EXHIBIT 10.2
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
24 March 2005
among
ACXIOM CORPORATION
the other parties hereto,
JPMORGAN CHASE BANK, N.A.
(formerly JPMorgan Chase Bank,
who was formerly The Chase Manhattan Bank
who was successor in interest
by merger to Chase Bank of Texas, National Association)
as the agent,
SunTrust Bank and Wachovia Bank, National Association
as co-documentation agents,
and
Bank of America, N.A.,
as syndication agent
J.P. MORGAN SECURITIES, INC.
and
BANC OF AMERICA SECURITIES LLC,
as joint bookrunners and joint lead arrangers
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS...................................................................................1
Section 1.01.
Defined
Terms..........................................................................1
Section 1.02.
Classification of Loans and
Borrowings................................................20
Section 1.03.
Terms
Generally.......................................................................20
Section 1.04.
Accounting Terms;
GAAP................................................................20
Section 1.05.
Conversion of Foreign
Currencies......................................................20
(a)
Dollar
Equivalents....................................................................20
(b)
Rounding-Off..........................................................................20
ARTICLE II.
THE
CREDITS..................................................................................21
Section 2.01.
Commitments...........................................................................21
Section 2.02.
Revolving Loans and Revolving
Borrowings..............................................21
(a)
Allocation Among Revolving
Lenders....................................................21
(b)
Types of Revolving
Borrowings.........................................................21
(c)
Minimum
Amounts.......................................................................21
(d)
Limitation on Interest
Periods........................................................21
Section 2.03.
Requests for Revolving
Borrowings.....................................................22
Section 2.04.
Swingline
Loans.......................................................................22
(a)
Commitment............................................................................22
(b)
Request for Swingline
Borrowing.......................................................22
(c)
Types of Swingline
Borrowings.........................................................23
(d)
Minimum
Amounts.......................................................................23
(e)
Limitations on Interest
Periods.......................................................23
(f)
Participations in Swingline
Loans.....................................................24
Section 2.05.
Letters of
Credit.....................................................................24
(a)
General...............................................................................24
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions.................24
(c)
Expiration
Date.......................................................................25
(d)
Participations........................................................................25
(e)
Reimbursement.........................................................................25
(f)
Obligations
Absolute..................................................................26
(g)
Disbursement
Procedures...............................................................27
(h)
Interim
Interest......................................................................27
(i)
Replacement of the Issuing
Bank.......................................................27
(j)
Cash
Collateralization................................................................27
Section 2.06.
Funding of Revolving
Borrowings.......................................................28
(a)
Lender
Funding........................................................................28
(b)
Failure to
Fund.......................................................................28
Section 2.07.
Interest
Elections....................................................................28
(a)
Types of
Borrowings...................................................................28
(b)
Notice of
Election....................................................................29
(c)
Contents of Interest Election
Request.................................................29
(d)
Failure to
Designate..................................................................29
(e)
Limitation on
Election................................................................29
i
Section 2.08.
Termination and Reduction of
Commitments..............................................30
(a)
Mandatory
Termination.................................................................30
(b)
Optional Termination and
Reduction....................................................30
(c)
Notice of Termination or
Reduction....................................................30
Section 2.09.
Repayment of Loans; Evidence of
Debt..................................................30
Section 2.10.
Prepayment of
Loans...................................................................31
(a)
Option
Prepayment.....................................................................31
(b)
Mandatory
Prepayment..................................................................31
(c)
Designation of
Borrowing..............................................................31
(d)
Notice of
Prepayment..................................................................31
Section 2.11.
Fees..................................................................................32
(a)
Commitment
Fees.......................................................................32
(b)
Letter of Credit
Fees.................................................................32
(c)
Payment of
Fees.......................................................................33
Section 2.12.
Interest..............................................................................33
(a)
ABR...................................................................................33
(b)
Fixed
Rate............................................................................33
(c)
Fed
Funds.............................................................................33
(d)
Default
Rate..........................................................................33
(e)
Payment of
Interest...................................................................33
(f)
Basis of
Accrual......................................................................33
Section 2.13.
Alternate Rate of
Interest............................................................34
Section 2.14.
Increased Costs and Capital
Adequacy..................................................34
(a)
Increased
Costs.......................................................................34
(b)
Capital
Adequacy......................................................................35
(c)
Certificate Claiming
Compensation.....................................................35
(d)
Time Frame for Request for
Compensation...............................................35
Section 2.15.
Break Funding
Payments................................................................35
Section 2.16.
Taxes.................................................................................36
(a)
Gross
Up..............................................................................36
(b)
Payment of Other
Taxes................................................................36
(c)
Tax
Indemnity.........................................................................36
(d)
Receipt of
Payment....................................................................36
(e)
Refund................................................................................36
(f)
Withholding Tax
Forms.................................................................37
Section 2.17.
Payments Generally; Pro Rata Treatment; Sharing of
Set-Offs...........................37
(a)
Payments
Generally....................................................................37
(b)
Pro Rata Treatment of
Payments........................................................37
(c)
Sharing of
Set-Offs...................................................................38
(d)
Payment
Assumption....................................................................38
(e)
Default by
Lender.....................................................................38
(f)
Proceeds of
Collateral................................................................38
Section 2.18.
Mitigation Obligations; Replacement of
Lenders........................................39
(a)
Mitigation............................................................................39
(b)
Replacement...........................................................................39
Section 2.19.
Unavailability of Foreign Currency
Loans..............................................40
Section 2.20.
European Economic and Monetary Union
Provisions.......................................40
(a)
Redenomination and Alternative
Currencies.............................................40
(b)
Payments by the Agent
Generally.......................................................40
(c)
Basis of
Accrual......................................................................40
(d)
Rounding and Other Consequential
Changes..............................................40
ii
ARTICLE III.
REPRESENTATIONS AND
WARRANTIES...............................................................41
Section 3.01.
Organization;
Powers..................................................................41
Section 3.02.
Authorization;
Enforceability.........................................................41
Section 3.03.
Governmental Approvals; No
Conflicts..................................................41
Section 3.04.
Financial Condition; No Material Adverse
Change.......................................42
Section 3.05.
Properties............................................................................42
Section 3.06.
Litigation and Environmental
Matters..................................................42
Section 3.07.
Compliance with Laws and
Agreements...................................................43
Section 3.08.
Investment and Holding Company
Status.................................................43
Section 3.09.
Taxes.................................................................................43
Section 3.10.
ERISA.................................................................................43
Section 3.11.
Disclosure............................................................................43
Section 3.12.
Subsidiaries..........................................................................43
Section 3.13.
Insurance.............................................................................44
Section 3.14.
Labor
Matters.........................................................................44
Section 3.15.
Solvency..............................................................................44
Section 3.16.
Margin
Securities.....................................................................44
ARTICLE IV.
CONDITIONS...................................................................................45
Section 4.01.
Effective
Date........................................................................45
Section 4.02.
Each Credit
Event.....................................................................46
Section 4.03.
Effective Date Advances and
Adjustments...............................................46
ARTICLE V.
AFFIRMATIVE
COVENANTS........................................................................46
Section 5.01.
Financial Statements and Other
Information............................................47
(a)
Annual
Audit..........................................................................47
(b)
Quarterly Financial
Statements........................................................47
(c)
Compliance
Certificate................................................................47
(d)
Accountants
Report....................................................................47
(e)
Annual
Budget.........................................................................47
(f)
Governmental
Reports..................................................................48
(g)
Other
Information.....................................................................48
Section 5.02.
Notices of Material
Events............................................................48
Section 5.03.
Existence; Conduct of
Business........................................................48
Section 5.04.
Payment of
Obligations................................................................48
Section 5.05.
Maintenance of
Properties.............................................................49
Section 5.06.
Insurance.............................................................................49
Section 5.07.
Books and Records; Inspection and Audit
Rights........................................49
Section 5.08.
Compliance with
Laws..................................................................49
Section 5.09.
Use of Proceeds and Letters of
Credit.................................................49
Section 5.10.
Additional Subsidiaries; Additional
Guarantors........................................49
Section 5.11.
Further
Assurances....................................................................49
Section 5.12.
Compliance with
Agreements............................................................50
ARTICLE VI.
NEGATIVE
COVENANTS...........................................................................50
Section 6.01.
Indebtedness..........................................................................50
Section 6.02.
Liens.................................................................................52
Section 6.03.
Fundamental
Changes...................................................................52
Section 6.04.
Investments, Loans, Advances, Guarantees and
Acquisitions.............................53
iii
Section 6.05.
Asset Sales; Equity
Issuances.........................................................54
Section 6.06.
Restricted
Payments...................................................................55
Section 6.07.
Transactions with
Affiliates..........................................................56
Section 6.08.
Restrictive
Agreements................................................................56
Section 6.09.
Change in Fiscal
Year.................................................................56
ARTICLE VII.
FINANCIAL
COVENANTS..........................................................................56
Section 7.01.
Leverage
Ratio........................................................................56
Section 7.02.
Fixed Charge
Coverage.................................................................59
ARTICLE VIII.
EVENTS OF
DEFAULT............................................................................59
ARTICLE IX.
AGENT........................................................................................62
ARTICLE X.
MISCELLANEOUS................................................................................64
Section 10.01.
Notices...............................................................................64
Section 10.02.
Waivers;
Amendments...................................................................65
Section 10.03.
Expenses; Indemnity; Damage
Waiver....................................................66
Section 10.04.
Successors and
Assigns................................................................67
Section 10.05.
Survival..............................................................................70
Section 10.06.
Counterparts; Integration; Effectiveness; Amendment and
Restatement...................70
Section 10.07.
Severability..........................................................................71
Section 10.08.
Right of
Setoff.......................................................................71
Section 10.09.
Governing Law; Jurisdiction; Consent to Service of
Process............................71
Section 10.10.
WAIVER OF JURY
TRIAL..................................................................72
Section 10.11.
Headings..............................................................................72
Section 10.12.
Confidentiality.......................................................................72
Section 10.13.
Maximum Interest
Rate.................................................................73
Section 10.14.
Intercompany
Subordination............................................................74
Section 10.15.
Judgment
Currency.....................................................................75
Section 10.16.
USA PATRIOT
Act.......................................................................75
Section 10.17.
Independence of
Covenants.............................................................75
iv
EXHIBITS
EXHIBIT A
-
Form of Assignment and Assumption
EXHIBIT B
-
Form of Opinion of Borrower's Counsel
EXHIBIT C
-
Form of Intercreditor Agreement
SCHEDULES
SCHEDULE 1.01
-
Calculation of MLA Cost
SCHEDULE 2.01
-
Commitments
SCHEDULE 3.12
-
Subsidiaries
SCHEDULE 6.01
-
Existing Indebtedness
SCHEDULE 6.02
-
Existing Liens
SCHEDULE 6.04
-
Existing Investments
SCHEDULE 6.08
-
Existing Restrictions
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement")
dated as of March 24, 2005, is among ACXIOM CORPORATION,
a Delaware Corporation, the lenders party hereto and JPMORGAN CHASE
BANK, N.A. (formerly JPMorgan Chase Bank who was formerly The
Chase Manhattan Bank who was successor in interest by merger to
Chase Bank of Texas, National Association), as the agent (the
"Agent").
RECITALS:
A
The Borrower, the lenders party thereto, JPMorgan Chase Bank, as
the administrative agent, and certain other parties
entered into that certain Second Amended and Restated Credit
Agreement dated as of February 5, 2003 (as such agreement was
amended
and otherwise modified from time to time, the "Prior Agreement").
The Prior Agreement amended and restated that certain Amended and
Restated Credit Agreement dated as of January 28, 2002 among the
Borrower, the lenders party thereto, JPMorgan Chase Bank, as the
agent and certain other parties thereto which amended and restated
that certain Credit Agreement dated December 29, 1999 among the
Borrower, the lenders party thereto, Chase Bank of Texas, National
Association (now JPMorgan Chase Bank, N.A.), as the agent (as
such Credit Agreement dated December 29, 1999 was amended and
otherwise modified from time to time, the "Original Agreement").
Since
the date of the Prior Agreement, certain of the Persons who were
party to the Prior Agreement and related documents are no longer
party thereto as a result of mergers and assignments and certain
subsidiaries of the Borrower have become guarantors under the terms
of the Prior Agreement.
B
The parties hereto now desire to amend and restate the Prior
Agreement as herein set forth.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as
follows:
ARTICLE I
Definitions
Section 1.01
Defined Terms.
As used in this Agreement, the following terms have the meanings
specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such
Borrowing, are bearing interest at a rate determined by reference
to the Alternate Base Rate.
"Accumulated Asset Value" means, with respect to the Borrower as of
the date of determination, the sum of (a) the Asset
Value as of December 31, 2004 plus (b) the increases (or minus the
decreases) in the Asset Value since December 31, 2004 as
reflected in the Borrower's consolidated balance sheet for each
completed calendar year occurring subsequent to December 31, 2004
prior to the date of determination.
"Acquiring Company" has the meaning specified in Section 6.04.
"Adjusted EBITDAR" has the meaning specified in Section 7.01.
1
"Administrative Questionnaire" means an administrative
questionnaire in a form supplied by the Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.
"Agent" means JPMorgan as agent for the Lenders hereunder.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such
day, (b) the Base CD Rate in effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on such day plus 1/2 of
1%.
Any change in the Alternate Base Rate due to a change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such
change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"Applicable Percentage" means, at any time and with respect to any
Lender, the percentage of the total Revolving
Commitments represented by such Lender's Revolving Commitment at
such time. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any
assignments.
"Applicable Rate" means, for any day (a) with respect to any Fixed
Rate Loan or with respect to the commitment fees payable
hereunder, as the case may be, the applicable rate per annum set
forth below under the caption "Fixed Rate Spread" or "Commitment
Fee Rate", as the case may be, opposite the category in the table
below which corresponds with the actual Leverage Ratio as of the
most recent determination date; provided that from and including
the Effective Date until the first date that the Applicable Rate is
determined as set forth below in this definition, the "Applicable
Rate" shall be the applicable rate per annum set forth below in
Category 2:
========================================================================================
Leverage Ratio
Fixed Rate Spread
Commitment Fee Rate
========================================================================================
Category 1
0.875%
0.175%
<1.00 to 1.00
----------------------------------------------------------------------------------------
Category 2
1.00%
0.200%
greater or equal to 1.00 to 1.00
but
< 1.50 to 1.00
----------------------------------------------------------------------------------------
Category 3
greater or equal to 1.50 to 1.00
but
< 2.00 to 1.00
1.25%
0.250%
----------------------------------------------------------------------------------------
Category 4
1.50%
0.300%
greater or equal to 2.00 to 1.00
========================================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the
Borrower's fiscal year based upon the Borrower's consolidated
financial statements delivered pursuant to Section 5.01(a) or
(b), beginning with the fiscal quarter ended March 31, 2005 and
(ii) each change in the Applicable Rate resulting from a change in
the Leverage Ratio shall be effective during the period commencing
on and including the date of delivery to the Agent of such
consolidated financial statements indicating such change and ending
on the date immediately preceding the effective date of the next
such change; provided that the Leverage Ratio shall be deemed to be
in Category 4:
(A) at any time that an Event of Default has
occurred and is continuing or (B) at the option of the Agent or at
the request of the Required Lenders, if the Borrower fails to
deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the
period
from the expiration of the time for delivery thereof until such
consolidated financial statements are delivered.
2
"Approved Fund" has the meaning assigned to such term in Section
10.04.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the
Bank Insurance Fund classified as "wellcapitalized" and within
supervisory subgroup "B" (or a comparable successor risk
classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in Dollars
at the offices of such member in the United States; provided that
if, as a result of any change in any law, rule or regulation, it is
no longer possible to determine the Assessment Rate as
aforesaid, then the Assessment Rate shall be such annual rate as
shall be determined by the Agent to be representative of the cost
of such insurance to the Lenders.
"Asset Value" means, with respect to the Borrower as of the date of
determination, the sum of the book values of the
following for Borrower and the Subsidiaries calculated on a
consolidated basis:
(a) accounts receivable and (b) property, plant and
equipment net of accumulated depreciation and amortization
"Assignment and Assumption" means an assignment and assumption
entered into by a Lender and an assignee (with the consent
of any party whose consent is required by Section 10.04), and
accepted by the Agent, in the form of Exhibit A or any other form
approved by the Agent.
"Available Currency" means Dollars, Sterling and the Euro.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Acxiom Corporation, a Delaware corporation.
"Borrowing" means Loans of the same Class and Type, made, converted
or continued on the same date and, in the case of Fixed
Rate Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing
in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York, New York,
Houston, Texas, or Dallas, Texas are authorized or required by law
to remain closed; provided that, when used in connection with a
Fixed Rate Loan, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in deposits in the
applicable Available Currency in the London or European interbank
market.
"Capital Expenditures" means, for any period:
(a) the software development costs, (b) the capitalization of
deferred
expenses and (c) the capital expenditures of the Borrower and its
consolidated Subsidiaries, in each case of clause (a), (b) and
(c), as set forth (or as should be set forth) in the investing
activities section of the consolidated statement of cash flow of
the
Borrower for such period prepared in accordance with GAAP.
3
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease
of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a
balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any
Person or group (within the meaning of Section 13(d) or 14(d) the
Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof)
of Equity Interests representing more than 30% of either the
aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in
Borrower; or (b) the acquisition of direct or indirect Control of
the Borrower by any Person or group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in
any law, rule or regulation or in the interpretation or application
thereof by any Governmental Authority after the date of this
Agreement or (c) compliance by any Lender or any Issuing Bank (or,
for purposes of Section 2.14(b), by any lending office of such
Lender or by such Lender's or such Issuing Bank's holding company,
if any) with any request, guideline or directive (whether or not
having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such
Borrowing, are Revolving Loans or Swingline Loans.
"Creditors" has the meaning set forth in the Intercreditor
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" means the "Collateral" as defined in the Security
Agreement and any and all property in which Liens have been
granted to the Collateral Agent to secure the indebtedness,
obligations and liabilities of the Borrower and the Guarantors
under the
Loan Documents.
"Collateral Agent" means JPMorgan, as collateral agent under the
terms of the Intercreditor Agreement.
"Commencement of the third stage of EMU" means the date of
commencement of the third stage of EMU by the United Kingdom or
the date on which circumstances arise which (in the opinion of the
Agent) have substantially the same effect and result in
substantially the same consequences as commencement by the United
Kingdom of the third stage of EMU as contemplated by the Treaty on
European Union.
"Commitments" means the Revolving Commitments and the commitment of
the Swingline Lender to make Swingline Loans.
"Consolidated Net Income" has the meaning specified in Section
7.01.
"Consolidated Tangible Assets" means, with respect to the Borrower
and at any time, the sum of (a) all amounts which in
conformity with GAAP would be included as assets on a consolidated
balance sheet of the Borrower minus (b) all amounts which in
conformity with GAAP would be included as goodwill on a
consolidated balance sheet of the Borrower.
4
"Consolidated Tangible Net Worth" means, with respect to the
Borrower and at any time, the sum of (i) all amounts which, in
conformity with GAAP, would be included as stockholders' equity on
a consolidated balance sheet of the Borrower and the
Subsidiaries; minus (ii) to the extent included in clause (i) above
in this definition, the sum of the following:
(a) the amount by
which stockholders' equity has been increased by the write-up of
any asset of the Borrower and the Subsidiaries after January 1,
2005, plus (b) the amount of net deferred income tax assets (less
adjustments included in Consolidated Net Income after January 1,
2005), plus (c) any cash held in a sinking fund or other analogous
fund established for the purpose of redemption, retirement or
prepayment of capital stock or Indebtedness, plus (d) the
cumulative foreign currency translation adjustment (less
adjustments
included in Consolidated Net Income after January 1, 2005), plus
(e) the amount at which shares of capital stock of the Borrower is
contained among the assets on the consolidated balance sheet of the
Borrower and the Subsidiaries, plus (f) the amount of any
preferred stock, plus (g) the amount properly attributable to the
minority interests, if any, of other Persons in the stock,
additional paid-in capital, and retained earnings of the
Subsidiaries, plus (h) the amount of the following intangible
assets
carried on the balance sheet of the Borrower at such date
determined in accordance with GAAP on a consolidated basis:
goodwill,
patents, trademarks, tradenames, organizational expenses, deferred
financing changes, debt acquisition costs, start up costs,
preoperating costs, prepaid pension costs, or any other similar
deferred charges.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. "Controlling" and
"Controlled"
have meanings correlative thereto.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both
would, unless cured or waived, become an Event of Default.
"Disclosed Matters" means all the matters disclosed in the
Borrower's reports to the securities and Exchange Commission on
form 10-Q for the quarterly period ended December 31, 2004 and on
form 10-K for the fiscal year ended March 31, 2004.
"Dispositions" has the meaning set forth in Section 6.05.
"Dollar Amount" means, as of any date of determination, (a) in the
case of any amount denominated in Dollars, such amount,
and (b) in the case of any amount denominated in another currency,
the amount of Dollars which is equivalent to such amount of other
currency as of such date, determined by using the Spot Rate on the
date two (2) Business Days prior to such date or on such other
date as may be requested by the Borrower and approved by the Agent.
"Dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary that is organized under
the laws of the United States of America, any state
thereof or the District of Columbia.
"EBITDAR" has the meaning specified in Section 7.01.
"Effective Date" means the date on which the conditions specified
in Section 4.01(a) through (i) are satisfied (or waived
in accordance with Section 10.02).
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
5
"EMU legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of
a single or unified European currency (whether known as the Euro or
otherwise), being in part the implementation of the third stage
of EMU.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the
environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from
or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous
Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity ownership
interests in a Person and any option, warrant or other right
relating thereto.
The term "Equity Interest" shall not include any Indebtedness
convertible into shares of capital stock,
partnership interests, membership interests in a limited liability
company, beneficial interests in a trust or other equity
ownership interests in a Person but shall include the shares of
capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other
equity ownership interests issued upon the actual conversion of
such Indebtedness.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as
a single employer under Section 414(b) or (c) of the Code or,
solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the
Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder
with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any
Plan of an "accumulated funding deficiency" (as defined in Section
412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e)
the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within
the meaning of Title IV of ERISA.
6
"Euro" means the single currency of the participating member states
of the European Union.
"euro unit" means the currency unit of the Euro.
"Event of Default" has the meaning specified in Article VIII.
"Excluded Taxes" means, with respect to the Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America, or by the jurisdiction
under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which
its applicable lending office is located, (b) any branch profits
taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located
and (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.18(b)), any
withholding tax that is imposed on amounts payable to such Foreign
Lender at the time such Foreign Lender becomes a party to this
Agreement (or designates a new lending office) or is attributable
to such Foreign Lender's failure to comply with Section 2.16(f),
except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to
Section 2.16(a).
"Fed Funds" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such
Borrowing are bearing interest at a rate determined by reference to
the Federal Funds Effective Rate.
"Federal Funds Effective Rate" means (i) for the first day of an
ABR Borrowing or Swingline Loan, the rate per annum which
is the average of the rates on the offered side of the Federal
funds market quoted by three interbank Federal funds brokers,
selected by the Agent, at approximately the time the Borrower
requests such ABR Borrowing or Swingline Loan, for Dollar deposits
in
immediately available funds, for a period and in an amount,
comparable to the principal amount of such ABR Borrowing or
Swingline
Loan, as the case may be, and (ii) for each day of such ABR
Borrowing or Swingline Loan thereafter, or for any other amount
hereunder which bears interest at the Alternative Base Rate or the
Federal Funds Effective Rate, the rate per annum which is the
average of the rates on the offered side of the Federal funds
market quoted by three interbank Federal funds brokers, selected by
the Agent, at approximately 2:00 p.m. New York City time on such
day for Dollar deposits in immediately available funds, for a
period
and in an amount, comparable to the principal amount of such ABR
Borrowing, Swingline Loan or other amount, as the case may
be; in the case of both clauses (i) and (ii), as determined by the
Agent and rounded upwards, if necessary, to the nearest 1/100 of
1%.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the
Borrower or another authorized officer or employee of the Borrower
approved by the Agent and having similar functions.
"Fixed Rate" means, with respect to any Fixed Rate Borrowing, the
Available Currency in which it is denominated and the
Interest Period therefor, the rate appearing on the Reference Page
(as defined below in this definition) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of
such Interest Period, as the rate for deposits denominated in such
Available Currency with a maturity comparable to such Interest
Period. In the event that such rate is not available at such time
for
any reason, then the "Fixed Rate" with respect to such Fixed Rate
Borrowing, such Available Currency and such Interest Period shall
7
be the rate at which deposits in the Dollar Amount of $1,000,000
denominated in such Available Currency and for a maturity
comparable to such Interest Period are offered by the principal
London office of the Agent in immediately available funds in the
London or European (as determined by the Agent) interbank market at
approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period.
The term "Reference Page" means Telerate Page 3750 (or any
successor or substitute
page of the Telerate Service providing comparable rate quotations
for such currency deposits); provided that in the event the
applicable rate does not appear on such Telerate Service, the term
"Reference Page" means the applicable page of such other
comparable publicly available rate quoting service as may be
selected by the Agent.
The term "Telerate Page" means the display
designated by the applicable page number set forth above on the
rate quotation service provided by the Moneyline Telerate Company.
The term "Fixed Rate" when used with respect to a Fixed Rate
Borrowing made by the Swingline Lender through a lending office
located
in the United Kingdom shall be calculated to include the MLA Cost
(as determined in accordance with Schedule 1.01).
The term "Fixed
Rate" when used with respect to a Fixed Rate Borrowing made by a
Lender through a lending office located in the United States of
America shall be equal to the rate calculated in the first sentence
of this definition for such Fixed Rate Borrowing for such
Interest Period multiplied by the Statutory Reserve Rate.
"Fixed Rate", when used in reference to any Loan or Borrowing,
refers to
whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to a Fixed Rate.
"Fixed Charges" has the meaning specified in Section 7.02.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower
is located.
For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be
deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States
of America, any State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political
subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any
Indebtedness, or other obligation (including any obligations under
an
operating lease) of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including any
obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance
or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such
Indebtedness or other obligation (including the lessor under an
operating lease) of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an
account party in respect of any letter of credit or letter of
guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements
for
collection or deposit in the ordinary course of business.
8
"Guarantor" means Adam Merger Corporation, Acxiom CDC, Inc., Acxiom
CH, Inc., Acxiom / Direct Media, Inc., Acxiom
e-Products, Inc. (formerly Acxiom SDC, Inc.), Acxiom Information
Security Services, Inc., Acxiom Interim Holdings, Inc., Acxiom /
May & Speh, Inc., Acxiom RM-Tools, Inc., Acxiom Transportation
Services, Inc., Acxiom UWS, Ltd., GIS Information System, Inc.,
SmartDM Holdings, Inc., SmartDM, Inc., SmartReminders.Com, Inc. and
each other Domestic Subsidiary who becomes a guarantor under the
Subsidiary Guaranty in accordance with Section 5.11.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes
or other pollutants, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price
protection agreement, security hedging agreement, other interest,
currency or security exchange rate or commodity price hedging
arrangement, or any Synthetic Purchase Agreement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with
respect to deposits or advances of any kind, (b) all obligations of
such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property
acquired by such Person, (d) 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), (e) all Capital Lease Obligations of such Person,
(f) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of
guaranty, (g) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances, (h) indebtedness in
respect of mandatory redemption or mandatory dividend rights on
Equity Interests but excluding dividends payable solely in
additional Equity Interest, (i) all obligations of such Person,
contingent or otherwise, for the payment of money under any
noncompete, 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
permitted hereby or an acquisition consummated prior to the date
hereof but only to the extent such amount is required to be
characterized as a liability on the balance sheet of such Person in
accordance with GAAP, (j) all obligations of such Person under any
Hedging Agreement, and (k) all Guarantees by such Person of
Indebtedness of others.
The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any
partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's
ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that
such
Person is not liable therefor. The amount of the obligations of the
Borrower or any Subsidiary in respect of any Hedging Agreement
shall, at any time of determination and for all purposes under this
Agreement, be the maximum aggregate amount (giving effect to any
netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such
time giving effect to current market conditions notwithstanding any
contrary treatment in accordance with GAAP.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Intercreditor Agreement" means that certain Second Amended and
Restated Intercreditor Agreement dated as of March 24, 2005
among the Borrower, the Guarantors, the Collateral Agent, and the
Agent, in substantially the form of Exhibit C hereto.
9
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December
commencing the first such date after the Effective Date, (b) with
respect to any Fixed Rate Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Fixed Rate Borrowing with an Interest Period
of more than three months' duration, each day prior to the last day
of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, and
(c) with respect to any Swingline Loan that is not subject to a
Fixed Rate Borrowing, the day that such Loan is required to be
repaid.
"Interest Period" means with respect to any Fixed Rate Borrowing,
the period commencing on the date of such Borrowing and
ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as the Borrower
may elect; provided, that (i) if any Interest Period would end on a
day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period that commences on the
last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such
Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period.
For purposes hereof, the
date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.
"Investment" means, with respect to any Person, (a) the
acquisition, purchase or ownership of any Equity Interests or
evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing)
issued
by any other Person, (b) any loans or advances to any other Person,
(c) any Guarantee of any obligations of any other Person, or (d)
any other investment or any other acquisition of any Equity
Interest in any other Person, and (e) the purchase or other
acquisition
of (in one transaction or a series of transactions) all or
substantially all the assets of any other Person or all or
substantially
all the assets of any other Person constituting a business unit.
"Issuing Bank" means JPMorgan, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such
capacity as provided in Section 2.05(i).
The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be
issued by Affiliates of the Issuing Bank or by no more than two of
the Lenders designated by the Borrower and approved by the Agent,
in which case the term "Issuing Bank" shall include any such
Affiliate or Lender with respect to Letters of Credit issued by
such
Affiliate or Lender.
"JPMorgan" means JPMorgan Chase Bank, N.A. who was formerly
JPMorgan Chase Bank, who was formerly The Chase Manhattan Bank
who was the successor in interest by merger to Chase Bank of Texas,
National Association.
"LC Disbursement" means a payment made by an Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements that
have not yet been reimbursed by or on behalf of the Borrower at
such
time.
The LC Exposure of any Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.
10
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to
an Assignment and Assumption, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and
Assumption.
Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement or issued pursuant to the Prior Agreement
and outstanding on the Effective Date.
"Leverage Ratio" means, on any date, the ratio of Total
Indebtedness to Adjusted EBITDAR then most recently calculated in
accordance with Section 7.01.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge
or security interest in, on or of such asset, (b) the interest of a
vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement relating to such asset and (c)
in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loan Documents" means this Agreement, the Subsidiary Guaranty, the
Security Agreement, 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.
The Loan Documents do not include any Hedging Agreements but
obligations owed to Lenders and
Affiliates of Lenders under Hedging Agreements are included in the
obligations secured by the Collateral as set forth in the
Security Agreement and the Intercreditor Agreement.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement and any loan made by the lenders
under the Prior Agreement which are outstanding on the Effective
Date.
Loans may be identified by Type, the applicable Available
Currency or the facility under which such Loans was made (i.e., by
Class) as described in Section 1.02.
"Material Adverse Effect" means a material adverse effect on (a)
the business, assets, operations or financial condition of
the Borrower and the Subsidiaries taken as a whole, (b) the ability
of the Borrower or any Guarantor to perform any of its
obligations under any Loan Document or (c) the validity,
enforceability or collectibility of the Loans or LC Disbursements
or the
ability of the Agent and the Lenders to enforce a material
provision of any Loan Document.
"Material Indebtedness" means either (a) Indebtedness of one or
more of the Borrower and the Subsidiaries in an aggregate
principal amount exceeding a Dollar Amount equal to $25,000,000
(other than the Loans and Letters of Credit and other than
Indebtedness owed to the Borrower or any Guarantor); or (b)
obligations under Synthetic Leases of one or more of the Borrower
and
the Subsidiaries in an aggregate principal amount exceeding a
Dollar Amount equal to $25,000,000; or (c) any combination of the
Indebtedness and obligations described in clauses (a) and (b) in an
aggregate principal amount exceeding a Dollar Amount equal to
$25,000,000.
"Maturity Date" means March 31, 2010.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
11
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received in respect of such event including any cash
received in respect of any non-cash proceeds, but only as and when
received, net of (b) the sum of (i) all reasonable fees and
out-of-pocket expenses paid by the Borrower and the Subsidiaries to
third parties (other than Affiliates) in connection with such
event, including any sales commissions, investment banking fees, or
underwriting discounts, (ii) in the case of a sale, transfer or
other disposition of an asset (including pursuant to a sale and
leaseback transaction or a casualty or a condemnation or similar
proceeding), the amount of all payments required to be made by the
Borrower and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans) secured by such asset or otherwise
subject to mandatory prepayment as a result of such event, and
(iii) the amount of all taxes paid (or reasonably estimated to be
payable) by the Borrower and the Subsidiaries, and the amount of
any reserves established by the Borrower and the Subsidiaries to
fund contingent liabilities reasonably estimated to be payable, in
the case of (A) taxes during the year that such event occurred or
the next succeeding year and that are directly attributable to
such event (as determined reasonably and in good faith by the chief
financial officer of the Borrower) and (B) in the case of
reserves for contingent liabilities, during the period of any
contractual indemnification obligation or statute of limitation
imposed upon the
Borrower or any of its Subsidiaries.
"Original Agreement" has the meaning specified in the Recitals
hereto.
"Original Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of September 21, 2001 among the
Borrower, the Guarantors, the Collateral Agent, the Agent, Bank of
America as agent for the Synthetic Lenders (as defined therein)
and Holders (as defined therein), JPMorgan as the holder of the
Term Loan (as defined therein), and JPMorgan as the issuer of a
letter of credit securing the Senior Notes (as defined therein).
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges
or similar levies arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or
otherwise with respect to, any Loan Document.
"Outstanding Investment" means for any Person, as of any date of
determination, the sum of: (a) the aggregate outstanding
principal amount of all loans and advances then outstanding and
made by such Person under the permissions of Section 6.04(i) on or
after the Effective Date and the aggregate outstanding principal
amount of all loans and advances then proposed to be made by such
Person under the permissions of Section 6.04(i); plus (b) the
aggregate outstanding amount of all sums Guaranteed pursuant to
Guarantees made by such Person under the permissions of Section
6.04(i) on or after the Effective Date and the aggregate
outstanding
amount of all sums Guaranteed pursuant to Guarantees then proposed
to be made by such Person under the permissions of
Section 6.04(i); plus (c) the aggregate book value of all other
Investments then held by such Person which were made under the
permissions of Section 6.04(i) on or after the Effective Date and
then proposed to be made by such Person under the permissions of
Section 6.04(i).
For purposes of clarity, it is understood that Investments made
prior to the Effective Date and Investments that
are permitted by any provision of Section 6.04 other than
subsection (i) thereof are not included in the definition of
Outstanding
Investments.
"Participant" has the meaning set forth in Section 10.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing
similar functions.
12
"Permitted Acquisition" means the purchase or acquisition by the
Borrower or any Subsidiary of all the Equity Interests of
any Person (including the acquisition of such Equity Interests in a
series of related transactions comprising a tender offer
followed by a merger), all or substantially all the assets of a
Person or all or substantially all the assets of a Person
constituting a business unit if:
(a)
the Target is involved in a similar type of business activities as
the Borrower or a Subsidiary;
(b)
the proposed acquisition is an acquisition of the stock of a
Target, the acquisition will be structured so that the acquired
stock will be owned by Borrower or a Subsidiary or, simultaneously
with the acquisition or following a tender
offer for Equity Interests of the Target, the Borrower or a
Subsidiary will merge with the Target, in the case of
a merger with the Borrower, with the Borrower surviving and, in the
case of a Subsidiary, with either the
applicable Subsidiary or the Target surviving.
If the proposed acquisition is an acquisition of assets, the
acquisition will be structured so that Borrower or a Subsidiary
wholly and directly owned by Borrower will acquire
the assets;
(c)
the Purchase Price for such proposed acquisition is greater than
$25,000,000, then the Borrower shall have provided to the
Agent and each Lender prior to or on the date that the proposed
acquisition is to be consummated the following:
(i) the name of the Target; (ii) a description of the nature of the
Target's business; and (iii) a certificate of a
Financial Officer of the Borrower (1) certifying that no Default
exists or could reasonably be expected to occur
as a result of the proposed acquisition, and (2) demonstrating
compliance with the criteria set forth in
clause (g) of Section 6.04 and that the Borrower is and on a pro
forma basis will continue to be, in compliance
with the financial covenants of this Agreement; and
(d)
such acquisition has been:
(i) in the event a corporation or its assets is the Target, either
(x) approved by the Board of
Directors of the corporation which is the Target, or (y)
recommended by such Board of Directors to the
shareholders of such Target, (ii) in the event a partnership is the
Target, approved by a majority (by percentage
of voting power) of the partners of the Target, (iii) in the event
an organization or entity other than a
corporation or partnership is the Target, 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 Target or (iv) in the
event the corporation, partnership or other organization or entity
which is the Target is in bankruptcy, approved
by the bankruptcy court or another court of competent jurisdiction.
"Permitted Encumbrances" means:
(a)
Liens imposed by law for taxes that are not yet due or are being
contested in compliance with
Section 5.04;
(b)
carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 120 days
and are not being enforced or are being contested in compliance
with Section 5.04;
13
(c)
pledges and deposits made in the ordinary course of business in
compliance with workers'
compensation, unemployment insurance and other social security laws
or regulations;
(d)
deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of
business;
(e)
judgment liens in respect of judgments that do not constitute an
Event of Default under
paragraph (k) of Article VIII;
(f)
easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by
law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower
or any Subsidiary;
(g)
Liens arising from filing UCC financing statements regarding leases
permitted by this Agreement;
(h)
leases or subleases of equipment to customers in the ordinary
course of business;
(i)
leases or subleases entered into by Borrower or a Subsidiary in
good faith with respect to its
property not used in its business and which do not materially
interfere with the ordinary conduct of business of the
Borrower or any Subsidiary; and
(j)
Liens incurred by Borrower with the consent of the Required
Lenders;
provided that the term "Permitted Encumbrances" shall not include
any Lien described in clauses (a) through (i) above that secures
Indebtedness for borrowed money.
"Permitted Investments" means:
(a)
direct obligations of, or obligations the principal of and interest
on which are unconditionally
guaranteed by, the United States of America (or by any agency
thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each
case maturing within one year from the date of
acquisition thereof;
(b)
investments in commercial paper maturing within 270 days from the
date of acquisition thereof and
having, at such date of acquisition, a rating of A-2 or better by
S&P or P-2 or better by Moody's;
(c)
investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180
days from the date of acquisition thereof issued or guaranteed by
or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of
14
America or any State thereof which has a combined capital and
surplus and undivided profits of not less than
$500,000,000;
(d)
fully collateralized repurchase agreements with a term of not more
than 30 days for securities
described in clause (a) above and entered into with a financial
institution satisfying the criteria described in
clause (c) above;
(e)
investments in corporate debt securities maturing within 270 days
from the date of acquisition
thereof and having, at such date of acquisition, a rating of BBB-
or better by S&P or Baa3 or better by Moody's;
(f)
investments in municipal securities having, at the date of
acquisition thereof, a rating of AA or
better by S&P or Aa or better by Moody's, provided that the
Borrower has the right to put such securities back to
the issuer or seller thereof at least once every 60 days; and
(g)
investments in money market funds that (i)
comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of
1940, (ii) are rated AA by S&P and Aaa by Moody's
and (iii) have portfolio assets of at least $5,000,000,000.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if
such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by JPMorgan (or its successor) as
its prime rate in effect at its office in Houston, Texas; each
change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being effective.
"Prior Agreement" has the meaning specified in the Recitals hereto.
"Prior Assets" has the meaning specified in Section 7.01.
"Prior Company" has the meaning specified in Section 7.01.
"Prior Target" has the meaning specified in Section 7.01.
"Purchase Money Indebtedness" means Indebtedness of a Person
incurred to finance the acquisition, construction or
improvement of any fixed or capital assets or any data or software
(but excluding the acquisition of assets which constitute a
business unit of a Person); provided that: (A) such Indebtedness
(other than any Indebtedness incurred in connection with any sale
and leaseback transactions permitted hereby) and any Lien securing
the payment thereof is incurred prior to or within 90 days after
such acquisition or the completion of such construction or
improvement; (B) such Indebtedness, at the time it is originally
incurred, does not exceed the amount of the purchase price at the
time of acquisition or the costs of construction or improvement,
as the case may be, of the applicable assets; and (C) the Liens
securing such Indebtedness encumber only the assets acquired,
constructed or improved with the Indebtedness incurred and no other
asset of the Person.
Purchase Money Indebtedness shall include
15
any such Indebtedness of the type described in the first sentence
of this definition which is: (A) a Capital Lease Obligation; (B)
assumed by a Person in connection with such Person's acquisition of
the asset (including any assumption of a Capital Lease
Obligation of a third party customer of such Person in connection
with (1) an outsourcing agreement entered into with such third
party in the ordinary course of such Person's business and (2) the
transfer to such Person of the assets financed by the Capital
Lease Obligation assumed); and/or (C) extended, renewed, replaced
or otherwise modified as long as, in connection with any such
modification, the outstanding principal amount is not increased
unless the aggregate outstanding principal amount thereof
immediately after giving effect to such extension, renewal,
replacement or other modification does not exceed the market value
of
the applicable assets as then most recently determined in
connection with such modification.
"Purchase Price" means, as of any date of determination and with
respect to a proposed acquisition, the purchase price to
be paid for the Target or its assets, including all cash
consideration paid (whether classified as purchase price,
noncompete or
consulting payments or otherwise), the value of all other assets to
be transferred by the purchaser in connection with such
acquisition to the seller (including any stock issued to the
seller) all valued in accordance with the applicable purchase
agreement
and the outstanding principal amount of all Indebtedness of the
Target or the seller assumed or acquired in connection with such
acquisition.
"Register" has the meaning specified in Section 10.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures and unused Revolving Commitments representing 51%
of the sum of the total Revolving Exposures and unused Revolving
Commitments at such time.
"Restricted Payment" means:
(i) any dividend or other distribution (whether in cash, securities
or other property) with
respect to any Equity Interests in the Borrower or any Subsidiary,
or any payment (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or
termination of any Equity Interests in the Borrower or any
Subsidiary (including any dividend, other distribution or other
payment
in respect of Equity Interests under a Synthetic Purchase
Agreement) and (ii) any payment or other distribution (whether in
cash
securities or other property) of or in respect of principal of or
interest on any Indebtedness of the Borrower or any Subsidiary, or
any payment or other distribution (whether in cash, securities or
other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Indebtedness.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the Commitments in
accordance with the terms of this Agreement.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans
and to acquire participations in Letters of Credit and Swingline
Loans hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Revolving Exposure hereunder, as
such commitment may be (a) reduced from time to time pursuant to
16
Section 2.08 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section
10.04.
As of the Effective Date, (i) the amount of each Lender's Revolving
Commitment is set forth on Schedule 2.01 and (ii) the aggregate
amount of the Lenders' Revolving Commitments is $245,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such
Lender's Revolving Loans and the Dollar Amount of its LC Exposure
and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or,
if the Revolving Commitments have terminated or expired,
a Lender with Revolving Exposure.
"Revolving Loan" means advances made pursuant to Section 2.01 and
advances made pursuant to Section 2.01 of the Prior
Agreement which are outstanding on the Effective Date.
"S&P" means Standard & Poor's.
"Security Agreement" means the Amended and Restated Security
Agreement dated as of the date hereof executed by Borrower,
the Guarantors and the Collateral Agent pursuant to the
Intercreditor Agreement in substantially the form of Exhibit A to
the
Intercreditor Agreement.
"Significant Subsidiary" means, at any date of determination, any
Subsidiary (i) whose consolidated total assets (as
determined in accordance with GAAP) equals or exceeds five percent
(5%) of the consolidated total assets of the Borrower (as
determined in accordance with GAAP), or (ii) whose Consolidated Net
Income for the most recently completed four fiscal quarters
equals or exceeds five percent (5%) of the Borrower's Consolidated
Net Income for such period.
In calculating Consolidated Net
Income under the foregoing clause for a four fiscal quarter period,
if the Borrower or a Subsidiary acquires the assets of a Target
either directly or through a merger, the Consolidated Net Income of
the Target for such four fiscal quarter period attributable to
the time prior to the acquisition shall be added to the
Consolidated Net Income of the Borrower or such Subsidiary, as
applicable.
"Spot Rate" means, with respect to any day, the rate determined on
such date on the basis of the offered exchange rates, as
reflected in the foreign currency exchange rate display of the
Moneyline Telerate Company at or about 10:00 a.m. (Dallas, Texas
time), to purchase Dollars with the other applicable currency,
provided that, if at least two such offered rates appear on such
display, the rate shall be the arithmetic mean of such offered
rates and, if no such offered rates are so displayed, the Spot Rate
shall be determined by the Agent on the basis of the arithmetic
mean of such offered rates as determined by the Agent in accordance
with its normal practice.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Agent is subject.
With respect to
the Base CD Rate, the Statutory Reserve Rate shall be determined
based on the reserve percentage for new negotiable nonpersonal time
deposits in Dollars of over $100,000 with maturities approximately
equal to three months.
With respect to the Fixed Rate Loans, the
Statutory Reserve Rate shall be determined based on the reserve
percentage for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board).
Such reserve percentages shall include those imposed pursuant to
such
Regulation D.
Fixed Rate Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such
17
Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and
as of the effective
date of any change in any reserve percentage.
"Sterling" and "£" shall mean lawful currency of the United
Kingdom.
"Subject Period" has the meaning set forth in the definition of the
term "Consolidated Net Income" in Section 7.01.
"subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company,
partnership, association or other entity the accounts of which
would be consolidated with those of the parent in the parent's
consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other
ownership
interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership,
more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the
parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Guaranty" means the Guaranty Agreement dated December
29, 1999 executed by certain Subsidiaries for the benefit
of the Agent and the Lenders in substantially the form of Exhibit C
to the Original Agreement, as the same has been modified
pursuant to Section 10.06 hereof and the following Subsidiary
Joinder Agreements:
1.
Subsidiary Joinder Agreement joining Acxiom Asia, Ltd., Acxiom NJA,
Inc., Acxiom Property
Development, Inc., Acxiom/Pyramid Information Systems, Inc., Acxiom
RTC, Inc., Acxiom SDC, Inc. and Acxiom
Transportation Services, Inc. dated August 14, 2001.
2.
Subsidiary Joinder Agreement joining GIS International Systems,
Inc. dated September 21, 2001.
3.
Subsidiary Joinder Agreement joining Acxiom UWS, Ltd. dated January
28, 2002.
4.
Subsidiary Joinder Agreement joining Acxiom Employment Screening
Services, Inc. dated July 31,
2002.
5.
Subsidiary Joinder Agreement joining Acxiom Interim Holdings, Inc.
dated February 5, 2003.
6.
Subsidiary Joinder Agreement joining Acxiom CH, Inc. dated October
20, 2004.
7.
Subsidiary Joinder Agreement joining SmartDM Holdings, Inc.,
SmartDM, Inc., SmartReminders.Com,
Inc., and Adam Merger Corporation dated March 24, 2005.
"Swingline Exposure" means, at any time, the aggregate principal
Dollar Amount of all Swingline Loans outstanding at such
time.
The Swingline Exposure of any Lender at any time shall be its
Applicable Percentage of the total Swingline Exposure at such
time.
18
"Swingline Lender" means JPMorgan, in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04 and the
loans made pursuant to Section 2.04 of the Prior
Agreement which are outstanding on the date hereof.
"Synthetic Lease" means any lease of (or other arrangement
conveying the right to use) real or personal property, or a
combination thereof, which lease or other arrangement is required
or is permitted to be classified and accounted for as an operating
lease under GAAP but which is intended by the parties thereto for
tax, bankruptcy, regulatory, commercial law, real estate law and
all other purposes as a financing arrangement.
"Synthetic Purchase Agreement" means any agreement pursuant to
which the Borrower or a Subsidiary is or may become
obligated to make any payment (i) in connection with the purchase
by any third party of any Equity Interest or subordinated
Indebtedness or (ii) the amount of which is determined by reference
to the price or value at any time of any Equity Interest or
subordinated Indebtedness; provided that no phantom stock or
similar plan providing for payments only to current or former
directors, officers or employees of the Borrower or the
Subsidiaries (or to their heirs or estates) shall be deemed to be a
Synthetic Purchase Agreement.
"Target" means a Person who is to be acquired or whose assets are
to be acquired in a transaction permitted by Section
6.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions and similar charges or withholdings
imposed by any Governmental Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit
reported as being in effect on such day (or, if such day is not a
Business Day, the next preceding Business Day) by the Board
through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current
practices
of the Board, be published in Federal Reserve Statistical Release
H.15(519) during the week following such day) or, if such rate is
not so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month
certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day is not a Business Day, on the next
preceding Business Day) by the Agent from three negotiable
certificate
of deposit dealers of recognized standing selected by it.
"Total Indebtedness" has the meaning set forth in Section 7.01.
"Transferring Subsidiary" has the meaning set forth in Section
6.04.
"Treaty on European Union" means the Treaty of Rome of March 25,
1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed at Maastricht on February 7,
1992, and came into force on November 1, 1993), as amended from
time to time.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to the
Fixed Rate, the Alternate Base Rate or the Federal Funds
Effective Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.
19
Section 1.02
Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by
Class (e.g., a "Revolving Loan" or "Swingline Loans") or by Type
(e.g., a "Fixed Rate Loan") or by the Available Currency in which
it is denominated (e.g, Dollar Loans) or by the Class, Type and
Available Currency (e.g., a "Fixed Rate Revolving Dollar Loan") or
any combination of the foregoing.
Borrowings also may be classified and referred to by Class (e.g., a
"Revolving Borrowing") or by
Type (e.g., a "Fixed Rate Borrowing") or by the Available Currency
in which it is denominated (e.g, Dollar Borrowings) or by Class,
Type and Available Currency (e.g., a "Fixed Rate Revolving Dollar
Borrowing") or by any combination of the foregoing.
Section 1.03
Terms Generally.
The definitions of terms herein shall apply equally to the singular
and plural forms of the
terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation".
The word "will"
shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition
of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement,
instrument
or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's
successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to
refer
to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and
(e) the words "asset" and "property" shall be construed to have the
same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 1.04
Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial
nature shall be construed in accordance with GAAP, as in effect
from time to time; provided that, if the Borrower notifies the
Agent
that the Borrower requests an amendment to any provision hereof to
eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of
such provision (or if the Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof,
then such provision shall be interpreted on the basis of GAAP as
in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or
such
provision amended in accordance herewith.
Section 1.05
Conversion of Foreign Currencies.
(a)
Dollar Equivalents. The Agent may determine the Dollar Amount of
any amount as required hereby, and a determination thereof
by the Agent shall be conclusive absent manifest error.
The Agent may, but shall not be obligated to, rely on any
determination of
any Dollar Amount by the Borrower.
The Agent may determine or redetermine the Dollar Amount of any
amount on any date either in its
own discretion or upon the request of any Lender, including the
Dollar Amount of any Loan or Letter of Credit made or issued in an
Available Currency other than Dollars.
(b)
Rounding-Off.
The Agent may set up appropriate rounding-off mechanisms or
otherwise round-off amounts hereunder to the
nearest higher or lower amount in whole Dollars, Sterling, Euros or
smaller denomination thereof to ensure amounts owing by any
20
party hereunder or that otherwise need to be calculated or
converted hereunder are expressed in whole Dollars, whole Sterling,
whole
Euros or in whole smaller denomination thereof, as may be necessary
or appropriate.
ARTICLE II
The Credits
Section 2.01.
Commitments.
Subject to the terms and conditions set forth herein, each
Revolving Lender agrees to make Dollar
advances to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not
result in such Revolving Lender's Revolving Exposure exceeding such
Revolving Lender's Revolving Commitment.
Within the foregoing
limits and subject to the terms and conditions set forth herein,
the Borrower may borrow, prepay and reborrow under this Section
2.01.
Section 2.02.
Revolving Loans and Revolving Borrowings.
(a)
Allocation Among Revolving Lenders. Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans
of the same Type made by the Revolving Lenders ratably in
accordance with their respective Revolving Commitments. The failure
of any
Revolving Lender to make any Revolving Loan required to be made by
it shall not relieve any other Revolving Lender of its
obligations hereunder; provided that the Revolving Commitments of
the Revolving Lenders are several and no Revolving Lender shall be
responsible for any other Revolving Lender's failure to make
Revolving Loans as required.
(b)
Types of Revolving Borrowings.
Subject to Section 2.13, each Revolving Borrowing shall be
comprised entirely of
ABR Dollar Loans or Fixed Rate Dollar Loans as the Borrower may
request in accordance herewith; provided that all Borrowings made
on
the Effective Date must be made as ABR Borrowings.
Each Revolving Lender at its option may make any Fixed Rate Loan by
causing any
domestic or foreign branch or Affiliate of such Revolving Lender to
make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c)
Minimum Amounts.
At the commencement of each Interest Period for any Fixed Rate
Revolving Borrowing, such Borrowing shall
be in an aggregate amount that is an integral multiple of $250,000
and not less than $2,000,000. At the time that each ABR Revolving
Borrowing is made, such Borrowing shall be in a minimum amount of
$50,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the
total Revolving Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section
2.05(e).
Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any
time be more than a total of 10 Fixed Rate Borrowings outstanding
under both the Revolving Loans and the Swingline Loans.
(d)
Limitation on Interest Periods.
Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled
to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after
the Maturity Date.
21
Section 2.03.
Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Agent of such
request by telephone (a) in the case of a Fixed Rate Dollar
Borrowing, not later than 1:00 p.m., Dallas, Texas time, three
Business
Days before the date of the proposed Borrowing, or (b) in the case
of an ABR Borrowing, not later than 1:00 p.m., Dallas, Texas
time, on the day of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Agent of a written
Borrowing Request in a form approved by the Agent and signed by the
Borrower. Each such telephonic and written Borrowing Request shall
specify the following information in compliance with Section
2.02:
(i)
the aggregate amount of such Borrowing;
(ii)
the date of such Borrowing, which shall be a Business Day;
(iii)
whether such Borrowing is to be an ABR Borrowing or a Fixed Rate
Borrowing (no Fed Funds Borrowing is available under the
Revolving Loans);
(iv)
in the case of a Fixed Rate Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v)
the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Borrowing is specified, then the
requested Borrowing shall be an ABR Borrowing.
If no
Interest Period is specified with respect to any requested Fixed
Rate Borrowing, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance
with this Section, the
Agent shall advise each Revolving Lender of the details thereof and
of the amount of such Revolving Lender's Loan to be made as part
of the requested Borrowing.
Section 2.04.
Swingline Loans.
(a)
Commitment.
Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make advances in such
Available Currency as the Borrower may request (each such advance,
herein a "Swingline Loan") to the Borrower from time to time
during the Revolving Availability Period in an aggregate principal
amount at any time outstanding that will not result in:
(i) the
aggregate principal amount of outstanding Swingline Dollar Loans
exceeding $30,000,000; (ii) the aggregate Dollar Amount of the
outstanding Euro Loans exceeding $5,000,000; (iii) the aggregate
Dollar Amount of outstanding Sterling Loans exceeding $5,000,000;
and (iv) the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender shall not
be
required to make a Swingline Dollar Loan to refinance an
outstanding Swingline Dollar Loan.
Within the foregoing limits and subject
to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Swingline Loans.
(b)
Request for Swingline Borrowing.
To request a Swingline Loan, the Borrower shall notify the
Swingline Lender of such
request by telephone (confirmed by telecopy) (i) in the case of a
Fed Funds Borrowing, not later than 1:00 p.m., Dallas, Texas time,
on the day of a proposed Borrowing and (ii) in the case of a Euro
Borrowing or a Sterling Borrowing, not later than 2:00 p.m., New
York, New York time, three Business Days before such Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and
22
shall be confirmed promptly by hand delivery or telecopy to the
Agent of a written Borrowing Request in a form approved by the
Agent
and signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in
compliance
with Section 2.02:
(i)
the aggregate amount of such Borrowing;
(ii)
the date of such Borrowing, which shall be a Business Day;
(iii)
whether such Borrowing is to be a Fed Funds Borrowing or a Fixed
Rate Borrowing;
(iv)
in the case of a Fixed Rate Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period";
(v)
in the case of a Fixed Rate Borrowing, the Available Currency in
which such Borrowing is to be denominated (provided that
Fixed Rate Dollar Loans made not be made under the Swingline Loan);
and
(vi)
the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the
requirements of Section 2.06.
If no election as to the Type of Swingline Borrowing is specified,
then the requested Swingline Borrowing shall be a
Fed Funds Dollar Borrowing.
If no Interest Period is specified with respect to any requested
Fixed Rate Swingline Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of
one month's duration.
Each such notice shall be irrevocable.
The Swingline Lender shall make each Swingline Loan available to
the Borrower by means of a credit to the general deposit account of
the Borrower with the Swingline Lender or by wire transfer,
automated clearing house debit or interbank transfer to such other
account, accounts or Persons as may be designated from time to time
by the Borrower (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in
Section 2.05(e), by remittance to the applicable Issuing Bank) by
3:00 p.m., Dallas, Texas time, on the requested date of such
Swingline Loan.
(c)
Types of Swingline Borrowings.
Subject to Section 2.13, each Swingline Borrowing shall be
comprised entirely of Fed Funds
Dollar Loans or Fixed Rate Loans denominated in either Euros or
Sterling as the Borrower may request in accordance herewith.
The
Swingline Lender at its option may make any Fixed Rate Swingline
Loan by causing any domestic or foreign branch or Affiliate of such
Swingline Lender to make such Loan; provided that any exercise of
such option shall not affect the obligation of the Borrower to
repay such Loan in accordance with the terms of this Agreement.
(d)
Minimum Amounts.
At the time that each Swingline Dollar Borrowing is made, such
Borrowing shall be in an aggregate amount
that is not less than $1.00 and at the time that each Swingline
Euro Borrowing or Swingline Sterling Borrowing is made, such
Borrowing shall be in an aggregate amount that is not less than
$50,000.
Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any
time be more than a total of 10 Fixed Rate Borrowings outstanding
under both the Revolving Loans and the Swingline Loans.
(e)
Limitations on Interest Periods.
Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled
to request, or to elect to convert or continue, any Borrowing if
the Interest Period requested with respect thereto would end after
the Maturity Date.
No Fixed Rate Dollar Borrowing may be made under the Swingline
Loan.
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(f)
Participations in Swingline Loans. The Swingline Lender may by
written notice given to the Agent not later than 12:00 noon,
Dallas, Texas time, on any Business Day require the Revolving
Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate Dollar Amount of Swingline
Loans in which
Revolving Lenders will participate.
Promptly upon receipt of such notice, the Agent will give notice
thereof to each Revolving
Lender, specifying in such notice such Revolving Lender's
Applicable Percentage of such Swingline Loan or Loans.
Each Revolving
Lender hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to the Agent in Dollars, for
the account of the Swingline Lender, the Dollar Amount of such
Revolving Lender's Applicable Percentage of such Swingline Loan or
Loans.
Each Revolving Lender acknowledges and agrees that its obligation
to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including the occurrence
and
continuance of a Default or reduction or termination of the
Revolving Commitments, and that each such payment shall be made
without
any offset, abatement, withholding or reduction whatsoever.
Each Revolving Lender shall comply with its obligation under this
paragraph by wire transfer of Dollars in immediately available
funds, in the same manner as provided in Section 2.06 with respect
to
Loans made by such Revolving Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and
the Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. Upon the funding of a
participation under this clause (f) in any Euro Loan or Sterling
Loan, the portion of such Loans so funded shall be converted to
Dollar Swingline Loans accruing interest as Fed Funds Loans but
JPMorgan's Applicable Percentage of such Loans shall remain as a
Euro Loan or a Sterling Loan.
The Agent shall notify the Borrower of any participations in any
Swingline Loan acquired pursuant to
this paragraph, and thereafter payments in respect of such
Swingline Loan shall be made to the Agent and not to the Swingline
Lender.
Any amounts received by the Swingline Lender from the Borrower (or
other party on behalf of the Borrower) in respect of a
Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly
remitted
to the Agent; any such amounts received by the Agent shall be
promptly remitted by the Agent to the Revolving Lenders that shall
have made their payments pursuant to this paragraph and to the
Swingline Lender, as their interests may appear.
The purchase of
participations in a Swingline Loan pursuant to this paragraph shall
not relieve the Borrower of any default in the payment thereof.
Section 2.05
Letters of Credit.
(a)
General.
Subject to the terms and conditions set forth herein, the Borrower
may request the issuance of Letters of Credit
for its own account, in a form reasonably acceptable to the
applicable Issuing Bank, at any time and from time to time during
the
Revolving Availability Period.
In the event of any inconsistency between the terms and conditions
of this Agreement and the terms
and conditions of any form of letter of credit application or other
agreement submitted by the Borrower to, or entered into by the
Borrower with, an Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control.
(b)
Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions.
To request the issuance of a Letter of Credit (or
the amendment, renewal or extension of an outstanding Letter of
Credit), the Borrower shall hand deliver or telecopy (or transmit
by
electronic communication, if arrangements for doing so have been
approved by the applicable Issuing Bank) to the applicable Issuing
Bank and the Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting
24
the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date
of issuance, amendment, renewal or extension (which shall be a
Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the Available Currency in which such
Letter of Credit is requested to be issued, the name and address of
the beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of Credit.
If requested by the applicable Issuing Bank, the Borrower also
shall submit a letter of credit application on such Issuing Bank's
standard form in connection with any request for a Letter of
Credit.
A Letter of Credit shall be issued, amended, renewed or extended
only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the Dollar Amount of
the LC Exposure shall not exceed $50,000,000 and (ii) the total
Revolving Exposures shall not exceed the total Revolving
Commitments.
(c)
Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one
year after the date of the issuance of such Letter of Credit (or,
in the case of any renewal or extension thereof, one year after
such renewal or extension) (provided that any Letter of Credit with
a one-year term may provide for the renewal thereof for
additional one-year periods not to extend past the date in clause
(ii) below) and (ii) the date that is five Business Days prior to
the Maturity Date.
(d)
Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof)
and without any further action on the part of the applicable
Issuing Bank or the Revolving Lenders, the applicable Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the applicable Issuing Bank, a participation
in such Letter of Credit equal to such Revolving Lender's
Applicable Percentage of the aggregate amount available to be drawn
under
such Letter of Credit.
In consideration and in furtherance of the foregoing, each
Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Agent, for the account of the
applicable Issuing Bank, in Dollars such Revolving Lender's
Applicable Percentage of the Dollar Amount of each LC Disbursement
made by such Issuing Bank and not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or of
any reimbursement payment required to be refunded to the Borrower
for any reason.
Each Revolving Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance
whatsoever,
including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction
or
termination of the Revolving Commitments, and that each such
payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
Any participation funded under this paragraph (d) shall be
converted to Dollar ABR Loans.
(e)
Reimbursement.
If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall
reimburse such LC Disbursement by paying to the Agent an amount in
the applicable Available Currency equal to such LC Disbursement
not later than 12:00 noon, Dallas, Texas time, on the date that
such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., Dallas, Texas
time, on such date, or, if such notice has not been received by
the Borrower prior to such time on such date, then not later than
12:00 noon, Dallas, Texas time, on the Business Day immediately
following the day that the Borrower receives such notice; provided
that the Borrower may, subject to the conditions to borrowing set
forth herein, request in accordance with Section 2.03 or 2.04 that
such payment be financed with an ABR Borrowing (if such
LC Disbursement is denominated in Dollars) or Swingline Loan (if
such LC Disbursement is denominated in Dollars or any other
25
Available Currency) in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Borrowing or Swingline
Loan.
If the Borrower fails to make such payment when due, the
Agent shall notify each Revolving Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect
thereof and such Revolving Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender
shall pay to the Agent in Dollars, the Dollar Amount of its
Applicable Percentage of the payment then due from the Borrower, in
the
same manner as provided in Section 2.06 with respect to Loans made
by such Revolving Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and
the Agent shall promptly pay to the applicable Issuing Bank the
amounts so received by it from the Revolving Lenders.
Promptly following receipt by the Agent of any payment from the
Borrower
pursuant to this paragraph, the Agent shall distribute such payment
to the applicable Issuing Bank or, to the extent that Revolving
Lenders have made payments pursuant to this paragraph to reimburse
the applicable Issuing Bank, then to such Revolving Lenders and
the applicable Issuing Bank as their interests may appear.
Any payment made by a Revolving Lender pursuant to this paragraph
to
reimburse an Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated
above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f)
Obligations Absolute.
The Borrower's obligation to reimburse LC Disbursements as provided
in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement
under any and all circumstances whatsoever and irrespective of (i)
any lack of validity or enforceability of any Letter of Credit or
this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect, (iii) payment by
an
Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such
Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that
might,
but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder.
The Agent, the Lenders, the Issuing Banks, or any of their Related
Parties, shall not have any
liability or responsibility by reason of or in connection with the
issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required
to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the
control of an Issuing Bank.
The foregoing provisions of this
paragraph (f) shall not be construed to excuse an Issuing Bank from
liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by such
Issuing Bank's failure to exercise care when determining whether
drafts and other documents presented under a Letter of Credit
comply with the terms thereof.
The parties hereto expressly agree
that, in the absence of gross negligence or willful misconduct on
the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), an Issuing Bank shall be deemed to have
exercised care in each such determination.
In furtherance of the
foregoing and without limiting the generality thereof, the parties
agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a
Letter of Credit, an Issuing Bank may, in its sole discretion,
either
accept and make payment upon such documents without responsibility
for further investigation, regardless of any notice or
26
information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
(g)
Disbursement Procedures. An Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit.
An Issuing Bank shall promptly notify the Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and
whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to
reimburse the applicable Issuing Bank and the Lenders with respect
to any such LC Disbursement.
(h)
Interim Interest.
If an Issuing Bank shall make any LC Disbursement, then, unless the
Borrower shall reimburse such
LC Disbursement in full on the date such LC Disbursement is made,
the unpaid amount thereof shall bear interest, for each day from
and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC
Disbursement, at
the rate per annum then applicable to ABR Loans; provided that, if
the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(d)
shall apply.
Interest accrued pursuant to this paragraph shall be
for the account of the applicable Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving
Lender pursuant to paragraph (e) of this Section to reimburse an
Issuing Bank shall be for the account of such Revolving Lender to
the extent of such payment.
(i)
Replacement of the Issuing Bank.
Any Issuing Bank may be replaced at any time by written agreement
among the Borrower, the
Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Agent shall notify the Lenders of any such replacement of an
Issuing Bank.
At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.11(b).
From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of
an Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the
term "Issuing Bank" shall be deemed to refer to such successor or
to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require.
After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank
shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters
of Credit.
(j)
Cash Collateralization.
If any Event of Default shall occur and be continuing, on the
Business Day that the Borrower
receives notice from the Agent or the Required Lenders demanding
the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Collateral Agent, in
the name of the Collateral Agent and for the benefit of the
Creditors (as defined in the Intercreditor Agreement), an amount in
cash and in the applicable Available Currency equal to the
LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in paragraph (h) or (i) of
Article VIII. Each such deposit shall be held by the Collateral
Agent as collateral for the payment and performance of the
Obligations (as that term is defined in the Intercreditor
Agreement). The Collateral Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such
account.
Other than any interest earned on the investment of such
27
deposits, which investments shall be made at the option and sole
discretion of the Collateral Agent and at the Borrower's risk and
expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate
in such account.
Moneys in such account shall be applied by the Collateral Agent to
reimburse the Issuing Bank for LC Disbursements for which it has
not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated (but subject to the consent of
Required Lenders) be applied to satisfy the other Obligations in
accordance with the terms of the Intercreditor Agreement.
If the
Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default,
such
amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of
Default have been cured or waived.
Section 2.06
Funding of Revolving Borrowings.
(a)
Lender Funding.
Each Revolving Lender shall make each Revolving Loan to be made by
it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 12:00
noon, Dallas, Texas time, to the account of the Agent most recently
designated by it for such purpose by notice to the Revolving
Lenders.
The Agent will make such Revolving Loans available to the
Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Agent or
by
wire transfer, automated clearing house debit or interbank transfer
to such other account, accounts or Persons designated by the
Borrower in the applicable Borrowing Request; provided that ABR
Revolving Loans made to finance the reimbursement of an
LC Disbursement as provided in Section 2.05(e) shall be remitted by
the Agent to the Issuing Bank.
(b)
Failure to Fund.
Unless the Agent shall have received notice from a Lender prior to
the proposed date of any Revolving
Borrowing that such Lender will not make available to the Agent
such Lender's share of such Revolving Borrowing, the Agent may
assume that such Lender has made such share available on such date
in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a
corresponding amount.
In such event, if a Lender has not in fact
made its share of the applicable Revolving Borrowing available to
the Agent, then the applicable Lender and the Borrower severally
agree to pay to the Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding
the date of payment to the Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans.
If such Lender pays such
amount to the Agent, then such amount shall constitute such
Lender's Loan included in such Revolving Borrowing.
Section 2.07.
Interest Elections.
(a)
Types of Borrowings.
Each Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in
the case of a Fixed Rate Borrowing, shall have an initial Interest
Period and shall be denominated in the applicable Available
Currency as specified in such Borrowing Request; provided that the
Available Currency applicable to all
