EXHIBIT 10(b)
SECOND AMENDMENT TO TERM CREDIT AGREEMENT
This Second Amendment to Term Credit Agreement (this "Second Amendment"), dated as of May 13, 2002, is
by and between Acxiom Corporation, a Delaware corporation (the "Borrower") and JPMorgan Chase Bank, successor in
interest by merger to The Chase Manhattan Bank (the "Lender").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lender are parties to that certain Term Credit Agreement dated as of
September 21, 2001 (as amended or otherwise modified from time to time, the "Credit Agreement") (unless otherwise
defined herein, all terms used herein with their initial letter capitalized shall have the meaning given such
term in the Credit Agreement); and
WHEREAS, pursuant to the Credit Agreement, the Lender has made the Loan to the Borrower; and
WHEREAS, the Borrower has advised the Lender that certain Defaults and Events of Default have occurred
under clauses (c) and (d) of Article VIII of the Credit Agreement as a result of (a) the Borrower guaranteeing
the obligations of Kidco Holdings, Inc. owing to Mercantile Bank of Arkansas National Association (as more fully
described in paragraph 2 of Exhibit A attached hereto), which guaranty obligations constitute Indebtedness not
permitted by Section 6.01 of the Credit Agreement; (b) the Borrower guaranteeing the obligations of Cope's
Aircraft Services, Inc. owing to First Community Bank (as more fully described in paragraph 3 of Exhibit A),
which guaranty obligations constitute Indebtedness not permitted by Section 6.01 of the Credit Agreement; (c) the
Borrower granting a Lien on substantially all of its personal property to Softech Financial in connection with a
lease agreement in violation of Section 6.02 of the Credit Agreement (as more fully described in paragraph 1 of
Exhibit A); (d) the Borrower's inadvertent failure to disclose at the closing of the Revolving Credit Agreement
and the First Amendment the existence of the Indebtedness described in paragraphs 2 and 3 of Exhibit A as
required by Section 3.04(b) of the Credit Agreement; and (e) the Borrower's inadvertent failure to disclose at
the closing of the Revolving Credit Agreement and the First Amendment the existence of the Lien described in
paragraph 1 of Exhibit A as required by Section 3.05(a) of the Credit Agreement (the "Existing Defaults" and the
covenants described in this paragraph, herein the "Violated Covenants"), and, in accordance with the Credit
Agreement, the Borrower has requested that the Lender waive the Existing Defaults; and
WHEREAS, the Borrower has further requested that the Lender amend certain provisions of the Credit
Agreement, and, subject to satisfaction of the conditions set forth herein, the Lender is willing to amend the
Credit Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows
effective as of the date hereof unless otherwise indicated:
Section 1. Amendments. In reliance on the representations, warranties, covenants and agreements contained
in this Second Amendment, and subject to the terms and conditions contained herein, the Credit Agreement is
hereby amended effective as of the date hereof in the manner provided in this Section 1.
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1.1 Additional Definition. Section 1.01 of the Credit Agreement is amended to add thereto in alphabetical
order the definition of "Second Amendment" which shall read in full as follows:
"Second Amendment" means that certain Second Amendment to Term Credit Agreement dated as of
May 13, 2002, between the Borrower and the Lender.
1.2 Amendments to Definitions. The definitions of "Intercreditor Agreement" and "Loan Documents" set forth
in Section 1.01 of the Credit Agreement are amended to read in full as follows:
"Intercreditor Agreement" means that certain Intercreditor Agreement, dated as of September 21,
2001, executed by and among the Borrower, the Guarantors, the Collateral Agent, the Revolver Agent, Bank of
America, N.A., as agent for the participants in the Synthetic Real Property Lease, the Lender and the Letter of
Credit Bank, as amended by that certain First Amendment to Intercreditor Agreement dated as of January 28, 2002,
and Second Amendment to Intercreditor Agreement dated as of May 13, 2002, and as the same may be further amended
or otherwise modified.
"Loan Documents" means this Agreement, the First Amendment, the Second Amendment, the Term
Notes, the Subsidiary Guaranty, the Security Agreement, the Mortgages, the Intercreditor Agreement and all other
certificates, agreements and other documents or instruments now or hereafter executed and/or delivered pursuant
to or in connection with the foregoing and any and all amendments, modifications, supplements, renewals,
extensions or restatements thereof.
1.3 Amendment to Debt Covenant. Section 6.01(a) of the Credit Agreement is amended to read in full as
follows:
"(a) The Borrower will not, and will not permit any Subsidiary to, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents and the Subordinated
Debt Documents;
(ii) Indebtedness existing on January 28, 2002 and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
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thereof or result in an earlier maturity date or decreased weighted average
life thereof; provided, that, the Indebtedness outstanding under or in
respect of the Senior Notes, the letter of credit securing the payment
thereof, and the May & Xxxx Notes is not permitted after May 31, 2002;
(iii)Indebtedness owed by a Subsidiary to the Borrower or owed by a
Subsidiary to its parent incurred in accordance with the restrictions
set forth in Section 6.04; provided that (A) the obligations of each
obligor of such Indebtedness must be subordinated in right of payment
to any liability such obligor may have for the obligations arising
hereunder from and after such time as any portion of the obligations
arising hereunder or under any other Loan Documents shall become due
and payable (whether at stated maturity, by acceleration or
otherwise), (B) such Indebtedness must be incurred in the ordinary
course of business or incurred to finance general corporate needs,
(C) such Indebtedness must be provided on terms customary for
intercompany borrowings among the Borrower and the Subsidiaries or
must be made on such other terms and provisions as the Lender may
reasonably require, and (D) the sum of the aggregate outstanding
amount of the obligations of Excluded Subsidiaries guaranteed pursuant
to clause 1.6(iv) below plus the aggregate outstanding principal
amount of the loans and advances made to Excluded Subsidiaries by the
Borrower and the Subsidiaries (such sum the "Excluded Subsidiary Loan
and Guaranty Amount") shall not at any time exceed the Dollar Amount
equal to $20,000,000 (the "Excluded Subsidiary Loan and Guaranty
Limit");
(iv) Guarantees by the Borrower or a Subsidiary of (A) Indebtedness of any
of its wholly owned direct Subsidiaries; (B) trade accounts payable
owed by any of its wholly owned direct Subsidiaries and arising in the
ordinary course of business; or (C) operating leases of any of its
wholly owned direct Subsidiaries entered into in the ordinary course
of business; provided that: (1) the Indebtedness guaranteed is
otherwise permitted hereunder; (2) no Default exists or would result
from such Guarantee; and (3) the Excluded Subsidiary Loan and Guaranty
Amount shall not exceed the Excluded Subsidiary Loan and Guaranty
Limit;
(v) Guarantees incurred in the ordinary course of business with respect to
surety and appeal bonds, performance and return-of-money bonds, and
other similar obligations not exceeding at any time outstanding a
Dollar Amount equal to $5,000,000 in aggregate liability;
(vi) Indebtedness constituting obligations to reimburse worker's
compensation insurance companies for claims paid by such companies on
the Borrower's or a Subsidiaries' behalf in accordance with the
policies issued to the Borrower and the Subsidiaries;
(vii)Indebtedness arising in connection with Hedging Agreements entered
into in the ordinary course of business to enable the Borrower or a
Subsidiary (A) to limit the market risk of holding currency in either
the cash or futures market, or (B) to fix or limit the Borrower's or
any Subsidiaries' interest expense;
(viii) the obligations arising under the Synthetic Real Property Lease, the
Synthetic Airplane Lease Facility and the Synthetic Equipment Lease
Facility; provided, however, notwithstanding anything to the contrary
herein or in the Revolving Credit Agreement, the amount of funding for
construction after August 14, 2001 under the Synthetic Real Property
Lease (excluding any fundings for construction under the Synthetic
Real Property Lease prior to August 14, 2001) shall not, at any time,
exceed $26,000,000 in aggregate amount;
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(ix) Indebtedness arising in connection with preferred Equity Interest
permitted to be issued in accordance with Section 6.01(b);
(x) Indebtedness for borrowed money not otherwise permitted under this
Section 6.01 of any Excluded Subsidiary provided that the aggregate
outstanding amount of all such Indebtedness shall not at any time
exceed the Dollar Amount equal to $5,000,000;
(xi) Indebtedness arising as a result of the licensing of software by the
Borrower and the Subsidiaries; and
(xii)the following Indebtedness which may only be created, incurred,
assumed or permitted to exist if no Default exists or would result
therefrom:
(A) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed
or capital assets (but excluding the acquisition of assets which
constitute a business unit of a Person), including Capital Lease
Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such
assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof or result in an earlier
maturity date or decreased weighted average life thereof;
provided that (1) such Indebtedness (other than any Indebtedness
incurred in connection with any sale and leaseback transactions
permitted hereby) is incurred prior to or within 90 days after
such acquisition or the completion of such construction or
improvement; (2) such Indebtedness does not exceed the amount of
the purchase price or the costs of construction or improvement,
as the case may be, of the applicable asset; and (3) after giving
proforma effect to such Indebtedness, the Borrower shall be in
compliance with Section 7.02 as of the most recently ended fiscal
quarter of the Borrower;
(B) Indebtedness (including Capital Lease Obligations) of the
Borrower incurred to refinance the Xxxxxx Facility and
extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof or
result in an earlier maturity date or decreased weighted average
life thereof; provided that (1) the aggregate principal amount
thereof does not exceed $45,000,000; (2) such Indebtedness does
not exceed the appraised value of the Xxxxxx Facility; (3) the
maturity date of such Indebtedness does not occur prior to the
Maturity Date; (4) after giving proforma effect to such
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Indebtedness, the Borrower shall be in compliance with Section
7.02 as of the most recently ended fiscal quarter of the
Borrower; and (5) the Borrower shall comply with Section 6.06 in
connection with the Net Proceeds of such financing;
(C) Indebtedness of any Person that becomes a Subsidiary after the
date hereof or is merged with or into the Borrower or a
Subsidiary in accordance with the permissions herein set forth;
provided that (1) such Indebtedness exists at the time such
Person becomes a Subsidiary or was so merged and is not created
in contemplation of or in connection with such Person becoming a
Subsidiary or merger; and (2)after giving proforma effect to such
Indebtedness and the EBITDAR of the Person who became a
Subsidiary, the Borrower shall be in compliance with Section 7.02
as of the most recently ended fiscal quarter of the Borrower;
(D) unsecured Indebtedness of the Borrower and of the Guarantors of
the type described in clauses (a), (b), (c), (e), and (l) of the
definition thereof, in addition to the Indebtedness permitted by
clauses (i) through (xi) of this Section 6.01(a) and the
foregoing clauses (A), (B), and (C); provided, that, after giving
proforma effect to the Indebtedness incurred under the
permissions of this clause (xii)(D), the Borrower shall be in
compliance with Section 7.02 as of the most recently ended fiscal
quarter of the Borrower and no Default shall exist as result
therefrom; and
(E) unsecured Indebtedness arising under Guarantees which are not
permitted under clauses (ii), (iv) and (v) of this
Section 6.01(a) provided that, after giving proforma effect to
the Indebtedness incurred under the permissions of this clause
(xii)(E): (i) the Borrower shall be in compliance with
Section 7.02 as of the most recently ended fiscal quarter of the
Borrower, and (ii) the aggregate amount of Indebtedness incurred
under the permissions of this clause (xii)(E) shall not exceed
$4,000,000."
1.4 Amendment to Asset Sales Covenant. Section 6.05(d) of the Credit Agreement is amended to read in full
as follows:
"(d) sales, transfers and other dispositions of assets that are not permitted by
any other clause of this Section 6.05 (such other sales, transfers and other dispositions
herein the "Dispositions"), if: (i) no Default exists or would result therefrom and (ii) after
giving effect to such Disposition, the aggregate book value of all such assets sold,
transferred or otherwise disposed of since January 28, 2002, under the permissions of this
Section 6.05(d) would not exceed a Dollar Amount equal to the greater of (1) $45,000,000, or
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(2) twelve percent (12%) of the Accumulated Asset Value, calculated as of the date of the
Disposition. Notwithstanding the foregoing, the Borrower may make a Disposition and the book
value of the assets shall not be required to be included in the foregoing computation if no
Default exists or would result from such Disposition and (A) such Disposition is pursuant to
the Synthetic Equipment Lease Facility, Synthetic Real Property Lease or another sale and
leaseback transaction permitted under Section 6.06, or (B) the Borrower shall, within 180 days
after such Disposition, invest the Net Proceeds thereof in Collateral for use in the business
of the Borrower and the Subsidiaries;
provided that all sales, transfers, leases and other dispositions permitted hereby (other than
those permitted by Section 6.05(b) above) shall be made for fair value. For purposes of this
Section 6.05, "Accumulated Asset Value" means, as of the date of determination, the sum of
(a) the Asset Value (as defined in Section 7.04) as of December 31, 2001 plus (b) the increases
(or minus the decreases) in the Asset Value since December 31, 2001 as reflected in the
Borrower's consolidated balance sheet for each completed calendar year occurring subsequent to
December 31, 2001 prior to the date of determination."
1.5 Amendment to Leverage Ratio Covenant. The definition of "Total Indebtedness" contained in Section 7.02
of the Credit Agreement is amended to read in full as follows:
"Total Indebtedness" means, at the time of determination, the sum of the following
determined for the Borrower and the Subsidiaries on a consolidated basis (without
duplication): (a) the amount of the outstanding principal balance of the Loan under this
Agreement as of the date of determination; plus (b) all obligations for borrowed money, other
than the Loan, or with respect to deposits or advances of any kind; plus (c) all obligations of
such Person evidenced by bonds, notes, debentures, or other similar instruments, other than the
Loan; plus (d) all obligations of such Person upon which interest charges are customarily paid,
other than the Loan; plus (e) all obligations of such Person under conditional sale or other
title retention agreements relating to property acquired by such Person; plus (f) all
obligations of such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of business); plus (g) all
obligations of others secured by (or for which the holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by
such Person, whether or not the obligations secured thereby have been assumed (provided that
for purposes of this clause (g) the amount of any such Indebtedness shall be deemed not to
exceed the higher of the market value or the book value of such assets); plus (h) all Capital
Lease Obligations; plus (i) all obligations, contingent or otherwise, of such Person: (1) as an
account party in respect of letters of credit and letters of guaranty; (2) arising under all
Guarantees of such Person incurred under the permissions of Section 6.01(a)(xii)(E); and
(3) arising under the Guarantees of such Person described under item C on Schedule 6.01; plus
(j) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances;
plus (k) all obligations, contingent or otherwise, for the payment of money under any
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non-compete, consulting or similar agreement entered into with the seller of a Target or any
other similar arrangements providing for the deferred payment of the purchase price for an
acquisition; plus (l) all Indebtedness arising in connection with Hedging Agreements and
preferred Equity Interests; plus (m) the net present value of all future payments to be made
under all Synthetic Leases (excluding the Synthetic Real Property Lease) and any other
operating leases (calculated by discounting all payments from their respective due dates to the
date of determination in accordance with accepted financial practice, on the basis of a 360-day
year and at a discount factor equal to 8%); plus (n) the total outstanding fundings under the
Synthetic Real Property Lease; minus (o) to the extent included in clauses (a) through (n) of
this definition, the amount reflected on the Borrower's consolidated balance sheet as software
license liabilities; minus (p) the actual outstanding principal amount of the May & Xxxx Notes
and the Senior Notes; provided that, in determining "Total Indebtedness," the amounts described
in clause (p) shall only be subtracted if "Total Indebtedness" is being calculated during the
period after the Borrower has received the proceeds of the Subordinated Debt but prior to the
earlier of (i) the first date when the May & Xxxx Notes are required to be redeemed and the
Senior Notes prepaid as determined herein, or (ii) the first date when the May & Xxxx Notes are
actually redeemed or converted in full and the Senior Notes actually prepaid either directly or
as a result of a draw on the letter of credit securing the payment thereof. The deferred
purchase price of property or services to be paid through earnings of the purchaser to the
extent such amount is not characterized as liabilities in accordance with GAAP shall not be
included in "Total Indebtedness."
1.6 Revised Schedules. Schedules 6.01 and 6.02 of the Credit Agreement shall be replaced in their entirety
with Schedules 6.01 and 6.02 attached hereto and made a part hereof.
Section 2. Limited Waiver and Consent. In reliance on the representations, warranties, covenants and
agreements contained in this Second Amendment, the Lender hereby waives the Existing Defaults (such waiver being
referred to herein as the "Limited Waiver"); provided, that the Limited Waiver is expressly limited as follows:
(x) such waiver is limited solely to the Limited Waiver, (y) such Limited Waiver shall not be applicable to any
provision of any Loan Document other than as expressly set forth herein, and (z) such Limited Waiver is a
limited, one-time waiver and nothing contained herein shall obligate the Lender to grant any additional or future
waiver with respect to any provision of any Loan Document. Additionally, to induce the Lender to grant such
Limited Waiver, the Borrower agrees that: (a) the Lien described on Schedule 6.02 in the Borrower's assets in
favor of Bankers/Softech Division of EAB Leasing Corp. shall not at any time secure debt or other obligations in
an aggregate amount in excess of $2,000,000; and (b) at no time shall both of the following have occurred: (i)
Bankers/Softech Division of EAB Leasing Corp. or any Affiliate thereof have a perfected security interest in any
collateral or asset of the Borrower or any Subsidiary (other than the property that is leased under the
Borrower's lease agreement with EAB Leasing Corp.) and (ii) any judgment have been rendered against the Borrower
or any Subsidiary in favor EAB Leasing Corp. or any of its Affiliates which shall remain undischarged for a
period of five (5) or more Business Days during which execution shall not be effectively stayed, or any action
(including without limitation self-help remedies) shall be legally taken by EAB Leasing Corp. or any of its
Affiliates to attach, seize or levy upon any collateral or assets of the Borrower or any Subsidiary (other than
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the property that is leased under the Borrower's lease agreement with EAB Leasing Corp.) to enforce or collect
the obligations of the Borrower or any Subsidiary. Furthermore, the Borrower agrees that the waiver specifically
described herein shall not constitute and shall not be deemed a waiver of any other Default or Event of Default,
whether arising as a result of the further violation the Violated Covenants or otherwise, or a waiver of any
rights or remedies arising as a result of such other Defaults or Events of Default. The failure to comply with
the Violated Covenants at any time other than as described above in the definition of Existing Defaults shall
constitute an Event of Default. The failure of any representation, warranty or certification made or deemed made
by or on behalf of the Borrower in connection with any Loan Document shall prove to have been incorrect in any
material respect when made or deemed made shall constitute an Event of Default.
Section 3. Conditions Precedent. The amendments to the Credit Agreement contained in Section 1 hereof
shall become effective as of the date hereof (herein referred to as the "Effective Date") provided each of the
following conditions is satisfied (or waived in writing by the Lender), on or prior to such date:
3.1 Amendment. The Lender (or its counsel) shall have received from the Borrower and each Guarantor a
counterpart of this Second Amendment signed on behalf of such party.
3.2 Amendment to Intercreditor Agreement. The Lender shall have received from each required party thereto
either (a) a counterpart of that certain Second Amendment to Intercreditor Agreement, signed on behalf of each
such required party, or (b) written evidence satisfactory to the Lender that each such party has signed a
counterpart of such amendment.
3.3 Revolving Credit Agreement. The Lender shall have received a fully executed copy of that certain Waiver
and First Amendment to Amended and Restated Credit Agreement (or written evidence satisfactory to the Lender that
such agreement has been fully executed).
3.4 Fees and Expenses. The Lender shall have received all fees and other amounts due and payable on or
prior to the Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower
hereunder or under any other Loan Document.
3.5 Representations and Warranties. The representations and warranties of the Borrower set forth in
Section 4 hereof shall be true and correct.
3.6 No Default. After giving effect to the amendments set forth in Section 1 hereof, and the Limited Waiver
set forth in Section 2 hereof, no Default shall have occurred and be continuing.
The Lender shall notify the Borrower of the Effective Date, and such notice shall be conclusive and binding.
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Section 4.Representations and Warranties of the Borrower. To induce the Lender to enter into this Second
Amendment, the Borrower hereby represents and warrants to the Lender as follows:
4.1 Reaffirmation of Representations and Warranties. Each representation and warranty of the Borrower and
each Guarantor contained in the Credit Agreement and the other Loan Documents is true and correct on the date
hereof after giving effect to the amendments set forth in Section 1 hereof and the Limited Waiver set forth in
Section 2 hereof.
4.2 Due Authorization, No Conflicts. The execution, delivery and performance by the Borrower of this Second
Amendment are within the Borrower's corporate powers, have been duly authorized by necessary action, require no
action by or in respect of, or filing with, any governmental body, agency or official and do not violate or
constitute a default under any provision of applicable law or any material agreement binding upon the Borrower or
its Subsidiaries, or result in the creation or imposition of any Lien upon any of the assets of the Borrower or
its Subsidiaries except to the extent permitted by the Loan Documents.
4.3 Validity and Binding Effect. This Second Amendment constitutes the valid and binding obligations of the
Borrower enforceable in accordance with its terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditor's rights generally, and (b) the availability of
equitable remedies may be limited by equitable principles of general application.
4.4 No Defenses. The Borrower has no defenses to payment, counterclaim or rights of set-off with respect to
the indebtedness, obligations and liabilities of the Borrower under the Loan Documents existing on the date
hereof.
4.5 Absence of Defaults. After giving effect to the amendments set forth in Section 1 hereof, and the
Limited Waiver set forth in Section 2 hereof, neither a Default nor an Event of Default has occurred which is
continuing.
Section 5. Miscellaneous.
5.1 Reaffirmation of Loan Documents. Any and all of the terms and provisions of the Credit Agreement and
the other Loan Documents shall, except as amended and modified hereby, remain in full force and effect. The
Borrower hereby agrees that the amendments and modifications herein contained shall in no manner adversely affect
or impair the indebtedness, obligations and liabilities of the Borrower under the Loan Documents.
5.2 Parties in Interest. All of the terms and provisions of this Second Amendment shall bind and inure to
the benefit of the parties hereto and their respective successors and assigns.
5.3 Counterparts. This Second Amendment may be executed in counterparts, and all parties need not execute
the same counterpart; however, no party shall be bound by this Second Amendment until counterparts hereof have
been executed by the Borrower and the Lender. Facsimiles shall be effective as originals.
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5.4 Complete Agreement. THIS SECOND AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN OR AMONG THE PARTIES.
5.5 Headings. The headings, captions and arrangements used in this Second Amendment are, unless specified
otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of this Second
Amendment, nor affect the meaning thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly executed by their
respective authorized officers on the date and year first above written.
[Signature Pages Follow]
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SIGNATURE PAGE
TO
SECOND AMENDMENT TO TERM CREDIT AGREEMENT
BY AND BETWEEN
ACXIOM CORPORATION
AND JPMORGAN CHASE BANK
[Signature Page]
ACXIOM CORPORATION
By: /S/ XXXXXX X. XXXXXXX
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Corporate Finance Leader
JPMORGAN CHASE BANK
By: /S/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx, Vice President
By: XX Xxxxxx Xxxxx Bank
Guarantor Consent
Each of the undersigned Guarantors (i) consent and agree to this Second Amendment, and (ii) agree that
the Loan Documents to which it is a party shall remain in full force and effect and shall continue to be the
legal, valid and binding obligation of such Guarantor enforceable against it in accordance with their respective
terms.
ACXIOM ASIA, LTD.
ACXIOM CDC, INC.
ACXIOM/DIRECT MEDIA, INC.
ACXIOM/MAY & XXXX, INC.
ACXIOM PROPERTY DEVELOPMENT, INC.
ACXIOM/PYRAMID INFORMATION SYSTEMS, INC.
ACXIOM RM-TOOLS, INC.
ACXIOM SDC, INC.
ACXIOM TRANSPORTATION SERVICES, INC.
GIS INFORMATION SYSTEMS, INC.
ACXIOM UWS, LTD.
By: /S/ XXXXXX X. XXXXXXX
-------------------------------------------
Xxxxxx X. Xxxxxxx, Vice President and
Assistant Treasurer of all Guarantors
EXHIBIT A
to
Second Amendment to Term Credit Agreement
Existing Defaults
1. Acxiom Corporation entered into a lease agreement, dated as of September 22, 1999, with Softech
Financial ("Softech") pursuant to which Acxiom Corporation granted to Softech a security interest in
substantially all of the personal property of Acxiom Corporation. The debt or other obligations secured by such
security interest does not exceed a maximum amount equal to $2,000,000.
2. Acxiom Corporation entered into that certain Continuing Payment and Performance Guaranty dated as of
October 30, 1998, as amended, pursuant to which Acxiom Corporation unconditionally guaranteed the obligation of
Kidco Holdings, LLC ("Kidco") to make timely payments of the principal amount owed, plus accrued interest, when
the same become due, under that certain Promissory Note, dated as of October 30, 1998, as amended, between
Mercantile Bank of Arkansas National Association, as lender, and Kidco, as borrower, in the principal amount of
$1,184,500.00. As of March 22, 2002, the balance of such loan was $1,138,176.00. It is currently contemplated
that Kidco's obligations under the Promissory Note referenced above will be refinanced at a new financial
institution. Therefore, as a result of such re-financing, each of the above-referenced Payment and Performance
Guarantee and Promissory Note will be restated in its entirety; provided, that the outstanding balance of the
refinanced Promissory Note (and resulting guarantee obligations of Acxiom Corporation) will not exceed in the
aggregate $1,184,500.
3. Acxiom Corporation entered into a guaranty arrangement with First Community Bank ("First Community")
pursuant to which Acxiom Corporation guaranteed the obligation of Cope's Aircraft Services, Inc. ("Cope's") to
make timely payments of the principal amount owed, when the same become due, under a loan arrangement from First
Community to Cope's in the principal amount of $280,000.00. As of February 13, 2002, the balance of such loan was
$238,916.65.
A-1
SCHEDULE 6.01
to
ACXIOM CORPORATION
TERM CREDIT AGREEMENT
Existing Indebtedness and Preferred Equity Interest
A. Existing Indebtedness
======= ========================================== ===================== =============================================
Principal
Outstanding as of
Description December 31, 2001 Liens
======= ========================================== ===================== =============================================
1. Subordinated Debt Not to exceed Unsecured
$205,000,000
(outstanding as of
the Effective Date
of the First
Amendment)
======= ========================================== ===================== =============================================
2. May & Xxxx Notes $114,998,000 Unsecured
------- ------------------------------------------ --------------------- ---------------------------------------------
3. 6.92% Senior Notes due March 30, 2007 $25,714,286 Secured pursuant to Intercreditor Agreement
------- ------------------------------------------ --------------------- ---------------------------------------------
4. Revolver Debt $175,000,000 1 Secured pursuant to Intercreditor Agreement
------- ------------------------------------------ --------------------- ---------------------------------------------
5. Capital Lease Obligations $13,248,000 Secured by Lien on land located in Downers
Grove, Illinois and the related building
and other related real and personal
property assets of Acxiom/May & Xxxx, Inc.
------- ------------------------------------------ --------------------- ---------------------------------------------
6. Software license liabilities $89,655,000 Interest is software licenses arising under
related agreements.
------- ------------------------------------------ --------------------- ---------------------------------------------
7. Construction loan $9,211,000 Secured by Lien on land located in Conway,
Arkansas and the related building and other
related real and personal assets of Borrower
------- ------------------------------------------ --------------------- ---------------------------------------------
8. Mortgage loan $2,059,000 Secured by Lien on land located in Conway,
Arkansas and the related building and other
related real and personal assets of Borrower
------- ------------------------------------------ --------------------- ---------------------------------------------
9. Aircraft lease Agreement with General $11,222,000 2 Secured by Lien on Aircraft (as defined in
Electric Capital Corporation the Aircraft Lease Agreement)
------- ------------------------------------------ --------------------- ---------------------------------------------
10. Other capital leases, debt and long-term $668,000 Secured by various Liens on assets of
liabilities Borrower and/or its Subsidiaries with a
book value of less than $500,000.
------- ------------------------------------------ --------------------- ---------------------------------------------
11. Synthethic lease with General Electric $159,699,0002 Secured by liens on equipment
Capital Corporation
------- ------------------------------------------ --------------------- ---------------------------------------------
12. Chenal Joint Venture building loan to $8,457,000 Secured by lien on Chenal building
partnership in which Borrower is a
general partner
------- ------------------------------------------ --------------------- ---------------------------------------------
Page 6.01 - 1
13. Riverdale Joint Venture building loan $4,554,000 Secured by lien on Acxiom Plaza building
partnership in which Borrower is a (amount represents total loan)
general partner
------- ------------------------------------------ --------------------- ---------------------------------------------
14. Outstanding letters of credit $10,658,000 unsecured
------- ------------------------------------------ --------------------- ---------------------------------------------
15. Capital Lease obligations resulting from $4,035,000; balance Secured by liens on equipment underlying
refinancing of sale-leaseback is expected to lease.
transaction with Technology Investment increase to no more
Partners, LLC than $18,000,000
upon receiving
remaining funding
======= ========================================== ===================== =============================================
--------
1 Amount represents total commitment under Revolving Credit Agreement.
2 Amount represents total amount drawn through December 31, 2001.
B. Preferred Equity Interests.
1. Acxiom CDC, Inc. has issued an outstanding 60 shares of preferred stock (50 shares issued to
Borrower and 10 shares to Trans Union LLC). All outstanding common and preferred stock of Acxiom CDC, Inc. has
been pledged to Trans Union LLC.
C. Guarantees
1. Acxiom Corporation entered into that certain Continuing Payment and Performance Guaranty dated
as of October 30, 1998, as amended, pursuant to which Acxiom Corporation unconditionally guaranteed the
obligation of Kidco Holdings, LLC ("Kidco") to make timely payments of the principal amount owed, plus accrued
interest, when the same become due, under that certain Promissory Note, dated as of October 30, 1998, as amended,
between Mercantile Bank of Arkansas National Association, as lender, and Kidco, as borrower, in the principal
amount of $1,184,500.00. As of March 22, 2002, the balance of such loan was $1,138,176.00. It is currently
contemplated that Kidco's obligations under the Promissory Note referenced above will be refinanced at a new
financial institution. Therefore, as a result of such re-financing, each of the above-referenced Payment and
Performance Guarantee and Promissory Note will be restated in its entirety; provided, that the outstanding
balance of the refinanced Promissory Note (and resulting guarantee obligations of Acxiom Corporation) will not
exceed in the aggregate $1,184,500.
2. Acxiom Corporation entered into a guaranty arrangement with First Community Bank ("First
Community") pursuant to which Acxiom Corporation guaranteed the obligation of Cope's Aircraft Services, Inc.
("Cope's") to make timely payments of the principal amount owed, when the same become due, under a loan
arrangement from First Community to Cope's in the principal amount of $280,000.00. As of February 13, 2002, the
balance of such loan was $238,916.65.
6.01-2
SCHEDULE 6.02
to
ACXIOM CORPORATION
TERM CREDIT AGREEMENT
Existing Liens
1. Liens described in Schedule 6.01
2. Lien against assets and capital stock of Acxiom CDC, Inc. in favor of Trans Union LLC to secure
performance of services (UCC-1 originally filed August 31, 1992; continuation filed March 12, 1997)
3. Liens against assets and capital stock of Acxiom Corporation in favor of Bankers/Softech Division of EAB
Leasing Corp.
Page 6.02 - 1
