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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
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TABLE OF CONTENTS
Page
SECTION 1. THE LOANS.............................................................................................1
SECTION 2. HOLDER ADVANCES.......................................................................................2
SECTION 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....................................................................................4
SECTION 4. THE CLOSINGS..........................................................................................5
4.1. Initial Closing Date............................................................................5
4.2. Initial Closing Date; Property Closing Dates; Acquisition Advances; Construction Advances.......5
SECTION 5. FUNDING OF ADVANCES; CONDITIONS PRECEDENT; REPORTING REQUIREMENTS ON COMPLETION DATE; THE
LESSEE'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.................20
SECTION 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...........................................25
SECTION 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..........................................................................34
SECTION 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....................................................................................38
SECTION 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.....................................................................51
SECTION 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...............................52
SECTION 10. TRANSFER OF INTEREST................................................................................52
10.1. Restrictions on Transfer.......................................................................52
10.2. Effect of Transfer.............................................................................53
SECTION 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.......66
SECTION 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........................................................................................75
Legal Proceedings.................................................................................................1
EXHIBITS
A - Form of Requisition - Sections 4.2, 5.2, 5.3 and 5.4
B - 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 5.5
J - 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 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 hereto, individually, a "Guarantor" and
collectively, the "Guarantors"); FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not
individually (in its individual capacity, the "Trust Company"), except as expressly stated herein, but solely as
the Owner Trustee under the AC Trust 2000-1 (the "Owner Trustee", the "Borrower" or the "Lessor"); FIRST SECURITY
TRUST 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 0000-X Xxxx Xxxxxxxxx"); the various
banks and other lending institutions which are parties hereto 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 hereto, individually, a
"Holder" and collectively, the "Holders"); the various banks and other lending institutions which are parties
hereto 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 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"). Capitalized terms used but not otherwise defined in
this 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 reliance
on the representations and warranties of each of the parties hereto contained herein or made pursuant hereto, the
Lenders have severally agreed to make Loans to the Lessor from time to time in an aggregate principal amount of
up to the aggregate amount of the Commitments of the Lenders in order for the Lessor to (i) make loans to the
Series 0000-X Xxxx Xxxxxxxxx in order for the Series 0000-X Xxxx Xxxxxxxxx to acquire the Series 2000-B Bond from
the City of Little Rock, the proceeds of which shall be used by the City of Little Rock to acquire the Little
Rock Property and certain Improvements thereon, to permit the Construction Agent, on behalf of the City of Little
Rock and the Lessor, to develop and construct certain Improvements on the Little Rock Property in accordance with
the Construction Agency Agreement or the Bond Documents and the terms and provisions hereof and for the other
purposes described herein, in all events for lease to the Lessor under the Head Lease and sublease to the Lessee
under the Lease, and (ii) acquire the Properties other than the Little Rock Property and certain Improvements
thereon, to develop and construct certain Improvements on such other Properties in accordance with the
Construction 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 be
made and the Notes shall be issued pursuant to the Credit Agreement. Pursuant to Section 5 of this Agreement and
Section 2 of the Credit Agreement, the Loans will be made to the Lessor from time to time at the request of the
Construction Agent in consideration for the Construction Agent agreeing for the benefit of the Lessor and, with
respect to the Little Rock Property, the City of Little Rock, pursuant to the Construction Agency Agreement, to
acquire the Properties, to acquire the Equipment, to construct certain Improvements and to cause the Lessee to
lease the Properties from the Lessor, each in accordance with the Construction Agency Agreement and the other
Operative Agreements. The Loans and the obligations of the Lessor under the Credit Agreement shall be secured by
the Collateral.
SECTION 2. HOLDER ADVANCES.
Subject to the terms and conditions of this Agreement and the other Operative Agreements and in reliance
on the representations and warranties of each of the parties hereto contained herein or made pursuant hereto, on
each date Advances are requested to be made in accordance with Section 5 hereof, each Holder shall make a Holder
Advance on a pro rata basis to the Lessor with respect to the AC Trust 2000-1 based on its Holder Commitment in
an amount in immediately available funds such that the aggregate of all Holder Advances on such date shall be
four and 11/100 percent (4.11%) of the amount of the Requested Funds on such date; provided, that no Holder shall
be obligated for any Holder Advance in excess of its pro rata share of the Available Holder Commitment. The
aggregate amount of Holder Advances shall be up to the aggregate amount of the Holder Commitments. No prepayment
or any other payment with respect to any Advance shall be permitted such that the Holder Advance with respect to
such Advance is less than four and 11/100 percent (4.11%) of the outstanding amount of such Advance, except in
connection with termination or expiration of the Term or in connection with the exercise of remedies relating to
the occurrence of a Lease Event of Default. The representations, warranties, covenants and agreements of the
Holders 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 this
Agreement, the Head Lease, the Lease, each applicable Ground Lease, the Construction Agency Agreement, the Credit
Agreement, the Notes, the Trust Agreement, the Certificates, the Security Agreement, each other Operative
Agreement, 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 conditions
of this Agreement (i) each Holder will make a Holder Advance in accordance with Sections 2 and 5 of this
Agreement and the terms and provisions of the Trust Agreement, (ii) each Lender will make a Loan in accordance
with Sections 1 and 5 of this Agreement and the terms and provisions of the Credit Agreement, (iii) the Lessor
will make a Bond Loan to the Series 0000-X Xxxx Xxxxxxxxx in an amount equal to the Holder Advances and Loans
made by the Holders and Lenders respectively (less the amount of Transaction Expenses, if any, to be paid
directly from such Advances) and allocable to the Little Rock Property, (iv) the Series 2000-B Bond Purchaser
shall use the proceeds of the Bond Loan to acquire Series 2000-B Bond having a face amount equal to the amount of
such Bond Loan, (v) the Series 2000-A Bond Purchaser shall acquire the Series 2000-A Bond having a face amount
equal to $1,446,192, (vi) the City of Little Rock will purchase and acquire good and marketable title to the
Little Rock Land pursuant to a Deed and/or Xxxx of Sale, (vii) the City of Little Rock shall grant to the Bond
Trustee, on behalf of the Series 0000-X Xxxx Xxxxxxxxx and the Series 0000-X Xxxx Xxxxxxxxx, a Lien on the Little
Rock Land and additional Little Rock Property by execution of the Bond Indenture, (viii) the Series 2000-A Bond
Purchaser and the Series 0000-X Xxxx Xxxxxxxxx shall assign to the Lessor, its respective interest in the
Series 2000-A Bond and the Series 2000-B Bond, respectively, (ix) the Lessor shall in turn assign to the Agent, on
behalf 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 Head
Lease, (xi) the Agent, the Lessee and the Lessor shall execute and deliver a Lease Supplement relating to the
Little Rock Property, and (xii) the Basic Term shall commence with respect to the Little Rock Property. On the
next Business Day following the Little Rock Closing Date, the Agent, as assignee of the Series 0000-X Xxxx
Xxxxxxxxx, 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 Rock
Property) and subject to the terms and conditions of this Agreement (a) each Holder will make a Holder Advance in
accordance with Sections 2 and 5 of this Agreement and the terms and provisions of the Trust Agreement, (b) each
Lender will make a Loan in accordance with Sections 1 and 5 of this Agreement and the terms and provisions of the
Credit Agreement, (c) the Lessor will purchase and acquire good and marketable title to, or ground lease pursuant
to a Ground Lease, the applicable Property, each to be within an Approved State, identified by the Construction
Agent, in each case pursuant to a Deed, Xxxx of Sale or Ground Lease, as the case may be, and grant the Agent a
lien on such Property by execution of the required Security Documents, (d) the Agent, the Lessee and the Lessor
shall execute and deliver a Lease Supplement relating to such Property and (e) the Basic Term shall commence with
respect 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 with
respect 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 to
the Little Rock Property, the Bond Documents. The Construction Agent will act as a construction agent on behalf
of the Lessor and, with respect to the Little Rock Property, the City of Little Rock, respecting the Work
regarding the Equipment, the construction of such Improvements and the expenditures of the Construction Advances
and, with respect to the Little Rock Property, the Bonds, related to the foregoing. The Construction Agent shall
promptly notify the Lessor upon Completion of the Improvements and the Lessee shall commence to pay Basic Rent as
of 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 Lender
Commitment for Tranche A Loans, the aggregate Lender Commitment for Tranche B Loans and the aggregate Holder
Commitment and (b) to make advances consistent with such committed amounts referenced in Section 3.4(a) in
accordance 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 with
Section 2.2 of the Lease, the Lessee shall have the right to request in writing (the "Refinancing Request") that
the 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 of
the Refinancing Request, the Owner Trustee shall reasonably cooperate with the Lessee to issue and sell in the
private debt market at then market terms and conditions, one or more series of non-recourse replacement
Certificates and Notes, maturing at the expiration of the Renewal Term. The proceeds of such issuance and sale
shall be applied to pay in full the then outstanding Holder Advances and the then outstanding principal balance
of the Loans, as well as any accrued and unpaid Holder Yield and Interest thereon, respectively, and any other
amounts then due and owing to the Holders and the Lenders. The Lessee shall be liable for all reasonable costs
and expenses (including, without limitation, reasonable attorney's fees and expenses) incurred by the parties
hereto in connection with such refinancing (whether or not consummated). As a condition to any such
refinancing, the new purchasers of such new Certificates and Notes (and any existing Holders or Lenders that
elect to participate in such new issuance and sale) may require such modifications and amendments to the
Operative 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 outstanding
Holder Advances and Loans and/or requiring the Owner Trustee to amortize all or any part of the outstanding
Holder Advances and Loans over such Renewal Term and/or requiring the Lessee to provide additional collateral for
all or any of the Lessee's obligations under the Operative Agreements during the Renewal Term. Any or all of
the 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 to
participate in the above refinancing, such Holder's Certificates and Lender's Notes and corresponding Holder
Advances and Loans, will not be redeemed and reissued, but instead shall be deemed to have the same rights and
have been issued under the same terms (including tenor) as the Certificates and Notes issued in connection with
such refinancing.
(b) If requested in writing by the Lessee concurrently with Lessee's Refinancing Request the Agent
agrees, upon the Lessee's entering into an engagement letter and term sheet with the Agent within 30 days of such
notice and the receipt by the Agent of engagement, structuring and syndication fees, in each case, satisfactory
to the Agent, to use commercially reasonable efforts, in accordance with the terms of such engagement letter and
term sheet, to refinance on a syndicated basis the outstanding Holder Advances and outstanding principal balance
of 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 at
the offices of Xxxxx & Xxx Xxxxx, PLLC, Charlotte, North Carolina, or at such other location as may be determined
by 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, the
Bond Trustee, a requisition (a "Requisition"), in the form attached hereto as Exhibit A or in such other form as
is satisfactory to the Agent (and to the extent required by the Bond Documents with respect to the Little Rock
Property, the Bond Trustee), in its reasonable discretion, in connection with (a) the Transaction Expenses and
other fees, expenses and disbursements payable, pursuant to Section 7.1, by the Lessor and (b) each Acquisition
Advance pursuant to Section 5.3 and (c) each Construction Advance pursuant to Section 5.4. No Requisition shall
be 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 Construction Agent to acquire the Properties (other than the Little Rock Property) in
accordance with the terms of this Agreement, the Construction Agency Agreement and the other Operative
Agreements, (ii) to make Advances to the Construction Agent to permit the acquisition, testing,
engineering, installation, development, construction, modification, design, and renovation, as
applicable, of the Properties (other than the Little Rock Property) (or components thereof) in
accordance with the terms of the Construction Agency Agreement and the other Operative Agreements,
(iii) to make loans to the Series 0000-X Xxxx Xxxxxxxxx in order for the Series 0000-X Xxxx Xxxxxxxxx to
acquire Series 2000-B Bond, the proceeds of which will be used by the Bond Trustee to permit, at the
direction of the Construction Agent on behalf of the City of Little Rock, the acquisition, testing,
engineering, installation, development, construction, modification, design, and renovation, as
applicable of the Little Rock Property (or components thereof) in accordance with the terms of this
Agreement, the Construction Agency Agreement, the other Operative Agreements and the Bond Documents and
(iv) to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under
Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5, 7.6 and 11.8. The application of this paragraph is
restricted to any or all Properties financed partially or wholly pursuant to the Operative Agreements
including without limitation any property acquired with (partially or wholly) Advances made hereunder.
(b) In lieu of the payment of interest on the Loans and Holder Yield on the Holder
Advances on any Scheduled Interest Payment Date with respect to any Property during the period prior to
the Rent Commencement Date with respect to such Property and subject to Section 5.11 and until such time
as a Default or an Event of Default shall have occurred and be continuing, (i) each Lender's Loan shall
automatically be increased by the amount of interest accrued and unpaid on such Loan for such period
(except to the extent that at any time such increase would cause such Lender's Loan to exceed such
Lender's Available Commitment, in which case the Lessee shall pay such excess amount to such Lender in
immediately available funds on the date such Lender's Available Commitment was exceeded), and (ii) each
Holder's Holder Advance shall automatically be increased by the amount of Holder Yield accrued and
unpaid on such Holder Advance for such period (except to the extent that at any time such would cause
the Holder Advance of such Holder to exceed such Holder's Available Holder Commitment, in which case the
Lessee shall pay such excess amount to such Holder in immediately available funds on the date the
Available Holder Commitment of such Holder was exceeded). Such increases in a Lender's Loan and a
Holder's Holder Advance shall occur without any disbursement of funds by any Person.
(c) In lieu of the payment of the Unused Fee to any Lender or Holder on any Unused Fee
Payment Date, (i) each Lender shall be deemed to have automatically made a Loan on the Unused Fee
Payment Date in the amount of such Unused Fee (except to the extent that at any time such Loan would
cause such Lender to exceed its Available Commitment, in which case, the Lessee shall pay such excess
amount to such Lender in immediately available funds on the date such Lender's Available Commitment was
exceeded) and (ii) each Holder shall be deemed automatically to have made a Holder Advance on the Unused
Fee Payment Date in the amount of such Unused Fee (except to the extent that at any time such increase
would cause the Holder Advance of such Holder to exceed its Available Holder Commitment, in which case
the Lessee shall pay such excess amount to such Holder in immediately available funds on the date such
Holder's Available Holder Commitment is exceeded). Such increases in a Lender's Loan and a Holder's
Holder Advance shall occur without disbursement of funds by any Person.
5.2. Procedures for Funding.
(a) The Construction Agent shall designate the date for Advances hereunder in accordance
with the terms and provisions hereof and, with respect to Advances made with respect to the Little Rock
Property, the Bond Documents; provided, however, it is understood and agreed that (x) no more than two
(2) Advances (excluding any conversion and/or continuation of any Loan or Holder Advance) may be
requested during any calendar month and no such designation from the Construction Agent is required for
funding of Transaction Expenses, fees, expenses and other disbursements payable by the Lessor pursuant
to or in connection with Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5, 7.6 and 11.8 and (y) the aggregate
amount of Advances that may be requested to apply towards the cost of remediation efforts on the Little
Rock Property respecting Hazardous Substances shall be no more than $1,000,000. Not later than 12:00
Noon, New York time (i) three (3) Business Days prior to the date that the first Advance is requested
hereunder and (ii) three (3) Business Days prior to the date on which any subsequent Acquisition Advance
or Construction Advance is to be made, the Construction Agent shall deliver to the Agent and, to the
extent required by the Bond Documents with respect to Advances made toward the acquisition and
development of the Little Rock Property, the Bond Trustee, (A) with respect to the date that the first
Advance is requested hereunder and each subsequent Acquisition Advance, a Requisition as described in
Section 4.2 hereof (including without limitation a legal description of the Land, if any, a schedule of
the Improvements, if any, and a schedule of the Equipment, if any, acquired or to be acquired on such
date, and a schedule of the Work, if any, performed or to be performed, each of the foregoing in a form
reasonably acceptable to the Agent) and (B) with respect to each Construction Advance, a Requisition
identifying (among other things) the Property to which such Construction Advance relates. The
Construction Agent shall be solely responsible for completing the Requisition in accordance with the
terms hereof and the Agent shall have no obligation to verify the accuracy of the information provided
therein.
(b) Each Requisition shall: (i) be irrevocable, (ii) request funds in an amount that is
not in excess of the total aggregate of the Available Commitments plus the Available Holder Commitments
at such time, and (iii) request that the Holders make Holder Advances and that the Lenders make Loans to
the Lessor for the payment of Transaction Expenses, Property Acquisition Costs (in the case of an
Acquisition Advance) or other Property Costs (in the case of a Construction Advance) that have
previously been incurred or are to be incurred on the date of such Advance to the extent such were not
subject to a prior Requisition, in each case as specified in the Requisition. The Construction Agent
shall be solely responsible for completing the Requisition in accordance with the terms hereof and the
Agent shall have no obligation to verify the accuracy of the information provided therein.
(c) Subject to the satisfaction of the conditions precedent set forth in Sections 5.3 or
5.4, as applicable, on each Property Closing Date or the date on which the Construction Advance is to be
made, as applicable, (i) the Lenders shall make Loans based on their respective Lender Commitments to
the Lessor in an aggregate amount equal to ninety-six percent (96%) of the Requested Funds specified in
any Requisition plus any additional amounts as referenced in Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5,
7.6 and 11.8, ratably between the Tranche A Lenders and the Tranche B Lenders with the Tranche A Lenders
funding eighty-seven percent (87%) of the Requested Funds and the Tranche B Lenders funding eight and
89/100 percent (8.89) of the Requested Funds), up to an aggregate principal amount equal to the
aggregate of the Available Commitments, (ii) the Holders shall make Holder Advances based on their
respective Holder Commitments in an aggregate amount equal to four and 11/100 percent (4.11%) of the
balance of the Requested Funds specified in such Requisition plus any additional amounts as referenced
in Sections 7.1(a),7.1(b), 7.3(a), 7.4, 7.5, 7.6 and 11.8, up to the aggregate advanced amount equal to
the aggregate of the Available Holder Commitments; (iii) the total amount of such Loans and Holder
Advances made on such date with respect to Property Costs other than with respect to the Little Rock
Property shall (x) be used by the Lessor to pay Property Costs (other than with respect to the Little
Rock Property) including Transaction Expenses within three (3) Business Days of the receipt by the
Lessor of such Advance or (y) be advanced by the Lessor on the date of such Advance to the Construction
Agent or the Lessee to pay Property Costs (other than with respect to the Little Rock Property), as
applicable and (iv) the total amount of such Loans and Holder Advances made on such date with respect to
the Little Rock Property shall be used by the Lessor on the date of receipt by Lessor of such Advances
to make a Bond Loan to the Series 0000-X Xxxx Xxxxxxxxx in order for the Series 0000-X Xxxx Xxxxxxxxx to
acquire the Series 2000-B Bond, the proceeds of which shall (x) be used by the Bond Trustee, on behalf
of the City of Little Rock, to pay Property Costs with respect to the Little Rock Property within three
(3) Business Days of the receipt by Bond Trustee of such amounts. Notwithstanding that the Operative
Agreements state that Advances shall be directed to the Lessor, each Advance shall in fact be directed
to the Construction Agent (for the benefit of the Lessor (or, with respect to the Little Rock Property,
the Bond Trustee, for the benefit of the City of Little Rock)) and applied by the Construction Agent
(for the benefit of the Lessor (or, with respect to the Little Rock Property, applied by the Bond
Trustee to the Construction Agent for the benefit of the City of Little Rock)) pursuant to the
requirements imposed on the Lessor under the Operative Agreements and, with respect to the Advances made
for the Little Rock Property, the Bond Documents.
(d) With respect to (i) an Advance obtained by the Lessor to pay for Property Costs , if
any, and/or Transaction Expenses or other costs payable under Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5,
7.6 or 11.8 and not expended by the Lessor for such purpose on the date of such Advance, such amounts
shall be held by the Lessor (or the Agent on behalf of the Lessor) until the applicable closing date or
payment date or, if such closing date or payment date does not occur within three (3) Business Days of
the date of the Lessor's receipt of such Advance, shall be applied regarding the applicable Advance to
repay the Lenders and the Holders and, subject to the terms hereof, and of the Credit Agreement and the
Trust Agreement, shall remain available for future Advances, (ii) amounts of a Bond Loan made to the
Series 2000-B Bond Purchaser from Advances to acquire the Series 2000-B Bond, and not expended by the
Series 0000-X Xxxx Xxxxxxxxx for such purpose on the date of such loan, such amounts shall be applied by
the Series 0000-X Xxxx Xxxxxxxxx on the next succeeding Business Day to repay the applicable Bond Loan
and in turn the Lessor shall apply such amount to repay the Lenders and the Holders for the applicable
Advances, and subject to the terms hereof and of the Credit Agreement and the Trust Agreement, shall
remain available for future Advances, (iii) amounts paid to the Bond Trustee by the Series 0000-X Xxxx
Xxxxxxxxx to acquire Series 2000-B Bond and not expended by the Bond Trustee to pay for Property Costs
with respect to the Little Rock Property on the date of receipt, shall be held by the Bond Trustee until
the applicable closing date or payment date, or if such closing date or payment date does not occur
within three (3) Business Days of the date of the Bond Trustee's receipt of such amounts, shall be
applied by the Bond Trustee to repay the Series 2000-B Bond issued with respect to such amount (and such
Series 2000-B Bond shall be surrendered and cancelled upon such repayment) and the Series 0000-X Xxxx
Xxxxxxxxx shall repay the applicable Bond Loan and in turn the Lessor shall apply such amount to repay
the Lenders and the Holders for the applicable Advances, and subject to the terms hereof and of the
Credit Agreement and the Trust Agreement, shall remain available for future Advances. Any such amounts
held by the Lessor, the Series 2000-B Bond Purchaser or the Bond Trustee (or the Agent on behalf of any
such party) shall be subject to the Lien of the Security Agreement and shall accrue interest and Holder
Yield from the date any such amount is advanced to the Agent.
(e) All Operative Agreements, Bond Loan Documents and Bond Documents which are to be
delivered to the Lessor, the Trustee, the Agent, the Lenders or the Holders shall be delivered to the
Agent, on behalf of the Lessor, the Trustee, the Agent, the Lenders or the Holders, and such items
(except for Notes, the Bond Loan Note, Bonds, Certificates, Bills of Sale, the Ground Leases and chattel
paper originals, with respect to which in each case there shall be only one original) shall be delivered
with originals sufficient for the Lessor, the Trustee, the Agent, each Lender and each Holder. All
other items which are to be delivered to the Lessor, the Trustee, the Agent, the Lenders or the Holders
shall be delivered to the Agent, on behalf of the Lessor, the Trustee, the Agent, the Lenders or the
Holders, and such other items shall be held by the Agent. To the extent any such other items are
requested in writing from time to time by the Lessor, the Trustee, any Lender or any Holder, the Agent
shall provide a copy of such item to the party requesting it.
(f) Notwithstanding the completion of any closing under this Agreement pursuant to
Sections 5.3 or 5.4, each condition precedent in connection with any such closing may be subsequently
enforced by the Agent (unless such has been expressly waived in writing by the Agent).
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.
The obligations (i) on the Initial Closing Date of the Lessor, the Trustee, the Agent, the Lenders and
the Holders to enter into the transactions contemplated by this Agreement, including without limitation the
obligation to execute and deliver the applicable Operative Agreements, Bond Loan Documents and Bond Documents to
which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder
Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other
disbursements payable by the Lessor under Sections 7.1(a), 7.3(a), 7.5 and 7.6 of this Agreement and (iii) on a
Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses,
fees, expenses and other disbursements payable by the Lessor under Section 7.1(b) or 7.3(a) of this Agreement and
to acquire or ground lease a Property (an "Acquisition Advance"), in each case (with regard to the foregoing
Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent
on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the
extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum,
legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of
any kind or type, such shall be in form and substance satisfactory to the Agent in its reasonable discretion;
notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in
this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties (i) of the parties to this
Agreement contained herein, in each of the other Operative Agreements and each certificate delivered
pursuant to any Operative Agreement (including without limitation the Incorporated Representations and
Warranties) (ii) of the Series 0000-X Xxxx Xxxxxxxxx in the Bond Loan Documents, and (iii) of the
parties to the Bond Documents in each of the Bond Documents and each certificate delivered pursuant to
any Bond Document, in each case, on each such date;
(b) the performance by (i) the parties to this Agreement of their respective agreements
contained herein and in the other Operative Agreements to be performed by them, (ii) the Series 0000-X
Xxxx Xxxxxxxxx of its agreements contained in the Bond Loan Documents and (iii) the parties to the Bond
Documents, including the Series 0000-X Xxxx Xxxxxxxxx, of their respective agreements contained therein,
in each case, on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition,
appropriately completed;
(d) title to each such Property shall conform to the representations and warranties set
forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate
for the Construction Agent in the state where each such Property is located, the Deed with respect to
the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx
of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired
or ground leased on each such date with the proceeds of the Bonds or the Loans and Holder Advances or
which have been previously acquired or ground leased with the proceeds of the Bonds or the Loans and
Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in
an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under
any of the Operative Agreements, the Bond Loan Documents or the Bond Documents and no Default or Event
of Default under any of the Operative Agreements, the Bond Loan Documents or the Bond Documents will
have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments
to issue policies respecting each such Property in an amount at least equal to the maximum total
Property Cost indicated by the Construction Budget referenced in Section 5.3(r), with such endorsements
as the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company
acceptable to the Agent, but only with such title exceptions thereto as are acceptable to the Agent;
(h) the Construction Agent shall have delivered to the Agent an environmental site
assessment respecting each such Property prepared by an independent recognized professional acceptable
to the Agent and evidencing no environmental condition with respect to which there is more than a remote
risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard
certification) respecting each such Property prepared by (i) an independent recognized professional
acceptable to the Agent and (ii) in a manner and including such information as is required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular
state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in the form
attached hereto as Exhibit B or in such other form as is acceptable to the Agent with respect to local
law real property issues respecting the state in which each such Property is located addressed to the
Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such
Property is located, prepared by counsel acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition, ground leasing and/or holding of
each such Property and the execution of the Mortgage Instrument, the other Security Documents, the Bond
Loan Documents and the Bond Documents will not materially and adversely affect the rights of the Lessor,
the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices for, or other
reasonably satisfactory evidence of, the various Transaction Expenses and other fees, expenses and
disbursements referenced in Sections 7 of this Agreement, as appropriate;
(m) the Construction Agent shall have caused to be delivered to the Agent a Mortgage
Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to
applicable state law), the Bond Security Documents (with respect to the Little Rock Property), Lessor
Financing Statements and Lender Financing Statements respecting each such Property, all fully executed
and in recordable form;
(n) the Lessee shall have delivered to the Agent with respect to each such Property a
Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement
(such memorandum or short form lease to be in the form attached to the Lease as Exhibit B or in such
other form as is acceptable to the Agent, with modifications as necessary to conform to applicable state
law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the
Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the
Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) if any such Property is subject to a Ground Lease, the Construction Agent shall have
caused a lease memorandum (or short form lease) to be delivered to the Agent for such Ground Lease and,
if requested by the Agent, a landlord waiver and a mortgagee waiver (in each case, in such form as is
acceptable to the Agent);
(q) counsel (acceptable to the Agent) for the ground lessor of each such Property subject
to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction
Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with
respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an Appraisal regarding each such Property to
be provided to the Agent from an appraiser selected by the Agent and reasonably acceptable to
Construction Agent;
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien
searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be
delivered to the Agent) in such jurisdictions as determined by the Agent by a nationally recognized
search company acceptable to the Agent and (ii) the liens referenced in such lien searches which are
objectionable to the Agent to be either removed or otherwise handled in a manner satisfactory to the
Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery,
recording, filing and registration of the Operative Agreements, the Bond Loan Documents, the Bond
Documents and/or documents related thereto shall have been paid or provisions for such payment shall
have been made to the satisfaction of the Agent;
(w) in the opinion of the Agent and the Majority Secured Parties and their respective
counsel, the transactions contemplated by the Operative Agreements, the Bond Loan Documents and the Bond
Documents do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse
regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements, the Bond Loan Documents and the Bond Documents to be
entered into on such date shall have been duly authorized, executed and delivered by the parties
thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy
of each of the Operative Agreements, the Bond Loan Documents and the Bond Documents;
(y) since the date of the most recent audited financial statements (as delivered pursuant
to the requirements of the Lessee Credit Agreement) of the Lessee, there shall not have occurred any
event, condition or state of facts which shall have or could reasonably be expected to have a Material
Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer's
Certificate, dated as of the Initial Closing Date, of the Lessee in the form attached hereto as Exhibit
C or in such other form as is acceptable to the Agent stating that (i) each and every representation and
warranty of each Credit Party contained in the Operative Agreements and the Bond Documents to which it
is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of
Default by any Credit Party has occurred and is continuing under any Operative Agreement, the Bond Loan
Documents or the Bond Documents; (iii) each Operative Agreement and Bond Document to which any Credit
Party is a party is in full force and effect with respect to it; and (iv) each Credit Party has duly
performed and complied with all covenants, agreements and conditions contained herein, in any Operative
Agreement or in any Bond Document required to be performed or complied with by it on or prior to the
Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate
of the Secretary or an Assistant Secretary of each Credit Party, dated as of the Initial Closing Date,
in the form attached hereto as Exhibit D or in such other form as is acceptable to the Agent attaching
and certifying as to (1) the resolutions of the Board of Directors of such Credit Party duly authorizing
the execution, delivery and performance by such Credit Party of each of the Operative Agreements and
Bond Documents to which it is or will be a party, (2) the articles of incorporation of such Credit Party
certified as of a recent date by the Secretary of State of its state of incorporation and its by-laws
and (3) the incumbency and signature of persons authorized to execute and deliver on behalf of such
Credit Party the Operative Agreements and Bond Documents to which it is or will be a party and (ii) a
good standing certificate (or local equivalent) from the respective states where such Credit Party is
incorporated and where the principal place of business of such Credit Party is located as to its good
standing in each such state. To the extent any Credit Party is a partnership, a limited liability
company or is otherwise organized, such Person shall deliver to the Agent (in form and substance
satisfactory to the Agent) as of the Initial Closing Date (A) a certificate regarding such Person and
any corporate general partners covering the matters described in Exhibit D and (B) a good standing
certificate, a certificate of limited partnership or a local equivalent of either of the foregoing, as
applicable;
(bb) Intentionally Omitted;
(cc) as of the Initial Closing Date only, the Agent shall have received an Officer's
Certificate of the Lessor dated as of the Initial Closing Date in the form attached hereto as Exhibit E
or in such other form as is acceptable to the Agent, stating that (i) each and every representation and
warranty of the Lessor contained in the Operative Agreements, the Bond Loan Documents and the Bond
Documents to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each
Operative Agreement, Bond Loan Document and Bond Document to which the Lessor is a party is in full
force and effect with respect to it and (iii) the Lessor has duly performed and complied with all
covenants, agreements and conditions contained herein, in any Operative Agreement, in any Bond Loan
Document or in any Bond Document required to be performed or complied with by it on or prior to the
Initial Closing Date;
(dd) as of the Initial Closing Date only, the Agent shall have received (i) a certificate
of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in the
form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and
certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by
the Lessor of each of the Operative Agreements, the Bond Loan Documents and the Bond Documents to which
it is or will be a party, (B) its articles of association or other equivalent charter documents and its
by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust
Company and (C) the incumbency and signature of persons authorized to execute and deliver on its behalf
the Operative Agreements, the Bond Loan Documents and the Bond Documents to which it is a party and (ii)
a good standing certificate from the Office of the Comptroller of the Currency;
(ee) as of the Initial Closing Date only, the Agent shall have received an Officer's
Certificate of the Series 0000-X Xxxx Xxxxxxxxx dated as of the Initial Closing Date in the form
attached hereto as Exhibit E-1 or in such other form as is acceptable to the Agent, stating that
(i) each and every representation and warranty of the Series 0000-X Xxxx Xxxxxxxxx contained in the
Operative Agreements, the Bond Loan Documents and the Bond Documents to which it is a party is true and
correct on and as of the Initial Closing Date, (ii) each Operative Agreement, Bond Loan Document and
Bond Document to which the Series 2000-B Bond Purchaser is a party is in full force and effect with
respect to it and (iii) the Series 2000-B Bond Purchaser has duly performed and complied with all
covenants, agreements and conditions contained herein or in any Operative Agreement, Bond Loan Document
and Bond Document required to be performed or complied with by it on or prior to the Initial Closing
Date;
(ff) as of the Initial Closing Date only, the Agent shall have received (i) a certificate
of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trustee in the form
attached hereto as Exhibit F-1 or in such other form as is acceptable to the Agent and the Majority
Secured Parties, attaching and certifying as to (A) the signing resolutions duly authorizing the
execution, delivery and performance by the Series 0000-X Xxxx Xxxxxxxxx of each of the Operative
Agreements to which it is or will be a party, (B) its articles of association or other equivalent
charter documents and its by-laws, as the case may be, certified as of a recent date by an appropriate
officer of the Trustee and (C) the incumbency and signature of persons authorized to execute and deliver
on its behalf the Operative Agreements, Bond Loan Documents and the Bond Documents to which it is a
party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(gg) as of the Initial Closing Date only, counsel for the Lessor acceptable to the Agent
shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in the form attached
hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent;
(hh) as of the Initial Closing Date only, counsel for the Series 0000-X Xxxx Xxxxxxxxx
acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its
opinion in the form attached hereto as Exhibit G-1 or in such other form as is reasonably acceptable to
the Agent and the Majority Secured Parties;
(ii) as of the Initial Closing Date only, the Construction Agent shall have caused to be
delivered to the Agent a legal opinion in the form attached hereto as Exhibit H or in such other form as
is acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from
counsel acceptable to the Agent; and
(jj) as of the Initial Closing Date only, the Construction Agent shall cause (i) tax lien
searches and judgment lien searches regarding each Credit Party to be conducted (and copies thereof to
be delivered to the Agent) in such jurisdictions as determined by the Agent by a nationally recognized
search company acceptable to the Agent and (ii) the liens referenced in such lien searches which are
objectionable to the Agent to be either removed or otherwise handled in a manner satisfactory to the
Agent.
(kk) the conditions to closing the transactions contemplated by the Bond Documents shall
have been satisfied.
5.4. Conditions Precedent for the Lessor, the Agent, the Lenders and the Holders Relating to the
Advance of Funds after the Acquisition Advance.
The obligations of the Holders to make Holder Advances, and the Lenders to make Loans in connection with
all requests for Advances subsequent to the acquisition of a Property (and to pay the Transaction Expenses, fees,
expenses and other disbursements payable by the Lessor under Sections 7.1, 7.3(a), 7.4 and 7.5 of this Agreement
in connection therewith) (a "Construction Advance") are subject to the satisfaction or waiver of the following
conditions precedent (to the extent such conditions precedent require the delivery of any agreement, certificate,
instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or
any other document of any kind or type, such shall be in form and substance satisfactory to the Agent in its
reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any
conditions contained in this Section 5.4 which are required to be performed by such party):
(a) the correctness on such date of the representations and warranties (i) of the parties
to this Agreement contained herein, in each of the other Operative Agreements and in each certificate
delivered pursuant to any Operative Agreement (including without limitation the Incorporated
Representations and Warranties) (ii) of the Series 0000-X Xxxx Xxxxxxxxx in the Bond Loan Documents, and
(iii) of the parties to the Bond Documents in each of the Bond Documents and each certificate delivered
pursuant to any Bond Document, in each case;
(b) the performance by (i) the parties to this Agreement of their respective agreements
contained herein and in the other Operative Agreements to be performed by them (ii) the Series 0000-X
Xxxx Xxxxxxxxx of its agreements contained in the Bond Loan Document and (iii) the parties to the Bond
Documents of their respective agreements contained therein, in each case, on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart of the Requisition,
appropriately completed;
(d) based upon the applicable Construction Contract and final Construction Budget which
shall satisfy the requirements of this Agreement and the Construction Agency Agreement, the Available
Commitments and the Available Holder Commitment (after deducting the Unfunded Amount) will be sufficient
to complete the Improvements;
(e) there shall not have occurred and be continuing any Default or Event of Default under
any of the Operative Agreements, Bond Loan Documents or Bond Documents and no Default or Event of
Default under any of the Operative Agreements, Bond Loan Documents or Bond Documents will have occurred
after giving effect to the Construction Advance requested by the applicable Requisition;
(f) the title insurance policy delivered in connection with the requirements of Section
5.3(g) shall provide for (or shall be endorsed to provide for) insurance in an amount at least equal to
the greater of (i) (x) $37,500,000 with respect to the Little Rock Property, or (y) $24,500,000 with
respect to the Phoenix Property and, (ii) the maximum total Property Cost of such Property and there
shall be no title change or exception objectionable to the Agent;
(g) with respect to any Advances for Hard Costs, the Construction Agent shall have
delivered to the Agent copies of the Plans and Specifications for the applicable Improvements and copies
of the Construction Contract and final Construction Budget and evidence of insurance, including
builder's risk insurance, for each such Property, and the Secured Parties shall have received a favorable
report from an independent third party consultant that such insurance is satisfactory and otherwise in
compliance with the terms of the Operative Agreements;
(h) the Construction Agent shall have delivered to the Agent invoices for, or other
reasonably satisfactory evidence of, any Transaction Expenses and other fees, expenses and disbursements
referenced in Sections 7.1(b) or 7.3(a) that are to be paid with the Advance;
(i) the Construction Agent shall have delivered, or caused to be delivered to the Agent,
invoices, Bills of Sale or other documents acceptable to the Agent, in each case with regard to any
Equipment or other components of such Property then being acquired with the proceeds of the Bonds or the
Loans and Holder Advances and naming the City of Little Rock, with respect to the Little Rock Property,
or the Lessor as the case may be, as purchaser and transferee;
(j) all taxes, fees and other charges in connection with the execution, delivery,
recording, filing and registration of the Operative Agreements, the Bond Loan Documents and the Bond
Documents shall have been paid or provisions for such payment shall have been made to the satisfaction
of the Agent and the Majority Secured Parties;
(k) since the date of the most recent audited Financial Statements (as such term is
defined in the Lessee Credit Agreement) of the Lessee, there shall not have occurred any event,
condition or state of facts which shall have or could reasonably be expected to have a Material Adverse
Effect, other than as specifically contemplated by the Operative Agreements;
(l) in the opinion of the Agent and its counsel, the transactions contemplated by the
Operative Agreements, Bond Loan Documents and Bond Documents do not and will not subject the Lessor, the
Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or
fines; and
(m) the conditions, if any, to the acquisitions of and leasing the relevant Little Rock
Property contemplated by the Bond Documents shall have been satisfied.
5.5. Additional Reporting and Delivery Requirements on Completion Date and on Construction Period
Termination Date.
On or prior to the Completion Date for each Property, the Construction Agent shall deliver to the Agent
an Officer's Certificate in the form attached hereto as Exhibit I or in such other form as is acceptable to the
Agent specifying (a) the address for such Property, (b) the Completion Date for such Property, (c) the aggregate
Property Cost for such Property, (d) detailed, itemized documentation supporting the asserted Property Cost
figures and (e) that all representations and warranties of the Construction Agent and Lessee in each of the
Operative Agreements and the Bond Documents and each certificate delivered pursuant thereto (including without
limitation the Incorporated Representations and Warranties) are true and correct as of the Completion Date. The
Agent shall have the right to contest the information contained in such Officer's Certificate. Furthermore, on
or prior to the Completion Date for each Property, the Construction Agent shall deliver or cause to be delivered
to the Agent (unless previously delivered to the Agent) originals of the following, each of which shall be in
form and substance acceptable to the Agent in its reasonable discretion: (w) a title insurance endorsement
regarding the title insurance policy delivered in connection with the requirements of Section 5.3(g), but only to
the extent such endorsement is necessary to provide for insurance in an amount at least equal to the maximum
total Property Cost and, if endorsed, the endorsement shall not include a title change or exception objectionable
to the Agent; (x) an as-built survey for such Property, (y) insurance certificates respecting such Property as
required hereunder and under the Lease Agreement, and (z) if requested by the Agent, amendments to the Lessor
Financing Statements executed by the appropriate parties. In addition, on the Completion Date for such Property
the Construction Agent covenants and agrees that the recording fees, documentary stamp taxes or similar amounts
required to be paid in connection with the related Mortgage Instrument and, with respect to the Little Rock
Property, the Bond Security Agreements shall be paid in an amount required by applicable law, subject, however,
to the obligations of the Lenders and the Holders to fund such costs to the extent required pursuant to Section
7.1.
5.6. The Construction Agent Delivery of Construction Budget Modifications.
The Construction Agent covenants and agrees to deliver to the Agent each month notification of any
modification to any Construction Budget regarding any Property if such modification increases the cost to
construct such Property (which, in the aggregate with all other modifications to such Construction Budget,
evidencing a cost increase of $200,000 or more or with respect to which the Available Commitments and the
Available Holder Commitments (after deducting the Unfunded Amount) will be insufficient to complete the
Improvements) in accordance with the terms of the Construction Agency Agreement; provided no Construction Budget
may be increased unless (a) the title insurance policies referenced in Section 5.3(g) are also modified or
endorsed, if necessary, to provide for insurance in an amount that satisfies the requirements of Section 5.4(f)
of this Agreement and (b) after giving effect to any such amendment, the Construction Budget remains in
compliance with the requirements of Section 5.4(d) of this Agreement.
5.7. Restrictions on Liens.
On each Property Closing Date, the Construction Agent shall cause each Property acquired by the Lessor
on such date to be free and clear of all Liens except those referenced in Sections 6.2(r)(i) through 6.2(r)(iv).
On each date a Property is either sold to a third party in accordance with the terms of the Operative Agreements
or, pursuant to Section 22.1(a) of the Lease Agreement, retained by the Lessor, the Lessee shall cause such
Property to be free and clear of all Liens (other than Lessor Liens and such other Liens that are expressly set
forth as title exceptions on the title commitment issued under Section 5.3(g) with respect to such Property (but
excluding from the exception contained in this parenthetical, liens created by the Bond Documents), to the extent
such title commitment has been approved by the Agent).
5.8. Joinder Agreement Requirements.
Each Domestic Subsidiary of each Credit Party formed or acquired subsequent to the Initial Closing Date
which shall become a "Guarantor" under the Lessee Credit Agreement shall contemporaneously therewith become a
Guarantor and shall satisfy the following conditions within thirty (30) days after the formation or acquisition
of such Domestic Subsidiary:
(a) such Domestic Subsidiary shall execute and deliver to the Agent a Joinder Agreement in
the form attached hereto as Exhibit J;
(b) such Domestic Subsidiary shall have delivered to the Agent (x) an Officer's
Certificate of such Domestic Subsidiary in the form attached hereto as Exhibit C, (y) a certificate of
the Secretary or an Assistant Secretary of such Domestic Subsidiary in the form attached hereto as
Exhibit D and (z) good standing certificates (or local equivalent) from the respective states where such
Domestic Subsidiary is incorporated or organized and where the principal place of business of such
Domestic Subsidiary is located as to its good standing in each such state;
(c) such Domestic Subsidiary shall have delivered to the Agent an opinion of counsel
(acceptable to the Agent) in the form attached hereto as Exhibit H; and
(d) the Agent shall have received such other documents, certificates and information as
the Agent shall have reasonably requested.
5.9. Special Provision Regarding the Little Rock Property.
The parties hereto agree that for purposes of the Operative Agreements, any Advance requested by the
Construction Agent under a Requisition to fund Property Costs (other than for Transaction Expenses) by the
Holders and the Lenders and any payment of Property Costs by the Lessor from such Advance, shall be deemed to
mean, solely with respect to Advances made with respect to the Little Rock Property, a request by the
Construction Agent for an Advance to fund the applicable Bond Loan by the Holders and the Lenders and the making
of the Bond Loan by the Lessor to the Series 0000-X Xxxx Xxxxxxxxx in order for the Series 0000-X Xxxx Xxxxxxxxx
to purchase the Series 2000-B Bond, the proceeds of which will be used by the Construction Agent, on behalf of
the City of Little Rock to pay Property Costs.
5.10. Payments.
All payments of principal, interest, Holder Advances, Holder Yield and other amounts to be made by the
Construction Agent or the Lessee under this Agreement or any other Operative Agreements shall be made to the
Agent at the office designated by the Agent from time to time in Dollars and in immediately available funds,
without setoff, deduction, or counterclaim. Subject to the definition of "Interest Period" in Appendix A
attached hereto, whenever any payment under this Agreement or any other Operative Agreements shall be stated to
be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time in such case shall be included in the computation of interest, Holder Yield and fees
payable pursuant to the Operative Agreements, as applicable and as the case may be.
5.11. Unilateral Right to Increase the Holder Commitments and the Lender Commitments.
Notwithstanding any other provision of any Operative Agreement or any objection by any Person (including
without limitation any objection by any Credit Party), (a) after an increase in the Holder Commitments has been
approved by the Majority Secured Parties, each Holder, in its sole discretion, may unilaterally elect to increase
its Holder Commitment for any reason including without limitation in order to fund amounts due and owing pursuant
to Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5, 7.6 and/or 11.8 and Section 2.1 of the Construction Agency
Agreement and (b) after an increase in the Lender Commitments has been approved by the Majority Secured Parties,
each Lender, in its sole discretion, may unilaterally elect to increase its Lender Commitment for any reason
including without limitation in order to fund amounts due and owing pursuant to Sections 7.1(a), 7.1(b), 7.3(a),
7.4, 7.5, 7.6 and/or 11.8 and Section 2.1 of the Construction Agency Agreement.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
6.1. Representations and Warranties of the Borrower.
Effective as of the Initial Closing Date and the date of each Advance, the Trust Company in its
individual capacity and as the Borrower, as indicated, represents and warrants to each of the other parties
hereto as follows, provided, that the representations in the following paragraphs (h), (j) and (k) are made
solely in its capacity as the Borrower:
(a) It is a national banking association and is duly organized and validly existing and in
good standing under the laws of the United States of America and has the power and authority to enter
into and perform its obligations under the Trust Agreement and (assuming due authorization, execution
and delivery of the Trust Agreement by the Holders) has the corporate and trust power and authority to
act as the Owner Trustee and to enter into and perform the obligations under each of the other Operative
Agreements, Bond Loan Documents and Bond Documents to which the Trust Company or the Owner Trustee, as
the case may be, is or will be a party and each other agreement, instrument and document to be executed
and delivered by it on or before such Closing Date in connection with or as contemplated by each such
Operative Agreement, Bond Loan Document or Bond Document to which the Trust Company or the Owner
Trustee, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement, Bond Loan
Document and Bond Document to which it is or will be a party, either in its individual capacity or
(assuming due authorization, execution and delivery of the Trust Agreement by the Holders) as the Owner
Trustee, as the case may be, has been duly authorized by all necessary action on its part and neither
the execution and delivery thereof, nor the consummation of the transactions contemplated thereby, nor
compliance by it with any of the terms and provisions thereof (i) does or will require any approval or
consent of any trustee or holders of any of its indebtedness or obligations, (ii) does or will
contravene any Legal Requirement relating to its banking or trust powers, (iii) does or will contravene
or result in any breach of or constitute any default under, or result in the creation of any Lien upon
any of its property under, (A) its charter or by-laws, or (B) any indenture, mortgage, chattel mortgage,
deed of trust, conditional sales contract, bank loan or credit agreement or other agreement or
instrument to which it is a party or by which it or its properties may be bound or affected, which
contravention, breach, default or Lien under clause (B) would materially and adversely affect its
ability, in its individual capacity or as the Owner Trustee, to perform its obligations under the
Operative Agreements, Bond Loan Documents and Bond Documents to which it is a party or (iv) does or will
require any Governmental Action by any Governmental Authority regulating its banking or trust powers;
(c) The Trust Agreement and, assuming the Trust Agreement is the legal, valid and binding
obligation of the Holders, each other Operative Agreement, Bond Loan Document and Bond Document to which
the Trust Company or the Owner Trustee, as the case may be, is or will be a party have been, or on or
before such Closing Date will be, duly executed and delivered by the Trust Company or the Owner Trustee,
as the case may be, and the Trust Agreement and each such other Operative Agreement, Bond Loan Document
and Bond Document to which the Trust Company or the Owner Trustee, as the case may be, is a party
constitutes, or upon execution and delivery will constitute, a legal, valid and binding obligation
enforceable against the Trust Company or the Owner Trustee, as the case may be, in accordance with the
terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it
is or will be a party, either in its individual capacity or as the Owner Trustee, before any
Governmental Authority that, if adversely determined, would materially and adversely affect its ability,
in its individual capacity or as the Owner Trustee, to perform its obligations under the Operative
Agreements, Bond Loan Documents and Bond Documents to which it is a party or would question the validity
or enforceability of any of the Operative Agreements, Bond Loan Documents and Bond Documents to which it
is or will become a party;
(e) It, either in its individual capacity or as the Owner Trustee, has not assigned or
transferred any of its right, title or interest in or under the Lease, the Construction Agency
Agreement, the Bond Loan Documents, the Bond Documents or its interest in any Property or any portion
thereof, except in accordance with the Operative Agreements, the Bond Loan Documents and the Bond
Documents;
(f) No Default or Event of Default under the Operative Agreements, Bond Loan Documents or
Bond Documents attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements, the Bond Loan Documents
and the Bond Documents, the proceeds of the Loans and Holder Advances shall not be applied by the Owner
Trustee, either in its individual capacity or as the Owner Trustee, for any purpose other than with
respect to the Little Rock Property, the making of a Bond Loan, and otherwise, the purchase and/or lease
of the Properties, the acquisition, installation and testing of the Equipment, the construction of
Improvements and the payment of Transaction Expenses and the fees, expenses and other disbursements
referenced in Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5, 7.6 and 11.8 of this Agreement, in each case
which accrue prior to the Rent Commencement Date with respect to a particular Property;
(h) Neither the Owner Trustee nor any Person authorized by the Owner Trustee to act on its
behalf has offered or sold any interest in the Trust Estate or the Notes except as permitted under the
Operative Agreements, or in any similar security relating to a Property, or in any security the offering
of which for the purposes of the Securities Act would be deemed to be part of the same offering as the
offering of the aforementioned securities to, or solicited any offer to acquire any of the same from,
any Person other than, in the case of the Notes, the Agent, and neither the Owner Trustee nor any Person
authorized by the Owner Trustee to act on its behalf will take any action which would subject, as a
direct result of such action alone, the issuance or sale of any interest in the Trust Estate or the
Notes to the provisions of Section 5 of the Securities Act or require the qualification of any Operative
Agreement, Bond Loan Document or Bond Document under the Trust Indenture Act of 1939, as amended;
(i) The Owner Trustee's principal place of business, chief executive office and office
where the documents, accounts and records relating to the transactions contemplated by this Agreement
and each other Operative Agreement, Bond Loan Document and Bond Document are kept are located at 00
Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000;
(j) The Owner Trustee is not engaged principally in, and does not have as one (1) of its
important activities, the business of extending credit for the purpose of purchasing or carrying any
margin stock (within the meaning of Regulation U of the Board of Governors of the Federal Reserve System
of the United States), and no part of the proceeds of the Loans or the Holder Advances will be used by
it to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions
of Regulations T, U, or X of the Board of Governors of the Federal Reserve System of the United States;
(k) The Owner Trustee is not an "investment company" or a company controlled by an
"investment company" within the meaning of the Investment Company Act;
(l) Each Property is free and clear of all Lessor Liens attributable to the Owner Trustee,
either in its individual capacity or as the Owner Trustee; and
(m) The Owner Trustee, in its trust capacity, is not a party to any documents, instruments
or agreements other than the Operative Agreements, the Bond Loan Documents or the Bond Documents
executed by the Owner Trustee, in its trust capacity.
6.1.A. Representations and Warranties of the Series 2000-B Bond Purchaser.
Effective as of the Initial Closing Date and the date of each Advance, FSN in its individual capacity
and as the Series 0000-X Xxxx Xxxxxxxxx, as indicated, represents and warrants to each of the other parties
hereto as follows, provided, that the representations in the following paragraphs (h), (j) and (k) are made
solely in its capacity as the Series 0000-X Xxxx Xxxxxxxxx:
(a) It is a trust company and is duly organized and validly existing and in good standing
under the laws of the State of Nevada and has the power and authority to enter into and perform its
obligations under the Trust Agreement (AC Trust 2000-2) and (assuming due authorization, execution and
delivery of the Trust Agreement (AC Trust 2000-2) by the Holders) has the corporate and trust power and
authority to act as the Series 0000-X Xxxx Xxxxxxxxx thereunder and to enter into and perform the
obligations under each of the other Operative Agreements, the Bond Loan Documents and the Bond Documents
to which FSN or the Series 0000-X Xxxx Xxxxxxxxx, as the case may be, is or will be a party and each
other agreement, instrument and document to be executed and delivered by it on or before such Closing
Date in connection with or as contemplated by each such Operative Agreement, Bond Loan Document and Bond
Document to which FSN or the Series 0000-X Xxxx Xxxxxxxxx, as the case may be, is or will be a party;
(b) The execution, delivery and performance of each Operative Agreement, Bond Loan
Document and Bond Document to which it is or will be a party, either in its individual capacity or
(assuming due authorization, execution and delivery of the Trust Agreement (AC Trust 2000-2) by the
Holders) as the Series 0000-X Xxxx Xxxxxxxxx, as the case may be, has been duly authorized by all
necessary action on its part and neither the execution and delivery thereof, nor the consummation of the
transactions contemplated thereby, nor compliance by it with any of the terms and provisions thereof (i)
does or will require any approval or consent of any trustee or holders of any of its indebtedness or
obligations, (ii) does or will contravene any Legal Requirement relating to its banking or trust powers,
(iii) does or will contravene or result in any breach of or constitute any default under, or result in
the creation of any Lien upon any of its property under, (A) its charter or by-laws, or (B) any
indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, bank loan or credit
agreement or other agreement or instrument to which it is a party or by which it or its properties may
be bound or affected, which contravention, breach, default or Lien under clause (B) would materially and
adversely affect its ability, in its individual capacity or as the Series 0000-X Xxxx Xxxxxxxxx, to
perform its obligations under the Operative Agreements, the Bond Loan Documents or Bond Documents, to
which it is a party or (iv) does or will require any Governmental Action by any Governmental Authority
regulating its banking or trust powers;
(c) The Trust Agreement (AC Trust 2000-2) and, assuming the Trust Agreement (AC Trust
2000-2) is the legal, valid and binding obligation of the Holders, each other Operative Agreement, Bond
Loan Document and Bond Document to which FSN or the Series 0000-X Xxxx Xxxxxxxxx, as the case may be, is
or will be a party have been, or on or before such Closing Date will be, duly executed and delivered by
FSN or the Series 0000-X Xxxx Xxxxxxxxx, as the case may be, and the Trust Agreement (AC Trust 2000-2)
and each such other Operative Agreement, Bond Loan Document and Bond Document to which FSN or the Series
0000-X Xxxx Xxxxxxxxx, as the case may be, is a party constitutes, or upon execution and delivery will
constitute, a legal, valid and binding obligation enforceable against FSN or the Series 0000-X Xxxx
Xxxxxxxxx, as the case may be, in accordance with the terms thereof;
(d) There is no action or proceeding pending or, to its knowledge, threatened to which it
is or will be a party, either in its individual capacity or as the Series 0000-X Xxxx Xxxxxxxxx, before
any Governmental Authority that, if adversely determined, would materially and adversely affect its
ability, in its individual capacity or as the Series 0000-X Xxxx Xxxxxxxxx, to perform its obligations
under the Operative Agreements, the Bond Loan Documents and the Bond Documents to which it is a party or
would question the validity or enforceability of any of the Operative Agreements, the Bond Loan
Documents and the Bond Documents to which it is or will become a party;
(e) It, either in its individual capacity or as the Series 0000-X Xxxx Xxxxxxxxx, has not
assigned or transferred any of its right, title or interest in or under the Bond Loan Documents or the
Bond Documents or its interest in any Property or any portion thereof, except in accordance with the
Operative Agreements, the Bond Loan Documents and the Bond Documents;
(f) No Default or Event of Default under the Operative Agreements, the Bond Loan Documents
or the Bond Documents attributable to it has occurred and is continuing;
(g) Except as otherwise contemplated in the Operative Agreements and the Bond Loan
Documents, the proceeds of the Bond Loans shall not be applied by the Series 0000-X Xxxx Xxxxxxxxx,
either in its individual capacity or as the Series 0000-X Xxxx Xxxxxxxxx, for any purpose other than the
acquisition of the Series 2000-B Bond in accordance with the terms of the Operative Agreements, the Bond
Loan Documents and the Bond Documents;
(h) Neither the Series 2000-B Bond Purchaser nor any Person authorized by the Series
0000-X Xxxx Xxxxxxxxx to act on its behalf has offered or sold any interest in the Trust Estate (AC
Trust 2000-2) or the Bond Note except as otherwise permitted under the Operative Agreements, or in any
similar security relating to a Property, or in any security the offering of which for the purposes of
the Securities Act would be deemed to be part of the same offering as the offering of the aforementioned
securities to, or solicited any offer to acquire any of the same from, any Person other than, in the
case of the Bond Notes, the Owner Trustee, and neither the Series 0000-X Xxxx Xxxxxxxxx nor any Person
authorized by the Series 0000-X Xxxx Xxxxxxxxx to act on its behalf will take any action which would
subject, as a direct result of such action alone, the issuance or sale of any interest in the Trust
Estate (AC Trust 2000-2) or the Bond Note to the provisions of Section 5 of the Securities Act or
require the qualification of any Operative Agreement, Bond Loan Document or Bond Document under the
Trust Indenture Act of 1939, as amended;
(i) The Series 2000-B Bond Purchaser's principal place of business, chief executive office
and office where the documents, accounts and records relating to the transactions contemplated by this
Agreement and each other Operative Agreement, Bond Loan Document and Bond Document are kept are located
at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000;
(j) The Series 0000-X Xxxx Xxxxxxxxx is not engaged principally in, and does not have as
one (1) of its important activities, the business of extending credit for the purpose of purchasing or
carrying any margin stock (within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System of the United States), and no part of the proceeds of the Bond Loan will be used by it to
purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or
carrying any such margin stock or for any purpose that violates, or is inconsistent with, the provisions
of Regulations T, U, or X of the Board of Governors of the Federal Reserve System of the United States;
(k) The Series 2000-B Bond Purchaser is not an "investment company" or a company
controlled by an "investment company" within the meaning of the Investment Company Act;
(l) Each Property is free and clear of all Lessor Liens attributable to the Series 0000-X
Xxxx Xxxxxxxxx, either in its individual capacity or as the Series 0000-X Xxxx Xxxxxxxxx; and
(m) The Series 2000-B Bond Purchaser, in its trust capacity, is not a party to any
documents, instruments or agreements other than the Operative Agreements or Bond Loan Documents executed
by the Series 0000-X Xxxx Xxxxxxxxx, in its trust capacity.
6.2. Representations and Warranties of the Credit Parties.
Effective as of the Initial Closing Date, the date of each Advance, the date each Domestic Subsidiary
delivers a Joinder Agreement and the Rent Commencement Date, each Credit Party represents and warrants to each of
the other parties hereto that:
(a) The Incorporated Representations and Warranties are true and correct (unless such
relate solely to an earlier point in time) and the Lessee has delivered to the Agent the financial
statements and other reports referred to in Section 3.04(a) of the Lessee Credit Agreement (except that
such financial statements and reports shall be as of and for the fiscal year ended March 31, 2000);
(b) The execution and delivery by each Credit Party of this Agreement and the other
applicable Operative Agreements and Bond Documents as of such date and the performance by each Credit
Party of its respective obligations under this Agreement and the other applicable Operative Agreements
and Bond Documents are within the corporate, partnership or limited liability company (as the case may
be) powers of each Credit Party, have been duly authorized by all necessary corporate, partnership or
limited liability company (as the case may be) action on the part of each Credit Party (including
without limitation any necessary shareholder action), have been duly executed and delivered, have
received all necessary governmental approval, and do not and will not (i) violate any Legal Requirement
which is binding on any Credit Party or any of its Subsidiaries, (ii) contravene or conflict with, or
result in a breach of, any provision of the Articles of Incorporation, By-Laws or other organizational
documents of any Credit Party or any of its Subsidiaries or of any agreement, indenture, instrument or
other document which is binding on any Credit Party or any of its Subsidiaries or (iii) result in, or
require, the creation or imposition of any Lien (other than pursuant to the terms of the Operative
Agreements, the Bond Loan Documents and the Bond Documents) on any asset of any Credit Party or any of
its Subsidiaries;
(c) This Agreement and the other applicable Operative Agreements and Bond Documents,
executed prior to and as of such date by any Credit Party, constitute the legal, valid and binding
obligation of such Credit Party, as applicable, enforceable against such Credit Party, as applicable, in
accordance with their terms. Each Credit Party has executed the various Operative Agreements and Bond
Documents required to be executed by such Credit Party as of such date;
(d) There are no material actions, suits or proceedings pending or, to our knowledge,
threatened against any Credit Party in any court or before any Governmental Authority (nor shall any
order, judgment or decree have been issued or proposed to be issued by any Governmental Authority to set
aside, restrain, enjoin or prevent the full performance of any Operative Agreement or any transaction
contemplated thereby) that (i) concern any Property or any Credit Party's interest therein, (ii)
question the validity or enforceability of any Operative Agreement or Bond Document to which any Credit
Party is a party or the overall transaction described in the Operative Agreements and Bond Documents to
which any Credit Party is a party or (iii) have or could reasonably be expected to have a Material
Adverse Effect; provided, for purposes of disclosure, the Credit Parties have described the litigation
set forth on Exhibit K;
(e) No Governmental Action by any Governmental Authority or other authorization,
registration, consent, approval, waiver, notice or other action by, to or of any other Person pursuant
to any Legal Requirement, contract, indenture, instrument or agreement or for any other reason is
required to authorize or is required in connection with (i) the execution, delivery or performance of
any Operative Agreement or Bond Document, (ii) the legality, validity, binding effect or enforceability
of any Operative Agreement or Bond Document, (iii) the acquisition, ownership, construction, completion,
occupancy, operation, leasing or subleasing of any Property or (iv) any Advance, in each case, except
those which have been obtained and are in full force and effect;
(f) Upon the execution and delivery of each Lease Supplement to the Lease becoming
effective, (i) the Lessee will have unconditionally accepted the Property subject to the Lease
Supplement and will have a valid and subsisting leasehold interest in such Property, subject only to the
Permitted Liens, and (ii) no offset will exist with respect to any Rent or other sums payable under the
Lease;
(g) Except as otherwise contemplated by the Operative Agreements or the Bond Documents,
the Construction Agent shall not use the proceeds of the Bonds or of any Holder Advance or Loan for any
purpose other than the purchase and/or lease of the Properties, the acquisition, installation and
testing of the Equipment, the construction of Improvements and the payment of Transaction Expenses and
the fees, expenses and other disbursements referenced in Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5, 7.6
and 11.8 of this Agreement, in each case which accrue prior to the Rent Commencement Date with respect
to a particular Property;
(h) All information heretofore or contemporaneously herewith furnished by each Credit
Party or its Subsidiaries to the Agent, the Owner Trustee, any Lender or any Holder for purposes of or
in connection with this Agreement and the transactions contemplated hereby is, and all information
hereafter furnished by or on behalf of each Credit Party or its Subsidiaries to the Agent, the Owner
Trustee, any Lender or any Holder pursuant hereto or in connection herewith will be, true and accurate
in every material respect on the date as of which such information is dated or certified, and such
information, taken as a whole, does not and will not omit to state any material fact necessary to make
such information, taken as a whole, not misleading;
(i) The principal place of business, chief executive office and office of the Construction
Agent and the Lessee where the documents, accounts and records relating to the transactions contemplated
by this Agreement and each other Operative Agreement and Bond Document are kept are located at
0 Xxxxxxxxxxx Xxx, Xxxxxx Xxxx, Xxxxxxxx 00000 and the states of formation and the chief executive
offices of each other Credit Party are located at the places set forth in Exhibit L;
(j) The representations and warranties of each Credit Party set forth in any of the
Operative Agreements and Bond Documents are true and correct in all material respects on and as of each
such date as if made on and as of such date. Each Credit Party is in all material respects in
compliance with its obligations under the Operative Agreements and Bond Documents and there exists no
Default or Event of Default under any of the Operative Agreements or the Bond Documents which is
continuing and which has not been cured within any cure period expressly granted under the terms of the
applicable Operative Agreement or Bond Document, as the case may be or otherwise waived in accordance
with the applicable Operative Agreement or Bond Document, as the case may be. No Default or Event of
Default will occur under any of the Operative Agreements or Bond Documents as a result of, or after
giving effect to, the Advance requested by the Requisition on the date of each Advance;
(k) As of each Property Closing Date, the date of each subsequent Advance and the Rent
Commencement Date only, each Property then being financed consists of (i) unimproved Land or (ii) Land
and existing Improvements thereon which Improvements are either suitable for occupancy at the time of
acquisition or ground leasing or will be renovated and/or modified in accordance with the terms of this
Agreement. Each Property then being financed is located at the location set forth on the applicable
Requisition, each of which is in one (1) of the Approved States;
(l) As of each Property Closing Date, the date of each subsequent Advance and the Rent
Commencement Date only, the Lessor (or solely with respect to the Little Rock Property, the City of
Little Rock) has good and marketable fee simple title to each Property (and with respect to the Little
Rock Property, a valid leasehold interest enforceable against the City of Little Rock in accordance with
the terms of the Head Lease), or, if any Property is the subject of a Ground Lease, the Lessor will have
a valid ground leasehold interest enforceable against the ground lessor of such Property in accordance
with the terms of such Ground Lease, subject only to (i) such Liens referenced in Sections 6.2(r)(i)
through (iv) on the applicable Property Closing Date and (ii) subject to Section 5.7, Permitted Liens
after the applicable Property Closing Date;
(m) As of each Property Closing Date, the date of each subsequent Advance and the Rent
Commencement Date only, no portion of any Property is located in an area identified as a special flood
hazard area by the Federal Emergency Management Agency or other applicable agency, or if any such
Property is located in an area identified as a special flood hazard area by the Federal Emergency
Management Agency or other applicable agency, then flood insurance has been obtained for such Property
in accordance with Section 14.2(b) of the Lease and in accordance with the National Flood Insurance Act
of 1968, as amended;
(n) As of each Property Closing Date, the date of each subsequent Advance and the Rent
Commencement Date only, each Property complies with all Insurance Requirements and all standards of
Lessee with respect to similar properties owned by Lessee;
(o) As of each Property Closing Date, the date of each subsequent Advance and the Rent
Commencement Date only, each Property complies with all Legal Requirements as of such date (including
without limitation all zoning and land use laws and Environmental Laws), except to the extent that
failure to comply therewith, individually or in the aggregate, shall not have and could not reasonably
be expected to have a Material Adverse Effect;
(p) As of each Property Closing Date, the date of each subsequent Advance and the Rent
Commencement Date only, all utility services and facilities necessary for the construction and operation
of the Improvements and the installation and operation of the Equipment regarding each Property
(including without limitation gas, electrical, water and sewage services and facilities) are available
at the applicable Land or will be constructed prior to the Completion Date for such Property;
(q) As of each Property Closing Date, the date of each subsequent Advance and the Rent
Commencement Date only, acquisition, installation and testing of the Equipment (if any) and construction
of the Improvements (if any) to such date shall have been performed in a good and workmanlike manner,
substantially in accordance with the applicable Plans and Specifications;
(r) (i) The Security Documents create, as security for the Obligations (as such term
is defined in the Security Agreement), valid and enforceable security interests in, and Liens
on, all of the Collateral, in favor of the Agent, for the ratable benefit of the Lenders and
the Holders, as their respective interests appear in the Operative Agreements, and such
security interests and Liens are subject to no other Liens other than Liens that are expressly
set forth as title exceptions on the title commitment issued under Section 5.3(g) with respect
to the applicable Property, to the extent such title commitment has been approved by the
Agent. Upon recordation of the Mortgage Instrument in the real estate recording office in the
applicable Approved State identified by the Construction Agent or the Lessee, the Lien created
by the Mortgage Instrument in the real property described therein shall be a perfected first
priority mortgage Lien on such real property (or, in the case of the Head Lease or a Ground
Lease, on the leasehold estate under the Head Lease or such Ground Lease, as the case may be)
in favor of the Agent, for the ratable benefit of the Lenders and the Holders, as their
respective interests appear in the Operative Agreements. To the extent that the security
interests in the portion of the Collateral comprised of personal property can be perfected by
filing in the filing offices in the applicable Approved States or elsewhere identified by the
Construction Agent or the Lessee, upon filing of the Lender Financing Statements in such filing
offices, the security interests created by the Security Agreement shall be perfected first
priority security interests in such personal property in favor of the Agent, for the ratable
benefit of the Lenders and the Holders, as their respective interests appear in the Operative
Agreements;
(ii) The Lease Agreement creates, as security for the obligations of the Lessee
under the Lease Agreement, valid and enforceable security interests in, and Liens on, each
Property leased thereunder, in favor of the Lessor, and such security interests and Liens are
subject to no other Liens other than Liens that are expressly set forth as title exceptions on
the title commitment issued under Section 5.3(g) with respect to the applicable Property, to
the extent such title commitment has been approved by the Agent. Upon recordation of the
memorandum of the Lease Agreement and the memorandum of a Ground Lease (or, in either case, a
short form lease) in the real estate recording office in the applicable Approved State
identified by the Construction Agent or the Lessee, the Lien created by the Lease Agreement in
the real property described therein shall be a perfected first priority mortgage Lien (subject
to the Lien of the Mortgage Instrument referenced in Section 6.2(r)(i)) on such real property
(or, in the case of the Head Lease or a Ground Lease, the leasehold estate under the Head
Lease or Ground Lease) in favor of the Lessor. To the extent that the security interests in
the portion of any Property comprised of personal property can be perfected by the filing in
the filing offices in the applicable Approved State or elsewhere identified by the Construction
Agent or the Lessee upon filing of the Lessor Financing Statements in such filing offices, a
security interest created by the Lease Agreement shall be perfected first priority security
interests in such personal property in favor of the Lessor, which rights pursuant to the Lessor
Financing Statements are assigned to the Agent, for the ratable benefit of the Lenders and the
Holders, as their respective interests appear in the Operative Agreements;
(iii) the Bond Indenture creates, as security for the City of Little Rock's
obligations under the Bond Documents, valid and enforceable security interests in, and Liens
on, the Bond Trust Estate, in favor of the Bond Trustee, for the benefit of the Series 0000-X
Xxxx Xxxxxxxxx, and such security interest and Liens are subject to no other Liens (and are
specifically subordinate to the rights of the Lessor under the Head Lease) other than Liens
which are expressly set forth as title exceptions on the title commitment issued under 5.3(g)
with respect to the Little Rock Property, to the extent such commitment has been approved by
the Agent. Upon recordation of the Bond Indenture in the real estate records of the Circuit
Clerk and Ex-officio Recorder of Pulaski County, Arkansas, the Lien created by the Bond
Indenture in the real property described therein shall be a perfected mortgage Lien on such
real property in favor of the Bond Trustee, for the benefit of the Series 0000-X Xxxx
Xxxxxxxxx. To the extent that security interests in the portion of the Bond Trust Estate
comprised of personal property can be perfected by filing in the filing offices of the State of
Arkansas or elsewhere identified by the Construction Agent or the Lessee, upon filing of the
Bond Financing Statements in such filing offices, the security interests created by the Bond
Indenture shall be perfected in such personal property, subject only to the prior rights of the
Lessor under the Head Lease, in favor of the Bond Trustee, for the benefit of the Series 0000-X
Xxxx Xxxxxxxxx.
(iv) The Assignments create, as security for the Series 2000-B Bond Purchaser's
obligations under the Bond Loan Note and in consideration of removing the Series 2000-A Bond
Purchaser as a Guarantor of the Lessee's obligations under the Operative Agreements, a valid
and enforceable assignment of the Series 2000-A Bond Purchaser's and Series 2000-B Bond
Purchaser's rights under the Bond Documents. Other than taking an assignment of Series 2000-B
Bonds pursuant to the Series 2000-B Assignment, no other steps are necessary in order for the
Agent to perfect its security interest in the Bond Documents created by the Bond Loan Security
Agreement.
(v) The Head Lease creates a valid and good and marketable leasehold interest in
the Little Rock Property enforceable in accordance with its terms.
(s) The Plans and Specifications for each Property will be prepared prior to the
commencement of construction in accordance with all applicable Legal Requirements (including without
limitation all applicable Environmental Laws and building, planning, zoning and fire codes), except to
the extent the failure to comply therewith, individually or in the aggregate, shall not have and could
not reasonably be expected to have a Material Adverse Effect. Upon completion of the Improvements for
each Property in accordance with the applicable Plans and Specifications, such Improvements will be
within any building restriction lines and will not encroach in any manner onto any adjoining land
(except as permitted by express written easements, which have been approved by the Agent);
(t) As of the Rent Commencement Date only, each Property shall be improved in accordance
with the applicable Plans and Specifications in a good and workmanlike manner and shall be operational;
(u) As of the Initial Closing Date, each Significant Subsidiary (formed prior to or on
such date) shall have executed this Agreement in its capacity as a Guarantor;
(v) As of each Property Closing Date only, each Property has been acquired or ground
leased pursuant to a Ground Lease at a price that is not in excess of fair market value or fair market
rental value, as the case may be;
SECTION 6B. GUARANTY
6B.1. Guaranty of Payment and Performance.
Subject to Section 6B.7, each Guarantor hereby, jointly and severally, unconditionally guarantees to
each Financing Party the prompt payment and performance of the Company Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise) or when such is otherwise to be
performed; provided, notwithstanding the foregoing, the obligations of the Guarantors under this Section 6B shall
not constitute a direct guaranty of the indebtedness of the Lessor evidenced by the Notes but rather a guaranty
of the Company Obligations arising under the Operative Agreements and the Bond Documents. This Section 6B is a
guaranty of payment and performance and not of collection and is a continuing guaranty and shall apply to all
Company Obligations whenever arising. All rights granted to the Financing Parties under this Section 6B shall be
subject to the provisions of Section 8.2(h) and 8.6.
6B.2. Obligations Unconditional.
Each Guarantor agrees that the obligations of the Guarantors hereunder are absolute and unconditional,
irrespective of the value, genuineness, validity, regularity or enforceability of any of the Operative Agreements
or the Bond Documents, or any other agreement or instrument referred to therein, or any substitution, release or
exchange of any other guarantee of or security for any of the Company Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a
legal or equitable discharge or defense of a surety, guarantor or co-obligor, it being the intent of this Section
6B.2 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all
circumstances. Each Guarantor agrees that this Section 6B may be enforced by the Financing Parties without the
necessity at any time of resorting to or exhausting any other security or collateral and without the necessity at
any time of having recourse to the Notes, the Certificates, any other of the Operative Agreements, the Bond Loan
Documents, the Bond Documents or any collateral, if any, hereafter securing the Company Obligations or otherwise
and each Guarantor hereby waives the right to require the Financing Parties to proceed against the Construction
Agent, the Lessee or any other Person (including without limitation a co-guarantor) or to require the Financing
Parties to pursue any other remedy or enforce any other right. Each Guarantor further agrees that it hereby
waives any and all right of subrogation, indemnity, reimbursement or contribution against the Lessee and the
Construction Agent or any other Guarantor of the Company Obligations for amounts paid under this Section 6B until
such time as the Loans, Holder Advances, accrued but unpaid interest, accrued but unpaid Holder Yield and all
other amounts owing under the Operative Agreements have been paid in full. Without limiting the generality of
the waiver provisions of this Section 6B, each Guarantor hereby waives any rights to require the Financing
Parties to proceed against the Construction Agent, the Lessee or any co-guarantor or to require Lessor to pursue
any other remedy or enforce any other right, including without limitation, any and all rights under N.C. Gen.
Stat. Β§ 26-7 through 26-9. Each Guarantor further agrees that nothing contained herein shall prevent the
Financing Parties from suing on any Operative Agreement, Bond Loan Document or Bond Document or foreclosing any
security interest in or Lien on any collateral, if any, securing the Company Obligations or from exercising any
other rights available to it under any Operative Agreement, Bond Loan Document or Bond Document or any other
instrument of security, if any, and the exercise of any of the aforesaid rights and the completion of any
foreclosure proceedings shall not constitute a discharge of any Guarantor's obligations hereunder; it being the
purpose and intent of each Guarantor that its obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances; provided that any amounts due under this Section 6B which are paid
to or for the benefit of any Financing Party shall reduce the Company Obligations by a corresponding amount
(unless required to be rescinded at a later date). Neither any Guarantor's obligations under this Section 6B nor
any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever
by an impairment, modification, change, release or limitation of the liability of the Construction Agent or the
Lessee or by reason of the bankruptcy or insolvency of the Construction Agent or the Lessee. Each Guarantor
waives any and all notice of the creation, renewal, extension or accrual of any of the Company Obligations and
notice of or proof of reliance by any Financing Party upon this Section 6B or acceptance of this Section 6B. The
Company Obligations shall conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Section 6B. All dealings between the Construction Agent, the
Lessee and any of the Guarantors, on the one hand, and the Financing Parties, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon this Section 6B.
6B.3. Modifications.
Each Guarantor agrees that (a) all or any part of the security now or hereafter held for the Company
Obligations, if any, may be exchanged, compromised or surrendered from time to time; (b) no Financing Party shall
have any obligation to protect, perfect, secure or insure any such security interests, liens or encumbrances now
or hereafter held, if any, for the Company Obligations or the properties subject thereto; (c) the time or place
of payment of the Company Obligations may be changed or extended, in whole or in part, to a time certain or
otherwise, and may be renewed or accelerated, in whole or in part; (d) the Construction Agent, the Lessee and any
other party liable for payment under the Operative Agreements, Bond Loan Documents and Bond Documents may be
granted indulgences generally; (e) any of the provisions of the Notes, the Certificates, any of the other
Operative Agreements, the Bond Loan Documents or the Bond Documents may be modified, amended or waived; (f) any
party (including any co-guarantor) liable for the payment thereof may be granted indulgences or be released; and
(g) any deposit balance for the credit of the Construction Agent, the Lessee or any other party liable for the
payment of the Company Obligations or liable upon any security therefor may be released, in whole or in part, at,
before or after the stated, extended or accelerated maturity of the Company Obligations, all without notice to or
further assent by such Guarantor, which shall remain bound thereon, notwithstanding any such exchange,
compromise, surrender, extension, renewal, acceleration, modification, indulgence or release.
6B.4. Waiver of Rights.
Each Guarantor expressly waives to the fullest extent permitted by applicable law: (a) notice of
acceptance of this Section 6B by any Financing Party and of all extensions of credit or other Advances to the
Construction Agent and the Lessee by the Lenders pursuant to the terms of the Operative Agreements; (b)
presentment and demand for payment or performance of any of the Company Obligations; (c) protest and notice of
dishonor or of default with respect to the Company Obligations or with respect to any security therefor; (d)
notice of any Financing Party obtaining, amending, substituting for, releasing, waiving or modifying any security
interest, lien or encumbrance, if any, hereafter securing the Company Obligations, or any Financing Party's
subordinating, compromising, discharging or releasing such security interests, liens or encumbrances, if any; and
(e) all other notices to which such Guarantor might otherwise be entitled. Notwithstanding anything to the
contrary herein, each Guarantor's payments hereunder shall immediately be due after written demand by the Agent
for such payment (unless the Company Obligations are automatically accelerated pursuant to the applicable
provisions of the Operative Agreements in which case the Guarantors' payments shall be automatically due).
6B.5. Reinstatement.
The obligations of the Guarantors under this Section 6B shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of any Person in respect of the Company Obligations is
rescinded or must be otherwise restored by any holder of any of the Company Obligations, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify
each Financing Party on demand for all reasonable costs and expenses (including, without limitation, reasonable
fees of counsel) incurred by any Financing Party in connection with such rescission or restoration, including
without limitation any such costs and expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
6B.6. Remedies.
The Guarantors agree that, as between the Guarantors, on the one hand, and each Financing Party, on the
other hand, the Company Obligations may be declared to be forthwith due and payable as provided in the applicable
provisions of the Operative Agreements (and shall be deemed to have become automatically due and payable in the
circumstances provided therein) notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing such Company Obligations from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or such Company Obligations being deemed to have become
automatically due and payable), such Company Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors in accordance with the applicable provisions of the
Operative Agreements.
6B.7. Limitation of Guaranty.
Notwithstanding any provision to the contrary contained herein or in any of the other Operative
Agreements, to the extent the obligations of any Guarantor shall be adjudicated to be invalid or unenforceable
for any reason (including without limitation because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such Guarantor hereunder shall be limited to the
maximum amount that is permissible under applicable law (whether federal or state and including without
limitation the Bankruptcy Code).
Subject to Section 6B.5, upon the satisfaction of the Company Obligations in full, regardless of the
source of payment, the Guarantors' obligations hereunder shall be deemed satisfied, discharged and terminated
other than indemnifications set forth herein that expressly survive.
6B.8. Payment of Amounts to the Agent.
Each Financing Party hereby instructs each Guarantor, and each Guarantor hereby acknowledges and agrees,
that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the
Security Agreement and the Mortgage Instruments have been released any and all Rent (excluding Excepted Payments
which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind
or type under any of the Operative Agreements due and owing or payable to any Person shall instead be paid
directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as
appropriate) or as the Agent or the Majority Secured Parties may direct from time to time for allocation and
distribution in accordance with the procedures set forth in Section 8.7 hereof.
6B.9. Release of Guarantors.
Each Financing Party hereby agrees that (a) the Agent or the Majority Secured Parties shall be permitted
to release any Guarantor from its guaranty obligations under this Section 6B without the consent of any other
Financing Party if the release is granted in connection with a disposition by the applicable Credit Party of all
the shares of stock or partnership or other equity interest in such Guarantor and such disposition is permitted
pursuant to the applicable provisions of the Operative Agreements and the Lessee Credit Agreement and (b) the
Agent or the Majority Secured Parties shall be permitted to release any Guarantor from its guaranty obligations
under this Section 6B without the consent of any other Financing Party if the release is requested by Acxiom in
connection with a dissolution of the Guarantor, subject to Acxiom providing to the Agent written representations
to the effect that such Guarantor has no business operations and no assets.
SECTION 7. PAYMENT OF CERTAIN EXPENSES.
7.1. Transaction Expenses.
(a) The Lessor agrees on the Initial Closing Date, to pay, or cause to be paid, all
Transaction Expenses arising on or before the Initial Closing Date, including without limitation all
reasonable fees, expenses and disbursements of the various legal counsels for the Lessor and the Agent
in connection with the transactions contemplated by the Operative Agreements, the Bond Loan Documents
and the Bond Documents and incurred in connection with such Initial Closing Date, the initial fees and
expenses of the Owner Trustee due and payable on such Initial Closing Date, the initial fees and
expenses of the Trustee due and payable on such Initial Closing Date, the initial fees and expenses of
the Bond Trustee due and payable all fees, taxes and expenses for the recording, registration and filing
of documents and all other reasonable fees, expenses and disbursements incurred in connection with such
Initial Closing Date; provided, however, the Lessor shall pay such amounts described in this Section
7.1(a) only if funds are made available by the Lenders and the Holders in an amount sufficient to allow
such payment. On the Initial Closing Date after satisfaction of the conditions precedent for such date
(excluding the requirement that a Requisition be delivered), the Holders shall make Holder Advances and
the Lenders shall make Loans to the Lessor to pay for the Transaction Expenses, fees, expenses and other
disbursements referenced in this Section 7.1(a).
(b) Assuming no Default or Event of Default shall have occurred and be continuing and only
for the period prior to the Rent Commencement Date, the Lessor agrees on each Property Closing Date, on
the date of any Construction Advance and on the Completion Date to pay, or cause to be paid, all
Transaction Expenses including without limitation all reasonable fees, expenses and disbursements of the
various legal counsels for the Lessor and the Agent in connection with the transactions contemplated by
the Operative Agreements, the Bond Loan Documents and the Bond Documents and billed in connection with
such Advance or such Completion Date, all amounts described in Section 7.1(a) of this Agreement which
have not been previously paid, the annual fees and reasonable out-of-pocket expenses of the Owner
Trustee (to the extent payable), the annual fees and reasonable out-of-pocket expenses of the Trustee
(to the extent payable), the annual fees and reasonable out-of-pocket expenses of the Bond Trustee (to
the extent payable) all fees, expenses and disbursements incurred with respect to the various items
referenced in Sections 5.3, 5.4 and/or 5.5 (including without limitation any premiums for title
insurance policies and charges for any updates to such policies) and all other reasonable fees, expenses
and disbursements in connection with such Advance or such Completion Date including without limitation
all expenses relating to and all fees, taxes and expenses for the recording, registration and filing of
documents and during the Commitment Period, all fees, expenses and costs referenced in Sections 7.1(a),
7.3(a), 7.4, 7.5 and 7.6, provided, however, the Lessor shall pay such amounts described in this
Section 7.1(b) only if funds are made available by the Lenders and the Holders in an amount sufficient to
allow such payment. On each Property Closing Date, on the date of any Construction Advance or any
Completion Date, after satisfaction of the conditions precedent for such date (excluding the requirement
that a Requisition be delivered), the Holders shall make a Holder Advance and the Lenders shall make
Loans to the Lessor to pay for the Transaction Expenses, fees, expenses and other disbursements
referenced in this Section 7.1(b).
(c) All fees payable pursuant to the Operative Agreements shall be calculated on the basis
of a year of three hundred sixty (360) days for the actual days elapsed.
7.2. Brokers' Fees.
The Lessee represents and warrants that no brokers', finders' or placements fees or commissions, will be
payable in connection with the transactions contemplated by this Agreement, the other Operative Agreements, the
Bond Loan Documents and the Bond Documents.
7.3. Certain Fees and Expenses.
(a) Assuming no Default or Event of Default shall have occurred and be continuing and only for the
period prior to the Rent Commencement Date, the Lessor agrees to pay or cause to be paid (i) the initial and
annual Owner Trustee's, Bond Trustee's and Trustee's fee, all reasonable expenses of the Owner Trustee, Bond
Trustee, Trustee and any co-trustees (including without limitation reasonable counsel fees and expenses) or any
successor owner trustee and/or co-trustee, for acting as the owner trustee under the Trust Agreement, bond
trustee under the Bond Indenture, or Trustee under the Trust Agreement (AC Trust 2000-2), and any fees and
expenses in connection with establishing and maintaining any accounts and disbursing and handling funds in
connection with the Operative Documents, the Bond Loan Documents or the Bond Documents, and (ii) all reasonable
costs and expenses incurred by the City of Little Rock, the Bond Trustee, the Trustee, the Credit Parties, the
Agent, the Lenders, the Holders or the Lessor in entering into any Lease Supplement, the Bond Loan Documents, the
Bond Documents and any future amendments, modifications, supplements, restatements and/or replacements with
respect to any of the Operative Agreements, the Bond Loan Documents and the Bond Documents, whether or not such
Lease Supplement, Bond Loan Documents, Bond Documents amendments, modifications, supplements, restatements and/or
replacements are ultimately entered into, or giving or withholding of waivers of consents hereto or thereto,
which have been requested by the City of Little Rock, the Bond Trustee, the Trustee, any Credit Party, the Agent,
the Lenders, the Holders or the Lessor; provided, however, the Lessor shall pay such amounts described in this
Section 7.3(a) only if funds are made available by the Lenders and the Holders in an amount sufficient to allow
such payment. On each Property Closing Date, on the date of any Construction Advance or any Completion Date, as
applicable, after satisfaction of the conditions precedent for such date (excluding the requirement that a
Requisition be delivered), the Holders shall make a Holder Advance and the Lenders shall make Loans to the Lessor
to pay for the various amounts referenced in this Section 7.3(a). Upon the final Rent Commencement Date (or with
respect to those items set forth above pertaining only to a particular Property, on the Rent Commencement Date of
such Property) all such fees, costs and expenses shall be paid by the Lessee and not the Lessor.
(b) The Lessee agrees to pay or cause to be paid in connection with any Lease Event of Default (i)
all reasonable costs and expenses incurred by the City of Little Rock, the Bond Trustee, the Trustee, the Credit
Parties, the Agent, the Lenders, the Holders or the Lessor in connection with any exercise of remedies under any
Operative Agreement, Bond Loan Document or Bond Document or any purchase of any Property or lease thereof by the
City of Little Rock, the Construction Agent, the Lessee or any third party in accordance with the Operative
Agreements and (ii) all reasonable costs and expenses incurred by the Credit Parties, the Agent, the Lenders, the
Holders or the Lessor in connection with any transfer or conveyance of any Property in accordance with the
Operative Agreements, whether or not such transfer or conveyance is ultimately accomplished.
7.4. Unused Fee.
Except as otherwise provided in the last sentence hereof, during the Commitment Period the Lessor shall
timely pay, in either case to the Agent for the account of (a) the Lenders, respectively, an unused fee (the
"Lender Unused Fee") for each day during the Commitment Period equal to the product of the actual Available
Commitment of each Lender on such date multiplied by a rate of Applicable Percentage per annum on such date and
(b) the Holders, respectively, an unused fee (the "Holder Unused Fee") for each day during the Commitment Period
equal to the product of the actual Available Holder Commitment of each Holder on such date multiplied by a rate
of Applicable Percentage per annum on such date. Such Unused Fees shall be payable quarterly in arrears on each
Unused Fee Payment Date for the actual number of days elapsed in such quarter (including the first day but
excluding the last day). If all or a portion of any such Unused Fee shall not be paid when due, such overdue
amount shall bear interest, payable by the Lessee on demand, at a rate per annum equal to the ABR plus two
percent (2%) from the date of such non-payment until such amount is paid in full (as well as before judgment);
provided, however, the Lessor shall pay such amounts described in this Section 7.4 only if funds are made
available by the Lenders and the Holders in an amount sufficient to allow such payment. Upon the expiration of
the Commitment Period all such fees, costs and expenses shall be paid by Lessee and not the Lessor.
7.5. Administrative Fee.
Except as otherwise provided in the last sentence hereof, the Lessor shall pay or cause to be paid an
administrative fee to the Agent (for its individual account) on the terms and conditions set forth in the
engagement letter dated May 10, 2000 addressed to Acxiom from Agent and Banc of America Securities, LLC;
provided, however, the Lessor shall pay such amounts described in this Section 7.5 only if funds are made
available by the Lenders and the Holders in an amount sufficient to allow such payment. Upon the expiration of
the Commitment Period such fee shall be paid by Lessee and not the Lessor.
7.6. Upfront Fee.
The Lessor shall pay upfront fees to the Agent for the benefit of the Holders and the Lenders (for the
respective individual accounts of each such entity) on the Initial Closing Date.
SECTION 8. OTHER COVENANTS AND AGREEMENTS.
8.1. Cooperation with the Construction Agent or the Lessee.
The Holders, the Lenders, the Lessor (at the direction of the Majority Secured Parties) and the Agent
shall, at the expense of and to the extent reasonably requested by the Construction Agent or the Lessee (but
without assuming additional liabilities on account thereof and only to the extent such is acceptable to the
Holders, the Lenders, the Lessor (at the direction of the Majority Secured Parties) and the Agent in their
reasonable discretion), cooperate with the Construction Agent or the Lessee in connection with the Construction
Agent or the Lessee satisfying its covenant obligations contained in the Operative Agreements and in the Bond
Documents including without limitation at any time and from time to time, promptly and duly executing and
delivering any and all such further instruments, documents and financing statements (and continuation statements
related thereto).
8.2. Covenants of the Owner Trustee and the Holders.
Each of the Owner Trustee and the Holders hereby agrees that so long as this Agreement is in effect:
(a) Neither the Owner Trustee (in its trust capacity or in its individual capacity) nor
any Holder will create or permit to exist at any time, and each of them will, at its own cost and
expense, promptly take such action as may be necessary duly to discharge, or to cause to be discharged,
all Lessor Liens on the Properties attributable to it; provided, however, that the Owner Trustee and the
Holders shall not be required to so discharge any such Lessor Lien while the same is being contested in
good faith by appropriate proceedings diligently prosecuted so long as such proceedings shall not
materially and adversely affect the rights of the Lessee under the Bond Documents or the Lease and the
other Operative Agreements or involve any material danger of impairment of the Liens of the Security
Documents or of the sale, forfeiture or loss of, and shall not interfere with the use or disposition of,
any Property or title thereto or any interest therein or the payment of Rent;
(b) Without prejudice to any right under the Trust Agreement of the Owner Trustee to
resign (subject to the requirement set forth in the Trust Agreement that such resignation shall not be
effective until a successor shall have agreed to accept such appointment), or the Holders' rights under
the Trust Agreement to remove the institution acting as the Owner Trustee (after consent to such removal
by the Agent as provided in the Trust Agreement), each of the Owner Trustee and the Holders hereby
agrees with the Lessee and the Agent (i) not to terminate or revoke the trust created by the Trust
Agreement except as permitted by Article VIII of the Trust Agreement, (ii) not to amend, supplement,
terminate or revoke or otherwise modify any provision of the Trust Agreement in such a manner as to
adversely affect the rights of any such party without the prior written consent of such party and (iii)
to comply with all of the terms of the Trust Agreement, the nonperformance of which would adversely
affect such party;
(c) The Owner Trustee or any successor may resign or be removed by the Holders as the
Owner Trustee, a successor Owner Trustee may be appointed and a corporation may become the Owner Trustee
under the Trust Agreement, only in accordance with the provisions of Article IX of the Trust Agreement
and, with respect to such appointment, with the consent of the Lessee (so long as there shall be no
Lease Event of Default that shall have occurred and be continuing), which consent shall not be
unreasonably withheld or delayed;
(d) The Owner Trustee, in its capacity as the Owner Trustee under the Trust Agreement, and
not in its individual capacity, shall not contract for, create, incur or assume any Indebtedness, or
enter into any business or other activity or enter into any contracts or agreements, other than pursuant
to or under the Operative Agreements, the Bond Loan Documents and the Bond Documents;
(e) The Holders will not instruct the Owner Trustee to take any action in violation of the
terms of any Operative Agreement, the Bond Loan Documents or the Bond Documents;
(f) Neither any Holder nor the Owner Trustee shall (i) commence any case, proceeding or
other action with respect to the Owner Trustee under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement, winding-up,
liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek
appointment of a receiver, trustee, custodian or other similar official with respect to the Owner
Trustee or for all or any substantial benefit of the creditors of the Owner Trustee; and neither any
Holder nor the Owner Trustee shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in this paragraph;
(g) The Owner Trustee shall give prompt notice to the Lessee, the Holders and the Agent if
the Owner Trustee's principal place of business or chief executive office, or the office where the
records concerning the accounts or contract rights relating to any Property are kept, shall cease to be
located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, or if it shall change its name; and
(h) The Owner Trustee shall take or refrain from taking such actions and grant or refrain
from granting such approvals with respect to the Operative Agreements, the Bond Loan Documents, the Bond
Documents and/or relating to any Property in each case as directed in writing by the Agent (until such
time as the Loans are paid in full, and then by the Majority Holders) or, in connection with Sections
8.5 and 9.2 hereof, the Lessee; provided, however, that notwithstanding the foregoing provisions of this
subparagraph (h) the Owner Trustee, the Agent, the Lenders and the Holders each acknowledge, covenant
and agree that neither the Owner Trustee nor the Agent shall act or refrain from acting, regarding each
Unanimous Vote Matter, until such party has received the approval of each Lender and each Holder
affected by such matter.
8.2.A. Covenants of the Series 0000-X Xxxx Xxxxxxxxx.
(a) The Series 2000-B Bond Purchaser agrees for the benefit of the parties to this
Agreement to comply with all of the provisions of the Bond Loan Documents, Bond Documents and Operative
Agreements applicable to it and that it will, at its own cost and expense, promptly take such action as
may be necessary duly to discharge, or to cause to be discharged, all Lessor Liens on the Properties
attributable to it;
(b) Without prejudice to any right under the Trust Agreement (AC Trust 2000-2) of the
Trustee to resign (subject to the requirement set forth in the Trust Agreement (AC Trust 2000-2) that
such resignation shall not be effective until a successor shall have agreed to accept such appointment),
or the Holders' rights under the Trust Agreement (AC Trust 2000-2) to remove the institution acting as
the Series 0000-X Xxxx Xxxxxxxxx (after consent to such removal by the Agent as provided in the Trust
Agreement (AC Trust 2000-2), each of the Series 0000-X Xxxx Xxxxxxxxx and the Holders hereby agrees with
the Lessee and the Agent (i) not to terminate or revoke the trust created by the Trust Agreement (AC
Trust 2002) except as permitted by Article VIII of the Trust Agreement (AC Trust 2000-2), (ii) not to
amend, supplement, terminate or revoke or otherwise modify any provision of the Trust Agreement (AC
Trust 2000-2) in such a manner as to adversely affect the rights of any such party without the prior
written consent of such party and (iii) to comply with all of the terms of the Trust Agreement (AC Trust
2000-2), the nonperformance of which would adversely affect such party;
(c) The Series 2000-B Bond Purchaser or any successor may resign or be removed by the
Holders as the Series 0000-X Xxxx Xxxxxxxxx, a successor Series 0000-X Xxxx Xxxxxxxxx may be appointed
and a corporation may become the Series 0000-X Xxxx Xxxxxxxxx under the Trust Agreement (AC Trust
2000-2), only in accordance with the provisions of Article IX of the Trust Agreement (AC Trust 2000-2)
and, with respect to such appointment, with the consent of the Lessee (so long as there shall be no
Lease Event of Default that shall have occurred and be continuing), which consent shall not be
unreasonably withheld or delayed;
(d) The Series 0000-X Xxxx Xxxxxxxxx, in its capacity as the Series 0000-X Xxxx Xxxxxxxxx
under the Trust Agreement (AC Trust 2000-2), and not in its individual capacity, shall not contract for,
create, incur or assume any Indebtedness, or enter into any business or other activity or enter into any
contracts or agreements, other than pursuant to or under the Operative Agreements, the Bond Loan
Documents and the Bond Documents the Bond Loan Documents or the Bond Documents;
(e) The Holders will not instruct the Series 0000-X Xxxx Xxxxxxxxx to take any action in
violation of the terms of any Operative Agreement, the Bond Loan Documents or the Bond Documents;
(f) Neither any Holder nor the Series 0000-X Xxxx Xxxxxxxxx shall (i) commence any case,
proceeding or other action with respect to the Owner Trustee under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, arrangement,
winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or
(ii) seek appointment of a receiver, trustee, custodian or other similar official with respect to the
Series 0000-X Xxxx Xxxxxxxxx or for all or any substantial benefit of the creditors of the Series 0000-X
Xxxx Xxxxxxxxx; and neither any Holder nor the Series 0000-X Xxxx Xxxxxxxxx shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth
in this paragraph;
(g) The Series 2000-B Bond Purchaser shall give prompt notice to the Lessee, the Holders
and the Agent if the Series 2000-B Bond Purchaser's principal place of business or chief executive
office, or the office where the records concerning the accounts or contract rights relating to any
Property are kept, shall cease to be located at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, or if
it shall change its name; and
(h) The Series 2000-B Bond Purchaser shall take or refrain from taking such actions and
grant or refrain from granting such approvals with respect to the Operative Agreements, the Bond Loan
Documents, the Bond Documents and/or relating to any Property in each case as directed in writing by the
Agent (until such time as the Loans are paid in full, and then by the Majority Holders) or, in
connection with Sections 8.5 and 9.2 hereof, the Lessee; provided, however, that notwithstanding the
foregoing provisions of this subparagraph (h) the Series 0000-X Xxxx Xxxxxxxxx, the Agent, the Lenders
and the Holders each acknowledge, covenant and agree that neither the Series 0000-X Xxxx Xxxxxxxxx nor
the Agent shall act or refrain from acting, regarding each Unanimous Vote Matter, until such party has
received the approval of each Lender and each Holder affected by such matter.
8.3. Credit Party Covenants, Consent and Acknowledgment.
(a) Each Credit Party acknowledges and agrees that (i) the Owner Trustee, pursuant to the
terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens
respecting the various personal property, fixtures and real property described therein in favor of the
Agent (ii) that the City of Little Rock, with respect to the Little Rock Property shall create Liens on
the Little Rock Property, pursuant to the Bond Indenture in favor of the Bond Trustee, for the benefit
of the Series 0000-X Xxxx Xxxxxxxxx but subject to rights of the Lessor under the Head Lease and (iii)
that the Series 0000-X Xxxx Xxxxxxxxx shall create Liens on the Bond Loan Collateral pursuant to the
Bond Loan Security Agreement in favor of the Lessor. Each Credit Party hereby irrevocably consents to
the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent
reasonably requested by any of the other parties hereto, cooperate with the other parties in connection
with their covenants herein, in the other Operative Agreements, the Bond Loan Document or the Bond
Document and shall from time to time duly execute and deliver any and all such future instruments,
documents and financing statements (and continuation statements related thereto) as any other party
hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby
acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and
the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any
and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as
appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due
and owing or payable to any Person shall instead be paid directly to the Agent (excluding Excepted
Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent or the
Majority Secured Parties may direct from time to time for allocation and distribution in accordance with
the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be
exercised by the Agent or the Majority Secured Parties and (iii) each Credit Party shall cause all
notices, certificates, financial statements, communications and other information which are delivered,
or are required to be delivered, to the Lessor, to also be delivered at the same time to the Agent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other
modification of the terms or provisions of any Operative Agreement, Bond Loan Documents or Bond Document
except in accordance with Section 12.4 of this Agreement.
(d) Each Credit Party hereby covenants and agrees that, except for amounts payable as
Basic Rent, any and all payment obligations owing from time to time under the Operative Agreements by
any Person to the Agent, any Lender, any Holder or any other Person shall (without further action) be
deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the other Credit
Parties. Without limitation, such obligations of the Credit Parties shall include without limitation
arrangement fees, administrative fees, unused fees, breakage costs, indemnities, trustee fees and
transaction expenses incurred by the parties hereto in connection with the transactions contemplated by
the Operative Agreements, provided, the foregoing shall not limit the right of the Construction Agent to
obtain funding by means of Advances for any matter for which such funding is expressly provided by the
Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form
and substance satisfactory to the Agent and from an appraiser selected by the Agent (provided the Lessee
shall in no event be responsible for other than the reasonable costs and expenses of such appraiser)) to
be issued respecting any Property as requested by the Agent from time to time (i) at each and every time
as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the
Trust Company, FSN, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent,
Head Lease Basic Rent and principal and interest on the Bond Loan Note, and as otherwise provided in the
Operative Agreements, any and all payment obligations owing from time to time under the Operative
Agreements, the Bond Loan Documents and the Bond Documents by any Person to the Agent, any Lender, any
Holder or any other Person shall (without further action) be deemed to be Supplemental Rent obligations
payable by the Lessee. Without limitation, such obligations of the Lessee shall include the
Supplemental Rent obligations pursuant to this Section 8.3(f), Section 3.3 of the Lease, arrangement
fees, administrative fees, participation fees, commitment fees, unused fees, prepayment penalties,
breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in
connection with the transactions contemplated by the Operative Agreements, the Bond Loan Documents and
the Bond Documents;
(g) At any time the Lessor or the Agent is entitled under the Operative Agreements to
possession of a Property or any component thereof, each of the Construction Agent and the Lessee hereby
covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent
(on behalf of the Lessor).
(h) The Lessee hereby covenants and agrees that, respecting each Property, Non-Integral
Equipment financed under or pursuant to the Operative Agreements and the Bond Loan Documents may
constitute up to, but shall not exceed, ten percent (10%) of the aggregate Advances extended at or prior
to such time with respect to such Property.
(i) The Lessee hereby covenants and agrees that as of Completion (i) the Property Cost for
the Little Rock Property shall be no more than $36,553,808, (ii) the Property Cost for the Phoenix
Property shall be no more than $24,446,192 and (iii) each parcel of the Property shall be a Permitted
Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent
if the Lessee's principal place of business or chief executive office, or the office where the records
concerning the accounts or contract rights relating to any Property are kept, shall cease to be located
at #0 Xxxxxxxxxxx Xxx, Xxxxxx Xxxx, Xxxxxxxx 00000 or if it shall change its name.
(k) [Intentionally Omitted].
(l) Until all the obligations of the Credit Parties under the Operative Agreements have
been finally and indefeasibly paid and satisfied in full, the Commitments and the Holder Commitments
terminated and the Term has expired or been earlier terminated, then unless consent has been obtained
from the Majority Secured Parties, the Lessee will furnish or cause to be furnished to each Holder, each
Lender and the Agent at their respective addresses set forth or referenced in Section 12.2 of this
Agreement, or such other office as may be designated by any such Holder, Lender or the Agent from time
to time: (i) the financial statements and other information provided by the Lessee under Section 5.01(a)
of the Lessee Credit Agreement on the dates provided therein and (ii) at each time financial statements
are delivered or to be delivered pursuant to clause (i) above, a compliance certificate duly executed by
the president, treasurer, chief financial offer or controller of Acxiom substantially in the form of
Exhibit M (the "Officer's Compliance Certificate").
(m) The Lessee hereby covenants and agrees that the rights of the Lessee under this
Agreement, the Bond Documents and the Lease shall not impair or in any way diminish the obligations of
the Construction Agent and/or the rights of the Lessor under the Construction Agency Agreement.
(n) Each Credit Party hereby covenants and agrees to cause each Subsidiary of each Credit
Party which is a "Guarantor" of Lessee's obligations under the Lessee Credit Agreement to execute a
Joinder Agreement and to observe the terms of Sections 5.8(a)-(d) of this Agreement, contemporaneously
with such Subsidiary becoming "Guarantor" thereunder.
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly
notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default
which is continuing at such time. In any event, such notice shall be provided to the Agent within
five (5) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and
indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless
consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement,
preserve and maintain its separate legal existence and all rights, franchises, licenses and
privileges necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation (or partnership, limited liability company or other such similar entity, as
the case may be) and authorized to do business in each jurisdiction in which the failure to so
qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative
Agreements and pay and perform (A) all taxes, assessments and other governmental charges that
may be levied or assessed upon it or any of its property, and (B) all other indebtedness,
obligations and liabilities in accordance with customary trade practices, which if not paid
would have a Material Adverse Effect; provided that any Credit Party may contest any item
described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained
with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe
and remain in compliance with all applicable Laws and maintain in full force and effect all
Governmental Actions, in each case applicable to the conduct of its business; keep in full
force and effect all licenses or certifications necessary for any Permitted Facility to be
operated for its intended purpose; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to
minimize disruption to the business of the Credit Parties permit representatives of the Agent
or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit
and make extracts from its books, records and files, including without limitation management
letters prepared by independent accountants; and discuss with its principal officers, and its
independent accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
(q) Lessee shall perform any and all obligations of Lessor under, and cause Lessor to
otherwise remain in full compliance with, the terms and provisions of the Bond Documents and any Ground
Lease.
(r) Promptly after obtaining any required architectural approvals by any business park or
any other applicable entity with oversight responsibility for the applicable Improvements, the
Construction Agent shall deliver to the Agent copies of the same.
(s) If the Construction Budget for any Property is ever modified to exceed the amount of
title insurance therefor (as such title insurance is referenced in Section 5.3(g)), then the
Construction Agent shall immediately cause an additional endorsement to be issued to increase the amount
of title insurance to at least equal the amount referenced in the modified Construction Budget.
8.4. Sharing of Certain Payments.
Except for Excepted Payments, the parties hereto acknowledge and agree that all payments due and owing
by any Credit Party to the Lessor under the Lease or any of the other Operative Agreements shall be made by such
Credit Party directly to the Agent as more particularly provided in Section 8.3 hereof. The Lessor, the Holders,
the Agent, the Lenders and the Credit Parties acknowledge the terms of Section 8.7 of this Agreement regarding
the allocation of payments and other amounts made or received from time to time under the Operative Agreements
and agree, that all such payments and amounts are to be allocated as provided in Section 8.7 of this Agreement.
8.5. Grant of Easements, etc.
The Agent, the Lenders and the Holders hereby agree that, so long as no Event of Default shall have
occurred and be continuing, the City of Little Rock (with respect to the Little Rock Property), the Bond Trustee,
the Trustee and the Owner Trustee, as the case may be, shall, from time to time at the request of the Lessee (and
with the prior consent of the Agent and the Majority Secured Parties), in connection with the transactions
contemplated by the Construction Agency Agreement, the Lease, the other Operative Agreements or the Bond
Documents, (i) grant easements and other rights in the nature of easements with respect to any Property, (ii)
release existing easements or other rights in the nature of easements which are for the benefit of any Property,
(iii) execute and deliver to any Person any instrument appropriate to confirm or effect such grants or releases,
and (iv) execute and deliver to any Person such other documents or materials in connection with the acquisition,
development, construction, testing or operation of any Property, including without limitation reciprocal easement
agreements, construction contracts, operating agreements, development agreements, plats, replats or subdivision
documents; provided, that each of the agreements referred to in this Section 8.5 shall be of the type normally
executed by the Lessee in the ordinary course of the Lessee's business and shall be on commercially reasonable
terms so as not to diminish the value of any Property in any material respect. The Lessor acknowledges the
Lessee's right to finance and to secure under the Uniform Commercial Code, inventory, furnishings, furniture,
equipment, machinery, leasehold improvements and other personal property located at the Property other than
Equipment which is not in violation of the terms of the Lease, and the Lessor agrees to execute at Lessee's sole
cost and expense any waiver forms and releases of Lessor Liens in favor of any purchase money seller, lessor or
lender which has financed or may finance in the future such items reasonably acceptable to the Lessor and the
Agent. Without limiting the effectiveness of the foregoing, provided that no Lease Event of Default shall have
occurred and be continuing, the Lessor shall, upon the reasonable request of the Lessee, and at the Lessee's sole
cost and expense, execute and deliver any instruments necessary or appropriate and reasonably acceptable to the
Lessor and the Agent to confirm any such grant, release, dedication, transfer, annexation or amendment to any
Person permitted under this Section 8.5 including landlord waivers with respect to any of the foregoing.
8.6. Appointment by the Agent, the Lenders, the Holders and the Owner Trustee.
The Holders hereby appoint the Agent to act as collateral agent for the Holders in connection with the
Lien granted by the Security Documents to secure the Holder Amount. The Lenders and the Holders acknowledge and
agree and direct that the rights and remedies of the beneficiaries of the Lien of the Security Documents shall be
exercised by the Agent on behalf of the Lenders and the Holders as directed from time to time by the Majority
Secured Parties or, pursuant to Sections 8.2(h) and 12.4, all of the Lenders and the Holders, as the case may be;
provided, in all cases, the Agent shall allocate payments and other amounts received in accordance with Section
8.7. The Agent is further appointed to provide notices under the Operative Agreements on behalf of the Owner
Trustee (as determined by the Agent, in its reasonable discretion), to receive notices under the Operative
Agreements on behalf of the Owner Trustee and (subject to Sections 8.5 and 9.2) to take such other action under
the Operative Agreements on behalf of the Owner Trustee as the Agent shall determine in its reasonable discretion
from time to time. The Agent hereby accepts such appointments. For purposes hereof, the provisions of Section 7
of the Credit Agreement, together with such other terms and provisions of the Credit Agreement and the other
Operative Agreements as required for the full interpretation and operation of Section 7 of the Credit Agreement
are hereby incorporated mutatis mutandis by reference as if restated herein for the mutual benefit of the Agent
and each Holder as if each Holder were a Lender thereunder. Outstanding Holder Advances and outstanding Loans
shall each be taken into account for purposes of determining Majority Secured Parties. Further, the Agent shall
be entitled to take such action on behalf of the Owner Trustee as is delegated to the Agent under any Operative
Agreement (whether express or implied) as may be reasonably incidental thereto. The parties hereto hereby agree
to the provisions contained in this Section 8.6. Any appointment of a successor agent under Section 7.9 of the
Credit Agreement shall also be effective as an appointment of a successor agent for purposes of this Section 8.6.
8.7. Collection and Allocation of Payments and Other Amounts.
(a) Each Credit Party has agreed pursuant to Section 5.10 and otherwise in accordance with
the terms of this Agreement to pay to (i) the Agent any and all Rent (excluding Excepted Payments) and
any and all other amounts of any kind or type under any of the Operative Agreements due and owing or
payable to any Person and (ii) each Person as appropriate the Excepted Payments. Promptly after
receipt, the Agent shall apply and allocate, in accordance with the terms of this Section 8.7, such
amounts received from any Credit Party and all other payments, receipts and other consideration of any
kind whatsoever received by the Agent pursuant to the Security Agreement or otherwise received by the
Agent, the Holders or any of the Lenders in connection with the Collateral, the Security Documents or
any of the other Operative Agreements. Ratable distributions among the Lenders and the Holders under
this Section 8.7 shall be made based on (in the case of the Lenders) the ratio of the outstanding Loans
to the aggregate Property Cost and (in the case of the Holders) the ratio of the outstanding Holder
Advances to the aggregate Property Cost. Ratable distributions among the Tranche A Lenders under this
Section 8.7 shall be made based on the ratio of the individual Tranche A Lender's Commitment for Tranche
A Loans to the aggregate of all the Tranche A Lenders' Commitments for Tranche A Loans. Ratable
distributions among the Tranche B Lenders under this Section 8.7 shall be made based on the ratio of the
individual Tranche B Lender's Commitment for Tranche B Loans to the aggregate of all the Tranche B
Lenders' Commitments for Tranche B Loans. Ratable distributions among the Lenders (in situations where
the Tranche A Lenders are not differentiated from the Tranche B Lenders) shall be made based on the
ratio of the individual Lender's Commitment to the aggregate of all the Lenders' Commitments. Ratable
distributions among the Holders under this Section 8.7 shall be based on the ratio of the individual
Holder's Holder Commitment to the aggregate of all the Holders' Holder Commitments.
(b) Payments and other amounts received by the Agent from time to time in accordance with
the terms of subparagraph (a) shall be applied and allocated as follows (subject in all cases to Section
8.7(c)):
(i) Any such payment or amount identified as or deemed to be Basic Rent shall be
applied and allocated by the Agent first, ratably to the Lenders and the Holders for
application and allocation to the payment of interest on the Loans and Holder Yield on the
Holder Advances, in each case which is due and payable on such date, second, ratably to the
Lenders for application and allocation to the payment of the principal of the Loans which is
due and payable on such date, third, ratably to the Holders for application and allocation to
the payment of the portion of the Holder Advances which is due and payable on such date and
fourth, if no Default or Event of Default is in effect, any excess shall be paid to such Person
or Persons as the Lessee may designate; provided, that if a Default or Event of Default is in
effect, such excess (if any) shall instead be held by the Agent until the earlier of (I) the
first date thereafter on which no Default or Event of Default shall be in effect (in which case
such payments or returns shall then be made to such other Person or Persons as the Lessee may
designate) and (II) the Maturity Date or the Expiration Date, as the case may be (or, if
earlier, the date of any Acceleration), in which case such amounts shall be applied and
allocated in the manner contemplated by Section 8.7(b)(iv).
(ii) If on any date the Agent or the Lessor shall receive any amount in respect of
(A) any Casualty or Condemnation pursuant to Sections 15.1(a) or 15.1(g) of the Lease
(excluding any payments in respect thereof which are payable to the Lessee in accordance with
the Lease), or (B) the Termination Value in connection with the delivery of a Termination
Notice pursuant to Article XVI of the Lease, or (C) the Termination Value in connection with
the exercise of the Purchase Option under Section 20.1 of the Lease or the exercise of the
option of the Lessor to transfer the Properties to the Lessee pursuant to Section 20.3 of the
Lease, or (D) any payment required to be made or elected to be made by the Construction Agent
to the Lessor pursuant to the terms of the Construction Agency Agreement (other than any
payment of the Maximum Amount which shall be applied and allocated pursuant to Section
8.7(b)(iv)), then in each case, the Lessor shall be required to pay such amount received (1) if
no Event of Default has occurred, (x) to apply and allocate the proceeds respecting Sections
8.7(b)(ii)(A) and 8.7(b)(ii)(D) in accordance with Section 8.7(b)(iii)(B) first through sixth
and (y) to apply and allocate the proceeds respecting Sections 8.7(b)(ii)(B) and 8.7(b)(ii)(C)
to prepay the principal balance of the Loans and the Holder Advances, on a pro rata basis, a
portion of such amount to be distributed to the Lenders and the Holders or (2) if an Event of
Default has occurred, to apply and allocate the proceeds respecting Sections 8.7(b)(ii)(A)
through 8.7(b)(ii)(D) in accordance with Section 8.7(b)(iii)(A) hereof.
(iii) (A) An amount equal to any proceeds of the sale, lease or other
disposition of the Properties or any portion thereof, in each case upon the occurrence of any
Event of Default and the exercise of remedies pursuant to the Operative Agreements, and any
other amount payable pursuant to any Casualty or any Condemnation (whether such amounts relate
to a period before or after the Construction Period Termination Date) shall be applied and
allocated by the Agent first, ratably to the payment of the principal and interest of the
Tranche B Loans then outstanding, second, ratably to the payment to the Holders of the
outstanding principal balance of all Holder Advances plus all outstanding Holder Yield with
respect to such outstanding Holder Advances, third, to the extent such amount exceeds the
maximum amount to be returned pursuant to the foregoing provisions of this paragraph (iii),
ratably to the payment of the principal and interest of the Tranche A Loans then outstanding,
fourth, to any and all other amounts owing under the Operative Agreements to the Lenders under
the Tranche B Loans, fifth, to any and all other amounts owing under the Operative Agreements
to the Holders, sixth, to any and all other amounts owing under the Operative Agreements to the
Lenders under the Tranche A Loans, and seventh, to the extent moneys remain after application
and allocation pursuant to clauses first through sixth above, to the Owner Trustee for
application and allocation to any and all other amounts owing to the Holders or the Owner
Trustee and as the Holders shall determine; provided, where no Event of Default shall exist and
be continuing and a prepayment is made for any reason with respect to less than the full amount
of the outstanding principal amount of the Loans and the outstanding Holder Advances, the
proceeds shall be applied and allocated in accordance with Section 8.7(b)(iii)(B) first through
sixth.
(B) Except as otherwise expressly provided pursuant to Section 8.7(b)(iii)(A), all
amounts payable with respect to any disposition of the Properties or any portion thereof
(including without limitation pursuant to Article XXII of the Lease) in respect of excess wear
and tear pursuant to Section 22.3 of the Lease (whether such amounts relate to a period before
or after the Construction Period Termination Date) shall be applied and allocated by the Agent
first, ratably to the payment of the principal and interest of the Tranche B Loans then
outstanding, second, to the extent such amounts exceeds the maximum amount to be returned
pursuant to the foregoing provisions of this paragraph (iii), ratably to the payment of the
principal and interest of the Tranche A Loans then outstanding, third, ratably to the payment
to the Holders of the outstanding principal balance of all Holder Advances plus all outstanding
Holder Yield with respect to such outstanding Holder Advances, fourth, to any and all other
amounts owing under the Operative Agreements to the Lenders under the Tranche B Loans, fifth,
to any and all other amounts owing under the Operative Agreements to the Lenders under the
Tranche A Loans, sixth, to any and all other amounts owing under the Operative Agreements to
the Holders, and seventh, to the extent moneys remain after application and allocation pursuant
to clauses first through sixth above, to the Owner Trustee for application and allocation to
any and all other amounts owing to the Holders or the Owner Trustee and as the Holders shall
determine; provided, where no Event of Default shall exist and be continuing and a prepayment
is made for any reason with respect to less than the full amount of the outstanding principal
amount of the Loans and the outstanding Holder Advances, the proceeds shall be applied and
allocated ratably to the Lenders and to the Holders.
(iv) An amount equal to (A) any such payment identified as a payment of the Maximum
Amount or any payment pursuant to Section 22.1(b) of the Lease (or otherwise) of the Maximum
Residual Guarantee Amount (and any such lesser amount as may be required by Section 22.1(b) of
the Lease) in respect of the Properties and (B) any other amount payable upon any exercise of
remedies after the occurrence of an Event of Default not covered by Sections 8.7(b)(i) or
8.7(b)(iii) above (including without limitation any amount received in connection with an
Acceleration which does not represent proceeds from the sale or liquidation of the Properties)
and (C) any other amount payable by any Guarantor pursuant to Section 6B shall be applied and
allocated by the Agent first, ratably, to the payment of the principal and interest balance of
Tranche A Loans then outstanding, second, ratably to the payment of the principal and interest
balance of the Tranche B Loans then outstanding, third, ratably to the payment of the principal
balance of all Holder Advances plus all outstanding Holder Yield with respect to such
outstanding Holder Advances, fourth, to the payment of any other amounts owing to the Lenders
hereunder or under any of the other Operative Agreement, and fifth, to the extent moneys remain
after application and allocation pursuant to clauses first through fourth above, to the Owner
Trustee for application and allocation to Holder Advances and Holder Yield and any other
amounts owing to the Holders or the Owner Trustee as the Holders shall determine.
(v) An amount equal to any such payment identified as Supplemental Rent shall be
applied and allocated by the Agent to the payment of any amounts then owing to the City of
Little Rock, the Bond Trustee, the Trustee, the Agent, the Lenders, the Holders and the other
parties to the Operative Agreements (or any of them) (other than any such amounts payable
pursuant to the preceding provisions of this Section 8.7(b)) as shall be determined by the
Agent in its reasonable discretion; provided, however, that Supplemental Rent received upon the
exercise of remedies after the occurrence and continuance of an Event of Default in lieu of or
in substitution of the Maximum Residual Guarantee Amount or as a partial payment thereon shall
be applied and allocated as set forth in Section 8.7(b)(iv).
(vi) The Agent in its reasonable judgment shall identify the nature of each payment
or amount received by the Agent and apply and allocate each such amount in the manner specified
above.
(c) Upon the payment in full of the Loans, the Holder Advances and all other amounts then
due and owing by the Owner Trustee hereunder or under any Credit Document and the payment in full of all
other amounts then due and owing to the Lenders, the Holders, the Agent, the Owner Trustee, the Trustee,
the Bond Trustee and the other Financing Parties pursuant to the Operative Agreements, the Bond Loan
Documents and the Bond Documents, any moneys remaining with the Agent shall be returned to the Lessee.
It is agreed that, prior to the application and allocation of amounts received by the Agent in the order
described in Section 8.7(b) above or any distribution of money to the Lessee, any such amounts shall
first be applied and allocated to the payment of (i) any and all sums advanced by the Agent in order to
preserve the Collateral or to preserve its Lien thereon, (ii) the expenses of retaking, holding,
preparing for sale or lease (including any repairing or restoring), selling or otherwise disposing or
realizing on the Collateral, or of any exercise by the Agent of its rights under the Security Documents,
together with reasonable attorneys' fees and expenses and court costs and (iii) any and all other
amounts reasonably owed to the Agent under or in connection with the transactions contemplated by the
Operative Agreements (including without limitation any accrued and unpaid administration fees).
8.8. Release of Properties, etc.
If the Lessee shall at any time purchase all or a portion of any Property (or Lessor's leasehold
interest therein) pursuant to the Lease, or the Construction Agent shall purchase all or a portion of any
Property pursuant to the Construction Agency Agreement, or if any Property (or Lessor's leasehold interest
therein) shall be sold in accordance with Article XXII of the Lease, then, upon satisfaction by the Owner Trustee
of its obligation to prepay the Loans, Holder Advances and all other amounts owing to the Lenders and the Holders
under the Operative Agreements, the Agent is hereby authorized and directed to release such Property from the
Liens created by the Security Documents to the extent of its interest therein. In addition, upon the termination
of the Commitments and the Holder Commitments and the payment in full of the Loans, the Holder Advances and all
other amounts owing by the Owner Trustee and the Lessee hereunder or under any other Operative Agreement the
Agent is hereby authorized and directed to release all of the Properties from the Liens created by the Security
Documents to the extent of its interest therein. Upon request of the Owner Trustee following any such release,
the Agent shall, at the sole cost and expense of the Lessee, execute and deliver to the Owner Trustee and the
Lessee such documents as the Owner Trustee or the Lessee shall reasonably request to evidence such release.
SECTION 9. CREDIT AGREEMENT AND TRUST AGREEMENT.
9.1. The Construction Agent's and the Lessee's Credit Agreement Rights.
Notwithstanding anything to the contrary contained in the Credit Agreement, the Agent, the Lenders, the
Holders, the Construction Agent, the Credit Parties and the Owner Trustee hereby agree that, prior to the
occurrence and continuation of any Default or Event of Default, the Construction Agent or the Lessee, as the case
may be, shall have the following rights:
(a) the right to designate an account to which amounts funded under the Operative
Agreements shall be credited pursuant to Section 2.3(a) of the Credit Agreement;
(b) the right to terminate or reduce the Commitments pursuant to Section 2.5(a) of the
Credit Agreement;
(c) the right to exercise the conversion and continuation options pursuant to Section 2.7
of the Credit Agreement;
(d) the right to receive any notice and any certificate, in each case issued pursuant to
Section 2.11(a) of the Credit Agreement;
(e) the right to replace any Lender pursuant to Section 2.11(b) of the Credit Agreement;
(f) the right to approve any successor agent pursuant to Section 7.9 of the Credit
Agreement; and
(g) the right to consent to any assignment by a Lender to which the Lessor has the right
to consent pursuant to Section 9.8 of the Credit Agreement.
9.2. The Construction Agent's and the Lessee's Trust Agreement Rights.
Notwithstanding anything to the contrary contained in the Trust Agreement, the Credit Parties, the Owner
Trustee and the Holders hereby agree that, prior to the occurrence and continuation of any Default or Event of
Default, the Construction Agent or the Lessee, as the case may be, shall have the following rights:
(a) the right to exercise the conversion and continuation options pursuant to Section 3.8
of the Trust Agreement;
(b) the right to receive any notice and any certificate, in each case issued pursuant to
Section 3.9(a) of the Trust Agreement;
(c) the right to replace any Holder pursuant to Section 3.9(b) of the Trust Agreement;
(d) the right to exercise the removal options contained in Section 9.1 of the Trust
Agreement; provided, however, that no removal of the Owner Trustee and appointment of a successor Owner
Trustee by the Holders pursuant to Section 9.1 of the Trust Agreement shall be made without the prior
written consent (not to be unreasonably withheld or delayed) of the Lessee; and
(e) the right to exercise the removal options contained in Section 9.1 of the Trust
Agreement (AC Trust 2000-2); provided, however, that no removal of the Trustee and appointment of a
successor Trustee shall be made without the prior written consent (not to be unreasonably withheld or
delayed) of the Lessee.
SECTION 10. TRANSFER OF INTEREST.
10.1. Restrictions on Transfer.
Each Lender may participate, assign or transfer all or a portion of its interest hereunder and under the
other Operative Agreements in accordance with Sections 9.7 and 9.8 of the Credit Agreement; provided, each
participant, assignee or transferee must obtain the same ratable interest in Tranche A Loans, Tranche A
Commitments, Tranche B Loans and Tranche B Commitments (and to the extent the selling Lender is also a Holder (or
an Affiliate of a Holder), each such participant, assignor or transferee must also obtain the same ratable
interest in and to the Holder Advances, Holder Commitments, the Trust Estate and the Trust Estate (AC
Trust 2000-2); provided further, that each Lender that participates, assigns or transfers all or a portion of its
interest hereunder and under the other Operative Agreements shall deliver to the Agent a copy of each Assignment
and Acceptance (as referenced in Section 9.8 of the Credit Agreement) for purposes of maintaining the Register.
The Holders may, directly or indirectly, assign, convey or otherwise transfer (other than for purposes of
security for a non-recourse loan) any of their right, title or interest in or to the Trust Estate or the Trust
Agreement with the prior written consent of the Agent and the Lessee (which consent shall not be unreasonably
withheld or delayed) and in accordance with the terms of Section 11.8(b) of the Trust Agreement; provided, to the
extent the selling Holder is also a Lender (or an Affiliate of a Lender), each such assignee, receiver of a
conveyance or other transferee must also obtain the same ratable interest in and to the Tranche A Loans,
Tranche A Commitments, Tranche B Loans and Tranche B Commitments. The Owner Trustee may, subject to the rights of
the Lessee under the Lease and the other Operative Agreements and to the Lien of the applicable Security
Documents but only with the prior written consent of the Agent (which consent may be withheld in its discretion)
and (provided, no Default or Event of Default has occurred and is continuing) with the consent of the Lessee,
directly or indirectly, assign, convey, appoint an agent with respect to enforcement of, or otherwise transfer
any of its right, title or interest in or to any Property, the Lease, the Trust Agreement, the other Operative
Agreements (including without limitation any right to indemnification thereunder) the Bond Loan Documents, the
Bond Documents, or any other document relating to a Property or any interest in a Property as provided in the
Trust Agreement and the Lease. The provisions of the immediately preceding sentence shall not apply to the
obligations of the Owner Trustee to transfer of its rights, title and interest in any Property to the Lessee or a
third party purchaser pursuant to Article XXII of the Lease upon payment for such Property in accordance with the
terms and conditions of the Lease. No Credit Party may assign any of the Operative Agreements or any of their
respective rights or obligations thereunder or with respect to any Property in whole or in part to any Person
without the prior written consent of the Agent, the Lenders, the Holders and the Lessor.
10.2. Effect of Transfer.
From and after any transfer effected in accordance with this Section 10, the transferor shall be
released, to the extent of such transfer, from its liability hereunder and under the other documents to which it
is a party in respect of obligations to be performed on or after the date of such transfer; provided, however,
that any transferor shall remain liable hereunder and under such other documents to the extent that the
transferee shall not have assumed the obligations of the transferor thereunder. Upon any transfer by the Owner
Trustee, a Holder or a Lender as above provided, any such transferee shall assume the obligations of the Owner
Trustee, the Holder or the Lender, as the case may be, and shall be deemed an "Owner Trustee", "Holder" or
"Lender", as the case may be, for all purposes of such documents and each reference herein to the transferor shall
thereafter be deemed a reference to such transferee for all purposes, except as provided in the preceding
sentence. Notwithstanding any transfer of all or a portion of the transferor's interest as provided in this
Section 10, the transferor shall be entitled to all benefits accrued and all rights vested prior to such transfer
including without limitation rights to indemnification under any such document.
SECTION 11. INDEMNIFICATION.
11.1. General Indemnity.
Subject to and limited by in all respects the provisions of Sections 11.6 through 11.8 and whether or
not any of the transactions contemplated hereby shall be consummated, the Indemnity Provider hereby assumes
liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an After Tax Basis
from and against any Claims, which may be imposed on, incurred by or asserted against an Indemnified Person by
any third party, including without limitation Claims arising from the negligence of an Indemnified Person (but
not to the extent such Claims arise from the gross negligence or willful misconduct of such Indemnified Person
itself, as determined by a court of competent jurisdiction, as opposed to gross negligence or willful misconduct
imputed to such Indemnified Person) in any way relating to or arising or alleged to arise out of the execution,
delivery, performance or enforcement of this Agreement, the Lease, any other Operative Agreement, the Bond Loan
Documents, the Bond Documents, or on or with respect to any Property or any component thereof, including without
limitation Claims in any way relating to or arising or alleged to arise out of (a) the financing, refinancing,
purchase, acceptance, rejection, ownership, design, construction, refurbishment, development, delivery,
acceptance, nondelivery, leasing, subleasing, possession, use, occupancy, operation, maintenance, repair,
modification, transportation, condition, sale, return, repossession (whether by summary proceedings or
otherwise), or any other disposition of any Property or any part thereof, including without limitation the
acquisition, holding or disposition of any interest in the Property, lease or agreement comprising a portion of
any thereof; (b) any latent or other defects in any Property or any portion thereof whether or not discoverable
by an Indemnified Person or the Indemnity Provider; (c) a violation of Environmental Laws, Environmental Claims
or other loss of or damage to any property or the environment relating to the Property, the Lease, the
Construction Agency Agreement or the Indemnity Provider; (d) the Operative Agreements, the Bond Loan Documents,
the Bond Documents, or any transaction contemplated thereby; (e) any breach by the Indemnity Provider of any of
its representations or warranties under the Operative Agreements, the Bond Loan Documents, or the Bond Documents
to which the Indemnity Provider is a party or failure by the Indemnity Provider to perform or observe any
covenant or agreement to be performed by it under any of the Operative Agreements, the Bond Loan Documents, or
the Bond Documents; (f) the transactions contemplated hereby or by any other Operative Agreement, Bond Loan
Document or Bond Document, in respect of the application of Parts 4 and 5 of Subtitle B of Title I of ERISA; (g)
personal injury, death or property damage, including without limitation Claims based on strict or absolute
liability in tort; and (h) any fees, expenses and/or other assessments by any business park or any other
applicable entity with oversight responsibility for the applicable Property.
If a written Claim is made against any Indemnified Person or if any proceeding shall be commenced
against such Indemnified Person (including without limitation a written notice of such proceeding), for any
Claim, such Indemnified Person shall promptly notify the Indemnity Provider in writing and shall not take action
with respect to such Claim without the consent of the Indemnity Provider for thirty (30) days after the receipt
of such notice by the Indemnity Provider; provided, however, that in the case of any such Claim, if action shall
be required by law or regulation to be taken prior to the end of such period of thirty (30) days, such
Indemnified Person shall endeavor to, in such notice to the Indemnity Provider, inform the Indemnity Provider of
such shorter period, and no action shall be taken with respect to such Claim without the consent of the Indemnity
Provider before seven (7) days before the end of such shorter period; provided, further, that the failure of such
Indemnified Person to give the notices referred to in this sentence shall not diminish the Indemnity Provider's
obligation hereunder except to the extent such failure precludes in all respects the Indemnity Provider from
contesting such Claim.
If, within thirty (30) days of receipt of such notice from the Indemnified Person (or such shorter
period as the Indemnified Person has notified the Indemnity Provider is required by law or regulation for the
Indemnified Person to respond to such Claim), the Indemnity Provider shall request in writing that such
Indemnified Person respond to such Claim, the Indemnified Person shall, at the expense of the Indemnity Provider,
in good faith conduct and control such action (including without limitation by pursuit of appeals) (provided,
however, that (A) if such Claim, in the Indemnity Provider's reasonable discretion, can be pursued by the
Indemnity Provider on behalf of or in the name of such Indemnified Person, the Indemnified Person, at the
Indemnity Provider's request, shall allow the Indemnity Provider to conduct and control the response to such
Claim and (B) in the case of any Claim (and notwithstanding the provisions of the foregoing subsection (A)), the
Indemnified Person may request the Indemnity Provider to conduct and control the response to such Claim (with
counsel to be selected by the Indemnity Provider and consented to by such Indemnified Person, such consent not to
be unreasonably withheld; provided, however, that any Indemnified Person may retain separate counsel at the
expense of the Indemnity Provider in the event of a conflict of interest between such Indemnified Person and the
Indemnity Provider)) by, in the sole discretion of the Person conducting and controlling the response to such
Claim (1) resisting payment thereof, (2) not paying the same except under protest, if protest is necessary and
proper, (3) if the payment be made, using reasonable efforts to obtain a refund thereof in appropriate
administrative and judicial proceedings, or (4) taking such other action as is reasonably requested by the
Indemnity Provider from time to time.
The party controlling the response to any Claim shall consult in good faith with the non-controlling
party and shall keep the non-controlling party reasonably informed as to the conduct of the response to such
Claim; provided, that all decisions ultimately shall be made in the discretion of the controlling party. The
parties agree that an Indemnified Person may at any time decline to take further action with respect to the
response to such Claim and may settle such Claim if such Indemnified Person shall waive its rights to any
indemnity from the Indemnity Provider that otherwise would be payable in respect of such Claim (and any future
Claim, the pursuit of which is precluded by reason of such resolution of such Claim) and shall pay to the
Indemnity Provider any amount previously paid or advanced by the Indemnity Provider pursuant to this Section 11.1
by way of indemnification or advance for the payment of an amount regarding such Claim.
Notwithstanding the foregoing provisions of this Section 11.1, an Indemnified Person shall not be
required to take any action and the Indemnity Provider shall not be permitted to respond to any Claim in its own
name or that of the Indemnified Person unless (A) the Indemnity Provider shall have agreed to pay and shall pay
to such Indemnified Person on demand and on an After Tax Basis all reasonable costs, losses and expenses that
such Indemnified Person actually incurs in connection with such Claim, including without limitation all
reasonable legal, accounting and investigatory fees and disbursements and, if the Indemnified Person has informed
the Indemnity Provider that it intends to contest such Claim (whether or not the control of the contest is then
assumed by the Indemnity Provider), the Indemnity Provider shall have agreed that the Claim is an indemnifiable
Claim hereunder, (B) in the case of a Claim that must be pursued in the name of an Indemnified Person (or an
Affiliate thereof), the amount of the potential indemnity (taking into account all similar or logically related
Claims that have been or could be raised for which the Indemnity Provider may be liable to pay an indemnity under
this Section 11.1) exceeds $25,000 (or such lesser amount as may be subsequently agreed between the Indemnity
Provider and the Indemnified Person), (C) the Indemnified Person shall have reasonably determined that the action
to be taken will not result in any material danger of sale, forfeiture or loss of the Property, or any part
thereof or interest therein, will not interfere with the payment of Rent, and will not result in risk of criminal
liability, (D) if such Claim shall involve the payment of any amount prior to the resolution of such Claim, the
Indemnity Provider shall provide to the Indemnified Person an interest-free advance in an amount equal to the
amount that the Indemnified Person is required to pay (with no additional net after-tax cost to such Indemnified
Person) prior to the date such payment is due, (E) in the case of a Claim that must be pursued in the name of an
Indemnified Person (or an Affiliate thereof), the Indemnity Provider shall have provided to such Indemnified
Person an opinion of independent counsel selected by the Indemnity Provider and reasonably satisfactory to the
Indemnified Person stating that a reasonable basis exists to contest such Claim (or, in the case of an appeal of
an adverse determination, an opinion of such counsel to the effect that the position asserted in such appeal has
a reasonable chance to prevail) and (F) no Event of Default shall have occurred and be continuing. In no event
shall an Indemnified Person be required to appeal an adverse judicial determination to the United States Supreme
Court. In addition, an Indemnified Person shall not be required to contest any Claim in its name (or that of an
Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided
adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 11.1, unless
there shall have been a change in law (or interpretation thereof) and the Indemnified Person shall have received,
at the Indemnity Provider's expense, an opinion of independent counsel selected by the Indemnity Provider and
reasonably acceptable to the Indemnified Person stating that as a result of such change in law (or interpretation
thereof), it is more likely than not that the Indemnified Person will prevail in such contest. In no event shall
the Indemnity Provider be permitted to adjust or settle any Claim without the consent of the Indemnified Person
to the extent any such adjustment or settlement involves, or is reasonably likely to involve, any performance by
or adverse admission by or with respect to the Indemnified Person.
11.2. General Tax Indemnity.
(a) Subject to and limited by in all respects the provisions of Sections 11.6 through
11.8, the Indemnity Provider shall pay and assume liability for, and does hereby agree to indemnify,
protect and defend each Property and all Indemnified Persons, and hold them harmless against, all
Impositions on an After Tax Basis, and all payments pursuant to the Operative Agreements shall be made
free and clear of and without deduction for any and all present and future Impositions.
(b) Notwithstanding anything to the contrary in Section 11.2(a) hereof, the following
shall be excluded from the indemnity required by Section 11.2(a) (collectively, the "Excluded Taxes"):
(i) Taxes and Impositions (other than Taxes that are, or are in the nature of,
sales, use, rental, transfer or property taxes and other than Taxes imposed on the Lessor, the
Owner Trustee, the Trustee, the Trust and AC Trust 2000-2) that are imposed by any Governmental
Authority on an Indemnified Person and that are based upon or measured by or with respect to
the overall gross or net income or overall gross or net receipts (including, without
limitation, any minimum taxes, income or capital gains taxes, or taxes on, measured by or with
respect to or in the nature of capital, net worth, excess profits, items of tax preference,
capital stock, franchise, business privilege or doing business taxes and any interest,
additions to tax, penalties or other charges in respect thereof; provided that such Taxes,
interest, additions to tax, penalties or other charges shall not be excluded under this
subparagraph (i) to the extent such Taxes would have been imposed had the location, possession
or use of any Property in, the location or the operation of the Lessee in, or the Lessee's or
Bond Trustee's making payments under the Operative Agreements, the Bond Documents or the Bond
Loan Documents from, the jurisdiction imposing such Taxes been the sole connection between such
Indemnified Person and the jurisdiction imposing such Taxes); provided, further, that this
clause (i) shall not be interpreted to prevent a payment from being made on an After Tax Basis
if such payment is otherwise required to be so made;
(ii) any Tax or Imposition to the extent it relates to any act, event or omission
that occurs after the termination of the Lease and redelivery or sale of the Property in
accordance with the terms of the Lease (but not any Tax or Imposition that relates to such
termination, redelivery or sale and/or to any period prior to such termination, redelivery or
sale);
(iii) any Tax or Imposition for so long as, but only for so long as, it is being
contested in accordance with the provisions of Section 11.2(f) of the Participation Agreement,
provided that the foregoing shall not limit any Lessee's obligation under Section 11.2(f) of
the Participation Agreement to advance to such Indemnified Person amounts with respect to
expenses incurred by such Indemnified Person in connection with such contest;
(iv) any interest, additions to tax or penalties imposed on an Indemnified Person
as a result of a breach by such Indemnified Person of its obligations under Section 11.2(d) of
the Participation Agreement as a result of an Indemnified Person's failure to file any return or
other documents timely and as prescribed by applicable law; provided that this clause (iv) shall
not apply (x) if such interest or penalties arise as a result of a position taken (or requested
to be taken) by the Lessee in a contest controlled by the Lessee under Section 11.2(f) of the
Participation Agreement or (y) if such failure is attributable to a failure by the Lessee to
fulfill its obligations under the Lease with respect to any such return;
(v) any Taxes or Impositions imposed upon an Indemnified Person with respect to
any voluntary transfer, sale, financing or other voluntary disposition of any interest in any
Property or any part thereof, or any interest therein or any interest or obligation under the
Operative Agreements or from any sale, assignment, transfer or other disposition of any
interest in an Indemnified Person or any Affiliate thereof (other than (1) a transfer in
connection with the exercise by the Lessee of its Purchase Option or any termination option or
other purchase of any Property by Lessee or any Affiliate thereof, (2) a transfer made pursuant
to the exercise of remedies following the occurrence of an Event of Default, (3) a transfer in
connection with a Casualty or Condemnation affecting any Property, (4) a transfer in connection
with any sublease, modification or addition to any Property by the Lessee, or (5) any transfer
made at the request of Lessee);
(vi) any Taxes or Impositions imposed on an Indemnified Person to the extent such
Indemnified Person actually receives a credit (or otherwise has a reduction in a liability for
Taxes) in respect thereof against Taxes that are not indemnified under the Participation
Agreement (but only to the extent such credit is not taken into account in calculating the
indemnity payment on an After Tax Basis);
(vii) Taxes imposed on the Owner Trustee, the Trustee or the Bond Trustee based on,
measured by or imposed with respect to any fees for services rendered under the Trust
Agreement, Trust Agreement (AC Trust 2000-2) or the Bond Indenture;
(viii) any Taxes which are imposed on an Indemnified Person as a result of the gross
negligence or willful misconduct of such Indemnified Person itself, as determined by a court of
competent jurisdiction (as opposed to gross negligence or willful misconduct imputed to such
Indemnified Person);
(ix) Taxes imposed on or payable by an Indemnified Person to the extent such Taxes
directly result from a breach by the Indemnified Person of any representations, warranties or
covenants set forth in the Operative Agreements (unless such breach is directly caused by
Lessee's breach of its representations, warranties or covenants set forth in the Operative
Agreements);
(x) Taxes to the extent resulting from such Indemnified Person's failure to comply
with the provisions of Section 11.2(f) of the Participation Agreement, which failure precludes
in all respects the ability to conduct a contest pursuant to Section 11.2(f) of the
Participation Agreement (unless such failure is caused by the Lessee's breach of its
obligations);
(xi) with respect to each Property, Taxes which are included in applicable Property
Cost or applicable Property Acquisition Cost if and to the extent actually paid to the proper
Governmental Authority;
(xii) [Intentionally omitted];
(xiii) Taxes imposed on or with respect to or payable by an Indemnified Person
resulting from, or that would not have been imposed but for the existence of, any Lessor Lien
created by or through such Indemnified Person or an Affiliate thereof and not caused by acts or
omissions of any Lessee, unless required to be removed by any Lessee;
(xiv) Any Tax imposed against or payable by an Indemnified Person to the extent that
the amount of such Tax exceeds the amount of such Tax that would have been imposed against or
payable by such Indemnified Person (or, if less, that would have been subject to
indemnification under Section 11.2 of the Participation Agreement) if such Indemnified Person
were not a direct or indirect successor, transferee or assign of one of the original
Indemnified Persons; provided, however, that this exclusion (xiv) shall not apply if such
direct or indirect successor, transferee or assign acquired its interest as a result of a
transfer permitted under the Operative Agreements pursuant to and while an Event of Default
shall have occurred and is continuing;
(xv) Taxes imposed on or with respect to or payable by an Indemnified Person that
would not have been imposed but for an amendment, supplement, modification, consent or waiver
to any Operative Agreement not initiated, required or consented to by any Lessee unless such
amendment, supplement, modification, consent or waiver (A) arises due to, or in connection with
there having occurred, an Event of Default, (B) is required by the terms of the Operative
Agreements or is executed in connection with any amendment to the Operative Agreements required
by law, or (C) is necessary or appropriate to, and is in conformity with, any amendment to any
Operative Agreement initiated, requested or consented to by the Lessee; and
(xvi) Taxes that are, or are in the nature of, intangibles Taxes with respect to the
Notes or Certificates.
(c) (i) Subject to the terms of Section 11.2(f), the Indemnity Provider shall pay or
cause to be paid all Impositions directly to the taxing authorities where feasible and
otherwise to the Indemnified Person, as appropriate, and the Indemnity Provider shall at its
own expense, upon such Indemnified Person's reasonable request, furnish to such Indemnified
Person copies of official receipts or other satisfactory proof evidencing such payment.
(ii) In the case of Impositions for which no contest is conducted pursuant to
Section 11.2(f) and which the Indemnity Provider pays directly to the taxing authorities, the
Indemnity Provider shall pay such Impositions prior to the latest time permitted by the
relevant taxing authority for timely payment. In the case of Impositions for which the
Indemnity Provider reimburses an Indemnified Person, the Indemnity Provider shall do so within
thirty (30) days after receipt by the Indemnity Provider of demand by such Indemnified Person
describing in reasonable detail the nature of the Imposition and the basis for the demand
(including without limitation the computation of the amount payable), accompanied by receipts
or other reasonable evidence of such demand. In the case of Impositions for which a contest is
conducted pursuant to Section 11.2(f), the Indemnity Provider shall pay such Impositions or
reimburse such Indemnified Person for such Impositions, to the extent not previously paid or
reimbursed pursuant to subsection (a), prior to the latest time permitted by the relevant
taxing authority for timely payment after conclusion of all contests under Section 11.2(f).
(iii) At the Indemnity Provider's request, the amount of any indemnification payment
by the Indemnity Provider pursuant to subsection (a) shall be verified and certified by an
independent public accounting firm mutually acceptable to the Indemnity Provider and the
Indemnified Person. The fees and expenses of such independent public accounting firm shall be
paid by the Indemnity Provider unless such verification shall result in an adjustment in the
Indemnity Provider's favor of fifteen percent (15%) or more of the payment as computed by the
Indemnified Person, in which case such fee shall be paid by the Indemnified Person.
(d) The Indemnity Provider shall be responsible for preparing and filing any real and
personal property or ad valorem tax returns in respect of each Property and any other tax returns
required for the Owner Trustee respecting the transactions described in the Operative Agreements. In
case any other report or tax return shall be required to be made with respect to any obligations of the
Indemnity Provider under or arising out of subsection (a) and of which the Indemnity Provider has
knowledge or should have knowledge, the Indemnity Provider, at its sole cost and expense, shall notify
the relevant Indemnified Person of such requirement and (except if such Indemnified Person notifies the
Indemnity Provider that such Indemnified Person intends to prepare and file such report or return) (A)
to the extent required or permitted by and consistent with Legal Requirements, make and file in the
Indemnity Provider's name such return, statement or report; and (B) in the case of any other such
return, statement or report required to be made in the name of such Indemnified Person, advise such
Indemnified Person of such fact and prepare such return, statement or report for filing by such
Indemnified Person or, where such return, statement or report shall be required to reflect items in
addition to any obligations of the Indemnity Provider under or arising out of subsection (a), provide
such Indemnified Person at the Indemnity Provider's expense with information sufficient to permit such
return, statement or report to be properly made with respect to any obligations of the Indemnity
Provider under or arising out of subsection (a). Such Indemnified Person shall, upon the Indemnity
Provider's request and at the Indemnity Provider's expense, provide any data maintained by such
Indemnified Person (and not otherwise available to or within the control of the Indemnity Provider) with
respect to each Property which the Indemnity Provider may reasonably require to prepare any required tax
returns or reports.
(e) As between the Indemnity Provider on one hand, and each Financing Party on the other
hand, the Indemnity Provider shall be responsible for, and the Indemnity Provider shall indemnify and
hold harmless each Financing Party (without duplication of any indemnification required by subsection
(a)) on an After Tax Basis against, any obligation for United States or foreign withholding taxes or
similar levies, imposts, charges, fees, deductions or withholdings (collectively, "Withholdings")
imposed in respect of the interest payable on the Notes, Holder Yield payable on the Certificates or
with respect to any other payments under the Operative Agreements (all such payments being referred to
herein as "Exempt Payments" to be made without deduction, withholding or set off) (and, if any Financing
Party receives a demand for such payment from any taxing authority or a Withholding is otherwise
required with respect to any Exempt Payment, the Indemnity Provider shall discharge such demand on
behalf of such Financing Party); provided, however, that the obligation of the Indemnity Provider under
this Section 11.2(e) shall not apply to:
(i) Withholdings on any Exempt Payment to any Financing Party which is a non-U.S.
Person unless such Financing Party is, on the date hereof (or on the date it becomes a
Financing Party hereunder) and on the date of any change in the principal place of business or
the lending office of such Financing Party, entitled to submit a Form 1001 (relating to such
Financing Party and entitling it to a complete exemption from Withholding on such Exempt
Payment) or Form 4224 or is otherwise subject to exemption from Withholding with respect to
such Exempt Payment (except where the failure of the exemption results from a change in the
principal place of business of the Lessee; provided if a failure of exemption for any Financing
Party results from a change in the principal place of business or lending office of any other
Financing Party, then such other Financing Party shall be liable for any Withholding or
indemnity with respect thereto), or
(ii) Any U.S. Taxes imposed solely by reason of the failure by a non-U.S. Person to
comply with applicable certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or connections with the United
States of America of such non-U.S. Person if such compliance is required by statute or
regulation of the United States of America as a precondition to relief or exemption from such
U.S. Taxes.
For the purposes of this Section 11.2(e), (A) "U.S. Person" shall mean a citizen, national or resident
of the United States of America, a corporation, partnership or other entity created or organized in or
under any laws of the United States of America or any State thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B) "U.S. Taxes" shall mean
any present or future tax, assessment or other charge or levy imposed by or on behalf of the United
States of America or any taxing authority thereof or therein, (C) "Form 1001" shall mean Form 1001
(Ownership, Exemption, or Reduced Rate Certificate) of the Department of the Treasury of the United
States of America and (D) "Form 4224" shall mean Form 4224(R) (Exemption from Withholding of Tax on
Income Effectively Connected with the Conduct of a Trade or Business in the United States) of the
Department of Treasury of the United States of America (or in relation to either such Form such
successor and related forms as may from time to time be adopted by the relevant taxing authorities of
the United States of America to document a claim to which such Form relates). Each of the Forms
referred to in the foregoing clauses (C) and (D) shall include such successor and related forms as may
from time to time be adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
If a Financing Party or an Affiliate with whom such Financing Party files a consolidated tax
return (or equivalent) subsequently receives the benefit in any country of a tax credit or an allowance
resulting from U.S. Taxes with respect to which it has received a payment of an additional amount under
this Section 11.2(e), such Financing Party will pay to the Indemnity Provider such part of that benefit
as in the opinion of such Financing Party will leave it (after such payment) in a position no more and
no less favorable than it would have been in if no additional payment had been required to be paid,
provided always that (i) such Financing Party will be the sole judge of the amount of any such benefit
and of the date on which it is received, (ii) such Financing Party will have the absolute discretion as
to the order and manner in which it employs or claims tax credits and allowances available to it and
(iii) such Financing Party will not be obliged to disclose to the Indemnity Provider any information
regarding its tax affairs or tax computations.
Each non-U.S. Person that shall become a Financing Party after the date hereof shall, upon the
effectiveness of the related transfer or otherwise upon becoming a Financing Party hereunder, be
required to provide all of the forms and statements referenced above or other evidences of exemption
from Withholdings.
(f) If a written Claim is made against any Indemnified Person or if any proceeding shall
be commenced against such Indemnified Person (including without limitation a written notice of such
proceeding), for any Impositions, the provisions in Section 11.1 relating to notification and rights to
contest shall apply; provided, however, that the Indemnity Provider shall have the right to conduct and
control such contest only if such contest involves a Tax other than a Tax on net income of the
Indemnified Person and can be pursued independently from any other proceeding involving a Tax liability
of such Indemnified Person.
11.3. Increased Costs, Illegality, etc.
(a) If, due to either (i) the introduction of or any change in or in the interpretation of
any law or regulation or (ii) the compliance with any guideline or request hereafter adopted,
promulgated or made by any central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Financing Party of agreeing to make or making,
funding or maintaining Advances, then the Lessee shall from time to time, upon demand by such Financing
Party (with a copy of such demand to the Agent but subject to the terms of Section 2.11 of the Credit
Agreement and 3.9 of the Trust Agreement, as the case may be), pay to the Agent for the account of such
Financing Party additional amounts sufficient to compensate such Financing Party for such increased
cost. A certificate as to the amount of such increased cost, submitted to the Lessee and the Agent by
such Financing Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) Subject to the last sentence of this Section 11.3(b), if any Financing Party
determines that compliance with any law or regulation or any guideline or request from any central bank
or other governmental authority (whether or not having the force of law, but in each case promulgated or
made after the date hereof) affects or would affect the amount of capital required or expected to be
maintained by such Financing Party or any corporation controlling such Financing Party and that the
amount of such capital is increased by or based upon the existence of such Financing Party's commitment
to make Advances and other commitments of this type or upon the Advances, then, upon demand by such
Financing Party (with a copy of such demand to the Agent but subject to the terms of Section 2.11 of the
Credit Agreement and 3.9 of the Trust Agreement), the Lessee shall pay to the Agent for the account of
such Financing Party, from time to time as specified by such Financing Party, additional amounts
sufficient to compensate such Financing Party or such corporation in the light of such circumstances, to
the extent that such Financing Party reasonably determines such increase in capital to be allocable to
the existence of such Financing Party's commitment to make such Advances. A certificate as to such
amounts submitted to the Lessee and the Agent by such Financing Party shall be conclusive and binding
for all purposes, absent manifest error.
(c) Without limiting the effect of the foregoing, the Lessee shall pay to each Financing
Party on the last day of the Interest Period therefor so long as such Financing Party is maintaining
reserves against "Eurocurrency liabilities" under Regulation D an additional amount (determined by such
Financing Party and notified to the Lessee through the Agent) equal to the product of the following for
each Eurodollar Loan or Eurodollar Holder Advance, as the case may be, for each day during such Interest
Period:
(i) the principal amount of such Eurodollar Loan or Eurodollar Holder Advance, as
the case may be, outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the rate (expressed
as a decimal) at which interest accrues on such Eurodollar Loan or Eurodollar Holder Advance,
as the case may be, for such Interest Period as provided in the Credit Agreement or the Trust
Agreement, as the case may be (less the Applicable Percentage), and the denominator of which is
one (1) minus the effective rate (expressed as a decimal) at which such reserve requirements
are imposed on such Financing Party on such day minus (y) such numerator; and
(iii) 1/360.
(d) Without affecting its rights under Sections 11.3(a), 11.3(b) or 11.3(c) or any other
provision of any Operative Agreement, each Financing Party agrees that if there is any increase in any
cost to or reduction in any amount receivable by such Financing Party with respect to which the Lessee
would be obligated to compensate such Financing Party pursuant to Sections 11.3(a) or 11.3(b), such
Financing Party shall use reasonable efforts to select an alternative office for Advances which would
not result in any such increase in any cost to or reduction in any amount receivable by such Financing
Party; provided, however, that no Financing Party shall be obligated to select an alternative office for
Advances if such Financing Party determines that (i) as a result of such selection such Financing Party
would be in violation of any applicable law, regulation, treaty, or guideline, or would incur additional
costs or expenses or (ii) such selection would be inadvisable for regulatory reasons or materially
inconsistent with the interests of such Financing Party.
(e) With reference to the obligations of the Lessee set forth in Sections 11.3(a) through
11.3(d), the Lessee shall not have any obligation to pay to any Financing Party amounts owing under such
Sections for any period which is more than one hundred eighty (180) days prior to the date upon which
the request for payment therefor is delivered to the Lessee.
(f) Notwithstanding any other provision of this Agreement, if any Financing Party shall
notify the Agent that the introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental authority asserts that it is
unlawful, for any Financing Party to perform its obligations hereunder to make or maintain Eurodollar
Loans or Eurodollar Holder Advances, as the case may be, then (i) each Eurodollar Loan or Eurodollar
Holder Advance, as the case may be, will automatically, at the earlier of the end of the Interest Period
for such Eurodollar Loan or Eurodollar Holder Advance, as the case may be, or the date required by law,
convert into an ABR Loan or an ABR Holder Advance, as the case may be, and (iii) the obligation of the
Financing Parties to make, convert or continue Eurodollar Loans or Eurodollar Holder Advances, as the
case may be, shall be suspended until the Agent shall notify the Lessee that such Financing Party has
determined that the circumstances causing such suspension no longer exist.
11.4. Funding/Contribution Indemnity.
Subject to the provisions of Section 2.11(a) of the Credit Agreement and 3.9(a) of the Trust Agreement,
as the case may be, the Lessee agrees to indemnify each Financing Party and to hold each Financing Party harmless
from any loss or reasonable expense which such Financing Party may sustain or incur as a consequence of (a) any
default in connection with the drawing of funds for any Advance, (b) any default in making any prepayment after a
notice thereof has been given in accordance with the provisions of the Operative Agreements or (c) the making of
a voluntary or involuntary payment of Eurodollar Loans or Eurodollar Holder Advances, as the case may be, on a
day which is not the last day of an Interest Period with respect thereto. Such indemnification shall be in an
amount equal to the excess, if any, of (x) the amount of interest or Holder Yield, as the case may be, which
would have accrued on the amount so paid, or not so borrowed, accepted, converted or continued for the period
from the date of such payment or of such failure to borrow, accept, convert or continue to the last day of such
Interest Period (or, in the case of a failure to borrow, accept, convert or continue, the Interest Period that
would have commenced on the date of such failure) in each case at the applicable Eurodollar Rate plus the
Applicable Percentage for such Loan or Holder Advance, as the case may be, for such Interest Period over (y) the
amount of interest (as determined by such Financing Party in its reasonable discretion) which would have accrued
to such Financing Party on such amount by (i) (in the case of the Lenders) reemploying such funds in loans of the
same type and amount during the period from the date of payment or failure to borrow to the last day of the then
applicable Interest Period (or, in the case of a failure to borrow, the Interest Period that would have commenced
on the date of such failure) and (ii) (in the case of the Holders) placing such amount on deposit for a
comparable period with leading banks in the relevant interest rate market. This covenant shall survive the
termination of the Operative Agreements and the payment of all other amounts payable hereunder.
11.5. EXPRESS INDEMNIFICATION FOR ORDINARY NEGLIGENCE, STRICT LIABILITY, ETC.
Subject to and limited by in all respects the provisions of Section 11.6 through 11.8 and WITHOUT
LIMITING THE GENERALITY OF THE INDEMNIFICATION PROVISIONS OF ANY AND ALL OF THE OPERATIVE AGREEMENTS, EACH PERSON
PROVIDING INDEMNIFICATION OF ANOTHER PERSON UNDER ANY OPERATIVE AGREEMENT HEREBY FURTHER EXPRESSLY RELEASES EACH
BENEFICIARY OF ANY SUCH INDEMNIFICATION FROM ALL CLAIMS FOR LOSS OR DAMAGE, DESCRIBED IN ANY OPERATIVE AGREEMENT,
BOND LOAN DOCUMENT OR BOND DOCUMENT CAUSED BY ANY ACT OR OMISSION ON THE PART OF ANY SUCH BENEFICIARY
ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE (WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH
BENEFICIARY, AND INDEMNIFIES, EXONERATES AND HOLDS EACH SUCH BENEFICIARY FREE AND HARMLESS FROM AND AGAINST ANY
AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, LOSSES, COSTS, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING
WITHOUT LIMITATION ATTORNEY'S FEES AND EXPENSES), DESCRIBED ABOVE, INCURRED BY ANY SUCH BENEFICIARY (IRRESPECTIVE
OF WHETHER ANY SUCH BENEFICIARY IS A PARTY TO THE ACTION FOR WHICH INDEMNIFICATION UNDER THIS AGREEMENT, ANY
OTHER OPERATIVE AGREEMENT BOND LOAN DOCUMENT OR BOND DOCUMENT IS SOUGHT) ATTRIBUTABLE TO THE ORDINARY NEGLIGENCE
(WHETHER SOLE OR CONTRIBUTORY) OR STRICT LIABILITY OF ANY SUCH BENEFICIARY.
11.6. Additional Provisions Regarding Environmental Indemnification.
Each and every Indemnified Person shall at all times have the rights and benefits, and the Indemnity
Provider shall have the obligations, in each case provided pursuant to the Operative Agreements with respect to
environmental matters, violations of any Environmental Law, any Environmental Claim or other loss of or damage to
any property or the environment relating to any Property, the Lease, the Construction Agency Agreement or the
Indemnity Provider (including without limitation the rights and benefits provided pursuant to Section 11.1(c).
11.7. Additional Provisions Regarding Indemnification.
Notwithstanding the provisions of Sections 11.1, 11.2, 11.3, 11.4 and 11.5 (other than with respect to
matters concerning environmental indemnification referenced in Section 11.6), (a) the Owner Trustee shall be the
only beneficiary of the provisions set forth in Sections 11.1, 11.2, 11.3, 11.4 and 11.5 (again, subject to the
immediately preceding parenthetical phrase) with respect to each Property solely for the period prior to the
earlier to occur of the applicable Completion Date or Construction Period Termination Date for such Property, as
applicable, and (b) such limited rights of indemnification referenced in Section 11.7(a) (to the extent relating
to third-party claims) shall be limited to third-party claims caused by or resulting from the Indemnity
Provider's acts or omissions and/or all other Persons acting by, through or under the Indemnity Provider. After
the earlier to occur of the applicable Completion Date or Construction Period Termination Date for such Property,
as applicable, each Indemnified Person shall be a beneficiary of the provisions set forth in Sections 11.1, 11.2,
11.3, 11.4 and 11.5.
11.8. Indemnifications Provided by the Owner Trustee in Favor of the Other Indemnified Persons.
To the extent the Indemnity Provider is not obligated to indemnify each Indemnified Person with respect
to the various matters described in this Section 11.8, the Owner Trustee shall provide such indemnities (but only
to the extent amounts sufficient to pay such indemnity are funded by the Lenders and the Holders) in favor of
each Indemnified Person in accordance with this Section 11.8 and shall pay all such amounts owed with respect to
this Section 11.8 with amounts advanced by the Lenders and the Holders to the extent, but only to the extent,
amounts are available therefor with respect to the Available Commitments and the Available Holder Commitments
(subject to the rights of the Lenders and the Holders to increase their respective commitment amounts in
accordance with the provisions of Section 5.11). Notwithstanding any other provision in any other Operative
Agreement to the contrary, all amounts so advanced shall be deemed added (ratably, based on the ratio of the
Property Cost for each Property individually to the Aggregate Property Cost of all Properties at such time) to
the Property Cost of all Properties then subject to the terms of the Operative Agreements.
Whether or not any of the transactions contemplated hereby shall be consummated, the Owner Trustee
hereby assumes liability for and agrees to defend, indemnify and hold harmless each Indemnified Person on an
After Tax Basis from and against any Claims, which may be imposed on, incurred by or asserted against an
Indemnified Person by any third party, including without limitation Claims arising from the negligence of an
Indemnified Person (but not to the extent such Claims arise from the gross negligence or willful misconduct of
such Indemnified Person itself, as determined by a court of competent jurisdiction, as opposed to gross
negligence or willful misconduct imputed to such Indemnified Person or breach of such Indemnified Person's
obligations under this Agreement, the Lease, any other Operative Agreement, any Bond Loan Agreement or any Bond
Document) in any way relating to or arising or alleged to arise out of the execution, delivery, performance or
enforcement of this Agreement, the Lease, any other Operative Agreement, any Bond Loan Agreement or any Bond
Document or on or with respect to any Property or any component thereof, or any interest therein, including
without limitation Claims in any way relating to or arising or alleged to arise out of the matters set forth in
Sections 11.1(a) through 11.1(h).
The Owner Trustee shall pay and assume liability for, and does hereby agree to indemnify, protect and
defend each Property and all Indemnified Persons, and hold them harmless against, all Impositions on an After Tax
Basis, and all payments pursuant to the Operative Agreements shall be made free and clear of and without
deduction for any and all present and future Impositions. Notwithstanding anything to the contrary in this
paragraph, the Excluded Taxes shall be excluded from the indemnity provisions afforded by this paragraph.
The indemnity obligations undertaken by the Owner Trustee PURSUANT to this Section 11.8 are in all
respects subject to the limitations on liability referenced in Section 12.9.
SECTION 12. MISCELLANEOUS.
12.1. Survival of Agreements.
The representations, warranties, covenants, indemnities and agreements of the parties provided for in
the Operative Agreements, the Bond Loan Documents and the Bond Documents, and the parties' obligations under any
and all thereof, shall survive the execution and delivery of this Agreement, the making of the Bond Loan by the
Owner Trustee, the acquisition by the Series 0000-X Xxxx Xxxxxxxxx of the Series 2000-B Bond, the transfer of any
Property to the Owner Trustee (or with respect to the Little Rock Property, the City of Little Rock and the lease
thereof under the Head Lease to the Owner Trustee and subsequent sublease thereof under the Lease to the Lessee),
the acquisition of any Property (or any of its components), the construction of any Improvements, the Completion
of any Property, any disposition of any interest of the Owner Trustee in any Property, any interest of the City
of Little Rock in the Little Rock Property, or any interest of the Holders in the Trust Estate, the payment of
the Bond Loan Note, Bonds or Notes and any disposition thereof and shall be and continue in effect
notwithstanding any investigation made by any party and the fact that any party may waive compliance with any of
the other terms, provisions or conditions of any of the Operative Agreements, Bond Loan Documents or Bond
Documents. Except as otherwise expressly set forth herein or in other Operative Agreements, the indemnities of
the parties provided for in the Operative Agreements shall survive the expiration or termination of any thereof.
12.2. Notices.
All notices required or permitted to be given under any Operative Agreement shall be in writing.
Notices may be served by certified or registered mail, postage paid with return receipt requested; by private
courier, prepaid; by facsimile, or other telecommunication device capable of transmitting or creating a written
record; or personally. Mailed notices shall be deemed delivered five (5) days after mailing, properly
addressed. Couriered notices shall be deemed delivered when delivered as addressed, or if the addressee refuses
delivery, when presented for delivery notwithstanding such refusal. Telex or telecommunicated notices shall be
deemed delivered when receipt is either confirmed by confirming transmission equipment or acknowledged by the
addressee or its office. Personal delivery shall be effective when accomplished. Unless a party changes its
address by giving notice to the other party as provided herein, notices shall be delivered to the parties at the
following addresses:
If to the Construction Agent or the Lessee, to such entity at the following address:
Acxiom Corporation
#1 Information Way
X.X. Xxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Legal Leader
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to any Guarantor, to such entity in care of Acxiom at the above referenced address.
If to the Owner Trustee, the Trustee, the Bond Trustee, or the City of Little Rock, to it at
the following address:
First Security Bank, National Association
00 Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxx X. Xxxxx,
Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Holders, to each such Holder at the address set forth for such Holder on Schedule I
of the Trust Agreement.
If to the Agent, to it at the following address:
Bank of America, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxxx Leader
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to any Lender, to it at the address set forth for such Lender in Schedule 2.1 of the Credit
Agreement.
From time to time any party may designate additional parties and/or another address for notice
purposes by notice to each of the other parties hereto. Each notice hereunder shall be effective upon
receipt or refusal thereof.
12.3. 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 (1) and
the same instrument.
12.4. Terminations, Amendments, Waivers, Etc.; Unanimous Vote Matters.
Each Basic Document, Bond Loan Document and Bond Document may be terminated, amended, supplemented,
waived or modified only by an instrument in writing signed by, subject to Article VIII of the Trust Agreement
regarding termination of the Trust Agreement, the Majority Secured Parties and each Credit Party (to the extent
such Credit Party is a party to such Basic Document, Bond Loan Document or Bond Document); provided, to the
extent no Default or Event of Default shall have occurred and be continuing, the Majority Secured Parties shall
not amend, supplement, waive or modify any provision of any Basic Document, Bond Loan Document or Bond Document
in such a manner as to adversely affect the rights of any Credit Party without the prior written consent (not to
be unreasonably withheld or delayed) of such Credit Party; provided further that the Lessee shall in no event
have the right to consent to modifications to the terms of (i) the Credit Agreement required by the Lenders
pursuant to Section 2.6(e) of the Credit Agreement in connection with an extension of the maturity date of the
Loans beyond the Basic Term Expiration Date or (ii) the Trust Agreement required by the Holders pursuant to
Section 3.3 of the Trust Agreement in connection with an extension of the maturity date of the Holder Advances
beyond the Basic Term Expiration Date. Each Operative Agreement which is not a Basic Document may be terminated,
amended, supplemented, waived or modified only by an instrument in writing signed by the parties thereto and
(without the consent of any other Financing Party) the Agent. In addition, the Unanimous Vote Matters shall
require the consent of each Lender and each Holder affected by such matter.
Notwithstanding the foregoing, no such termination, amendment, supplement, waiver or modification shall,
without the consent of the Agent and, to the extent affected thereby, each Lender and each Holder (collectively,
the "Unanimous Vote Matters") (i) reduce the Lender Commitments and/or the Holder Commitments except as otherwise
provided in Section 2.5 of the Participation Agreement and Section 3.1(e) of the Trust Agreement, extend the
scheduled date of maturity of any Note, Bond Loan Note, Bond, or Certificate, extend the scheduled Expiration
Date, extend any payment date of any Note, Bond Loan Note, Bond or Certificate, reduce the stated rate of
interest payable on any Note, Bond Loan Note or Bond, reduce the stated Holder Yield payable on any Certificate
(other than as a result of waiving the applicability of any post-default increase in interest rates or Holder
Yields), modify the priority of any Lien in favor of the Agent under any Security Document, the Owner Trustee
under the Bond Loan Documents or the Series 0000-X Xxxx Xxxxxxxxx under the Bond Documents, subordinate any
obligation owed to such Lender or Holder, reduce any Lender Unused Fees or any Holder Unused Fees payable to such
Lender or Holder (as the case may be) under this Participation Agreement, extend the scheduled date of payment of
any Lender Unused Fees or any Holder Unused Fees payable to such Lender or Holder (as the case may be), elect to
decline the funding of any Transaction Expense or other amount with respect to Sections 7.1(a), 7.1(b), 7.3(a),
7.4, 7.5 or 7.6 elect to decline the funding of any indemnity payment by the Owner Trustee with respect to
Section 11.8 or extend the expiration date of such Lender's Commitment or the Holder Commitment of such Holder,
or (ii) terminate, amend, supplement, waive or modify any provision of this Section 12.4 or reduce the
percentages specified in the definitions of Majority Lenders, Majority Holders or Majority Secured Parties, or
consent to the assignment or transfer by the Owner Trustee of any of its rights and obligations under any Credit
Document or release a material portion of the Collateral (except in accordance with Section 8.8) or release any
Credit Party from its obligations under any Operative Agreement or Bond Document or otherwise alter any payment
obligations of any Credit Party to the Lessor or any Financing Party under the Operative Agreements, or (iii)
terminate, amend, supplement, waive or modify any provision of Section 7 of the Credit Agreement or Section 8.6
or 8.7 of this Agreement (which shall also require the consent of the Agent), or (iv) eliminate the automatic
option under Section 5.3(b) of the Construction Agency Agreement requiring that the Construction Agent pay
certain liquidated damages in exchange for the conveyance of a Property to the Construction Agent, or (v) permit
the extension of the Construction Period beyond the date that is two (2) years from the Initial Closing Date.
Any such termination, amendment, supplement, waiver or modification shall apply equally to each of the Lenders
and the Holders and shall be binding upon all the parties to this Agreement. In the case of any waiver, each
party to this Agreement shall be restored to its former position and rights under the Operative Agreements, Bond
Loan Documents and Bond Documents and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon. The parties to this Agreement agree that any increase in the aggregate Lender
Commitment and/or any increase in the aggregate Holder Commitment shall be a matter decided by the Majority
Secured Parties; provided, the Lender Commitment of any Lender shall not be increased without its consent (which
consent may be given or withheld in the sole discretion of such Lender) and the Holder Commitment of any Holder
shall not be increased without its consent (which consent may be given or withheld in the sole discretion of such
Holder).
If at a time when the conditions precedent set forth in the Operative Agreements to any Loan are, in the
opinion of the Majority Lenders, satisfied, any Lender shall fail to fulfill its obligations to make such Loan
(any such Lender, a "Defaulting Lender") then, for so long as such failure shall continue, (i) the Lessee may
require such Defaulting Lender to transfer or assign in whole or (with such Defaulting Lender's consent) in part
its interests, rights and obligations in accordance with the provisions of Section 2.11(b) of the Credit
Agreement, and (ii) the Defaulting Lender shall (unless the Lessee and the Majority Lenders, determined as if the
Defaulting Lender were not a "Lender", shall otherwise consent in writing) be deemed for all purposes relating to
terminations, amendments, supplements, waivers or modifications under the Operative Agreements to have no Loans,
shall not be treated as a "Lender" when performing the computation of Majority Lenders or Majority Secured
Parties, and shall have no rights under this Section 12.4; provided that any action taken pursuant to the second
paragraph of this Section 12.4 shall not be effective as against the Defaulting Lender. Nothing herein shall
relieve the Defaulting Lender from any of its obligations under the Operative Agreements.
If at a time when the conditions precedent set forth in the Operative Agreements to any Holder Advance
are, in the opinion of the Majority Holders, satisfied, any Holder shall fail to fulfill its obligations to make
such Holder Advance (any such Holder, a "Defaulting Holder") then, for so long as such failure shall continue,
(i) the Lessee may require such Defaulting Holder to transfer or assign in whole or (with such Defaulting Holder's
consent) in part its interests, rights and obligations in accordance with the provisions of Section 3.9(b) of the
Trust Agreement, and (ii) the Defaulting Holder shall (unless the Lessee and the Majority Holders, determined as
if the Defaulting Holder were not a "Holder", shall otherwise consent in writing) be deemed for all purposes
relating to terminations, amendments, supplements, waivers or modifications under the Operative Agreements to
have no Holder Advances, shall not be treated as a "Holder" when performing the computation of Majority Holders
or Majority Secured Parties, and shall have no rights under this Section 12.4; provided that any action taken
pursuant to the second paragraph of this Section 12.4 shall not be effective as against the Defaulting Holder.
Nothing herein shall relieve the Defaulting Holder from any of its obligations under the Operative Agreements.
12.5. Headings, etc.
The Table of Contents and 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.
12.6. Parties in Interest.
Except as expressly provided herein, none of the provisions of this Agreement are intended for the
benefit of any Person except the parties hereto.
12.7. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; VENUE.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NORTH CAROLINA (WITHOUT GIVING EFFECT TO THE PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW). Any
legal action or proceeding with respect to this Agreement or any other Operative Agreement may be
brought in the courts of the State of North Carolina in Mecklenburg County or of the United States for
the Western District of North Carolina and, by execution and delivery of this Agreement, each of the
parties to this Agreement hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the nonexclusive jurisdiction of such courts. Each of the parties to
this Agreement further irrevocably consents to the service of process out of any of the aforementioned
courts in any such action or proceeding by the mailing of copies thereof by registered or certified
mail, postage prepaid, to it at the address set out for notices pursuant to Section 12.2, such service
to become effective three (3) days after such mailing. Nothing herein shall affect the right of any
party to serve process in any other manner permitted by Law or to commence legal proceedings or to
otherwise proceed against any party in any other jurisdiction.
(b) EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY, TO THE FULLEST EXTENT
ALLOWED BY APPLICABLE LAW, WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, ANY OTHER OPERATIVE AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
(c) Each of the parties to this Agreement hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising
out of or in connection with this Agreement or any other Operative Agreement brought in the courts
referred to in subsection (a) above and hereby further irrevocably waives and agrees not to plead or
claim in any such court that any such action or proceeding brought in any such court has been brought in
an inconvenient forum.
12.8. 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.
12.9. Liability Limited.
(a) The Lenders, the Agent, the Credit Parties, the Owner Trustee, the Trustee and the
Holders each acknowledge and agree that each of the Owner Trustee and the Trustee is (except as
otherwise expressly provided herein or therein) entering into this Agreement, the other Operative
Agreements, the Bond Loan Documents, and the Bond Documents to which it is a party (other than the Trust
Agreement and to the extent otherwise provided in Section 6.1 of this Agreement, with respect to the
Owner Trustee and the Trust Agreement (AC Trust 2000-2) and to the extent provided in Section 6.1.A. of
this Agreement), solely in its capacity as trustee under the respective trust agreement and not in its
individual capacity and that neither the Trust Company nor FSN shall be liable or accountable under any
circumstances whatsoever in its individual capacity for or on account of any statements,
representations, warranties, covenants or obligations stated to be those of the Owner Trustee or
Trustee, as applicable, except for its own gross negligence or willful misconduct and as otherwise
expressly provided herein, in the other Operative Agreements, the Bond Loan Documents, and the Bond
Documents. In addition, the Lessee shall not have any recourse to the Owner Trustee as a result of the
Owner Trustee's failure to fund any amounts under Section 7 hereof, except for the Owner Trustee's own
gross negligence or willful misconduct.
(b) Anything to the contrary contained in this Agreement, the Credit Agreement, the Notes,
in any other Operative Agreement, the Bond Loan Documents or the Bond Documents notwithstanding, no
Exculpated Person shall be personally liable in any respect for any liability or obligation arising
hereunder, in any other Operative Agreement, the Bond Loan Documents or the Bond Documents, including
without limitation the payment of the principal of, or interest on, the Notes, the Bond Loan Note, the
Bonds, rent under the Head Lease, or for monetary damages for the breach of performance of any of the
covenants contained in the Credit Agreement, the Notes, this Agreement, the Security Agreement, any of
the other Operative Agreements, the Bond Loan Documents or Bond Documents. The Lenders, the Holders and
the Agent agree that, in the event any remedies under any Operative Agreement, the Bond Loan Documents
or the Bond Documents are pursued, neither the Lenders, the Holders nor the Agent shall have any
recourse against any Exculpated Person, for any deficiency, loss or Claim for monetary damages or
otherwise resulting therefrom and recourse shall be had solely and exclusively against the Trust Estate
(excluding Excepted Payments) or the Trust Estate (AC Trust 2000-2), as applicable, and the Credit
Parties (with respect to the Credit Parties' obligations under the Operative Agreements, the Bond Loan
Documents and the Bond Documents); but nothing contained herein shall be taken to prevent recourse
against or the enforcement of remedies against the Trust Estate (excluding Excepted Payments) or the
Trust Estate (AC Trust 2000-2), as applicable, in respect of any and all liabilities, obligations and
undertakings contained herein and/or in any other Operative Agreement, the Bond Loan Documents or the
Bond Documents. Notwithstanding the provisions of this Section, nothing in any Operative Agreement, the
Bond Loan Documents or the Bond Documents shall: (i) constitute a waiver, release or discharge of any
indebtedness or obligation evidenced by the Notes and/or the Certificates arising under any Operative
Agreement or secured by any Operative Agreement, but the same shall continue until paid or discharged;
(ii) relieve any Exculpated Person from liability and responsibility for (but only to the extent of the
damages arising by reason of): active waste knowingly committed by any Exculpated Person with respect
to any Property or any fraud, gross negligence or willful misconduct on the part of any Exculpated
Person; (iii) relieve any Exculpated Person from liability and responsibility for (but only to the
extent of the moneys misappropriated, misapplied or not turned over) (A) except for Excepted Payments,
misappropriation or misapplication by the Lessor (i.e., application in a manner contrary to any of the
Operative Agreements) of any insurance proceeds or condemnation award paid or delivered to the Lessor by
any Person other than the Agent, (B) except for Excepted Payments, any deposits or any escrows or
amounts owed by the Construction Agent under the Construction Agency Agreement held by the Lessor or (C)
except for Excepted Payments, any rent or other income received by the Lessor from any Credit Party that
is not turned over to the Agent; or (iv) affect or in any way limit the Agent's rights and remedies
under any Operative Agreement with respect to the Rents and rights and powers of the Agent under the
Operative Agreements or to obtain a judgment against the Lessee's interest in the Properties or the
Agent's rights and powers to obtain a judgment against the Lessor or any Credit Party (provided, that no
deficiency judgment or other money judgment shall be enforced against any Exculpated Person except to
the extent of the Lessor's interest in the Trust Estate (excluding Excepted Payments) or to the extent
the Lessor may be liable as otherwise contemplated in clauses (ii) and (iii) of this Section 12.9(b)).
12.10. Rights of the Credit Parties.
If at any time all obligations (i) of the Owner Trustee under the Credit Agreement, the Security
Documents and the other Operative Agreements and (ii) of the Credit Parties under the Operative Agreements have
in each case been satisfied or discharged in full, then the Credit Parties shall be entitled to (a) terminate the
Lease and guaranty obligations under Section 6B and (b) receive all amounts then held under the Operative
Agreements and all proceeds with respect to any of the Properties. Upon the termination of the Lease and Section
6B pursuant to the foregoing clause (a), the Lessor shall transfer to the Lessee all of its right, title and
interest free and clear of the Lien of the Lease, the Lien of the Security Documents and all Lessor Liens in and
to any Properties then subject to the Lease and any amounts or proceeds referred to in the foregoing clause (b)
shall be paid over to the Lessee.
12.11. Further Assurances.
The parties hereto shall promptly cause to be taken, executed, acknowledged or delivered, at the sole
expense of the Lessee, all such further acts, conveyances, documents and assurances as the other parties may from
time to time reasonably request in order to carry out and effectuate the intent and purposes of this
Participation Agreement, the other Operative Agreements, the Bond Loan Documents, the Bond Documents and the
transactions contemplated hereby and thereby (including without limitation the preparation, execution and filing
of any and all Uniform Commercial Code financing statements, filings of Mortgage Instruments and other filings or
registrations which the parties hereto may from time to time request to be filed or effected). The Lessee, at
its own expense and without need of any prior request from any other party, shall take such action as may be
necessary (including without limitation any action specified in the preceding sentence), or (if the Owner Trustee
shall so request) as so requested, in order to maintain and protect all security interests provided for
hereunder, or under any other Operative Agreement, Bond Loan Document or Bond Document. In addition, in
connection with the sale or other disposition of any Property or any portion thereof, the Lessee agrees to
execute such instruments of conveyance as may be reasonably required in connection therewith.
12.12. Calculations under Operative Agreements.
The parties hereto agree that all calculations and numerical determinations to be made under the
Operative Agreements by the Owner Trustee shall be made by the Agent and that such calculations and
determinations shall be conclusive and binding on the parties hereto in the absence of manifest error.
12.13. Confidentiality.
Each Financing Party agrees to keep confidential any information furnished or made available to it by
any Credit Party or any of its Subsidiaries pursuant to this Agreement that is marked confidential; provided that
nothing herein shall prevent any Financing Party from disclosing such information (a) to any other Financing
Party or any Affiliate of any Financing Party, or any officer, director, employee, agent, or advisor of any
Financing Party or Affiliate of any Financing Party, (b) to any other Person if reasonably incidental to the
administration of the credit facility provided herein, (c) as required by any law, rule, or regulation, (d) upon
the order of any court or administrative agency, (e) upon the request or demand of any regulatory agency or
authority, (f) that is or becomes available to the public or that is or becomes available to any Financing Party
other than as a result of a disclosure by any Financing Party prohibited by this Agreement, (g) in connection
with any litigation to which such Financing Party or any of its Affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under this Agreement or any other Operative Agreement,
Bond Loan Document or Bond Document, and (i) subject to provisions substantially similar to those contained in
this Section, to any actual or proposed participant or assignee.
12.14. Financial Reporting/Tax Characterization.
Lessee agrees to obtain advice from its own accountants and tax counsel regarding the financial
reporting treatment and the tax characterization of the transactions described in the Operative Agreements, Bond
Loan Documents and Bond Documents. Lessee further agrees that Lessee shall not rely upon any statement of any
Financing Party or any of their respective Affiliates and/or Subsidiaries regarding any such financial reporting
treatment and/or tax characterization. Lessee further agrees that no Financing Party shall have any liability
(including without limitation with respect to any act or omission on the part of any Financing Party) with
respect to the financial reporting treatment and/or the tax characterization of the transactions described in the
Operative Agreements.
12.15. Set-off.
In addition to any rights now or hereafter granted under applicable Law and not by way of limitation of
any such rights, upon and after the occurrence of any Event of Default and during the continuance thereof, the
Lenders, the Holders, their respective Affiliates and any assignee or participant of a Lender or a Holder in
accordance with the applicable provisions of the Operative Agreements are hereby authorized by the Credit Parties
at any time or from time to time, without notice to the Credit Parties or to any other Person, any such notice
being hereby expressly waived, to set-off and to appropriate and to apply any and all deposits (general or
special, time or demand, including without limitation indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time held or owing by the Lenders, the Holders, their
respective Affiliates or any assignee or participant of a Lender or a Holder in accordance with the applicable
provisions of the Operative Agreements to or for the credit or the account of any Credit Party against and on
account of the obligations of any Credit Party under the Operative Agreements irrespective of whether or not (a)
the Lenders or the Holders shall have made any demand under any Operative Agreement or (b) the Agent shall have
declared any or all of the obligations of any Credit Party under the Operative Agreements to be due and payable
and although such obligations shall be contingent or unmatured. Notwithstanding the foregoing, neither the Agent
nor any other Financing Party shall exercise, or attempt to exercise, any right of setoff, banker's lien, or the
like, against any deposit account or property of any Credit Party held by the Agent or any other Financing Party,
without the prior written consent of the Majority Secured Parties, and any Financing Party violating this
provision shall indemnify the Agent and the other Financing Parties from any and all costs, expenses, liabilities
and damages resulting therefrom. The contractual restriction on the exercise of setoff rights provided in the
foregoing sentence is solely for the benefit of the Agent and the Financing Parties and may not be enforced by
any Credit Party.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers thereunto duly authorized as of the day and year first above written.
CONSTRUCTION AGENT
AND LESSEE: ACXIOM CORPORATION, as the Construction Agent and as the
Lessee
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Business Development/Legal Leader
GUARANTORS: ACXIOM CDC, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ACXIOM/DIRECT MEDIA, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ACXIOM RM-TOOLS, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
ACXIOM/WOODLAND HILLS DATA
CENTER, INC.
By: /s/ Xxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
OWNER TRUSTEE AND
LESSOR: 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: 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: Trust Officer
AGENT AND LENDERS: BANK OF AMERICA, N.A., as a Lender and
as the Agent
By: /s/ Xxxxx X. Leader
----------------------------------------------------
Name: Xxxxx X. Leader
Title: Managing Director
ABN-AMRO BANK, N.V.
By: /s/ Xxxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Group Vice President
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H Xxxxx
----------------------------------------------------
Name: F.C.H Xxxxx
Title: Senior Manager Loan Operations
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior 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/ Xxxxx X. Leader
----------------------------------------------------
Name: Xxxxx X. Leader
Title: Managing Director
SCOTIABANC INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
LEASE PLAN NORTH AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxx
----------------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
EXHIBIT A
REQUISITION FORM
(Pursuant to Sections 4.2, 5.2, 5.3 and 5.4 of the Participation Agreement)
Acxiom Corporation, a Delaware corporation (the "Company") hereby certifies as true and correct and
delivers the following Requisition to Bank of America, N.A., as the agent for the Lenders (hereinafter defined)
and respecting the Security Documents, as the agent for the Lenders and the Holders (hereinafter defined), to the
extent of their interests (the "Agent"):
Reference is made herein to that certain Participation Agreement dated as of October 24, 2000 (as
amended, modified, extended, supplemented, restated and/or replaced from time to time, the "Participation
Agreement") among the Company, in its capacity as the Lessee and as the Construction Agent, the various parties
thereto from time to time, as the guarantors (the "Guarantors"), First Security Bank, National Association, as
the Owner Trustee, First Security Trust Company of Nevada, as Trustee, the various banks and other lending
institutions which are parties thereto from time to time, as holders (the "Holders"), the various banks and other
lending institutions which are parties thereto from time to time, as lenders (the "Lenders"), and the Agent.
Capitalized terms used herein but not otherwise defined herein shall have the meanings set forth therefor in the
Participation Agreement.
Check one:
____ INITIAL CLOSING DATE: ______________________
(three (3) Business Days prior notice required for Advance)
____ PROPERTY CLOSING DATE:___________________
(three (3) Business Days prior notice required for Advance)
____ CONSTRUCTION ADVANCE DATE:_____________
(three (3) Business Days prior notice required for Advance)
1. Transaction Expenses and other fees, expenses, disbursements and all other amounts contemplated to be
financed under the Participation Agreement including without limitation any Work, broker's fees, taxes,
recording fees and the like (with supporting invoices or closing statement attached):
Party to Whom Amount Owed
Amount is Owed (in U.S. Dollars)
============== ==============
============== ==============
-------------- --------------
2. Description of Land (which shall be a legal description of the Land in connection with an Advance to pay
Property Acquisition Costs): See attached Schedule 1
3. Description of Improvements: See attached Schedule 2
4. Description of Equipment: See attached Schedule 3
5. Description of Work: See attached Schedule 4
6. Aggregate Loans and Holder Advances requested since the Initial Closing Date with respect to each Property for
which Advances are requested under this Requisition (listed on a Property by Property basis), including
without limitation all amounts requested under this Requisition: [identify on a Property specific basis]
$______________ [Property]
In connection with this Requisition, the Company hereby requests that the Lenders make Loans to the
Lessor in the amount of $______________ and that the Holders make Holder Advances to the Lessor in the amount of
$________________. The Company represents and warrants that each Lender's Tranche A Commitment and Tranche B
Commitment and each Holder's Holder Commitment with respect to the Advances for a Property are set forth on
Schedule 5 attached hereto. The Company hereby certifies (i) that the foregoing amounts requested do not exceed
the total aggregate of the Available Commitments plus the Available Holder Commitments and (ii) each of the
provisions of the Participation Agreement applicable to the Loans and Holder Advances requested hereunder have
been complied with as of the date of this Requisition.
The Company requests the Loans be allocated as follows:
$______________ ABR Loans
$______________ Eurodollar Loans
The Company requests the Holder Advances be allocated as follows:
$______________ ABR Holder Advances
$______________ Eurodollar Holder Advances
The Company has caused this Requisition to be executed by its duly authorized officer as of this _____
day of __________, ______.
ACXIOM CORPORATION
By:
Name:
Title:
Schedule 1
Description of Land
(Legal Description and Street Address)
Schedule 2
Description of Improvements
Schedule 3
Description of Equipment
======================================= ====================== ======================== ==========================
General Description Make Model Serial Number
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
--------------------------------------- ---------------------- ------------------------ --------------------------
======================================= ====================== ======================== ==========================
Schedule 4
Work
Work Performed for which the Advance is requested (identified on a Property specific basis):
----------------------------------------------------- --------------------------------------------
Work Property
----------------------------------------------------- --------------------------------------------
-------------------- -------------------------------- --------------------------------------------
Category 1: Transaction Expenses
-------------------- -------------------------------- --------------------------------------------
-------------------- -------------------------------- --------------------------------------------
Category 2: Soft Costs
-------------------- -------------------------------- --------------------------------------------
-------------------- -------------------------------- --------------------------------------------
Category 3: Hard Costs
-------------------- -------------------------------- --------------------------------------------
-------------------- -------------------------------- --------------------------------------------
Category 4: Other
-------------------- -------------------------------- --------------------------------------------
Schedule 5
Aggregate Advances, Commitments and Holder Commitments
Loan Loan Holder
Tranche A Tranche B Advances
1. Property _______________
Previous Advances XXX XXX XXX
This Requisition XXX XXX XXX
Aggregate Advances XXX+XXX XXX+XXX XXX+XXX
2. Property _______________
Previous Advances XXX XXX XXX
This Requisition XXX XXX XXX
Aggregate Advances XXX+XXX XXX+XXX XXX+XXX
3. Total Advances to date, all Loan Loan Holder
Properties (1 + 2) Tranche A Tranche B Advances
XXX XXX XXX
EXHIBIT B
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(j) of the
Participation Agreement)
------------, ------
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Synthetic Lease Financing Provided in favor of Acxiom Corporation
Dear Sirs:
We have acted as special counsel to Acxiom Corporation, a Delaware corporation (the "Lessee"), and the various
parties thereto from time to time, as guarantors (individually, a "Guarantor" and collectively, the "Guarantors";
individually, the Lessee and each Guarantor may be referred to herein as a "Credit Party" or collectively, as the
"Credit Parties"), in connection with certain transactions contemplated by the Participation Agreement dated as
of October 24, 2000 (the "Participation Agreement"), among the Lessee, the Guarantors, First Security Bank,
National Association, as the Owner Trustee (the "Owner Trustee"), First Security Trust Company of Nevada, as
Trustee, the various banks and other lending institutions which are parties thereto from time to time, as holders
(the "Holders"), the various banks and other lending institutions which are parties thereto from time to time, as
lenders (the "Lenders") and 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 (the "Agent"). This
opinion is delivered pursuant to Section 5.3(j) of the Participation Agreement. All capitalized terms used
herein, and not otherwise defined herein, shall have the meanings assigned thereto in Appendix A to the
Participation Agreement.
In connection with the foregoing, we have examined originals, or copies certified to our satisfaction, of
[identify the applicable Bond Documents and Operative Agreements, including each Mortgage Instrument, related UCC
fixture filings, Additional UCCs (hereinafter defined), Deeds and Memoranda of Lease] and such other corporate
documents and records of the Credit Parties, certificates of public officials and representatives of the Credit
Parties as to certain factual matters, and such other instruments and documents which we have deemed necessary or
advisable to examine for the purpose of this opinion. With respect to such examination, we have assumed (i) the
statements of fact made in all such certificates, documents and instruments are true, accurate and complete; (ii)
except as to the Credit Parties, the due authorization, execution and delivery of the Operative Agreements and
the Bond Documents by the parties thereto; (iii) the genuineness of all signatures (except as to the Credit
Parties), the authenticity and completeness of all documents, certificates, instruments, records and corporate
records submitted to us as originals and the conformity to the original instruments of all documents submitted to
us as copies, and the authenticity and completeness of the originals of such copies; (iv) except as to the Credit
Parties, that all parties have all requisite corporate power and authority to execute, deliver and perform the
Operative Agreements and the Bond Documents; and (v) except as to the Credit Parties, the enforceability of the
Mortgage Instrument, the Memorandum of Lease and the UCC financing statements against all parties thereto.
Based on the foregoing, and having due regard for such legal considerations as we deem relevant, and subject to
the limitations and assumptions set forth herein, including without limitation the matters set forth in the last
two (2) paragraphs hereof, we are of the opinion that:
(a) The Mortgage Instrument and Memorandum of Lease are enforceable in accordance with their
respective terms, except as limited by laws generally affecting the enforcement of creditors' rights, which laws
will not materially prevent the realization of the benefits intended by such documents.
(b) Each form of Mortgage Instrument and UCC fixture filing relating thereto, attached hereto as
Schedules 1 and 2, respectively, is in proper form for filing and recording with the offices of [identify the
recording offices of the respective county clerks where the Properties are to be located]. Upon filing of each
Mortgage Instrument and UCC fixture filing in [identify the recording offices of the respective county clerks
where the Properties are to be located], the Agent will have a valid, perfected lien and security interest in
that portion of the Collateral described in such Mortgage Instrument or UCC fixture filing to the extent such
Collateral is comprised of real property and/or fixtures.
(c) The forms of UCC financing statements relating to the Security Documents, attached hereto as
Schedule 3 (the "Additional UCCs"), are in proper form for filing and recording with the offices of [identify (i)
the recording offices of the respective county clerks where the Properties are to be located and (ii) the
Secretary of State where the Properties are to be located]. Upon filing of the Additional UCCs in [identify (i)
the recording offices of the respective county clerks where the Properties are to be located and (ii) the
Secretary of State where the Properties are to be located], the Agent will have a valid, perfected lien and
security interest in that portion of the Collateral which can be perfected by filing UCC-1 financing statements
under Article 9 of the UCC.
(d) Each form of Deed and Memorandum of Lease is in appropriate form for filing and recording with
the [identify the recording offices of the respective county clerks for the counties where the Properties are to
be located].
(e) Each Memorandum of Lease, when filed and recorded with the [identify the recording offices of
the respective county clerks for the counties where the Properties are to be located], will have been filed and
recorded in all public offices in the State of [__________] in which filing or recording is necessary to provide
constructive notice of the Lease to third Persons and to establish of record the interest of the Lessor
thereunder as to the Properties described in each such Memorandum of Lease.
(f) Title to the Properties located in the State of [___________] may be held in the name of the
Owner Trustee as follows: First Security Bank, National Association, not individually, but solely as the Owner
Trustee under the AC Trust 2000-1.
(g) The execution and delivery by First Security Bank, National Association, individually or as the
Owner Trustee, as the case may be, of the Operative Agreements to which it is a party and compliance by First
Security Bank, National Association, individually or as the Owner Trustee, with all of the provisions thereof do
not and will not contravene any law, rule or regulation of [identify the state].
(h) By reason of their participation in the transaction contemplated under the Operative
Agreements, none of the Agent, the Lenders, the Holders or the Owner Trustee has to (a) qualify as a foreign
corporation in [identify the state], (b) file any application or any designation for service of process in
[identify the state] or (c) pay any franchise, income, sales, excise, stamp or other taxes of any kind to
[identify the state].
(i) The provisions in the Operative Agreements concerning Rent, interest, fees, prepayment premiums
and other similar charges do not violate the usury laws or other similar laws regulating the use or forbearance
of money of [identify the state].
(j) If the transactions contemplated by the Operative Agreements are characterized as a lease
transaction by a court of competent jurisdiction, the Lease and the applicable Lease Supplement shall demise to
the Lessee a valid leasehold interest in the Properties described in such Lease Supplement.
(k) If the transactions contemplated by the Operative Agreements are characterized as a loan
transaction by a court of competent jurisdiction, the combination of the Mortgage Instruments, the Deeds, the
Lease and the applicable Lease Supplements (and the other Operative Agreements incorporated therein by reference)
are sufficient to create a valid, perfected lien or security interest in the Properties therein described,
enforceable as a mortgage in [identify the state].
(l) [other opinions to be determined relating to the Bond Documents]
This opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the
matters stated herein. This opinion is based on and is limited to the laws of the State of [___________] and the
federal laws of the United States of America. Insofar as the foregoing opinion relates to matters of law other
than the foregoing, no opinion is hereby given.
This opinion is for the sole benefit of the Lessee, the Construction Agent, the Guarantors, the Owner Trustee,
the Trustee, the Holders, the Lenders, the Agent and their respective successors and assigns and may not be
relied upon by any other person other than such parties and their respective successors and assigns without the
express written consent of the undersigned. The opinions expressed herein are as of the date hereof and we make
no undertaking to amend or supplement such opinions if facts come to our attention or changes in the current law
of the jurisdictions mentioned herein occur which could affect such opinions.
Very truly yours,
[LESSEE'S OUTSIDE COUNSEL]
Distribution List
Bank of America, N.A., as the Agent, a Holder and a Lender
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Holders
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Lenders
Acxiom Corporation, as the Construction Agent and the Lessee
The various parties to the Participation Agreement from time to time, as the Guarantors
First Security Bank, National Association, not individually, but solely as the Owner Trustee under the AC Trust
2000-1
First Security Trust Company of Nevada, not individually, but solely as the Trustee under the AC Trust 2000-2
Schedule 1
Form of Mortgage Instrument
Schedule 2
Forms of UCC Fixture Filings
Schedule 3
Forms of UCC Financing Statements
EXHIBIT C
ACXIOM CORPORATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(z) of the Participation Agreement)
ACXIOM CORPORATION, a Delaware corporation (the "Company"), DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of each Credit Party contained in the Operative
Agreements and Bond Documents to which it is a party is true and correct on and as of the date
hereof.
2. No Default or Event of Default has occurred and is continuing under any Operative Agreement or
Bond Document.
3. Each Operative Agreement and Bond Document to which any Credit Party is a party is in full
force and effect with respect to it.
4. Each Credit Party has duly performed and complied with all covenants, agreements and conditions
contained in the Participation Agreement (hereinafter defined), in any Operative Agreement or
in any Bond Document required to be performed or complied with by it on or prior to the date
hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined herein have the respective
meanings ascribed thereto in the Participation Agreement dated as of October 24, 2000 among the Company, as the
Lessee and as the Construction Agent, the various parties thereto from time to time, as guarantors (the
"Guarantors"), First Security Bank, National Association, as the Owner Trustee, First Security Trust Company of
Nevada, as the Trustee, the various banks and other lending institutions which are parties thereto from time to
time, as holders (the "Holders"), the various banks and other lending institutions which are parties thereto from
time to time, as lenders (the "Lenders") and 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 (the
"Agent").
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate to be duly executed and delivered as of
this _____ day of __________, ______.
ACXIOM CORPORATION
By:
Name:
Title:
EXHIBIT D
[NAME OF CREDIT PARTY]
secretary'S CERTIFICATE
(Pursuant to Section 5.3(aa) of the Participation Agreement)
[NAME OF CREDIT PARTY], a [__________] corporation (the "Company") DOES HEREBY CERTIFY as follows:
1. Attached hereto as Schedule 1 is a true, correct and complete copy of the resolutions of the
Board of Directors of the Company duly adopted by the Board of Directors of the Company on
__________. Such resolutions have not been amended, modified or rescinded since their date of
adoption and remain in full force and effect as of the date hereof.
2. Attached hereto as Schedule 2 is a true, correct and complete copy of the Articles of
Incorporation of the Company on file in the Office of the Secretary of State of __________.
Such Articles of Incorporation have not been amended, modified or rescinded since their date of
adoption and remain in full force and effect as of the date hereof.
3. Attached hereto as Schedule 3 is a true, correct and complete copy of the Bylaws of the
Company. Such Bylaws have not been amended, modified or rescinded since their date of adoption
and remain in full force and effect as of the date hereof.
4. The persons named below now hold the offices set forth opposite their names, and the signatures
opposite their names and titles are their true and correct signatures.
Name Office Signature
------------------- ----------------------- -------------------------
------------------- ----------------------- -------------------------
IN WITNESS WHEREOF, the Company has caused this Secretary's Certificate to be duly executed and delivered as of
this _____ day of ___________, ______.
[NAME OF CREDIT PARTY]
By:
Name:
Title:
Schedule 1
Board Resolutions
Schedule 2
Articles of Incorporation
Schedule 3
Bylaws
EXHIBIT E
FIRST SECURITY BANK, NATIONAL ASSOCIATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(cc) of the Participation Agreement)
FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking association, not individually (except with
respect to paragraph 1 below, to the extent any such representations and warranties are made in its individual
capacity) but solely as the owner trustee under the AC Trust 2000-1 (the "Owner Trustee"), DOES HEREBY CERTIFY as
follows:
1. Each and every representation and warranty of the Owner Trustee contained in the Operative
Agreements, the Bond Loan Documents and Bond Documents to which it is a party is true and
correct on and as of the date hereof.
2. Each Operative Agreement, Bond Loan Document and Bond Document to which the Owner Trustee is a
party is in full force and effect with respect to it.
3. The Owner Trustee has duly performed and complied with all covenants, agreements and conditions
contained in the Participation Agreement (hereinafter defined) or in any Operative Agreement,
Bond Loan Document or Bond Document required to be performed or complied with by it on or prior
to the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined herein have the respective
meanings ascribed thereto in the Participation Agreement dated as of October 24, 2000 among Acxiom Corporation,
as the Lessee and as the Construction Agent, the various parties thereto from time to time, as guarantors (the
"Guarantors"), the Owner Trustee, First Security Trust Company of Nevada, as Trustee, the various banks and other
lending institutions which are parties thereto from time to time, as holders (the "Holders"), the various banks
and other lending institutions which are parties thereto from time to time, as lenders (the "Lenders") and 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 (the "Agent").
IN WITNESS WHEREOF, the Owner Trustee has caused this Officer's Certificate to be duly executed and delivered as
of this _____ day of __________, ______.
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:
Name:
Title:
EXHIBIT E-1
FIRST SECURITY TRUST COMPANY OF NEVADA, NATIONAL ASSOCIATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.3(ee) of the Participation Agreement)
FIRST SECURITY TRUST COMPANY OF NEVADA, a trust company organized under the laws of the State of Nevada,
not individually (except with respect to paragraph 1 below, to the extent any such representations and warranties
are made in its individual capacity) but solely as the owner trustee under the AC Trust 2000-2 (the "Trustee"),
DOES HEREBY CERTIFY as follows:
1. Each and every representation and warranty of the Trustee contained in the Operative
Agreements, the Bond Loan Documents and Bond Documents to which it is a party is true and
correct on and as of the date hereof.
2. Each Operative Agreement, Bond Loan Document and Bond Document to which the Trustee is a party
is in full force and effect with respect to it.
3. The Trustee has duly performed and complied with all covenants, agreements and conditions
contained in the Participation Agreement (hereinafter defined) or in any Operative Agreement,
Bond Loan Document or Bond Document required to be performed or complied with by it on or prior
to the date hereof.
Capitalized terms used in this Officer's Certificate and not otherwise defined herein have the respective
meanings ascribed thereto in the Participation Agreement dated as of October 24, 2000 among Acxiom Corporation,
as the Lessee and as the Construction Agent, the various parties thereto from time to time, as guarantors (the
"Guarantors"), the Trustee, First Security Bank, National Association, as Owner Trustee, the various banks and
other lending institutions which are parties thereto from time to time, as holders (the "Holders"), the various
banks and other lending institutions which are parties thereto from time to time, as lenders (the "Lenders") and
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 (the "Agent").
IN WITNESS WHEREOF, the Trustee has caused this Officer's Certificate to be duly executed and delivered as of
this _____ day of __________, ______.
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:
Name:
Title:
EXHIBIT F
FIRST SECURITY BANK, NATIONAL ASSOCIATION
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(dd) of the Participation Agreement)
CERTIFICATE OF ASSISTANT SECRETARY
I, ______________________, duly elected and qualified Assistant Secretary of the Board of Directors of
First Security Bank, National Association (the "Association"), hereby certify as follows:
1. The Association is a National Banking Association duly organized, validly existing and in good
standing under the laws of the United States. With respect thereto the following is noted:
A. Pursuant to Revised Statutes 324, et seq., as amended, 12 U.S.C. 1, et seq., the
Comptroller of the Currency charters and exercises regulatory and supervisory
authority over all National Banking Associations;
B. On December 9, 1881, the First National Bank of Ogden, Utah was chartered as a
Na&tional Banking Association under the laws of the United States and under Charter No.
2597;
C. On October 2, 1922, in connection with a consolidation of The First National Bank of
Ogden, Ogden, Utah, and The Utah National Bank of Ogden, Ogden, Utah, the title was
changed to "The First & Utah National Bank of Ogden"; on January 18, 1923, The First &
Utah National Bank of Ogden changed its title to "First Utah National Bank of Ogden";
on January 19, 1926, the title was changed to "First National Bank of Ogden"; on
February 24, 1934, the title was changed to "First Security Bank of Utah, National
Association"; on June 21, 1996, the title was changed to "First Security Bank,
National Association"; and
D. First Security Bank, National Association, Ogden, Utah, continues to hold a valid
certificate to do business as a National Banking Association.
2. The Association's Articles of Association, as amended, are in full force and effect, and a
true, correct and complete copy is attached hereto as Schedule A and incorporated herein by reference. Said
Articles were last amended October 20, 1975, as required by law on notice at a duly called special meeting of the
shareholders of the Association.
3. The Association's By-Laws, as amended, are in full force and effect; and a true, correct and
complete copy is attached hereto as Schedule B and incorporated herein by reference. Said By-Laws, still in full
force and effect, were adopted September 17, 1942, by resolution, after proper notice of consideration and
adoption of By-Laws was given to each and every shareholder, at a regularly called meeting of the Board of
Directors with a quorum present.
4. Pursuant to the authority vested in it by an Act of Congress approved December 23, 1913 and
known as the Federal Reserve Act, as amended, the Federal Reserve Board (now the Board of Governors of the
Federal Reserve System) has granted to the Association now known as "First Security Bank, National Association"
of Ogden, Utah, the right to act, when not in contravention of State or local law, as trustee, executor,
administrator, registrar of stocks and bonds, guardian of estates, assignee, receiver, committee of estates of
lunatics, or in any other fiduciary capacity in which State banks, trust companies or other corporations which
come into competition with National Banks are permitted to act under the laws of the State of Utah; and under the
provisions of applicable law, the authority so granted remains in full force and effect.
5. Pursuant to authority vested by Act of Congress (12 X.X.X. 00x xxx 00 X.X.X. 000, as amended)
the Comptroller of the Currency has issued Regulation 9, as amended, dealing, in part, with the Fiduciary Powers
of National Banks, said regulation providing in subparagraph 9.7 (a) (1-2):
(1) The board of directors is responsible for the proper exercise of fiduciary
powers by the Bank. All matters pertinent thereto, including the
determination of policies, the investment and disposition of property held in
fiduciary capacity, and the direction and review of the actions of all
officers, employees, and committees utilized by the Bank in the exercise of
its fiduciary powers, are the responsibility of the board. In discharging
this responsibility, the board of directors may assign, by action duly entered
in the minutes, the administration of such of the Bank's fiduciary powers as
it may consider proper to assign to such director(s), officer(s), employee(s)
or committee(s) as it may designate.
(2) No fiduciary account shall be accepted without the prior approval of the
board, or of the director(s), officer(s), or committee(s) to whom the board
may have designated the performance of that responsibility. . . .
6. A Resolution relating to Exercise of Fiduciary Powers was adopted by the Board of Directors at
a meeting held July 26, 1994 at which time there was a quorum present; said resolution is still in full force and
effect and has not been rescinded. Said resolution is attached hereto as Schedule C and incorporated herein by
reference.
7. A Resolution relating to the Designation of Officers and Employees to Exercise Fiduciary Powers
was adopted by the Trust Policy Committee at a meeting held February 7, 1996 at which time a quorum was present;
said resolution is still in full force and effect and has not been rescinded. Said resolution is attached hereto
as Schedule D and is incorporated herein by reference.
8. Attached hereto as Schedule E and incorporated herein by reference, is a listing of facsimile
signatures of persons authorized (herein "Authorized Signatory or Signatories") on behalf of the Association and
its Trust Group to act in exercise of its fiduciary powers subject to the resolutions in Paragraphs 6 and 7,
above.
9. The principal office of the First Security Bank, National Association, Trust Group and of its
departments, except for the St. Xxxxxx, Utah, Ogden, Utah, and Provo, Utah, branch offices, is located at 00
Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000 and all records relating to fiduciary accounts are located at such
principal office of the Trust Group or in storage facilities within Salt Lake County, Utah, except for those of
the Ogden, Utah, St. Xxxxxx, Utah, and Provo, Utah, branch offices, which are located at said offices.
10. Each Authorized Signatory (i) is a duly elected or appointed, duly qualified officer or
employee of the Association; (ii) holds the office or job title set forth below his or her name on the date
hereof; (iii) and the facsimile signature appearing opposite the name of each such officer or employee is a true
replica of his or her signature.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Association this __________ day of
-----------------, ------.
(SEAL)
----------------------------------------
R. Xxxxx Xxxxxxxxx
Senior Vice President
Assistant Secretary
Schedule A
Articles of Association
Schedule B
Bylaws
Schedule C
Resolution Relating to
Exercise of Fiduciary Powers
Schedule D
Resolution Relating to the
Designation of Officers and Employees
To Exercise Fiduciary Powers
Schedule E
Authorized Signatory or Signatories
EXHIBIT F-1
FIRST SECURITY TRUST COMPANY OF NEVADA
SECRETARY'S CERTIFICATE
(Pursuant to Section 5.3(ff) of the Participation Agreement)
EXHIBIT G
[Outside Counsel Opinion for the Owner Trustee]
(Pursuant to Section 5.3(gg) of the
Participation Agreement)
-----------, ------
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Trust Agreement dated as of October 24, 2000
Dear Sirs:
We have acted as special counsel for First Security Bank, National Association, a national banking
association, in its individual capacity ("FSB") and in its capacity as trustee (the "Owner Trustee") under the
Trust Agreement dated as of October 24, 2000 (the "Trust Agreement") by and among it and the various banks and
other lending institutions which are parties thereto from time to time, as holders (the "Holders"), in connection
with the execution and delivery by the Owner Trustee of the Operative Agreements, Bond Loan Documents and Bond
Documents to which it is a party. Except as otherwise defined herein, the terms used herein shall have the
meanings set forth in Appendix A to the Participation Agreement dated as of October 24, 2000 (the "Participation
Agreement") by and among Acxiom Corporation, (the "Lessee"), the various parties thereto from time to time, as
guarantors (the "Guarantors"), First Security Bank, National Association, as the Owner Trustee, First Security
Trust Company of Nevada, as Trustee, the Holders, the various banks and other lending institutions which are
parties thereto from time to time, as lenders (the "Lenders") and 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 (the "Agent").
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
Based upon the foregoing, we are of the opinion that:
1. FSB is a national banking association duly organized, validly existing and in good standing
under the laws of the United States of America and each of FSB and the Owner Trustee has under the laws of the
State of Utah and federal banking law the power and authority to enter into and perform its obligations under the
Trust Agreement and each Bond Loan Document, Bond Document and other Operative Agreement to which it is a party.
2. The Owner Trustee is the duly appointed trustee under the Trust Agreement.
3. The Trust Agreement has been duly authorized, executed and delivered by one (1) of the officers
of FSB and, assuming due authorization, execution and delivery by the Holders, is a legal, valid and binding
obligation of the Owner Trustee (and to the extent set forth therein, against FSB), enforceable against the Owner
Trustee (and to the extent set forth therein, against FSB) in accordance with its terms, and the Trust Agreement
creates under the laws of the State of Utah for the Holders the beneficial interest in the Trust Estate it
purports to create and is a valid trust under the laws of the State of Utah.
4. The Operative Agreements, Bond Loan Documents and Bond Documents to which it is party have been
duly authorized, executed and delivered by FSB, and, assuming due authorization, execution and delivery by the
other parties thereto, are legal, valid and binding obligations of FSB, enforceable against FSB in accordance
with their respective terms.
5. The Operative Agreements, Bond Loan Documents and Bond Documents to which it is party have been
duly authorized, executed and delivered by the Owner Trustee, and, assuming due authorization, execution and
delivery by the other parties thereto, are legal, valid and binding obligations of the Owner Trustee, enforceable
against the Owner Trustee in accordance with their respective terms. The Notes and Certificates have been duly
issued, executed and delivered by the Owner Trustee, pursuant to authorization contained in the Trust Agreement,
and the Certificates are entitled to the benefits and security afforded by the Trust Agreement in accordance with
its terms and the terms of the Trust Agreement.
6. The execution and delivery by each of FSB and the Owner Trustee of the Trust Agreement, the
Operative Agreements, Bond Loan Documents and Bond Documents to which it is a party, and compliance by FSB or the
Owner Trustee, as the case may be, with all of the provisions thereof do not and will not contravene any Laws
applicable to or binding on FSB, or as the Owner Trustee, or contravene the provisions of, or constitute a
default under, its charter documents or by-laws or, to our knowledge after due inquiry, any indenture, mortgage
contract or other agreement or instrument to which FSB or Owner Trustee is a party or by which it or any of its
property may be bound or affected.
7. The execution and delivery of the Operative Agreements, Bond Loan Documents and Bond Documents
by each of FSB and the Owner Trustee and the performance by each of FSB and the Owner Trustee of their respective
obligations thereunder does not require on or prior to the date hereof the consent or approval of, the giving of
notice to, the registration or filing with, or the taking of any action in respect of any Governmental Authority
or any court.
8. Assuming that the trust created by the Trust Agreement is treated as a grantor trust for
federal income tax purposes within the contemplation of Section 671 through 678 of the Internal Revenue Code of
1986, there are no fees, taxes, or other charges (except taxes imposed on fees payable to the Owner Trustee)
payable to the State of Utah or any political subdivision thereof in connection with the execution, delivery or
performance by the Owner Trustee, the Trustee, the Agent, the Lenders, the Lessee or the Holders, as the case may
be, of the Operative Agreements, the Bond Loan Documents or the Bond Documents or in connection with the
acquisition or leasing of any Property by the Owner Trustee or in connection with the making by any Holder of its
investment in the Trust or its acquisition of the beneficial interest in the Trust Estate or in connection with
the issuance and acquisition of the Certificates, or the Notes, or in connection with the making of the Bond
Loans and acquisition of the Bond Loan Note and neither the Owner Trustee, the Trust Estate nor the trust created
by the Trust Agreement will be subject to any fee, tax or other governmental charge (except taxes on fees payable
to the Owner Trustee) under the laws of the State of Utah or any political subdivision thereof on, based on or
measured by, directly or indirectly, the gross receipts, net income or value of the Trust Estate by reason of the
creation or continued existence of the trust under the terms of the Trust Agreement pursuant to the laws of the
State of Utah or the Owner Trustee's performance of its duties under the Trust Agreement.
9. There is no fee, tax or other governmental charge under the laws of the State of Utah or any
political subdivision thereof in existence on the date hereof on, based on or measured by any payments under the
Certificates, Notes, Bond Loan Note or the beneficial interest in the Trust Estate, by reason of the creation of
the trust under the Trust Agreement pursuant to the laws of the State of Utah or the Owner Trustee's performance
of its duties under the Trust Agreement within the State of Utah.
10. Upon the filing of the financing statement on form UCC-1 in the form attached hereto as
Schedule 1 with the Utah Division of Corporation and Commercial Code, the Agent's security interest in the Trust
Estate, for the benefit of the Lenders and the Holders, will be perfected, to the extent that such perfection is
governed by Article 9 of the Uniform Commercial Code as in effect in the State of Utah (the "Utah UCC").
Your attention is directed to the Utah UCC, which provides, in part, that a filed financing statement
which does not state a maturity date or which states a maturity date of more than five (5) years is effective
only for a period of five (5) years from the date of filing, unless within six (6) months prior to the expiration
of said period a continuation statement is filed in the same office or offices in which the original statement
was filed. The continuation statement must be signed by the secured party, identify the original statement by
file number and state that the original statement is still effective. Upon the timely filing of a continuation
statement, the effectiveness of the original financing statement is continued for five (5) years after the last
date to which the original statement was effective. Succeeding continuation statements may be filed in the same
manner to continue the effectiveness of the original statement.
The foregoing opinions are subject to the following assumptions, exceptions and qualifications:
A. We are attorneys admitted to practice in the State of Utah and in rendering the foregoing
opinions we have not passed upon, or purported to pass upon, the laws of any jurisdictions other than the State
of Utah and the federal banking law governing the banking and trust powers of FSB. In addition, without limiting
the foregoing we express no opinion with respect to (i) federal securities laws, including the Securities Act of
1933, as amended, the Securities Exchange Act of 1934, as amended, and the Trust Indenture Act of 1939, as
amended, (ii) the Federal Aviation Act of 1958, as amended, (iii) the Federal Communications Act of 1934, as
amended, or (iv) state securities or blue sky laws. Insofar as the foregoing opinions relate to the legality,
validity, binding effect and enforceability of the documents involved in these transactions, which by their terms
are governed by the laws of a state other than Utah, we have assumed that the laws of such state (as to which we
express no opinion), are in all material aspects identical to the laws of the State of Utah.
B. The opinions set forth in paragraphs 3, 4, and 5 above are subject to the qualification that
enforceability of the Bond Loan Documents, Bond Documents, Trust Agreement and the other Operative Agreements to
which FSB and the Owner Trustee are parties, in accordance with their respective terms, may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, receivership or similar laws affecting enforcement of
creditors' rights generally, and (ii) general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
C. As to the documents involved in these transactions, we have assumed that each is a legal, valid
and binding obligation of each party thereto, other than FSB or the Owner Trustee, and is enforceable against
each such party in accordance with their respective terms.
D. We have assumed that all signatures, other than those of the Owner Trustee or FSB, on documents
and instruments involved in these transactions are genuine, that all documents and instruments submitted to us as
originals are authentic, and that all documents and instruments submitted to us as copies conform with the
originals, which facts we have not independently verified.
E. We do not purport to be experts in respect of, or express any opinion concerning laws, rules or
regulations applicable to the particular nature of the equipment or property involved in these transactions.
F. We have made no investigation of, and we express no opinion concerning, the nature of the title
to any part of the equipment or property involved in these transactions or the priority of any mortgage or
security interest.
G. We have assumed that the Participation Agreement and the transactions contemplated thereby are
not within the prohibitions of Section 406 of the Employee Retirement Income Security Act of 1974.
H. In addition to any other limitation by operation of law upon the scope, meaning, or purpose of
this opinion, the opinions expressed herein speak only as of the date hereof. We have no obligation to advise
the recipients of this opinion (or any third party) and make no undertaking to amend or supplement such opinions
if facts come to our attention or changes in the current law of the jurisdictions mentioned herein occur which
could affect such opinions the legal analysis, a legal conclusion or any information confirmation herein.
I. This opinion is for the sole benefit of the Lessee, the Construction Agent, the Guarantors, the
Owner Trustee, the Trustee, the Holders, the Lenders, the Agent and their respective successors and assigns in
matters directly related to the Participation Agreement or the transaction contemplated thereunder and may not be
relied upon by any other person other than such parties and their respective successors and assigns without the
express written consent of the undersigned. The opinions expressed in this letter are limited to the matter set
forth in this letter, and no other opinions should be inferred beyond the matters expressly stated.
Very truly yours,
RAY, XXXXXXX & XXXXXXX
M. Xxxx Xxxxxx
Distribution List
Bank of America, N.A., as the Agent, a Holder and a Lender
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Holders
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Lenders
Acxiom Corporation, as the Construction Agent and the Lessee
The various parties to the Participation Agreement from time to time, as the Guarantors
First Security Bank, National Association, not individually, but solely as the Owner Trustee under the AC Trust
2000-1
First Security Trust Company of Nevada, not individually, but solely as the Trustee under the AC Trust 2000-2
Schedule 1
Form of UCC-1 to be Filed in Owner Trustee's Principal Place of Business
EXHIBIT G-1
[Outside Counsel Opinion for the Trustee]
(Pursuant to Section 5.3(gg) of the
Participation Agreement)
-----------, ------
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Trust Agreement (AC Trust 2000-2) dated as of October 24, 2000
Dear Sirs:
We have acted as special counsel for First Security Trust Company of Nevada, a trust company organized
under the laws of the State of Nevada, in its individual capacity ("FSTCN") and in its capacity as trustee (the
"Trustee") under the Trust Agreement (AC Trust 2000-2) dated as of October 24, 2000 (the "Trust Agreement") by and
among it and the various banks and other lending institutions which are parties thereto from time to time, as
beneficiaries (the "Beneficiaries"), in connection with the execution and delivery by the Trustee of the
Operative Agreements, Bond Loan Documents and Bond Documents to which it is a party. Except as otherwise defined
herein, the terms used herein shall have the meanings set forth in Appendix A to the Participation Agreement
dated as of October 24, 2000 (the "Participation Agreement") by and among Acxiom Corporation, (the "Lessee"), the
various parties thereto from time to time, as guarantors (the "Guarantors"), First Security Bank, National
Association, as the Owner Trustee, First Security Trust Company of Nevada, as Trustee, the Holders, the various
banks and other lending institutions which are parties thereto from time to time, as lenders (the "Lenders") and
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 (the "Agent").
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary or advisable for the purpose of
rendering this opinion.
Based upon the foregoing, we are of the opinion that:
1. FSTCN is a trust company duly organized, validly existing and in good standing under the laws
of the State of Nevada and each of FSTCN and the Trustee has under the laws of the State of Nevada banking law
the power and authority to enter into and perform its obligations under the Trust Agreement and each Bond Loan
Document, Bond Document and other Operative Agreement to which it is a party.
2. The Trustee is the duly appointed trustee under the Trust Agreement.
3. The Trust Agreement has been duly authorized, executed and delivered by one (1) of the officers
of FSTCN and, assuming due authorization, execution and delivery by the Beneficiaries, is a legal, valid and
binding obligation of the Trustee (and to the extent set forth therein, against FSTCN), enforceable against the
Trustee (and to the extent set forth therein, against FSTCN) in accordance with its terms, and the Trust
Agreement creates under the laws of the State of Nevada for the Beneficiaries the beneficial interest in the
Trust Estate (AC Trust 2000-2) it purports to create and is a valid trust under the laws of the State of Nevada.
4. The Operative Agreements, Bond Loan Documents and Bond Documents to which it is party have been
duly authorized, executed and delivered by FSTCN, and, assuming due authorization, execution and delivery by the
other parties thereto, are legal, valid and binding obligations of FSTCN, enforceable against FSTCN in accordance
with their respective terms.
5. The Operative Agreements, Bond Loan Documents and Bond Documents to which it is party have been
duly authorized, executed and delivered by the Trustee, and, assuming due authorization, execution and delivery
by the other parties thereto, are legal, valid and binding obligations of the Trustee, enforceable against the
Trustee in accordance with their respective terms. The Bond Loan Note has been duly issued, executed and
delivered by the Trustee, pursuant to authorization contained in the Trust Agreement.
6. The execution and delivery by each of FSTCN and the Trustee of the Trust Agreement, the
Operative Agreements, Bond Loan Documents and Bond Documents to which it is a party, and compliance by FSTCN or
the Trustee, as the case may be, with all of the provisions thereof do not and will not contravene any Laws
applicable to or binding on FSTCN, or as the Trustee, or contravene the provisions of, or constitute a default
under, its charter documents or by-laws or, to our knowledge after due inquiry, any indenture, mortgage contract
or other agreement or instrument to which FSTCN or Trustee is a party or by which it or any of its property may
be bound or affected.
7. The execution and delivery of the Operative Agreements, Bond Loan Documents and Bond Documents
by each of FSTCN and the Trustee and the performance by each of FSTCN and the Trustee of their respective
obligations thereunder does not require on or prior to the date hereof the consent or approval of, the giving of
notice to, the registration or filing with, or the taking of any action in respect of any Governmental Authority
or any court.
8. Assuming that the trust created by the Trust Agreement is treated as a grantor trust for
federal income tax purposes within the contemplation of Section 671 through 678 of the Internal Revenue Code of
1986, there are no fees, taxes, or other charges (except taxes imposed on fees payable to the Owner Trustee)
payable to the State of Nevada or any political subdivision thereof in connection with the execution, delivery or
performance by the Trustee, the Trustee, the Agent, the Lenders, the Lessee or the Holders, as the case may be,
of the Operative Agreements, the Bond Loan Documents or the Bond Documents or in connection with the acquisition
or leasing of any Property by the Trustee or in connection with the acquisition of the beneficial interest in the
Trust Estate (AC Trust 2000-2) or in connection with the issuance and acquisition of the Bond Loan Note, or in
connection with the acquisition of the Bond and neither the Trustee, the Trust Estate (AC Trust 2000-2) nor the
trust created by the Trust Agreement will be subject to any fee, tax or other governmental charge (except taxes
on fees payable to the Trustee) under the laws of the State of Nevada or any political subdivision thereof on,
based on or measured by, directly or indirectly, the gross receipts, net income or value of the Trust Estate (AC
Trust 2000-2) by reason of the creation or continued existence of the trust under the terms of the Trust
Agreement pursuant to the laws of the State of Nevada or the Trustee's performance of its duties under the Trust
Agreement.
9. There is no fee, tax or other governmental charge under the laws of the State of Nevada or Utah
or any political subdivision thereof in existence on the date hereof on, based on or measured by any payments
under the Bond Loan Note or the beneficial interest in the Trust Estate (AC Trust 2000-2), by reason of the
creation of the trust under the Trust Agreement pursuant to the laws of the State of Nevada or Utah or the
Trustee's performance of its duties under the Trust Agreement within the State of Nevada or Utah.
10. Upon the filing of the financing statement on form UCC-1 in the form attached hereto as
Schedule 1 with the Nevada Commercial Code, the Lessor's security interest in the Trust Estate (AC Trust 2000-2),
will be perfected, to the extent that such perfection is governed by Article 9 of the Uniform Commercial Code as
in effect in the State of Nevada (the "Nevada UCC").
Your attention is directed to the Nevada UCC, which provides, in part, that a filed financing statement
which does not state a maturity date or which states a maturity date of more than five (5) years is effective
only for a period of five (5) years from the date of filing, unless within six (6) months prior to the expiration
of said period a continuation statement is filed in the same office or offices in which the original statement
was filed. The continuation statement must be signed by the secured party, identify the original statement by
file number and state that the original statement is still effective. Upon the timely filing of a continuation
statement, the effectiveness of the original financing statement is continued for five (5) years after the last
date to which the original statement was effective. Succeeding continuation statements may be filed in the same
manner to continue the effectiveness of the original statement.
The foregoing opinions are subject to the following assumptions, exceptions and qualifications:
A. We are attorneys admitted to practice in the States of Nevada and Utah and in rendering the
foregoing opinions we have not passed upon, or purported to pass upon, the laws of any jurisdictions other than
the States of Nevada and Utah and the federal banking law governing the banking and trust powers of FSTCN. In
addition, without limiting the foregoing we express no opinion with respect to (i) federal securities laws,
including the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the Trust
Indenture Act of 1939, as amended, (ii) the Federal Aviation Act of 1958, as amended, (iii) the Federal
Communications Act of 1934, as amended, or (iv) state securities or blue sky laws. Insofar as the foregoing
opinions relate to the legality, validity, binding effect and enforceability of the documents involved in these
transactions, which by their terms are governed by the laws of a state other than Nevada or Utah, we have assumed
that the laws of such state (as to which we express no opinion), are in all material aspects identical to the
laws of the States of Nevada and Utah.
B. The opinions set forth in paragraphs 3, 4, and 5 above are subject to the qualification that
enforceability of the Bond Loan Documents, Bond Documents, Trust Agreement and the other Operative Agreements to
which FSTCN and the Trustee are parties, in accordance with their respective terms, may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, receivership or similar laws affecting enforcement of
creditors' rights generally, and (ii) general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
C. As to the documents involved in these transactions, we have assumed that each is a legal, valid
and binding obligation of each party thereto, other than FSTCN or the Trustee, and is enforceable against each
such party in accordance with their respective terms.
D. We have assumed that all signatures, other than those of the Trustee or FSTCN, on documents and
instruments involved in these transactions are genuine, that all documents and instruments submitted to us as
originals are authentic, and that all documents and instruments submitted to us as copies conform with the
originals, which facts we have not independently verified.
E. We do not purport to be experts in respect of, or express any opinion concerning laws, rules or
regulations applicable to the particular nature of the equipment or property involved in these transactions.
F. We have made no investigation of, and we express no opinion concerning, the nature of the title
to any part of the equipment or property involved in these transactions or the priority of any mortgage or
security interest.
G. We have assumed that the Participation Agreement and the transactions contemplated thereby are
not within the prohibitions of Section 406 of the Employee Retirement Income Security Act of 1974.
H. In addition to any other limitation by operation of law upon the scope, meaning, or purpose of
this opinion, the opinions expressed herein speak only as of the date hereof. We have no obligation to advise
the recipients of this opinion (or any third party) and make no undertaking to amend or supplement such opinions
if facts come to our attention or changes in the current law of the jurisdictions mentioned herein occur which
could affect such opinions the legal analysis, a legal conclusion or any information confirmation herein.
I. This opinion is for the sole benefit of the Lessee, the Construction Agent, the Guarantors, the
Owner Trustee, the Trustee, the Holders, the Beneficiaries, the Lenders, the Agent and their respective
successors and assigns in matters directly related to the Participation Agreement or the transaction contemplated
thereunder and may not be relied upon by any other person other than such parties and their respective successors
and assigns without the express written consent of the undersigned. The opinions expressed in this letter are
limited to the matter set forth in this letter, and no other opinions should be inferred beyond the matters
expressly stated.
Very truly yours,
RAY, XXXXXXX & XXXXXXX
M. Xxxx Xxxxxx
Distribution List
Bank of America, N.A., as the Agent, a Holder and a Lender
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Holders
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Lenders
Acxiom Corporation, as the Construction Agent and the Lessee
The various parties to the Participation Agreement from time to time, as the Guarantors
First Security Bank, National Association, not individually, but solely as the Owner Trustee under the AC Trust
2000-1
First Security Trust Company of Nevada, not individually, but solely as the Trustee under the AC Trust 2000-2
The various parties to the Trust Agreement (AC Trust 2000-2) from time to time as Beneficiaries.
Schedule 1
Form of UCC-1 to be Filed in Owner Trustee's Principal Place of Business
EXHIBIT H
[Outside Counsel Opinion for the Lessee]
(Pursuant to Section 5.3(hh) of the Participation Agreement)
------------, ------
TO THOSE ON THE ATTACHED DISTRIBUTION LIST
Re: Synthetic Lease Financing Provided in favor of Acxiom Corporation
Dear Sirs:
We have acted as special counsel to Acxiom Corporation, a Delaware corporation (the "Lessee") and the Guarantors
(hereinafter defined) in connection with certain transactions contemplated by the Participation Agreement dated
as of October 24, 2000 (the "Participation Agreement"), among the Lessee, the various parties thereto from time
to time, as guarantors (the "Guarantors"), First Security Bank, National Association, as the Owner Trustee (the
"Owner Trustee"), First Security Trust Company of Nevada, not individually, except as expressly provided therein,
but solely as Trustee, the various banks and other lending institutions which are parties thereto from time to
time, as holders (the "Holders"), the various banks and other lending institutions which are parties thereto from
time to time, as lenders (the "Lenders") and 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 (the
"Agent"). This opinion is delivered pursuant to Section 5.3(hh) of the Participation Agreement. All capitalized
terms used herein, and not otherwise defined herein, shall have the meanings assigned thereto in Appendix A to
the Participation Agreement.
In connection with the foregoing, we have examined originals, or copies certified to our satisfaction, of the
Operative Agreements, and such other corporate, partnership or limited liability company documents and records of
the Credit Parties, certificates of public officials and representatives of the Credit Parties as to certain
factual matters, and such other instruments and documents which we have deemed necessary or advisable to examine
for the purpose of this opinion. With respect to such examination, we have assumed (i) the statements of fact
made in all such certificates, documents and instruments are true, accurate and complete; (ii) the due
authorization, execution and delivery of the Operative Agreements by the parties thereto other than the Credit
Parties; (iii) the genuineness of all signatures (other than the signatures of persons signing on behalf of the
Credit Parties), the authenticity and completeness of all documents, certificates, instruments, records and
corporate records submitted to us as originals and the conformity to the original instruments of all documents
submitted to us as copies, and the authenticity and completeness of the originals of such copies; (iv) that all
parties other than the Credit Parties have all requisite corporate power and authority to execute, deliver and
perform the Operative Agreements; and (v) the enforceability of the Operative Agreements against all parties
thereto other than the Credit Parties and respecting the opinion set forth below in section (i), First Security
Bank, National Association, individually or as the Owner Trustee, as the case may be. We have further assumed
that the laws of the States of [state of lawyer's admission] and [governing law of Participation Agreement] are
substantively identical.
Based on the foregoing, and having due regard for such legal considerations as we deem relevant, and subject to
the limitations and assumptions set forth herein, including without limitation the matters set forth in the last
two (2) paragraphs hereof, we are of the opinion that:
(a) Each Credit Party is a [corporation, partnership or limited liability company] duly
[incorporated or organized], validly existing and in good standing under the laws of the state of its
[incorporation/formation] and has the power and authority to conduct its business as presently conducted and to
execute, deliver and perform its obligations under the Operative Agreements to which it is a party. Each Credit
Party is duly qualified to do business in all jurisdictions in which its failure to so qualify would materially
impair its ability to perform its obligations under the Operative Agreements to which it is a party or its
financial position or its business as now and now proposed to be conducted.
(b) The execution, delivery and performance by each Credit Party of the Operative Agreements to
which it is a party have been duly authorized by all necessary [corporate] action on the part of each Credit
Party and the Operative Agreements to which each Credit Party is a party have been duly executed and delivered by
each Credit Party.
(c) The Operative Agreements to which each Credit Party is a party constitute valid and binding
obligations of each Credit Party enforceable against each Credit Party in accordance with the terms thereof,
subject to bankruptcy, insolvency, liquidation, reorganization, fraudulent conveyance, and similar laws affecting
creditors' rights generally, and general principles of equity (regardless of whether the application of such
principles is considered in a proceeding in equity or at law).
(d) The execution and delivery by each Credit Party of the Operative Agreements to which it is a
party and compliance by each Credit Party with all of the provisions thereof do not and will not (i) contravene
the provisions of, or result in any breach of or constitute any default under, or result in the creation of any
Lien (other than Permitted Liens and Lessor Liens) upon any of its property under, its [Articles of Incorporation
By-Laws, operating agreement, partnership agreement or other similar document of formation] or any indenture,
mortgage, chattel mortgage, deed of trust, lease, conditional sales contract, bank loan or credit agreement or
other agreement or instrument to which any Credit Party is a party or by which any Credit Party or any property
of any Credit Party may be bound or affected, or (ii) contravene any Laws or any order of any Governmental
Authority applicable to or binding on any Credit Party.
(e) No Governmental Action by, and no notice to or filing with, any Governmental Authority is
required for the due execution, delivery or performance by any Credit Party of any of the Operative Agreements to
which any Credit Party is a party or for the acquisition, ownership, construction and completion of the
Properties, except for those which have been obtained.
(f) Except as set forth on Schedule 1 hereto, there are no actions, suits or proceedings pending or
to our knowledge, threatened against any Credit Party in any court or before any Governmental Authority, that
concern the Properties or the interest of any Credit Party therein or that question the validity or
enforceability of any Operative Agreement to which any Credit Party is a party or the overall transaction
described in the Operative Agreements to which any Credit Party is a party.
(g) Neither the nature of the Properties, nor any relationship between any Credit Party and any
other Person, nor any circumstance in connection with the execution, delivery and performance of the Operative
Agreements to which any Credit Party is a party is such as to require any approval of stockholders of, or
approval or consent of any trustee or holders of indebtedness of, any Credit Party, except for such approvals and
consents which have been duly obtained and are in full force and effect.
(h) The Security Documents which have been executed and delivered as of the date of this opinion
create, for the benefit of the Agent, the security interests in the Collateral described therein which by their
terms such Security Documents purport to create. Upon filing of the UCC-1 financing statements (attached hereto
as Schedule 2) relating to the Security Documents in the recording offices of (A) the respective county clerk
where the principal place of business of the Lessee is located and (B) the Secretary of State where the principal
place of business of the Lessee is located, the Agent will have a valid, perfected lien and security interest in
that portion of the Collateral which can be perfected by the filing of UCC-1 financing statements under Article 9
of the UCC in [identify the state].
(i) The Operative Agreements to which First Security Bank, National Association, individually or as
the Owner Trustee, is a party constitute valid and binding obligations of such party and are enforceable against
First Security Bank, National Association, individually or as the Owner Trustee, as the case may be, in
accordance with the terms thereof, subject to bankruptcy, insolvency, liquidation, reorganization, fraudulent
conveyance, and similar laws affecting creditors, rights generally, and general principles of equity (regardless
of whether the application of such principles is considered in a proceeding in equity or at law).
(j) The offer, issuance, sale and delivery of the Notes and the offer, issuance, sale and delivery
of the Certificates under the circumstances contemplated by the Participation Agreement do not, under existing
law, require registration of the Notes or the Certificates being issued on the date hereof under the Securities
Act of 1933, as amended, or the qualification of the Trust Agreement under the Trust Indenture Act of 1939, as
amended.
This opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the
matters stated herein. This opinion is based on and is limited to the laws of the States of [__________], and
the federal laws of the United States of America. Insofar as the foregoing opinion relates to matters of law
other than the foregoing, no opinion is hereby given.
This opinion is for the sole benefit of the Lessee, the Construction Agent, the Guarantors, the Owner Trustee,
the Holders, the Lenders, the Agent and their respective successors and assigns and may not be relied upon by any
other person other than such parties and their respective successors and assigns without the express written
consent of the undersigned. The opinions expressed herein are as of the date hereof and we make no undertaking
to amend or supplement such opinions if facts come to our attention or changes in the current law of the
jurisdictions mentioned herein occur which could affect such opinions.
Very truly yours,
[LESSEE'S OUTSIDE COUNSEL]
Distribution List
Bank of America, N.A., as the Agent, a Holder and a Lender
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Holders
The various banks and other lending institutions which are parties to the Participation Agreement from time to
time, as additional Lenders
Acxiom Corporation, as the Construction Agent and the Lessee
The various parties to the Participation Agreement from time to time, as the Guarantors
First Security Bank, National Association, not individually, but solely as the Owner Trustee under the AC Trust
2000-1
First Security Trust Company of Nevada, not individually, but solely as the Trustee under the AC Trust 2000-2
Schedule 1
(Litigation)
Schedule 2
(UCC-1 Financing Statements)
EXHIBIT I
ACXIOM CORPORATION
OFFICER'S CERTIFICATE
(Pursuant to Section 5.5 of the Participation Agreement)
ACXIOM CORPORATION, a Delaware corporation (the "Company") DOES HEREBY CERTIFY as follows:
1. The address for the subject Property is ________________________________________
--------------------------------.
2. The Completion Date for the construction of Improvements at the Property occurred on ______________.
3. The aggregate Property Cost for the Property was $___________.
4. Attached hereto as Schedule 1 is the detailed, itemized documentation supporting the asserted Property
Cost figures.
5. All representations and warranties of the Company in each Operative Agreement and in each certificate
delivered pursuant thereto (including without limitation the Incorporated Representations and
Warranties) are true and correct as of the Completion Date.
Capitalized terms used in this Officer's Certificate and not otherwise defined have the respective meanings
ascribed thereto in the Participation Agreement dated as of October 24, 2000 among the Company, as the Lessee and
as the Construction Agent, the various parties thereto from time to time, as guarantors (the "Guarantors"), First
Security Bank, National Association, as the Owner Trustee, First Security Trust Company of Nevada, as Trustee,
the various banks and other lending institutions which are parties thereto from time to time, as holders (the
"Holders"), the various banks and other lending institutions which are parties thereto from time to time, as
lenders (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.
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the Company has caused this Officer's Certificate to be duly executed and delivered as of
this ____ day of ______________, ______.
[ ]
By:
Name:
Title:
Schedule I
(Itemized Documentation in Support of Asserted Property Cost)
EXHIBIT J
JOINDER AGREEMENT
(Pursuant to Section 5.8(a) of the Participation Agreement)
THIS JOINDER AGREEMENT (as amended, modified, supplemented, restated and/or replaced from time to time,
the "Agreement"), dated as of _____________, ______, is by and between ___________________, a ___________ (the
"Company"), and 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 (the "Agent"). Capitalized terms not
otherwise defined herein shall have the meanings set forth therefor in the Participation Agreement dated as of
October 24, 2000 (as amended, modified, supplemented, restated and/or replaced from time to time, the
"Participation Agreement") among Acxiom Corporation, the various parties thereto from time to time, as the
Guarantors, First Security Bank, National Association, as the Owner Trustee under the AC Trust 2000-1, First
Security Trust Company of Nevada, as the Trustee under AC Trust 2000-2, the various banks and other lending
institutions which are parties thereto from time to time, as the Lenders, the various banks and other lending
institutions which are parties thereto from time to time, as the Holders, and the Agent.
The Company is a Domestic Subsidiary, and, consequently, the Credit Parties are required by Section
8.3(n) of the Participation Agreement to cause the Company to become a "Guarantor".
Accordingly, the Company hereby agrees as follows with the Agent, for the benefit of the Financing
Parties:
1. The Company hereby acknowledges, agrees and confirms that, by its execution of this Agreement,
the Company will be deemed to be a party to the Participation Agreement and a "Guarantor" for all purposes of the
Participation Agreement and all other Operative Agreements, and shall have all of the obligations of a Guarantor
under the Operative Agreements as if the Company had executed the Participation Agreement. The Company hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions
applicable to the Guarantors contained in the Operative Agreements. Without limiting the generality of the
foregoing terms of this paragraph 1, the Company hereby (i) jointly and severally together with the other
Guarantors, guarantees to each Financing Party, as provided in Sections 6B.1 through 6B.8 of the Participation
Agreement, the prompt payment and performance of the Company Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof.
2. THE COMPANY HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES TO THE PROVISIONS OF SECTION 12.7 OF THE
PARTICIPATION AGREEMENT, INCLUDING WITHOUT LIMITATION THOSE PROVISIONS REGARDING GOVERNING LAW, SUBMISSION TO
JURISDICTION, WAIVER OF JURY TRIAL AND VENUE. THIS PROVISION HAS BEEN SPECIFICALLY REVIEWED BY THE COMPANY.
3. The chief executive office and principal place of business of the Company are located at the
location(s) set forth on Schedule 1 attached hereto.
4. All notices and other communications to be delivered to the Company shall be directed to
[___________] at its address set forth in Section 12.2 of the Participation Agreement or such other address as
may be specified, in accordance with the terms of the Participation Agreement, by [___________] from time to time.
5. The Company hereby waives acceptance by the Financing Parties of the guaranty by the Company
under Sections 6B.1 through 6B.8 of the Participation Agreement upon the execution of this Agreement by the
Company.
6. This Agreement may be executed in multiple counterparts, each of which shall constitute an
original but all of which when taken together shall constitute one contract.
7. This Agreement shall be governed by and construed and interpreted in accordance with the laws
of the State of [___________].
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its authorized
officers, and the Agent, for the benefit of the Financing Parties, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
[COMPANY]
By:
Name:
Title:
Acknowledged and accepted:
BANK OF AMERICA, N.A.,
as the Agent
By:
Name:
Title:
Schedule 1
[Chief Executive Office and
Principal Place of Business of the Company]
EXHIBIT K
Legal Proceedings
(Pursuant to Section 6.2(d) of the Participation Agreement)
On September 20, 1999 Acxiom and certain of its directors and officers were sued by an individual shareholder in
a purported class action filed in the United States District Court for the Eastern District of Arkansas. The
action alleges that the defendants violated Section 11 of the Securities Act of 1933 in connection with the
July 23, 1999 public offering of 5,421,000 shares of our common stock. In addition, the action seeks to assert
liability against Company Leader Xxxxxxx Xxxxxx pursuant to Section 15 of the Securities Act of 1933. The action
seeks to have a class certified of all purchasers of the stock sold in the public offering. Two additional suits
were subsequently filed in the same venue against the same defendants and asserting the same allegations. The
plaintiffs have now filed a consolidated complaint. The cases are still in the initial phase of litigation, with
the defendants having filed their initial response to the lawsuit. We believe the allegations are without merit
and the defendants intend to vigorously contest the cases, and at the appropriate time, seek their dismissal.
EXHIBIT L
[States of Incorporation/Formation and Principal Place of Business of Each Guarantor]
(Pursuant to Section 6.2(i) of the Participation Agreement)
State of Incorporation/Formation State of Principal Place
Guarantors of Business
Acxiom CDC, Inc. Arkansas Illinois
Acxiom/Direct Media, Inc. Arkansas Arkansas
Acxiom/Woodland Hills Data Center, Inc. Arkansas California
Acxiom RM-Tools, Inc. Arkansas Arkansas
EXHIBIT M
ACXIOM CORPORATION
OFFICER'S COMPLIANCE CERTIFICATE
(Pursuant to Section 8.3(l) of the Participation Agreement)
The undersigned, on behalf of Acxiom Corporation, a Delaware corporation (the "Company"), hereby
certifies to Bank of America, N.A., as agent for the Lenders and the Holders, to the extent of their interests
(the "Agent"), under the Participation Agreement dated as of October 24, 2000 (as amended, modified,
supplemented, restated and/or replaced from time to time, the "Participation Agreement") among the Company, in
its capacity as the Lessee and as the Construction Agent, the various parties thereto from time to time, as the
Guarantors, First Security Bank, National Association, as the Owner Trustee, First Security Trust Company of
Nevada, as Trustee, the various banks and other lending institutions which are parties thereto from time to time,
as the Holders, the various banks and other lending institutions which are parties thereto from time to time, as
the Lenders, and the Agent, as follows:
1. This Certificate is delivered to you pursuant to Section 8.3(l) of the Participation
Agreement. Capitalized terms used herein and not defined herein shall have the meanings assigned thereto in the
Participation Agreement.
2. I have reviewed the financial statements of the Company and its Consolidated Subsidiaries dated
as of ___________, ______ and for the fiscal quarter then ended and such statements fairly present the financial
condition of the Company and its Consolidated Subsidiaries as of the dates indicated and the results of its
operations and cash flows for the period indicated.
3. I have reviewed the terms of the Operative Agreements and have made, or caused to be made under
my supervision, a review in reasonable detail of the transactions and the condition of the Company and its
Consolidated Subsidiaries during the accounting period covered by the financial statements referred to in
Paragraph 2 above. Such review has not disclosed the existence during or at the end of such accounting period of
any condition or event that constitutes a Default or Event of Default, nor do I have any knowledge of the
existence of any such condition or event as at the date of this Certificate.
4. The Leverage Ratio and calculations determining such figure are set forth on the attached
Schedule 1 and the Company and its Consolidated Subsidiaries are in compliance with the covenants and
restrictions referenced in Section 28.1 of the Lease and the covenants contained in Article VII of the Lessee
Credit Agreement as shown on such Schedule 1 and the Company and its Consolidated Subsidiaries are in compliance
with the other covenants and restrictions referenced in Section 28.1 of the Lease and contained in the Lessee
Credit Agreement.
WITNESS the following signature as of the ______ day of ___________, ______.
ACXIOM CORPORATION
By:
Name:
Title:
Schedule 1
to
Officer's Compliance Certificate
[DATE]
-------------------------------------------------------------------------------------------------------------------
Appendix A
Rules of Usage and Definitions
-------------------------------------------------------------------------------------------------------------------
I. Rules of Usage
The following rules of usage shall apply to this Appendix A and the Operative Agreements (and each appendix,
schedule, exhibit and annex to the foregoing) unless otherwise required by the context or unless otherwise
defined therein:
(a) Except as otherwise expressly provided, any definitions set forth herein or in any other
document shall be equally applicable to the singular and plural forms of the terms defined.
(b) Except as otherwise expressly provided, references in any document to articles, sections,
paragraphs, clauses, annexes, appendices, schedules or exhibits are references to articles, sections, paragraphs,
clauses, annexes, appendices, schedules or exhibits in or to such document.
(c) The headings, subheadings and table of contents used in any document are solely for convenience
of reference and shall not constitute a part of any such document nor shall they affect the meaning, construction
or effect of any provision thereof.
(d) References to any Person shall include such Person, its successors, permitted assigns and
permitted transferees.
(e) Except as otherwise expressly provided, reference to any agreement shall mean such agreement as
amended, modified, extended, supplemented, restated and/or replaced from time to time in accordance with the
applicable provisions thereof.
(f) Except as otherwise expressly provided, references to any law includes any amendment or
modification to such law and any rules or regulations issued thereunder or any law enacted in substitution or
replacement therefor.
(g) When used in any document, words such as "hereunder", "hereto", "hereof" and "herein" and other
words of like import shall, unless the context clearly indicates to the contrary, refer to the whole of the
applicable document and not to any particular article, section, subsection, paragraph or clause thereof.
(h) References to "including" shall mean including without limiting the generality of any
description preceding such term and for purposes hereof the rule of ejusdem generis shall not be applicable to
limit a general statement, followed by or referable to an enumeration of specific matters, to matters similar to
those specifically mentioned.
(i) References herein to "attorney's fees", "legal fees", "costs of counsel" or other such
references shall be deemed to include the allocated cost of in-house counsel.
(j) Each of the parties to the Operative Agreements and their counsel have reviewed and revised, or
requested revisions to, the Operative Agreements, and the usual rule of construction that any ambiguities are to
be resolved against the drafting party shall be inapplicable in the construction and interpretation of the
Operative Agreements and any amendments or exhibits thereto.
(k) Capitalized terms used in any Operative Agreements which are not defined in this Appendix A but
are defined in another Operative Agreement shall have the meaning so ascribed to such term in the applicable
Operative Agreement.
II. Definitions
"ABR" shall mean, for any day, a rate per annum equal to the greater of (a) the Prime Lending Rate in
effect on such day, and (b) the Federal Funds Effective Rate in effect on such day plus one-half of one percent
(0.5%) plus, in each case, the Applicable Percentage. For purposes hereof: "Prime Lending Rate" shall mean the
rate which the Agent announces from time to time as its prime lending rate as in effect from time to time. The
Prime Lending Rate is a reference rate and does not necessarily represent the lowest or best rate actually
charged to any customer. Any Lender may make commercial loans or other loans at rates of interest at, above or
below the Prime Lending Rate. The Prime Lending Rate shall change automatically and without notice from time to
time as and when the prime lending rate of the Agent changes. "Federal Funds Effective Rate" shall mean, for any
period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members or the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such transactions received by the Agent from three
(3) Federal funds brokers of recognized standing selected by it. Any change in the ABR due to a change in the
Prime Lending Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the
effective day of such change in the Prime Lending Rate or the Federal Funds Effective Rate, respectively.
"ABR Holder Advance" shall mean a Holder Advance bearing a Holder Yield based on the ABR.
"ABR Loans" shall mean Loans the rate of interest applicable to which is based upon the ABR.
"AC Trust 2000-1" shall mean the grantor trust created pursuant to the terms and conditions of the Trust
Agreement.
"AC Trust 2000-2" shall mean the grantor trust created pursuant to the terms and conditions of the Trust
Agreement (AC Trust 2000-2).
"Acceleration" shall have the meaning given to such term in Section 6 of the Credit Agreement.
"Accounts" shall have the meaning given to such term in Section 1 of the Security Agreement.
"acquire" or "purchase" shall mean, with respect to the Little Rock Land or any other Little Rock
Property, the acquisition or purchase of such Little Rock Land and Little Rock Property by the City of Little
Rock from any Person for lease to the Lessor under the Head Lease.
"Acquisition Advance" shall have the meaning given to such term in Section 5.3 of the Participation
Agreement.
"Acquisition Loan" shall mean any Loan made in connection with an Acquisition Advance.
"Act" shall have the meaning provided thereto in the Bond Indenture.
"Acxiom" shall mean Acxiom Corporation, a Delaware corporation, and its successors and permitted assigns.
"Additional Incorporated Terms" shall have the meaning given to such term in Section 28.1 of the Lease.
"Advance" shall mean a Construction Advance or an Acquisition Advance.
"Affiliate" shall mean, with respect to any Person, any Person or group acting in concert in respect of
the Person in question that, directly or indirectly, controls or is controlled by or is under common control with
such Person.
"After Tax Basis" shall mean, with respect to any payment to be received, the amount of such payment
increased so that, after deduction of the amount of all taxes required to be paid by the recipient calculated at
the then maximum marginal rates generally applicable to Persons of the same type as the recipients with respect
to the receipt by the recipient of such amounts (less any tax savings realized as a result of the payment of the
indemnified amount), such increased payment (as so reduced) is equal to the payment otherwise required to be made.
"Agent" shall mean Bank of America, N.A., as agent for the Lenders pursuant to the Credit Agreement, or
any successor agent appointed in accordance with the terms of the Credit Agreement and respecting the Security
Documents, for the Lenders and the Holders, to the extent of their interests.
"Agent Related Persons" shall mean the Agent (including any successor Agent), together with its
Affiliates and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Applicable Percentage" shall mean for Eurodollar Loans, ABR Loans, the Lender Unused Fee, Eurodollar
Holder Advances, ABR Holder Advances and the Holder Unused Fee, the margin (expressed as a percentage) to be used
in determining the Eurodollar Rate and/or the applicable Unused Fee, as the case may be, the applicable rate per
annum set forth below under the caption "Applicable Percentage for Eurodollar Loans", "Applicable Percentage for
ABR Loans", "Applicable Percentage for the Lender and Holder Unused Fee", "Applicable Percentage for Eurodollar
Holder Advances", and "Applicable Percentage for ABR Holder Advances", as the case may be, opposite the category
in the table below which corresponds with the actual Leverage Ratio of the Lessee as of the most recent
determination date; provided that until the first date that the Applicable Percentage is determined as set forth
below in this definition, the "Applicable Percentage" shall be the applicable rate per annum set forth below in
Category 3:
===================== ================= ===================== ==================== =================== ===================
Applicable Applicable
-------------------- Applicable Percentage for the Percentage Applicable
Percentage for Lender and Holder for Applicable Percentage
Eurodollar Unused Eurodollar Holder Percentage for ABR Holder
Loans Fee Advances for ABR Loans Advances
Leverage Ratio
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
Category 1
< 0.50 to 1.00 1.00% 0.225% 1.75% 0.00% 0.75%
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
Category 2
> 0.50 to 1.00
but
< 1.00 to 1.00 1.25% 0.250% 2.00% 0.00% 0.75%
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
Category 3
> 1.00 to 1.00
but
< 1.50 to 1.00 1.50% 0.300% 2.25% 0.00% 0.75%
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
--------------------- ----------------- --------------------- -------------------- ------------------- -------------------
Category 4
> 1.50 to 1.00 1.75% 0.375% 2.50% 0.25% 1.00%
===================== ================= ===================== ==================== =================== ===================
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end of each fiscal
quarter of the Lessee's fiscal year based upon the Lessee's consolidated financial statements delivered pursuant
to Section 28.1 of the Lease and Section 8.3(l) of the Participation Agreement and (ii) each change in the
Applicable Percentage resulting from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the effective date of the next such change;
provided that the Leverage Ratio shall be deemed to be in Category 4 (A) at any time that an Event of Default has
occurred and is continuing or (B) at the option of the Agent or at the request of the Required Lenders if the
Lessee fails to deliver the consolidated financial statements required to be delivered by it pursuant to
Section 28.1 of the Lease and Section 8.2(l) of the Participation Agreement, during the period from the expiration
of the time for delivery thereof until such consolidated financial statements are delivered.
"Appraisal" shall mean, with respect to any Property, an appraisal of the Fair Market Sales Value of
such Property as if improved in accordance with the Plans and Specifications to be delivered in connection with
the Participation Agreement or in accordance with the terms of the Lease, in each case prepared by a reputable
appraiser reasonably acceptable to the Agent, which in the judgment of counsel to the Agent, complies with all of
the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended, the rules
and regulations adopted pursuant thereto, and all other applicable Legal Requirements.
"Appraisal Procedure" shall have the meaning given such term in Section 22.4 of the Lease.
"Approved State" shall mean each of the following: Arkansas and Arizona and any other state within the
continental United States proposed by the Lessee and consented to in writing by the Agent.
"Appurtenant Rights" shall mean (a) all agreements, easements, rights of way or use, rights of ingress
or egress, privileges, appurtenances, tenements, hereditaments and other rights and benefits at any time
belonging or pertaining to the Land underlying the Improvements or the Improvements, including without limitation
the use of any streets, ways, alleys, vaults or strips of land adjoining, abutting, adjacent or contiguous to the
Land and (b) all permits, licenses and rights, whether or not of record, appurtenant to such Land or the
Improvements.
"Assignment and Acceptance" shall mean the Assignment and Acceptance in the form attached to the Credit
Agreement as Exhibit B.
"Assignments" shall mean the Series 2000-A Assignment and the Series 2000-B Assignment.
"Available Commitment" shall mean, as to any Lender at any time, an amount equal to the excess, if any,
of (a) the amount of such Lender's Commitment over (b) the aggregate principal amount of all Loans made by such
Lender as of such date after giving effect to Section 5.2(d) of the Participation Agreement (but without giving
effect to any other repayments or prepayments of any Loans hereunder).
"Available Holder Commitments" shall mean an amount equal to the excess, if any, of (a) the aggregate
amount of the Holder Commitments over (b) the aggregate amount of the Holder Advances made since the Initial
Closing Date after giving effect to Section 5.2(d) of the Participation Agreement (but without giving effect to
any other repayments or prepayments of any Holder Advances).
"Bankruptcy Code" shall mean Title 11 of the U. S. Code entitled "Bankruptcy," as now or hereafter in
effect or any successor thereto.
"Basic Documents" shall mean the following: the Participation Agreement, the Construction Agency
Agreement, the Trust Agreement, the Certificates, the Credit Agreement, the Notes, the Lease and the Security
Agreement.
"Basic Rent" shall mean, the sum of (a) the Loan Basic Rent and (b) the Lessor Basic Rent, calculated as
of the applicable date on which Basic Rent is due.
"Basic Term" shall have the meaning specified in Section 2.2 of the Lease.
"Basic Term Commencement Date" shall have the meaning specified in Section 2.2 of the Lease.
"Basic Term Expiration Date" shall have the meaning specified in Section 2.2 of the Lease.
"Benefitted Lender" shall have the meaning specified in Section 9.10(a) of the Credit Agreement.
"Xxxx of Sale" shall mean a Xxxx of Sale regarding Equipment in form and substance satisfactory to the
Agent.
"Board" shall mean the Board of Governors of the Federal Reserve System of the United States (or any
successor).
"Bond Documents" shall mean the Head Lease, the Bond Indenture, the Bonds, the Guaranty Agreement, and
all other agreements, documents, and instruments executed by the City of Little Rock, the Bond Trustee, the
Series 0000-X Xxxx Xxxxxxxxx, the Series 2000-B Bond Purchaser or the Owner Trustee or otherwise related to the
transactions contemplated thereby (other than the Bond Loan Documents and the Operative Agreements).
"Bond Estate" shall mean "Trust Estate" as such term is defined in the Bond Indenture.
"Bond Event of Default" shall mean an "Event of Default" as such term is defined in the Bond Indenture.
"Bond Financing Statements" shall mean UCC Financing Statements and fixture filings appropriately
completed and executed for filing in the applicable jurisdictions in order to procure a security interest in
favor of the Bond Trustee in the Bond Estate, subject to the terms of Bond Documents.
"Bond Indenture" shall mean the Trust Indenture dated on or about the Closing Date between the City of
Little Rock and the Bond Trustee.
"Bond Loan" shall mean a loan to the Series B Bond Purchaser by the Lessor pursuant to the terms of the
Bond Loan Documents.
"Bond Loan Collateral" shall mean the "Bond Loan Collateral" as defined in the Bond Loan Security
Agreement.
"Bond Loan Credit Agreement" shall mean the Credit Agreement (AC Trust 2000-2) dated on or about the
Closing Date between the Series 2000-B Bond Purchaser and the Lessor.
"Bond Loan Documents" shall mean the Bond Loan Security Agreement, Bond Loan Credit Agreement, the Bond
Loan Note and Trust Agreement (AC Trust 2000-2).
"Bond Loan Financing Statements" shall mean UCC Financing Statements and fixture filings appropriately
completed and executed for filing in the applicable jurisdictions in order to procure a security interest in
favor of the Lessor in the Bond Loan Collateral, subject to the terms of Bond Loan Security Agreement.
"Bond Loan Note" shall mean the Bond Loan Note issued on or about the Closing Date by the Series 0000-X
Xxxx Xxxxxxxxx in favor of the Lessor.
"Bond Loan Security Agreement" shall mean the Security Agreement (AC Trust 2000-2) dated on or about the
Closing Date between the Series 0000-X Xxxx Xxxxxxxxx and the Lessor.
"Bond Security Documents" shall mean the Bond Loan Security Agreement, the Assignments and the Bond Loan
Financing Statements.
"Bond Trust Estate" shall mean the "Trust Estate" as defined in the Bond Indenture.
"Bond Trustee" shall mean First Security Bank, National Association, as Bond Trustee under the Bond
Indenture.
"Bonds" shall mean collectively, the Series 2000-A Bond and the Series 2000-B Bond.
"Borrower" shall mean the Owner Trustee, not in its individual capacity but as Borrower under the Credit
Agreement.
"Borrowing Date" shall mean any Business Day specified in a notice delivered pursuant to Section 2.3 of
the Credit Agreement as a date on which the Lessor requests the Lenders to make Loans thereunder.
"Budgeted Total Property Cost" shall mean, at any date of determination with respect to any Construction
Period Property, an amount equal to the aggregate amount which the Construction Agent in good faith expects to be
expended in order to achieve Completion with respect to such Property.
"Business Day" shall mean a day other than a Saturday, Sunday or other day on which commercial banks in
Arkansas, New York or any other states from which the Agent, any Lender or any Holder funds or engages in
administrative activities with respect to the transactions under the Operative Agreements are authorized or
required by law to close; provided, however, that when used in connection with a Eurodollar Loan, the term
"Business Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the
London interbank market.
"Capitalized Lease" shall mean, as applied to any Person, any lease of property (whether real, personal,
tangible, intangible or mixed of such Person) by such Person as the lessee which would be capitalized on a
balance sheet of such Person prepared in accordance with GAAP.
"Capital Stock" shall mean any nonredeemable capital stock of any Credit Party or any of its
Subsidiaries, whether common or preferred.
"Casualty" shall mean any damage or destruction of all or any portion of the Property as a result of a
fire or other casualty.
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
42 U.S.C. Β§ 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986.
"Certificate" shall mean a Certificate in favor of each Holder regarding the Holder Commitment of such
Holder issued pursuant to the terms and conditions of the Trust Agreement in favor of each Holder.
"Change in Control" shall have the meaning specified in the Lessee Credit Agreement on the Closing Date,
without giving effect to any amendments or modifications thereto unless consented to in writing by the Agent
(acting upon the direction of the Majority Secured Parties).
"Chattel Paper" shall have the meaning given to such term in Section 1 of the Security Agreement.
"City of Little Rock" shall mean the City of Little Rock, Arkansas.
"Claims" shall mean any and all obligations, liabilities, losses, actions, suits, penalties, claims,
demands, costs and expenses (including without limitation reasonable attorney's fees and expenses) of any nature
whatsoever.
"Closing Date" shall mean the Initial Closing Date and each Property Closing Date.
"Code" shall mean the Internal Revenue Code of 1986 together with rules and regulations promulgated
thereunder, as amended from time to time, or any successor statute thereto.
"Collateral" shall mean all assets of the Lessor, the Construction Agent and the Lessee, now owned or
hereafter acquired, upon which a Lien is purported to be created by one or more of the Security Documents.
"Commitment" shall mean, as to any Lender, the Lender Commitment of such Lender.
"Commitment Percentage" shall mean, as to any Lender at any time, the percentage which such Lender's
Commitment then constitutes of the aggregate Commitments (or, at any time after the Commitments shall have
expired or terminated, the percentage which the aggregate principal amount of such Lender's Loans then
outstanding constitutes of the aggregate principal amount of all of the Loans then outstanding), and such
Commitment Percentage shall take into account both the Lender's Tranche A Commitment and the Lender's Tranche B
Commitment.
"Commitment Period" shall mean the period from and including the Initial Closing Date to and including
the Construction Period Termination Date, or such earlier date as the Commitments shall terminate as provided in
the Credit Agreement or the Holder Commitment shall terminate as provided in the Trust Agreement.
"Company Obligations" shall mean the obligations of Acxiom, in any and all capacities under and with
respect to the Operative Agreements and each Property.
"Completion" shall mean, with respect to a Property, such time as the acquisition, installation, testing
and final completion of the Improvements on such Property has been achieved in accordance with the Plans and
Specifications, the Construction Agency Agreement and/or the Lease, and in compliance with all Legal Requirements
and Insurance Requirements and a certificate of occupancy has been issued with respect to such Property by the
appropriate governmental entity (except if non-compliance, individually or in the aggregate, shall not have and
could not reasonably be expected to have a Material Adverse Effect or if compliance with any of the foregoing is
otherwise waived by the Agent upon instruction from the Majority Secured Parties). If the Lessor purchases a
Property that includes existing Improvements that are to be immediately occupied by the Lessee without any
improvements financed pursuant to the Operative Agreements, the date of Completion for such Property shall be the
Property Closing Date.
"Completion Date" shall mean, with respect to a Property, the earlier of (a) the date on which
Completion for such Property has occurred or (b) the Construction Period Termination Date.
"Condemnation" shall mean any taking or sale of the use, access, occupancy, easement rights or title to
any Property or any part thereof, wholly or partially (temporarily or permanently), by or on account of any
actual or threatened eminent domain proceeding or other taking of action by any Person having the power of
eminent domain, including without limitation an action by a Governmental Authority to change the grade of, or
widen the streets adjacent to, any Property or alter the pedestrian or vehicular traffic flow to any Property so
as to result in a change in access to such Property, or by or on account of an eviction by paramount title or any
transfer made in lieu of any such proceeding or action.
"Consolidated Subsidiary" shall mean, as to any Person, any Subsidiary of such Person which under the
rules of GAAP consistently applied should have its financial results consolidated with those of such Person for
purposes of financial accounting statements.
"Construction Advance" shall mean an advance of funds to pay, directly or indirectly, Property Costs
pursuant to Section 5.4 of the Participation Agreement.
"Construction Agency Agreement" shall mean the Construction Agency Agreement, dated on or about the
Initial Closing Date between the Construction Agent and the Lessor.
"Construction Agency Agreement Event of Default" shall mean an "Event of Default" as defined in Section
5.1 of the Construction Agency Agreement.
"Construction Agent" shall mean Acxiom, as the construction agent under the Construction Agency
Agreement.
"Construction Agent Options" shall have the meaning given to such term in Section 2.1 of the
Construction Agency Agreement.
"Construction Budget" shall mean the cost of acquisition, installation, testing, constructing and
developing any Property as determined by the Construction Agent in its reasonable, good faith judgement.
"Construction Commencement Date" shall mean, with respect to Improvements, the date on which
construction of such Improvements commences pursuant to the Construction Agency Agreement.
"Construction Contract" shall mean any bonded fixed price contract guaranteeing the maximum completion
cost and the completion date of the Property entered into between the Construction Agent or the Lessee with a
Contractor for the construction of Improvements or any portion thereof on the Property.
"Construction Failure" shall have the meaning specified in Section 2.1 of the Construction Agency
Agreement.
"Construction Loan" shall mean any Loan made in connection with a Construction Advance.
"Construction Loan Property Cost" shall mean with respect to each Construction Period Property at the
date of determination, an amount equal to (a) the aggregate principal amount of Construction Loans made on or
prior to such date, directly or indirectly, with respect to the Property minus (b) the aggregate principal amount
of prepayments or repayments of the Loans allocated to reduce the Construction Loan Property Cost of such
Property pursuant to Section 2.6(c) of the Credit Agreement.
"Construction Period" shall mean, with respect to a Property, the period commencing on the Construction
Commencement Date for such Property and ending on the Completion Date for such Property.
"Construction Period Property" shall mean, at any date of determination, any Property as to which the
Rent Commencement Date has not occurred on or prior to such date.
"Construction Period Termination Date" shall mean (a) the earlier of (i) the date that the Commitments
have been terminated in their entirety in accordance with the terms of Section 2.5(a) of the Credit Agreement, or
(ii) the second anniversary of the Initial Closing Date or (b) such later date as may be agreed to by the
Majority Secured Parties.
"Contractor" shall mean each properly licensed entity experienced in building projects similar to those
contemplated by the applicable Property with whom the Construction Agent or the Lessee contracts to construct any
Improvements or any portion thereof on such Property.
"Controlled Group" shall mean all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together with any Credit Party, are treated
as a single employer under Section 414 of the Code.
"Co-Owner Trustee" shall have the meaning specified in Section 9.2 of the Trust Agreement.
"Credit Agreement" shall mean the Credit Agreement, dated on or about the Initial Closing Date, among
the Lessor, the Agent and the Lenders, as specified therein.
"Credit Agreement Default" shall mean any event or condition which, with the lapse of time or the giving
of notice, or both, would constitute a Credit Agreement Event of Default.
"Credit Agreement Event of Default" shall mean any event or condition defined as an "Event of Default"
in Section 6 of the Credit Agreement.
"Credit Documents" shall mean the Participation Agreement, the Construction Agency Agreement, the Credit
Agreement, the Notes and the Security Documents.
"Credit Parties" shall mean the Construction Agent, the Lessee and each Guarantor.
"Deed" shall mean a warranty deed regarding the Land and/or Improvements in form and substance
satisfactory to the Agent.
"Default" shall mean any event, act or condition which with notice or lapse of time, or both, would
constitute an Event of Default.
"Defaulting Holder" shall have the meaning given to such term in Section 12.4 of the Participation
Agreement.
"Defaulting Lender" shall have the meaning given to such term in Section 12.4 of the Participation
Agreement.
"Deficiency Balance" shall have the meaning given in Section 22.1(b) of the Lease Agreement.
"Documents" shall have the meaning given to such term in Section 1 of the Security Agreement.
"Dollars" and "$" shall mean dollars in lawful currency of the United States of America.
"Domestic Subsidiary" shall mean, with respect to any Person, any Subsidiary of such Person which is
incorporated or organized under the laws of any State of the United States or the District of Columbia.
"Election Notice" shall have the meaning given to such term in Section 20.1 of the Lease.
"Eligible Assignee" shall mean (i) a Lender or a Holder, as the case may be; (ii) an Affiliate of a
Lender or a Holder, as the case may be; and (iii) any other Person approved by the Agent and, unless an Event of
Default has occurred and is continuing at the time any assignment is effected in accordance with the Operative
Agreements, the Lessee or the Construction Agent, such approval not to be unreasonably withheld or delayed by the
Lessee or the Construction Agent and such approval to be deemed given by the Lessee or the Construction Agent if
no objection is received by the assigning Lender or Holder and the Agent from the Lessee or the Construction
Agent within two Business Days after notice of such proposed assignment has been provided by the assigning Lender
or Holder to the Lessee or the Construction Agent; provided, however, that neither the Lessee nor the
Construction Agent nor an Affiliate of the Lessee or the Construction Agent shall qualify as an Eligible Assignee.
"Employee Benefit Plan" or "Plan" shall mean an employee benefit plan (within the meaning of Section
3(3) of ERISA, including without limitation any Multiemployer Plan), or any "plan" as defined in Section
4975(e)(1) of the Code and as interpreted by the Internal Revenue Service and the Department of Labor in rules,
regulations, releases or bulletins in effect on any Closing Date.
"Environmental Claims" shall mean any investigation, notice, violation, demand, allegation, action,
suit, injunction, judgment, order, consent decree, penalty, fine, lien, proceeding, or claim (whether
administrative, judicial, or private in nature) arising (a) pursuant to, or in connection with, an actual or
alleged violation of, any Environmental Law, (b) in connection with any Hazardous Substance, (c) from any
abatement, removal, remedial, corrective, or other response action in connection with a Hazardous Substance,
Environmental Law, or other order of a Tribunal or (d) from any actual or alleged damage, injury, threat, or harm
to health, safety, natural resources, or the environment.
"Environmental Laws" shall mean any Law, permit, consent, approval, license, award, or other
authorization or requirement of any Tribunal relating to emissions, discharges, releases, threatened releases of
any Hazardous Substance into ambient air, surface water, ground water, publicly owned treatment works, septic
system, or land, or otherwise relating to the handling, storage, treatment, generation, use, or disposal of
Hazardous Substances, pollution or to the protection of health or the environment, including without limitation
CERCLA, the Resource Conservation and Recovery Act, 42 U.S.C. Β§ 6901, et seq., and state statutes analogous
thereto.
"Environmental Violation" shall mean any activity, occurrence or condition that violates or threatens
(if the threat requires remediation under any Environmental Law and is not remediated during any grace period
allowed under such Environmental Law) to violate or results in or threatens (if the threat requires remediation
under any Environmental Law and is not remediated during any grace period allowed under such Environmental Law)
to result in noncompliance with any Environmental Law.
"Equipment" shall mean equipment, apparatus, furnishings, fittings and personal property of every kind
and nature whatsoever purchased, leased or otherwise acquired using the proceeds of the Bonds, the Loans or the
Holder Advances by the City of Little Rock, the Construction Agent, the Lessee or the Lessor and all improvements
and modifications thereto and replacements thereof, whether or not now owned or hereafter acquired or now or
subsequently attached to, contained in or used or usable in any way in connection with any operation of any
Improvements, including but without limiting the generality of the foregoing, all equipment described in the
Appraisal including without limitation all heating, electrical, and mechanical equipment, lighting, switchboards,
plumbing, ventilation, air conditioning and air-cooling apparatus, refrigerating, and incinerating equipment,
escalators, elevators, loading and unloading equipment and systems, cleaning systems (including without
limitation window cleaning apparatus), telephones, communication systems (including without limitation satellite
dishes and antennae), televisions, computers, sprinkler systems and other fire prevention and extinguishing
apparatus and materials, security systems, motors, engines, machinery, pipes, pumps, tanks, conduits, appliances,
fittings and fixtures of every kind and description.
"Equipment Schedule" shall mean (a) each Equipment Schedule attached to the applicable Requisition and
(b) each Equipment Schedule attached to the applicable Lease Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended.
"ERISA Affiliate" shall mean each entity required to be aggregated with any Credit Party pursuant to the
requirements of Section 414(b) or (c) of the Code.
"Eurocurrency Reserve Requirements" shall mean for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal) of reserve requirements in effect
on such day (including without limitation basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed on eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D) maintained by a member bank of the Federal Reserve System.
"Eurodollar Holder Advance" shall mean a Holder Advance bearing a Holder Yield based on the Eurodollar
Rate.
"Eurodollar Loans" shall mean Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.
"Eurodollar Rate" shall mean, for any Eurodollar Loan or Eurodollar Holder Advance comprising part of
the same borrowing or advance (including without limitation conversions, extensions and renewals), for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Eurodollar Loan or Eurodollar Holder Advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded upwards, if necessary, to the nearest 1/100 of 1%). As
used herein, "Reuters Screen LIBO Page" shall mean the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or such other page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks) ("RMMRS"). In the event the RMMRS is not then quoting
such offered rates, "Eurodollar Rate" shall mean for the Interest Period for each Eurodollar Loan or Eurodollar
Holder Advance comprising part of the same borrowing or advance (including without limitation conversions,
extensions and renewals), the average (rounded upward to the nearest one sixteenth (1/16) of one percent (1%))
per annum rate of interest determined by the office of the Agent (each such determination to be conclusive and
binding) as of two (2) Business Days prior to the first day of such Interest Period, as the effective rate at
which deposits in immediately available funds in U.S. dollars are being, have been, or would be offered or quoted
by the Agent to major banks in the applicable interbank market for Eurodollar deposits at any time during the
Business Day which is the second Business Day immediately preceding the first day of such Interest Period, for a
term comparable to such Interest Period and in the amount of the requested Eurodollar Loan and/or Eurodollar
Holder Advance. If no such offers or quotes are generally available for such amount, then the Agent shall be
entitled to determine the Eurodollar Rate by estimating in its reasonable judgment the per annum rate (as
described above) that would be applicable if such quote or offers were generally available.
"Event of Default" shall mean a Lease Event of Default, a Construction Agency Agreement Event of Default
, a Credit Agreement Event of Default, a Trustee Event of Default or a Bond Event of Default.
"Excepted Payments" shall mean:
(a) all indemnity payments (including without limitation indemnity payments made pursuant
to Section 11 of the Participation Agreement), whether made by adjustment to Basic Rent or otherwise, to
which the Owner Trustee, Trustee, any Holder or any of their respective Affiliates, agents, officers,
directors or employees is entitled;
(b) any amounts (other than Basic Rent or Termination Value) payable under any Operative
Agreement, Bond Loan Document or Bond Document to reimburse the Owner Trustee, Trustee any Holder or any
of their respective Affiliates (including without limitation the reasonable expenses of the Owner
Trustee, Trustee the Trust Company, FSN and the Holders incurred in connection with any such payment)
for performing or complying with any of the obligations of any Credit Party under and as permitted by
any Operative Agreement, Bond Loan Document or Bond Document;
(c) any amount payable to a Holder by any transferee of such interest of a Holder as the
purchase price of such Holder's interest in the Trust Estate or the Trust Estate (AC Trust 2000-2) (or a
portion thereof);
(d) any insurance proceeds (or payments with respect to risks self-insured or policy
deductibles) under liability policies other than such proceeds or payments payable to the Agent or any
Lender;
(e) any insurance proceeds under policies maintained by the Owner Trustee, Trustee or any
Holder;
(f) Transaction Expenses or other amounts, fees, disbursements or expenses paid or payable
to or for the benefit of the Owner Trustee and the Trustee;
(g) all right, title and interest of any Holder or the Owner Trustee to any Property or
any portion thereof or any other property to the extent any of the foregoing has been released from the
Liens of the Security Documents and the Lease pursuant to the terms thereof;
(h) upon termination of the Credit Agreement, pursuant to the terms thereof, all remaining
property covered by the Lease or the Security Documents;
(i) all payments in respect of Holder Yield;
(j) any payments in respect of interest to the extent attributable to payments referred to
in clauses (a) through (i) above; and
(k) any rights of either the Owner Trustee or the Trust Company to demand, collect, xxx
for or otherwise receive and enforce payment of any of the foregoing amounts, provided that such rights
shall not include the right to terminate the Lease.
"Excess Proceeds" shall mean the excess, if any, of the aggregate of all awards, compensation or
insurance proceeds payable in connection with a Casualty or Condemnation over the Termination Value paid by the
Lessee pursuant to the Lease with respect to such Casualty or Condemnation.
"Excluded Costs" shall mean regarding the period prior to the earlier to occur of the Completion Date
for the applicable Property or the Construction Period Termination Date for such Property (a) indemnity payments
for damage claims (excluding damage claims caused by or resulting from the Lessee's actions or failure to act or
damage claims covered pursuant to Sections 11.3, 11.4, 11.6 and/or 11.7 of the Participation Agreement) brought
by parties other than the Financing Parties and (b) Property Costs incurred in connection with the construction
of a Property arising from acts outside the control of the Lessee (excluding any such Property Costs relating to
(i) damage claims excluded under clause (a) of this definition, (ii) frauds, misapplication of funds, illegal
acts or willful misconduct on the party of the Lessee and (iii) the bankruptcy of any Credit Party).
"Excluded Taxes" shall have the meaning given to such term in Section 11.2(b) of the Participation
Agreement.
"Exculpated Persons" shall mean the Trust Company and FSN (except with respect to the representations
and warranties and the other obligations of the Trust Company and FSN, respectively, pursuant to the Operative
Agreements, the Bond Loan Documents and the Bond Documents expressly undertaken in such parties' individual
capacity, including without limitation the representations and warranties of the Trust Company pursuant to
Section 6.1 of the Participation Agreement and of FSN pursuant to Section 6.1.A. of the Participation Agreement,
the obligations of the Trust Company pursuant to Section 8.2 of the Participation Agreement and FSN pursuant to
Section 8.2.A of the Participation Agreement and the obligations of the Trust Company pursuant to the Trust
Agreement and the obligations of FSN pursuant to the Trust Agreement (AC 2000-2)), the Holders (except with
respect to the obligations of the Holders pursuant to the Participation Agreement, the Trust Agreement and Trust
Agreement (2000-2) expressly undertaken in their respective individual capacities), their officers, directors,
shareholders and partners.
"Exempt Payments" shall have the meaning specified in Section 11.2(e) of the Participation Agreement.
"Expiration Date" shall mean either (a) the Basic Term Expiration Date or (b) the last day of the
applicable Renewal Term; provided, in no event shall the Expiration Date be later than the annual anniversary of
the Initial Closing Date occurring in the year 2005, unless such later date has been expressly agreed to in
writing by each of the Lessor, the Lessee, the Agent, the Lenders and the Holders or unless the Certificates and
Notes shall have been refinanced in accordance with Section 3.5(a) of the Participation Agreement.
"Extra Budget Cost" shall mean any cost in excess of the sum of the Available Commitments and the
Available Holder Commitments (less any Unfunded Amounts) necessary for Completion of all Properties (a) in
accordance with the original Construction Budget for each Property (as modified in accordance with the Operative
Agreements) and (b) on or prior to the Construction Period Termination Date.
"Fair Market Sales Value" shall mean, with respect to any Property, the amount, which in any event,
shall not be less than zero (0), that would be paid in cash in an arms-length transaction between an informed and
willing purchaser and an informed and willing seller, neither of whom is under any compulsion to purchase or
sell, respectively, such Property. Fair Market Sales Value of any Property shall be determined based on the
assumption that, except for purposes of Section 17 of the Lease, such Property is in the condition and state of
repair required under Section 10.1 of the Lease and each Credit Party is in compliance with the other
requirements of the Operative Agreements, the Bond Loan Documents and the Bond Documents.
"Federal Funds Effective Rate" shall have the meaning given to such term in the definition of ABR.
"Financing Parties" shall mean the Lessor, the Owner Trustee, in its trust capacity, the Agent, the
Holders and the Lenders.
"Fixtures" shall mean all fixtures relating to the Improvements, including without limitation all
components thereof, located in or on the Improvements, together with all replacements, modifications, alterations
and additions thereto.
"Force Majeure Event" shall mean any event beyond the control of the Construction Agent, including
without limitation strikes or lockouts (but only when the Construction Agent is legally prevented from securing
replacement labor or materials as a result thereof), acts of God, adverse weather conditions, inability to obtain
labor or materials after all possible efforts have been expended by the Construction Agent, governmental
activities, civil commotion and enemy action; but excluding any event, cause or condition that results from the
Construction Agent's financial condition and any Casualty or Condemnation with respect to which the Construction
Agent could have reduced the economic loss or the delay in construction resulting therefrom.
"Form 1001" shall have the meaning specified in Section 11.2(e) of the Participation Agreement.
"Form 4224" shall have the meaning specified in Section 11.2(e) of the Participation Agreement.
"FSN" shall mean First Security Trust Company of Nevada, a trust company organized under the laws of the
State of Nevada.
"GAAP" shall mean generally accepted accounting principles set forth in the opinions and pronouncements
of the accounting principles board of the American Institute of Certified Public Accountants, and statements and
pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as
may be approved by a significant segment of the accounting profession, that are applicable to the circumstances
as of the date of determination.
"Governmental Action" shall mean all permits, authorizations, registrations, consents, approvals,
waivers, exceptions, variances, orders, judgments, written interpretations, decrees, licenses, exemptions,
publications, filings, notices to and declarations of or with, or required by, any Governmental Authority, or
required by any Legal Requirement, and shall include, without limitation, all environmental and operating permits
and licenses that are required for the full use, occupancy, zoning and operating of the Property.
"Governmental Authority" shall mean any nation or government, any state or other political subdivision
thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Ground Lease" shall mean a ground lease (in form and substance satisfactory to the Agent) respecting
any Property (but specifically excluding from this definition, the Head Lease) (a) owned by any Credit Party (or
a parent corporation or any Subsidiary of any Credit Party) and leased to the Lessor where such lease has at
least a ninety-nine (99) year term and payments set at no more than $1.00 per year, or (b) where such lease is
subject to such other terms and conditions as are satisfactory to the Agent.
"Guarantors" shall mean the various parties to the Participation Agreement from time to time, as
guarantors of the Construction Agent and the Lessee with respect to the Operative Agreements, the Bond Loan
Documents, the Bond Documents and the Properties.
"Hard Costs" shall mean all costs and expenses payable for supplies, materials, labor and profit with
respect to the Improvements under any Construction Contract.
"Hazardous Substance" shall mean any of the following: (a) any petroleum or petroleum product,
explosives, radioactive materials, asbestos, formaldehyde, polychlorinated biphenyls, lead and radon gas; (b) any
substance, material, product, derivative, compound or mixture, mineral, chemical, waste, gas, medical waste, or
pollutant, in each case whether naturally occurring, man-made or the by-product of any process, that is toxic,
harmful or hazardous to the environment or human health or safety as determined in accordance with any
Environmental Law; or (c) any substance, material, product, derivative, compound or mixture, mineral, chemical,
waste, gas, medical waste or pollutant that would support the assertion of any claim under any Environmental Law,
whether or not defined as hazardous as such under any Environmental Law.
"Head Lease" shall mean the Head Lease Agreement dated as of May 1, 2000 between the City of Little
Rock, as lessor, and the Lessor, as lessee
"Head Lease Basic Rent" shall mean "Basic Rent" as such term is defined in the Head Lease.
"Holder Advance" shall mean any advance made by any Holder to the Owner Trustee pursuant to the terms of
the Trust Agreement or the Participation Agreement.
"Holder Amount" shall mean as of any date, the aggregate amount of Holder Advances made by each Holder
to the Trust Estate pursuant to Section 2 of the Participation Agreement and Section 3.1 of the Trust Agreement
less any payments of any Holder Advances received by the Holders pursuant to Section 3.4 of the Trust Agreement.
"Holder Commitments" shall mean $2,507,100, as such amount may be increased or reduced from time to time
in accordance with the provisions of the Operative Agreements; provided, if there shall be more than one (1)
Holder, the Holder Commitment of each Holder shall be as set forth in Schedule I to the Trust Agreement as such
Schedule I may be amended and replaced from time to time.
"Holder Construction Property Cost" shall mean, with respect to each Construction Period Property, at
any date of determination, an amount equal to the outstanding Holder Advances made directly or indirectly with
respect thereto under the Trust Agreement.
"Holder Overdue Rate" shall mean the lesser of (a) the then current rate of Holder Yield respecting the
particular amount in question plus two percent (2%) and (b) the highest rate permitted by applicable law.
"Holder Property Cost" shall mean with respect to a Property an amount equal to the outstanding Holder
Advances made directly or indirectly with respect thereto.
"Holder Unused Fee" shall have the meaning given to such term in Section 7.4 of the Participation
Agreement.
"Holder Yield" shall mean with respect to Holder Advances from time to time either the Eurodollar Rate
plus the Applicable Percentage or the ABR as elected by the Owner Trustee from time to time with respect to such
Holder Advances in accordance with the terms of the Trust Agreement; provided, however, (a) upon delivery of the
notice described in Section 3.7(c) of the Trust Agreement, the outstanding Holder Advances of each Holder shall
bear a yield at the ABR applicable from time to time from and after the dates and during the periods specified in
Section 3.7(c) of the Trust Agreement, and (b) upon the delivery by a Holder of the notice described in Section
11.3(f) of the Participation Agreement, the Holder Advances of such Holder shall bear a yield at the ABR
applicable from time to time after the dates and during the periods specified in Section 11.3(f) of the
Participation Agreement and (c) upon the increase of the Holder Commitments pursuant to Section 5.11 of the
Participation Agreement, the Holder Advances of each Holder shall bear a yield at a rate as determined by the
Majority Holders.
"Holders" shall mean Bank of America, N.A. and shall include the other banks and financial institutions
which may be from time to time holders of Certificates in connection with the AC Trust 2000-1.
"Impositions" shall mean any and all liabilities, losses, expenses, costs, charges and Liens of any kind
whatsoever for fees, taxes, levies, imposts, duties, charges, assessments or withholdings ("Taxes") including but
not limited to (i) real and personal property taxes, including without limitation personal property taxes on any
property covered by the Lease that is classified by Governmental Authorities as personal property, and real
estate or ad valorem taxes in the nature of property taxes; (ii) sales taxes, use taxes and other similar taxes
(including rent taxes and intangibles taxes); (iii) excise taxes; (iv) real estate transfer taxes, conveyance
taxes, stamp taxes and documentary recording taxes and fees; (v) taxes that are or are in the nature of
franchise, income, value added, privilege and doing business taxes, license and registration fees; (vi)
assessments on any Property, including without limitation all assessments for public Improvements or benefits,
whether or not such improvements are commenced or completed within the Term; and (vii) taxes, Liens, assessments
or charges asserted, imposed or assessed by the PBGC or any governmental authority succeeding to or performing
functions similar to, the PBGC; and in each case all interest, additions to tax and penalties thereon, which at
any time prior to, during or with respect to the Term or in respect of any period for which the Lessee shall be
obligated to pay Supplemental Rent, may be levied, assessed or imposed by any Governmental Authority upon or with
respect to (a) any Property or any part thereof or interest therein; (b) the leasing, financing, refinancing,
demolition, construction, substitution, subleasing, assignment, control, condition, occupancy, servicing,
maintenance, repair, ownership, possession, activity conducted on, delivery, insuring, use, operation,
improvement, sale, transfer of title, return or other disposition of such Property or any part thereof or
interest therein; (c) the Notes, other indebtedness with respect to any Property, or the Certificates, or any
part thereof or interest therein; (d) the rentals, receipts or earnings arising from any Property or any part
thereof or interest therein; (e) the Operative Agreements, the Bond Loan Documents, the Bond Documents, the
performance thereof, or any payment made or accrued pursuant thereto; (f) the income or other proceeds received
with respect to any Property or any part thereof or interest therein upon the sale or disposition thereof; (g)
any contract (including the Construction Agency Agreement) relating to the construction, acquisition or delivery
of the Improvements or any part thereof or interest therein; (h) the issuance of the Bonds, the Notes or the
Certificates; (i) the Bond Trustee, the Owner Trustee, the Trustee, the Trust, AC Trust 2000-2, the Trust Estate
or the Trust Estate (AC Trust 2000-2); or (j) otherwise in connection with the transactions contemplated by the
Operative Agreements, the Bond Loan Documents or the Bond Documents.
"Improvements" shall mean, with respect to the construction, renovations and/or Modifications on any
Land, all buildings, structures, Fixtures, and other improvements of every kind existing at any time and from
time to time on or under the Land purchased or otherwise acquired using the proceeds of the Bonds, the Loans or
the Holder Advances or which is subject to a Ground Lease, together with any and all appurtenances to such
buildings, structures or improvements, including without limitation sidewalks, utility pipes, conduits and lines,
parking areas and roadways, and including without limitation all Modifications and other additions to or changes
in the Improvements at any time, including without limitation (a) any Improvements existing as of the Property
Closing Date as such Improvements may be referenced on the applicable Requisition and (b) any Improvements made
subsequent to such Property Closing Date.
"Incorporated Covenants" shall have the meaning given to such term in Section 28.1 of the Lease.
"Incorporated Representations and Warranties" shall have the meaning given to such term in Section 28.1
of the Lease.
"Indebtedness" of a Person shall mean, without duplication, such Person's:
(a) obligations for borrowed money;
(b) obligations representing the deferred purchase price of Property (whether real,
personal, tangible, intangible or mixed) or services (other than accounts payable arising in the
ordinary course of such Person's business payable on terms customary in the trade);
(c) obligations, whether or not assumed, secured by liens or payable out of the proceeds
or production from property now or hereafter owned or acquired by such Person;
(d) obligations which are evidenced by notes, acceptances or other instruments;
(e) Capitalized Lease obligations;
(f) net liabilities under interest rate swap, exchange or cap agreements; and
(g) contingent obligations.
"Indemnified Person" shall mean the Lessor, the Owner Trustee, the Trust, the AC Trust 2000-2, the Trust
Company, the Trustee, FSN, the Bond Trustee, the Agent, the Holders, the Beneficiaries, the Lenders and their
respective successors, assigns, directors, shareholders, partners, officers, employees, agents and Affiliates.
"Indemnity Provider" shall mean, respecting each Property, the Lessee.
"Initial Closing Date" shall mean October 24, 2000.
"Initial Construction Advance" shall mean any initial Advance to pay, directly or indirectly, for: (a)
Property Costs for construction of any Improvements; and (b) the Property Costs of restoring or repairing any
Property which is required to be restored or repaired in accordance with Section 15.1(e) of the Lease.
"Instruments" shall have the meaning given to such term in Section 1 of the Security Agreement.
"Insurance Requirements" shall mean all terms and conditions of any insurance policy either required by
the Lease to be maintained by the Lessee or required by the Construction Agency Agreement to be maintained by the
Construction Agent, and all requirements of the issuer of any such policy and, regarding self insurance, any
other requirements of the Lessee.
"Interest Period" shall mean during the Commitment Period and thereafter as to any Eurodollar Loan or
Eurodollar Holder Advance (i) with respect to the initial Interest Period, the period beginning on the date of
the first Eurodollar Loan and Eurodollar Holder Advance and ending one (1) month, two (2) months, three (3)
months or (to the extent available to all Lenders and all Holders) six (6) months thereafter, as selected by the
Lessor (in the case of a Eurodollar Loan) or the Owner Trustee (in the case of a Eurodollar Holder Advance) in
its applicable notice given with respect thereto and (ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar Loan or Eurodollar Holder Advance and ending one
(1) month, two (2) months, three (3) months or (to the extent available to all Lenders and all Holders) six (6)
months thereafter, as selected by the Lessor by irrevocable notice to the Agent (in the case of a Eurodollar
Loan) or by the Owner Trustee (in the case of a Eurodollar Holder Advance) in each case not less than three (3)
Business Days prior to the last day of the then current Interest Period with respect thereto; provided, however,
that all of the foregoing provisions relating to Interest Periods are subject to the following: (A) if any
Interest Period would end on a day which is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day (except that where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (B) no Interest Period shall extend beyond the Maturity
Date or the Expiration Date, as the case may be, (C) where an Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month in which the Interest Period is to end, such Interest
Period shall end on the last Business Day of such calendar month, (D) there shall not be more than four (4)
Interest Periods outstanding at any one (1) time.
"Investment Company Act" shall mean the Investment Company Act of 1940, as amended, together with the
rules and regulations promulgated thereunder.
"Joinder Agreement" shall mean a joinder agreement, in the form of Exhibit J to the Participation
Agreement, executed from time to time between a Domestic Subsidiary of any Credit Party and the Agent.
"Land" shall mean a parcel of real property described on (a) the Requisition issued by the Construction
Agent on the Property Closing Date relating to such parcel and (b) the schedules to each applicable Lease
Supplement executed and delivered in accordance with the requirements of Section 2.4 of the Lease.
"Law" shall mean any statute, law, ordinance, regulation, rule, directive, order, writ, injunction or
decree of any Tribunal.
"Lease" or "Lease Agreement" shall mean the Lease Agreement dated on or about the Initial Closing Date,
between the Lessor and the Lessee, together with any Lease Supplements thereto.
"Lease Default" shall mean any event or condition which, with the lapse of time or the giving of notice,
or both, would constitute a Lease Event of Default.
"Lease Event of Default" shall have the meaning specified in Section 17.1 of the Lease.
"Lease Supplement" shall mean each Lease Supplement substantially in the form of Exhibit A to the Lease,
together with all attachments and schedules thereto.
"Legal Requirements" shall mean all foreign, federal, state, county, municipal and other governmental
statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions affecting the Owner
Trustee, the Trustee, the Bond Trustee, any Holder, the Lessor, any Credit Party, the Agent, any Lender or any
Property, Land, Improvement, Equipment or the taxation, demolition, construction, use or alteration of such
Improvements, whether now or hereafter enacted and in force, including without limitation any that require
repairs, modifications or alterations in or to any Property or in any way limit the use and enjoyment thereof
(including without limitation all building, zoning and fire codes and the Americans with Disabilities Act of
1990, 42 U.S.C. Β§ 12101 et. seq., and any other similar federal, state or local laws or ordinances and the
regulations promulgated thereunder) and any that may relate to environmental requirements (including without
limitation all Environmental Laws), and all permits, certificates of occupancy, licenses, authorizations and
regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any
instruments which are either of record or known to any Credit Party affecting any Property or the Appurtenant
Rights.
"Lender Commitments" shall mean $58,492,900, as such amount may be increased or reduced from time to
time in accordance with the provisions of the Operative Agreements; provided, if there shall be more than one (1)
Lender, the Lender Commitment of each Lender shall be as set forth in Schedule 2.1 to the Credit Agreement as
such Schedule 2.1 may be amended and replaced from time to time.
"Lender Financing Statements" shall mean UCC financing statements and fixture filings appropriately
completed and executed for filing in the applicable jurisdiction in order to procure a security interest in favor
of the Agent in the Collateral subject to the Security Documents.
"Lender Unused Fee" shall have the meaning given to such term in Section 7.4 of the Participation
Agreement.
"Lenders" shall mean Bank of America, N.A. and shall include the other banks and financial institutions
which may be from time to time party to the Participation Agreement and the Credit Agreement.
"Lessee" shall have the meaning set forth in the Lease.
"Lessee Credit Agreement" shall mean that certain Credit Agreement dated as of December 29, 1999 among
the Lessee, Chase Bank of Texas, National Association, as agent and the other banks and financial institutions
party thereto, as such may hereafter be amended, modified, supplemented, restated and/or replaced from time to
time.
"Lessee Credit Agreement Event of Default" shall mean an "Event of Default" as defined in Article VIII
of the Lessee Credit Agreement.
"Lessor" shall mean the Owner Trustee, not in its individual capacity, but as the Lessor under the Lease.
"Lessor Basic Rent" shall mean the scheduled Holder Yield due on the Holder Advances and the Holder
Amounts (if any ) on any Rent Commencement Date and any Scheduled Interest Payment Date pursuant to the Trust
Agreement (but not including interest on (a) any such scheduled Holder Yield and repayment of Holder Amounts (if
any) due on the Holder Advances prior to the Rent Commencement Date with respect to the Property to which such
Holder Advances relate or (b) overdue amounts under the Trust Agreement or otherwise), including specifically
without limitation any such payments due in connection with any extension of the Maturity Date of the Holder
Advances pursuant to Section 3.3 of the Trust Agreement; provided, Lessor Basic Rent shall not include Holder
Yield calculated on any Holder Advance used to pay an Excluded Cost unless a Lease Event of Default shall have
occurred and be continuing.
"Lessor Financing Statements" shall mean UCC financing statements and fixture filings appropriately
completed and executed for filing in the applicable jurisdictions in order to protect the Lessor's interest under
the Lease to the extent the Lease is a security agreement or a mortgage.
"Lessor Lien" shall mean any Lien, true lease or sublease or disposition of title arising as a result of
(a) any claim against the Trustee, the Lessor, FSN or the Trust Company not resulting from the transactions
contemplated by the Operative Agreements, the Bond Loan Documents or the Bond Documents, (b) any act or omission
of the Trustee, the Lessor, FSN or the Trust Company which is not required by the Operative Agreements, the Bond
Loan Documents or the Bond Documents, or is in violation of any of the terms of the Operative Agreements, the
Bond Loan Documents or the Bond Documents, (c) any claim against the Trustee, the Lessor, FSN or the Trust
Company with respect to Taxes or Transaction Expenses against which the Lessee is not required to indemnify the
Lessor or the Trust Company pursuant to Section 11 of the Participation Agreement or (d) any claim against the
Lessor arising out of any transfer by the Lessor of all or any portion of the interest of the Lessor in the
Properties, the Trust Estate or the Operative Agreements other than the transfer of title to or possession of any
Properties by the Lessor pursuant to and in accordance with the Lease, the Credit Agreement, the Security
Agreement or the Participation Agreement or pursuant to the exercise of the remedies set forth in Article XVII of
the Lease.
"Leverage Ratio" shall have the meaning set forth in the Lessee Credit Agreement as of the Closing Date.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance, lien, option or charge of any
kind.
"Limited Recourse Amount" shall mean with respect to all the Properties on an aggregate basis, an amount
equal to the sum of the Termination Values with respect to all the Properties on an aggregate basis on each
Payment Date, less the Maximum Residual Guarantee Amount as of such date with respect to all the Properties on an
aggregate basis .
"Little Rock Closing Date" shall mean the Initial Closing Date.
"Little Rock Land" shall mean the Land located in Little Rock, Arkansas.
"Little Rock Property" shall mean the Property located in Little Rock, Arkansas.
"Loan Basic Rent" shall mean the scheduled interest and principal payments (if any) due on the Loans on
any Rent Commencement Date and any Scheduled Interest Payment Date pursuant to the Credit Agreement (but not
including interest on (a) any such Loan due prior to the Rent Commencement Date with respect to the Property to
which such Loan relates or (b) any overdue amounts under Section 2.8(b) of the Credit Agreement or otherwise),
including specifically without limitation any such payments due in connection with any extension of the Maturity
Date of the Loans pursuant to Section 2.6(e) of the Credit Agreement; provided, Loan Basic Rent shall not include
interest calculated on any Loan used to pay any Excluded Cost unless a Lease Event of Default shall have occurred
and be continuing.
"Loan Property Cost" shall mean, with respect to each Property at any date of determination, an amount
equal to (a) the aggregate principal amount all Loans (including without limitation all Acquisition Loans and
Construction Loans) made, directly or indirectly, on or prior to such date with respect to such Property minus
(b) the aggregate amount of prepayments or repayments as the case may be of the Loans allocated to reduce the
Loan Property Cost of such Property pursuant to Section 2.6(c) of the Credit Agreement.
"Loans" shall mean the loans extended pursuant to the Credit Agreement and shall include both the
Tranche A Loans and the Tranche B Loans.
"Majority Holders" shall mean at any time, Holders whose Holder Advances outstanding represent at least
fifty-one percent (51%) of (a) the aggregate Holder Advances outstanding or (b) to the extent there are no Holder
Advances outstanding, the aggregate Holder Commitments.
"Majority Lenders" shall mean at any time, Lenders whose Loans outstanding represent at least fifty-one
percent (51%) of (a) the aggregate Loans outstanding or (b) to the extent there are no Loans outstanding, the
aggregate of the Lender Commitments.
"Majority Secured Parties" shall mean at any time, Lenders and Holders whose Loans and Holder Advances
outstanding represent at least fifty-one percent (51%) of (a) the aggregate Advances outstanding or (b) to the
extent there are no Advances outstanding, the sum of the aggregate Holder Commitments plus the aggregate Lender
Commitments.
"Marketing Period" shall mean, if the Lessee has given a Sale Notice in accordance with Section 20.1 of
the Lease, the period commencing on the date such Sale Notice is given and ending on the Expiration Date.
"Material Adverse Effect" shall, mean a material adverse effect on (a) the business, condition
(financial or otherwise), assets, liabilities or operations of the Credit Parties (on a consolidated basis), (b)
the ability of any Credit Party to perform its respective obligations under any Operative Agreement, Bond Loan
Document or Bond Document to which it is a party, (c) the validity or enforceability of any Operative Agreement,
Bond Loan Document or Bond Document or the rights and remedies of the Agent, the Lenders, the Holders, or the
Lessor thereunder, (d) the validity, priority or enforceability of any Lien on any Property created by any of the
Operative Agreements, Bond Loan Documents or Bond Documents, or (e) the value, utility or useful life of any
Property or the use, or ability of the Lessee to use, any Property for the purpose for which it was intended.
"Maturity Date" shall mean the date (excluding for any Note or Certificate the date of any refinancing
in which the respective Lender and Holder of such Note and Certificate are paid in full in accordance with
Section 3.5(a) of the Participation Agreement) that the outstanding Holder Amount and the outstanding principal
balance of the Loans are due and payable in full pursuant to the terms of Section 3.3 of the Trust Agreement and
Section 2.6(e) of the Credit Agreement.
"Maximum Amount" shall mean (a) one hundred percent (100%) of the cost of the Land or the Ground Lease
(as the case may be) for all, but not less than all, the Properties (collectively, the "Land Cost"), plus (b) the
product of eighty-nine and nine tenths percent (89.9%) multiplied by the following: (the aggregate Termination
Value for all, but not less than all, the Properties, minus the Land Cost, minus all structuring fees payable in
connection with the transactions evidenced by the Operative Agreements to Banc of America Securities LLC, Bank of
America, N.A. and/or any Affiliates of either of the foregoing, minus accrued, unpaid Holder Yield respecting any
and all Construction Period Properties), minus the amount of each Advance used to pay Excluded Costs), minus (c)
the accreted value (calculated at a rate of eight and 26/100 percent (8.26%) per annum) of any payments
previously made by the Construction Agent or the Lessee regarding any and all Construction Period Properties and
not reimbursed.
"Maximum Residual Guarantee Amount" shall mean an amount equal to the product of the aggregate Property
Cost for all of the Properties (minus the amount of each Advance used to pay Excluded Costs) times eighty-seven
percent (87%).
"Memorandum of Agreement" shall mean the Memorandum of Agreement dated June 2, 2000 between the Acxiom
Property Development, Inc. and the Arkansas Department of Environmental Quality.
"Modifications" shall have the meaning specified in Section 11.1(a) of the Lease.
"Mortgage Instrument" shall mean any mortgage, deed of trust or any other instrument executed by the
Owner Trustee and the Lessee (or regarding any property subject to a Ground Lease, the applicable Affiliate of
the Lessee) in favor of the Agent (for the benefit of the Lenders and the Holders) and evidencing a Lien on the
Property, in form and substance reasonably acceptable to the Agent.
"Multiemployer Plan" shall mean any plan described in Section 4001(a)(3) of ERISA to which contributions
are or have been made or required by any Credit Party or any of its Subsidiaries or ERISA Affiliates.
"Multiple Employer Plan" shall mean a plan to which any Credit Party or any ERISA Affiliate and at least
one (1) other employer other than an ERISA Affiliate is making or accruing an obligation to make, or has made or
accrued an obligation to make, contributions.
"New Facility" shall have the meaning given to such term in Section 28.1 of the Lease.
"Non-Integral Equipment" shall mean Equipment which (a) is personal property that is readily removable
without causing material damage to the applicable Property and (b) is not integral or necessary, respecting the
applicable Property, for compliance with Section 8.3 of the Lease or otherwise to the structure thereof, the
mechanical operation thereof, the electrical systems thereof or otherwise with respect to any aspect of the
physical plant thereof.
"Notes" shall mean those notes issued to the Lenders pursuant to the Credit Agreement and shall include
both the Tranche A Notes and the Tranche B Notes.
"Obligations" shall have the meaning given to such term in Section 1 of the Security Agreement.
"Officer's Certificate" with respect to any person shall mean a certificate executed on behalf of such
person by a Responsible Officer who has made or caused to be made such examination or investigation as is
necessary to enable such Responsible Officer to express an informed opinion with respect to the subject matter of
such Officer's Certificate.
"Officer's Compliance Certificate" shall have the meaning given to such term in Section 8.3(l) of the
Participation Agreement.
"Operative Agreements" shall mean the following: the Participation Agreement, the Construction Agency
Agreement, the Trust Agreement, the Certificates, the Credit Agreement, the Notes, the Lease, the Lease
Supplements (and memoranda of the Lease and each Lease Supplement in a form reasonably acceptable to the Agent),
the Joinder Agreements, the Security Agreement, the Mortgage Instruments, the other Security Documents, the
Ground Leases, the Deeds and the Bills of Sale and any and all other agreements, documents and instruments
executed in connection with any of the foregoing.
"Original Executed Counterpart" shall have the meaning given to such term in Section 5 of Exhibit A to
the Lease.
"Overdue Interest" shall mean any interest payable pursuant to Section 2.8(b) of the Credit Agreement.
"Overdue Rate" shall mean (a) with respect to the Loan Basic Rent, and any other amount owed under or
with respect to the Credit Agreement or the Security Documents, the rate specified in Section 2.8(b) of the
Credit Agreement, (b) with respect to the Lessor Basic Rent, the Holder Yield and any other amount owed under or
with respect to the Trust Agreement, the Holder Overdue Rate, and (c) with respect to any other amount, the
amount referred to in clause (y) of Section 2.8(b) of the Credit Agreement.
"Owner Trustee," "Borrower" or "Lessor" shall mean First Security Bank, National Association, not
individually, except as expressly stated in the various Operative Agreements, but solely as the Owner Trustee
under the AC Trust 2000-1, and any successor, replacement and/or additional Owner Trustee expressly permitted
under the Operative Agreements.
"Participant" shall have the meaning given to such term in Section 9.7 of the Credit Agreement.
"Participation Agreement" shall mean the Participation Agreement dated on or about the Initial Closing
Date, among the Lessee, the Guarantors, the Owner Trustee, not in its individual capacity except as expressly
stated therein, the Trustee, not in its individual capacity except as expressly stated therein, the Holders, the
Lenders and the Agent.
"Payment Date" shall mean any Scheduled Interest Payment Date and any date on which interest or Holder
Yield in connection with a prepayment of principal on the Loans or of the Holder Advances is due under the Credit
Agreement or the Trust Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation created by Section 4002(a) of ERISA or any
successor thereto.
"Pension Plan" shall mean a "pension plan", as such term is defined in section 3(2) of ERISA, which is
subject to title IV of ERISA (other than a Multiemployer Plan), and to which any Credit Party or any ERISA
Affiliate may have any liability, including without limitation any liability by reason of having been a
substantial employer within the meaning of section 4063 of ERISA at any time during the preceding five (5) years,
or by reason of being deemed to be a contributing sponsor under section 4069 of ERISA.
"Permitted Facility" shall mean (i) a seven story, approximately 169,000 square foot office building to
be located in the River Market Section of Little Rock, Arkansas with a five (5) floor parking deck attached and
integrated therein, (ii) a two story, approximately 90,000 square foot office building/data center located in
Phoenix, Arizona, or (iii) such other facility as shall be approved by the Agent, all of the Lenders and all of
the Holders in their sole discretion.
"Permitted Liens" shall mean:
(a) the respective rights and interests of the parties to the Operative Agreements, the
Bond Loan Documents and the Bond Documents as provided in such Operative Agreements, Bond Loan Documents
and Bond Documents;
(b) the rights of any sublessee or assignee under a sublease or an assignment expressly
permitted by the terms of the Lease for no longer than the duration of the Lease;
(c) Liens for Taxes that either are not yet due or are being contested in accordance with
the provisions of Section 13.1 of the Lease;
(d) Liens arising by operation of law, materialmen's, mechanics', workmen's, repairmen's,
employees', carriers', warehousemen's and other like Liens relating to the construction of the
Improvements or in connection with any Modifications or arising in the ordinary course of business for
amounts that either are not more than thirty (30) days past due or are being diligently contested in
good faith by appropriate proceedings, so long as such proceedings satisfy the conditions for the
continuation of proceedings to contest Taxes set forth in Section 13.1 of the Lease;
(e) Liens of any of the types referred to in clause (d) above that have been bonded for
not less than the full amount in dispute (or as to which other security arrangements satisfactory to the
Lessor and the Agent have been made), which bonding (or arrangements) shall comply with applicable Legal
Requirements, and shall have effectively stayed any execution or enforcement of such Liens;
(f) Liens arising out of judgments or awards with respect to which appeals or other
proceedings for review are being prosecuted in good faith and for the payment of which adequate reserves
have been provided as required by GAAP or other appropriate provisions have been made, so long as such
proceedings have the effect of staying the execution of such judgments or awards and satisfy the
conditions for the continuation of proceedings to contest Taxes set forth in Section 13.1 of the Lease;
and
(g) Liens in favor of municipalities (other than the Bond Documents) to the extent agreed
to by the Lessor and the Agent.
(h) Lessor Liens; and
(i) title exceptions regarding a Property which were (i) disclosed on the title insurance
and (ii) acceptable to the Agent in accordance with Section 5.3(g) of the Participation Agreement.
"Person" shall mean any individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization, governmental authority or any other entity.
"Phoenix Property" shall mean the Property located in Phoenix, Arizona.
"Plans and Specifications" shall mean, with respect to Improvements, the plans and specifications for
such Improvements to be constructed or already existing, as such Plans and Specifications may be amended,
modified or supplemented from time to time in accordance with the terms of the Operative Agreements.
"Prime Lending Rate" shall have the meaning given to such term in the definition of ABR.
"Property" shall mean, with respect to each Permitted Facility that is (or is to be) acquired,
constructed and/or renovated pursuant to the terms of the Operative Agreements and/or the Bond Documents, the
Land and each item of Equipment and the various Improvements, in each case located on such Land, including
without limitation each Construction Period Property, each Property subject to a Ground Lease or the Head Lease
and each Property for which the Basic Term has commenced.
"Property Acquisition Cost" shall mean the cost to the Lessor to purchase a Property on a Property
Closing Date.
"Property Closing Date" shall mean the date on which the Lessor purchases (or with respect to the Little
Rock Property, leases) a Property or, with respect to the first Advance, the date on which the Lessor seeks
reimbursement for Property previously purchased (or leased) by the Lessor.
"Property Cost" shall mean with respect to a Property the aggregate amount (and/or the various items and
occurrences giving rise to such amounts) of the Loan Property Cost plus the Holder Property Cost for such
Property (as such amounts shall be increased equally among all Properties respecting the Holder Advances and the
Loans extended from time to time to pay for the Transaction Expenses, fees, expenses and other disbursements
referenced in Sections 7.1(a), 7.1(b), 7.3(a), 7.4, 7.5 and 7.6 and indemnity payments pursuant to Section 11.8,
in each case of the Participation Agreement).
"Purchase Option" shall have the meaning given to such term in Section 20.1 of the Lease.
"Refinancing Date" shall have the meaning given to such term in Section 3.5(a) of the Participation
Agreement.
"Refinancing Request" shall have the meaning given to such term in Section 3.5(a) of the Participation
Agreement.
"Register" shall have the meaning given to such term in Section 9.9(a) of the Credit Agreement.
"Regulation D" shall mean Regulation D of the Board of Governors of the Federal Reserve System (or any
successor), as the same may be modified and supplemented and in effect from time to time.
"Release" shall mean any release, pumping, pouring, emptying, injecting, escaping, leaching, dumping,
seepage, spill, leak, flow, discharge, disposal or emission of a Hazardous Substance.
"Renewal Option" shall have the meaning specified in Section 2.2 of the Lease.
"Renewal Term" shall have the meaning specified in Section 2.2 of the Lease.
"Rent" shall mean, collectively, the Basic Rent and the Supplemental Rent, in each case payable under
the Lease.
"Rent Commencement Date" shall mean, regarding each Property, the Completion Date.
"Reportable Event" shall have the meaning specified in ERISA.
"Requested Funds" shall mean any funds requested by the Lessee or the Construction Agent, as applicable,
in accordance with Section 5 of the Participation Agreement.
"Requisition" shall have the meaning specified in Section 4.2 of the Participation Agreement.
"Responsible Officer" shall mean the Chairman or Vice Chairman of the Board of Directors, the Chairman
or Vice Chairman of the Executive Committee of the Board of Directors, the President, any Senior Vice President
or Executive Vice President, any Vice President, the Secretary, any Assistant Secretary, the Treasurer, or any
Assistant Treasurer, except that when used with respect to the Trust Company, FSN, the Owner Trustee or the
Trustee, "Responsible Officer" shall also include the Cashier, any Assistant Cashier, any Trust Officer or
Assistant Trust Officer, the Controller and any Assistant Controller or any other officer of the Trust Company,
FSN, the Owner Trustee or the Trustee customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Sale Date" shall have the meaning given to such term in Section 22.1(a) of the Lease.
"Sale Notice" shall mean a notice given to the Lessor in connection with the election by the Lessee of
its Sale Option.
"Sale Option" shall have the meaning given to such term in Section 20.1 of the Lease.
"Sale Proceeds Shortfall" shall mean the amount by which the proceeds of a sale described in Section
22.1 of the Lease are less than the Limited Recourse Amount with respect to the Properties if it has been
determined that the Fair Market Sales Value of the Properties at the expiration of the term of the Lease has been
impaired by greater than ordinary wear and tear during the Term of the Lease.
"Scheduled Interest Payment Date" shall mean (a) as to any Eurodollar Loan or Eurodollar Holder Advance,
the last day of the Interest Period applicable to such Eurodollar Loan or Eurodollar Holder Advance (or
respecting any Eurodollar Loan or Eurodollar Holder Advance having an Interest Period of six (6) months, the
three (3) month anniversary of such Interest Period), (b) as to any ABR Loan or any ABR Holder Advance, the
fifteenth day of each month, unless such day is not a Business Day and in such case on the next occurring
Business Day and (c) as to all Loans and Holder Advances, the date of any voluntary or involuntary payment,
prepayment, return or redemption, and the Maturity Date or the Expiration Date, as the case may be.
"Secured Parties" shall have the meaning given to such term in the Security Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended, together with the rules and
regulations promulgated thereunder.
"Security Agreement" shall mean the Security Agreement dated on or about the Initial Closing Date
between the Lessor and the Agent, for the benefit of the Secured Parties, and accepted and agreed to by the
Lessee.
"Security Documents" shall mean the collective reference to the Security Agreement, the Mortgage
Instruments, (to the extent the Lease is construed as a security instrument) the Lease, the UCC Financing
Statements and all other security documents hereafter delivered to the Agent granting a lien on any asset or
assets of any Person to secure the obligations and liabilities of the Lessor under the Credit Agreement and/or
under any of the other Credit Documents or to secure any guarantee of any such obligations and liabilities.
"Series 2000-A Assignment" shall mean the Assignment of Series 2000-A Bond dated on or about the Closing
Date from the Series A Bond Purchaser to the Lessor and further assigned by the Lessor to the Agent.
"Series 2000-A Bond" means the City of Little Rock's Taxable Industrial Development Revenue Bonds
(Acxiom Corporate Project), Series 2000-A.
"Series 0000-X Xxxx Xxxxxxxxx" shall mean Acxiom/May & Xxxx, Inc. as the purchaser and holder of the
Series 2000-A Bond.
"Series 2000-B Assignment" shall mean the Assignment of Series 2000-B Bond dated on or about the Closing
Date from the Series B Bond Purchaser to the Lessor and further assigned by the Lessor to the Agent.
"Series 2000-B Bond" means the City of Little Rock's Taxable Industrial Development Revenue Bonds
(Acxiom Corporate Project), Series 2000-B.
"Series 0000-X Xxxx Xxxxxxxxx" shall mean the Trustee, as the purchaser and holder of the Series 2000-B
Bond.
"Significant Subsidiary" shall have the meaning provided thereto in the Lessee Credit Agreement.
"Soft Costs" shall mean all costs which are ordinarily and reasonably incurred in relation to the
acquisition, development, installation, construction, improvement and testing of the Properties other than Hard
Costs, including without limitation structuring fees, administrative fees, legal fees, upfront fees, fees and
expenses related to appraisals, title examinations, title insurance, document recordation, surveys, environmental
site assessments, geotechnical soil investigations and similar costs and professional fees customarily associated
with a real estate closing, the Lender Unused Fee, the Holder Unused Fee, fees and expenses of the Trustee and
the Owner Trustee payable or reimbursable under the Operative Agreements and costs and expenses incurred pursuant
to Section 7.3(a) of the Participation Agreement.
"Subsidiary" shall mean, as to any Person, any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power to elect a majority of the board of directors
of such corporation (irrespective of whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening of any contingency) is at the time
owned by such Person, or by one (1) or more Subsidiaries, or by such Person and one (1) or more Subsidiaries.
"Supplemental Amounts" shall have the meaning given to such term in Section 9.18 of the Credit Agreement.
"Supplemental Rent" shall mean all amounts, liabilities and obligations (other than Basic Rent) which
the Lessee assumes or agrees to pay to the City of Little Rock, the Bond Trustee, the Lessor, the Trust Company,
the Trustee, FSN, the Holders, the Agent, the Lenders or any other Person under the Lease or under any of the
other Operative Agreements including without limitation payments of the Termination Value and the Maximum
Residual Guarantee Amount and all indemnification amounts, liabilities and obligations.
"Taxes" shall have the meaning specified in the definition of "Impositions".
"Term" shall mean the Basic Term and each Renewal Term, if any.
"Termination Date" shall have the meaning specified in Section 16.2(a) of the Lease.
"Termination Event" shall mean (a) with respect to any Pension Plan, the occurrence of a Reportable
Event or an event described in Section 4062(e) of ERISA, (b) the withdrawal of any Credit Party or any ERISA
Affiliate from a Multiple Employer Plan during a plan year in which it was a substantial employer (as such term
is defined in Section 4001(a)(2) of ERISA), or the termination of a Multiple Employer Plan, (c) the distribution
of a notice of intent to terminate a Plan or Multiemployer Plan pursuant to Section 4041(a)(2) or 4041A of ERISA,
(d) the institution of proceedings to terminate a Plan or Multiemployer Plan by the PBGC under Section 4042 of
ERISA, (e) any other event or condition which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan or Multiemployer Plan, or (f) the
complete or partial withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer Plan.
"Termination Notice" shall have the meaning specified in Section 16.1 of the Lease.
"Termination Value" shall mean the sum of (a) either (i) with respect to all Properties, an amount equal
to the aggregate outstanding Property Cost (including without limitation the amount of each Advance used to pay
one or more Excluded Costs) for all the Properties, in each case as of the last occurring Payment Date, or (ii)
with respect to a particular Property, an amount equal to the Property Cost (including without limitation the
amount of each Advance used to pay one or more Excluded Costs) allocable to such Property, plus (b) respecting
the amounts described in each of the foregoing subclause (i) or (ii), as applicable, any and all accrued but
unpaid interest on the Loans and any and all Holder Yield on the Holder Advances related to the applicable
Property Cost (including without limitation the amount of each Advance used to pay one or more Excluded Costs),
plus (c) to the extent the same is not duplicative of the amounts payable under clause (b) above, all other Rent
and other amounts then due and payable or accrued under the Construction Agency Agreement, Lease and/or under any
other Operative Agreement (including without limitation amounts under Sections 11.1 and 11.2 of the Participation
Agreement and all costs and expenses referred to in clause FIRST of Section 22.2 of the Lease). If any Claim or
cost in relation thereto is not satisfied in favor of the Owner Trustee pursuant to Section 11.7 of the
Participation Agreement because Section 11.7(b) is not satisfied, the amount of such Claim or cost shall be added
to the Termination Value.
"Tranche A Commitments" shall mean the obligation of the Tranche A Lenders to make the Tranche A Loans
to the Lessor in an aggregate principal amount at any one (1) time outstanding not to exceed the aggregate of the
amounts set forth opposite each Tranche A Lender's name on Schedule 2.1 to the Credit Agreement, as such amount
may be increased or reduced from time to time in accordance with the provisions of the Operative Agreements;
provided, no Tranche A Lender shall be obligated to make Tranche A Loans in excess of such Tranche A Lender's
share of the Tranche A Commitments as set forth adjacent to such Tranche A Lender's name on Schedule 2.1 to
Credit Agreement.
"Tranche A Lenders" shall mean Bank of America, N.A. and shall include the several banks and other
financial institutions from time to time party to the Credit Agreement that commit to make the Tranche A Loans.
"Tranche A Loans" shall mean the Loans made pursuant to the Tranche A Commitment.
"Tranche A Note" shall have the meaning given to it in Section 2.2 of the Credit Agreement.
"Tranche B Commitments" shall mean the obligation of the Tranche B Lenders to make the Tranche B Loans
to the Lessor in an aggregate principal amount at any one (1) time outstanding not to exceed the aggregate of the
amounts set forth opposite each Tranche B Lender's name on Schedule 2.1 to the Credit Agreement, as such amount
may be increased or reduced from time to time in accordance with the provisions of the Operative Agreements;
provided, no Tranche B Lender shall be obligated to make Tranche B Loans in excess of such Tranche B Lender's
share of the Tranche B Commitments as set forth adjacent to such Tranche B Lender's name on Schedule 2.1 to
Credit Agreement.
"Tranche B Lenders" shall mean Bank of America, N.A. and shall include the several banks and other
financial institutions from time to time party to the Credit Agreement that commit to make the Tranche B Loans.
"Tranche B Loan" shall mean the Loans made pursuant to the Tranche B Commitment.
"Tranche B Note" shall have the meaning given to it in Section 2.2 of the Credit Agreement.
"Transaction Expenses" shall mean all Soft Costs and all other costs and expenses incurred in connection
with the preparation, execution and delivery of the Operative Agreements, the Bond Loan Documents and the Bond
Documents, and the transactions contemplated by the Operative Agreements, the Bond Loan Documents and the Bond
Documents, including without limitation the following:
(a) the reasonable fees, out-of-pocket expenses and disbursements of counsel in
negotiating the terms of the Operative Agreements, the Bond Loan Documents and the Bond Documents, and
the other transaction documents, preparing for the closings under, and rendering opinions in connection
with, such transactions and in rendering other services customary for counsel representing parties to
transactions of the types involved in the transactions contemplated by the Operative Agreements, the
Bond Loan Documents and the Bond Documents;
(b) the reasonable fees, out-of-pocket expenses and disbursements of accountants for any
Credit Party in connection with the transaction contemplated by the Operative Agreements, the Bond Loan
Documents and the Bond Documents;
(c) any and all other reasonable fees, charges or other amounts payable to the Lenders,
the Agent, the Holders, the Owner Trustee, the Trust Company, the Trustee, FSN or any broker which
arises under any of the Operative Agreements, the Bond Loan Documents and the Bond Documents;
(d) any other reasonable fee, out-of-pocket expenses, disbursement or cost of any party to
the Operative Agreements or any of the other transaction documents; and
(e) any and all Taxes and fees incurred in recording or filing any Operative Agreement,
Bond Loan Document or Bond Document or any other transaction document, any deed, declaration, mortgage,
security agreement, notice or financing statement with any public office, registry or governmental
agency in connection with the transactions contemplated by the Operative Agreements, the Bond Loan
Documents and the Bond Documents.
"Tribunal" shall mean any state, commonwealth, federal, foreign, territorial, or other court or
government body, subdivision agency, department, commission, board, bureau or instrumentality of a governmental
body.
"Trust" shall mean the AC Trust 2000-1.
"Trust Agreement" shall mean the Trust Agreement dated on or about the Initial Closing Date between the
Holders and the Trust Company.
"Trust Agreement (AC Trust 2000-2)" shall mean the Trust Agreement (AC Trust 2000-2) dated on or about
the Initial Closing Date between the Holders and FSN.
"Trust Company" shall mean First Security Bank, National Association, in its individual capacity, and
any successor owner trustee under the Trust Agreement in its individual capacity.
"Trustee" or "Series 0000-X Xxxx Xxxxxxxxx" shall mean FSN, not individually but solely as Trustee under
the AC Trust 2000-2, and any successor, replacement and/or additional Trustee expressly permitted under the Bond
Loan Documents and the Operative Documents.
"Trust Estate" shall have the meaning specified in Section 2.2 of the Trust Agreement.
"Trust Estate (AC Trust 2000-2)" shall have the meaning specified in Section 2.2 of the Trust Agreement
(AC Trust 2000-2).
"Trustee Event of Default" shall mean an "Event of Default" under the Bond Loan Credit Agreement.
"Type" shall mean, as to any Loan, whether it is an ABR Loan or a Eurodollar Loan.
"UCC Financing Statements" shall mean collectively the Lender Financing Statements, the Lessor Financing
Statements, the Bond Loan Financing Statements and the Bond Financing Statements.
"Unanimous Vote Matters" shall have the meaning given it in Section 12.4 of the Participation Agreement.
"Unfunded Amount" shall have the meaning specified in Section 3.2 of the Construction Agency Agreement.
"Unfunded Liability" shall mean, with respect to any Plan, at any time, the amount (if any) by which (a)
the present value of all benefits under such Plan exceeds (b) the fair market value of all Plan assets allocable
to such benefits, all determined as of the then most recent valuation date for such Plan, but only to the extent
that such excess represents a potential liability of the Company or any member of the Controlled Group to the
PBGC or such Plan under Title IV of ERISA.
"Uniform Commercial Code" and "UCC" shall mean the Uniform Commercial Code as in effect in any
applicable jurisdiction.
"United States Bankruptcy Code" shall mean Title 11 of the United States Code.
"Unused Fee" shall mean, collectively, the Holder Unused Fee and the Lender Unused Fee.
"Unused Fee Payment Date" shall mean the last Business Day of each September, December, March and June
occurring during the Commitment Period, commencing on December 31, 2000, and the last Business Day of the
Commitment Period, or such earlier date as the Commitments shall terminate as provided in the Credit Agreement or
the Holder Commitment shall terminate as provided in the Trust Agreement.
"U.S. Person" shall have the meaning specified in Section 11.2(e) of the Participation Agreement.
"U.S. Taxes" shall have the meaning specified in Section 11.2(e) of the Participation Agreement.
"Walk-Away Option" shall have the meaning specified in Section 20.1 of the Lease.
"Withholdings" shall have the meaning specified in Section 11.2(e) of the Participation Agreement.
"Work" shall mean the furnishing of labor, materials, components, furniture, furnishings, fixtures,
appliances, machinery, equipment, tools, power, water, fuel, lubricants, supplies, goods and/or services with
respect to any Property.
