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(d) Participation Agreement

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Sectors: Computer Software and Services, Services
Governing Law: Utah, View Utah State Laws
Effective Date: October 24, 2000
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PARTICIPATION AGREEMENT Dated as of October 24, 2000 among ACXIOM CORPORATION, as the Construction Agent and as the Lessee, THE VARIOUS PARTIES HERETO FROM TIME TO TIME, as the Guarantors, FIRST SECURITY BANK, NATIONAL ASSOCIATION, not individually, except as expressly stated herein, but solely as the Owner Trustee under the AC Trust 2000-1, FIRST SECURITY TRUST COMPANY OF NEVADA, not individually, except as expressly stated herein, but solely as Trustee under the AC Trust 2000-2 THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES HERETO FROM TIME TO TIME, as the Holders, THE VARIOUS BANKS AND OTHER LENDING INSTITUTIONS WHICH ARE PARTIES HERETO FROM TIME TO TIME, as the Lenders, BANK OF AMERICA, N.A., as the Agent for the Lenders and respecting the Security Documents, as the Agent for the Lenders and the Holders, to the extent of their interests ABN-AMRO BANK, N.V., as Syndication Agent and SUNTRUST BANK, as Documentation Agent------------------------------------------------------------------------------------------------------------------ TABLE OF CONTENTS PageSECTION 1. THE LOANS.............................................................................................1SECTION 2. HOLDER ADVANCES.......................................................................................2SECTION 3. SUMMARY OF TRANSACTIONS...............................................................................2 3.1. Operative Agreements............................................................................2 3.2. Property Purchase...............................................................................2 3.3. Construction of Improvements; Commencement of Basic Rent........................................3 3.4. Ratable Interests of the Holders and the Lenders................................................4 3.5 Re-Financing....................................................................................4SECTION 4. THE CLOSINGS..........................................................................................5 4.1. Initial Closing Date............................................................................5 4.2. Initial Closing Date; Property Closing Dates; Acquisition Advances; Construction Advances.......5SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING REQUIREMENTS ON COMPLETION DATE; THELESSEE'S DELIVERY OF NOTICES; RESTRICTIONS ON LIENS...............................................................5 5.1. General.........................................................................................5 5.2. Procedures for Funding..........................................................................7 5.3. Conditions Precedent for the Lessor, the Agent, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a Property.............9 5.4. Conditions Precedent for the Lessor, the Agent, the Lenders and the Holders Relating to the Advance of Funds after the Acquisition Advance.............................................15 5.5. Additional Reporting and Delivery Requirements on Completion Date and on Construction Period Termination Date........................................................................17 5.6. The Construction Agent Delivery of Construction Budget Modifications...........................18 5.7. Restrictions on Liens..........................................................................18 5.8. Joinder Agreement Requirements.................................................................19 5.9. Special Provision Regarding the Little Rock Property...........................................19 5.10. Payments.......................................................................................19 5.11. Unilateral Right to Increase the Holder Commitments and the Lender Commitments.................20SECTION 6. REPRESENTATIONS AND WARRANTIES.......................................................................20 6.1. Representations and Warranties of the Borrower.................................................20 6.1.A. Representations and Warranties of the Series 2000-B Bond Purchaser.............................23 6.2. Representations and Warranties of the Credit Parties...........................................25SECTION 6B. GUARANTY............................................................................................31 6B.1. Guaranty of Payment and Performance............................................................31 6B.2. Obligations Unconditional......................................................................31 6B.3. Modifications..................................................................................32 6B.4. Waiver of Rights...............................................................................33 6B.5. Reinstatement..................................................................................33 6B.6. Remedies.......................................................................................34 6B.7. Limitation of Guaranty.........................................................................34 6B.8. Payment of Amounts to the Agent................................................................34 6B.9. Release of Guarantors..........................................................................34SECTION 7. PAYMENT OF CERTAIN EXPENSES...........................................................................35 7.1. Transaction Expenses...........................................................................35 7.2. Brokers' Fees..................................................................................36 7.3. Certain Fees and Expenses......................................................................36 7.4. Unused Fee.....................................................................................37 7.5. Administrative Fee.............................................................................37 7.6. Upfront Fee....................................................................................38SECTION 8. OTHER COVENANTS AND AGREEMENTS.......................................................................38 8.1. Cooperation with the Construction Agent or the Lessee..........................................38 8.2. Covenants of the Owner Trustee and the Holders.................................................38 8.2.A. Covenants of the Series 2000-B Bond Purchaser..................................................40 8.3. Credit Party Covenants, Consent and Acknowledgment.............................................41 8.4. Sharing of Certain Payments....................................................................45 8.5. Grant of Easements, etc........................................................................45 8.6. Appointment by the Agent, the Lenders, the Holders and the Owner Trustee.......................46 8.7. Collection and Allocation of Payments and Other Amounts........................................47 8.8. Release of Properties, etc.....................................................................51SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.................................................................51 9.1. The Construction Agent's and the Lessee's Credit Agreement Rights..............................51 9.2. The Construction Agent's and the Lessee's Trust Agreement Rights...............................52SECTION 10. TRANSFER OF INTEREST................................................................................52 10.1. Restrictions on Transfer.......................................................................52 10.2. Effect of Transfer.............................................................................53SECTION 11. INDEMNIFICATION.....................................................................................54 11.1. General Indemnity..............................................................................54 11.2. General Tax Indemnity..........................................................................56 11.3. Increased Costs, Illegality, etc...............................................................62 11.4. Funding/Contribution Indemnity.................................................................64 11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT LIABILITY, ETC.........................65 11.6. Additional Provisions Regarding Environmental Indemnification..................................65 11.7. Additional Provisions Regarding Indemnification................................................66 11.8. Indemnifications Provided by the Owner Trustee in Favor of the Other Indemnified Persons.......66SECTION 12. MISCELLANEOUS.......................................................................................67 12.1. Survival of Agreements.........................................................................67 12.2. Notices........................................................................................67 12.3. Counterparts...................................................................................69 12.4. Terminations, Amendments, Waivers, Etc.; Unanimous Vote Matters................................69 12.5. Headings, etc..................................................................................71 12.6. Parties in Interest............................................................................71 12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; VENUE.........................71 12.8. Severability...................................................................................72 12.9. Liability Limited..............................................................................72 12.10. Rights of the Credit Parties...................................................................74 12.11. Further Assurances.............................................................................74 12.12. Calculations under Operative Agreements........................................................74 12.13. Confidentiality................................................................................74 12.14. Financial Reporting/Tax Characterization.......................................................75 12.15. Set-off........................................................................................75Legal Proceedings.................................................................................................1EXHIBITSA - Form of Requisition - Sections 4.2, 5.2, 5.3 and 5.4B - Form of Outside Counsel Opinion for the Lessee - Section 5.3(j)C - Form of Officer's Certificate - Section 5.3(z)D- Form of Secretary's Certificate - Section 5.3(aa)E - Form of Officer's Certificate - Section 5.3(cc)F - Form of Secretary's Certificate - Section 5.3(dd)G - Form of Outside Counsel Opinion for the Owner Trustee - Section 5.3(ee)H - Form of Outside Counsel Opinion for the Lessee - Section 5.3(ff)I - Form of Officer's Certificate - Section 5.5J - Form of Joinder Agreement - Section 5.8(a)K - Description of Material Litigation - Section 6.2(d)L - State of Incorporation/Formation and Principal Place of Business of Each Guarantor - Section 6.2(i)M - Form of Officer's Compliance Certificate - Section 8.3(l)Appendix A - Rules of Usage and Definitions PARTICIPATION AGREEMENT THIS PARTICIPATION AGREEMENT dated as of October 24, 2000 (as amended, modified, extended, supplemented,restated and/or replaced from time to time, this "Agreement") is by and among ACXIOM CORPORATION, a Delawarecorporation (the "Lessee" or the "Construction Agent"); the various parties hereto from time to time asguarantors (subject to the definition of Guarantors in Appendix A hereto, individually, a "Guarantor" andcollectively, the "Guarantors"); FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, notindividually (in its individual capacity, the "Trust Company"), except as expressly stated herein, but solely asthe Owner Trustee under the AC Trust 2000-1 (the "Owner Trustee", the "Borrower" or the "Lessor"); FIRST SECURITYTRUST COMPANY OF NEVADA, not individually (in its individual capacity "FSN"), except as expressly stated herein,but solely as Trustee under AC Trust 2000-2 (the "Trustee" or the "Series 2000-B Bond Purchaser"); the variousbanks and other lending institutions which are parties hereto from time to time as holders of certificates issuedwith respect to the AC Trust 2000-1 (subject to the definition of Holders in Appendix A hereto, individually, a"Holder" and collectively, the "Holders"); the various banks and other lending institutions which are partieshereto from time to time as lenders (subject to the definition of Lenders in Appendix A hereto, individually, a"Lender" and collectively, the "Lenders"); and BANK OF AMERICA, N.A., a national banking association, as the agentfor the Lenders and respecting the Security Documents, as the agent for the Lenders and the Holders, to theextent of their interests (in such capacity, the "Agent"). Capitalized terms used but not otherwise defined inthis Agreement shall have the meanings set forth in Appendix A hereto. In consideration of the mutual agreements herein contained and other good and valuable consideration,the receipt of which is hereby acknowledged, the parties hereto hereby agree as follows:SECTION 1. THE LOANS. Subject to the terms and conditions of this Agreement and the other Operative Agreements and in relianceon the representations and warranties of each of the parties hereto contained herein or made pursuant hereto, theLenders have severally agreed to make Loans to the Lessor from time to time in an aggregate principal amount ofup to the aggregate amount of the Commitments of the Lenders in order for the Lessor to (i) make loans to theSeries 2000-B Bond Purchaser in order for the Series 2000-B Bond Purchaser to acquire the Series 2000-B Bond fromthe City of Little Rock, the proceeds of which shall be used by the City of Little Rock to acquire the LittleRock Property and certain Improvements thereon, to permit the Construction Agent, on behalf of the City of LittleRock and the Lessor, to develop and construct certain Improvements on the Little Rock Property in accordance withthe Construction Agency Agreement or the Bond Documents and the terms and provisions hereof and for the otherpurposes described herein, in all events for lease to the Lessor under the Head Lease and sublease to the Lesseeunder the Lease, and (ii) acquire the Properties other than the Little Rock Property and certain Improvementsthereon, to develop and construct certain Improvements on such other Properties in accordance with theConstruction Agency Agreement and the terms and provisions hereof and for the other purposes described herein.In consideration of the receipt of proceeds of the Loans, the Lessor will issue the Notes. The Loans shall bemade and the Notes shall be issued pursuant to the Credit Agreement. Pursuant to Section 5 of this Agreement andSection 2 of the Credit Agreement, the Loans will be made to the Lessor from time to time at the request of theConstruction Agent in consideration for the Construction Agent agreeing for the benefit of the Lessor and, withrespect to the Little Rock Property, the City of Little Rock, pursuant to the Construction Agency Agreement, toacquire the Properties, to acquire the Equipment, to construct certain Improvements and to cause the Lessee tolease the Properties from the Lessor, each in accordance with the Construction Agency Agreement and the otherOperative Agreements. The Loans and the obligations of the Lessor under the Credit Agreement shall be secured bythe Collateral.SECTION 2. HOLDER ADVANCES. Subject to the terms and conditions of this Agreement and the other Operative Agreements and in relianceon the representations and warranties of each of the parties hereto contained herein or made pursuant hereto, oneach date Advances are requested to be made in accordance with Section 5 hereof, each Holder shall make a HolderAdvance on a pro rata basis to the Lessor with respect to the AC Trust 2000-1 based on its Holder Commitment inan amount in immediately available funds such that the aggregate of all Holder Advances on such date shall befour and 11/100 percent (4.11%) of the amount of the Requested Funds on such date; provided, that no Holder shallbe obligated for any Holder Advance in excess of its pro rata share of the Available Holder Commitment. Theaggregate amount of Holder Advances shall be up to the aggregate amount of the Holder Commitments. No prepaymentor any other payment with respect to any Advance shall be permitted such that the Holder Advance with respect tosuch Advance is less than four and 11/100 percent (4.11%) of the outstanding amount of such Advance, except inconnection with termination or expiration of the Term or in connection with the exercise of remedies relating tothe occurrence of a Lease Event of Default. The representations, warranties, covenants and agreements of theHolders herein and in the other Operative Agreements are several, and not joint or joint and several.SECTION 3. SUMMARY OF TRANSACTIONS. 3.1. Operative Agreements. On the date hereof, each of the respective parties hereto and thereto shall execute and deliver thisAgreement, the Head Lease, the Lease, each applicable Ground Lease, the Construction Agency Agreement, the CreditAgreement, the Notes, the Trust Agreement, the Certificates, the Security Agreement, each other OperativeAgreement, Bond Loan Document or Bond Document to which it is a party and such other documents, instruments,certificates and opinions of counsel as agreed to by the parties hereto. 3.2. Property Purchase. (a) Little Rock Property. On the Little Rock Closing Date and subject to the terms and conditionsof this Agreement (i) each Holder will make a Holder Advance in accordance with Sections 2 and 5 of thisAgreement and the terms and provisions of the Trust Agreement, (ii) each Lender will make a Loan in accordancewith Sections 1 and 5 of this Agreement and the terms and provisions of the Credit Agreement, (iii) the Lessorwill make a Bond Loan to the Series 2000-B Bond Purchaser in an amount equal to the Holder Advances and Loansmade by the Holders and Lenders respectively (less the amount of Transaction Expenses, if any, to be paiddirectly from such Advances) and allocable to the Little Rock Property, (iv) the Series 2000-B Bond Purchasershall use the proceeds of the Bond Loan to acquire Series 2000-B Bond having a face amount equal to the amount ofsuch Bond Loan, (v) the Series 2000-A Bond Purchaser shall acquire the Series 2000-A Bond having a face amountequal to $1,446,192, (vi) the City of Little Rock will purchase and acquire good and marketable title to theLittle Rock Land pursuant to a Deed and/or Bill of Sale, (vii) the City of Little Rock shall grant to the BondTrustee, on behalf of the Series 2000-A Bond Purchaser and the Series 2000-B Bond Purchaser, a Lien on the LittleRock Land and additional Little Rock Property by execution of the Bond Indenture, (viii) the Series 2000-A BondPurchaser and the Series 2000-B Bond Purchaser shall assign to the Lessor, its respective interest in theSeries 2000-A Bond and the Series 2000-B Bond, respectively, (ix) the Lessor shall in turn assign to the Agent, onbehalf of the Lenders and the Holders, its interests in the Bonds pursuant to the required Security Documents,(x) the City of Little Rock shall lease the Little Rock Property to the Lessor, as lessee, pursuant to the HeadLease, (xi) the Agent, the Lessee and the Lessor shall execute and deliver a Lease Supplement relating to theLittle Rock Property, and (xii) the Basic Term shall commence with respect to the Little Rock Property. On thenext Business Day following the Little Rock Closing Date, the Agent, as assignee of the Series 2000-A BondPurchaser, shall authorize the Bond Trustee to cancel and retire the Series 2000-A Bond. (b) Other Properties. On each Property Closing Date (other than with respect to the Little RockProperty) and subject to the terms and conditions of this Agreement (a) each Holder will make a Holder Advance inaccordance with Sections 2 and 5 of this Agreement and the terms and provisions of the Trust Agreement, (b) eachLender will make a Loan in accordance with Sections 1 and 5 of this Agreement and the terms and provisions of theCredit Agreement, (c) the Lessor will purchase and acquire good and marketable title to, or ground lease pursuantto a Ground Lease, the applicable Property, each to be within an Approved State, identified by the ConstructionAgent, in each case pursuant to a Deed, Bill of Sale or Ground Lease, as the case may be, and grant the Agent alien on such Property by execution of the required Security Documents, (d) the Agent, the Lessee and the Lessorshall execute and deliver a Lease Supplement relating to such Property and (e) the Basic Term shall commence withrespect to such Property. 3.3. Construction of Improvements; Commencement of Basic Rent. Construction Advances will be made with respect to particular Improvements to be constructed and withrespect to ongoing Work regarding the Equipment and construction of particular Improvements, in each case,pursuant to the terms and conditions of this Agreement and the Construction Agency Agreement and, with respect tothe Little Rock Property, the Bond Documents. The Construction Agent will act as a construction agent on behalfof the Lessor and, with respect to the Little Rock Property, the City of Little Rock, respecting the Workregarding the Equipment, the construction of such Improvements and the expenditures of the Construction Advancesand, with respect to the Little Rock Property, the Bonds, related to the foregoing. The Construction Agent shallpromptly notify the Lessor upon Completion of the Improvements and the Lessee shall commence to pay Basic Rent asof the Rent Commencement Date. 3.4. Ratable Interests of the Holders and the Lenders. Each Holder and Lender agrees at all times (a) to hold the same ratable portion of the aggregate LenderCommitment for Tranche A Loans, the aggregate Lender Commitment for Tranche B Loans and the aggregate HolderCommitment and (b) to make advances consistent with such committed amounts referenced in Section 3.4(a) inaccordance with the requirements of the Operative Agreements. 3.5 Re-Financing. (a) Concurrently with Lessee's election or deemed election of the Renewal Option in accordance withSection 2.2 of the Lease, the Lessee shall have the right to request in writing (the "Refinancing Request") thatthe Owner Trustee redeem the existing Certificates and Notes on or prior to the Basic Term Expiration Date.Subsequent to the Refinancing Request, the Lessee shall provide the Holders and Lenders with at least five (5)Business Days prior written notice of the date of any such refinancing (the "Refinancing Date"). Upon receipt ofthe Refinancing Request, the Owner Trustee shall reasonably cooperate with the Lessee to issue and sell in theprivate debt market at then market terms and conditions, one or more series of non-recourse replacementCertificates and Notes, maturing at the expiration of the Renewal Term. The proceeds of such issuance and saleshall be applied to pay in full the then outstanding Holder Advances and the then outstanding principal balanceof the Loans, as well as any accrued and unpaid Holder Yield and Interest thereon, respectively, and any otheramounts then due and owing to the Holders and the Lenders. The Lessee shall be liable for all reasonable costsand expenses (including, without limitation, reasonable attorney's fees and expenses) incurred by the partieshereto in connection with such refinancing (whether or not consummated). As a condition to any suchrefinancing, the new purchasers of such new Certificates and Notes (and any existing Holders or Lenders thatelect to participate in such new issuance and sale) may require such modifications and amendments to theOperative Agreements as they determine to be appropriate or necessary in connection with such refinancing,including, without limitation, increasing the spread over the Eurodollar Rate and ABR applicable to outstandingHolder Advances and Loans and/or requiring the Owner Trustee to amortize all or any part of the outstandingHolder Advances and Loans over such Renewal Term and/or requiring the Lessee to provide additional collateral forall or any of the Lessee's obligations under the Operative Agreements during the Renewal Term. Any or all ofthe Holders and the Lenders shall be entitled to participate in a refinancing under this Section 3.5(a).Notwithstanding any language to the contrary set forth above, in the event a Holder or a Lender elects toparticipate in the above refinancing, such Holder's Certificates and Lender's Notes and corresponding HolderAdvances and Loans, will not be redeemed and reissued, but instead shall be deemed to have the same rights andhave been issued under the same terms (including tenor) as the Certificates and Notes issued in connection withsuch refinancing. (b) If requested in writing by the Lessee concurrently with Lessee's Refinancing Request the Agentagrees, upon the Lessee's entering into an engagement letter and term sheet with the Agent within 30 days of suchnotice and the receipt by the Agent of engagement, structuring and syndication fees, in each case, satisfactoryto the Agent, to use commercially reasonable efforts, in accordance with the terms of such engagement letter andterm sheet, to refinance on a syndicated basis the outstanding Holder Advances and outstanding principal balanceof the Loans at then market conditions as provided in Section 3.5(a) above.SECTION 4. THE CLOSINGS. 4.1. Initial Closing Date. All documents and instruments required to be delivered on the Initial Closing Date shall be delivered atthe offices of Moore & Van Allen, PLLC, Charlotte, North Carolina, or at such other location as may be determinedby the Lessor, the Agent and the Lessee. 4.2. Initial Closing Date; Property Closing Dates; Acquisition Advances; Construction Advances. The Construction Agent shall deliver to the Agent and, with respect to the Little Rock Property, theBond Trustee, a requisition (a "Requisition"), in the form attached hereto as Exhibit A or in such other form asis satisfactory to the Agent (and to the extent required by the Bond Documents with respect to the Little RockProperty, the Bond Trustee), in its reasonable discretion, in connection with (a) the Transaction Expenses andother fees, expenses and disbursements payable, pursuant to Section 7.1, by the Lessor and (b) each AcquisitionAdvance pursuant to Section 5.3 and (c) each Construction Advance pursuant to Section 5.4. No Requisition shallbe required for the Lenders and the Holders to make Advances pursuant to or in connection with Sections 7.1(a),7.1(b), 7.3, 7.4, 7.5 and 11.8.SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT;REPORTING REQUIREMENTS ON COMPLETION DATE;THE LESSEE'S DELIVERY OF NOTICES; RESTRICTIONS ON LIENS. 5.1. General. (a) To the extent funds have been advanced to the Lessor as Loans by the Lenders and to the Lessor as Holder Advances by the Holders, the Lessor will use such funds from time to time in accordance with the terms and conditions of this Agreement, the other Operative Agreements and, with respect to Advances made with respect to the Little Rock Property, the Bond Documents (i) at the direction of the Con
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