SECOND amendment to certain operative agreements
SECOND amendment to certain operative agreements dated as of September 14, 2001 (this "Agreement") is by
and among ACXIOM CORPORATION, a Delaware corporation (the "Lessee" or the "Construction Agent"); the various
parties hereto from time to time as guarantors (subject to the definition of Guarantors in Appendix A to the
Participation Agreement, individually, a "Guarantor" and collectively, the "Guarantors"); XXXXX FARGO BANK
NORTHWEST, NATIONAL ASSOCIATION (formerly First Security Bank, National Association), a national banking
association, not individually, but solely as the Owner Trustee under the AC Trust 2000-1 (the "Owner Trustee",
the "Borrower" or the "Lessor"); XXXXX FARGO BANK NEVADA, NATIONAL ASSOCIATION (formerly First Security Trust
Company of Nevada), not individually, but solely as Trustee under AC Trust 2000-2 (the "Trustee" or the "Series
0000-X Xxxx Xxxxxxxxx"); the various banks and other lending institutions which are parties to the Participation
Agreement from time to time as holders of certificates issued with respect to the AC Trust 2000-1 (subject to the
definition of Holders in Appendix A to the Participation Agreement, individually, a "Holder" and collectively,
the "Holders"); the various banks and other lending institutions which are parties to the Participation Agreement
from time to time as lenders (subject to the definition of Lenders in Appendix A to the Participation Agreement,
individually, a "Lender" and collectively, the "Lenders"); and BANK OF AMERICA, N.A., a national banking
association, 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 (in such capacity, the "Agent").
WITNESSETH:
WHEREAS, the parties hereto, are parties to that certain Participation Agreement dated as of October 24,
2000, (as amended by that certain Waiver and First Amendment to Certain Operative Agreements dated as of
August 14, 2001 by and among certain of the parties hereto and as such may be further amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Participation Agreement") and the Waiver to
Certain Operative Agreements dated as of July 20, 2001 by and among the parties hereto;
WHEREAS, due to circumstances beyond the control of the parties hereto, certain requirements set forth
in the First Amendment cannot be completed by the time periods set forth therein. Consequently, the Lessee
requests that the Financing Parties extend such time periods in accordance with the terms hereof.
WHEREAS, the parties hereto agree to amend the Operative Agreements in accordance with the terms and
conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt
and sufficiency of which is acknowledged, the parties hereto agree as follows:
AGREEMENT:
1. Definitions. Capitalized terms used herein and not otherwise defined shall have the meaning
given to such terms in Appendix A to the Participation Agreement and the Rules of Usage set forth therein shall
apply herein. The applicable terms defined in the Lessee Credit Agreement, including capitalized terms used
herein and not otherwise defined herein or in Appendix A to the Participation Agreement, are deemed to be
incorporated and continue herein and in the Operative Agreements as of the date hereof and without giving effect
to any amendments thereto except in accordance with Section 28.1 of the Lease.
2. Extension. Each reference to "September 14, 2001" is hereby replaced by a reference to
"September 21, 2001" in the following: Section 8.3(v) of the Participation Agreement and the definitions of
Supplemental Security Agreement and Term Loan Agreement.
3. Affirmative and Negative Covenants. The following shall replace Section 8.3(u) to the
Participation Agreement:
(u) The Lessee hereby covenants and agrees that, so long as any Operative Agreement is in
effect or any amounts payable under any Operative Agreement shall remain outstanding, and until all of
the Commitments and Holder Commitments shall have terminated, the Lessee will not permit any Credit
Party or Consolidated Subsidiary to (a) use proceeds of any Loan (as defined in the Lessee Credit
Agreement) to make any payments under the Equity Forward Agreement, including without limitation the
refinancing of the Equity Forward Agreement pursuant to the Term Loan Agreement, or for any other
purpose other than to fund operations in the ordinary course of Lessee's business, (b) change the
amortization or make any prepayment of the 6.92% senior notes due March 30, 2007 issued pursuant to that
certain Note Purchase Agreement dated as of March 1, 1997 by and among the Lessee, AllState Life
Insurance Company and such other institutions party thereto from time to time (the "AllState Notes"),
(c) have outstanding, in the aggregate, Revolving Exposures of all Lenders (as defined in the Lessee
Credit Agreement) in an amount in excess of $265,000,000 or (d) with respect to the Term Loan Agreement,
change the maturity date thereof, pay or prepay any principal amount outstanding thereunder prior to
November 24, 2005, permit the interest rate applicable thereunder to exceed LIBOR plus 3.75% per annum,
modify any of the covenants, defaults or other provisions thereof so that such provisions would be more
restrictive than the Operative Agreements or have outstanding a principal amount in excess of
$65,000,000.
Section 8.3(v)(ii) of the Participation Agreement is amended by replacing the text thereof with the
following: "execution, delivery of a copy to the Agent and effectiveness of an amendment to the documents
evidencing the AllState Notes and a letter of credit, including all documents related thereto, issued in
connection with the AllState Notes,".
4. Amendments to Definitions. The definition of "Operative Agreements" in Appendix A to the
Participation Agreement is amended by adding the following immediately after "the Joinder Agreements,": "the
Intercreditor Agreement, the Supplemental Security Agreement, the Collateral Documents (as such term is defined
in the Intercreditor Agreement)".
5. Additional Definitions. The following definitions are added to or replace the existing defined
term, as applicable, Appendix A to the Participation Agreement in the appropriate alphabetical order:
"Intercreditor Agreement" shall mean that certain intercreditor agreement dated on or prior to
September 21, 2001 by and among the Agent (at the direction of the Majority Secured Parties), the agent
to the Lessee Credit Agreement, the Term Loan lender and The Chase Manhattan Bank as the letter of
credit bank, as required by each facility, in form and substance acceptable to the Majority Secured
Parties.
"Intercreditor Agreement Event of Default" shall mean an "Event of Default" as defined in the
Intercreditor Agreement.
"Second Amendment" shall mean that certain Second Amendment to Certain Operative Agreements
dated as of September 14, 2001 by and among certain of the parties to the Participation Agreement.
"Term Loan Agreement Event of Default" shall mean an "Event of Default" as defined in Article
VIII of the Term Loan Agreement.
6. Amendments to the Lease Agreement. Section 17.1(l) of the Lease is amended by replacing the
text with the following:
Any Lessee Credit Agreement Event of Default, Intercreditor Agreement Event of Default or Term Loan
Agreement Event of Default shall have occurred and be continuing and shall not have been waived;
7. Effect of Agreement. Except as expressly set forth herein, this Agreement shall not by
implication or otherwise limit, impair, constitute a forbearance or waiver of, or otherwise affect the rights and
remedies of any Financing Party under any Operative Agreement, and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements contained in the Operative Agreements,
all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to create a course of dealing or otherwise entitle any Credit Party to a consent, a
waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or
agreements contained in any Operative Agreement in similar or different circumstances in the future.
8. Conditions Precedent and Conditions Subsequent. Notwithstanding anything contained herein to
the contrary, this Agreement shall not become effective until (a) completion and delivery to the Agent of each of
the following in form and substance acceptable to the Agent: (i) executed counterpart signature pages to this
Agreement from each Credit Party, the Owner Trustee, the Trustee and the Majority Secured Parties (ii) execution,
delivery and effectiveness of an amendment dated as of the date hereof among certain of the parties to the Lessee
Credit Agreement and (iii) all additional documentation and information as the Agent or its legal counsel, Xxxxx
& Xxx Xxxxx, PLLC, may request and (b) all proceedings taken in connection with the transactions contemplated by
this Agreement and all documentation and other legal matters incident thereto shall be satisfactory to the Agent
and its legal counsel, Xxxxx & Xxx Xxxxx, PLLC.
9. Incorporation of Lessee Credit Agreement Amendments. The Majority Secured Parties direct the
Agent and the Agent is hereby deemed to have delivered the consent required by Section 28.1 of the Lease to
incorporate the amendments to the Incorporated Covenants and the Additional Incorporated Terms as such amendments
are set forth in the First Amendment to the Lessee Credit Agreement. The Credit Parties acknowledge that with
respect to the Incorporated Representations and Warranties, the Incorporated Covenants and the Additional
Incorporated Terms, references to the "Borrower" shall be deemed to be references to the Lessee, references to
the "Lenders" shall be deemed to be references to the Lenders and the Holders, references to the "Required
Lenders" shall be deemed to be references to the Majority Secured Parties and such other similar changes as are
required to effectuate the intent of Section 28.1 of the Lease.
10. Representations and Warranties. The Lessee hereby represents and warrants that (i) the
representations and warranties contained in Section 6.2 of the Participation Agreement are true and accurate as
of the date hereof as if made on the date hereof, except to the extent such representations and warranties relate
solely to an earlier date, in which case such representations and warranties were true and accurate as of such
earlier date, (ii) no event or condition exists or would result from or continue after the consummation of the
transactions contemplated hereby, which constitutes a Default or an Event of Default, (iii) each Operative
Agreement to which any Credit Party is a party remains in full force and effect with respect to it and shall
remain in full force and effect after the effectiveness of this Agreement, and (iv) it knows of no event that
would or with the passage of time or giving of notice or both could constitute a Casualty, Condemnation or
Environmental Violation.
11. Release. In consideration of entering into this Agreement, each Credit Party (a) represents
and warrants to each Financing Party that as of the date hereof there are no Claims or offsets against or
defenses or counterclaims to its obligations under the Operative Agreements and furthermore, such Credit Party
waives any and all such Claims, offsets, defenses or counterclaims whether known or unknown, arising prior to the
date of this Agreement and (b) releases each Financing Party and each of their respective Affiliates,
Subsidiaries, officers, employees, representatives, agents, counsel and directors and each Indemnified Party from
any and all actions, causes of action, Claims, demands, damages and liabilities of whatever kind or nature, in
law or in equity, now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises
from any action or failure to act with respect to this Agreement or any other Operative Agreement, on or prior to
the date hereof.
12. Continued Effectiveness of Operative Agreements. Except as modified hereby, all of the terms
and conditions of the Operative Agreements are hereby ratified and affirmed and shall remain in full force and
effect.
13. Direction to Owner Trustee. The Agent, the Lenders and the Holders hereby instruct the Owner
Trustee to enter into this Agreement and such other documents necessary to effectuate the intent of this
Agreement.
14. Miscellaneous.
(a) Severability. Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(b) Counterparts. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
(c) Headings. The headings of the various articles and sections of this Agreement are for
convenience of reference only and shall not modify, define, expand or limit any of the terms or
provisions hereof.
(d) Fees and Expenses. The Lessee agrees to pay all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery of this Agreement, including, without
limitation, the reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC.
(e) Governing Law; Submission to Jurisdiction; Venue. This Agreement and the rights and
obligations of the parties hereunder shall be governed and construed, interpreted and enforced in
accordance with the internal laws of the State of North Carolina. THE PROVISIONS OF THE PARTICIPATION
AGREEMENT RELATING TO SUBMISSION TO JURISDICTION AND VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN,
MUTATIS MUTANDIS.
(f) Further Assurances. The provisions of the Participation Agreement relating to further
assurances are hereby incorporated by reference herein, mutatis mutandis.
(g) Survival of Representations and Warranties. All representations and warranties make
in this Agreement or any other Operative Agreement shall survive the execution and delivery of this Agreement and
the other Operative Agreements, and no investigation by any Financing Party or any closing shall affect the
representations and warranties or the right of the Financing Parties to rely upon them.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the date first above written.
CONSTRUCTION AGENT
AND LESSEE: ACXIOM CORPORATION, as the Construction Agent and as the
Lessee
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Corporate Finance Leader
GUARANTORS: ACXIOM CDC, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Assistant Treasurer
ACXIOM/DIRECT MEDIA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Assistant Treasurer
ACXIOM RM-TOOLS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Assistant Treasurer
ACXIOM/MAY & XXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Assistant Treasurer
OWNER TRUSTEE AND
LESSOR: XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION (formerly
First Security Bank, National Association), not
individually, except as expressly stated herein, but solely
as the Owner Trustee under the AC Trust 2000-1
By: /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
SERIES 0000-X XXXX
XXXXXXXXX: XXXXX FARGO BANK NEVADA, NATIONAL
ASSOCIATION (formally known as First Security Trust Company
of Nevada), not individually, except as expressly stated
herein, but solely as the Trustee under the AC Trust 2000-2
By: /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
AGENT AND LENDERS: BANK OF AMERICA, N.A., as a Lender and
as the Agent
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Managing Director
ABN-AMRO BANK, N.V.
By: /s/ Xxxxx Xxxxxxx-Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Group Vice President
By: /s/ Xxxxx Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx Xxxxxxx
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ A.S. Xxxxxxxxxx
-----------------------------------------
Name: A.S. Xxxxxxxxxx
Title: Sr. Team Leader - Loan Operations
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
HOLDERS: BANK OF AMERICA, N.A., as a Holder
By: /s/ Xxxxxxx X. XxXxxxxx
-----------------------------------------
Name: Xxxxxxx X. XxXxxxxx
Title: Managing Director
SCOTIABANC INC.
By: /s/ X.X. Xxxxx
-----------------------------------------
Name: X.X. Xxxxx
Title: Managing Director
LEASE PLAN NORTH AMERICA, INC.
By: /s/ Xxxxxxxxx X. XxXxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. XxXxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
[Signature Pages End]
