank to any tax, duty
or other charge with respect to its Fixed Rate Loans, its Note or
its obligation to make Fixed Rate Loans or shall change the basis
of taxation of payments to any such Bank of the principal of or
interest on its Fixed Rate Loans or any other amounts due under
this Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes in the
rate of tax on the overall net income of any such Bank imposed by
the jurisdiction in which such Bank's principal executive office
is located); or
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit,
capital or similar requirement against assets of, deposits with or
for the account of, or credit extended or committed to be extended
by, any such Bank or shall impose on any such Bank or on the
United States market for certificates of deposit or the interbank
market for Eurocurrency deposits any other condition affecting any
such Bank's Fixed Rate Loans, its Note or its obligation to make
Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to (or in
the case of Regulation D, to impose a cost on) any Bank of making or
maintaining any Fixed Rate Loan or to reduce the amount of any sum received
or receivable by any Bank under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, and if
such Bank is not otherwise fully compensated for such cost or reduction by
virtue of the inclusion of the reference to "Reserve Percentage" in the
calculation of the interest rate applicable to Fixed Rate Loans, then,
within 15 days after demand by such Bank, the Company shall pay for the
account of such Bank as additional interest, such additional amount or
amounts as will compensate such Bank for such increased cost or reduction.
Each Bank will promptly notify the Agent, who in turn shall promptly notify
the Company of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section. A certificate of such Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. Upon
reasonable request of the Company, each Bank claiming additional
compensation under this Section shall provide to the Company additional
information with respect to the determination of such additional amount or
amounts. In determining such amount or amounts, Banks may use any
reasonable averaging and attribution methods.
(b) If any Bank demands compensation under this Section,
the Company may at any time, upon at least two Eurocurrency Business Days'
prior notice to the Agent, repay in full its then outstanding Eurocurrency
Loans from such Bank, together with accrued interest thereon to the date of
prepayment and any other amounts due under Section 2.10. Concurrently with
repaying such Fixed Rate Loans, the Company may borrow a Prime Loan in an
amount equal to the aggregate principal amount of such Fixed Rate Loans,
and such Bank shall make such a Prime Loan.
SECTION 7.4. Prime Loans Substituted for Affected Fixed Rate
Loans. If notice has been given by any Bank pursuant to Section 7.2 or by
the Company pursuant to Section 7.3 requiring Fixed Rate Loans to be
repaid, then, unless and until such Bank or the Agent notifies the Company
that the circumstances giving rise to such repayment no longer apply:
(a) All Loans which would otherwise be made as
Eurocurrency Loans shall be made instead as Prime Loans, and
(b) After each of the Eurocurrency Loans to the Company
has been so repaid, all payments and prepayments of principal which would
otherwise be applied to repay such Fixed Rate Loans shall be applied to
repay its Prime Loans instead.
Agent shall notify the Company if and when the circumstances giving rise to
such repayment no longer apply.
SECTION 7.5. Indemnity.
(a) In addition to the payment of expenses pursuant to
Section 9.3 below, the Company agrees to indemnify, pay and hold Agent and
Banks and the officers, directors, employees, agents, affiliates and
participants of each of them (collectively, called the "Indemnitees")
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto); that may be imposed on, incurred by
or asserted against the Indemnitees in any manner related to or arising out
of this Agreement, the Notes or any other agreement executed and delivered
by the Company in connection herewith, the statements contained in any
commitment letters delivered by Banks or Agent, Banks' agreements to make
loans hereunder, or the use or intended use of the proceeds of any of the
loans hereunder (the "Indemnified Liabilities"); provided, however, that
the Company shall have no obligation to an Indemnitee hereunder with
respect to Indemnified Liabilities arising from the gross negligence or
willful misconduct of that Indemnitee as determined by a court of competent
jurisdiction. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Company shall contribute
the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by the Indemnitees or any of them. The provisions of
the undertakings and indemnifications set out in this Section 7.5(a) shall
survive satisfaction and payment of the Loans and other obligations of the
Company hereunder and the termination of this Agreement.
(b) The above indemnities shall constitute separate and
independent obligations of the Company from its other obligations hereunder
and shall apply irrespective of any indulgence granted by the Agent or any
of the Banks.
ARTICLE VIII
THE AGENT
SECTION 8.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement, the Notes and the
other Transaction Documents as are delegated to the Agent by the terms
hereof or thereof, together with all such powers as are reasonably
incidental thereto.
SECTION 8.2 Agent and Affiliates. Mercantile shall have the same
rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Agent, and
Mercantile and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Company or any of its
Subsidiaries or affiliates as if it were not the Agent hereunder.
SECTION 8.3. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any
action with respect to any Default or Event of Default, except as expressly
provided in Article 6.
SECTION 8.4. Consultation with Experts. The Agent may consult with
legal counsel, independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by
it in good faith in accordance with the advice of such counsel, accountants
or experts.
SECTION 8.5. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action
taken or not taken by it in connection herewith (i) with the consent or at
the request of each of the Banks, or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Company; (iii) the satisfaction of any condition
specified in Article 3, except receipt of items required to be delivered to
the Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other Transaction Document. The Agent shall not
incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex
or similar writing) believed by it to be genuine or to be signed by the
proper party or parties.
SECTION 8.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Company) against any cost, expense (including counsel
fees and disbursements), claim, demand, action, loss or liability (except
such as result from the Agent's gross negligence or willful misconduct)
that the Agent may suffer or incur in connection with this Agreement or any
action taken or omitted by the Agent hereunder.
SECTION 8.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this
Agreement.
SECTION 8.8. Resignation of Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and the Company. Upon
any such resignation, the Company, with the consent of the Banks, shall
have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Company, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having
a combined capital and surplus of at least $200,000,000.00. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation as Agent, the
provisions of this Article 8 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.9. Agent's Fee. In consideration of the services of the
Agent hereunder, the Company shall pay to the Agent, solely for its
account, a quarterly fee in an amount to be agreed upon between the Company
and the Agent, which fee shall be due and payable on the last day of each
March, June, September and December during the Term hereof.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex or similar writing) and shall be given to such party at its
address or telex number set forth on the signature pages hereof or such
other address or telex number as such party may hereafter specify for the
purpose by notice to Agent or the Company as the case may be. Each such
notice, request or other communication shall be effective (a) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answer-back is received upon completion of
transmission, (b) if given by mail, 72 hours after such communication is
deposited in the mails with appropriate first class, certified or
registered postage prepaid, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address specified in this Section;
provided that notices to the Agent and/or the Banks under Section 2.2, 2.4,
2.6, 2.7 or Article 7 shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Agent or any
of the Banks in exercising any right, power or privilege hereunder or under
any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other right, power or privilege. The rights
and remedies provided herein and in the other documents contemplated hereby
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION 9.3. Expenses; Documentary Taxes.
(a) The Company agrees to pay (i) all out-of-pocket
expenses of each of the Banks in connection with the preparation of this
Agreement, including reasonable fees and disbursements of Xxxxxxxx Xxxxxx,
counsel for Agent, within 30 days of receipt of a statement therefor, (ii)
all reasonable out-of-pocket expenses of the Agent and each of the Banks in
connection with the preparation of any waiver or consent hereunder or any
amendment hereof or any default or alleged default by the Company
hereunder, including fees and disbursements of Xxxxxxxx Xxxxxx, counsel for
Agent, within 30 days of receipt of a statement therefor, and (iii) if a
Default or an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Agent and each of the Banks, including fees and
disbursements of counsel retained by Agent or of attorneys who are
employees of Agent and/or any of its affiliates, in connection with such
Default or Event of Default and collection and other enforcement
proceedings resulting therefrom. The Company shall indemnify the Agent and
each of the Banks against any transfer taxes, documentary taxes or similar
assessments or charges made by any governmental authority by reason of the
execution and delivery of this Agreement or the Notes.
(b) The obligations of the Company under this Section
shall be continuing and survive any termination of this Agreement.
SECTION 9.4. Participations. Each Bank may sell to one or more
other Persons a participation in all or any part of its Commitment and any
Loan held by it, in which event each such participant shall be entitled to
the rights and benefits of this Agreement to the extent of its
participation in such Loan or such Bank's Commitment, as the case may be,
as if (and the Company shall be directly obligated to such participant
under such provision as if) such participant were a "Bank" except only to
the extent provided under the Participation Agreement between such selling
Bank and such participant(s), but such participant shall not have any other
rights or benefits under this Agreement or the Notes. The Banks agree to
notify the Company of any participations sold by delivering a copy of such
Participation Agreement to the Company. In the event any Bank sells a
participation, it shall not be obligated to the participant under the
Participation Agreement to take or refrain from taking any action hereunder
or under the Notes, except that such Bank may agree in the Participation
Agreement, that it will not, without the consent of the participant, agree
to (i) the increase or extension of the term, or the extension of the time
or waiver of any requirement for the reduction or termination, of such
Bank's Commitment, (ii) the extension of any date fixed for the payment of
principal of or interest on the related Loan or Loans or of the commitment
fee, (iii) the reduction of any payment of principal thereof, or (iv) the
reduction of the rate at which either interest is payable thereon or (if
the participant is entitled to any part thereof) the commitment fee is
payable hereunder to a level below the rate at which the participant is
entitled to receive interest or such fee (as the case may be) in respect of
such participation.
SECTION 9.5. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Company, the Agent
and the Banks. The Agent's or any Bank's failure at any time or times
hereafter to require strict performance by the Company or failure to
enforce the Agent's or such Bank's rights under any provision of this
Agreement shall not waive, affect or diminish any right of the Agent or
such Bank, as applicable, thereafter to demand strict compliance and
performance therewith or to enforce the Agent's or such Bank's rights.
NOTICE: ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT THE
COMPANY, THE AGENT AND THE BANKS FROM MISUNDERSTANDING OR DISAPPOINTMENT,
ANY AGREEMENTS THE COMPANY, THE AGENT AND THE BANKS REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENTS BETWEEN THE COMPANY, THE AGENT AND THE BANKS,
EXCEPT AS THE COMPANY, THE AGENT AND THE BANKS MAY LATER AGREE IN WRITING
TO MODIFY SUCH AGREEMENT.
SECTION 9.6. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Company
may not assign or otherwise transfer any of its rights or obligation under
this Agreement.
SECTION 9.7. Severability. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected
or impaired thereby.
SECTION 9.8. Missouri Law. This Agreement and the Notes are
submitted for acceptance at Agent's principal place of business in St.
Louis, Missouri and shall not be binding upon the Agent or the Banks or
become effective until executed by the Agent and/or the Banks, as
applicable, at said place of business. When so executed, this Agreement and
the Notes shall be deemed to have been made at said place of business. This
Agreement, the Notes and any other document delivered hereunder shall be
construed in accordance with and governed by the internal laws of the State
of Missouri.
SECTION 9.9. CHOICE OF FORUM; WAIVER OF JURY TRIAL. TO INDUCE THE
AGENT AND THE BANKS TO ACCEPT THIS AGREEMENT, THE COMPANY, IRREVOCABLY,
AGREES THAT ANY ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT
ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT AND THE NOTE MAY BE
LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF ST. LOUIS, STATE OF
MISSOURI. THE COMPANY HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF
ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND STATE. THE
COMPANY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE
OF ANY LITIGATION BROUGHT IN ACCORDANCE WITH THIS SECTION. THE COMPANY,
AGENT AND THE BANKS IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY ACTION IN WHICH THE COMPANY, AND THE AGENT OR ANY OF THE
BANKS ARE PARTIES.
SECTION 9.10. Resurrection of Obligations. To the extent that any
Bank receives any payment on account of the Company's liabilities, and any
such payment(s) or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside, subordinated and/or required
to be repaid to a trustee, receiver or any other party under any bankruptcy
act, state or federal law, common law or equitable cause, then, to the
extent of such payment(s) received, the Company's liabilities, or part
thereof intended to be satisfied, shall be revived and continue in full
force and effect, as if such payment(s) had not been received by such Bank
and applied on account of the Company's liabilities.
SECTION 9.11. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall become effective when the Agent shall
have received counterparts hereof signed by each of the parties hereto.
SECTION 9.12. Continuing Obligations. This Agreement amends the
Prior Credit Agreement and is not a novation thereof. All principal and
accrued and unpaid interest and other amounts due under such Prior Credit
Agreement or any promissory notes executed and delivered by the Company
pursuant thereto shall continue to be due and payable under this Agreement
and the Notes issued to Mercantile, NationsBank and Chase pursuant hereto
until such amounts have been paid in full.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
ACXIOM CORPORATION
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx, Group Executive
and Chief Financial Officer
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Commitment: MERCANTILE BANK
$32,500,000.00 NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxx
------------------------------
Xxxxxx X. Xxxx, Vice President
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telex Number: 442300
Commitment: CHASE BANK OF TEXAS, N.A.
$32,500,000.00
By: /s/ Xxx Xxxxxxx
---------------------------
Xxx Xxxxxxx, Vice President
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Telex: ____________________
Commitment: NATIONSBANK, N. A.
$30,000,000.00
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxxxxx, Vice
President
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telex: ________________________
Commitment: FIRST AMERICAN NATIONAL BANK
$15,000,000.00
By: /s/ Xxxxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxxxx X. Xxxxxx, Senior Vice
President
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Telex: ________________________
Commitment: FIRST COMMERCIAL BANK, N. A.
$15,000,000.00
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------
Xxxxxxxx Xxxxxxxx, Vice President
Capitol and Broadway
Xxxxxx Xxxx, Xxxxxxxx 00000
Telex: ________________________
MERCANTILE BANK NATIONAL
ASSOCIATION, AS ADMINISTRATIVE
AND DOCUMENTATION AGENT
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Xxxxxx X. Xxxx, Vice President
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Telex: 442300
CHASE BANK OF TEXAS,
N. A., AS SYNDICATION AGENT
By: /s/ Xxx Xxxxxxx
----------------------------
Xxx Xxxxxxx, Vice President
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Telex: ____________________
EXHIBIT A
PROMISSORY NOTE
$32,500,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of Mercantile
Bank National Association, a national banking association ("Bank") on
January 31, 2003, the lesser of (a) Thirty Two Million Five Hundred
Thousand Dollars ($32,500,000.00), or (b) the aggregate unpaid principal
amount of all Loans made by Bank to Borrower in accordance with the terms
hereof, and including, but not limited to, Bank's Pro Rata Share of any
Loans made pursuant to Section 2.1B of the Second Amended and Restated
Credit Agreement (herein defined) in connection with any draws made under
any Letters of Credit issued for Borrower's account. The aggregate
principal amount which Bank may have outstanding hereunder, plus the amount
of Bank's Pro Rata Share in any Letters of Credit issued for Borrower's
account, at any one time shall not exceed Thirty Two Million Five Hundred
Thousand Dollars ($32,500,000.00) at any time, which amount may be
borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By:__________________________________
Xxxxxx X. Xxxxx
Group Executive and Chief
Financial Officer
G-R-I-D
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Advances Principal Payments
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Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
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EXHIBIT B
PROMISSORY NOTE
$32,500,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of Chase Bank
of Texas, N. A., a national banking association ("Bank") on January 31,
2003, the lesser of (a) Thirty Two Million Five Hundred Thousand Dollars
($32,500,000.00), or (b) the aggregate unpaid principal amount of all Loans
made by Bank to Borrower in accordance with the terms hereof, and
including, but not limited to, Bank's Pro Rata Share of any Loans made
pursuant to Section 2.1B of the Second Amended and Restated Credit
Agreement (herein defined) in connection with any draws made under any
Letters of Credit issued for Borrower's account. The aggregate principal
amount which Bank may have outstanding hereunder, plus the amount of Bank's
Pro Rata Share of the risk participation in any Letters of Credit issued
for Borrower's account, at any one time shall not exceed Thirty Two Million
Five Hundred Thousand Dollars ($32,500,000.00) at any time, which amount
may be borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By:___________________________
Xxxxxx X. Xxxxx
Group Executive and Chief
Financial Officer
G-R-I-D
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Advances Principal Payments
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Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
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EXHIBIT C
PROMISSORY NOTE
$30,000,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of
NationsBank, N. A., a national banking association ("Bank") on January 31,
2003, the lesser of (a) Thirty Million Dollars ($30,000,000.00), or (b) the
aggregate unpaid principal amount of all Loans made by Bank to Borrower in
accordance with the terms hereof, and including, but not limited to, Bank's
Pro Rata Share of any Loans made pursuant to Section 2.1B of the Second
Amended and Restated Credit Agreement (herein defined) in connection with
any draws made under any Letters of Credit issued for Borrower's account.
The aggregate principal amount which Bank may have outstanding hereunder,
plus the amount of Bank's Pro Rata Share of the risk participation in any
Letters of Credit issued for Borrower's account, at any one time shall not
exceed Thirty Million Dollars ($30,000,000.00) at any time, which amount
may be borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By: _____________________________
Xxxxxx X. Xxxxx
Group Executive and Chief
Financial Officer
G-R-I-D
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Advances Principal Payments
------------------------------ ------------------
Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
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EXHIBIT D
PROMISSORY NOTE
$15,000,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of First
American National Bank, a national bank ("Bank") on January 31, 2003, the
lesser of (a) Fifteen Million Dollars ($15,000,000.00), or (b) the
aggregate unpaid principal amount of all Loans made by Bank to Borrower in
accordance with the terms hereof, and including, but not limited to, Bank's
Pro Rata Share of any Loans made pursuant to Section 2.1B of the Second
Amended and Restated Credit Agreement (herein defined) in connection with
any draws made under any Letters of Credit issued for Borrower's account.
The aggregate principal amount which Bank may have outstanding hereunder,
plus the amount of Bank's Pro Rata Share of the risk participation in any
Letters of Credit issued for Borrower's account, at any one time shall not
exceed Fifteen Million Dollars ($15,000,000.00) at any time, which amount
may be borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By: ___________________________
Xxxxxx X. Xxxxx
Group Executive and Chief
Financial Officer
G-R-I-D
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Advances Principal Payments
----------------------------- ------------------
Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
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EXHIBIT E
PROMISSORY NOTE
$15,000,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of First
Commercial Bank, N. A., a national banking association ("Bank") on January
31, 2003, the lesser of (a) Fifteen Million Dollars ($15,000,000.00), or
(b) the aggregate unpaid principal amount of all Loans made by Bank to
Borrower in accordance with the terms hereof, and including, but not
limited to, Bank's Pro Rata Share of any Loans made pursuant to Section
2.1B of the Second Amended and Restated Credit Agreement (herein defined)
in connection with any draws made under any Letters of Credit issued for
Borrower's account. The aggregate principal amount which Bank may have
outstanding hereunder, plus the amount of Bank's Pro Rata Share of the risk
participation in any Letters of Credit issued for Borrower's account, at
any one time shall not exceed Fifteen Million Dollars ($15,000,000.00) at
any time, which amount may be borrowed, paid, reborrowed and repaid, in
whole or in part, prior to January 31, 2003 subject to the terms and
conditions hereof and of that certain Second Amended and Restated Credit
Agreement dated as of March ___, 1998 made by and between Borrower,
Mercantile Bank National Association, as Administrative and Documentation
Agent (the "Agent"), Chase Bank of Texas, N. A., as Syndication Agent (the
"Syndication Agent"), and the Banks named therein (as amended from time to
time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By:______________________________
Xxxxxx X. Xxxxx
Group Executive and Chief
Financial Officer
G-R-I-D
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Advances Principal Payments
----------------------------- -------------------
Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
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EXHIBIT F
OPINION OF COUNSEL FOR ACXIOM CORPORATION
March ___, 1998
Mercantile Bank
National Association
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Chase Bank of Texas,
N. A.
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
NationsBank, N. A.
One Boatmen's Plaza
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
First Commercial Bank, N. A.
Capitol and Broadway
Xxxxxx Xxxx, Xxxxxxxx 00000
First American National Bank
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Re: Second Amended and Restated Credit
Agreement, dated as of March ___, 1998
between Acxiom Corporation, Mercantile
Bank National Association, as
Administrative and Documentation Agent,
Chase Bank of Texas, N. A., as Syndication
Agent, and the Banks Named Therein
Dear Sirs:
I am general counsel to Acxiom Corporation, a Delaware
corporation (the "Company"). As such, I have been asked to render to you
the opinion set forth below relating to the Second Amended and Restated
Credit Agreement referred to above (the "Agreement"). This opinion is given
pursuant to Section 3.2(b) of the Agreement. Capitalized terms used herein,
not otherwise defined, have the meanings given them in the Agreement.
To enable me to render this opinion, I have reviewed
originals or copies (certified or otherwise identified to my satisfaction)
of the Certificate of Incorporation and By-Laws of the Company, the
Agreement, the Notes, records of proceedings of the Board of Directors of
the Company, and such other documents, corporate records and certificates
of public officials as I have considered appropriate. I have assumed the
authenticity of all such documents delivered to me as originals and the
conformity to the originals of all such documents delivered to me as
copies.
The opinions set forth herein are subject to the
qualification that I am a member of the bar of the State of Arkansas only
and, except as to the organization and good standing of the Company in its
jurisdiction of incorporation, I express no opinion as to the laws of any
jurisdiction other than the United States of America and the State of
Arkansas and its political subdivisions.
Based on the foregoing and upon such investigation as I
have deemed necessary, I give you my opinion as follows:
1. The Company has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
2. The Company has the corporate power and authority to
enter into and perform the Agreement and to execute and deliver the Notes
to you. The execution, delivery and performance of the Agreement, including
the execution and delivery of the Notes have been duly authorized by all
requisite corporate action, and the Agreement and the Notes have been duly
executed and delivered by the Company.
3. The Agreement is a legal, valid and binding obligation
of the Company and is enforceable against the Company in accordance with
its terms, except as may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights in general.
4. The execution and delivery of the Agreement and the
Notes, and the performance by the Company of their terms, do not conflict
with or result in a violation of the Certificate of Incorporation or
By-Laws of the Company, or of any agreement, instrument, order, writ,
judgment or decree known to me to which the Company is a party or is
subject.
5. The Notes are the legal, valid and binding obligations
of the Company and are enforceable against the Company in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors' rights in
general.
6. No approval, authorization or other action by, or
filing with, any governmental authority, is required in connection with the
execution and delivery by the Company of the Agreement and the Notes.
This opinion is limited to pertinent laws in existence as
of the date hereof, and I expressly disclaim any undertaking to advise you
of any changes of law or fact that may thereafter come to my attention.
My opinion is limited to the matters stated herein and no
opinion is to be implied or may be inferred beyond those matters expressly
stated. The opinions expressed herein represent my judgment as to certain
legal matters, but they are not warranties or guarantees and should not be
construed as such.
This opinion is furnished by me solely for your benefit,
and it may not be relied upon, quoted from or delivered to any person other
than counsel to you and your agents or employees and participants, except
(i) in connection with the enforcement of obligations of the Company under
the Notes and the Agreement, (ii) in response to a valid subpoena or other
legal process, (iii) as otherwise required by applicable law or
regulations, or (iv) in connection with the sale or transfer of the Notes
to a subsequent purchaser or transferee, without my express prior written
consent.
Sincerely,
______________________________________
Xxxxxxxxx X. Xxxxxx, General Counsel
EXHIBIT G
COMPLIANCE CERTIFICATE
This Certificate is issued pursuant to Section
5.1(a)(iii) of that certain Second Amended and Restated Credit Agreement
dated as of March ___, 1998 between Acxiom Corporation, Mercantile Bank
National Association, as Administrative and Documentation Agent, Chase Bank
of Texas, N. A., as Syndication Agent, and the banks named therein (as from
time to time amended, the "Credit Agreement"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 5.1(a)(iii) of the Credit Agreement,
the undersigned hereby certifies, represents and warrants to Bank as
follows:
(i) As of the date hereof, no Default or Event
of Default has occurred under the Credit Agreement and is
continuing; and
(ii) As of ____________________, the
calculations contained on Schedule 1 hereto are true, accurate and
complete.
Dated this ____ day of ___________________, 19___.
ACXIOM CORPORATION
By:___________________________
Title: _______________________
ACXIOM CORPORATION
COMPLIANCE CERTIFICATE
Schedule 1
As of : ___________________, 19___
5.1(h) (i) Minimum Tangible Net Worth:
Company's Total Tangible Net Worth:
Stockholders Equity $____________
Less - Write-up from assets subsequent
to September 30, 1997 $____________
- Goodwill $____________
- Computer Software $____________
- Patent and Trademarks $____________
- Copyrights $____________
- Leasehold Improvements (except concerning 50 year
land lease with City of Conway, Arkansas) $____________
- Unamortized Debt Discount $____________
- Deferred Bond Costs $____________
- Organizational Costs $____________
- Other Deferred Charges (except relating to
data processing contracts) $____________
- Investments in Unconsolidated Subsidiaries $____________
Total Tangible Net Worth: $____________
Required: $95,000,000.00
Plus 40% of positive after-tax net income less
extraordinary gains since March 31, 1998 $____________
Total Required Tangible Net Worth $____________
5.1(h) (ii) Minimum Ratio of Operating Cash Flow to Debt Service
of 2.50:1 up to and including March 31, 1998, 2.75:1 from
April 1, 1998 to March 31, 1999, 3.00:1 from April 1,
1999 to March 31, 2000, and 3.25:1 thereafter:
After-Tax Net Income $____________
Plus Interest Expense $____________
Plus Depreciation and Amortization $____________
Plus Operating Lease Rentals $____________
Total $____________
Interest Expense $____________
Plus Operating Lease Rentals $____________
Plus Current Maturities of Long-Term Debt and Capital Leases $____________
Plus Actual Off Balance Sheet Liabilities Paid $____________
Total $____________
Ratio (X)
(Y)
5.1(h)(iii) Funded Debt not to exceed $30,000,000.00
Total Funded Debt $____________
Less: Loans outstanding under the Credit Agreement $____________
Less: Other Funded Debt and Capitalized Leases
existing at December 31, 1997 $____________
Less: Capitalized Leases assumed as a
condition to contracts with customers $____________
Total $____________
ACXIOM CORPORATION
By: ___________________________
Title:_________________________
Date: _________________________
EXHIBIT H
FORM OF BORROWING REQUEST
Mercantile Bank
National Association
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx
Dear Sirs:
The undersigned, Acxiom Corporation (the "Company"),
refers to the Second Amended and Restated Credit Agreement, dated as of
March ___, 1998, as amended (the "Credit Agreement"), among the Company,
Mercantile Bank National Association, as Administrative and Documentation
Agent, Chase Bank of Texas, N. A., as Syndication Agent, and the banks
named therein. Capitalized terms used herein and not defined shall have the
meanings assigned to such terms in the Credit Agreement. The Company hereby
gives you notice pursuant to Section 2.2 of the Credit Agreement that it
requests a Borrowing under the Credit Agreement, and in that connection
sets forth below the terms on which such Borrowing is requested to be made:
(A) Date of Borrowing ____________
(B) Aggregate Principal Amount of Borrowing ____________
(C) Interest rate basis (Prime Borrowing, Federal
Funds Borrowing or Eurocurrency Borrowing) ____________
(E) Interest Period (Eurocurrency Borrowings only - 1, 2, 3
or 6 months and not beyond January 31, 2003) ____________
Upon a Borrowing effected as a result of this request,
the Company shall be deemed to affirm as of the date of such Borrowing the
representations and warranties made in the Credit Agreement.
Very truly yours,
ACXIOM CORPORATION
By: _______________________
Title:______________________
[Responsible Officer]
EXHIBIT I
STANDBY LETTER OF CREDIT APPLICATION
AND REIMBURSEMENT AGREEMENT
EXHIBIT J
LETTER OF CREDIT REQUEST
[Company's Letterhead]
[Date]
Mercantile Bank National Association
000 Xxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx
Re: Second Amended and Restated Credit Agreement Dated
March ___, 1998 (as from time to time amended,
modified, extended or renewed, the "Agreement")
Gentlemen:
Pursuant to Section 2.1B of the Agreement, the
undersigned hereby requests that you issue an irrevocable standby letter of
credit in the amount of $_____________ for the account of the undersigned
and for the benefit of ___________________________ upon the terms and
conditions set forth in the attached Application and Agreement for
Irrevocable Standby Letter of Credit.
The undersigned hereby represents and warrants to you
that as of the date hereof, all of the representations and warranties of
the undersigned contained in the Agreement are true and correct in all
material respects as if made on and as of the date hereof and no default or
Event of Default (as defined in the Agreement) has occurred and is
continuing and that no such default or Event of Default will result from
the issuance of the Letter of Credit requested hereby.
Very truly yours,
ACXIOM CORPORATION
By: ____________________________
Title:___________________________
[Responsible Officer]
EXHIBIT K
LETTER OF CREDIT PARTICIPATION CERTIFICATE
This Letter of Credit Participation Certificate is issued
pursuant to Section 2.1B(e) of that certain Second Amended and Restated
Credit Agreement dated March ___, 1998, by and among Acxiom Corporation,
the banks listed on the signature pages thereof and Mercantile Bank
National Association, as administrative and documentation agent for the
Banks ("Agent"), as the same may from time to time be amended, modified,
extended or renewed (the "Credit Agreement"). All capitalized terms used
and not otherwise defined herein shall have the respective meanings
ascribed to them in the Credit Agreement.
Subject to the terms, provisions and conditions contained
in the Credit Agreement, Agent hereby issues to a Percent ( %) undivided
participation interest in all Letters of Credit issued by Agent from time
to time under the Credit Agreement (including, without limitation, an
undivided participation interest in the reimbursement risk relating to such
Letters of Credit and in all payments and Loans made by Agent in connection
with such Letters of Credit).
This Certificate may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were on the same instrument.
Executed this ______ day of , 19 .
------------ -----
MERCANTILE BANK
NATIONAL ASSOCIATION, as Agent
By:____________________________
Title: ________________________
The foregoing Letter of Credit Participation Certificate is
hereby accepted this ______ day of _____________, 19__ .
___________________________________
By: ________________________________
Title:______________________________
SCHEDULE 4.1(e)
This Schedule lists all actions, suits or proceedings
pending against or to the knowledge of the Company, threatened against the
Company in which there is a reasonable likelihood of recovery of an amount
in excess of $500,000.00, or any form of equitable relief.
None.
SCHEDULE 4.1(i)
Liens on Assets
1. First Commercial note payable - collateralized by mortgage on ASB-1
property.
2. Various capital leases - secured by equipment.
3. Convertible note payable - collateralized by letter of credit.
SCHEDULE 4.1(j)
List of All Subsidiaries of the Company
U. S. SUBSIDIARIES
Name Incorporated In Doing Business As
---- --------------- -----------------
Acxiom Asia, Ltd. Arkansas Acxiom Asia, Ltd.
Acxiom CDC, Inc. Arkansas Acxiom CDC, Inc.
Acxiom Children's Center, Inc. Arkansas Acxiom Children's Center, Inc.
Acxiom/Direct Media, Inc. Arkansas Acxiom/Direct Media
Acxiom Great Lakes Data Center, Inc. Arkansas Acxiom Great Lakes Data Center, Inc.
Acxiom Leasing Corporation Arkansas Acxiom Leasing Corporation
Acxiom RM-Tools, Inc. Arkansas Acxiom RM-Tools, Inc.
Acxiom RTC, Inc. Delaware Acxiom RTC, Inc.
Acxiom SDC, Inc. Arkansas Xxxxxxx Xxxxxx, An Acxiom Co.
Acxiom Transportation Services, Inc. Arkansas ATS; Conway Aviation, Inc.
BSA, Inc.*** New Jersey BSA
Catalog Marketing Services, Inc. Florida Shop the World by Mail
DQ Investment Corporation California AccuDat
DataQuick Information Systems, Inc. California DataQuick Information Systems, Inc.
Pro CD, Inc. Delaware Pro CD
Modern Mailers, Inc. Delaware*** Acxiom Mailing Services
U. K. SUBSIDIARIES
Name Incorporated In Doing Business As
Acxiom U.K., Ltd. United Kingdom Acxiom U.K., Ltd.
Generator Datamarketing Limited United Kingdom Generator Datamarketing Limited
Marketlead Services, Ltd. United Kingdom N/A
(Agency company of Acxiom U.K., Ltd.)
Southwark Computer Services, Ltd. United Kingdom N/A
(Agency company of Acxiom U.K., Ltd.)
Direct Media, Ltd. United Kingdom Direct Media