SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
ACXIOM CORPORATION
(Name of Issuer)
ACXIOM/MAY & SPEH, INC.
(Name of Person(s) Filing Statement)
51/4% CONVERTIBLE SUBORDINATED NOTES DUE 2003
(Title of Class of Securities)
57777AAA
(CUSIP Number of Class of Securities)
ERIC LOUGHMILLER
Acxiom/May & Speh, Inc.
1501 Opus Place
Downers Grove, Illinois 60515
(630) 964-1501
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of the Person(s)
Filing Statement)
COPIES TO:
J. MICHAEL SCHELL, ESQ.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
(212) 735-3000
October 23, 1998
(Date Tender Offer First Published, Sent or Given to Security Holders)
CALCULATION OF FILING FEE
--------------------------------------------------------------------------
Transaction Valuation*: Amount of Filing Fee:
--------------------------------------------------------------------------
$115,838,542 $23,168
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* The transaction value shown is only for the purpose of calculating
the filing fee. The amount shown reflects the cost of purchasing
$115,000,000 principal amount of Notes at the repurchase price (100% of the
principal amount of the Notes, plus accrued interest to the date of
repurchase) as of November 20, 1998 (the initial expiration date of the
Offer). The amount of the filing fee is calculated in accordance with
Section 13(e)(3) of the Securities Exchange Act of 1934, as amended.
( ) Check box if any part of the fee is offset as provided in Rule 0-
11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration number,
or the Form or Schedule and the date of its filing.
Amount Previously Paid: Filing Party:
Form or Registration No.: Date Filed
INTRODUCTORY NOTE
This Issuer Tender Offer Statement on Schedule 13E-4 (the "Statement")
is filed pursuant to Rule 13e-4 under the Securities Exchange Act of 1934,
as amended (the "Act"), and relates to the offer by Acxiom/May & Speh, Inc.
("May & Speh"), a wholly owned subsidiary of Acxiom Corporation ("Acxiom")
to purchase for cash, on the terms and subject to the conditions set forth
in the attached Offer to Purchase dated October 23, 1998 (the "Offer
to Purchase" and the related Letter of Transmittal (the "Letter of
Transmittal") all of its outstanding 51/4% Convertible Subordinated Notes
due 2003 (the "Notes"). The Notes are currently convertible into shares of
Common Stock, par value $.10 per share of Acxiom ("Acxiom Common Stock") at
a conversion price of $19.89 per share of Acxiom Common Stock.
Copies of the Offer to Purchase and the related Letter of Transmittal
have been filed as Exhibits to this Statement. All cross-references below
are to the Notice and the Proxy Statement, which are incorporated herein by
reference. Capitalized terms used but not defined herein shall have the
meanings set forth in the Offer to Purchase.
Item 1. Security and Issuer
(a) The issuer of the Notes is Acxiom Corporation. Acxiom's
principal executive offices are located at 301 Industrial
Boulevard, Conway, Arkansas, 72033 and its telephone number
is (501) 336-1000.
(b) The securities which are the subject of the Offer are the 5
1/4% Convertible Subordinated Notes due 2003 originally
issued by May & Speh, a wholly owned subsidiary of Acxiom.
The Notes are convertible into Acxiom Common Stock at a
conversion price of $19.89 per share of Acxiom Common
Stock. In connection with the Merger and pursuant to the
Supplemental Indenture, Acxiom has agreed to assume as a
co-obligor all of the obligations of May & Speh under the
Notes and the Indenture. As of the date hereof, there was
$115,000,000 in aggregate principal amount of Notes
outstanding. The Offer is to purchase for cash at the
Repurchase Price any and all Notes validly tendered (and not
withdrawn) pursuant to the terms and conditions of the Offer
prior to the Expiration Date in denominations of $1,000
principal amount of Notes or integral multiples of $1,000.
To the knowledge of Acxiom and May & Speh, no Notes are
being purchased from any officer, director or affiliate of
Acxiom or May & Speh.
(c) The information set forth under the caption "MARKET PRICE
INFORMATION" in the Offer to Purchase is incorporated herein
by reference.
(d) The person filing this Statement is May & Speh. May &
Speh's principal executive offices are located at 1501 Opus
Place, Downers Grove, Illinois 60515 and its telephone
number is (630) 964-1501.
Item 2. Source and Amount of Funds or Other Consideration.
(a)-(b) The information set forth under the caption
"SOURCE AND AMOUNT OF FUNDS" in the Offer to
Purchase is incorporated herein by reference.
Item 3. Purpose of the Tender Offer and Plans or Proposals of the Issuer
or Affiliates.
The information set forth under the captions "GENERAL" and
"PURPOSE AND EFFECTS OF THE OFFER" in the Offer to Purchase is
incorporated herein by reference. Upon repurchase, the Notes
will cease to be outstanding and will be delivered to Harris
Trust and Savings Bank, as Trustee, for cancellation immediately
after such purchase.
(a) The information set forth under the caption "PURPOSE AND EFFECTS
OF THE OFFER" in the Offer to Purchase is incorporated herein by
reference.
(b) The information set forth in the cover page of the Offer to
Purchase is incorporated herein by reference.
(c) None.
(d) None.
(e) None.
(f) None.
(g) None.
(h) The information set forth under the caption "PURPOSE AND EFFECTS
OF THE MERGER" is incorporated herein by reference.
(i) The information set forth under the captions "AVAILABLE
INFORMATION" and "PURPOSE AND EFFECTS OF THE MERGER" is
incorporated herein by reference.
(j) The information set forth under the captions "AVAILABLE
INFORMATION" and "PURPOSE AND EFFECTS OF THE MERGER" is
incorporated herein by reference.
Item 4. Interest in Securities of the Issuer.
None
Item 5. Contracts, Arrangements, Understandings or Relationships with
Respect to the Issuer's Securities.
The information set forth under the captions "GENERAL," "PURPOSE
AND EFFECTS OF THE OFFER," "SOURCE AND AMOUNT OF FUNDS" and the
cover page of the Offer to Purchase is incorporated herein by
reference.
Item 6. Persons Retained, Employed or to be Compensated.
The information set forth under the caption "THE PAYING AGENT" in
the Offer to Purchase is incorporated herein by reference.
Item 7. Financial Information.
(a) The following documents filed by Acxiom (File No. 0-13163)
with the Commission are incorporated herein by reference and
shall be deemed to be a part hereof:
1. Proxy Statement of Acxiom on Schedule 14A dated August 17,
1998;
2. Annual Report of Acxiom on Form 10-K for the fiscal year
ended March 31, 1998, as amended by the Annual Report of
Acxiom on Form 10-K/A dated July 29, 1998 and the Annual
Report of Acxiom on Form 10-K/A dated August 4, 1998;
3. Quarterly Report of Acxiom on Form 10-Q for the fiscal
quarter ended June 30, 1998; and
4. Current Reports of Acxiom on Form 8-K dated June 4, 1998 and
September 18, 1998.
The following documents filed by May & Speh (File No. 0-27872)
with the Commission are incorporated herein by reference and
shall be deemed to be a part hereof:
1. Proxy Statement of May & Speh on Schedule 14A dated August
17, 1998;
2. Annual Report of May & Speh on Form 10-K for the fiscal year
ended September 30, 1997;
3. Quarterly Reports of May & Speh on Form 10-Q for the fiscal
quarters ended December 31, 1997; March 31, 1998 and June
30, 1998; and
4. Current Report of May & Speh on Form 8-K dated June 4, 1998.
All documents filed with the Commission by Acxiom pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date hereof shall be deemed to be incorporated by
reference herein and to be a part hereof from the date any such
document is filed.
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Statement to the
extent that a statement contained herein (or in any other
subsequently filed document that also is or is deemed to be
incorporated by reference herein) modifies or supersedes such
statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute
a part of this Statement.
(b) Not applicable.
Item 8. Additional Information.
(a) None.
(b) None.
(c) Not applicable.
(d) None.
(e) The information set forth in the Offer to Purchase is
incorporated herein by reference. Reference is hereby made to
the exhibits hereto which are incorporated in their entirety
herein by reference.
Item 9. Material to be Filed as Exhibits.
Exhibit No. Description
(a)-(1) - Offer to Purchase, dated October 23,
1998.
(a)-(2) - Letter of Transmittal.
(a)-(3) - Notice of Guaranteed Delivery.
(a)-(4) - Letter to Clients.
(a)-(5) - Letter to Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(b)(1) - Credit Agreement, dated as of March 26,
1998, by and among Acxiom, as borrower,
Mercantile Bank, as Administrative and
Documentation Agent, Chase Manhattan
Bank, as Syndication Agent and the other
lenders named therein.
(b)(2) - Demand Note, dated September 18, 1998,
from Acxiom to May & Speh.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete
and correct.
Dated: October 23, 1998 ACXIOM/MAY & SPEH, INC.
By /s/ Eric Loughmiller
------------------------------
Name: Eric Loughmiller
Title: Chief Financial Officer
EXHIBIT (a)-(1)
STATEMENT OF OFFER TO PURCHASE
ACXIOM/MAY & SPEH, INC.
OFFERS TO PURCHASE FOR CASH
ALL OF ITS OUTSTANDING
5 1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2003
(CUSIP 57777AAA)
-------------------
THIS OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON NOVEMBER
20, 1998 UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE
"EXPIRATION DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO
THE EXPIRATION DATE
-------------------
Acxiom/May & Speh, Inc., a Delaware corporation formerly known as May
& Speh, Inc. ("May & Speh") and a wholly owned subsidiary of Acxiom
Corporation ("Acxiom"), hereby offers to purchase for cash, upon the terms
set forth in this Offer to Purchase (the "Offer to Purchase") and in the
accompanying Letter of Transmittal (the "Letter of Transmittal" and,
together with the Offer to Purchase, the "Offer"), all of its outstanding
51/4% Convertible Subordinated Notes due 2003 (the "Notes") from any and
all Holders (as defined in the Indenture governing the Notes, dated as of
March 25, 1998, between May & Speh, Inc. and Harris Trust and Savings Bank,
as trustee (the "Trustee"), as supplemented by the Supplemental Indenture
(the "Supplemental Indenture"), dated as of September 17, 1998, between
Acxiom, May & Speh, Inc. and the Trustee (the "Indenture")) thereof, at a
cash price (the "Repurchase Price") equal to 100% of the principal amount
thereof, plus accrued and unpaid interest up to, but excluding, the
Repurchase Date (as defined below). Holders may tender all or any portion
of the Notes owned by such Holder; provided, however, that Notes may be
tendered only in integral multiples of $1,000. Capitalized terms used but
not defined herein shall have the meanings set forth in the Indenture.
Section 11.1 of the Indenture provides that in the event of a Change
of Control, May & Speh is required to make an offer to purchase all of the
Notes for 100% of the principal amount thereof plus accrued and unpaid
interest, if any, up to, but excluding, the Repurchase Date. Pursuant to
the Amended and Restated Agreement and Plan of Merger, dated as of May 26,
1998 (the "Merger Agreement"), by and among May & Speh, Inc., Acxiom and
ACX Acquisition Co., Inc. ("ACX"), a wholly owned subsidiary of Acxiom, as
of September 17, 1998 (the "Effective Time"), ACX has merged with and into
May & Speh, Inc., and May & Speh, Inc. has become a wholly owned subsidiary
of Acxiom (the "Merger"). Pursuant to the Merger, each outstanding share
of May & Speh Common Stock was converted into the right to receive 0.8 of a
share of Common Stock, par value $.10 per share of Acxiom ("Acxiom Common
Stock"). In connection with the Merger, May & Speh, Inc. changed its name
to Acxiom/May & Speh, Inc. As a result of the Merger, a Change of Control
as defined in Section 1.1 in the Indenture has occurred. Accordingly, May
& Speh is making the Offer pursuant to the requirements and subject to the
terms of Section 11.1 of the Indenture. This Offer to Purchase and the
Letter of Transmittal also constitute notice to Holders of Notes pursuant
to Section 11.1 of the Indenture.
As of the date hereof, $115,000,000 in aggregate principal amount of
Notes are outstanding. Prior to consummation of the Merger, the Notes were
convertible into shares of Common Stock, par value $.01 per share of May &
Speh ("May & Speh Common Stock") at a conversion price of $15.91 per
share of May & Speh Common Stock. Upon consummation of the Merger, pursuant
to the Supplemental Indenture, the Notes became and are currently
convertible into shares of Acxiom Common Stock at a conversion price of
$19.89 per share of Acxiom Common Stock. In connection with the Merger and
pursuant to the Supplemental Indenture, Acxiom has agreed to assume as a
co-obligor all of the obligations of May & Speh under the Notes and the
Indenture.
Upon the terms of the Offer (including, if the Offer is extended or
amended, the terms of any such extension or amendment) and applicable law,
May & Speh will purchase, by accepting for payment, and will pay for, all
Notes validly tendered (and not withdrawn) pursuant to the Offer promptly
following the Expiration Date (the "Repurchase Date"). Notes accepted for
payment will cease to accrue interest on the Repurchase Date. Notes not
tendered or accepted for payment will continue to accrue interest.
OCTOBER 23, 1998
CERTAIN OFFER MATTERS
Tenders of Notes may be withdrawn at any time prior to the Expiration
Date. For a withdrawal of a tendered Note to be valid, such withdrawal
must comply with the procedures set forth under the caption "WITHDRAWAL OF
TENDERS" herein. If May & Speh makes a material change in the terms of the
Offer or the information concerning the Offer, May & Speh will disseminate
additional Offer materials and extend such Offer to the extent required by
law. Other than as set forth herein, once tendered, Notes may not be
withdrawn. See "WITHDRAWAL OF TENDERS."
Letters of Transmittal, the Notes and any other required documents
should be sent to Harris Trust and Savings Bank, as paying agent (the
"Paying Agent") only, and the method of delivery of such documents to the
Paying Agent is at the election and risk of the Holder tendering such Notes
and delivering such Letter of Transmittal and any other required documents.
Questions, requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and other related materials may be
directed to Acxiom/May & Speh, Inc., Attention: Eric Loughmiller, 1501
Opus Place, Downers Grove, Illinois 60515; telephone number (630) 964-
1501.
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE AN OFFER TO PURCHASE IN ANY
JURISDICTION IN WHICH, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE
SUCH OFFER UNDER APPLICABLE SECURITIES OR BLUE SKY LAWS. THE DELIVERY OF
THIS OFFER TO PURCHASE SHALL NOT UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE
INFORMATION SET FORTH HEREIN OR IN ANY ATTACHMENTS HERETO OR IN THE AFFAIRS
OF ACXIOM, MAY & SPEH OR ANY OF THEIR RESPECTIVE SUBSIDIARIES SINCE THE
DATE HEREOF.
NO PERSON HAS BEEN AUTHORIZED TO MAKE ANY RECOMMENDATION ON BEHALF OF
ACXIOM OR MAY & SPEH AS TO WHETHER A HOLDER SHOULD TENDER NOTES PURSUANT
TO THE TENDER OFFER. NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THE OFFER
OTHER THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR THE LETTER OF
TRANSMITTAL. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD
NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY ACXIOM, MAY & SPEH, THE
TRUSTEE AND PAYING AGENT OR ANY OF THEIR RESPECTIVE AFFILIATES.
Tendering Holders will not be obligated to pay any fees to the Paying
Agent.
AVAILABLE INFORMATION
Acxiom is subject to the information and reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission").
Prior to October 2, 1998, May & Speh was subject to the information and
reporting requirements of the Exchange Act and in accordance therewith
filed periodic reports, proxy statements and other information with the
Commission. Such reports, proxy statements and other information filed
with the Commission can be inspected and copied at the public reference
facilities of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, at the Commission's regional offices
at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and
at 7 World Trade Center, 13th Floor, New York, New York 10048. Copies of
such material may be obtained by mail from the Public Reference Section of
the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains an Internet Web Site that
contains reports, proxy and information statements, and other information
regarding Acxiom and May & Speh and other registrants that file
electronically with the Commission. The address of such site is:
http://www.sec.gov. In addition, the Acxiom Common Stock is listed and
traded on the NASDAQ National Market System, and such reports, proxy
statements and other information concerning Acxiom should be available for
inspection and copying at the National Association of Securities Dealers,
Inc., 1735 K Street, N.W. Washington, D.C. 20006.
The following documents filed by Acxiom with the Commission are
incorporated herein by reference and shall be deemed to be a part hereof:
1. Proxy Statement of Acxiom on Schedule 14A dated August 17, 1998;
2. Annual Report of Acxiom on Form 10-K for the fiscal year ended
March 31, 1998, as amended by the Annual Report of Acxiom on Form
10-K/A dated July 29, 1998 and the Annual Report of Acxiom on
Form 10-K/A dated August 4, 1998;
3. Quarterly Report of Acxiom on Form 10-Q for the fiscal quarter
ended June 30, 1998; and
4. Current Reports of Acxiom on Form 8-K dated June 4, 1998 and
September 18, 1998.
The following documents filed by May & Speh with the Commission are
incorporated herein by reference and shall be deemed to be a part hereof:
1. Proxy Statement of May & Speh on Schedule 14A dated August 17,
1998;
2. Annual Report of May & Speh on Form 10-K for the fiscal year
ended September 30, 1997;
3. Quarterly Reports of May & Speh on Form 10-Q for the fiscal
quarters ended December 31, 1997; March 31, 1998 and June 30,
1998; and
4. Current Report of May & Speh on Form 8-K dated June 4, 1998.
All documents filed with the Commission by Acxiom pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
shall be deemed to be incorporated by reference herein and to be a part
hereof from the date any such document is filed.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Offer to Purchase to the extent that a
statement contained herein (or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein) modifies
or supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Offer to Purchase.
May & Speh will provide without charge, upon written or oral request,
to each person, including any beneficial owner, to whom a copy of this
Offer to Purchase is delivered, a copy of any of the documents of Acxiom
and May & Speh (other than exhibits to such documents unless such exhibits
are specifically incorporated by reference) incorporated by reference
herein. Copies of the Indenture pursuant to which the Notes were issued
are also available from May & Speh upon request. Such written or oral
request should be directed to Acxiom/May & Speh, Inc., Attention: Eric
Loughmiller, 1501 Opus Place, Downers Grove, Illinois 60515; telephone
number (630) 964-1501. In order to assure timely delivery of such
documents prior to the Expiration Date, any request should be received by
November 12, 1998.
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS
This Offer to Purchase, including the information incorporated by
reference herein, contains certain forward looking statements with respect
to the financial condition, results of operations and businesses of Acxiom
and May & Speh. These forward-looking statements, which are based on
management's beliefs as well as on assumptions made by and information
currently available to management, involve certain known and unknown risks
including, but not limited to, economic and market conditions, competitive
activities or other business conditions, dependence on key customers,
fluctuations in sales or working capital, results of pending litigation,
and the impact of the Merger. Although each of Acxiom and May & Speh
believe that its expectations with respect to the forward-looking
statements are based upon reasonable assumptions within the bounds of its
knowledge of its business and operations, there can be no assurance that
actual results, performance or achievements of each of Acxiom and May &
Speh will not differ materially from any future results, performance or
achievements expressed or implied from such forward-looking statements.
TABLE OF CONTENTS
Page
CERTAIN OFFER MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . ii
AVAILABLE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . iii
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS . . . . . . . . . . . . iv
GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PURPOSE AND EFFECTS OF THE OFFER . . . . . . . . . . . . . . . . . . . 1
CERTAIN INFORMATION CONCERNING MAY & SPEH AND ACXIOM . . . . . . . . . 3
SOURCE AND AMOUNT OF FUNDS . . . . . . . . . . . . . . . . . . . . . . 4
MARKET PRICE INFORMATION . . . . . . . . . . . . . . . . . . . . . . . 5
TERMS OF THE OFFER . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ACCEPTANCE FOR PURCHASE AND PAYMENT FOR NOTES . . . . . . . . . . . . . 6
PROCEDURES FOR TENDERING NOTES . . . . . . . . . . . . . . . . . . . . 7
WITHDRAWAL OF TENDERS . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS . . . . . . . 11
THE PAYING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
FEES AND EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
GENERAL
May & Speh hereby offers, upon the terms and subject to the conditions
set forth herein and in the Letter of Transmittal, to purchase for cash at
the Repurchase Price any and all Notes validly tendered (and not withdrawn)
pursuant to the terms and conditions of the Offer prior to the Expiration
Date. See "PROCEDURES FOR TENDERING NOTES." May & Speh will accept only
tenders of Notes which are in an amount equal to $1,000 principal amount of
Notes or integral multiples of $1,000. Tenders of Notes may be withdrawn,
as provided herein, at any time prior to the Expiration Date. See
"WITHDRAWAL OF TENDERS."
Upon the terms and subject to the Conditions of the Offer (including,
if the Offer is extended or amended, the terms of any such extension or
amendment) and applicable law, May & Speh will purchase, by accepting for
payment, and will pay for, all Notes validly tendered (and not withdrawn)
pursuant to the Offer on the Repurchase Date. Such payment will be made by
the deposit of immediately available funds by May & Speh with the Paying
Agent, which will act as agent for tendering Holders for the purpose of
receiving payment from May & Speh and transmitting such payment to
tendering Holders. May & Speh expressly reserves the right, in its sole
discretion and subject to Rule 13e-4(f)(5) under the Exchange Act, to delay
acceptance for payment of or payment for Notes in order to comply, in whole
or in part, with any applicable law.
PURPOSE AND EFFECTS OF THE OFFER
This Offer is being made pursuant to the Indenture which provides, in
relevant part, that in the event of a Change of Control, May & Speh is
required to make an offer to purchase all of the outstanding Notes, on a
date not later than 45 Business Days after the occurrence of such Change of
Control, at a cash price equal to 100% of the principal amount thereof plus
accrued and unpaid interest, if any, up to, but excluding, the Repurchase
Date. "Change of Control" is defined in the Indenture as "(i) an event or
series of events as a result of which any "person" or "group" (as such
terms are used in Sections 13(d)(3) and 14(d) of the Exchange Act)
(excluding May & Speh or any wholly-owned subsidiary thereof) is or
becomes, directly or indirectly, the Beneficial Owner of more than 50% of
the Voting Stock, (ii) the completion of any consolidation with or merger
of May & Speh into any other Person, or sale, conveyance, transfer or lease
by May & Speh of all or substantially all of its assets to any Person, or
any merger of any other Person into May & Speh in a single transaction or
series of related transactions, and, in the case of any such transaction or
series of related transactions, the outstanding May & Speh Common Stock is
changed or exchanged as a result, unless the stockholders of May & Speh
immediately before such transaction own, directly or indirectly,
immediately following such transaction, at least a majority of the combined
voting power of the outstanding voting securities of the Person resulting
from such transaction in substantially the same proportion as their
ownership of the Voting Stock immediately before such transaction, or (iii)
such time as the Continuing Directors do not constitute a majority of the
Board of Directors of May & Speh (or, if applicable, a successor
corporation to May & Speh)". A Change of Control occurred on September 17,
1998 as a result of the consummation of the Merger, pursuant to which ACX
Acquisition Co., Inc. was merged with and into May & Speh, Inc., with May &
Speh continuing as the surviving corporation and becoming a wholly owned
subsidiary of Acxiom. In connection with the Merger, May & Speh, Inc.
changed its name to Acxiom/May & Speh, Inc. May & Speh is making this
Offer pursuant to the requirements and subject to the terms of Section 11.1
of the Indenture. This Offer to Purchase and the Letter of Transmittal
also constitute notice to Holders of Notes pursuant to Section 11.1 of the
Indenture.
As of the date hereof, $115,000,000 in aggregate principal amount of
Notes are outstanding. Immediately prior to the Merger, each $1,000
principal amount of Notes was convertible into shares of May & Speh Common
Stock at a conversion price of $15.91 per share of May & Speh Common Stock
(which reflected a conversion rate of 62.8535 shares of May & Speh Common
Stock per $1,000 in principal amount of Notes). Upon consummation of the
Merger and the effectiveness of the Supplemental Indenture, each $1,000
principal amount of Notes became convertible into shares of Acxiom Common
Stock at a conversion price of $19.89 per share of Acxiom Common Stock
(which reflects a conversion rate of 50.2828 shares of Acxiom Common Stock
per $1,000 in principal amount of Notes), subject to adjustment in certain
circumstances as provided in the Indenture. In connection with the Merger
and pursuant to the Supplemental Indenture, Acxiom has agreed to assume as
a co-obligor all of the obligations of May & Speh under the Notes and the
Indenture.
As a holder of Notes, your options include the following:
(a) Tender Pursuant to the Offer. At or before the close of business on
November 20, 1998, you may tender all or any part of your Notes
(in increments of $1,000 principal amount) pursuant to the Offer. See
"PROCEDURES FOR TENDERING NOTES." The Notes purchased in the Offer
will cease to be outstanding and will be delivered to the Trustee for
cancellation immediately after such purchase. If less than all the
principal amount of Notes held by a Holder is tendered and accepted
pursuant to the Offer, May & Speh shall issue, and the Trustee shall
authenticate and deliver to or on the order of the Holder thereof, at
the expense of May & Speh, new Notes of authorized denominations, in a
principal amount equal to the portion of the Notes not tendered or not
accepted, as the case may be, as promptly as practicable after the
Expiration Date.
(b) Sell Notes. You may sell some or all of your Notes through customary
brokerage facilities.
(c) Convert Notes into Acxiom Common Stock. As specified in the
Indenture, you may convert some or all of your Notes (in increments of
$1,000 principal amount) into shares of Acxiom Common Stock at a
conversion price of $19.89 per share of Acxiom Common Stock (which
reflects a conversion rate of 50.2828 shares of Acxiom Common Stock
per $1,000 in principal amount of Notes), subject to adjustment in
certain circumstances as provided in the Indenture.
(d) Retain Notes. You may continue to hold your Notes. Any Notes which
remain outstanding after consummation of the Offer will continue to be
obligations of May & Speh and Acxiom, will continue to accrue interest
as provided in the Indenture and will continue to be convertible at
the option of the Holder thereof into shares of Acxiom Common Stock.
In connection with the Merger, the Notes have been removed
from listing on the Nasdaq SmallCap Market as of October 2, 1998.
Accordingly, there is no established market for the Notes. In
addition, registration of the Notes under the Exchange Act, has been
terminated. The Notes are traded in the over-the-counter market by
certain dealers who from time to time are willing to make a market in
such securities. Prices and trading volume of the Notes in the over-
the-counter market are not reported and are difficult to monitor. To
the extent that Notes are traded, prices may fluctuate widely
depending on, among other things, the trading volumes and the balance
between buy and sell orders. There can be no assurance regarding the
prices at which the Notes may trade during and following the Offer.
While May & Speh is aware of recent trading in the Notes at prices
significantly higher than 100% of par value (plus accrued and unpaid
interest), prices of the Notes may be greater than or less than the
Repurchase Price on the Repurchase Date. Accordingly, the Board of
Directors of May & Speh makes no recommendation to Holders with
respect to tendering Notes pursuant to the Offer. HOLDERS ARE URGED
TO OBTAIN CURRENT INFORMATION WITH RESPECT TO THE MARKET PRICES OF THE
NOTES.
Depending on, among other things, the amount of Notes
outstanding after the Offer, the liquidity, market value and price
volatility of Notes may be adversely affected by the consummation of
the Offer. To the extent a market continues to exist for the Notes
after the Offer, the Notes may trade at a discount compared to present
trading prices depending on prevailing interest rates, the market for
securities with similar credit features, the performance of May & Speh
and other factors. There is no assurance that a market in the Notes
will exist and no assurance as to the prices at which the Notes may
trade.
From time to time in the future, May & Speh may acquire
Notes, if any, which are not tendered in response to the Offer through
open market purchases, privately negotiated transactions, tender
offers, exchange offers or otherwise, upon such terms and at such
prices as they may determine, which may be more or less than the price
to be paid pursuant to the Offer and could be for cash or other
consideration. There can be no assurance as to which, if any, of
these alternatives (or combinations thereof) May & Speh will choose to
pursue in the future.
CERTAIN INFORMATION CONCERNING MAY & SPEH AND ACXIOM
MAY & SPEH
May & Speh provides computer-based information management services
with a focus on direct marketing and information technology outsourcing
services. May & Speh's direct marketing services help companies execute
more profitable direct marketing and customer management programs.
Services include strategic analysis and strategy management; systems
consulting; custom data warehouse and datamart design, build,
implementation and management; statistical (predictive) modeling and
analysis; and list processing. May & Speh's information technology
outsourcing solutions support multi-platform processing, platform migration
and network management for clients seeking to outsource their information
technology operations, thereby liberating capital and redirecting their
focus to more strategic information technology initiatives. May & Speh's
direct marketing and information technology outsourcing services are
complementary and allow May & Speh to leverage its investment in its state-
of-the-art data processing center as well as its core competencies in
customized software systems development, large database management, high
speed data processing and data center management. May & Speh's open
architecture, multiple platform data center, with processing capacity of
approximately 6,000 million instructions per second provides its clients
with superior processing flexibility and speed.
May & Speh was originally incorporated in Delaware in October 1995,
and changed its name in connection with the Merger to Acxiom/May & Speh,
Inc. May & Speh's principal executive offices are located at 1501 Opus
Place, Downers Grove, Illinois 60515 and its telephone number is (630)
964-1501.
In connection with the Merger, May & Speh has become a wholly owned
subsidiary of Acxiom. As of the consummation of the Merger and pursuant to
the Supplemental Indenture, the Notes are currently convertible into Acxiom
Common Stock and Acxiom has agreed to assume as a co-obligor all of the
obligations of May & Speh under the Notes and the Indenture.
ACXIOM
Acxiom is in the business of data delivery and information integration
and management for customers in the United States and the United Kingdom,
and, to a smaller extent, Canada, Europe and Malaysia. While in the past
Acxiom's traditional business was focused upon the provision of data
processing and related computer-based services mainly to direct marketing
organizations, Acxiom's business has expanded in recent years beyond the
direct marketing industry. For some of its major customers, Acxiom
provides assistance in the form of information/database management, data
center management and/or the provision of data, the primary purpose of
which may be for activities other than direct marketing. For example,
Acxiom's largest customer, Allstate Insurance Company, uses Acxiom's
information management services and data for the purpose of underwriting
insurance. Acxiom's second largest customer, Trans Union Corporation, one
of the three major credit bureaus in the U.S., has among other things
outsourced the operation of its data center to Acxiom.
In the traditional direct marketing area, Acxiom is one of the leading
providers of computer-based marketing information services and marketing
data. Acxiom offers a broad range of services and data to direct marketers
and to other businesses which utilize direct marketing techniques such as
targeted direct mail, database marketing and data warehousing. Acxiom
assists its customers with the marketing process, including project design,
list brokering and management, list cleaning, list enhancement and list
production, database creation and management, and fulfillment and consumer
response analysis.
Acxiom was originally incorporated in Delaware in September 1983 under
the name CCX Network, Inc., and changed its name to Acxiom in July 1988.
Acxiom's principal executive offices are located at 301 Industrial
Boulevard, Conway, Arkansas, 72033 and its telephone number is (501) 336-
1000.
SOURCE AND AMOUNT OF FUNDS
The precise amount of funds required by May & Speh to purchase Notes
tendered pursuant to the Offer and to pay related fees and expenses will
not be known until the Expiration Date. If all holders of Notes tender
their Notes in the Offer, May & Speh will require funds of approximately
$115,838,542, including accrued and unpaid interest. May & Speh presently
intends to use cash from operating activities to purchase Notes tendered
pursuant to the Offer. To the extent such available cash is insufficient,
May & Speh currently intends to call the Demand Note, dated September 18,
1998, by Acxiom to May & Speh in the aggregate principal amount of $75.0
million (the "Demand Note"). In the event that May & Speh requires
additional funds to pay the Repurchase Price, Acxiom intends to provide May
& Speh with the additional funds with borrowings under its existing
revolving Credit Agreement, dated as of March 26, 1998, by and among
Acxiom, as borrower, Mercantile Bank, as Administrative and Documentation
Agent, Chase Manhattan Bank, as Syndication Agent and the other lenders
named therein (the "Credit Agreement"). Borrowings under the Credit
Agreement bear interest at the prime rate (or, at other alternative market
rates at Acxiom's option). At October 19, 1998, the effective interest
rate was 6.175%. In the event that borrowings under the Credit Agreement are
insufficient, Acxiom presently intends to borrow additional funds from its
existing lenders for the remainder. May & Speh believes that its resources,
including the amounts available under the Credit Agreement or to be borrowed
by Acxiom, will be sufficient for May & Speh to meet its obligation to
purchase Notes tendered pursuant to the Offer and pay related fees and
expenses.
MARKET PRICE INFORMATION
There is no established market for the Notes. The Notes are traded in
the over-the-counter market by certain dealers who from time to time are
willing to make a market in such securities. The following table sets
forth the high and low bid quotations for the Notes as reported by
Tradeline for the calendar quarters indicated:
1998 High/Ask Low/Bid
Second Quarter (May 18, 1998 through June 30, 1998) 141 1/8 113 7/8
Third Quarter 152 3/8 116 1/8
Fourth Quarter (through October 14, 1998) 134 3/4 107 5/8
HOLDERS ARE URGED TO OBTAIN CURRENT INFORMATION WITH RESPECT TO THE MARKET
PRICES OF THE NOTES.
Pursuant to the Indenture, the Notes are convertible into shares of
Acxiom Common Stock. The Acxiom Common Stock is currently listed and
traded on the NASDAQ National Market System under the symbol "ACXM." The
following table sets forth the high and low sales prices per share for the
Acxiom Common Stock as reported by the NASDAQ National Market System for
the calendar quarters indicated. Acxiom data are restated to reflect a 2
for 1 stock split in fiscal 1997.
1998 High Low
First Quarter 25 15/16 16 7/8
Second Quarter 25 15/16 19 5/8
Third Quarter 28 1/4 19 7/8
Fourth Quarter (through October 14, 1998) 24 5/8 16 1/2
1997
First Quarter 24 14 3/8
Second Quarter 20 5/8 11 1/8
Third Quarter 21 1/8 17 1/8
Fourth Quarter 19 1/4 14 1/8
On October 21, 1998, the closing sales price of the Acxiom Common
Stock, as reported on the NASDAQ National Market System, was $23 9/16 per
share. HOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE
ACXIOM COMMON STOCK PRIOR TO MAKING ANY DECISION WITH RESPECT TO THE OFFER.
TERMS OF THE OFFER.
Pursuant to the terms of the Offer (including if the Offer is extended
or amended, the terms of any such extension or amendment), all Notes which
are validly tendered in accordance with the procedures set forth under the
caption "PROCEDURES FOR TENDERING NOTES" herein and not withdrawn in
accordance with the procedures set forth under the caption "WITHDRAWAL OF
TENDERS" herein prior to the Expiration Date will be accepted for purchase
and paid for by May & Speh on the Repurchase Date.
May & Speh expressly reserves the right, at any time or from time to
time and for any reason, (i) to extend the period of time during which the
Offer is open and thereby delay acceptance for payment of, and the payment
for, any Notes, by giving oral or written notice of such extension to the
Paying Agent, and (ii) to amend the Offer in any respect by giving oral or
written notice of such amendment to the Paying Agent. Any extension or
amendment will be followed as promptly as practicable by public
announcement thereof, the announcement in the case of an extension to be
issued no later than 9:00 a.m., New York City time, on the next business
day after the previously scheduled Expiration Date.
If May & Speh extends the Offer, or if (whether before or after any
Notes have been accepted for purchase) the purchase of or payment for Notes
is delayed or May & Speh is unable to pay for Notes pursuant to the Offer
for any reason, then, without prejudice to May & Speh's rights under the
Offer, the Paying Agent may retain tendered Notes on behalf of May & Speh,
and such Notes may not be withdrawn except to the extent tendering Holders
are entitled to withdrawal rights as described herein. However, the
ability of May & Speh to delay the payment for Notes which May & Speh has
accepted for purchase is limited by Rule 13e-4(f)(5) under the Exchange
Act, which requires that a bidder pay the consideration offered or return
the securities deposited by or on behalf of holders of securities promptly
after the termination or withdrawal of a tender offer.
If May & Speh makes a material change in the terms of the Offer or the
information concerning the Offer, May & Speh will disseminate additional
Offer materials and extend such Offer to the extent required by law.
ACCEPTANCE FOR PURCHASE AND PAYMENT FOR NOTES
Upon the terms of the Offer (including if the Offer is extended or
amended, the terms and conditions of any such extension or amendment) and
applicable law, May & Speh will purchase, by accepting for payment, and
will pay for, all Notes validly tendered (and not withdrawn) pursuant to
the Offer on the Repurchase Date. May & Speh expressly reserves the right,
in May & Speh's sole discretion, to delay acceptance for payment of or
payment for Notes, subject to Rule 13e-4(f)(5) under the Exchange Act, in
order to comply, in whole or in part, with any applicable law. In all
cases, payment for Notes purchased pursuant to the Offer will be made only
after timely receipt by the Paying Agent of the documentation described
under "Procedures for Tendering Notes."
In all cases, payment for Notes purchased pursuant to the Offer will
be made by the Paying Agent, which will act as agent for tendering Holders
for the purpose of receiving payment from May & Speh and transmitting such
payment to tendering Holders. UNDER NO CIRCUMSTANCES WILL INTEREST ON THE
REPURCHASE PRICE BE PAID BY MAY & SPEH BY REASON OF ANY DELAY IN MAKING
PAYMENT.
Holders electing to have Notes or any portion thereof purchased
pursuant to this Offer are required to surrender their Notes to the Paying
Agent at its addresses specified on the back page of this Offer to Purchase
prior to 5:00 p.m., New York City time, on the Expiration Date and must
complete the Letter of Transmittal, or must comply with the procedures set
forth under "Procedures for Tendering Notes -- Guaranteed Delivery
Procedures."
Unless May & Speh defaults on making the payment or fails to deposit
sufficient funds with the Paying Agent, any portion of Notes tendered for
payment pursuant to the Offer shall cease to accrue interest after the
Repurchase Date.
PROCEDURES FOR TENDERING NOTES
TENDERS OF NOTES. The tender by a Holder of Notes (and subsequent
acceptance of such tender by May & Speh) pursuant to one of the procedures
set forth below will constitute an agreement between such Holder and May &
Speh in accordance with the terms and subject to the conditions set forth
herein and in the Letter of Transmittal.
Only Holders of Notes are authorized to execute the "Option of Holder
to Elect Purchase" contained in the Letter of Transmittal and tender their
Notes pursuant to the Offer. Accordingly, to properly tender Notes or
cause Notes to be tendered, the following procedures must be followed:
TENDER OF NOTES HELD THROUGH DTC. Each beneficial owner of Notes held
through a participant (a "DTC Participant") of DTC must instruct such DTC
Participant to cause its Notes to be tendered in accordance with the
procedures set forth in this Offer to Purchase.
Pursuant to an authorization given by DTC to the DTC Participants,
each DTC Participant that holds Notes through DTC must (i) transmit its
acceptance through the DTC Automated Tender Offer Program ("ATOP") (for
which the transaction will be eligible), and DTC will then edit and verify
its acceptance, execute a book-entry delivery to the Paying Agent's account
at DTC and send an Agent's Message (as defined herein) to the Paying Agent
for its acceptance or (ii) comply with the guaranteed delivery procedures
set forth herein. The Paying Agent will (as soon as practicable after the
date of this Offer to Purchase) establish account(s) at DTC for purposes of
the Offer with respect to Notes held through DTC, and any financial
institution that is a DTC Participant may make book-entry delivery of
interests in Notes into the Paying Agent's account through ATOP. However,
although delivery of interests in the Notes may be effected through book-
entry transfer into the Paying Agent's account through ATOP, an Agent's
Message in connection with such book-entry transfer, and any other required
documents, must be, in any case, transmitted to and received by the Paying
Agent at its address set forth on the back cover of this Offer to Purchase,
or the guaranteed delivery procedures set forth below must be complied
with, in each case, prior to the Expiration Date. Delivery of documents to
DTC does not constitute delivery to the Paying Agent. The confirmation of
a book-entry transfer into the Paying Agent's account at DTC as described
above is referred to herein as a "Book-Entry Confirmation."
The term "Agent's Message" means a Message transmitted by DTC to, and
received by, the Paying Agent and forming a part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment
from each DTC Participant tendering through ATOP that such DTC Participant
has received a Letter of Transmittal and agrees to be bound by the terms of
the Letter of Transmittal and that May & Speh may enforce such agreement
against such DTC Participant.
As of the date hereof, all of the Notes are currently held through DTC
and have been issued in the form of a global note registered in the name of
Cede & Co., DTC's nominee (the "Global Note"). At or as of the Expiration
Date, DTC will deliver to the Paying Agent a properly completed and duly
executed Letter of Transmittal in respect of the aggregate principal amount
of Notes as to which it has delivered to DTC Agent's Messages and Cede &
Co. will deliver to the Paying Agent the Global Note. As soon as
practicable after the Expiration Date, DTC will deliver to the Paying Agent
a properly completed and duly executed Letter of Transmittal in respect of
the aggregate principal amount of Notes as to which it has delivered to DTC
Agent's Messages in respect of Notices of Guaranteed Delivery. Thereafter,
the aggregate principal amount of the Global Note will be reduced to
represent the aggregate principal amount of Notes held through DTC and not
tendered pursuant to the Offer and the Global Note will be returned to Cede
& Co.
TENDERS OF NOTES HELD IN PHYSICAL FORM. Each record holder must
complete and sign a Letter of Transmittal, and mail or deliver such Letter
of Transmittal, and any other documents required by the Letter of
Transmittal, together with certificate(s) representing such Notes, to the
Paying Agent at its address set forth on the back cover page of this Offer
to Purchase, or the Holder must comply with the guaranteed delivery
procedures set forth in this Offer to Purchase. LETTERS OF TRANSMITTAL AND
ANY NOTES TENDERED PURSUANT TO THE OFFER SHOULD BE SENT ONLY TO THE PAYING
AGENT AND NOT TO MAY & SPEH.
All signatures on a Letter of Transmittal must be guaranteed by a
participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange Medallion
Program; provided, however, that signatures on a Letter of Transmittal need
not be guaranteed if such Notes are tendered for the account of an Eligible
Institution. If a Letter of Transmittal or any Note is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, Agent,
officer of a corporation or other person acting in a fiduciary or
representative capacity, such person must so indicate when signing, and
proper evidence satisfactory to May & Speh of the authority of such person
so to act must be submitted.
MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES. If a Holder
desires to tender Notes, but the certificates evidencing such Notes have
been mutilated, lost, stolen or destroyed, such Holder should contact the
Trustee to receive information about the procedures for obtaining
replacement certificates for Notes at:
Harris Trust and Savings Bank
311 W. Monroe Street
Chicago, Illinois 60606
(312) 461-6838
Notwithstanding any other provision hereof, payment for Notes tendered
and accepted for Purchase pursuant to the Offer will, in all cases, be made
only after timely receipt by the Paying Agent of such Notes (or
confirmation of a book-entry transfer of such Notes into the Paying Agent's
account at DTC as described above), and a Letter of Transmittal (or a
facsimile thereof) with respect to such Notes, properly completed and duly
executed, with any required signature guarantees and any other documents
required by the Letter of Transmittal.
THE METHOD OF DELIVERY OF NOTES AND LETTERS OF TRANSMITTAL, ANY
REQUIRED SIGNATURE GUARANTEES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING
DELIVERY THROUGH DTC AND ANY ACCEPTANCE OR AGENT'S MESSAGE TRANSMITTED
THROUGH ATOP, IS AT THE ELECTION AND RISK OF THE HOLDER TENDERING NOTES AND
DELIVERING A LETTER OF TRANSMITTAL AND DELIVERY WILL BE DEEMED MADE ONLY
WHEN ACTUALLY RECEIVED BY THE PAYING AGENT. IF SUCH DELIVERY IS BY MAIL,
IT IS SUGGESTED THAT THE HOLDER USE PROPERLY INSURED, REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED, AND THAT THE MAILING BE MADE SUFFICIENTLY IN
ADVANCE OF THE EXPIRATION DATE TO PERMIT DELIVERY TO THE PAYING AGENT PRIOR
TO THE EXPIRATION DATE.
GUARANTEED DELIVERY PROCEDURES.
A DTC Participant who wishes to cause its Notes to be tendered, but
who cannot transmit its acceptance through ATOP prior to the Expiration
Date, may cause a tender to be effected if:
a. guaranteed delivery is made by or through a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act (an "Eligible
Institution"), including (as such terms are defined therein):
(i) a bank; (ii) a broker, dealer, municipal securities dealer,
municipal securities broker, government securities dealer or
government securities broker; (iii) a credit union; (iv) a
national securities exchange, registered securities association
or clearing agency; or (v) a savings institution that is a
participant in a Securities Transfer Association recognized
program; and
b. prior to 12:00 a.m., New York City time, on the Expiration Date,
the Paying Agent receives from such Eligible Institution a
properly completed and duly executed Notice of Guaranteed
Delivery (by mail, hand delivery, facsimile transmission or
overnight courier) substantially in the form provided herewith;
and
c. Book-Entry Confirmation of the transfer into the Paying Agent's
account at DTC, and all other documents required by the Letter of
Transmittal, are received by the Paying Agent within three
trading days after the date of receipt by the Paying Agent of
such Notice of Guaranteed Delivery.
A record holder who wishes to tender its Notes but (x) whose Notes are
not immediately available and will not be available for tendering prior to
the Expiration Date, or (y) who cannot deliver its Notes, the Letter of
Transmittal, or any other required documents, to the Paying Agent prior to
the expiration date, may effect a tender if:
a. the tender is made by or through an Eligible Institution; and
b. prior to 12:00 a.m., New York City time, on the Expiration Date,
the Paying Agent receives from such Eligible Institution a
properly completed and duly executed Notice of Guaranteed
Delivery (by mail, hand delivery, facsimile transmission or
overnight courier) substantially in the form provided herewith;
and
c. a properly completed and executed Letter of Transmittal, as well
as the certificate(s) representing all tendered Notes in proper
form for transfer, and all other documents required by the Letter
of Transmittal, are received by the Paying Agent within three
trading days after the date of receipt by the Paying Agent of
such Notice of Guaranteed Delivery.
Under no circumstances will interest be paid by May & Speh by reason
of any delay in making payment to any person using the guaranteed delivery
procedures described above.
BACKUP UNITED STATES FEDERAL INCOME TAX WITHHOLDING. To prevent
backup withholding of United States federal income tax, each tendering
United States Holder (as defined below) must generally provide the paying
agent with such United States Holder's correct taxpayer identification
number and certify that such United States Holder is not subject to backup
United States federal income tax withholding by completing the Substitute
Form W-9 included in the Letter of Transmittal. See Instruction 5 of the
Letter of Transmittal. Certain Holders (including, among others, all
corporations and certain foreign persons), however, are exempt from backup
withholding. A Non-United States Holder (as defined below) can qualify for
an exemption from backup withholding by submitting a United States Internal
Revenue Service Form W-8, signed under penalties of perjury and attesting
to such Non-United States Holder's exempt status. A copy of United States
Internal Revenue Service Form W-8 may be obtained from the Paying Agent.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tendered
Notes pursuant to any of the procedures described above will be determined
by May & Speh in May & Speh's sole discretion (whose determination shall be
final and binding). May & Speh reserves the absolute right to reject any
or all tenders of any Notes determined by it not to be in proper form or,
in the case of Notes, if the acceptance for payment of, or payment for,
such Notes may, in the opinion of May & Speh's counsel, be unlawful. May &
Speh also reserves the absolute right, in its sole discretion, to waive any
of the conditions of the Offer or any defect or irregularity in any tender
with respect to Notes of any particular Holder, whether or not similar
defects or irregularities are waived in the case of other Holders. May &
Speh's interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the Instructions thereto) will be final and
binding. None of May & Speh, the Paying Agent, the Trustee or any other
person will be under any duty to give notification of any defects or
irregularities in tenders or will incur any liability for failure to give
any such notification. If May & Speh waives its right to reject a
defective tender of Notes, the Holder will be entitled to the Repurchase
Price.
WITHDRAWAL OF TENDERS
Tenders of Notes (or any portion of such Notes in integral multiples
of $1,000) may be withdrawn at any time prior to the Expiration Date.
NOTES HELD THROUGH DTC. A DTC Participant who has transmitted its
acceptance through ATOP in respect of Notes held through DTC may, prior to
the Expiration Date, withdraw the instruction given thereby by (i)
withdrawing its acceptance through ATOP, or (ii) delivering to the Paying
Agent by mail, hand delivery or facsimile transmission of notice of
withdrawal of such instruction. Such notice of withdrawal must contain the
name and number of the DTC Participant, the principal amount of Notes to
which such withdrawal relates and the signature of the DTC Participant.
Withdrawal of such an instruction will be effective upon receipt of such
notice of withdrawal by the Paying Agent.
NOTES HELD BY RECORD HOLDERS. A holder may withdraw its tender of
Notes, prior to the Expiration Date, by delivering to the Paying Agent by
mail, hand delivery or facsimile transmission of notice of withdrawal. Any
such notice of withdrawal must (i) specify the name of the person who
tendered the Notes to be withdrawn, (ii) contain a description of the Notes
to be withdrawn and identify the certificate number or numbers shown on
the particular certificates evidencing such Notes and the aggregate
principal amount represented by such Notes and (iii) be signed by the
holder of such Notes in the same manner as the original signature on the
Letter of Transmittal by which such Notes were tendered (including any
required signature guarantees), or be accompanied by (x) documents of
transfer in a form acceptable to May & Speh, in its sole discretion and (y)
a properly completed irrevocable proxy that authorized such person to
effect such revocation on behalf of such holder. If the Notes to be
withdrawn have been delivered or otherwise identified to the Paying Agent,
a signed notice of withdrawal is effective immediately upon receipt by the
Paying Agent even if physical release is not yet effected. Any Notes
properly withdrawn will be deemed to be not validly tendered for purposes
of the Offer.
All signatures on a notice of withdrawal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program,
the NYSE Medallion Signature Program or the Stock Exchange Medallion
Program; provided, however, that signatures on the notice of withdrawal
need not be guaranteed if the Notes being withdrawn are held for the
account of an Eligible Institution.
A withdrawal of an instruction or a withdrawal of a tender must be
executed by a DTC Participant or holder, as the case may be, in the same
manner as the person's name appears on its transmission through ATOP or
Letter of Transmittal, as the case may be, to which such withdrawal
relates. If a notice of withdrawal is signed by a trustee, partner,
executor, administrator, guardian, attorney-in-fact, Agent, officer of a
corporation or other person acting in a fiduciary or representative
capacity, such person must so indicate when signing and must submit with
the revocation appropriate evidence of authority to execute the notice of
withdrawal. A holder or DTC Participant may withdraw a tender only if such
withdrawal complies with the provisions of this Offer to Purchase.
A withdrawal of an instruction previously given pursuant to the
transmission of an acceptance through ATOP or a withdrawal of a tender by a
holder may be rescinded only by (i) a new transmission of acceptance
through ATOP, or (ii) execution and delivery of a new Letter of
Transmittal, as the case may be, in accordance with the procedures
described herein.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of certain United States federal income tax
consequences to tendering Holders whose Notes are purchased pursuant to the
Offer and is for general informational purposes only. This summary is
based on current laws, regulations, rulings and judicial decisions, all of
which are subject to change, possibly with retroactive effect. This
summary does not address all aspects of United States federal income
taxation that may be important to particular Holders in light of their
individual investment circumstances or to certain types of Holders subject
to special tax rules (e.g., insurance companies, tax-exempt organizations,
banking institutions and broker dealers), nor does it address foreign,
state or local income or other tax laws. This summary assumes that Holders
have held their Notes as capital assets.
For purposes of this summary, a "United States Holder" is a Holder
that is (i) an individual citizen or resident of the United States for
United States federal income tax purposes, (ii) a corporation created or
organized in or under the laws of the United States, any state thereof or
the District of Columbia or (iii) a partnership, trust or estate treated,
for United States federal income tax purposes, as a domestic partnership,
trust or estate. A "Non-United States Holder" is any Holder that is not a
United States Holder.
EACH HOLDER IS URGED TO CONSULT HIS OR HER TAX ADVISOR AS TO THE UNITED
STATES FEDERAL INCOME TAX CONSEQUENCES OF TENDERING NOTES PURSUANT TO THE
OFFER, INCLUDING THE PARTICULAR FACTS AND CIRCUMSTANCES THAT MAY BE UNIQUE
TO SUCH HOLDER, AND AS TO ANY ESTATE, GIFT, STATE, LOCAL OR NON-UNITED
STATES TAX CONSEQUENCES OF TENDERING THE NOTES PURSUANT TO THE OFFER.
GENERAL. The receipt of cash by a United States Holder in exchange
for a Note pursuant to the Offer will be a taxable transaction for United
States federal income tax purposes. Subject to the market discount rules
discussed below, a tendering United States Holder will recognize capital
gain or loss in an amount equal to the difference between (i) the amount of
cash received (other than amounts attributable to accrued but unpaid
interest, which will be subject to tax as ordinary income) and (ii) the
United States Holder's adjusted tax basis in such Note. Any such capital
gain or loss will be long-term capital gain or loss if the holding period
of the Note exceeds one year at the time of the consummation of the tender.
Under current law, noncorporate taxpayers are generally subject to tax at a
maximum rate of 20% on net capital gain attributable to the sale of
property held for more than 12 months. Capital losses are subject to
limitations on deductibility for United States federal income tax purposes.
MARKET DISCOUNT. A Note will have "market discount" if the stated
redemption price at maturity exceeds its tax basis in the hands of the
United States Holder immediately after its acquisition, unless a
statutorily defined de minimis exception applies. Gain recognized by a
tendering United States Holder upon the receipt of cash in exchange for a
Note with market discount will generally be treated as ordinary income to
the extent of the market discount accrued during such United States
Holder's period of ownership. This rule will not apply to a United States
Holder who had previously elected to include market discount in income as
it accrued for United States federal income tax purposes.
NON-UNITED STATES HOLDERS. Under present United States federal income
tax law, assuming certain certification requirements are satisfied (which
include identification of the beneficial owner of a Note), and subject to
the discussion of backup withholding set forth above under the heading
"PROCEDURES FOR TENDERING NOTES -- Backup United States Federal Income
Tax Withholding":
(a) a Non-United States Holder will not be subject to United States
federal income tax on the capital gain realized with respect to
his or her receipt of cash in exchange for a Note pursuant to the
Offer, unless (1) such Non-United States Holder is an individual
who is present in the United States for 183 days or more during
the taxable year and certain other requirements are met or (2)
such gain is effectively connected with the conduct of a United
States trade or business by the Non-United States Holder; and
(b) the amount of cash received by a Non-United States Holder that is
attributable to accrued but unpaid interest will not be subject
to United States federal income or withholding tax; provided that
(1) such Non-United States Holder does not actually or
constructively own 10% or more of the total combined voting power
of all classes of stock of Acxiom entitled to vote, (2) such Non-
United States Holder is not (i) a foreign tax-exempt organization
or a foreign private foundation for United States federal income
tax purposes or (ii) a controlled foreign corporation that is
related to May & Speh through stock ownership, and (3) such
interest payments are not effectively connected with the conduct
of a United States trade or business by the Non-United States
Holder.
The certification referred to above may be made on a United States
Internal Revenue Service Form W-8 or substantially similar substitute form.
THE PAYING AGENT
Harris Trust and Savings Bank has been appointed as Paying Agent for
the Offer. Letters of Transmittal and all correspondence in connection
with the Offer should be sent or delivered by each Holder or a beneficial
owner's broker, dealer, commercial bank, trust company or other nominee to
the Paying Agent at its addresses set forth on the back page of this Offer
to Purchase.
FEES AND EXPENSES
May & Speh does not anticipate paying any fees and expenses, other
than applicable filing fees and reasonable legal fees, in connection with
the Offer.
MISCELLANEOUS
May & Speh has filed with the Securities and Exchange Commission an
Issuer Tender Offer Statement on Schedule 13E-4, together with exhibits,
pursuant to Section 13(e)(1) of the Exchange Act and Rule 13e-4 of the
Exchange Act Rules, which require the furnishing of certain additional
information with respect to the Offer. Such Statement and any amendments
thereto, including exhibits, may be examined and copies may be obtained at
the same places and in the same manner as set forth with respect to
information concerning Acxiom and May & Speh under the caption "AVAILABLE
INFORMATION" herein.
Acxiom and May & Speh are not aware of any jurisdiction in which the
making of the Offer is not in compliance with applicable law. If Acxiom or
May & Speh becomes aware of any jurisdiction in which the making of the
Offer would not be in compliance with applicable law, Acxiom and May & Speh
will make a good faith effort to comply with any such law. If, after such
good faith effort, Acxiom and May & Speh cannot comply with any such law,
the Offer will not be made to (nor will tenders of Notes be accepted from
or on behalf of) the Holders residing in such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF ACXIOM OR MAY & SPEH NOT CONTAINED IN THIS
OFFER TO PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
Facsimile copies of the Letter of Transmittal, properly completed and
duly executed, will be accepted. The Letter of Transmittal, Notes and any
other required documents should be sent or delivered by each Holder or its
broker, dealer, commercial bank or other nominee to the Paying Agent at its
addresses set forth below.
THE PAYING AGENT FOR THE OFFER IS:
HARRIS TRUST AND SAVINGS BANK
By Hand Delivery or Facsimile By Registered or
Overnight Delivery: Transmissions: Certified Mail:
c/o Harris Trust (Eligible c/o Harris Trust
Company of New York Institutions Only) Company of
88 Pine Street, 19th (212) 701-7636 New York
Floor Confirm by Wall Street Station
New York, New York Telephone: Post Office Box 1023
10005 (212) 701-7624 New York, New York
Attn: Reorganization Dept. 10268-1023
Any questions or requests for assistance or additional copies of this
Offer to Purchase or the Letter of Transmittal may be directed to May &
Speh at the telephone numbers and location listed below. You may also
contact your broker, dealer, commercial bank or trust company or nominee
for assistance concerning the Offer.
ACXIOM/MAY & SPEH, INC.
Attention: Eric Loughmiller
1501 Opus Place
Downers Grove, Illinois 60515
(630) 964-1501
EXHIBIT (a)-(2)
LETTER OF TRANSMITTAL
to Tender
5 1/4% Convertible Subordinated Notes due 2003
(CUSIP 57777AAA)
of
ACXIOM/MAY & SPEH, INC.
Pursuant to the Offer to Purchase
dated October 23, 1998
- -----------------------------------------------------------------------------
THE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON NOVEMBER 20, 1998,
UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE "EXPIRATION
DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE
EXPIRATION DATE.
- -----------------------------------------------------------------------------
The Paying Agent for the Offer is:
HARRIS TRUST AND SAVINGS BANK
By Hand Delivery or
Overnight Delivery:
c/o Harris Trust Company of
New York
88 Pine Street, 19th Floor
New York, New York 10005
Attn: Reorganization Dept.
Facsimile Transmissions:
(Eligible Institutions Only)
(212) 701-7636
Confirm by Telephone:
(212) 701-7624
By Registered or Certified Mail:
c/o Harris Trust Company of
New York
Wall Street Station
Post Office Box 1023
New York, New York 10268-1023
For information contact:
ACXIOM/MAY & SPEH, INC.
Attention: Eric Loughmiller
1501 Opus Place
Downers Grove, Illinois 60515
(630) 964-1501
Delivery of this Letter of Transmittal to an address, or
transmission of instructions via facsimile, other than as set forth above
will not constitute valid delivery. THE INSTRUCTIONS CONTAINED HEREIN AND
IN THE OFFER TO PURCHASE (AS DEFINED BELOW) SHOULD BE READ CAREFULLY BEFORE
THIS LETTER OF TRANSMITTAL IS COMPLETED.
By execution hereof, the undersigned acknowledges receipt of the
Offer to Purchase, dated October 23, 1998 (as the same may be amended from
time to time, the "Offer to Purchase"), of Acxiom/May & Speh, Inc. ("May &
Speh") and this Letter of Transmittal and instructions hereto (the "Letter
of Transmittal"), which together constitute May & Speh's offer to purchase
(the "Offer") all of the outstanding 5-1/4% Convertible Subordinated Notes
due 2003 of May & Speh (the "Notes"), upon the terms and subject to the
conditions set forth in the Offer to Purchase.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE PAYMENT FOR THE NOTES TO
BE PURCHASED PURSUANT TO THE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW)
THEIR NOTES TO THE PAYING AGENT PRIOR TO THE EXPIRATION DATE.
This Letter of Transmittal is to be used by holders of the Notes if
certificates representing Notes are to be physically delivered to the
Paying Agent herewith by holders of Notes. This Letter of Transmittal is
also being supplied for informational purposes only to persons who hold
Notes in book-entry form through the facilities of The Depositary Trust
Company ("DTC"). Tender of Notes held through DTC must be made pursuant to
the procedures described under "Procedures for Tendering Notes --Tendering
Notes Held Through DTC" in the Offer to Purchase.
In order to properly complete this Letter of Transmittal, a holder
of Notes must (i) complete the box entitled "Description of Notes;" (ii) if
appropriate, check and complete the boxes relating to guaranteed delivery,
Special Issuance or Payment Instructions and Special Delivery Instructions;
(iii) sign the Letter of Transmittal; and (iv) complete Substitute Form
W-9. Each holder of Notes should carefully read the detailed Instructions
contained herein prior to completing this Letter of Transmittal.
The undersigned has completed, executed and delivered this Letter
of Transmittal to indicate the action the undersigned desires to take with
respect to the Offer.
If holders desire to tender Notes pursuant to the Offer and (i)
certificates representing such holder's Notes are not lost but are not
immediately available or time will not permit this Letter of Transmittal,
certificates representing such Notes or other required documents to reach
the Paying Agent prior to the Expiration Date, or (ii) the procedures for
book-entry transfer cannot be completed prior to the Expiration Date, such
holders may effect a tender of such Notes in accordance with the guaranteed
delivery procedures described under "Procedure for Tendering Notes --
Guaranteed Delivery Procedures" in the Offer to Purchase. See Instruction 1
below.
All capitalized terms used herein and not defined herein shall have
the meanings ascribed to them in the Offer to Purchase.
Your bank or broker can assist you in completing this form. The
instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the Offer
to Purchase, this Letter of Transmittal and the Notice of Guaranteed
Delivery may be directed to Acxiom/May & Speh, Inc. See Instruction 9 below.
May & Speh is not aware of any jurisdiction where the making of the
Offer would not be in compliance with applicable laws. If May & Speh
becomes aware of any jurisdiction where the making of the Offer would not
be in compliance with such laws, May & Speh will make a good faith effort
to comply with any such laws or seek to have such laws declared
inapplicable to the Offer. If after such good faith effort, May & Speh
cannot comply with any such applicable laws, the Offer will not be made to,
nor will tenders be accepted from or on behalf of, the holders of Notes
residing in such jurisdiction.
|_| CHECK HERE IF TENDERED NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE PAYING
AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s):___________________________________
Window ticket No. (if any): _______________________________________
Date of Execution of Notice of Guaranteed Delivery:_________________
Name of Eligible Institution that Guaranteed Delivery:______________
List below the Notes to which this Letter of Transmittal relates.
If the space provided is inadequate, list the certificate numbers and
principal amounts on a separately executed schedule and affix the schedule
to this Letter of Transmittal. Tenders of Notes will be accepted only in
principal amounts equal to $1,000 or integral multiples thereof.
DESCRIPTION OF 5 1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2003
Name(s) and Aggregate
Address(es) of Certificate Principal Amount Principal Amount
Registered Holder(s) Number(s)* Represented** Tendered
(Please fill in if
blank)
Total Principal
Amount of Notes
* Need not be completed by holders tendering by book-entry transfer
(see below).
** Unless otherwise indicated in the column labeled "Principal Amount
Tendered" and subject to the terms and conditions of the Offer to
Purchase, a holder will be deemed to have tendered the entire
aggregate principal amount represented by the Notes indicated in
the column labeled "Aggregate Principal Amount Represented." See
Instruction 2.
SPECIAL ISSUANCE OR SPECIAL DELIVERY INSTRUCTIONS
PAYMENT INSTRUCTIONS (SEE INSTRUCTIONS 2 THROUGH 6)
(SEE INSTRUCTIONS 2 THROUGH 6)
To be completed ONLY if To be completed ONLY if
certificates for Notes represent a certificates for Notes
greater amount of Notes than the represent a greater amount of
holder is tendering or the check for Notes than the holder is
the purchase price for Notes to be tendering or the check for the
purchased are to be issued to the purchase price for Notes to be
order of someone other than the purchased are to be sent to an
person or persons whose signature(s) address different from that
appear(s) within this Letter of shown in the box entitled
Transmittal or issued to an address "Description of Notes" within
different from that shown in the box this Letter of Transmittal.
entitled "Description of Notes"
within this Letter of Transmittal.
Issue: -- Notes Issue: -- Notes
-- Check -- Check
(Complete as applicable) (Complete as applicable)
Name: ______________________________ Name: ___________________________
(Please Print) (Please Print)
Address:____________________________ Address:__________________________
____________________________________ __________________________________
____________________________________ __________________________________
(Please Print) (Please Print)
Taxpayer Identification or Social
Security Number
(See Substitute Form W-9 herein)
Taxpayer Identification or Social
Security Number
(See Substitute Form W-9 herein)
HOLDERS WHO WISH TO ACCEPT THE OFFER AND TENDER THEIR NOTES
MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Offer, the
undersigned hereby tenders to May & Speh the principal amount of Notes
indicated above.
Subject to and effective upon the acceptance for purchase of and
payment for Notes tendered thereby, by executing and delivering a Letter of
Transmittal a tendering holder of Notes (i) irrevocably sells, assigns and
transfers to May & Speh, all right, title and interest in and to all the
Notes tendered thereby and (ii) waives any and all rights with respect to
the Notes (including without limitation any existing or past defaults and
their consequences in respect of the Note and the Indenture under which the
Notes were issued), (iii) releases and discharges May & Speh from any and
all claims such holder may have now, or may have in the future arising out
of, or related to, the Notes including without limitation any claims that
such holder is entitled to receive additional principal or interest
payments with respect to the Notes or to participate in any redemption or
defeasance of the Notes and (iv) irrevocably constitutes and appoints the
Paying Agent the true and lawful agent and attorney-in-fact of such holder
with respect to any such tendered Notes, with full power of substitution
and resubstitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest) to (a) deliver certificates
representing such Notes, or transfer ownership of such Notes, on the
account books maintained by DTC, together, in any such case, with all
accompanying evidences of transfer and authenticity, to May & Speh, (b)
present such Notes for transfer on the relevant security register and (c)
receive all benefits or otherwise exercise all rights of beneficial
ownership of such Notes (except that the Paying Agent will have no rights
to, or control over, funds from May & Speh, except as agent for May & Speh,
for the purchase price for any tendered Notes that are purchased by May &
Speh), all in accordance with the terms of the Offer.
The undersigned understands that tenders of Notes may be withdrawn
by written notice of withdrawal received by the Paying Agent at any time
prior to the Expiration Date. See Instruction 1.
The undersigned hereby represents and warrants that the undersigned
(i) owns the Notes tendered and is entitled to tender such Notes and (ii)
has full power and authority to tender, sell, assign and transfer the Notes
tendered hereby and that when such Notes are accepted for purchase and
payment by May & Speh, May & Speh will acquire good title thereto, free and
clear of all liens, restrictions, charges and encumbrances and not subject
to any adverse claim or right. The undersigned will, upon request, execute
and deliver any additional documents deemed by the Paying Agent or May &
Speh to be necessary or desirable to complete the sale, assignment and
transfer of the Notes tendered hereby.
For the purposes of the Offer, the undersigned understands that May
& Speh will be deemed to have accepted for purchase validly tendered Notes
(or defectively tendered Notes with respect to which May & Speh has waived
such defect) only if, as and when May & Speh gives oral or written notice
thereof to the Paying Agent. Payment for Notes purchased pursuant to the
Offer will be made by deposit of the purchase price for such Notes with the
Paying Agent, which will act as agent for tendering holders for the purpose
of receiving payments from May & Speh and transmitting such payments to
such holders.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death or incapacity of the undersigned and
every obligation of the undersigned under this Letter of Transmittal shall
be binding upon the undersigned's heirs, personal representatives,
executors, administrators, successors, assigns, trustees in bankruptcy and
other legal representatives.
The undersigned understands that valid tender of Notes pursuant to
any one of the procedures described under "Procedures for Tendering Notes"
in the Offer to Purchase and in the instructions hereto will constitute a
binding agreement between the undersigned and May & Speh upon the terms and
subject to the conditions of the Offer, including the undersigned's waiver
of any existing defaults and their consequences in respect of the Notes and
the Indenture (including, without limitation, a default in the payment of
interest).
The undersigned understands that the delivery and surrender of the
Notes is not effective, and the risk of loss of the Notes does not pass to
the Paying Agent, until receipt by the Paying Agent of this Letter of
Transmittal, or a facsimile hereof, properly completed and duly executed,
together with all accompanying evidences of authority and any other
required documents in form satisfactory to May & Speh. All questions as to
the validity, form, eligibility (including time of receipt) and acceptance
for payment of any tender of Notes pursuant to the procedures described in
the Offer to Purchase and the form and validity (including time of receipt
of notices of withdrawal) of all documents will be determined by May &
Speh, in its sole discretion, which determination shall be final and
binding on all parties.
Unless otherwise indicated herein under "Special Issuance or
Payment Instructions," the undersigned hereby requests that any Notes
representing principal amounts not tendered be issued in the name(s) of the
undersigned, and checks constituting payments for Notes purchased in
connection with the Offer be issued to the order of the undersigned.
Similarly, unless otherwise indicated herein under "Special Delivery
Instructions," the undersigned hereby requests that any Notes representing
principal amounts not tendered and checks constituting payments for Notes
to be purchased in connection with the Offer be delivered to the
undersigned at the address(es) shown herein. In the event that the "Special
Issuance or Payment Instructions" box or the "Special Delivery
Instructions" box, or both, are completed, the undersigned hereby requests
that any Notes representing principal amounts not tendered be issued in the
name(s) of, certificates for such Notes be delivered to, and checks
constituting payments for Notes purchased in connection with the Offer be
issued in the name(s) of, and be delivered to, the person(s) at the
address(es) so indicated, as applicable. The undersigned recognizes that
May & Speh has no obligation pursuant to the "Special Issuance or Payment
Instructions" box to transfer any Notes from the name of the registered
holder(s) thereof if May & Speh does not accept for purchase any of the
principal amount of such Notes so tendered.
PLEASE SIGN BELOW
(To Be Completed by All Tendering Holders of Notes
Regardless of Whether Notes Are Being Physically Delivered Herewith)
This Letter of Transmittal must be signed by the registered
holder(s) of Notes exactly as his (their) name(s) appear(s) on
certificate(s) for Notes or by person(s) authorized to become registered
holder(s) by endorsements and documents transmitted with this Letter of
Transmittal. If the signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, officer or other person acting in a fiduciary
or representative capacity, such person must set forth his or her full
title below under "Capacity" and submit evidence satisfactory to May & Speh
of such person's authority to so act. See Instruction 3 below.
If the signature appearing below is not of the registered holder(s)
of the Notes, then the registered holder(s) must sign a valid power of
attorney.
If you elect to have your Notes purchased by May & Speh pursuant to
Article XI of the Indenture, check the box: |_|
If you want to elect to have only part of your Notes purchased by
May & Speh pursuant to Article XI of the Indenture, state the amount you
want to be purchased: $___________________
X ___________________________________________________________________________
X ____________________________________________________________________________
Signature(s) of Registered Holder(s) or Authorized Signatory
Dated:__________________, 1998
Name(s): ___________________________________________________________________
_____________________________________________________________________________
(Please Print)
Capacity: ___________________________________________________________________
Address: ____________________________________________________________________
____________________________________________________________________
(Including Zip Code)
Area Code and Telephone No.:________________________________________________
Tax Identification or Social Security No.:__________________________________
(Please complete accompanying substitute form W-9
herein) MEDALLION SIGNATURE GUARANTEES, IF REQUIRED
(See Instruction 3 below)
Certain Signatures must Be Guaranteed by an Eligible Institution
___________________________________________________________________________
(Name of Eligible Institution Guaranteeing Signatures)
___________________________________________________________________________
(Address (including zip code) and Telephone Number (including area code)
of Eligible Institution)
___________________________________________________________________________
(Authorized Signature)
___________________________________________________________________________
(Printed Name)
[affix Medallion Guarantee
Stamp here]
Dated: _____________________, 1998
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Procedures for Tendering Notes; Guaranteed Delivery Procedures;
Withdrawal of Tenders. To tender the Notes in the Offer, certificates
representing such Notes, together with a properly completed and duly
executed copy (or facsimile) of this Letter of Transmittal, and any other
documents required by this Letter of Transmittal must be received by the
Paying Agent at one of its addresses set forth herein prior to the
Expiration Date. The method of delivery of this Letter of Transmittal,
certificates for Notes and all other required documents to the Paying Agent
is at the election and risk of holders. If such delivery is to be made by
mail, it is suggested that holders use properly insured registered mail,
return receipt requested, and that the mailing be made sufficiently in
advance of the Expiration Date to permit delivery to the Paying Agent prior
to such date. Except as otherwise provided below, the delivery will be
deemed made when actually received or confirmed by the Paying Agent. THIS
LETTER OF TRANSMITTAL AND NOTES SHOULD BE SENT ONLY TO THE PAYING AGENT.
This Letter of Transmittal is also being supplied for informational
purposes only to persons who hold Notes in book-entry form through the
facilities of DTC. Tender of Notes held through DTC must be made pursuant
to the procedures described under "Procedures for Tendering Notes --
Tendering Notes Held Through DTC" in the Offer to Purchase.
Except as provided herein for the book-entry or guaranteed delivery
procedures, unless the Notes being tendered are deposited with the Paying
Agent on or prior to the Expiration Date (accompanied by the appropriate,
properly completed and duly executed Letter of Transmittal and any required
signature guarantees and other documents required by this Letter of
Transmittal), May & Speh may, in its sole discretion, reject such tender.
Payment for Notes will be made only against deposit of tendered Notes.
By executing this Letter of Transmittal (or a facsimile thereof), a
tendering holder waives any right to receive any notice of the acceptance
for payment of tendered Notes.
For a full description of the procedures for tendering Notes, see
"Procedures for Tendering Notes" in the Offer to Purchase.
If a holder desires to tender Notes pursuant to the Offer and (i)
certificates representing such holder's Notes are not lost but are not
immediately available or time will not permit this Letter of Transmittal,
certificates representing Notes or other required documents to reach the
Paying Agent on or prior to the Expiration Date or (ii) the procedures for
book-entry transfer cannot be completed on or prior to the Expiration Date,
such holder may effect a tender of such Notes in accordance with the
guaranteed delivery procedures described under "Procedures for Tendering
Notes -- Guaranteed Delivery Procedures" in the Offer to Purchase.
Tenders of Notes may be withdrawn at any time prior to the
Expiration Date pursuant to the procedures described under "Withdrawal of
Tenders" in the Offer to Purchase.
2. Partial Tenders. Tenders of Notes pursuant to the Offer will be
accepted only in principal amounts equal to $1,000 or integral multiples
thereof. If less than the entire principal amount of any Notes evidenced by
a submitted certificate is tendered, the tendering holder must fill in the
principal amount tendered in the last column of the box entitled
"Description of Notes" herein. The entire principal amount represented by
the certificates for all Notes delivered to the Paying Agent will be deemed
to have been tendered unless otherwise indicated. If the entire principal
amount of all Notes is not tendered, certificates for the principal amount
of Notes not tendered will be sent to the holder unless otherwise provided
in the appropriate box on this Letter of Transmittal (see Instruction 4),
promptly after the Notes are accepted for purchase.
3. Signatures on this Letter of Transmittal, Bond Powers and
Endorsement: Guarantee of Signatures. If this Letter of Transmittal is
signed by the registered holder(s) of the Notes tendered hereby, the
signature(s) must correspond with the name(s) as written on the face of the
certificate(s) without alteration, enlargement or any change whatsoever.
IF THIS LETTER OF TRANSMITTAL IS EXECUTED BY A HOLDER OF NOTES WHO
IS NOT THE REGISTERED HOLDER, THEN THE REGISTERED HOLDER MUST SIGN A VALID
POWER OF ATTORNEY, WITH THE SIGNATURE OF SUCH REGISTERED HOLDER GUARANTEED
BY AN ELIGIBLE INSTITUTION.
If any of the Notes tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal. If
any tendered Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
copies of this Letter of Transmittal and any necessary accompanying
documents as there are different names in which certificates are held.
If this Letter of Transmittal is signed by the holder, and the
certificates for any principal amount of Notes not tendered for purchase
are to be issued (or if any principal amount of Notes that is not tendered
for purchase is to be reissued or returned) to the holder, and checks
constituting payments for Notes to be purchased in connection with the
Offer are to be issued to the order of the holder, then the holder need not
endorse any certificates for tendered Notes nor provide a separate bond
power. In any other case (including if this Letter of Transmittal is not
signed by the holder), the holder must either properly endorse the
certificates for Notes tendered or transmit a separate properly completed
bond power with this Letter of Transmittal (in either case, executed
exactly as the name(s) of the registered holder(s) appear(s) on such
Notes), with the signature on the endorsement or bond power guaranteed by
an Eligible Institution, unless such certificates or bond powers are
executed by an Eligible Institution.
If this Letter of Transmittal or any certificates representing
Notes or bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in
a fiduciary or representative capacity, such persons should so indicate
when signing, and proper evidence satisfactory to May & Speh of their
authority so to act must be submitted with this Letter of Transmittal.
Endorsements on certificates for Notes and signatures on bond
powers provided in accordance with this Instruction 3 by registered holders
not executing this Letter of Transmittal must be guaranteed by an Eligible
Institution.
No signature guarantee is required if: (i) this Letter of
Transmittal is signed by the registered holder(s) of the Notes tendered
herewith and the payments for the Notes to be purchased are to be made, or
any Notes for principal amounts not tendered for purchase are to be issued,
directly to such registered holder(s) and neither the "Special Issuance or
Payment Instructions" box nor the "Special Delivery Instructions" box of
this Letter of Transmittal has been completed or (ii) such Notes are
tendered for the account of an Eligible Institution. In all other cases,
all signatures on Letters of Transmittal accompanying Notes must be
guaranteed by an Eligible Institution.
4. Special Issuance or Payment and Special Delivery Instructions.
Tendering holders should indicate in the applicable box or boxes the name
and address to which Notes for principal amounts not tendered or not
accepted for purchase or checks constituting payments for Notes to be
purchased in connection with the Offer are to be issued or sent, if
different from the name and address of the holder signing this Letter of
Transmittal. In the case of issuance in a different name, the taxpayer
identification or social security number of the person named must also be
indicated. If no instructions are given, Notes not tendered or not accepted
for purchase will be returned to the holder of the Notes tendered.
5. Taxpayer Identification Number and Substitute Form W-9. Each
tendering holder is required to provide the Paying Agent with the holder's
correct taxpayer identification number ("TIN"), generally the holder's
social security or federal employer identification number, on Substitute
Form W-9, which is provided under "Important Tax Information" below, or,
alternatively, to establish another basis for exemption from backup
withholding, which, in the case of certain exempt foreign persons, may be
accomplished by submitting a United States Internal Revenue Service Form
W-8. A holder must cross out item (2) in the Certification box on
Substitute Form W-9 if such holder is subject to backup withholding.
Failure to provide the information on the Substitute Form W-9 may subject
the tendering holder to 31% federal income tax backup withholding on the
payments made to the holder or other payee with respect to Notes purchased
pursuant to the Offer. The box in Part 3 of the Substitute Form W-9 should
be checked if the tendering holder has not been issued a TIN and has
applied for a TIN or intends to apply for a TIN in the near future. If the
box in Part 3 is checked and the Paying Agent is not provided with a TIN
within 60 days, thereafter the Paying Agent will withhold 31% from all such
payments with respect to the Notes to be purchased until a TIN is provided
to the Paying Agent.
6. Transfer Taxes. May & Speh will pay all transfer taxes, if any,
payable on the purchase and transfer of Notes purchased pursuant to the
Offer, except in the case of deliveries of certificates for Notes for
principal amounts not tendered for payment that are to be registered or
issued in the name of any person other than the holder of Notes tendered
hereby, in which case the amount of any transfer taxes (whether imposed on
the registered holder or such other person) payable on account of the
transfer to such person will be deducted from the purchase price unless
satisfactory evidence of the payment of such taxes or exemption therefrom
is submitted.
Except as provided in this Instruction 6, it will not be necessary
for transfer stamps to be affixed to the certificates Listed in this Letter
of Transmittal.
7. Irregularities. All questions as to the validity, form,
eligibility (including the time of receipt) and acceptance for payment of
any tenders of Notes pursuant to the procedures described in the Offer to
Purchase and the form and validity (including the time of receipt of
notices of withdrawal) of all documents will be determined by May & Speh,
in its sole discretion, which determination shall be final and binding on
all parties. May & Speh reserves the absolute right to reject any or all
tenders determined by it not to be in proper form or the acceptance of or
payment for which may be unlawful. May & Speh also reserves the absolute
right to waive any of the conditions of the Offer and any defect or
irregularity in the tender of any particular Notes. May & Speh's
interpretations of the terms and conditions of the Offer (including without
limitation the instructions in this Letter of Transmittal) shall be final
and binding. No alternative, conditional or contingent tenders will be
accepted. Unless waived, any irregularities in connection with tenders must
be cured within such time as May & Speh shall determine. None of May &
Speh, the Paying Agent or any other person will be under any duty to give
notification of any defects or irregularities in such tenders or will incur
any liability to holders for failure to give such notification. Tenders of
such Notes shall not be deemed to have been made until such irregularities
have been cured or waived. Any Notes received by the Paying Agent that are
not properly tendered and as to which the irregularities have not been
cured or waived will be returned by the Paying Agent to the tendering
holders, unless such holders have otherwise provided herein, as promptly as
practical following the Expiration Date.
8. Mutilated, Lost, Stolen or Destroyed Certificates for Notes. Any
holder of Notes whose certificates for Notes have been mutilated, lost,
stolen or destroyed should contact the Trustee at:
Harris Trust and Savings Bank
311 W. Monroe Street
Chicago, Illinois 60606
(312) 461-6838
9. Requests for Assistance or Additional Copies. Questions,
requests for assistance or for additional copies of this Offer to Purchase,
the Letter of Transmittal and the Guidelines for Certification of Taxpayer
Identification Number of Substitute Form W-9 may be directed to Acxiom/May
& Speh, Inc., Attention: Eric Loughmiller, 1501 Opus Place, Downers Grove,
Illinois 60515, Telephone: (630) 964-1501.
IMPORTANT TAX INFORMATION
Under United States federal income tax law, a holder whose tendered
Notes are accepted for payment must provide the Paying Agent (as payer)
with (i) such holder's correct TIN on Substitute Form W-9 below or (ii) in
the case of certain exempt foreign persons, a United States Internal
Revenue Service Form W-8, which can be obtained from the Paying Agent. If
such holder is an individual, the TIN is his social security number. If the
Paying Agent is not provided with the correct TIN, a $50 penalty may be
imposed by the Internal Revenue Service, and payments made with respect to
Notes purchased pursuant to the Offer may be subject to backup withholding.
Failure to comply truthfully with the backup withholding requirements also
may result in the imposition of severe criminal and/or civil fines and
penalties.
Certain holders (including, among others, all corporations and
certain foreign persons) are exempt from these backup withholding and
reporting requirements. To qualify for this exemption, exempt holders
should furnish their TIN, write "Exempt" on the face of the Substitute Form
W-9, and sign, date and return the Substitute Form W-9 to the Paying Agent.
Certain foreign persons (including entities) can qualify for this exemption
by submitting to the Paying Agent a properly completed Internal Revenue
Service Form W-8, signed under penalties of perjury, attesting to that
holder's foreign status. A Form W-8 can be obtained from the Paying Agent.
See the enclosed "Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9" for additional instructions.
If backup withholding applies, the Paying Agent is required to
withhold 31% of any payments made to the holder or other payee. Backup
withholding is not an additional federal income tax. Rather, the federal
income tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained from the Internal Revenue
Service.
PAYER'S NAME: HARRIS TRUST AND SAVINGS BANK
<TABLE>
<CAPTION>
<S> <C> <C>
PART 1 - PLEASE PROVIDE YOUR TIN
SUBSTITUTE IN THE BOX AT RIGHT AND CERTIFY
BY SIGNING AND DATING BELOW _____________________________
Form W-9 Social Security Number(s)
Department of the or
Treasury
Internal Revenue Employer Identification Number(s)
Service
PAYER'S PART 2 - CERTIFICATION - Under penalties of perjury, I certify that:
REQUEST FOR (1) The number shown on this form is my correct taxpayer identification
TAXPAYER number (or I am waiting for a number to be issued for me), and
IDENTIFICATION (2) I am not subject to backup withholding because: (a) I am exempt from
NUMBER backup withholding, or (b) I have not been notified by the Internal
("TIN") Revenue Service (the "IRS") that I am subject to backup withholding as
a result of a failure to report all interest or dividends, or (c) the
IRS has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS - You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup
withholding because of under reporting interest or dividends on your tax
return.
THE INTERNAL REVENUE SERVICE DOES PART 3 --
NOT REQUIRE YOUR CONSENT TO ANY AWAITING TIN ( )
PROVISION OF THIS DOCUMENT OTHER
THAN THE CERTIFICATIONS REQUIRED
TO AVOID BACKUP WITHHOLDING.
SIGNATURE:
DATE:
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN A $50
PENALTY IMPOSED BY THE INTERNAL REVENUE SERVICE AND BACKUP
WITHHOLDING OF 31% OF ANY CASH PAYMENTS MADE TO YOU PURSUANT TO
THE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE
FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (1) I have mailed or delivered
an application to receive a taxpayer identification number to the
appropriate Internal Revenue Service Center or Social Security
Administration Office or (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, 31% of all reportable cash
payments made to me thereafter will be withheld until I provide a taxpayer
identification number.
Signature: Date:
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payer. Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-000. Employer Identification numbers have nine digits
separated by only one hyphen: i.e., 00-0000000. The table below will help
determine the number to give the Payer.
FOR THIS TYPE OF ACCOUNT: GIVE THE
SOCIAL SECURITY NUMBER OF -
1. Individual The individual
2. Two or more The actual owner of the account
or, if combined funds, any one
of the individuals (1)
3. Custodian account of a minor (Uniform The minor (2)
Gift to Minors Act)
4. a. The usual revocable savings trust The grantor-trustee (1)
(grantor is also trustee)
b. So-called trust that is not a legal The actual owner (1)
or valid trust under state law
5. Sole proprietorship The owner (3)
6. A valid trust, estate, or pension trust The legal entity (Do not
furnish the identifying
number of the personal
representative or trustee
unless the legal entity
itself is not designated in
the account title.) (4)
7. Corporate The corporation
8. Association, club, religious, charitable, The organization
educational or other tax-exempt
organization
9. Partnership The partnership
10. A broker or registered nominee The broker or nominee
11. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a state or
local government, school district,
or prison) that receives agriculture
program payments
- --------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Show the name of the owner.
(4) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number
will be considered to be that of the first name listed.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Section references are to the Internal Revenue Code.
Obtaining a Number. If you don't have a taxpayer identification
number or you don't know your number, obtain Form SS-5, Application for a
Social Security Number Card, or Form SS-4, Application for Employer
Identification Number, at the local office of the Social Security
Administration or the Internal Revenue Service (the "IRS") and apply for a
number.
Payees Exempt from Backup Withholding. The following is a list of
payees exempt from backup withholding and for which no information
reporting is required. For interest and dividends, all listed payees are
exempt except item (9). For broker transactions, payees listed in (1)
through (13) and a person registered under the Investment Advisers Act of
1940 who regularly acts as a broker are exempt. Payments subject to
reporting under sections 6041 and 6041A are generally exempt from backup
withholding only if made to payees described in items (1) through (7),
except that a corporation that provides medical and health care services or
bills and collects payments for such services is not exempt from backup
withholding or information reporting. Only payees described in items (2)
through (6) are exempt from backup withholding for barter exchange
transactions, patronage dividends, and payments by certain fishing boat
operators.
(1) A corporation.
(2) An organization exempt from tax under section 501(a), or an
individual retirement plan ("IRA"), or a custodial account under
403(b)(7).
(3) The United States or any of its agencies or instrumentalities.
(4) A State, the District of Columbia, a possession of the United
States, or any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies
or instrumentalities.
(6) An international organization or any of its agencies or
instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the
United States or a possession of the United States.
(9) A futures commission merchant registered with the Commodity Futures
Trading Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the
Investment Company Act of 1940.
(12) A common trust fund operated by a bank under section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed
in the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
(15) A trust exempt from tax under section 664 or described in section 4947.
Payments of dividends and patronage dividends generally not subject to
backup withholding also include the following:
o Payments to nonresident aliens subject to withholding under section
1441.
o Payments to partnerships not engaged in a trade or business in the
United States and that have at least one nonresident partner.
o Payments of patronage dividends not paid in money.
o Payments made by certain foreign organizations.
Payments of interest generally not subject to backup withholding include
the following:
o Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this interest is
$600 or more and is paid in the course of the payer's trade or
business and you have not provided your correct taxpayer
identification number to the payer.
o Payments of tax-exempt interest (including exempt interest
dividends under section 852).
o Payments described in section 6049(b)(5) to nonresident aliens.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
o Mortgage interest paid by you.
Payments that are not subject to information reporting are also not subject
to backup withholding. For details see sections 6041, 6041(A)(a), 6042,
6044, 6045, 6049, 6050A and 6050N, and the regulations under such
sections.
Privacy Act Notice. Section 6109 requires you to give your correct
taxpayer identification number to persons who must file information returns
with the IRS to report interest, dividends, and certain other income paid
to you, mortgage interest you paid, the acquisition or abandonment of
secured property, cancellation of debt, or contributions you made to an
IRA. The IRS uses the numbers for identification purposes and to help
verify the accuracy of your tax return. You must provide your taxpayer
identification number whether or not you are qualified to file a tax
return. Payers must generally withhold 31% of taxable interest, dividend,
and certain other payments to a payee who does not furnish a taxpayer
identification number to a payer. Certain penalties may also apply.
Penalties:
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is
due to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you
make a false statement with no reasonable basis that results in no backup
withholding, you are subject to a $500 penalty.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Falsifying certifications
or affirmations may subject you to criminal penalties including fines
and/or imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
EXHIBIT (a)-(3)
NOTICE OF GUARANTEED DELIVERY
IN RESPECT OF
5 1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2003
(CUSIP 57777AAA)
OF
ACXIOM/MAY & SPEH, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED OCTOBER 23, 1998
THE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON NOVEMBER 20,
1998, UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE
"EXPIRATION DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR
TO THE EXPIRATION DATE.
Capitalized terms used but not defined herein have the meanings given
them in the Offer to Purchase, dated October 23, 1998 (the "Offer to
Purchase").
This Notice of Guaranteed Delivery may be used to cause a tender of 5-
1/4% Convertible Subordinated Notes due 2003 of Acxiom/May & Speh, Inc.
(the "Notes") by (i) a record holder of Notes if certificates for the notes
are not immediately available or time will not permit all required
documents to reach the Paying Agent on or prior to the Expiration Date or
(ii) by a DTC Participant if the procedures for book-entry transfer
described in the Offer to Purchase cannot be completed on a timely basis.
The Paying Agent for the Offer is:
HARRIS TRUST AND SAVINGS BANK
By Hand Delivery or Facsimile By Registered or
Overnight Delivery: Transmissions: Certified Mail:
c/o Harris Trust (Eligible c/o Harris Trust
Company of New York Institutions Only) Company of
88 Pine Street, 19th (212) 701-7636 New York
Floor Confirm by Wall Street Station
New York, New York Telephone: Post Office Box 1023
10005 (212) 701-7624 New York, New York
Attn: Reorganization Dept. 10268-1023
For information contact:
ACXIOM/MAY & SPEH, INC.
Attention: Eric Loughmiller
1501 Opus Place
Downers Grove, Illinois 60515
(630) 964-1501
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR
TRANSMISSION VIA FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE VALID DELIVERY.
Ladies and Gentlemen:
By execution hereof, the undersigned acknowledges receipt of the Offer
to Purchase and the Letter of Transmittal.
On the terms and subject to the conditions of the Offer to Purchase
and the Letter of Transmittal, the undersigned hereby represents that it is
the holder of the Notes (or the holder of interests in the Global Note)
being tendered (or caused to be tendered) hereby and is entitled to tender
(or cause to be tendered) such Notes as contemplated by the Offer and,
pursuant to the guaranteed delivery procedures described in the Offer to
Purchase and Letter of Transmittal, hereby tenders (or causes a tender) to
May & Speh of the aggregate principal amount of Notes indicated below.
Except as stated in the Offer to Purchase, all authority herein
conferred or agreed to be conferred shall survive the death or incapacity
of the undersigned, and any obligation of the undersigned hereunder shall
be binding upon the heirs, personal representatives, successors and assigns
of the undersigned.
PLEASE SIGN AND COMPLETE
Signature(s) of Registered Holder(s) or
Authorized Signatory: . . . . . . . . . . . Date: . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . Address: . . . . . . . . . . .
Name(s) of Registered Holder(s):. . . . . . Area Code and Telephone No. . . .
. . . . . . . . . . . . . . . . . . . . . . If Notes will be delivered
by The Depository Trust Company
. . . . . . . . . . . . . . . . . . . . . .
Depository Account No. . . . . .
Principal Amount of Notes Tendered: . . .
. . . . . . . . . . . . . . . . . . . . . .
Certificate No.(s) of Notes
(if available) . . . . . . . . . . . . . . .
A record holder must execute this Notice of Guaranteed Delivery
exactly as its name appears on its Notes and a DTC Participant must execute
this Notice of Guaranteed Delivery exactly as its name is registered with
DTC. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, agent, officer of a corporation or other person acting in
a fiduciary or representative capacity, such person must provide the
following information:
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Capacity: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Address(es): . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DO NOT SEND NOTES WITH THIS FORM. NOTES SHOULD BE SENT TO THE PAYING AGENT
TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL.
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member of a registered national securities
exchange or of the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office or correspondent in the
United States or another "Eligible Guarantor Institution" as defined in
Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended, hereby
guarantees that, within three New York Stock Exchange trading days from the
date of receipt by the Paying Agent of this Notice of Guaranteed Delivery,
a properly completed and validly executed Letter of Transmittal (or a
facsimile thereof), together with Notes tendered hereby in proper form for
transfer, (or confirmation of the book-entry transfer of such Notes into
the Paying Agent's account at the Depositary Trust Company, pursuant to the
procedures for book-entry transfer set forth under "Procedure for Tendering
Notes" in the Offer to Purchase) and all other required documents will be
delivered by the undersigned to the Paying Agent.
Name of Firm:
Authorized Signature:
Title:
Address:
(Zip Code)
Area Code and Telephone Number:
The institution which completes this form must deliver to the Paying
Agent the guarantee, the Letter of Transmittal (or facsimile thereof) and
certificates for Notes within the time periods specified herein. Failure
to do so could result in a financial loss to such institution.
EXHIBIT (a)-(4)
ACXIOM/MAY & SPEH, INC.
Offer to Purchase for Cash
All of its Outstanding
5 1/4% Convertible Subordinated Notes due 2003
(CUSIP 57777AAA)
- ------------------------------------------------------------------------------
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE OFFER TO PURCHASE, THE
OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON NOVEMBER 20, 1998,
UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE "EXPIRATION
DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE
EXPIRATION DATE.
- ------------------------------------------------------------------------------
October 23, 1998
To Our Clients:
Enclosed for your consideration is an Offer to Purchase, dated
October 23, 1998 (as the same may be amended from time to time, the "Offer
to Purchase", and a form of letter of transmittal and instructions thereto
(the "Letter of Transmittal"), relating to the offer (the "Offer") by
Acxiom/May & Speh, Inc. ("May & Speh") to purchase for cash all of its
outstanding 5 1/4% Convertible Subordinated Notes due 2003 (the "Notes") at
100% of the principal amount thereof, plus accrued interest thereon to but
excluding the date of repurchase.
The materials are being forwarded to you as the beneficial owner of
Notes carried by us for your account or benefit but not registered in your
name. A tender of any Notes may only be made by us as the registered Holder
and pursuant to your instructions. Therefore, beneficial owners of Notes
registered in the name of a broker, dealer, commercial bank, trust company
or any other nominee are urged to contact such registered Holder promptly
if they wish to tender Notes in the Offer.
Accordingly, we request instructions as to whether you wish us to
tender any or all such Notes held by us for your account or benefit
pursuant to the terms and conditions set forth in the Offer to Purchase and
the Letter of Transmittal. We urge you to read carefully the Offer to
Purchase and Letter of Transmittal before instructing us to tender your
Notes.
Your instructions to us should be forwarded as promptly as possible
in order to permit us to tender Notes on your behalf in accordance with the
provisions of the Offer. Notes tendered pursuant to the Offer may be
validly withdrawn, subject to the procedures described in the Offer to
Purchase, at any time prior to the Expiration Date.
Your attention is directed to the following:
1. The Offer is for all outstanding Notes.
2. The offer and withdrawal rights will expire on the
Expiration Date.
3. Any transfer taxes incident to the transfer of Notes
from the tendering Holder to May & Speh will be paid
by May & Speh, except as provided in the Offer to
Purchase and the instructions to the Letter of
Transmittal.
If you wish to have us tender any or all of your Notes held by us
for your account or benefit, please so instruct us by completing, executing
and returning to us the instruction form that appears below. If you
authorize the tender of your Notes, all such Notes will be tendered unless
otherwise specified below. The accompanying letter of transmittal is
furnished to you for informational purposes only and may not be used by you
to tender Notes held by us and registered in our name for your account or
benefit.
INSTRUCTIONS
The undersigned acknowledge(s) receipt of your letter and
the enclosed material referred to therein relating to the Offer.
This will instruct you to tender the principal amount of
Notes indicated below held by you for the account or benefit of the
undersigned pursuant to the terms of and conditions set forth in the Offer
to Purchase and the Letter of Transmittal.
|_| - Please tender ALL my Notes held by you for my account or benefit.
|_| - Please tender LESS than all my Notes. I wish to tender $
principal amount of Notes.
|_| - Please do not tender any Notes held by you for my account or
benefit.
Date: , 1998
______________________________
______________________________
Signatures(s)
______________________________
______________________________
Please print name(s) here
UNLESS A SPECIFIC CONTRARY INSTRUCTION IS GIVEN, YOUR
SIGNATURE(S) HEREON SHALL CONSTITUTE AN INSTRUCTION TO US TO TENDER ALL OF
YOUR NOTES.
EXHIBIT (a)-(5)
ACXIOM/MAY & SPEH, INC.
Offer to Purchase for Cash
All of its Outstanding
5 1/4% CONVERTIBLE SUBORDINATED NOTES DUE 2003
(CUSIP 57777AAA)
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE OFFER TO PURCHASE, THE
OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON NOVEMBER 20, 1998,
UNLESS EXTENDED (SUCH DATE, AS THE SAME MAY BE EXTENDED, THE "EXPIRATION
DATE"). TENDERS OF NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE
EXPIRATION DATE.
October 23, 1998
TO: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Enclosed for your consideration is an Offer to Purchase, dated October
23, 1998 (as the same may be amended from time to time, the "Offer to
Purchase", and a form of letter of transmittal and instructions thereto
(the "Letter of Transmittal"), relating to the offer (the "Offer") by
Acxiom/May & Speh, Inc. ("May & Speh") to purchase for cash all of its
outstanding 51/4% Convertible Subordinated Notes due 2003 (the "Notes") at
100% of the principal amount thereof, plus accrued interest thereon to but
excluding the date of repurchase.
We are asking you to contact your clients for whom you hold Notes
registered in your name or in the name of your nominee. In addition, we
ask you to contact your clients who, to your knowledge, hold Notes
registered in their own name. You will be reimbursed by May & Speh for
customary mailing and handling expenses incurred by you in forwarding any
of the enclosed materials to your clients. May & Speh will pay all
transfer taxes, if any, applicable to the tender of Notes, except as
otherwise provided in the Offer to Purchase and the Letter of Transmittal.
Enclosed is a copy of each of the following documents for
forwarding to your clients:
1. The Offer to Purchase.
2. A Yellow Letter of Transmittal, including Guidelines
for Certification of Taxpayer Identification Number on
Substitute Form W-9, for your use in connection with
the tender of Notes by record holders and for the
information of your clients.
3. A Green form of letter addressed "To Our Clients" that
may be sent to your clients for whose accounts you hold
Notes registered in your name or the name of your
nominee, with space provided for obtaining the clients'
instructions with regard to the Offer.
4. A Blue Notice of Guaranteed Delivery to be used to
accept the Offer if certificates for Notes are not lost
but not immediately available, or if the procedure for
book-entry transfer cannot be completed on or prior to
the Expiration Date.
5. A return envelope addressed to Harris Trust and Savings
Bank, the Paying Agent (the "Paying Agent").
Your prompt action is requested. Notes tendered pursuant to the
Offer may be validly withdrawn, subject to the procedures described in the
Offer to Purchase, at any time prior to the Expiration Date.
Please refer to "Procedures for Tendering Notes" in the Offer to
Purchase for a description of the procedures which must be followed to
tender Notes in the Offer.
Requests for additional copies of the enclosed materials may be
made to Acxiom/May & Speh, Inc., Attention: Eric Loughmiller, 1501 Opus
Place, Downers Grove, Illinois 60515; telephone number (630) 964-1501.
Very truly yours,
ACXIOM/MAY & SPEH, INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY PERSON AS AN AGENT OF THE COMPANY, THE TRUSTEE, OR THE PAYING AGENT, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO MAKE ANY STATEMENTS ON BEHALF OF ANY
OF THEM WITH RESPECT TO THE OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN
THE OFFER TO PURCHASE OF THE LETTER OF TRANSMITTAL.
EXHIBIT (b)(1)
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF
MARCH 26, 1998
BETWEEN
ACXIOM CORPORATION
AND
MERCANTILE BANK
NATIONAL ASSOCIATION, AS
ADMINISTRATIVE AND DOCUMENTATION AGENT,
CHASE BANK OF TEXAS,
N. A., AS SYNDICATION AGENT,
AND
THE BANKS NAMED HEREIN
TABLE OF CONTENTS*
Page
ARTICLE I DEFINITIONS.................................................1
SECTION 1.1. Definitions....................................1
SECTION 1.2. Accounting Terms and Determinations............9
ARTICLE II THE CREDITS.................................................9
SECTION 2.1. Loans..........................................9
A. Loans............................................9
B. Letters of Credit................................9
SECTION 2.2. Method of Borrowing...........................13
SECTION 2.3. Notes.........................................14
SECTION 2.4. Duration of Interest Periods and
Selection of Interest Rates.................15
SECTION 2.5. Interest Rates................................15
SECTION 2.6. Commitment Fee................................17
SECTION 2.7. Termination or Reduction of Commitment........18
SECTION 2.8. Payments Prior to Maturity....................18
SECTION 2.9. General Provisions as to Payments.............19
SECTION 2.10. Funding Losses................................20
SECTION 2.11. Computation of Interest.......................20
ARTICLE III CONDITIONS TO BORROWINGS...................................20
SECTION 3.1. All Borrowings................................20
SECTION 3.2. First Borrowing...............................21
SECTION 3.3. All Letters of Credit.........................21
ARTICLE IV REPRESENTATIONS AND WARRANTIES.............................22
SECTION 4.1. Representations and Warranties................22
(a) Corporate Existence and Power...................22
(b) Corporate and Governmental Authorization;
Contravention.................................22
(c) Binding Effect..................................23
(d) Financial Information...........................23
(d) Litigation......................................23
(e) ERISA -Absence of Reportable Events.............24
(f) Tax Returns and Payment.........................24
(g) Not an Investment Company.......................24
(h) Liens...........................................24
(i) Subsidiaries....................................24
ARTICLE V COVENANTS..................................................24
SECTION 5.1. Covenants of the Company......................24
(a) Information.....................................24
(b) Limitations on Liens............................25
(c) Merger or Consolidation.........................26
(d) Sale of Assets..................................26
(e) Payment of Debt.................................27
(f) Consultations and Inspections...................27
(g) Payment of Taxes; Corporate Existence;
Maintenance of Properties; Insurance..........27
(h) Financial Covenants.............................28
(i) Maintenance of Books and Records................29
(j) Stock Redemptions and Distributions.............29
(k) Transactions with Related Parties...............29
(l) Change in Fiscal Year...........................29
(m) Compliance with Law.............................29
(n) Notice of Subsequent Events.....................29
SECTION 5.2. Use of Proceeds...............................30
ARTICLE VI DEFAULTS...................................................30
SECTION 6.1. Events of Default.............................30
ARTICLE VII CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS.........32
SECTION 7.1. Basis for Determining Interest Rate
Inadequate or Unfair........................32
SECTION 7.2. Illegality....................................33
SECTION 7.3. Increased Cost................................33
SECTION 7.4. Prime Loans Substituted for Affected
Fixed Rate Loans............................34
SECTION 7.5. Indemnity.....................................35
ARTICLE VIII THE AGENT..................................................35
SECTION 8.1. Appointment and Authorization.................35
SECTION 8.2. Agent and Affiliates..........................35
SECTION 8.3. Action by Agent...............................36
SECTION 8.4. Consultation with Experts.....................36
SECTION 8.5. Liability of Agent............................36
SECTION 8.6. Indemnification...............................36
SECTION 8.7. Credit Decision...............................36
SECTION 8.8. Resignation of Agent..........................36
SECTION 8.9. Agent's Fee...................................37
ARTICLE IX MISCELLANEOUS..............................................37
SECTION 9.1. Notices.......................................37
SECTION 9.2. No Waivers....................................37
SECTION 9.3. Expenses; Documentary Taxes...................37
SECTION 9.4. Participations................................38
SECTION 9.5. Amendments and Waivers........................38
SECTION 9.6. Successors and Assigns........................39
SECTION 9.7. Severability..................................39
SECTION 9.8. Missouri Law..................................39
SECTION 9.9. CHOICE OF FORUM; WAIVER OF JURY TRIAL.........39
SECTION 9.10. Resurrection of Obligations...................40
SECTION 9.11. Counterparts; Effectiveness...................40
SECTION 9.12. Continuing Obligations........................40
Exhibit A - $32,500,000.00 Promissory Note
Exhibit B - $32,500,000.00 Promissory Note
Exhibit C - $30,000,000.00 Promissory Note
Exhibit D - $15,000,000.00 Promissory Note
Exhibit E - $15,000,000.00 Promissory Note
Exhibit F - Opinion of Counsel
Exhibit G - Compliance Certificate
Exhibit H - Form of Borrowing Request
Exhibit I - Standby Letter of Credit Application and Reimbursement
Agreement
Exhibit J - Letter of Credit Request
Exhibit K - Letter of Credit Participation Certificate
Schedule 4.1(e) - Litigation
Schedule 4.1(i) - Liens
Schedule 4.1(j) - List of Subsidiaries
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT (the
"Agreement") is made and entered into as of March 26, 1998 between ACXIOM
CORPORATION, a Delaware corporation (the "Company"), and MERCANTILE BANK
NATIONAL ASSOCIATION, a national banking association ("Mercantile"),
NATIONSBANK, N. A., a national banking association ("NationsBank"), FIRST
COMMERCIAL BANK, N. A., a national banking association ("First
Commercial"), FIRST AMERICAN NATIONAL BANK, a national bank ("First
American") and CHASE BANK OF TEXAS, N. A., a national banking association
("Chase," and collectively with Mercantile, NationsBank, First Commercial
and First American referred to herein as "Banks"), CHASE BANK OF TEXAS, N.
A., a national banking association, as syndication agent for the Banks (in
such capacity "Syndication Agent"), and MERCANTILE BANK NATIONAL
ASSOCIATION, a national banking association, as administrative and
documentation agent for the Banks (in such capacity "Agent").
WITNESSETH:
WHEREAS, the Company, Agent, Mercantile (formerly Mercantile Bank
of St. Louis National Association), NationsBank (formerly The Boatmen's
National Bank of St. Louis) and Chase (formerly Texas Commerce Bank,
National Association) are parties to that certain Amended and Restated
Credit Agreement dated August ___, 1996 (which replaced a prior Credit
Agreement dated as of September 21, 1993, as amended) as amended by a First
Amendment to Amended and Restated Credit Agreement dated as of March ___,
1997 (as amended, the "Prior Credit Agreement"); and
WHEREAS, the Company has requested that the maximum Commitment for
Loans and Letters of Credit be increased from $75,000,000.00 to
$125,000,000.00; and
WHEREAS, Banks are willing to provide such increased credit
amounts on the terms and conditions set forth in this Agreement and
provided First Commercial and First American are each added as a Bank with
a commitment as provided for herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein,
have the following meanings:
"Acquisition" shall mean any transaction or series of related
transactions, consummated on or after the date of this Agreement, by which
the Company or any Subsidiary of the Company: (a) acquires any going
business or all or substantially all of the assets of any corporation,
partnership or other organization or entity, whether through purchase of
assets, merger or otherwise or (b) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of transactions)
at least (i) a majority (in number of votes) of the stock and/or other
securities of a corporation having ordinary voting power for the election
of directors (other than stock and/or other securities having such power
only by reason of the happening of a contingency), (ii) a majority (by
percentage of voting power) of the outstanding partnership interests of a
partnership or (iii) a majority of the ownership interests in any
organization or entity other than a corporation or partnership, provided,
that for any such Acquisition, the Company shall remain a surviving
corporate entity.
"Agent" means Mercantile Bank National Association in its capacity
as administrative and documentation agent for the Banks hereunder, and its
successors and assigns in such capacity.
"Banks" mean each of Mercantile Bank National Association and its
successors and assigns, NationsBank, N. A. and its successors and assigns,
First Commercial Bank, N. A. and its successors and assigns, First American
National Bank and its successors and assigns, and Chase Bank of Texas, N.
A. and its successors and assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made
to Company pursuant to the terms hereof. A Borrowing is a "Domestic
Borrowing" if such Loans are Domestic Loans or a "Eurocurrency Borrowing"
if such Loans are Eurocurrency Loans. A Borrowing is a "Fed Funds
Borrowing" if such Domestic Loans are Fed Funds Loans or a "Prime
Borrowing" if such Domestic Loans are Prime Loans.
"Chase" means Chase Bank of Texas, N. A. and its successors and
assigns.
"Commitment" means One Hundred Twenty-Five Million Dollars
($125,000,000.00) at all times during the Term hereof, and with respect to
each Bank, the amount specified as such and set opposite the name of such
Bank on the signature pages of this Agreement.
"Company" means Acxiom Corporation, a Delaware corporation, and
its successors and assigns.
"Debt" of any Person means at any date, without duplication, to
the extent obligations and liabilities of such type are required to be
disclosed in such Person's financial statements according to generally
accepted accounting principles, consistently applied, (i) all obligations
of such Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of
property or services, (iv) all obligations of such Person as lessee under
leases capitalized or required to be capitalized in accordance with
generally accepted accounting principles, consistently applied, (v) all
Debt of others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person (provided that for purposes of this
clause (v) the amount of any such Debt shall be deemed not to exceed the
higher of the market value or the net book value of such asset), and (vi)
all other obligations and liabilities required to be disclosed on such
Person's financial statements according to generally accepted accounting
principles, consistently applied.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Domestic Business Day" means any day except a Saturday, Sunday or
legal holiday observed by Bank.
"Domestic Loans" means Fed Funds Loans or Prime Loans or both.
"EBITDA" shall mean on any date the Company's net income
(exclusive of any extraordinary gains or losses) plus interest expense,
plus expenses for income taxes, plus depreciation, plus amortization, all
for the four-quarter period ending on the date of any such calculation, as
determined on a consolidated basis in accordance with generally accepted
accounting principles, consistently applied.
"Effective Date" means the date on which this Agreement shall
become effective in accordance with Section 9.11.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"Eurocurrency Business Day" means any Domestic Business Day on
which commercial banks are open for international business in London.
"Eurocurrency Loans" means any loans bearing interest at the rates
set forth in Section 2.5(c).
"Eurocurrency Margin" has the meaning set forth in Section 2.5(c).
"Event of Default" has the meaning set forth in Section 6.1.
"Fed Funds Loan" means any loans bearing interest at the Fed Funds
Rate as set forth in Section 2.5(b).
"Fed Funds Rate" has the meaning set forth in Section 2.5(b).
"First American" means First American National Bank and its
successors and assigns.
"First Commercial" means First Commercial Bank, N. A. and its
successors and assigns.
"Fixed Rate Borrowing" means a Fed Funds Borrowing or a
Eurocurrency Borrowing or both.
"Fixed Rate Loans" means Fed Funds Loans or Eurocurrency Loans or
both.
"Funded Debt" shall mean as of any fiscal quarter-end or fiscal
year-end the sum of (a) the average outstanding Loans under this Agreement
for the four-quarter period ending as of such date of calculation (computed
on the basis of the average of the daily balances outstanding), plus (b)
the outstanding principal balance of any and all other borrowed money Debt
as of such fiscal quarter-end or fiscal year-end date, including, without
limitation, amounts due under any leases capitalized or required to be
capitalized in accordance with generally accepted accounting principles,
consistently applied.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt of any other Person or in
any manner providing for the payment of any Debt of any other Person or
otherwise protecting the holder of such Debt against loss (whether by
agreement to keep-well, to purchase assets, goods, securities or services,
or to take-or-pay or otherwise); provided that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a correlative meaning.
"Guarantors" shall mean each of Acxiom RM-Tools, Inc., an Arkansas
corporation, Acxiom/Direct Media, Inc., an Arkansas corporation, Acxiom
CDC, Inc., an Arkansas corporation, DataQuick Information Systems, a
California corporation and Acxiom U. K., Ltd., a corporation organized
under the laws of the United Kingdom, and their respective successors and
assigns, and "Guarantor" shall mean any of them.
"Interest Period" means:
(A) with respect to each Eurocurrency Borrowing:
(i) Initially, the period commencing on the date
of such Borrowing and ending 1, 2, 3 or 6 months thereafter, as
the Company may elect in the applicable Notice of Borrowing; and
(ii) Thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to such
Borrowing and ending 1, 2, 3 or 6 months thereafter, as the
Company may elect pursuant to Section 2.4;
provided that:
(a) Subject to clauses (b) and (c) below, any
Interest Period which would otherwise end on a day which is not a
Eurocurrency Business Day shall be extended to the next succeeding
Eurocurrency Business Day, except that if the next succeeding
Eurocurrency Business Day falls within a different calendar month,
the Interest Period shall end on the next preceding Eurocurrency
Business Day;
(b) Any Interest Period which includes January
31, 2003 shall end on such date; and
(c) Any Interest Period which includes a date on
which a payment of principal is required to be made on a Loan to
which such Interest Period applies shall end on such date.
(B) with respect to each Fed Funds Borrowing shall mean a period
of one day.
"Letter of Credit" and "Letters of Credit" shall have the
meanings ascribed thereto in Section 2.1B(a).
"Letter of Credit Application" shall mean an application and
agreement for irrevocable standby letter of credit in the form of Exhibit I
attached to this Agreement and incorporated herein by reference, executed
by the Company, as account party, and delivered to Agent pursuant to
Section 2.1B(a), as the same may from time to time be amended, modified,
extended or renewed.
"Letter of Credit Commitment Fee" shall have the meaning ascribed
thereto in Sections 2.1B(d)(ii) and (iii).
"Letter of Credit Issuance Fee" shall have the meaning ascribed
thereto in Section 2.1B(d)(i).
"Letter of Credit Request" shall have the meaning ascribed thereto
in Section 2.1B(a).
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Agreement, the Company shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such asset.
"Loan" means a Domestic Loan or a Eurocurrency Loan and "Loans"
means any or all of the foregoing.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.5(c).
"Mercantile" means Mercantile Bank National Association and its
successors and assigns.
"NationsBank" means NationsBank, N. A. and its successors and
assigns.
"Notes" mean the promissory notes of the Company in the form of
Exhibits A, B, C, D and E attached hereto, evidencing the obligation of the
Company to repay the Loans.
"Notice of Borrowing" has the meaning set forth in Section 2.2.
"Permitted Acquisition" shall mean any Acquisition of an ongoing
business similar to or consistent with the Company's current lines of
business which: (a) has been: (i) in the event a corporation or its assets
is the subject of such Acquisition, either (x) approved by the Board of
Directors of the corporation which is the subject of such Acquisition or
(y) recommended by such Board of Directors to the shareholders of such
corporation, (ii) in the event a partnership is the subject of such
Acquisition, approved by a majority (by percentage of voting power) of the
partners of the partnership which is the subject of such Acquisition, (iii)
in the event an organization or entity other than a corporation or
partnership is the subject of such Acquisition, approved by a majority (by
percentage of voting power) of the governing body, if any, or by a majority
(by percentage of ownership interest) of the owners of the organization or
entity which is the subject of such Acquisition or (iv) in the event the
corporation, partnership or other organization or entity which is the
subject of such Acquisition is in bankruptcy, approved by the bankruptcy
court or another court of competent jurisdiction; and (b) both as of the
date of any such Acquisition and immediately following such Acquisition the
Company is, and on a pro forma basis projects that it will continue to be,
in compliance with the terms, covenants and conditions contained in this
Agreement and the other loan documents, which pro forma compliance shall be
demonstrated by the Company pursuant to such financial and other
information concerning such acquisition provided to the Agent and the Banks
as Agent or any of the Banks may reasonably require.
"Permitted Investments" shall mean any investment by the Company
or any Subsidiary in any of the following:
(a) Direct obligations of the United States of America or
any instrumentality or agency thereof, the payment of which is
unconditionally guaranteed by the United States of America or any
instrumentality or agency thereof (all of which Investments must mature
within twelve (12) months from the time of acquisition thereof);
(b) Investments in readily marketable commercial paper
which, at the time of acquisition thereof by the Company or any Subsidiary,
is rated A-1 or better by Standard & Poor's or P-1 or better by Moody's
Investment Service and which matures within 270 days from the date of
acquisition thereof, provided that the issuer of such commercial paper
shall, at the time of acquisition of such commercial paper, have a senior
long-term debt rating of at least A by Standard & Poor's and Moody's
Investment Service;
(c) Negotiable certificates of deposit or negotiable
bankers acceptances issued by any of the Banks or any other bank or trust
company organized under the laws of the United States of America or any
state thereof, which bank or trust company (other than any of the Banks to
which such restrictions shall not apply) is a member of both the Federal
Deposit Insurance Corporation and the Federal Reserve System and is rated B
or better by Thompson Bank Watch Service (all of which Permitted
Investments must mature within twelve (12) months from the time of
acquisition thereof);
(d) Repurchase agreements, which shall be collateralized
for at least 100% of face value, issued by any of the Banks or any other
bank or trust company organized under the laws of the United States or any
state thereof, which bank or trust company (other than any of the Banks to
which such restrictions shall not apply) is a member of both the Federal
Deposit Insurance Corporation and the Federal Reserve System and is rated B
or better by Thompson Bank Watch Service (all of which Permitted
Investments must mature within twelve (12) months from the time of
acquisition thereof);
(e) Investments in mutual funds the investments of which
are limited to domestic securities;
(f) Investments of equity, whether through the purchase
of capital stock, membership interests, partnership or joint venture
interests, options, warrants or otherwise, in any Person having an ongoing
business similar to or consistent with the Company's current lines of
business; and
(g) the making of any loans to any Person having an
ongoing business similar to or consistent with the Company's current lines
of business.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Prime Loan" means a Loan bearing interest at the Prime Rate
pursuant to Section 2.5(a) or Article 7.
"Prime Rate" shall mean the interest rate announced from time to
time by Agent as its "prime rate" on commercial loans, which rate shall
fluctuate as and when said "prime rate" shall change, and which rate may
not be Agent's best or lowest rate or a favored rate, and any statement,
representation or warranty in that regard or to that respect is expressly
disclaimed by Agent and Banks.
"Pro Rata Share" shall mean the pro rata share of loans to be made
by each of the Banks hereunder or of other amounts to be shared between
Banks, which shall be 26.0% for Mercantile, 26.0% for Chase, 12.0% for
First Commercial, 12.0% for First American, and 24.0% for NationsBank.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
"Required Banks" shall mean Banks having sixty-six and two thirds
percent (66-2/3%) of the aggregate amount of Loans and Letters of Credit
then outstanding hereunder, or if no Loans or Letters of Credit are then
outstanding, having sixty-six and two thirds percent (66-2/3%) of the
Commitment.
"Reserve Percentage" shall mean for any day, with respect to a
Eurocurrency Loan, the highest percentage (including any supplemental
percentage applied on a marginal basis or any other reserve requirement
having a similar effect), expressed as a decimal, which is applicable to
any of the Banks and is in effect on such day, as prescribed by the Board
of Governors of the Federal Reserve System under Regulation D (or any other
then applicable regulation of the Board of Governors) with respect to
"Eurocurrency Liabilities".
"Subsidiary" means with respect to any Person any corporation of
which more than 50% of the issued and outstanding stock entitled to vote
for the election of directors is at the time owned directly or indirectly
by such Person.
"Subsidiary Guaranties" means each of the unlimited continuing
guaranties executed now or hereafter by each of the Guarantors, and
"Subsidiary Guaranty" shall mean any of them.
"Syndication Agent" means Chase Bank of Texas, N. A. in its
capacity as syndication agent for the Banks hereunder, and its successors
and assigns in such capacity.
"Tangible Net Worth" of any Person means, at any date, the
stockholders' equity of such Person less such Person's Intangible Assets as
of such date. For purposes of this definition, "Intangible Assets" means
the amount (to the extent reflected in determining such stockholders'
equity) of (i) all write-ups subsequent to September 30, 1997 in the book
value of any asset owned by such Person, (ii) investments in unconsolidated
subsidiaries, and (iii) goodwill, unamortized debt discount and expense,
unamortized deferred charges (other than relating to the Company's data
processing contracts), patents, trademarks, service marks, trade names,
copyrights, organizational or developmental expenses, capitalized computer
software costs and leasehold improvements (except leasehold improvements
relating to the Company's 50 year land lease with the City of Conway,
Arkansas), and other similar intangible items and assets.
"Term" means the period from the Effective Date up to and
including January 31, 2003 or such earlier time as Agent, Syndication Agent
and/or Banks may terminate their obligations hereunder pursuant to Article
6 herein.
SECTION 1.2. Accounting Terms and Determinations. Except as
otherwise specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared
in accordance with generally accepted accounting principles as in effect
from time to time, applied on a basis consistent (except for changes
approved by Banks and by the Company's independent public accountants) with
the most recent audited financial statements of the Company delivered to
Banks.
ARTICLE II
THE CREDITS
SECTION 2.1. Loans.
A. Loans. During the Term hereof, Banks agree, on the
terms and conditions set forth in this Agreement, to lend to the Company
from time to time their Pro Rata Shares of Borrowings in a principal amount
not to exceed, in the aggregate at any one time outstanding, the amount of
the Commitment minus the undrawn face amount of any Letters of Credit then
issued and outstanding under Section 2.1B herein; provided, however, that
no Bank shall be required to advance any Borrowing requested by the Company
hereunder which, when added to the principal amount of such Bank's then
outstanding Loans plus such Bank's Pro Rata Share of the undrawn face
amount of any Letters of Credit then outstanding, would exceed the amount
of such Bank's Commitment. Each Fed Funds Borrowing under this Section 2.1A
shall be for an aggregate principal amount of at least $100,000.00. Each
Eurocurrency Borrowing under this Section 2.1A shall be for an aggregate
principal amount of at least $1,000,000.00 or any larger multiple of
$100,000.00. Company may borrow under this Section 2.1A, prepay under
Section 2.8 and reborrow at any time during the Term hereof under this
Section subject to the terms of this Agreement. The failure of any Bank to
advance any requested Borrowing under this Agreement shall not release any
other Bank from its obligation to make any such Borrowing as provided
herein.
B. Letters of Credit.
(a) Subject to the terms and conditions of this Agreement,
during the Term hereof, and so long as no Default or Event of Default under
this Agreement has occurred and is continuing (provided, however, that
Agent shall have no liability to any Bank for issuing a Letter of Credit
after the occurrence of any Default or Event of Default under this
Agreement unless Agent has previously received notice in writing from the
Company or any Bank of the occurrence of such Default or Event of Default),
Agent hereby agrees to issue irrevocable standby letters of credit for the
account of the Company (individually, a "Letter of Credit" and
collectively, the "Letters of Credit") in an amount and for the term
specifically requested by the Company by notice in writing to Agent in the
form of Exhibit J attached to this Agreement and incorporated herein by
reference (a "Letter of Credit Request") at least three (3) Domestic
Business Days prior to the requested issuance thereof; provided, however,
that:
(i) The Company shall have executed and
delivered to Agent a Letter of Credit Application with respect to
such Letter of Credit;
(ii) The term of the Letter of Credit in the
face amount of $6,600,000.00 issued by Mercantile on April 29,
1996 for the Company's account (which Letter of Credit was issued
by Mercantile under the Prior Credit Agreement and shall be deemed
to be a Letter of Credit issued and outstanding hereunder) shall
not extend beyond the last day of the Term hereof or such earlier
expiry date as shall be set forth in such Letter of Credit; and
the term of any other Letter of Credit shall not extend beyond the
earlier of (A) the last day of the Term hereof or (B) three
hundred sixty-five (365) days from the issuance thereof;
(iii) Any Letter of Credit may only be utilized
to guaranty or support the payment of obligations of the Company
or any Subsidiary to third parties;
(iv) The sum of (A) the aggregate undrawn face
amount of all outstanding Letters of Credit plus (B) the aggregate
principal amount of all outstanding Loans shall not at any one
time exceed the sum of One Hundred Twenty-Five Million Dollars
($125,000,000.00);
(v) The aggregate undrawn face amount of all
outstanding Letters of Credit shall not at any one time exceed the
sum of Thirty Million Dollars ($30,000,000.00); and
(vi) The text of any such Letter of Credit is
provided to Agent no less than three (3) Domestic Business Days
prior to the requested issuance date, which text must be
acceptable to Agent in its sole and absolute discretion.
(b) The acceptance or payment of drafts under each Letter
of Credit shall be made in accordance with the terms thereof and, in that
connection, Agent shall be entitled to honor any drafts and accept any
documents presented to it by the beneficiary of such Letter of Credit in
accordance with the terms of such Letter of Credit and believed by Agent to
be genuine. Agent shall not have any duty to inquire as to the accuracy or
authenticity of any draft or other drawing document that may be presented
to it other than the duties contemplated by the applicable Letter of Credit
Application. If Agent shall have received documents that in its judgment
constitute all of the documents that are required to be presented before
payment or acceptance of a draft under a Letter of Credit issued by it, it
shall be entitled to pay or accept such draft provided such documents
conform on their face to the requirements of such Letter of Credit.
(c) In the event of any payment by Agent of a draft
presented or accepted under a Letter of Credit, the Company agrees to pay
to Agent in immediately available funds at the time of such drawing an
amount equal to the sum of such drawing plus Agent's negotiation,
processing and other fees related thereto. The Company hereby authorizes
Agent to charge or cause to be charged the Company's bank accounts at
Mercantile to the extent there are balances of immediately available funds
therein, in an amount equal to the sum of such drawing plus Agent's
negotiation, processing and other fees related thereto, and the Company
agrees to pay the amount of any such drawing (and/or Agent's negotiation,
processing and other fees related thereto) not so charged prior to the
close of business of such Bank on the day of such drawing. In the event any
payment under a Letter of Credit is made by Agent without same day receipt
of payment from the Company, such payment by Agent shall constitute a Loan
by Agent to the Company, payable on demand of Agent. The Company agrees to
pay interest on demand of Agent on any unpaid Loan made pursuant to the
preceding sentence at a rate per annum equal to the rate on the Company's
Loans under Section 2.1A, calculated on an actual day, 360-day year basis,
until such Loan is paid in full.
(d) The Company hereby further agrees to pay to the order
of Agent:
(i) With respect to each Letter of Credit issued
by Agent on or after the date hereof, a nonrefundable issuance fee
in the amount of One Hundred Twenty-Five Dollars ($125.00) for the
issuance of each such Letter of Credit (the "Letter of Credit
Issuance Fee"), which Letter of Credit Issuance Fee shall be due
and payable on the date of issuance of each such Letter of Credit;
(ii) With respect to the Letter of Credit in the
face amount of $6,600,000.00 issued by Mercantile on April 29,
1996 for the Company's account, a nonrefundable commitment fee in
an amount equal to eighty-five hundredths of one percent (0.85%)
per annum (calculated on an actual day, 360-day year basis) times
the face amount (taking into account any scheduled increases or
decreases therein during the period in question) of such
$6,600,000.00 Letter of Credit issued hereunder (the "Letter of
Credit Commitment Fee" for the $6,600,000.00 Letter of Credit),
which Letter of Credit Commitment Fee shall be due and payable in
advance on the date of issuance of such $6,600,000.00 Letter of
Credit for the remainder of the then current calendar quarter and
on the first (1st) day of each calendar quarter thereafter or
portion thereof for which such $6,600,000.00 Letter of Credit
remains outstanding, and a pro rata portion of such Letter of
Credit Commitment Fee paid in any quarter shall be refunded to the
Company in the event the $6,600,000.00 Letter of Credit is
terminated or fully drawn upon prior to its expiry date during
such quarter based upon the remainder of such quarter or its
remaining term to such expiry date, whichever is less;
(iii) With respect to each other Letter of
Credit, a nonrefundable commitment fee at a rate per annum to be
determined by Agent and agreed to by the Company prior to the
issuance of each such Letter of Credit (calculated on an actual
day, 360-day year basis) times the face amount (taking into
account any scheduled increases or decreases therein during the
period in question) of each such Letter of Credit issued hereunder
("Letter of Credit Commitment Fee" for such other Letters of
Credit), which Letter of Credit Commitment Fee shall be due and
payable in advance on the date of issuance of each such Letter of
Credit for the remainder of the then current calendar quarter and
on the first (1st) day of each calendar quarter thereafter or
portion thereof for which each such Letter of Credit remains
outstanding, and a pro rata portion of any such Letter of Credit
Commitment Fee shall be refunded to the Company for any Letter of
Credit which terminates or is fully drawn upon prior to its expiry
date during a quarter based upon the remainder of such quarter or
its remaining term to such expiry date, whichever is less;
(iv) With respect to each Letter of Credit, such
other fees as may be charged by Agent from time to time in
accordance with Agent's published schedule of fees in effect from
time to time, which fees shall be due and payable on demand by
Agent.
(e) Participation by Other Banks. Upon the issuance of a
Letter of Credit by Agent, an undivided participation interest therein
(including, without limitation, an undivided participation interest in the
reimbursement risk relating to such Letter of Credit and in all payments
and Loans made by Agent in connection with any such Letter of Credit) shall
automatically be granted by Agent to, and accepted by each of the other
Banks in an amount based on each such Bank's Pro Rata Share of the face
amount of such Letter of Credit, which participations shall be evidenced by
a single Letter of Credit Participation Certificate executed by Agent in
favor of such Bank in the form attached to this Agreement as Exhibit K and
incorporated herein by reference. If Agent shall make payment on any draft
presented or accepted under a Letter of Credit, Agent shall give notice of
such payment to the Banks, and each of the Banks hereby authorizes and
requests Agent to advance for their respective accounts, pursuant to the
terms hereof, their respective shares of any such payment based upon their
respective Pro Rata Shares. If such drawing is not paid by the Company in
immediately available funds prior to the close of business of Agent on the
date of such drawing, Agent shall promptly so notify the Banks and each of
the Banks agrees to immediately reimburse Agent in immediately available
funds for its Pro Rata Share of the amount of such drawing, plus interest
calculated on its Pro Rata Share of such amount at a rate per annum equal
to the then current fed funds rate calculated from the date of such payment
by Agent to but excluding the date of reimbursement by such Bank and on an
actual-day, 360-day year basis. Following such advance by each Bank to
Agent of its Pro Rata Share of any such Loan pursuant to the preceding
sentence, each such Bank shall thereafter receive its Pro Rata Share of all
interest and other amounts due with respect to such Loan when paid by the
Company to the Agent hereunder. Each of the Banks will be entitled to its
Pro Rata Share of any Letter of Credit Commitment Fees paid by the Company
(which shall be paid through the Agent under Section 2.1B, but such Banks
shall have no right to share in any Letter of Credit Issuance Fees or any
other fees paid by the Company to Agent in connection with any of the
Letters of Credit.
(f) Replacement or Collateralization of Letters of Credit.
Notwithstanding any provision contained in this Agreement or any of the
Letter of Credit Applications to the contrary, upon the occurrence of any
Event of Default under this Agreement, at Agent's option and without demand
or further notice to the Company, an amount equal to the aggregate undrawn
face amount of all Letter(s) of Credit then outstanding shall be deemed (as
between Agent and the Company) to have been paid or disbursed by Agent
(notwithstanding that such amounts may not in fact have been so paid or
disbursed by Agent), and a Loan to the Company in such amount to have been
made and accepted by the Company, which Loan shall be immediately due and
payable. In lieu of the foregoing, at the election of Agent, the Company
shall, upon Agent's demand, deliver to Agent cash or other collateral
acceptable to Agent in its sole and absolute discretion, having a value, as
determined by Agent at least equal to aggregate undrawn face amount of all
outstanding Letters of Credit issued by Agent for the Company's Account.
Any such collateral and/or any amounts received by Agent in payment of any
Loan made pursuant to this Section 2.1B shall be held by Agent in a
separate account at Agent appropriately designated as a cash collateral
account in relation to this Agreement and the Letters of Credit and
retained by Agent as collateral security for the payment of the Company's
Loans and other obligations to Agent and the Banks. Cash amounts delivered
to Agent pursuant to the foregoing requirements of this Section 2.1B(f)
shall be invested, at the request and for the account of the Company, in
investments of a type and nature and with a term acceptable to Agent. Such
amounts, including in the case of cash amounts invested in the manner set
forth above, any investment realized thereon, shall not be used by Agent to
pay any amounts drawn or paid under or pursuant to any Letter of Credit,
but may be applied to reimburse Agent for drawings or payments under or
pursuant to the Letters of Credit which Agent has paid, or if no such
reimbursement is required shall be applied to such other of the Company's
Loans and other obligations to Agent and the Banks as Agent shall
determine. Any amounts remaining in any cash collateral account established
pursuant to this Section 2.1B(f) after the payment in full of all of the
Company's obligations to Agent and the Banks and the expiration or
cancellation of all of the Letters of Credit shall be returned to the
Company (after deduction of Agent's expenses, if any).
SECTION 2.2. Method of Borrowing.
(a) The Company shall give notice (a "Notice of
Borrowing") to Agent (1) by 10:00 a.m. (St. Louis time) on the day of each
Domestic Borrowing, and (2) by 10:00 a.m. (St. Louis time) at least two
Eurocurrency Business Days before each Eurocurrency Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Domestic Borrowing or a Eurocurrency
Business Day in the case of a Eurocurrency Borrowing,
(ii) the aggregate principal amount of such Borrowing,
(iii) whether such Borrowing is to be a Fed Funds
Borrowing, a Prime Borrowing or a Eurocurrency Borrowing, and
(iv) in the case of a Eurocurrency Borrowing, the
duration of the initial Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period.
(b) A Notice of Borrowing shall not be required in
connection with a Prime Borrowing pursuant to Section 7.1. A Notice of
Borrowing for Eurocurrency Borrowings must be given in writing in a form
substantially similar to Exhibit H attached hereto; a Notice of Borrowing
for a Domestic Borrowing may be oral or in writing, but if oral, shall be
confirmed in writing to Agent within five (5) days. A Notice of Borrowing
shall not be revocable by the Company. Upon receipt of a Notice of
Borrowing, the Agent shall promptly notify each Bank of the contents
thereof and of such Bank's Pro Rata Share of such Borrowing.
(c) Not later than 3:00 P.M. (St. Louis time) on the date
of each Borrowing during the Term hereof, each Bank shall make available
its Pro Rata Share of such Borrowing, in federal or other funds immediately
available in St. Louis, Missouri, to the Agent at its address specified on
the signature pages hereof. Following receipt of such funds from each of
the Banks, unless Agent determines that any applicable condition specified
in Article 3 has not been satisfied, the Agent will make available to the
Company such Borrowing in federal or other funds immediately available in
St. Louis, Missouri, by crediting such funds to a demand deposit account
(or such other account mutually agreed upon in writing between Agent and
the Company) of the Company with Mercantile.
(d) If the Company requests a Borrowing hereunder on a
day on which the Company is required to or has elected to repay all or any
part of an outstanding Loan, each Bank shall apply the proceeds of such
Borrowing to make such repayment and only an amount equal to the difference
(if any) between the amount being borrowed and the amount being repaid
shall be made available by each such Bank to the Agent for delivery to the
Company as provided in subsection (c) of this Section.
SECTION 2.3. Notes. The Loans of each Bank to the Company shall be
evidenced, respectively, by a Note payable to the order of such Bank, which
shall be in the form of Exhibit A, Exhibit B, Exhibit C, Exhibit D or
Exhibit E attached hereto. Each Bank shall record, and prior to any
transfer of its Note shall endorse on the schedules forming a part thereof,
appropriate notations to evidence the date and amount of each Loan and the
date and amount of each payment of principal made by the Company with
respect thereto. Each Bank is hereby irrevocably authorized by the Company
so to endorse its Note and to attach to and make a part of any such Note a
continuation of any such schedule as and when required; provided, however
that the obligation of the Company to repay each Loan shall be absolute and
unconditional, notwithstanding any failure of any Bank to endorse or any
mistake by any Bank in connection with endorsement on the schedules
attached to its Note. The books and records of the Banks (including without
limitation the schedules attached to the Notes) showing the account between
Banks and the Company shall be admissible in evidence in any action or
proceeding and shall constitute prima facie proof of the items therein set
forth.
SECTION 2.4. Duration of Interest Periods and Selection of
Interest Rates.
(a) The duration of the initial Interest Period for each
Eurocurrency Borrowing shall be as specified in the applicable Notice of
Borrowing. The Company shall elect the duration of each subsequent Interest
Period applicable to such Eurocurrency Borrowing and the interest rate and
currency to be applicable during such subsequent Interest Period (and the
Company shall have the option, in the case of any Prime or Fed Funds
Borrowing, to elect that such Borrowing become a Eurocurrency Borrowing
specifying the Interest Period and currency to be applicable thereto), by
giving written notice of such election to the Agent (i) by 10:00 a.m. (St.
Louis time) on the day of, in the case of the election of the Prime Rate or
the Fed Funds Rate, or (ii) by 10:00 a.m. (St. Louis time) at least two
Eurocurrency Business Days before, in the case of the election of a rate
based on the London Interbank Offered Rate plus the Eurocurrency Margin for
a Eurocurrency Borrowing, the end of the immediately preceding Interest
Period applicable thereto, if any.
(b) If in respect of any Eurocurrency Borrowing or part
thereof, the Company fails to give a notice in accordance with Section
2.4(a) prior to the end of any Interest Period relating thereto, such
Borrowing shall be for an Interest Period of equal duration to such
immediately preceding Interest Period.
(c) Notwithstanding the foregoing, the duration of each
Interest Period shall be subject to the provisions of the definition of
Interest Period.
SECTION 2.5. Interest Rates.
(a) Each Prime Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Prime Rate (which
rate shall fluctuate as and when the Prime Rate shall change). Such
interest shall be payable monthly in arrears on the last day of each month,
commencing with the month ending on March 31, 1998, and at maturity. Any
overdue principal of and, to the extent permitted by law, overdue interest
on, any Prime Loan shall bear interest, payable on demand, for each day
until paid at a rate per annum equal to the sum of 3% plus the otherwise
applicable rate for such day.
(b) Each Fed Funds Loan shall bear interest on the
outstanding principal amount thereof, for each overnight Interest Period
applicable thereto, at a rate per annum equal to the applicable Fed Funds
Rate. Such interest shall be payable for each Fed Funds Loan on the last
day of each month, commencing with the month ending on March 31, 1998, and
at maturity. Any overdue principal of and, to the extent permitted by law,
overdue interest on, any Fed Funds Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the sum of 3%
plus the rate applicable to Prime Loans for such day.
The "Fed Funds Rate" applicable to any Fed Funds Loan for
any overnight Interest Period means a rate per annum equal to the rate
quoted by Agent as its daily "Opening Fed Funds Rate" (which interest rate
shall fluctuate as and when said "Opening Fed Funds Rate" shall change)
plus the then applicable Fed Funds Margin. As used herein, the applicable
"Fed Funds Margin" shall be determined as follows:
If the Company's ratio of Applicable
Funded Debt to EBITDA is: Fed Funds Margin
- ------------------------- ----------------
Less than .75 to 1.0 0.85%
Greater than or equal to .75 to 1.0 but less 1.05%
than 1.50 to 1.0
Greater than or equal to 1.50 to 1.0 1.15%
The Company's ratio of Funded Debt to EBITDA shall be computed by Agent
following delivery of the Company's most recent fiscal quarter-end or
fiscal year-end financial statements pursuant to Section 5.1(a)(i) or (ii)
and the Compliance Certificate pursuant to Section 5.1(a)(iii), and the
applicable Fed Funds Margin shall be adjusted in accordance with the
foregoing, with each such adjustment to be effective as of the date the
Agent notifies the Company and the Banks of the adjusted amount. Such
applicable Fed Funds Margin shall continue in effect until the next such
adjustment pursuant to the delivery of the next subsequent quarter-end or
year-end financial statements and Compliance Certificate of the Company.
Each determination by the Agent of the applicable Fed Funds Margin shall be
deemed prima facie correct.
(c) Each Eurocurrency Loan shall bear interest on the
outstanding principal amount thereof for each Interest Period applicable
thereto at a rate per annum equal to the sum of the Eurocurrency Margin
plus the applicable London Interbank Offered Rate. Except in the case of an
acceleration of payment by the Agent under Section 6.1 (when interest shall
be paid with the principal amount repaid), interest shall be payable for
each Interest Period on the last day thereof, unless the duration of the
applicable Interest Period exceeds three months, in which case such
interest shall be payable on the last day of the third month of such
Interest Period and on the last day of such Interest Period.
"Eurocurrency Margin" as used herein, shall be determined as
follows:
If the Company's ratio of Applicable
Funded Debt to EBITDA is: Eurocurrency Margin
- ------------------------- -------------------
Less than .75 to 1.0 0.50%
Greater than or equal to .75 to 1.0 but less 0.75%
than 1.50 to 1.0
Greater than or equal to 1.50 to 1.0 0.90%
The Company's ratio of Funded Debt to EBITDA shall be computed by Agent
following delivery of the Company's most recent fiscal quarter-end or
fiscal year-end financial statements pursuant to Section 5.1(a)(i) or (ii)
and the Compliance Certificate pursuant to Section 5.1(a)(iii), and the
applicable Eurocurrency Margin shall be adjusted in accordance with the
foregoing, with each such adjustment to be effective as of the date the
Agent notifies the Company and the Banks of the adjusted amount. Such
applicable Eurocurrency Margin shall continue in effect until the next such
adjustment pursuant to the delivery of the next subsequent quarter-end or
year-end financial statements and Compliance Certificate of the Company.
Each determination by the Agent of the applicable Eurocurrency Margin shall
be deemed prima facie correct.
The "London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum determined pursuant to the following formula:
[ LIBOR-BR ]**
LIBOR = [----------]
[ 1.00 - RP]
LIBOR = London Interbank Offered Rate
LIBOR-BR = LIBOR Base Rate
RP = Reserve Percentage
The term "LIBOR Base Rate" shall mean, with respect to the
applicable Interest Period, the rate per annum of interest determined by
Agent to be the arithmetic average of the respective average rates per
annum at which deposits in U.S. dollars are offered to Agent in the London
interbank market for Eurocurrency deposits by two (2) Eurocurrency dealers
of recognized standing, selected by Agent in its sole discretion, at
approximately 10:00 a.m. St. Louis time (or as soon thereafter as
practicable), two (2) Eurocurrency Business Days before the first day of
such Interest Period for a number of days comparable to the number of days
in such Interest Period and in an amount comparable to the amount of the
applicable Eurocurrency Borrowing. Any overdue principal of and, to the
extent permitted by law, overdue interest on, any Eurocurrency Borrowing
shall bear interest, payable on demand, for each day until paid, at a rate
per annum equal to the sum of 3% plus the rate applicable to Prime Loans
for such day.
(d) Agent shall determine each interest rate applicable to
the Loans as provided above. Agent shall give prompt notice to the Company
by telephone, telecopy, telex or cable of each rate of interest so
determined, and its determination thereof shall be conclusive in the
absence of manifest error.
SECTION 2.6. Commitment Fee. Provided the Company's ratio of
Funded Debt to EBITDA is less than 1.0 to 1.0, the Company shall pay to the
Agent for the benefit of Banks a nonrefundable commitment fee of Three
Sixteenths of One Percent (3/16%) per annum on the average daily balance of
the unused portion of the Commitment determined based upon the Commitment
amount minus the sum of the principal amount of all Loans plus the face
amount of all issued and outstanding Letters of Credit from time to time
outstanding during the Term hereof. In the event the Company's financial
statements delivered to Banks pursuant to Sections 5.1(a)(i) or (ii) at any
time disclose that the Company's ratio of Funded Debt to EBITDA is greater
than or equal to 1.0 to 1.0 as of the end of any fiscal quarter or fiscal
year, the Company agrees to pay to the Agent for the benefit of Banks a
nonrefundable commitment fee of One-Fourth of One Percent (1/4%) per annum
on the average daily balance of the unused portion of the Commitment
determined based upon the Commitment amount minus the sum of the principal
amount of all Loans plus the face amount of all Letters of Credit from time
to time outstanding hereunder for the next succeeding quarter during the
Term hereof. Said fee shall be payable quarterly in arrears, on each July
30, October 30, January 30 and April 30 during the Term hereof, and on the
last day of the Term hereof. Upon Agent's receipt of the Commitment Fee
payable under this Section 2.6, the Agent shall promptly deliver to each
Bank its Pro Rata Share of such Commitment Fee actually received by Agent.
SECTION 2.7. Termination or Reduction of Commitment. The Company
may, by notice to Agent, which notice Agent shall promptly deliver to
Banks, terminate entirely at any time, or proportionately reduce from time
to time by an aggregate amount of $500,000.00 or any larger multiple of
$500,000.00, the unused portion of the Commitment; provided, however, that
(i) at no time shall the Commitment be reduced to a figure less than the
total of the outstanding principal amount of all Loans, and (ii) at no time
shall the Commitment be reduced to a figure greater than zero but less then
$1,000,000.00. The respective Commitments of each of the Banks shall be
reduced by such Bank's Pro Rata Share of the aggregate reduction made by
the Company.
SECTION 2.8. Payments Prior to Maturity.
(a) The Company may, upon notice to Agent specifying that
it is paying its Prime Loans or Fed Funds Loans, pay without penalty or
premium its Prime Loans or Fed Funds Loans in whole or in part at any time,
or from time to time, by paying the principal amount to be paid together
with accrued interest thereon to the date of payment; provided, however,
that no such prepayment shall be made with respect to the Company's Fed
Funds Loans which would leave the total outstanding principal balance of
the Company's remaining Fed Funds Loans at greater than zero but less than
$100,000.00.
(b) The Company may, upon at least two Eurocurrency
Business Days' notice to Agent, in the case of Eurocurrency Loans, pay
without penalty or premium on the last day of any Interest Period its
Eurocurrency Loans to which such Interest Period applies, in whole, or in
part, by paying the principal amount to be paid together with accrued
interest thereon to the date of payment; provided, however, that the
portion of any Eurocurrency Loan, which is not prepaid and which is to be
extended for a new Interest Period, must be in a minimum principal amount
of at least $1,000,000.00 or any larger multiple of $100,000.00. A notice
of payment given to Agent pursuant to this subsection (b) shall not
thereafter be revocable by the Company. The Company shall not be permitted
to prepay any Eurocurrency Loan on any day other than the last day of an
Interest Period.
(c) Agent shall promptly notify each of the Banks of its
receipt of any notice of prepayment under Section 2.8(a) or 2.8(b) above.
SECTION 2.9. General Provisions as to Payments.
(a) All payments to be made by the Company under this
Agreement shall be made to the Agent for value on the due date and in
immediately available funds to the account of the Agent at 721 Locust
Street, St. Louis, Missouri 63101 or to the account of the Agent at such
other bank as the Agent may from time to time designate. All payments of
interest and principal, whether voluntary or involuntary, from whatever
source, including payments by reason of liquidation or collateral, setoff,
bankruptcy proceedings or otherwise, and whether received by Agent or any
of the Banks, shall be shared between the Banks in accordance with their
respective Pro Rata Shares.
(b) Whenever any payment of principal of, or interest on,
Domestic Loans or of fees shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, Eurocurrency Loans shall be due on a day which is not a
Eurocurrency Business Day, the date for payment thereof shall be extended
to the next succeeding Eurocurrency Business Day, except that if the next
succeeding Eurocurrency Business Day falls within a different calendar
month, such payment shall be made on the next preceding Eurocurrency
Business Day. If the date for any payment of principal is extended by
operation of law or otherwise, interest thereon, at the then applicable
rate, shall be payable for such extended time.
(c) All payments to be made by the Company under this
Agreement shall be made without setoff or counterclaim and without
deduction for or on account of any present or future taxes or other charges
unless the Company is compelled by law to make payment subject to such tax
or other charge. All such taxes or other charges shall be paid by the
Company for its own account prior to the date on which penalties attach
thereto. The Company will indemnify the Agent and each of the Banks in
respect of all such taxes and other charges. Should any such payment be
subject to any tax or other charge, and the above provisions either cannot
be effected or do not result in the Agent or the Banks actually receiving
and remaining beneficially entitled to and in possession of an amount equal
to the full amount provided for hereunder, the Company shall pay to the
Agent, for itself or for the benefit of the Banks, as the case may be, such
additional amounts as may be necessary to ensure that Agent and each of the
Banks receive and remain in possession of and beneficially entitled to
(free from any liability in respect of any deduction, withholding or
payment other than in respect of any tax on the overall net income of Agent
or the Banks) a net amount equal to the full amount which it would have
received and retained had payment not been subject to such tax or other
charge. The Company shall send to the Agent or the Banks such certificates
or certified copy receipts as the Agent or the Banks shall reasonably
require as proof of the payment by the Company of any taxes or other
charges payable by the Company as a result of the provisions of this
Section 2.9(c).
SECTION 2.10. Funding Losses. If the Company makes any payment of
principal with respect to any Eurocurrency Loan (pursuant to Article 6 or 7
or otherwise) on any day other than the last day of an Interest Period
applicable thereto, or if the Company fails to borrow or pay any
Eurocurrency Loans after notice has been given to Agent in accordance with
Section 2.2, 2.4, or 2.8(b), the Company shall reimburse the Agent and each
of the Banks on demand for any resulting loss or expense incurred by them,
including (without limitation) any loss incurred in obtaining, liquidating
or employing deposits from third parties, and including loss of margin for
the period after any such payment, provided that the Agent or such Bank, as
the case may be, shall have delivered to the Company a certificate as to
the amount and particulars of such loss or expense, which certificate shall
be conclusive in the absence of manifest error.
SECTION 2.11. Computation of Interest. Interest on all Loans shall
be computed on the basis of a year of 360 days and paid for the actual
number of days elapsed.
ARTICLE III
CONDITIONS TO BORROWINGS
The obligations of each of the Banks to make Loans are subject to
the performance by the Company of all of its obligations under this
Agreement and to the satisfaction of the following further conditions:
SECTION 3.1. All Borrowings. In the case of each Borrowing
hereunder:
(a) Agent shall have received notice of such Borrowing as
required by Section 2.2;
(b) On the date of, and as a result of such Borrowing, no
Default or Event of Default shall have occurred and be continuing;
(c) On the date of, and as a result of such Borrowing, no
material adverse change in the business, financial position or results of
operation, of the Company and its Subsidiaries, taken as a whole, has
occurred since the Effective Date and is continuing; and
(d) The representations and warranties of the Company
contained in this Agreement shall be true on and as of the date of such
Borrowing.
Each Borrowing by the Company hereunder shall be deemed to be a
representation and warranty by the Company on the date of such Borrowing as
to the facts specified in clauses (b), (c) and (d) of this Section.
SECTION 3.2. First Borrowing. In the case of the first Borrowing
the following additional conditions must be met:
(a) Each Bank shall have received the duly executed Note
of the Company payable to the order of such Bank in the amount of such
Bank's Commitment, dated on or before the date of the first Borrowing;
(b) Each Bank shall have received the opinion of counsel
for the Company, in the form of Exhibit F hereto;
(c) Agent shall have received the duly executed Subsidiary
Guaranty of each of the Guarantors made in favor of all of the Banks, dated
on or before the date of the first Borrowing;
(d) Agent shall have received all documents it may
reasonably request relating to the existence of the Company (including
without limitation certified copies of the Articles of Incorporation and
Bylaws, and any amendments thereto), the corporate authority for and the
validity of this Agreement and the Notes (including without limitation
certified copies of corporate resolutions of the Board of Directors of the
Company and incumbency certificates), and any other matters relevant
hereto, all in form and substance satisfactory to Agent and each of the
Banks; and
(e) Agent shall have received all documents it may
reasonably request relating to the existence of each of the Guarantors
(including without limitation certified copies of the Articles of
Incorporation and Bylaws, and any amendments thereto), the corporate
authority for and the validity of each such Guarantor's respective
Subsidiary Guaranty (including without limitation certified copies of
corporate resolutions of the Board of Directors of each such Guarantor and
incumbency certificates), and any other matters relevant hereto, all in
form and substance satisfactory to Agent and each of the Banks.
The documents and opinions referred to in this Section shall be
delivered to the Agent or the Banks, as applicable, on the date hereof.
SECTION 3.3. All Letters of Credit. Notwithstanding any provision
contained herein to the contrary, Agent shall have no obligation to issue
any Letter of Credit hereunder unless:
(a) Agent shall have received a Letter of Credit Request
for such Letter of Credit as required by Section 2.1B(a);
(b) Agent shall have received a Letter of Credit
Application for such Letter of Credit as required by Section 2.1B(a), duly
executed by an authorized officer of the Company as account party;
(c) The Company shall have complied with all of the
procedures and requirements set forth in Section 2.1B;
(d) On the date of and immediately after the issuance of
such Letter of Credit, no Default or Event of Default under this Agreement
shall have occurred and be continuing;
(e) No change in the properties, assets, liabilities,
business, operations, prospects, income or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole and having
a material adverse effect shall have occurred since the date of this
Agreement and be continuing;
(f) All of the representations and warranties of the
Company contained in this Agreement shall be true and correct in all
material respects on and as of the date of the issuance of such Letter of
Credit as if made on and as of the date of the issuance of such Letter of
Credit; and
(g) Agent shall have received such other documents,
certificates and agreements as it may reasonably request.
Each request for the issuance of a Letter of Credit by the Company
hereunder shall be deemed to be a representation and warranty by the
Company on the date of the issuance of such Letter of Credit as to the
facts specified in clauses (d), (e) and (f) of this Section 3.3,
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties. The Company
represents and warrants that:
(a) Corporate Existence and Power. The Company: (a) is
duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation; (b) has all requisite corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted; and (c) is
qualified to do business in all jurisdictions in which the nature of the
business conducted by it makes such qualification necessary and where
failure to so qualify would have a material adverse effect on its business,
financial condition or operations.
(b) Corporate and Governmental Authorization;
Contravention. The execution, delivery and performance by the Company of
this Agreement, the Notes and the other documents contemplated hereby are
within the corporate powers of the Company, have been duly authorized by
all necessary corporate action and require no action by or in respect of,
or filing with, any governmental body, agency or official. The execution,
delivery, and performance by the Company of this Agreement, the Notes and
the other documents contemplated hereby do not conflict with, or result in
a breach of the terms, conditions or provisions of, or constitute a default
under or result in any violation of, and the Company is not now in default
under or in violation of, the terms of the Articles of Incorporation or
Bylaws of the Company, any applicable law, any rule, regulation, order,
writ, judgment or decree of any court or government agency or
instrumentality, or any agreement or instrument to which the Company is a
party or by which it is bound or to which it is subject.
(c) Binding Effect. This Agreement has been duly executed
and delivered and constitutes a legal, valid and binding agreement of the
Company enforceable in accordance with its terms, and the Notes and the
other documents contemplated hereby, when executed and delivered in
accordance with this Agreement, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms,
except as may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general.
(d) Financial Information.
(i) The balance sheet of the Company as of March
31, 1997 and the related statements of income, retained earnings
and changes in financial position for the fiscal year then ended,
reported on by KPMG Peat Marwick LLP, copies of which have been
provided to Banks, fairly present, in conformity with generally
accepted accounting principles, consistently applied, the
financial position of the Company as of such date and the results
of operations and changes in financial position for such fiscal
year.
(ii) The unaudited balance sheet of the Company
as of December 31, 1997, and the related unaudited internal
statements of income for the period then ended, copies of which
have been provided to Banks, present, substantially in conformity
with generally accepted accounting principles applied on a basis
consistent with the financial statements referred to in paragraph
(d)(i) of this Section, the financial position of the Company as
of such date and the results of operations for such period
(subject to normal year end adjustments).
(iii) Since December 31, 1997 there has been no
material adverse change in the business, financial position or
results of operations of the Company on a cumulative basis.
(e) Litigation. Except as disclosed in Schedule 4.1(e),
there are no actions, suits or proceedings pending or threatened against or
affecting the Company or any of its Subsidiaries, at law or in equity, or
before or by any Federal, State or municipal court or arbitrator or any
other governmental department, commission, board, bureau, agency, official
or instrumentality, domestic or foreign, which are reasonably likely to
result, either individually or collectively, in any material adverse change
in the business, properties, operations or condition, financial or other,
of the Company and its Subsidiaries taken as a whole, or in which there is
a reasonable likelihood of recovery of an amount that exceeds $500,000.00.
(e) ERISA - Absence of Reportable Events. No Reportable
Event as defined in ERISA and the rules and regulations thereunder has
occurred and is continuing with respect to any employee benefit plan or
other plan maintained for employees of the Company and covered by ERISA,
which materially and adversely affects the ability of the Company to
perform its obligations hereunder and under the Notes, and the minimum
funding standards imposed by ERISA on each such plan have been satisfied.
(f) Tax Returns and Payment. The Company has filed all
federal and state income tax returns and all other material tax returns
which are required to be filed and have paid all taxes due pursuant to such
returns or pursuant to any assessment received by the Company, except for
the filing of such returns, if any, in respect of which an extension of
time for filing is in effect and except for such taxes, if any, as are
being contested in good faith and as to which adequate reserves have been
provided. The charges, accruals and reserves on the books of the Company in
respect of any taxes or other governmental charges are, in the opinion of
the Company, adequate.
(g) Not an Investment Company. The Company is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(h) Liens. At the date of this Agreement no Liens exist on
any property of the Company other than those described on Schedule 4.1(i).
(i) Subsidiaries. The Company has the Subsidiaries
described on Schedule 4.1(j) attached hereto.
ARTICLE V
COVENANTS
SECTION 5.1. Covenants of the Company. The Company agrees
that, so long as any Bank has any Commitment hereunder or any amount
payable under any Note remains unpaid, unless the prior written consent of
the Required Banks is obtained:
(a) Information. The Company will deliver to each of the
Banks:
(i) as soon as available and in any event within
90 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company as of the end of such
fiscal year and the related consolidated statements of income,
retained earnings and changes in financial position for such
fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by and
accompanied by the unqualified opinion of independent public
accountants of nationally recognized standing acceptable to Banks,
accompanied by a letter from said accountants certifying that, to
the best of their knowledge after due inquiry, no Default or Event
of Default has occurred hereunder and is continuing as at the end
of the fiscal year covered by said financial statements, and
accompanied by an unaudited consolidating balance sheet and
unaudited consolidating statement of income of the Company for
such fiscal year certified to Banks by the Company's chief
financial officer.
(ii) as soon as available and in any event
within 45 days after the end of each of the first three quarters
of each fiscal year of the Company, a consolidated balance sheet
of the Company as of the end of such quarter and the related
consolidated statements of income, retained earnings and changes
in financial position for such quarter and for the portion of the
Company's fiscal year ended at the end of such quarter, setting
forth in each case in comparative form, the figures for the
corresponding quarter and the corresponding portion of the
Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, generally
accepted accounting principles and consistency by the chief
financial officer of the Company;
(iii) simultaneously with the delivery of each
set of financial statements referred to in clauses (i) and (ii)
above, a Compliance Certificate of the chief financial officer of
the Company, in the form attached hereto as Exhibit G and made a
part hereof, accompanied by supporting financial work sheets where
appropriate, and stating whether there exists on the date of such
certificate any Default or Event of Default and, if any Default or
Event of Default then exists, setting forth the details thereof
and the action which the Company is taking or proposes to take
with respect thereto;
(iv) forthwith upon the occurrence of any
Default or Event of Default, and in any event within five days
after knowledge of such occurrence, a certificate of an officer of
the Company setting forth the details thereof and the action which
the Company is taking or proposes to take with respect thereto;
(v) promptly upon the mailing thereof to the
shareholders of the Company generally, and in any event within ten
days after such mailing, copies of all financial statements,
reports, proxy statements and other material information so
mailed;
(vi) from time to time, with reasonable
promptness, upon being informed by Banks of the purpose of the
inquiry, such further information regarding the business, affairs
and financial position of the Company as Agent or any Bank may
reasonably request.
(b) Limitations on Liens. The Company will not create,
assume, guarantee or suffer to exist any Debt secured by any Lien on any of
the Company's accounts receivable, or any notes, instruments or other
documents evidencing any such accounts receivable.
(c) Merger or Consolidation. The Company will not, and
will not permit any Subsidiary to, merge or consolidate with any other
person, except that:
(i) The Company may consolidate with or merge
into any Person or permit any other Person to merge into, provided
that immediately after giving effect thereto,
(1) The Company shall be the successor corporation;
(2) The Company shall be in compliance with all
provisions of this Agreement; and
(3) The Company and the acquired Person, on a
consolidated basis as determined after giving effect to any such
Permitted Acquisition, have a net worth of not less than 100% of
the Company's net worth determined immediately prior to said
Acquisition;
(ii) Any Subsidiary may (i) merge into the
Company or another wholly-owned Subsidiary or (ii) sell, transfer
or lease all or any part of its assets to the Company or to
another wholly-owned Subsidiary or (iii) merge into any Person
which, as a result of such merger, concurrently become a
wholly-owned Subsidiary.
(d) Sale of Assets. The Company will not, and will not
permit any Subsidiary to, sell, lease, transfer or otherwise dispose of
(collectively, a "Disposition") any assets, in one or a series of
transactions, other than in the ordinary course of business, to any Person,
other than the Company or any Subsidiary, if (1) in any fiscal year of the
Company, after giving effect to such Disposition, the aggregate book value
of all such assets sold, leased, transferred or otherwise disposed of in
such fiscal year would exceed 10% of Consolidated Total Assets as of the
end of the immediately preceding fiscal year or (2) if the assets
constituting the Disposition contributed in excess of 15% to income of the
Company and its Subsidiaries before income taxes and interest, as
determined in accordance with generally accepted accounting principles, for
the prior fiscal year; provided, that the aggregate book value of all
assets sold, leased, transferred or otherwise disposed of pursuant to this
paragraph 5.1(d) shall not exceed (i) 25% of Consolidated Total Assets as
of December 31, 1997, plus (ii) the cumulative sum of the increase (or
decrease) in Consolidated Total Assets as of the end of each subsequent
fiscal year; provided, that, for purposes of this paragraph 5.1(d), in no
year shall such increase exceed 10% of the prior year's Consolidated Total
Assets. Notwithstanding the foregoing, the Company may make a Disposition
and the book value of the assets shall not be required to be included in
the foregoing computation if the Company shall, within one year after such
Disposition, invest the net proceeds thereof in other tangible property of
a similar nature and at least equivalent value (whether new, additional or
replacement property but excluding property purchased as part of regular
upkeep and maintenance) for use in the business of the Company and its
Subsidiaries.
(e) Payment of Debt. The Company will pay any and all Debt
payable or Guaranteed by the Company, and any interest or premium thereon,
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) in accordance with the agreement or instrument
relating to such Debt or Guarantee.
(f) Consultations and Inspections. Solely for the purpose
of permitting Agent and Banks to determine compliance by the Company with
this Agreement, the Company will permit Agent and/or Banks (and any Person
appointed by Agent or any Bank to whom the Company does not reasonably
object) to discuss the affairs, finances and accounts of the Company with
the officers of the Company, all at such reasonable times and as often as
may reasonably be requested. The Company will also permit inspection of its
properties, books and records by Agent and Banks during normal business
hours or at other reasonable times.
(g) Payment of Taxes; Corporate Existence; Maintenance of
Properties; Insurance. The Company will:
(i) pay and discharge promptly all taxes,
assessments and other governmental charges imposed upon it or any
of its property; provided, however, that the Company shall not be
required to pay any such tax, assessment or other governmental
charge the payment of which is being contested in good faith and
by appropriate proceedings and for which adequate reserves have
been provided, except that the Company will pay or cause to be
paid all such taxes, assessments and governmental charges
forthwith upon the commencement of proceedings to foreclose any
Lien which is attached as security therefor, unless such
foreclosure is stayed by the filing of an appropriate bond;
(ii) do all things necessary to preserve and
keep in full force and effect its corporate existence, rights and
franchise and to be duly qualified to do business in all
jurisdictions where the nature of its business requires such
qualification;
(iii) maintain and keep its properties as a
whole in good repair, working order and condition; provided,
however, that nothing in this subsection (iii) shall prevent any
abandonment of any of its properties which is not disadvantageous
in any material respect to Banks and which, in the opinion of the
management of the Company, is in the best interests of the
Company; and
(iv) insure with responsible and reputable
insurance companies its assets and business in such manner and to
such extent as is customary with similar business enterprises of
comparable size and subject to comparable hazards.
(h) Financial Covenants. The Company will:
(i) Have a Tangible Net Worth at all times of not less
than:
(1) $95,000,000.00; plus
(2) The cumulative sum (without reduction for
any losses) of Forty Percent (40%) of the Company's Net Income for
each of its fiscal quarters ending after March 31, 1998.
"Net Income" for purposes of this Section 5.1(h)(i) shall mean the
Company's net income after taxes but before extraordinary gains,
all determined in accordance with generally accepted accounting
principles, consistently applied.
(ii) Have a ratio of Operating Cash Flow to Debt
Service of not less than the following amounts during the periods
set forth below:
Minimum Operating Cash
Period: Flow to Debt Service:
- ------ ----------------------
March ___, 1998 through March 31, 1998 2.50 to 1.0
April 1, 1998 through March 31, 1999 2.75 to 1.0
April 1, 1999 through March 31, 2000 3.00 to 1.0
April 1, 2000 and thereafter 3.25 to 1.0
As used herein the term "Operating Cash Flow" shall mean the
Company's after-tax net income plus interest expense, plus
depreciation, amortization, and operating lease rentals, as
determined in accordance with generally accepted accounting
principles consistently applied, for the four quarter period
ending on the date of such calculation. As used herein the term
"Debt Service" shall mean the Company's interest expense plus
operating lease rentals plus other actual Off Balance Sheet
Liabilities paid during the four quarter period ending on the date
of such calculation, plus current maturities of long-term debt for
the four quarter period following the date of such calculation,
all as determined in accordance with generally accepted accounting
principles. For purposes of said ratio, the amount of current
maturities of long-term debt shall be taken from the balance sheet
of the Company for the four quarter period then ended, and all
other amounts shall be taken from the income statement of the
Company for the four quarter period then ending. The term "Off
Balance Sheet Liabilities" as used herein shall mean all payments
of leases or other obligations assumed from customers under a
service agreement to the extent such arrangements are not treated
as operating leases, capitalized leases or long term debt.
(iii) Not incur any Funded Debt (other than
Funded Debt existing as of December 31, 1997, Funded Debt under
this Agreement and capitalized leases assumed by the Company after
the date of this Agreement as a condition to a contract between
the Company and one of its customers) in excess of $30,000,000.00
outstanding at any time during the Term hereof.
(iv) Deliver a certificate of the chief
financial officer of the Company containing the financial ratio
calculations required in clauses (i) through (iii) simultaneously
with the financial statements referred to in Section 5.1(a)(i) and
(ii).
(i) Maintenance of Books and Records. The Company will
maintain its books and records in accordance with generally accepted
accounting principles, consistently applied.
(j) Stock Redemptions and Distributions. With respect to
its capital stock, the Company will not make any redemptions, stock
repurchases, dividend distributions, or other distributions to its
shareholders unless, immediately after giving effect to the proposed
redemption, repurchase or distribution, such proposed redemption,
repurchase or distribution, when aggregated with all other redemptions,
repurchases and distributions made during the same fiscal year of the
Company and any other events occurring with respect to the Company would
not result in a violation of any covenant set forth in this Article.
(k) Transactions with Related Parties. The Company will
not engage in any material transaction with any affiliated, related or
parent company or any Subsidiary (except any wholly-owned Subsidiary of the
Company) or any shareholder, director, officer, or beneficiary of a trust
that is a shareholder of the Company unless such transaction is upon fair
market terms, is not disadvantageous in any material respect to Banks, and
has been approved by a majority of the disinterested directors of the
Company (or, if none of such directors are disinterested, by a majority of
the directors) as being in the best interests of the Company.
(l) Change in Fiscal Year. The Company will not change its
fiscal year without the prior written consent of Banks.
(m) Compliance with Law. The Company will comply with any
and all laws, ordinances and governmental rules and regulations to which it
is subject and obtain any and all licenses, permits, franchises and other
governmental authorizations necessary to the ownership of its properties or
to the conduct of its business, which violation or failure to obtain might
materially adversely affect the condition or operation, financial or
otherwise, of the Company.
(n) Notice of Subsequent Events. Forthwith upon the
president or a principal financial officer of the Company obtaining
knowledge of (i) any material adverse change in the condition or operation,
financial or otherwise, of the Company, (ii) any default by the Company
under or with respect to any instrument, contract or agreement to which the
Company is a party or by which the Company is bound, (iii) any default by
the Company under or with respect to any order, writ, injunction, decision
or decree of any court, governmental authority or arbitral body to which
the Company is a party or by which the Company is bound which materially
adversely affects the Company's condition or operation, financial or
otherwise, or (iv) any action or proceeding pending or, to the knowledge of
the president or a principal financial officer of the Company, threatened
against the Company before any court, governmental authority or arbitral
body which, if decided adversely to the Company, would result in any
material adverse change in the condition or operation, financial or
otherwise, of the Company, the Company will deliver to Banks a written
certificate signed by such officer specifying the nature thereof, the
period of existence thereof and what action the Company has taken and
proposes to take with respect thereto.
(o) Loans, Acquisitions and Investments. Neither the
Company nor any Subsidiary of the Company will make any loans, advances or
extensions of credit to, or purchase any stocks, bonds, notes, debentures
or other securities of, make any investment in or any expenditures on
behalf of, or in any manner assume liability (direct, contingent or
otherwise) for the Indebtedness of any Person or make or suffer to exist
any Acquisition of any Person, except for (i) Permitted Acquisitions, (ii)
other Permitted Investments not to exceed $25,000,000.00 in the aggregate
at any one time outstanding, (iii) loans to employees of the Company and
its Subsidiaries in the ordinary course of business, and (iv) loans made to
the selling shareholders of Direct Media/DMI, Inc. for purposes of
assisting such selling shareholders in making personal income tax payments
or paying other expenses arising in connection with the asset sale by
Direct Media/DMI, Inc. and the note of the Company payable pursuant
thereto.
SECTION 5.2. Use of Proceeds. The Company agrees that none of such
proceeds will be used in violation of any applicable law or regulation; and
Company will not engage principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or
carrying "margin stock" within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended from time to time.
ARTICLE VI
DEFAULTS
SECTION 6.1. Events of Default. If:
(a) The Company shall fail to pay any principal of or
interest on the Notes or any other amount payable by Company hereunder or
under the Notes, within five (5) days after the due date thereof;
(b) The Company shall violate or fail to perform any of
its covenants or agreements contained in Section 5.1 or Section 5.2 (other
than Sections 5.1(e), 5.1(g) and 5.1(m));
(c) The Company shall fail to perform any term, covenant
or agreement herein contained (other than those specified in clause (a) or
(b)) for 30 days after written notice of Default is given to the Company by
Agent;
(d) The Company shall have made any representation or
warranty in or pursuant to this Agreement, or in any certificate or
document delivered pursuant hereto, which shall have been materially
incorrect, false or misleading when made;
(e) The Company shall fail (and such failure shall not
have been cured or waived) to: (i) make any payment of principal of or
premium, if any, or interest on any Funded Debt when due (whether at
schedule maturity or by required prepayment, acceleration, demand or
otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Funded Debt, or (ii) perform or observe any other provision, term or
condition of, or any other default shall occur under, any agreement or
instrument relating to any Funded Debt outstanding; in either case if the
effect of such failure or default is to cause or permit such Funded Debt to
be declared to be due and payable or otherwise accelerated, or to be
required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof;
(f) The Company shall have entered against it by a court
having jurisdiction in the premises a judgment in excess of $10,000.00, and
the Company (or an insurer on behalf of the Company) shall not appeal or
satisfy such judgment within the time permitted by law for an appeal of
such judgment;
(g) The Company shall have filed against it an involuntary
case under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the
Company, or for any substantial part of its property, or for the winding-up
or liquidation of its affairs and such involuntary case or proceeding shall
remain unstayed and in effect for a period of 60 consecutive days, or if
any order for relief is entered in any such case;
(h) The Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company, or for any substantial
part of its property, or make any general assignment for the benefit of any
of the foregoing;
(i) Any of the Letter of Credit Applications shall at any
time for any reason cease to be in full force and effect or shall be
declared to be null and void by a court of competent jurisdiction, or if
the validity or enforceability of any of the Letter of Credit Applications
shall be contested or denied by the Company, or if the Company shall deny
that it has any further liability or obligation under any of the Letter of
Credit Applications or if the Company shall fail to comply with or observe
any of the terms, provisions or conditions contained in any of the Letter
of Credit Applications;
then, and in every such event (an "Event of Default") if such Event of
Default still exists, Agent may, or upon direction of Banks or participants
of Banks holding in excess of 51% of the then outstanding Commitments
shall, by notice in writing to the Company terminate the Commitments of
each of the Banks and declare each of the Notes to be and they shall
thereupon forthwith become due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly
waived; provided, however, that in the case of the occurrence of any Event
of Default described in the foregoing clause (g) or (h) the Notes shall
become due and payable forthwith without the requirement of any such
notice, and without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived.
ARTICLE VII
CHANGE IN CIRCUMSTANCES AFFECTING FIXED RATE LOANS
SECTION 7.1. Basis for Determining Interest Rate Inadequate or
Unfair. If with respect to any Interest Period:
(a) By reason of circumstances affecting the London
interbank Eurocurrency market, adequate and fair means do not exist for
ascertaining the rate of interest payable pursuant to Section 2.5(c) in
respect of such Eurocurrency Borrowing for such Interest Period; or
(b) Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered to any one or more of the Banks
in the relevant London interbank Eurocurrency market for such Interest
Period, or
(c) Agent determines that the London Interbank Offered
Rate will not adequately and fairly reflect the cost to any one or more of
the Banks of maintaining or funding the Eurocurrency Loans for such
Interest Period,
Agent shall forthwith give notice thereof to the Company, whereupon until
Agent notifies the Company that the circumstances giving rise to such
suspension no longer exist, (a) the obligations of Banks to make
Eurocurrency Loans shall be suspended, and (b) the Company shall repay in
full then outstanding principal amount of each of its Eurocurrency Loans,
together with accrued interest thereon, on the last day of then current
Interest Period applicable to such Loan. Concurrently with repaying each
such Eurocurrency Loan pursuant to this Section, the Company shall borrow a
Prime Loan or Fed Funds Loan in an equal principal amount from Banks, and
Banks shall make such a Prime Loan or Fed Funds Loan, unless the Company
notifies Agent at least one Domestic Business Day before the date of such
repayment that it elects not to borrow any Prime Loans or Fed Funds Loans
on such date.
SECTION 7.2. Illegality. If, after the date of this Agreement, the
adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any one or more
of the Banks with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency shall make
it unlawful or impossible for any one or more of the Banks to make,
maintain or fund its Eurocurrency Loans to the Company, such Bank shall
forthwith give notice thereof to the Agent and Agent shall give notice
thereof to the Company. Upon receipt of such notice, the Company shall
repay in full then outstanding principal amount of each of its Eurocurrency
Loans, together with accrued interest thereon, on either (a) the last day
of then current Interest Period applicable to such Eurocurrency Loan if
such Bank may lawfully continue to maintain and fund such Eurocurrency Loan
to such day or (b) immediately if such Bank may not lawfully continue to
fund and maintain such Eurocurrency Loan to such day. Concurrently with
repaying each Eurocurrency Loan of Bank, the Company shall borrow a Prime
Loan in an equal principal amount from Banks, and Banks shall make such a
Prime Loan.
SECTION 7.3. Increased Cost.
(a) If (i) Regulation D or (ii) after the date hereof, the
adoption of any applicable law, rule or regulation, or any change therein,
or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any one or more
of the Banks with any request or directive (whether or not having the force
of law) of any such authority, central bank or comparable agency (a
"Regulatory Change"):
(A) shall subject any such Bank to any tax, duty
or other charge with respect to its Fixed Rate Loans, its Note or
its obligation to make Fixed Rate Loans or shall change the basis
of taxation of payments to any such Bank of the principal of or
interest on its Fixed Rate Loans or any other amounts due under
this Agreement in respect of its Fixed Rate Loans or its
obligation to make Fixed Rate Loans (except for changes in the
rate of tax on the overall net income of any such Bank imposed by
the jurisdiction in which such Bank's principal executive office
is located); or
(B) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit,
capital or similar requirement against assets of, deposits with or
for the account of, or credit extended or committed to be extended
by, any such Bank or shall impose on any such Bank or on the
United States market for certificates of deposit or the interbank
market for Eurocurrency deposits any other condition affecting any
such Bank's Fixed Rate Loans, its Note or its obligation to make
Fixed Rate Loans;
and the result of any of the foregoing is to increase the cost to (or in
the case of Regulation D, to impose a cost on) any Bank of making or
maintaining any Fixed Rate Loan or to reduce the amount of any sum received
or receivable by any Bank under this Agreement or under its Note with
respect thereto, by an amount deemed by such Bank to be material, and if
such Bank is not otherwise fully compensated for such cost or reduction by
virtue of the inclusion of the reference to "Reserve Percentage" in the
calculation of the interest rate applicable to Fixed Rate Loans, then,
within 15 days after demand by such Bank, the Company shall pay for the
account of such Bank as additional interest, such additional amount or
amounts as will compensate such Bank for such increased cost or reduction.
Each Bank will promptly notify the Agent, who in turn shall promptly notify
the Company of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section. A certificate of such Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive in the absence of manifest error. Upon
reasonable request of the Company, each Bank claiming additional
compensation under this Section shall provide to the Company additional
information with respect to the determination of such additional amount or
amounts. In determining such amount or amounts, Banks may use any
reasonable averaging and attribution methods.
(b) If any Bank demands compensation under this Section,
the Company may at any time, upon at least two Eurocurrency Business Days'
prior notice to the Agent, repay in full its then outstanding Eurocurrency
Loans from such Bank, together with accrued interest thereon to the date of
prepayment and any other amounts due under Section 2.10. Concurrently with
repaying such Fixed Rate Loans, the Company may borrow a Prime Loan in an
amount equal to the aggregate principal amount of such Fixed Rate Loans,
and such Bank shall make such a Prime Loan.
SECTION 7.4. Prime Loans Substituted for Affected Fixed Rate
Loans. If notice has been given by any Bank pursuant to Section 7.2 or by
the Company pursuant to Section 7.3 requiring Fixed Rate Loans to be
repaid, then, unless and until such Bank or the Agent notifies the Company
that the circumstances giving rise to such repayment no longer apply:
(a) All Loans which would otherwise be made as
Eurocurrency Loans shall be made instead as Prime Loans, and
(b) After each of the Eurocurrency Loans to the Company
has been so repaid, all payments and prepayments of principal which would
otherwise be applied to repay such Fixed Rate Loans shall be applied to
repay its Prime Loans instead.
Agent shall notify the Company if and when the circumstances giving rise to
such repayment no longer apply.
SECTION 7.5. Indemnity.
(a) In addition to the payment of expenses pursuant to
Section 9.3 below, the Company agrees to indemnify, pay and hold Agent and
Banks and the officers, directors, employees, agents, affiliates and
participants of each of them (collectively, called the "Indemnitees")
harmless from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or
judicial proceeding commenced or threatened, whether or not such Indemnitee
shall be designated a party thereto); that may be imposed on, incurred by
or asserted against the Indemnitees in any manner related to or arising out
of this Agreement, the Notes or any other agreement executed and delivered
by the Company in connection herewith, the statements contained in any
commitment letters delivered by Banks or Agent, Banks' agreements to make
loans hereunder, or the use or intended use of the proceeds of any of the
loans hereunder (the "Indemnified Liabilities"); provided, however, that
the Company shall have no obligation to an Indemnitee hereunder with
respect to Indemnified Liabilities arising from the gross negligence or
willful misconduct of that Indemnitee as determined by a court of competent
jurisdiction. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because
it is violative of any law or public policy, the Company shall contribute
the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified
Liabilities incurred by the Indemnitees or any of them. The provisions of
the undertakings and indemnifications set out in this Section 7.5(a) shall
survive satisfaction and payment of the Loans and other obligations of the
Company hereunder and the termination of this Agreement.
(b) The above indemnities shall constitute separate and
independent obligations of the Company from its other obligations hereunder
and shall apply irrespective of any indulgence granted by the Agent or any
of the Banks.
ARTICLE VIII
THE AGENT
SECTION 8.1. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement, the Notes and the
other Transaction Documents as are delegated to the Agent by the terms
hereof or thereof, together with all such powers as are reasonably
incidental thereto.
SECTION 8.2 Agent and Affiliates. Mercantile shall have the same
rights and powers under this Agreement as any other Bank and may exercise
or refrain from exercising the same as though it were not the Agent, and
Mercantile and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Company or any of its
Subsidiaries or affiliates as if it were not the Agent hereunder.
SECTION 8.3. Action by Agent. The obligations of the Agent
hereunder are only those expressly set forth herein. Without limiting the
generality of the foregoing, the Agent shall not be required to take any
action with respect to any Default or Event of Default, except as expressly
provided in Article 6.
SECTION 8.4. Consultation with Experts. The Agent may consult with
legal counsel, independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by
it in good faith in accordance with the advice of such counsel, accountants
or experts.
SECTION 8.5. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action
taken or not taken by it in connection herewith (i) with the consent or at
the request of each of the Banks, or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into or verify (i) any statement, warranty
or representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Company; (iii) the satisfaction of any condition
specified in Article 3, except receipt of items required to be delivered to
the Agent; or (iv) the validity, effectiveness or genuineness of this
Agreement, the Notes or any other Transaction Document. The Agent shall not
incur any liability by acting in reliance upon any notice, consent,
certificate, statement, or other writing (which may be a bank wire, telex
or similar writing) believed by it to be genuine or to be signed by the
proper party or parties.
SECTION 8.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitment, indemnify the Agent (to the extent not
reimbursed by the Company) against any cost, expense (including counsel
fees and disbursements), claim, demand, action, loss or liability (except
such as result from the Agent's gross negligence or willful misconduct)
that the Agent may suffer or incur in connection with this Agreement or any
action taken or omitted by the Agent hereunder.
SECTION 8.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this
Agreement.
SECTION 8.8. Resignation of Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and the Company. Upon
any such resignation, the Company, with the consent of the Banks, shall
have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the Company, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a commercial bank organized under
the laws of the United States of America or of any State thereof and having
a combined capital and surplus of at least $200,000,000.00. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation as Agent, the
provisions of this Article 8 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
SECTION 8.9. Agent's Fee. In consideration of the services of the
Agent hereunder, the Company shall pay to the Agent, solely for its
account, a quarterly fee in an amount to be agreed upon between the Company
and the Agent, which fee shall be due and payable on the last day of each
March, June, September and December during the Term hereof.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex or similar writing) and shall be given to such party at its
address or telex number set forth on the signature pages hereof or such
other address or telex number as such party may hereafter specify for the
purpose by notice to Agent or the Company as the case may be. Each such
notice, request or other communication shall be effective (a) if given by
telex, when such telex is transmitted to the telex number specified in this
Section and the appropriate answer-back is received upon completion of
transmission, (b) if given by mail, 72 hours after such communication is
deposited in the mails with appropriate first class, certified or
registered postage prepaid, addressed as aforesaid, or (c) if given by any
other means, when delivered at the address specified in this Section;
provided that notices to the Agent and/or the Banks under Section 2.2, 2.4,
2.6, 2.7 or Article 7 shall not be effective until received.
SECTION 9.2. No Waivers. No failure or delay by the Agent or any
of the Banks in exercising any right, power or privilege hereunder or under
any Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other right, power or privilege. The rights
and remedies provided herein and in the other documents contemplated hereby
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION 9.3. Expenses; Documentary Taxes.
(a) The Company agrees to pay (i) all out-of-pocket
expenses of each of the Banks in connection with the preparation of this
Agreement, including reasonable fees and disbursements of Thompson Coburn,
counsel for Agent, within 30 days of receipt of a statement therefor, (ii)
all reasonable out-of-pocket expenses of the Agent and each of the Banks in
connection with the preparation of any waiver or consent hereunder or any
amendment hereof or any default or alleged default by the Company
hereunder, including fees and disbursements of Thompson Coburn, counsel for
Agent, within 30 days of receipt of a statement therefor, and (iii) if a
Default or an Event of Default occurs, all reasonable out-of-pocket
expenses incurred by the Agent and each of the Banks, including fees and
disbursements of counsel retained by Agent or of attorneys who are
employees of Agent and/or any of its affiliates, in connection with such
Default or Event of Default and collection and other enforcement
proceedings resulting therefrom. The Company shall indemnify the Agent and
each of the Banks against any transfer taxes, documentary taxes or similar
assessments or charges made by any governmental authority by reason of the
execution and delivery of this Agreement or the Notes.
(b) The obligations of the Company under this Section
shall be continuing and survive any termination of this Agreement.
SECTION 9.4. Participations. Each Bank may sell to one or more
other Persons a participation in all or any part of its Commitment and any
Loan held by it, in which event each such participant shall be entitled to
the rights and benefits of this Agreement to the extent of its
participation in such Loan or such Bank's Commitment, as the case may be,
as if (and the Company shall be directly obligated to such participant
under such provision as if) such participant were a "Bank" except only to
the extent provided under the Participation Agreement between such selling
Bank and such participant(s), but such participant shall not have any other
rights or benefits under this Agreement or the Notes. The Banks agree to
notify the Company of any participations sold by delivering a copy of such
Participation Agreement to the Company. In the event any Bank sells a
participation, it shall not be obligated to the participant under the
Participation Agreement to take or refrain from taking any action hereunder
or under the Notes, except that such Bank may agree in the Participation
Agreement, that it will not, without the consent of the participant, agree
to (i) the increase or extension of the term, or the extension of the time
or waiver of any requirement for the reduction or termination, of such
Bank's Commitment, (ii) the extension of any date fixed for the payment of
principal of or interest on the related Loan or Loans or of the commitment
fee, (iii) the reduction of any payment of principal thereof, or (iv) the
reduction of the rate at which either interest is payable thereon or (if
the participant is entitled to any part thereof) the commitment fee is
payable hereunder to a level below the rate at which the participant is
entitled to receive interest or such fee (as the case may be) in respect of
such participation.
SECTION 9.5. Amendments and Waivers. Any provision of this
Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Company, the Agent
and the Banks. The Agent's or any Bank's failure at any time or times
hereafter to require strict performance by the Company or failure to
enforce the Agent's or such Bank's rights under any provision of this
Agreement shall not waive, affect or diminish any right of the Agent or
such Bank, as applicable, thereafter to demand strict compliance and
performance therewith or to enforce the Agent's or such Bank's rights.
NOTICE: ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING
PROMISES TO EXTEND OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT THE
COMPANY, THE AGENT AND THE BANKS FROM MISUNDERSTANDING OR DISAPPOINTMENT,
ANY AGREEMENTS THE COMPANY, THE AGENT AND THE BANKS REACH COVERING SUCH
MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENTS BETWEEN THE COMPANY, THE AGENT AND THE BANKS,
EXCEPT AS THE COMPANY, THE AGENT AND THE BANKS MAY LATER AGREE IN WRITING
TO MODIFY SUCH AGREEMENT.
SECTION 9.6. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that the Company
may not assign or otherwise transfer any of its rights or obligation under
this Agreement.
SECTION 9.7. Severability. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected
or impaired thereby.
SECTION 9.8. Missouri Law. This Agreement and the Notes are
submitted for acceptance at Agent's principal place of business in St.
Louis, Missouri and shall not be binding upon the Agent or the Banks or
become effective until executed by the Agent and/or the Banks, as
applicable, at said place of business. When so executed, this Agreement and
the Notes shall be deemed to have been made at said place of business. This
Agreement, the Notes and any other document delivered hereunder shall be
construed in accordance with and governed by the internal laws of the State
of Missouri.
SECTION 9.9. CHOICE OF FORUM; WAIVER OF JURY TRIAL. TO INDUCE THE
AGENT AND THE BANKS TO ACCEPT THIS AGREEMENT, THE COMPANY, IRREVOCABLY,
AGREES THAT ANY ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT
ARISING OUT OF OR FROM OR RELATED TO THIS AGREEMENT AND THE NOTE MAY BE
LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF ST. LOUIS, STATE OF
MISSOURI. THE COMPANY HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF
ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID CITY AND STATE. THE
COMPANY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE
OF ANY LITIGATION BROUGHT IN ACCORDANCE WITH THIS SECTION. THE COMPANY,
AGENT AND THE BANKS IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY ACTION IN WHICH THE COMPANY, AND THE AGENT OR ANY OF THE
BANKS ARE PARTIES.
SECTION 9.10. Resurrection of Obligations. To the extent that any
Bank receives any payment on account of the Company's liabilities, and any
such payment(s) or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside, subordinated and/or required
to be repaid to a trustee, receiver or any other party under any bankruptcy
act, state or federal law, common law or equitable cause, then, to the
extent of such payment(s) received, the Company's liabilities, or part
thereof intended to be satisfied, shall be revived and continue in full
force and effect, as if such payment(s) had not been received by such Bank
and applied on account of the Company's liabilities.
SECTION 9.11. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same instrument. This Agreement shall become effective when the Agent shall
have received counterparts hereof signed by each of the parties hereto.
SECTION 9.12. Continuing Obligations. This Agreement amends the
Prior Credit Agreement and is not a novation thereof. All principal and
accrued and unpaid interest and other amounts due under such Prior Credit
Agreement or any promissory notes executed and delivered by the Company
pursuant thereto shall continue to be due and payable under this Agreement
and the Notes issued to Mercantile, NationsBank and Chase pursuant hereto
until such amounts have been paid in full.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
ACXIOM CORPORATION
By: /s/ Robert S. Bloom
--------------------------------
Robert S. Bloom, Group Executive
and Chief Financial Officer
301 Industrial Boulevard
Conway, Arkansas 72032
Commitment: MERCANTILE BANK
$32,500,000.00 NATIONAL ASSOCIATION
By: /s/ Donald A. Adam
------------------------------
Donald A. Adam, Vice President
721 Locust Street
St. Louis, Missouri 63101
Telex Number: 442300
Commitment: CHASE BANK OF TEXAS, N.A.
$32,500,000.00
By: /s/ Ana Moreira
---------------------------
Ana Moreira, Vice President
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Telex: ____________________
Commitment: NATIONSBANK, N. A.
$30,000,000.00
By: /s/ Delaney A. Burgdoerfer
----------------------------
Delaney A. Burgdoerfer, Vice
President
901 Main Street, 67th Floor
Dallas, Texas 75283
Telex: ________________________
Commitment: FIRST AMERICAN NATIONAL BANK
$15,000,000.00
By: /s/ Elizabeth H. Vaughn
---------------------------------
Elizabeth H. Vaughn, Senior Vice
President
6000 Poplar Avenue, Suite 300
Memphis, Tennessee 38119
Telex: ________________________
Commitment: FIRST COMMERCIAL BANK, N. A.
$15,000,000.00
By: /s/ Franklin Shirrell
----------------------------------
Franklin Shirrell, Vice President
Capitol and Broadway
Little Rock, Arkansas 72201
Telex: ________________________
MERCANTILE BANK NATIONAL
ASSOCIATION, AS ADMINISTRATIVE
AND DOCUMENTATION AGENT
By: /s/ Donald A. Adam
-------------------------------
Donald A. Adam, Vice President
721 Locust Street
St. Louis, Missouri 63101
Telex: 442300
CHASE BANK OF TEXAS,
N. A., AS SYNDICATION AGENT
By: /s/ Ana Moreira
----------------------------
Ana Moreira, Vice President
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75201
Telex: ____________________
EXHIBIT A
PROMISSORY NOTE
$32,500,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of Mercantile
Bank National Association, a national banking association ("Bank") on
January 31, 2003, the lesser of (a) Thirty Two Million Five Hundred
Thousand Dollars ($32,500,000.00), or (b) the aggregate unpaid principal
amount of all Loans made by Bank to Borrower in accordance with the terms
hereof, and including, but not limited to, Bank's Pro Rata Share of any
Loans made pursuant to Section 2.1B of the Second Amended and Restated
Credit Agreement (herein defined) in connection with any draws made under
any Letters of Credit issued for Borrower's account. The aggregate
principal amount which Bank may have outstanding hereunder, plus the amount
of Bank's Pro Rata Share in any Letters of Credit issued for Borrower's
account, at any one time shall not exceed Thirty Two Million Five Hundred
Thousand Dollars ($32,500,000.00) at any time, which amount may be
borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 721 Locust Street, St. Louis, Missouri 63101 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By:__________________________________
Robert S. Bloom
Group Executive and Chief
Financial Officer
<TABLE>
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Advances Principal Payments
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Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
<S> <C> <C> <C> <C> <C> <C>
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</TABLE>
EXHIBIT B
PROMISSORY NOTE
$32,500,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of Chase Bank
of Texas, N. A., a national banking association ("Bank") on January 31,
2003, the lesser of (a) Thirty Two Million Five Hundred Thousand Dollars
($32,500,000.00), or (b) the aggregate unpaid principal amount of all Loans
made by Bank to Borrower in accordance with the terms hereof, and
including, but not limited to, Bank's Pro Rata Share of any Loans made
pursuant to Section 2.1B of the Second Amended and Restated Credit
Agreement (herein defined) in connection with any draws made under any
Letters of Credit issued for Borrower's account. The aggregate principal
amount which Bank may have outstanding hereunder, plus the amount of Bank's
Pro Rata Share of the risk participation in any Letters of Credit issued
for Borrower's account, at any one time shall not exceed Thirty Two Million
Five Hundred Thousand Dollars ($32,500,000.00) at any time, which amount
may be borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 721 Locust Street, St. Louis, Missouri 63101 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By:___________________________
Robert S. Bloom
Group Executive and Chief
Financial Officer
<TABLE>
<CAPTION>
G-R-I-D
- ---------------------------------------------------------------------------------------------------------------
Advances Principal Payments
- ------------------------------- ------------------
Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
<S> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
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</TABLE>
EXHIBIT C
PROMISSORY NOTE
$30,000,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of
NationsBank, N. A., a national banking association ("Bank") on January 31,
2003, the lesser of (a) Thirty Million Dollars ($30,000,000.00), or (b) the
aggregate unpaid principal amount of all Loans made by Bank to Borrower in
accordance with the terms hereof, and including, but not limited to, Bank's
Pro Rata Share of any Loans made pursuant to Section 2.1B of the Second
Amended and Restated Credit Agreement (herein defined) in connection with
any draws made under any Letters of Credit issued for Borrower's account.
The aggregate principal amount which Bank may have outstanding hereunder,
plus the amount of Bank's Pro Rata Share of the risk participation in any
Letters of Credit issued for Borrower's account, at any one time shall not
exceed Thirty Million Dollars ($30,000,000.00) at any time, which amount
may be borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 721 Locust Street, St. Louis, Missouri 63101 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By: _____________________________
Robert S. Bloom
Group Executive and Chief
Financial Officer
<TABLE>
<CAPTION>
G-R-I-D
- ----------------------------------------------------------------------------------------------------------------
Advances Principal Payments
- ------------------------------ ------------------
Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
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- ----------------------------------------------------------------------------------------------------------------
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</TABLE>
EXHIBIT D
PROMISSORY NOTE
$15,000,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of First
American National Bank, a national bank ("Bank") on January 31, 2003, the
lesser of (a) Fifteen Million Dollars ($15,000,000.00), or (b) the
aggregate unpaid principal amount of all Loans made by Bank to Borrower in
accordance with the terms hereof, and including, but not limited to, Bank's
Pro Rata Share of any Loans made pursuant to Section 2.1B of the Second
Amended and Restated Credit Agreement (herein defined) in connection with
any draws made under any Letters of Credit issued for Borrower's account.
The aggregate principal amount which Bank may have outstanding hereunder,
plus the amount of Bank's Pro Rata Share of the risk participation in any
Letters of Credit issued for Borrower's account, at any one time shall not
exceed Fifteen Million Dollars ($15,000,000.00) at any time, which amount
may be borrowed, paid, reborrowed and repaid, in whole or in part, prior to
January 31, 2003 subject to the terms and conditions hereof and of that
certain Second Amended and Restated Credit Agreement dated as of March ___,
1998 made by and between Borrower, Mercantile Bank National Association, as
Administrative and Documentation Agent (the "Agent"), Chase Bank of Texas,
N. A., as Syndication Agent (the "Syndication Agent"), and the Banks named
therein (as amended from time to time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 721 Locust Street, St. Louis, Missouri 63101 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By: ___________________________
Robert S. Bloom
Group Executive and Chief
Financial Officer
<TABLE>
<CAPTION>
G-R-I-D
- ----------------------------------------------------------------------------------------------------------------
Advances Principal Payments
- ----------------------------- ------------------
Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
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</TABLE>
EXHIBIT E
PROMISSORY NOTE
$15,000,000.00 St. Louis, Missouri
March ___, 1998
FOR VALUE RECEIVED, ACXIOM CORPORATION, a Delaware
corporation ("Borrower"), hereby promises to pay to the order of First
Commercial Bank, N. A., a national banking association ("Bank") on January
31, 2003, the lesser of (a) Fifteen Million Dollars ($15,000,000.00), or
(b) the aggregate unpaid principal amount of all Loans made by Bank to
Borrower in accordance with the terms hereof, and including, but not
limited to, Bank's Pro Rata Share of any Loans made pursuant to Section
2.1B of the Second Amended and Restated Credit Agreement (herein defined)
in connection with any draws made under any Letters of Credit issued for
Borrower's account. The aggregate principal amount which Bank may have
outstanding hereunder, plus the amount of Bank's Pro Rata Share of the risk
participation in any Letters of Credit issued for Borrower's account, at
any one time shall not exceed Fifteen Million Dollars ($15,000,000.00) at
any time, which amount may be borrowed, paid, reborrowed and repaid, in
whole or in part, prior to January 31, 2003 subject to the terms and
conditions hereof and of that certain Second Amended and Restated Credit
Agreement dated as of March ___, 1998 made by and between Borrower,
Mercantile Bank National Association, as Administrative and Documentation
Agent (the "Agent"), Chase Bank of Texas, N. A., as Syndication Agent (the
"Syndication Agent"), and the Banks named therein (as amended from time to
time, the "Credit Agreement").
Additionally, Borrower promises to pay to the order of
Bank all accrued interest owing on the principal amount of all Loan
advances outstanding hereunder. Advances hereunder shall bear interest at
the rate per annum equal to such of the following as the Borrower, at its
option, shall select:
(a) the interest rate announced from time to time by Agent
as its "Prime Rate" on commercial loans, which rate shall fluctuate as and
when said Prime Rate shall change, or
(b) the overnight rate equal to the rate quoted by Agent
as its daily "Opening Fed Funds Rate" plus the then applicable Fed Funds
Margin, which interest rate shall fluctuate as and when said "Opening Fed
Funds Rate" shall change, or
(c) the London Interbank Offered Rate (as defined in the
Credit Agreement) plus the then applicable Eurocurrency Margin for the
applicable Interest Period, determined in each case as of the date of a
Prime Rate Loan or a Fed Funds Rate Loan made hereunder, or the
commencement of a Interest Period for Eurocurrency Loans, as the case may
be. Said interest shall be payable on the dates provided in the Credit
Agreement. After maturity, the unpaid principal hereof shall bear interest
at a rate per annum equal to three percent (3%) in excess of the interest
rate announced from time to time by Agent as its "Prime Rate" on commercial
loans, which rate shall fluctuate as and when said Prime Rate shall change.
Interest shall be computed on the basis of a 360-day year
for the actual number of days elapsed for all Loans made hereunder.
Payments of principal, interest and fees shall be made in lawful money of
the United States of America in immediately available funds at the office
of Agent situated at 721 Locust Street, St. Louis, Missouri 63101 or at
such other place as the holder of this Note may designate, and such
payments shall be applied to the payment of interest or principal (or any
combination of the foregoing) owing on this Note in such order as Bank (or
such holder) shall determine.
All advances and all principal payments made hereunder
may be endorsed by the Bank on the sheet attached to this Note; provided,
however that the obligation of Borrower to repay each advance made
hereunder shall be absolute and unconditional, notwithstanding any failure
of Bank to endorse or any mistake by Bank in connection with endorsement on
the sheet attached to this Note or to give to Borrower or receive from
Borrower any notice or confirmation of each advance.
Borrower shall be privileged to prepay in whole or in
part the principal outstanding hereunder; provided, however, that (subject
to the right of Bank to accelerate payment hereunder) any Eurocurrency Loan
may be prepaid only at the expiration of the applicable Interest Period;
and provided further, however, that on any such prepayment, the Borrower
shall also pay all interest accrued on the principal amount being prepaid
to and including the date of such prepayment.
Consistent with the terms of this Note, the Agent shall
determine each interest rate applicable to the advances hereunder, which
determination shall be conclusive in the absence of manifest error.
This Note is one of the Notes referred to in the Credit
Agreement, which Credit Agreement, among other things, contains provisions
for acceleration of the maturity hereof upon the occurrence of certain
stated events and also for prepayments on account of principal hereof and
interest hereon prior to the maturity hereof upon the terms and conditions
specified therein. Terms defined in the Credit Agreement are used herein
with the same meanings.
In the event that any payment due hereunder shall not be
paid when due, whether by reason of demand or otherwise, and this Note
shall be placed in the hands of an attorney for collection hereof, Borrower
agrees to pay in addition to all other amounts due hereon the costs and
expenses of collection, including reasonable attorneys' fees and expenses,
whether or not litigation is commenced in aid thereof. Borrower hereby
waives presentment, demand, protest, notice of protest and notice of
dishonor.
This Note shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
ACXIOM CORPORATION
By:______________________________
Robert S. Bloom
Group Executive and Chief
Financial Officer
<TABLE>
<CAPTION>
G-R-I-D
- ---------------------------------------------------------------------------------------------------------------
Advances Principal Payments
- ----------------------------- -------------------
Unpaid Notation
Principal Balance Made By
Rate
Date Amount Period Date Amount
<S> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------
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</TABLE>
EXHIBIT F
OPINION OF COUNSEL FOR ACXIOM CORPORATION
March ___, 1998
Mercantile Bank
National Association
721 Locust Street
St. Louis, Missouri 63101
Chase Bank of Texas,
N. A.
2200 Ross Avenue, 3rd Floor
Dallas, Texas 75266
NationsBank, N. A.
One Boatmen's Plaza
800 Market Street
St. Louis, Missouri 63102
First Commercial Bank, N. A.
Capitol and Broadway
Little Rock, Arkansas 72201
First American National Bank
6000 Poplar Avenue, Suite 300
Memphis, Tennessee 38119
Re: Second Amended and Restated Credit
Agreement, dated as of March ___, 1998
between Acxiom Corporation, Mercantile
Bank National Association, as
Administrative and Documentation Agent,
Chase Bank of Texas, N. A., as Syndication
Agent, and the Banks Named Therein
Dear Sirs:
I am general counsel to Acxiom Corporation, a Delaware
corporation (the "Company"). As such, I have been asked to render to you
the opinion set forth below relating to the Second Amended and Restated
Credit Agreement referred to above (the "Agreement"). This opinion is given
pursuant to Section 3.2(b) of the Agreement. Capitalized terms used herein,
not otherwise defined, have the meanings given them in the Agreement.
To enable me to render this opinion, I have reviewed
originals or copies (certified or otherwise identified to my satisfaction)
of the Certificate of Incorporation and By-Laws of the Company, the
Agreement, the Notes, records of proceedings of the Board of Directors of
the Company, and such other documents, corporate records and certificates
of public officials as I have considered appropriate. I have assumed the
authenticity of all such documents delivered to me as originals and the
conformity to the originals of all such documents delivered to me as
copies.
The opinions set forth herein are subject to the
qualification that I am a member of the bar of the State of Arkansas only
and, except as to the organization and good standing of the Company in its
jurisdiction of incorporation, I express no opinion as to the laws of any
jurisdiction other than the United States of America and the State of
Arkansas and its political subdivisions.
Based on the foregoing and upon such investigation as I
have deemed necessary, I give you my opinion as follows:
1. The Company has been duly organized and is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
2. The Company has the corporate power and authority to
enter into and perform the Agreement and to execute and deliver the Notes
to you. The execution, delivery and performance of the Agreement, including
the execution and delivery of the Notes have been duly authorized by all
requisite corporate action, and the Agreement and the Notes have been duly
executed and delivered by the Company.
3. The Agreement is a legal, valid and binding obligation
of the Company and is enforceable against the Company in accordance with
its terms, except as may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights in general.
4. The execution and delivery of the Agreement and the
Notes, and the performance by the Company of their terms, do not conflict
with or result in a violation of the Certificate of Incorporation or
By-Laws of the Company, or of any agreement, instrument, order, writ,
judgment or decree known to me to which the Company is a party or is
subject.
5. The Notes are the legal, valid and binding obligations
of the Company and are enforceable against the Company in accordance with
their respective terms, except as may be limited by bankruptcy, insolvency
or other similar laws affecting the enforcement of creditors' rights in
general.
6. No approval, authorization or other action by, or
filing with, any governmental authority, is required in connection with the
execution and delivery by the Company of the Agreement and the Notes.
This opinion is limited to pertinent laws in existence as
of the date hereof, and I expressly disclaim any undertaking to advise you
of any changes of law or fact that may thereafter come to my attention.
My opinion is limited to the matters stated herein and no
opinion is to be implied or may be inferred beyond those matters expressly
stated. The opinions expressed herein represent my judgment as to certain
legal matters, but they are not warranties or guarantees and should not be
construed as such.
This opinion is furnished by me solely for your benefit,
and it may not be relied upon, quoted from or delivered to any person other
than counsel to you and your agents or employees and participants, except
(i) in connection with the enforcement of obligations of the Company under
the Notes and the Agreement, (ii) in response to a valid subpoena or other
legal process, (iii) as otherwise required by applicable law or
regulations, or (iv) in connection with the sale or transfer of the Notes
to a subsequent purchaser or transferee, without my express prior written
consent.
Sincerely,
______________________________________
Catherine L. Hughes, General Counsel
EXHIBIT G
COMPLIANCE CERTIFICATE
This Certificate is issued pursuant to Section
5.1(a)(iii) of that certain Second Amended and Restated Credit Agreement
dated as of March ___, 1998 between Acxiom Corporation, Mercantile Bank
National Association, as Administrative and Documentation Agent, Chase Bank
of Texas, N. A., as Syndication Agent, and the banks named therein (as from
time to time amended, the "Credit Agreement"). Capitalized terms not
otherwise defined herein shall have the meanings ascribed thereto in the
Credit Agreement.
Pursuant to Section 5.1(a)(iii) of the Credit Agreement,
the undersigned hereby certifies, represents and warrants to Bank as
follows:
(i) As of the date hereof, no Default or Event
of Default has occurred under the Credit Agreement and is
continuing; and
(ii) As of ____________________, the
calculations contained on Schedule 1 hereto are true, accurate and
complete.
Dated this ____ day of ___________________, 19___.
ACXIOM CORPORATION
By:___________________________
Title: _______________________
ACXIOM CORPORATION
COMPLIANCE CERTIFICATE
Schedule 1
As of : ___________________, 19___
<TABLE>
5.1(h) (i) Minimum Tangible Net Worth:
Company's Total Tangible Net Worth:
<S> <C>
Stockholders Equity $____________
Less - Write-up from assets subsequent
to September 30, 1997 $____________
- Goodwill $____________
- Computer Software $____________
- Patent and Trademarks $____________
- Copyrights $____________
- Leasehold Improvements (except concerning 50 year
land lease with City of Conway, Arkansas) $____________
- Unamortized Debt Discount $____________
- Deferred Bond Costs $____________
- Organizational Costs $____________
- Other Deferred Charges (except relating to
data processing contracts) $____________
- Investments in Unconsolidated Subsidiaries $____________
Total Tangible Net Worth: $____________
Required: $95,000,000.00
Plus 40% of positive after-tax net income less
extraordinary gains since March 31, 1998 $____________
Total Required Tangible Net Worth $____________
5.1(h) (ii) Minimum Ratio of Operating Cash Flow to Debt Service
of 2.50:1 up to and including March 31, 1998, 2.75:1 from
April 1, 1998 to March 31, 1999, 3.00:1 from April 1,
1999 to March 31, 2000, and 3.25:1 thereafter:
After-Tax Net Income $____________
Plus Interest Expense $____________
Plus Depreciation and Amortization $____________
Plus Operating Lease Rentals $____________
Total $____________
Interest Expense $____________
Plus Operating Lease Rentals $____________
Plus Current Maturities of Long-Term Debt and Capital Leases $____________
Plus Actual Off Balance Sheet Liabilities Paid $____________
Total $____________
Ratio (X)
(Y)
5.1(h)(iii) Funded Debt not to exceed $30,000,000.00
Total Funded Debt $____________
Less: Loans outstanding under the Credit Agreement $____________
Less: Other Funded Debt and Capitalized Leases
existing at December 31, 1997 $____________
Less: Capitalized Leases assumed as a
condition to contracts with customers $____________
Total $____________
</TABLE>
ACXIOM CORPORATION
By: ___________________________
Title:_________________________
Date: _________________________
EXHIBIT H
FORM OF BORROWING REQUEST
Mercantile Bank
National Association
721 Locust Street
St. Louis, Missouri 63101
Attention: Donald Adam
Dear Sirs:
The undersigned, Acxiom Corporation (the "Company"),
refers to the Second Amended and Restated Credit Agreement, dated as of
March ___, 1998, as amended (the "Credit Agreement"), among the Company,
Mercantile Bank National Association, as Administrative and Documentation
Agent, Chase Bank of Texas, N. A., as Syndication Agent, and the banks
named therein. Capitalized terms used herein and not defined shall have the
meanings assigned to such terms in the Credit Agreement. The Company hereby
gives you notice pursuant to Section 2.2 of the Credit Agreement that it
requests a Borrowing under the Credit Agreement, and in that connection
sets forth below the terms on which such Borrowing is requested to be made:
<TABLE>
<S> <C> <C>
(A) Date of Borrowing ____________
(B) Aggregate Principal Amount of Borrowing ____________
(C) Interest rate basis (Prime Borrowing, Federal
Funds Borrowing or Eurocurrency Borrowing) ____________
(E) Interest Period (Eurocurrency Borrowings only - 1, 2, 3
or 6 months and not beyond January 31, 2003) ____________
</TABLE>
Upon a Borrowing effected as a result of this request,
the Company shall be deemed to affirm as of the date of such Borrowing the
representations and warranties made in the Credit Agreement.
Very truly yours,
ACXIOM CORPORATION
By: _______________________
Title:______________________
[Responsible Officer]
EXHIBIT I
STANDBY LETTER OF CREDIT APPLICATION
AND REIMBURSEMENT AGREEMENT
EXHIBIT J
LETTER OF CREDIT REQUEST
[Company's Letterhead]
[Date]
Mercantile Bank National Association
721 Locust Street
St. Louis, Missouri 63101
Attention: Donald Adam
Re: Second Amended and Restated Credit Agreement Dated
March ___, 1998 (as from time to time amended,
modified, extended or renewed, the "Agreement")
Gentlemen:
Pursuant to Section 2.1B of the Agreement, the
undersigned hereby requests that you issue an irrevocable standby letter of
credit in the amount of $_____________ for the account of the undersigned
and for the benefit of ___________________________ upon the terms and
conditions set forth in the attached Application and Agreement for
Irrevocable Standby Letter of Credit.
The undersigned hereby represents and warrants to you
that as of the date hereof, all of the representations and warranties of
the undersigned contained in the Agreement are true and correct in all
material respects as if made on and as of the date hereof and no default or
Event of Default (as defined in the Agreement) has occurred and is
continuing and that no such default or Event of Default will result from
the issuance of the Letter of Credit requested hereby.
Very truly yours,
ACXIOM CORPORATION
By: ____________________________
Title:___________________________
[Responsible Officer]
EXHIBIT K
LETTER OF CREDIT PARTICIPATION CERTIFICATE
This Letter of Credit Participation Certificate is issued
pursuant to Section 2.1B(e) of that certain Second Amended and Restated
Credit Agreement dated March ___, 1998, by and among Acxiom Corporation,
the banks listed on the signature pages thereof and Mercantile Bank
National Association, as administrative and documentation agent for the
Banks ("Agent"), as the same may from time to time be amended, modified,
extended or renewed (the "Credit Agreement"). All capitalized terms used
and not otherwise defined herein shall have the respective meanings
ascribed to them in the Credit Agreement.
Subject to the terms, provisions and conditions contained
in the Credit Agreement, Agent hereby issues to a Percent ( %) undivided
participation interest in all Letters of Credit issued by Agent from time
to time under the Credit Agreement (including, without limitation, an
undivided participation interest in the reimbursement risk relating to such
Letters of Credit and in all payments and Loans made by Agent in connection
with such Letters of Credit).
This Certificate may be signed in any number of
counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were on the same instrument.
Executed this ______ day of , 19 .
------------ -----
MERCANTILE BANK
NATIONAL ASSOCIATION, as Agent
By:____________________________
Title: ________________________
The foregoing Letter of Credit Participation Certificate is
hereby accepted this ______ day of _____________, 19__ .
___________________________________
By: ________________________________
Title:______________________________
SCHEDULE 4.1(e)
This Schedule lists all actions, suits or proceedings
pending against or to the knowledge of the Company, threatened against the
Company in which there is a reasonable likelihood of recovery of an amount
in excess of $500,000.00, or any form of equitable relief.
None.
SCHEDULE 4.1(i)
Liens on Assets
1. First Commercial note payable - collateralized by mortgage on ASB-1
property.
2. Various capital leases - secured by equipment.
3. Convertible note payable - collateralized by letter of credit.
SCHEDULE 4.1(j)
List of All Subsidiaries of the Company
U. S. SUBSIDIARIES
<TABLE>
<CAPTION>
Name Incorporated In Doing Business As
- ---- --------------- -----------------
<S> <C> <C>
Acxiom Asia, Ltd. Arkansas Acxiom Asia, Ltd.
Acxiom CDC, Inc. Arkansas Acxiom CDC, Inc.
Acxiom Children's Center, Inc. Arkansas Acxiom Children's Center, Inc.
Acxiom/Direct Media, Inc. Arkansas Acxiom/Direct Media
Acxiom Great Lakes Data Center, Inc. Arkansas Acxiom Great Lakes Data Center, Inc.
Acxiom Leasing Corporation Arkansas Acxiom Leasing Corporation
Acxiom RM-Tools, Inc. Arkansas Acxiom RM-Tools, Inc.
Acxiom RTC, Inc. Delaware Acxiom RTC, Inc.
Acxiom SDC, Inc. Arkansas Buckley Dement, An Acxiom Co.
Acxiom Transportation Services, Inc. Arkansas ATS; Conway Aviation, Inc.
BSA, Inc.*** New Jersey BSA
Catalog Marketing Services, Inc. Florida Shop the World by Mail
DQ Investment Corporation California AccuDat
DataQuick Information Systems, Inc. California DataQuick Information Systems, Inc.
Pro CD, Inc. Delaware Pro CD
Modern Mailers, Inc. Delaware*** Acxiom Mailing Services
U. K. SUBSIDIARIES
Name Incorporated In Doing Business As
Acxiom U.K., Ltd. United Kingdom Acxiom U.K., Ltd.
Generator Datamarketing Limited United Kingdom Generator Datamarketing Limited
Marketlead Services, Ltd. United Kingdom N/A
(Agency company of Acxiom U.K., Ltd.)
Southwark Computer Services, Ltd. United Kingdom N/A
(Agency company of Acxiom U.K., Ltd.)
Direct Media, Ltd. United Kingdom Direct Media
</TABLE>
EXHIBIT (b)(2)
DEMAND PROMISSORY NOTE
$75,000,000 September 18, 1998
FOR VALUE RECEIVED, the undersigned promises to pay to the order
of ACXIOM/MAY & SPEH, INC., a Delaware corporation, in the City of Conway,
Arkansas, or at such other place as the holder hereof may from time to time
designate in writing, the principal sum of Seventy-Five Million Dollars
($75,000,000) with interest on unpaid principal from the date hereof until
maturity at an annual rate of 6.75%, said interest to be payable annually
in arrears on each September 18, beginning September 18, 1999, and said
principal to be paid in full on September 18, 2008.
If total or partial default be made in the payment of any sums
owing hereunder, as the same mature, and the same shall not be cured within
thirty (30) days, the entire principal sum and accrued interest shall at
once become due and payable without notice at the option of the holder of
this note. Failure to exercise this option shall not constitute a waiver
of the right to exercise the same in the event of any subsequent default or
if such default be a continuing one.
The makers, endorsers, sureties, guarantors, and all other
persons now or hereafter liable hereon waive presentment, demand for
payment, notice of protest, protest, and notice of dishonor, and consent
that the owner or holders hereunder shall have the right, without notice,
to deal in any way at any time, with any party hereto, or to grant any such
party any extensions of time for payment of any said indebtedness, or any
other indulgences or forbearances whatsoever, without in any way affecting
the personal liability of any party hereunder.
The maker may prepay all or any part of the principal indebted-
ness owing hereunder at any time without penalty or premium.
If this obligation, after default, is placed in the hands of an
attorney for collection, the maker will be obligated to pay the holder
hereof an additional sum, as attorney's fees, not to exceed 10% of the
unpaid principal, plus all accrued interest.
ACXIOM CORPORATION
By: /s/ Robert S. Bloom
---------------------------------
Name: Robert S. Bloom
Title: Chief Financial Officer
