EXHIBIT 10(a) WAIVER AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT THIS WAIVER AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the "Amendment"), dated as of May 13, 2002 is among ACXIOM CORPORATION, a Delaware Corporation (the "Borrower"), the lenders party hereto, JPMORGAN CHASE BANK, as the agent (the "Agent") and BANK OF AMERICA, N.A., as syndication agent. RECITALS: A. The Borrower, the Agent, Bank of America, N.A., as syndication agent, and certain lenders have entered into that certain Amended and Restated Credit Agreement dated as of January 28, 2002 (as amended or otherwise modified from time to time, the "Agreement"). B. The Borrower has advised the Agent and the Lenders that certain Defaults and Events of Default have occurred under clauses (c) and (d) of Article VIII of the Agreement as a result of (a) the Borrower guaranteeing the obligations of Kidco Holdings, Inc. owing to Mercantile Bank of Arkansas National Association (as more fully described in paragraph 2 of Exhibit A attached hereto), which guaranty obligations constitute Indebtedness not permitted by Section 6.01 of the Agreement; (b) the Borrower guaranteeing the obligations of Cope's Aircraft Services, Inc. owing to First Community Bank (as more fully described in paragraph 3 of Exhibit A), which guaranty obligations constitute Indebtedness not permitted by Section 6.01 of the Agreement; (c) the Borrower granting a Lien on substantially all of its personal property to Softech Financial in connection with a lease agreement in violation of Section 6.02 of the Agreement (as more fully described in paragraph 1 of Exhibit A); (d) the Borrower's inadvertent failure to disclose at the closing of the Agreement the existence of the Indebtedness described in paragraphs 2 and 3 of Exhibit A as required by Section 3.04(b) of the Agreement; and (e) the Borrower's inadvertent failure to disclose at the closing of the Agreement the existence of the Lien described in paragraph 1 of Exhibit A as required by Section 3.05(a) of the Agreement (the "Existing Defaults" and the covenants described in this paragraph, herein the "Violated Covenants"). In accordance with the Agreement, the Borrower has requested that the Required Lenders waive the Existing Defaults. C. The Borrower has requested that the Agent and the Lenders amend certain provisions of the Agreement. Subject to satisfaction of the conditions set forth herein, the Agent and the Lenders party hereto are willing to amend the Agreement as herein set forth. NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows effective as of the date hereof unless otherwise indicated: ARTICLE I. Definitions Section 1.1. Definitions. Capitalized terms used in this Amendment, to the extent not otherwise defined herein, shall have the same meanings as in the Agreement, as amended hereby. 1ARTICLE II. Amendments Section 2.1. Amendment to Section 6.01. Clause (a) of Section 6.01 of the Agreement is amended as follows: (a) The reference to the term "Guaranties" in clause (v) is amended to read as "Guarantees"; and (b) The period at the end of clause (xii)(D) is replaced with the word "and"; and a new clause (E) is added to clause (xii) and shall read in its entirety as follows: (E) Unsecured Indebtedness arising under Guarantees which are not permitted under clauses (ii), (iv) and (v) of this Section 6.01(a) provided that, after giving proforma effect to the Indebtedness incurred under the permissions of this clause (xii)(E): (i) the Borrower shall be in compliance with Section 7.02 as of the most recently ended fiscal quarter of the Borrower, and (ii) the aggregate amount of Indebtedness incurred under the permissions of this clause (xii)(E) shall not exceed $4,000,000. Section 2.2. Amendment to Section 6.05. Clause (d) of Section 6.05 of the Agreement is amended to add the phrase "no Default exists or would result from such Disposition and" after the word "if" and before the symbol "(1)" in the second sentence thereof. Section 2.3. Amendment to Section 7.02. Clause (i) of the definition of "Total Indebtedness" in Section 7.02 of the Agreement is amended in its entirety to read as follows: (i) all obligations, contingent or otherwise, of such Person: (i) as an account party in respect of letters of credit and letters of guaranty; (ii) arising under all Guarantees of such Person incurred under the permissions of Section 6.01(a)(xii)(E); and (iii) arising under the Guarantees of such Person described under item C on Schedule 6.01; Section 2.4. Amendment to Schedule 6.01. Schedule 6.01 to the Agreement is amended to add the information described on Schedule 6.01 hereto. Section 2.5. Amendment to Schedule 6.02. Schedule 6.02 to the Agreement is amended in its entirety to read as Schedule 6.02 attached hereto. ARTICLE III. Waiver Section 3.1. Waiver. Subject to the satisfaction of the conditions precedent described in Article IV hereof, each of the undersigned Lenders waives the Existing Defaults and agrees not to exercise any rights or remedies available as a result of the occurrence thereof. Section 3.2. Limitations on Waiver. To induce the Required Lenders to agree to the terms of Section 3.1, the Borrower agrees that: (a) the Lien described on Schedule 6.02 in the Borrower's assets in favor of Bankers/Softech Division of EAB Leasing Corp. shall not at any time secure debt or other obligations in an aggregate amount in excess of $2,000,000; and (b) at no time shall both of the following have occurred: (i) Bankers/Softech Division of EAB Leasing Corp. or any Affiliate thereof have a perfected security interest in any 2 collateral or asset of the Borrower or any Subsidiary (other than the property that is leased under the Borrower's lease agreement with EAB Leasing Corp.) and (ii) any judgment have been rendered against the Borrower or any Subsidiary in favor EAB Leasing Corp. or any of its Affiliates which shall remain undischarged for a period of five (5) or more Business Days during which execution shall not be effectively stayed, or any action (including without limitation self-help remedies) shall be legally taken by EAB Leasing Corp. or any of its Affiliates to attach, seize or levy upon any collateral or assets of the Borrower or any Subsidiary (other than the property that is leased under the Borrower's lease agreement with EAB Leasing Corp.) to enforce or collect the obligations of the Borrower or any Subsidiary. Furthermore, the Borrower agrees that the waiver specifically described herein shall not constitute and shall not be deemed a waiver of any other Default or Event of Default, whether arising as a result of the further violation the Violated Covenants or otherwise, or a waiver of any rights or remedies arising as a result of such other Defaults or Events of Default. The failure to comply with the Violated Covenants at any time other than as described above in the definition of Existing Defaults shall constitute an Event of Default. The failure of any representation, warranty or certification made or deemed made by or on behalf of the Borrower in connection with any Loan Document shall prove to have been incorrect any material respect when made or deemed made shall constitute an Event of Default. ARTICLE IV. Miscellaneous Section 4.1. Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Agreement and except as expressly modified and superseded by this Amendment, the terms and provisions of the Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force and effect. The Borrower, the Agent and the Lenders agree that the Agreement as amended hereby and the other Loan Documents shall continue to be legal, valid, binding and enforceable in accordance with their respective terms. For all matters arising prior to the effective date of this Amendment, the Agreement (as unmodified by this Amendment) shall control. Section 4.2. Representations and Warranties; Release. The Borrower hereby represents and warrants to the Agent and the Lenders as follows: (a) after giving effect to this Amendment, no Default or Event of Default exists; (b) the information contained in Exhibit A hereto is true, correct, and complete, and (c) after giving effect to this Amendment, the representations and warranties set forth in the Loan Documents are true and correct on and as of the date hereof with the same effect as though made on and as of such date except with respect to any representations and warranties limited by their terms to a specific date. IN ADDITION, TO INDUCE THE AGENT AND THE LENDERS TO AGREE TO THE TERMS OF THIS AMENDMENT, THE BORROWER AND EACH GUARANTOR (BY ITS EXECUTION BELOW) REPRESENTS AND WARRANTS THAT AS OF THE DATE OF ITS EXECUTION OF THIS AMENDMENT THERE ARE NO CLAIMS OR OFFSETS AGAINST OR RIGHTS OF RECOUPMENT WITH RESPECT TO OR DEFENSES OR COUNTERCLAIMS TO ITS OBLIGATIONS UNDER THE LOAN DOCUMENTS AND IN ACCORDANCE THEREWITH IT: (A) WAIVER. WAIVES ANY AND ALL SUCH CLAIMS, OFFSETS, RIGHTS OF RECOUPMENT, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING PRIOR TO THE DATE OF ITS EXECUTION OF THIS AMENDMENT AND (B) RELEASE. RELEASES AND DISCHARGES THE AGENT AND THE LENDERS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, 3 EMPLOYEES, AGENTS, SHAREHOLDERS, AFFILIATES AND ATTORNEYS (COLLECTIVELY THE "RELEASED PARTIES") FROM ANY AND ALL OBLIGATIONS, INDEBTEDNESS, LIABILITIES, CLAIMS, RIGHTS, CAUSES OF ACTION OR DEMANDS WHATSOEVER, WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, IN LAW OR EQUITY, WHICH THE BORROWER OR ANY GUARANTOR EVER HAD, NOW HAS, CLAIMS TO HAVE OR MAY HAVE AGAINST ANY RELEASED PARTY ARISING PRIOR TO THE DATE HEREOF AND FROM OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY. Section 4.3. Survival of Representations and Warranties. All representations and warranties made in this Amendment shall survive the execution and delivery of this Amendment, and no investigation by Agent or any Lender or any closing shall affect the representations and warranties or the right of the Agent or any Lender to rely upon them. Section 4.4. Reference to Agreement. Each of the Loan Documents, including the Agreement and any and all other agreements, documents, or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Agreement as amended hereby, are hereby amended so that any reference in such Loan Documents to the Agreement shall mean a reference to the Agreement as amended hereby. Section 4.5. Expenses of Lender. As provided in the Agreement, Borrower agrees to pay on demand all costs and expenses incurred by the Agent in connection with the preparation, negotiation, and execution of this Amendment, including without limitation, the costs and fees of the Agent's legal counsel. Section 4.6. Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable. Section 4.7. Applicable Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Texas and the applicable laws of the United States of America. Section 4.8. Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of the Agent, each Lender and the Borrower and their respective successors and assigns, except Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of the Lenders. Section 4.9. Counterparts. This Amendment may be executed in one or more counterparts and on telecopy counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same agreement. Section 4.10. Effect of Waiver. No consent or waiver, express or implied, by the Agent or any Lender to or for any breach of or deviation from any covenant, condition or duty by the Borrower or any Guarantor shall be deemed a consent or waiver to or of any other breach of the same or any other covenant, condition or duty. Section 4.11. Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment. 4 Section 4.12. ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. Section 4.13. Required Lenders. The Agreement may be modified as provided in this Amendment with the agreement of the Required Lenders which means Lenders having fifty-one percent (51%) of the sum of the total Revolving Exposures and unused Revolving Commitment (such percentage applicable to a Lender, herein such Lender's "Required Lender Percentage"). For purposes of determining the effectiveness of this Amendment, each Lender's Required Lender Percentage is set forth on Schedule 4.13 hereto. Executed as of the date first written above. ACXIOM CORPORATION, as the Borrower By: /s/ Dathan A. Gaskill --------------------------------------- Name: Dathan A. Gaskill Title: Corporate Finance Leader 5 JPMORGAN CHASE BANK, as the Agent, the Issuing Bank, the Swingline Lender and as a Lender By: /s/ Michael J. Lister --------------------------------------- Michael J. Lister Vice President BANK OF AMERICA, N.A., as syndication agent and as a Lender By: /s/ B. Kenneth Burton, Jr. --------------------------------------- Name: B. Kenneth Burton, Jr. Title: Vice President U.S. BaNK National ASSOCIATION (formerly Firstar Bank N.A.), as a co-administrative agent and as a Lender By: /s/ Eric Hartman --------------------------------------- Name: Eric Hartman Title: Vice President THE BANK OF NOVA SCOTIA, as co-agent and as a Lender By: --------------------------------------- Name: --------------------------------------- Title: --------------------------------------- SUNTRUST BANK, as co-agent and as a Lender By: /s/ Leonard L. McKinnon --------------------------------------- Name: Leonard L. McKinnon --------------------------------------- Title: Director --------------------------------------- WACHOVIA BANK, N.A., as co-agent and as a Lender By: /s/ Daniel Evans --------------------------------------- Name: Daniel Evans --------------------------------------- Title: Managing Director --------------------------------------- 6 ABN AMRO BANK N.V., as co-agent and as a Lender By: /s/ Maria Vickroy-Peralta --------------------------------------- Name: Maria Vickroy-Peralta --------------------------------------- Title: Senior Vice President and Head --------------------------------------- By: /s/ Xiaochuan Zhang --------------------------------------- Name: Xiaochuan Zhang --------------------------------------- Title: Assistant Vice President --------------------------------------- Union Planters BANK, N.A. By: --------------------------------------- Name: --------------------------------------- Title: --------------------------------------- 7 Guarantor Consent Each of the undersigned Guarantors: (i) consent and agree to this Amendment, including, without limitation, Section 4.2, and (ii) agree that the Loan Documents to which it is a party shall remain in full force and effect and shall continue to be the legal, valid and binding obligation of such Guarantor enforceable against it in accordance with their respective terms. GUARANTORS: Acxiom CDC, Inc. Acxiom / May & Speh, Inc. Acxiom RM-Tools, Inc. ACXIOM ASIA, LTD. ACXIOM PROPERTY DEVELOPMENT, INC. ACXIOM / PYRAMID INFORMATION SYSTEMS, INC. ACXIOM SDC, INC. ACXIOM TRANSPORTATION SERVICES, INC. ACXIOM / DIRECT MEDIA, INC. GIS INFORMATION SYSTEMS, INC. ACXIOM UWS, LTD. By: /s/ Jerry C. Jones --------------------------------------- Jerry C. Jones, Authorized Officer 8 SCHEDULE 4.13 to WAIVER AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT Required Lenders ================================================== ========================= ========================================= Lenders Agreeing to First Amendment (insert % from prior column if Lender Required Lender signs Amendment then total % in this Lender Percentage Held column) ================================================== ========================= ========================================= JPMorgan Chase Bank 20.00000000% 20.00000000% - -------------------------------------------------- ------------------------- ----------------------------------------- U.S. Bank National Association 14.28571429% 14.28571429% - -------------------------------------------------- ------------------------- ----------------------------------------- Bank of America, N.A. 14.28571429% 14.28571429% - -------------------------------------------------- ------------------------- ----------------------------------------- ABN AMRO Bank, N.V. 11.42857143% 11.42857143% - -------------------------------------------------- ------------------------- ----------------------------------------- SunTrust Bank 11.42857143% 11.42857143% - -------------------------------------------------- ------------------------- ----------------------------------------- The Bank of Nova Scotia 11.42857143% - -------------------------------------------------- ------------------------- ----------------------------------------- Wachovia Bank, N.A. 14.28571429% 14.28571429% - -------------------------------------------------- ------------------------- ----------------------------------------- Union Planters Bank, N.A. 2.85714286% - -------------------------------------------------- ------------------------- ----------------------------------------- TOTAL 100.00% 85.7136286% ================================================== ========================= ========================================= SCHEDULE 6.01 to Waiver and First Amendment to Amended and Restated Credit Agreement C. Guarantees 1. Acxiom Corporation entered into that certain Continuing Payment and Performance Guaranty dated as of October 30, 1998, as amended, pursuant to which Acxiom Corporation unconditionally guaranteed the obligation of Kidco Holdings, LLC ("Kidco") to make timely payments of the principal amount owed, plus accrued interest, when the same become due, under that certain Promissory Note, dated as of October 30, 1998, as amended, between Mercantile Bank of Arkansas National Association, as lender, and Kidco, as borrower, in the principal amount of $1,184,500.00. As of March 22, 2002, the balance of such loan was $1,138,176.00. It is currently contemplated that Kidco's obligations under the Promissory Note referenced above will be refinanced at a new financial institution. Therefore, as a result of such re-financing, each of the above-referenced Payment and Performance Guarantee and Promissory Note will be restated in its entirety; provided, that the outstanding balance of the refinanced Promissory Note (and resulting guarantee obligations of Acxiom Corporation) will not exceed in the aggregate $1,184,500. 2. Acxiom Corporation entered into a guaranty arrangement with First Community Bank ("First Community") pursuant to which Acxiom Corporation guaranteed the obligation of Cope's Aircraft Services, Inc. ("Cope's") to make timely payments of the principal amount owed, when the same become due, under a loan arrangement from First Community to Cope's in the principal amount of $280,000.00. As of February 13, 2002, the balance of such loan was $238,916.65. SCHEDULE 6.02 to Waiver and First Amendment to Amended and Restated Credit Agreement Existing Liens 1. Liens relating to the Indebtedness described in Schedule 6.01 2. Liens against assets and capital stock of Acxiom CDC, Inc. in favor of Trans Union LLC to secure performance of services (UCC-1 originally filed August 31, 1992; continuation filed March 12, 1997) 3. Liens against assets and capital stock of Acxiom Corporation in favor of Bankers/Softech Division of EAB Leasing Corp. EXHIBIT A to Waiver and First Amendment to Amended and Restated Credit Agreement Existing Defaults 1. Acxiom Corporation entered into a lease agreement, dated as of September 22, 1999, with Softech Financial ("Softech") pursuant to which Acxiom Corporation granted to Softech a security interest in substantially all of the personal property of Acxiom Corporation. The debt or other obligations secured by such security interest does not exceed a maximum amount equal to $2,000,000. 2. Acxiom Corporation entered into that certain Continuing Payment and Performance Guaranty dated as of October 30, 1998, as amended, pursuant to which Acxiom Corporation unconditionally guaranteed the obligation of Kidco Holdings, LLC ("Kidco") to make timely payments of the principal amount owed, plus accrued interest, when the same become due, under that certain Promissory Note, dated as of October 30, 1998, as amended, between Mercantile Bank of Arkansas National Association, as lender, and Kidco, as borrower, in the principal amount of $1,184,500.00. As of March 22, 2002, the balance of such loan was $1,138,176.00. It is currently contemplated that Kidco's obligations under the Promissory Note referenced above will be refinanced at a new financial institution. Therefore, as a result of such re-financing, each of the above-referenced Payment and Performance Guarantee and Promissory Note will be restated in its entirety; provided, that the outstanding balance of the refinanced Promissory Note (and resulting guarantee obligations of Acxiom Corporation) will not exceed in the aggregate $1,184,500. 3. Acxiom Corporation entered into a guaranty arrangement with First Community Bank ("First Community") pursuant to which Acxiom Corporation guaranteed the obligation of Cope's Aircraft Services, Inc. ("Cope's") to make timely payments of the principal amount owed, when the same become due, under a loan arrangement from First Community to Cope's in the principal amount of $280,000.00. As of February 13, 2002, the balance of such loan was $238,916.65.
LiveRamp (RAMP) 10-Q2003 Q2 Quarterly report
Filed: 12 Nov 02, 12:00am