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PARTICIPATION AGREEMENT

dated as of October 22, 1999

among

ADC TELECOMMUNICATIONS, INC.,
as Lessee,

LEASE PLAN NORTH AMERICA, INC.
not in its individual capacity
except as expressly stated herein,
but solely as Agent Lessor
for the Participants,

THE PERSONS NAMED ON SCHEDULE I HERETO,
as Participants

and

ABN AMRO BANK N.V., as Administrative Agent


TABLE OF CONTENTS

ARTICLE I
DEFINITIONS; INTERPRETATION
 
SECTION 1.1.		  
 		  
Definitions; Interpretation		  
 		  
1
 
ARTICLE II
DOCUMENT CLOSING DATE
 
ARTICLE III
PURCHASE AND LEASE OF PREMISES; FUNDING OF ADVANCES
 
SECTION 3.1.		  
 		  
Fundings		  
 		  
2
SECTION 3.2.   Basic Rent; Payments of Rent   4
SECTION 3.3.   Payment of Construction Costs and Fees; Application of Funds   5
SECTION 3.4.   Advance Dates   5
SECTION 3.5.   Capitalization of Certain Amounts During the Funding Period   6
SECTION 3.6.   Postponement of Advance Date   7
SECTION 3.7.   Certificates   8
SECTION 3.8.   Lost, Stolen or Damaged Certificates   8
 
ARTICLE IV
FEES
 
SECTION 4.1.		  
 		  
Fees		  
 		  
9
SECTION 4.2.   Obligations Several   10
SECTION 4.3.   Highest Lawful Rate   10
SECTION 4.4.   Extension of Expiration Date   11
 
ARTICLE V
CERTAIN INTENTIONS OF THE PARTIES
 
SECTION 5.1.		  
 		  
Nature of Transaction		  
 		  
12
SECTION 5.2.   Amounts Due Under Lease   12
SECTION 5.3.   Distribution   13
SECTION 5.4.   Other Payments   16
 
ARTICLE VI
CONDITIONS PRECEDENT TO ADVANCES; COMPLETION DATE CONDITIONS
 
SECTION 6.1.		  
 		  
Conditions Precedent to the Initial Advance Date		  
 		  
16
SECTION 6.2.   Conditions Precedent to each Advance   20
SECTION 6.3.   Deliveries Upon Completion   21
 
ARTICLE VII
REPRESENTATIONS
 
SECTION 7.1.		  
 		  
Representations of the Participants		  
 		  
22
SECTION 7.2.   Representations of Lessee   23
SECTION 7.3.   Representations of Lessee with Respect to Each Advance   31
SECTION 7.4.   Representations of Agent Lessor   32
 
ARTICLE VIII
COVENANTS OF LESSEE
 
SECTION 8.1.		  
 		  
Covenants of Lessee		  
 		  
33
SECTION 8.2.   Limitation on Liens   38
SECTION 8.3.   Disposition of Assets   39
SECTION 8.4.   Consolidations and Mergers   40
SECTION 8.5.   Loans and Investments   40
SECTION 8.6.   Limitation on Indebtedness   41
SECTION 8.7.   Transactions with Affiliates   41
SECTION 8.8.   Use of Proceeds   41
SECTION 8.9.   Contingent Obligations   42
SECTION 8.10.   Lease Obligations   42
SECTION 8.11.   Restricted Payments   42
SECTION 8.12.   ERISA   43
SECTION 8.13.   Change in Business   43
SECTION 8.14.   Accounting Changes   43
SECTION 8.15.   Negative Pledges, Restrictive Agreements, etc.   43
SECTION 8.16.   Ability to Amend; Restrictive Agreements   43
SECTION 8.17.   Net Worth   43
SECTION 8.18.   Funded Debt to EBITDA Ratio   43
SECTION 8.19.   EBITDA to Interest Expense Ratio   44
 
ARTICLE IX
OTHER COVENANTS AND AGREEMENTS
 
SECTION 9.1.		  
 		  
Covenants of the Participants and Agent Lessor		  
 		  
44
SECTION 9.2.   Withholding   44
 
ARTICLE X
LESSEE DIRECTIONS; REPLACEMENT OF PARTICIPANTS
 
SECTION 10.1.		  
 		  
Lessee Directions		  
 		  
45
SECTION 10.2.   Replacement of Participants   45
 
ARTICLE XI
TRANSFERS OF PARTICIPANTS' INTERESTS
 
SECTION 11.1.		  
 		  
Assignments		  
 		  
46
SECTION 11.2.   Participations   47
SECTION 11.3.   Binding Effect; Disclosure of Information; Pledge Under Regulation A   47
 
ARTICLE XII
INDEMNIFICATION
 
SECTION 12.1.		  
 		  
Indemnification		  
 		  
47
SECTION 12.2.   Environmental Indemnity   51
SECTION 12.3.   Premises Indemnity   52
SECTION 12.4.   Proceedings in Respect of Claims   52
SECTION 12.5.   General Tax Indemnity   54
SECTION 12.6.   Gross Up   58
 
ARTICLE XIII
LIMITATION ON RECOURSE LIABILITY DURING CONSTRUCTION PERIOD
 
ARTICLE XIV
LIBOR PROVISIONS; ADDITIONAL COSTS
 
SECTION 14.1.		  
 		  
LIBO Rate Lending Unlawful		  
 		  
58
SECTION 14.2.   Deposits Unavailable   58
SECTION 14.3.   Increased Costs, etc.   59
SECTION 14.4.   Funding Losses   59
SECTION 14.5.   Increased Capital Costs   59
SECTION 14.6.   After Tax Basis   60
SECTION 14.7.   Funding Office   60
 
ARTICLE XV
MISCELLANEOUS
 
SECTION 15.1.		  
 		  
Survival of Agreements		  
 		  
60
SECTION 15.2.   No Broker, etc.   60
SECTION 15.3.   Notices   60
SECTION 15.4.   Counterparts   60
SECTION 15.5.   Amendments   61
SECTION 15.6.   Headings, etc.   61
SECTION 15.7.   Parties in Interest   61
SECTION 15.8.   GOVERNING LAW   61
SECTION 15.9.   Severability   61
SECTION 15.10.   Liability Limited   62
SECTION 15.11.   Further Assurances   62
SECTION 15.12.   Submission to Jurisdiction   62
SECTION 15.13.   WAIVER OF JURY TRIAL   62
SECTION 15.14.   Limited Liability of Agent Lessor   63
SECTION 15.15.   Payment of Transaction Expenses and Other Costs   63
SECTION 15.16.   Reproduction of Documents   63
SECTION 15.17.   Non-Petition   64
SECTION 15.18.   Assignment of Tranche A1 Participant's Interest to Purchasers   64
SECTION 15.19.   Deliveries to Participants   64
SECTION 15.20.   Excess Funds   64
 
ARTICLE XVI
AGENTS
 
SECTION 16.1.		  
 		  
Appointment of Agents; Powers and Authorization to Take Certain Actions		  
 		  
65
SECTION 16.2.   Reliance   66
SECTION 16.3.   Action Upon Instructions Generally   66
SECTION 16.4.   Indemnification   66
SECTION 16.5.   Independent Credit Investigation   67
SECTION 16.6.   Refusal to Act   67
SECTION 16.7.   Resignation or Removal of an Agent; Appointment of Successor   67
SECTION 16.8.   Separate Agent Lessor   67
SECTION 16.9.   Termination of Agency   68
SECTION 16.10.   MERGER   68
SECTION 16.11.   Limitations   68
SECTION 16.12.   Confidentiality   69

 
APPENDICES
 
APPENDIX 1		  
 		  
—		  
 		  
Definitions and Interpretation
APPENDIX 2   —   Conditions Precedent to Document Closing Date
 
SCHEDULES
 
SCHEDULE I		  
 		  
—		  
 		  
Participants' Commitments
SCHEDULE II   —   Notice Information, Payment Offices and Applicable Lending Offices
SCHEDULE 6.1(f)   —   Filings and Recordings
SCHEDULE 7.2(a)   —   List of Subsidiaries
SCHEDULE 7.2(e)   —   Litigation
SCHEDULE 7.2(l)   —   ERISA Compliance
SCHEDULE 7.2(n)   —   Governmental Regulations of the State Applicable to Agents and Participants
SCHEDULE 7.2(x)   —   Environmental Matters
SCHEDULE 7.2(y)   —   Appraisal Data
SCHEDULE 7.2(cc)   —   Ownership, Nature, Condition and Use of the Premises
SCHEDULE 8.2   —   Existing Liens
SCHEDULE 8.5   —   Loans and Investments
SCHEDULE 8.6   —   Existing Indebtedness
SCHEDULE 8.9   —   Contingent Obligations
 
EXHIBITS
 
EXHIBIT A		  
 		  
—		  
 		  
Form of Advance Request
EXHIBIT B   —   Form of Certificate
EXHIBIT C   —   Form of Officer's Certificate of Lessee
EXHIBIT D   —   Form of Legal Opinion
EXHIBIT E   —   Form of Initial Advance Date Certificate of Construction Agent
EXHIBIT F   —   Construction Agency Agreement
EXHIBIT G   —   Responsible Officer's Certificate
EXHIBIT H   —   Construction Agent's Construction Certificate
EXHIBIT I   —   Architect's Certificate
EXHIBIT J   —   Construction Agent's Completion Certificate
EXHIBIT K   —   Certificate of Chief Financial Officer
EXHIBIT L   —   Assignment Agreement
EXHIBIT M   —   Transfer Agreement


PARTICIPATION AGREEMENT

    THIS PARTICIPATION AGREEMENT (this "Participation Agreement"), dated as of October 22, 1999, is entered into by and among ADC TELECOMMUNICATIONS, INC., a Minnesota corporation (together with its permitted successors and assigns, the "Lessee"); LEASE PLAN NORTH AMERICA, INC., not in its individual capacity except as expressly stated herein, but solely as agent for the Participants (in such capacity, together with its successor and assigns in such capacity, the "Agent Lessor"); and the Persons named on Schedule I  hereto (together with their respective permitted successors, assigns and transferees, each, a "Participant", and collectively, the "Participants") and ABN AMRO BANK N.V., a bank organized under the laws of the Netherlands, as administrative agent for the Participants (in such capacity, the "Administrative Agent").

W I T N E S S E T H:

    A.  Lessee, the Participants, Agent Lessor and the Administrative Agent have entered into this Participation Agreement and are entering into the other Operative Documents for the purpose of providing financing for Lessee for the construction of the Financed Improvements on the Land.

    B.  On the initial Advance Date, Lessee will lease the Land to Agent Lessor and Agent Lessor will lease the Land from Lessee pursuant to the Ground Lease. Pursuant to the Lease, Agent Lessor will sublease the Land to Lessee, and will lease Agent Lessor's interest in the Financed Improvements to Lessee upon the construction thereof.

    C.  Pursuant to the Construction Agency Agreement, Agent Lessor will appoint Lessee to act as Construction Agent to design, procure and construct the Financed Improvements using Advances funded by the Participants.

    D.  Subject to the terms and conditions of this Participation Agreement and the other Operative Documents, the Tranche B Participants and the Tranche C Equity Participants are willing to provide to Agent Lessor through fundings to the Administrative Agent a portion of the funding of the Construction Costs.

    E.  Subject to the terms and conditions of this Participation Agreement and the other Operative Documents, Agent Lessor wishes to obtain, and the Tranche A1 Participant may provide through fundings to the Administrative Agent, financing of the remaining portion of the funding of the Construction Costs out of the proceeds from the issuance of Commercial Paper.

    F.  If, for any reason, the Tranche A1 Participant elects not to issue Commercial Paper and lend such proceeds, subject to the terms and conditions of this Participation Agreement and the other Operative Documents, the Committed Tranche A Participants are willing to provide through fundings to the Administrative Agent financing for the remaining portion of the funding of the Construction Costs.

    G.  To secure the repayment of Lessee's obligations under the Lease and the other Operative Documents, Agent Lessor, on behalf of the Participants, and the Participants will have the benefit of a Lien on the Premises.

    NOW, THEREFORE, in consideration of the mutual agreements contained in this Participation Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


ARTICLE I
DEFINITIONS; INTERPRETATION

    SECTION 1.1.  Definitions; Interpretation.  Unless the context shall otherwise require, capitalized terms used and not defined herein shall have the meanings assigned thereto in Appendix 1 hereto for all purposes hereof; and the rules of interpretation set forth in Appendix 1 hereto shall apply to this Participation Agreement; and capitalized terms used and not defined herein or in Appendix 1 hereto shall have the meanings assigned thereto in Section 1.1 of the Transfer Agreement.

ARTICLE II
DOCUMENT CLOSING DATE

    This Participation Agreement shall be effective as of the earliest date (on or before October 22, 1999) (the "Document Closing Date") on which all of the conditions precedent set forth in Appendix 2 hereto have been satisfied or waived by the applicable parties as set forth therein.


ARTICLE III
PURCHASE AND LEASE OF PREMISES; FUNDING OF ADVANCES

    SECTION 3.1.  Fundings.  

    SECTION 3.2.  Basic Rent; Payments of Rent.  

    SECTION 3.3.  Payment of Construction Costs and Fees; Application of Funds.  To the extent provided for in this Agreement and the other Operative Documents, Lessee shall pay all Construction Costs as such costs become due. On the initial Advance Date and on each subsequent Advance Date, upon the satisfaction of the terms and conditions of this Participation Agreement, the Administrative Agent shall make an Advance from funds made available by the Participants pursuant to Section 3.1(c) in the amount specified in the applicable Advance Request either, (i) to the extent the Construction Costs have not been previously paid and are then due and payable, to the Persons entitled to the payment thereof, or (ii) to Lessee to reimburse Construction Agent for Construction Costs incurred and paid by Construction Agent on behalf of Agent Lessor and for which Construction Agent has not been previously reimbursed, provided,  however, that all Fundings for Capitalized Tranche A and Tranche B Basic Rent, Capitalized Tranche C Equity Basic Rent, Fees, and, if specified in the Advance Request, any other Supplemental Rent payable to any Participant will be Funded directly to the Participant to which such amount is due.

    SECTION 3.4.  Advance Dates.  

    SECTION 3.5.  Capitalization of Certain Amounts During the Funding Period.  

    SECTION 3.6.  Postponement of Advance Date.  In the event that any Committed Participant fails to make available to the Administrative Agent on the applicable Advance Date (such originally scheduled Advance Date being referred to as the "Scheduled Advance Date" for purposes of this Section 3.6) an amount equal to such Committed Participant's Commitment Percentage of the amount of the Advance required by the terms hereof to be funded on such Advance Date (a "Defaulting Committed Participant"), or the Administrative Agent determines that a Committed Participant will become a Defaulting Committed Participant on the Scheduled Advance Date, the Administrative Agent shall promptly notify Lessee thereof and Lessee may postpone such Advance Date by delivering notice to the Administrative Agent of such postponement and of the date to which such Advance Date has been postponed (such notice to be received by no later than 9:00 a.m. New York, New York time, on the Scheduled Advance Date, and the term "Advance Date" as used herein shall mean such postponed Advance Date). If a Scheduled Advance Date is so postponed or if an Advance Date fails to occur: (i) Lessee shall reimburse each Participant (other than the Defaulting Committed Participant) for loss of the use of its funds occasioned by such postponement or failure to occur by paying to such Participant on demand interest at a rate per annum equal to the sum of the Federal Funds Effective Rate plus 0.50%, for the period from and including such Scheduled Advance Date, if such Participant has made its funds available, to but excluding the earlier of the date upon which such funds are returned (unless such funds are returned after 12:00 noon New York, New York time in which case such date of return shall be included) or the Advance Date, together with any Break Costs; except that Lessee shall in any event pay to each Participant at least one day's interest on the amount of such funds, unless such Participant receives before 12:00 noon New York, New York time on the Business Day preceding the Scheduled Advance Date, a notice of postponement of the Scheduled Advance Date pursuant to this Section 3.6 and (ii) the Administrative Agent shall return not later than 2:00 p.m. on the first Business Day following the Scheduled Advance Date (unless such return date is the postponed Advance Date), any funds received from such Participant as its portion of the Advance payable on such Scheduled Advance Date. Lessee shall have the right to pursue a claim with respect to such costs against any Defaulted Committed Participant.

    SECTION 3.7.  Certificates.  Each Participant shall have an undivided interest in Agent Lessor's interest in the Lease and Lessee's obligations thereunder and under the other Operative Documents to pay Basic Rent, the Lease Balance and any Supplemental Rent to which such Participant is entitled under the Operative Documents and in the amounts and priorities set forth at Section 5.3. The interests of each Participant shall be evidenced by a certificate or certificates in the form of Exhibit B, with appropriate insertions, issued by Lessee indicating such Participant's interest in the Basic Rent and all other amounts distributable to such Participant pursuant to Section 5.3  (each such certificate, and any and all certificates issued in replacement or exchange therefor being a "Certificate"). Lessee hereby irrevocably authorizes each Participant to make (or cause to be made) appropriate notations on the grid attached to such Participant's Certificates (or on any continuations of such grid), which notations, if made, shall evidence, inter alia, the date of, the outstanding amount of, and the interest rate applicable to the interests evidenced thereby. Such notations shall be conclusive and binding on Lessee absent manifest error; provided, however the failure of any Participant to make any such notations shall not limit or otherwise affect any Obligations of Lessee. In addition to the agency established pursuant to Artice XVI, the Administrative Agent is appointed the agent of each Participant for the limited purpose of transfer and exchange of the Certificates, and, as such, each Participant agrees that the Administrative Agent shall be entitled to the rights and bound by the provisions of Article XVI with respect to such agency, including the limitations on liability set forth therein. The Administrative Agent shall, as agent for Participants, maintain at its office a register for the purpose of registering the Certificate or Certificates originally issued hereunder and all transfers and exchanges thereof. A Participant intending to transfer any or all of its Certificates in accordance with Section 11.1, or to exchange any or all of its Certificates for Certificates evidencing a different interest, shall surrender such Certificate or Certificates to the Administrative Agent at its office set forth on Schedule II, together with a written request from such Participant (a copy of which such Participant shall also send to Lessee) for the issuance of a new Certificate or Certificates, specifying the interests to be evidenced thereby and, in the case of a surrender for registration of transfer, the name and address of the new Participant. Promptly upon receipt of such documents by the Administrative Agent, Lessee shall execute and the Administrative Agent shall authenticate and deliver at no charge to Participant, a new Certificate or Certificates in the same form, evidencing the same aggregate interest and dated the same date or dates as the Certificate or Certificates surrendered. The Administrative Agent, at no charge to Participant, shall make a notation on each new Certificate of the amount of all payments previously made on the old Certificate or Certificates with respect to which such new Certificate is issued and the date to which payments with respect to the old Certificate or Certificates have been paid. Such notations, and the grid attached to each Certificate, shall be prepared by the Administrative Agent, and shall be conclusive and binding absent manifest error. The Participant requesting such transfer or exchange shall be responsible for all stamp taxes related thereto. Lessee, the Administrative Agent and the Participants may deem the owner of each Certificate reflected in the register as the owner thereof for all purposes. The Administrative Agent shall not be responsible for determining if any transferee satisfies the requirements of Section 11.1. In maintaining the register and registering therein the transfers and exchanges of Certificates as required under this Section 3.7, the Administrative Agent shall act as the agent of Lessee, as the issuer of the Certificates, at Lessee's sole cost and expense, for purposes of complying with the requirements of Treas. Reg. §5f.103-1(c)(1), in order to cause the certificates to qualify for the "portfolio interest exemption" under Section 871(h) and related Sections of the Code and applicable regulations thereunder. As such agent, Lessee agrees that the Administrative Agent shall be entitled to the rights and bound by the provisions of Article XVI with respect to such agency, including the limitations on liability set forth therein.

    SECTION 3.8.  Lost, Stolen or Damaged Certificates.  If any Participant's Certificate shall become mutilated, destroyed, lost or stolen, Lessee shall, upon the written request of the appropriate Participant, execute and deliver in replacement thereof and at no charge to Participant, a new Certificate in the same form, evidencing the same interest and dated the same date as the Certificate so mutilated, destroyed, lost or stolen. If the Certificate being replaced has become mutilated, such Certificate shall be surrendered to the Administrative Agent and a photocopy thereof shall be furnished to Lessee by the Administrative Agent. If the Certificate being replaced has been destroyed, lost or stolen, the Participant requesting a replacement Certificate shall furnish to Lessee and the Administrative Agent such reasonable security or indemnity as may be required by each of them to save them harmless if the Participant has not furnished them satisfactory evidence of the destruction, loss or theft of the Certificate; provided, that if the Certificate being replaced is registered in the name of any institutional investor then the affidavit of such authorized officer of Participant in form reasonably satisfactory to the Administrative Agent, setting forth the fact of destruction, loss or theft and of ownership of the Certificate at the time thereof shall be satisfactory evidence and no security or indemnity shall be required other than the written agreement of such person, in form reasonably satisfactory to the Administrative Agent, to indemnify and hold harmless Lessee and the Administrative Agent from all risks resulting from the authentication and delivery of a substitute Certificate. The Participant requesting replacement hereunder shall be responsible for all stamp taxes relating to such replacement.


ARTICLE IV
FEES

    SECTION 4.1.  Fees.  

    SECTION 4.2.  Obligations Several.  The obligations of the Participants hereunder or elsewhere in the Operative Documents shall be several and not joint; and no Participant shall be liable or responsible for the acts or defaults of any other party hereunder or under any other Operative Document.

    SECTION 4.3.  Highest Lawful Rate.  It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein to the contrary notwithstanding, the obligations of (x) Lessee to Agent Lessor and the Participants under this Participation Agreement and the Lease, and (y) Lessee or any other party under any other Operative Document shall be subject to the limitation that payments of interest or of other amounts constituting interest under Applicable Laws shall not be required to the extent that receipt thereof would be in excess of the Highest Lawful Rate, or otherwise contrary to provisions of law applicable to the recipient limiting rates of interest which may be charged or collected by the recipient. Accordingly, if the transactions or the amount paid or otherwise agreed to be paid for the use, forbearance or detention of money under this Participation Agreement, the Lease, the Certificates or any other Operative Document would exceed the Highest Lawful Rate or otherwise be usurious under Applicable Laws (including without limitation the federal and state laws of the United States of America, or of any other jurisdiction whose laws may be mandatorily applicable) with respect to the recipient of any such amount, then, in that event, notwithstanding anything to the contrary in this Participation Agreement, the Lease, the Certificates or any other Operative Document, it is agreed as follows as to the recipient of any such amount:

    SECTION 4.4.  Extension of Expiration Date.  Lessee may request in writing (the "Extension Option Request") to Agent Lessor and each of the Participants that each of the Participants agrees that Lessee be granted the right (the "Extension Option") pursuant to the Lease to extend the Term (the "Lease Extension") for two (2) additional one-year periods commencing on the last day of the then current Term, as applicable (each, a "Lease Renewal Term"), and that the maturity date for the Certificates be correspondingly extended to the extended Expiration Date. Such Extension Option Request must be delivered in writing to Agent Lessor and each Participant not later than 180 days nor more than 270 days prior to the expiration of the Base Term and the end of the initial Lease Renewal Term, as applicable. Each Participant will notify Agent Lessor in writing of whether or not it has consented to such Extension Option Request not later than 45 days after receipt of the Extension Option Request (the "Extension Option Response Date"). Any Participant who does not so notify Agent Lessor by the Extension Option Response Date will be deemed to be, and any Participant that has notified Agent Lessor that it has not consented to an Extension Option Request will be, a "Non-Consenting Participant". Each Participant's determination with respect to an Extension Option Request shall be a new credit determination and within such Participant's sole and absolute discretion and may be conditioned upon such terms and conditions as deemed appropriate by the consenting Participants, including receipt of such financial information, documentation or other information or conditions as may be requested by such Participant and the receipt of a satisfactory appraisal of the Premises.

    The Extension Option shall become effective as of the first date (the "Extension Effective Date") on or after the Extension Option Response Date on which all of the Participants (other than Non-Consenting Participants who have been replaced by Replacement Participants in accordance with Section 10.2(b)) and Replacement Participants shall have consented to such Lease Extension; provided  that on both the date of the Extension Option Request and the Extension Effective Date: (w) each of the representations and warranties made by Agent Lessor and Lessee in or pursuant to the Operative Documents shall be true and correct in all material respects as if made on and as of each such date (except to the extent any such representation or warranty specifically relates to an earlier date), (x) Lessee shall not have elected the Purchase Option or Sale Option, (y) no Default or Event of Default shall have occurred and be continuing, and (z) on each of such dates, Agent Lessor shall have received a certificate of Lessee as to the matters set forth in clauses (x) and (y) above; and provided further that in no event shall the Extension Effective Date occur unless each of the Participants (other than Non-Consenting Participants who have been replaced in accordance with Section 10.2) and the Replacement Participants shall have consented to the Extension Option Request on or before the expiration of the Base Term.

    At any time after the Extension Option Response Date, as applicable, Lessee shall be permitted to replace any Non-Consenting Participant with a Replacement Participant pursuant to the terms and conditions set forth in Section 10.2(b). Following the Extension Effective Date, Lessee's election of each Lease Renewal Term shall be undertaken pursuant to, and shall be subject to the terms and conditions set forth in, Section 19.1(a) of the Lease.


ARTICLE V
CERTAIN INTENTIONS OF THE PARTIES

    SECTION 5.1.  Nature of Transaction.  It is the intention of the parties that:

    SECTION 5.2.  Amounts Due Under Lease.  Anything else herein or elsewhere to the contrary notwithstanding, it is the intention of Lessee, Agent Lessor and the Participants that: (i) the amount and timing of installments of the Basic Rent due and payable from time to time from Lessee under the Lease shall be equal to the aggregate payments due and payable as Tranche A Basic Rent and Tranche B Basic Rent and Tranche C Equity Basic Rent on each Payment Date; (ii) if Lessee elects the Early Termination Option, the Purchase Option or becomes obligated or otherwise elects to purchase the Premises under the Lease, the Lease Balance and all other obligations of Lessee owing to the Participants shall be paid in full by Lessee; (iii) if Lessee properly elects the Sale Option with respect to the Premises and subject to Article XX of the Lease, Lessee shall only be required to pay to Agent Lessor the Construction Recourse Amount, the proceeds of the sale of the Premises and any amounts due pursuant to Article XX of the Lease (which aggregate amounts may be less than the Lease Balance), together with all other due and payable Supplemental Rent; and (iv) upon an Event of Default resulting in an acceleration of Lessee's obligation to purchase the Premises under the Lease, the amounts then due and payable by Lessee under the Lease shall include all amounts necessary to pay in full the Lease Balance, plus  all other amounts then due from Lessee to Agent Lessor and the Participants under the Operative Documents.

    SECTION 5.3.  Distribution.  

    SECTION 5.4.  Other Payments.  

ARTICLE VI
CONDITIONS PRECEDENT TO ADVANCES; COMPLETION DATE CONDITIONS

    SECTION 6.1.  Conditions Precedent to the Initial Advance Date.  The obligations of the each Participant (through the Administrative Agent on behalf of the Agent Lessor) to Fund an Advance on the initial Advance Date, are subject to satisfaction of each of the following conditions precedent:

    SECTION 6.2.  Conditions Precedent to each Advance.  The obligations of each Participant (through Agent Lessor) to make an Advance on each Advance Date are subject to satisfaction or waiver of the following conditions precedent:

    SECTION 6.3.  Deliveries Upon Completion.  Within fifteen (15) Business Days following the date of Substantial Completion of the Financed Improvements in accordance with the Approved Plans and Specifications:

ARTICLE VII
REPRESENTATIONS

    SECTION 7.1.  Representations of the Participants.  As of the date of its execution of this Participation Agreement, each Participant represents and warrants, severally and only as to itself, to the other Participants, Agent Lessor and Lessee that:

    The making of any Advance on any Advance Date, the purchase of any interest in any Certificate by any Tranche A2 Participant, as a Purchaser, under any Transfer Agreement, shall constitute an affirmation by the subject assignee or acquiring Participant of the preceding representations and warranties.

    SECTION 7.2.  Representations of Lessee.  Lessee represents and warrants to each of the other parties hereto as of the Document Closing Date that:

    SECTION 7.3.  Representations of Lessee with Respect to Each Advance.  Lessee represents and warrants to each of the other parties as of each Advance Date on which an Advance is made as follows:

    SECTION 7.4.  Representations of Agent Lessor.  The Bank, in its individual capacity and not as Agent Lessor (with the exception of the last sentence of clause (c) below, which representation and warranty is made by the Bank solely in its capacity as Agent Lessor), represents and warrants to each of the other parties hereto as follows:

ARTICLE VIII
COVENANTS OF LESSEE

    SECTION 8.1.  Covenants of Lessee.  Lessee covenants and agrees with Agent Lessor and each of the Participants that it shall comply with the following provisions of this Section 8.1, it being understood that the following covenants are in addition to, and not by way of limitation of, any covenant set forth in the Lease.

    Lessee shall promptly notify Agent Lessor and each Participant:

Each notice under this Section shall be accompanied by a written statement by a Responsible Officer setting forth details of the occurrence referred to therein, and stating what action Lessee or any affected Subsidiary proposes to take with respect thereto and at what time. Each notice under this clause shall describe with particularity any and all clauses or provisions of this Participation Agreement or other Operative Document that have been (or foreseeably will be) breached or violated.

    SECTION 8.2.  Limitation on Liens.  In addition to, and not in limitation of, any other restrictions contained in any Operative Document with respect to Liens, Lessee shall not, and shall not suffer or permit any Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon or with respect to any part of its property, whether now owned or hereafter acquired, other than the following:

    SECTION 8.3.  Disposition of Assets.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any property (including accounts and notes receivable, with or without recourse) or enter into any agreement to do any of the foregoing, except:

    SECTION 8.4.  Consolidations and Mergers.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, merge, consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person, except:

    SECTION 8.5.  Loans and Investments.  Lessee shall not purchase or acquire, or suffer or permit any Subsidiary of Lessee to purchase or acquire, or make any commitment therefor, any capital stock, equity interest, or any obligations or other securities of, or any interest in, any Person, or make or commit to make any Acquisitions, or make or commit to make any advance, loan, extension of credit or contribution to or any other investment in, any Person including any Affiliate of Lessee (together, "Investments"), except for:

    SECTION 8.6.  Limitation on Indebtedness.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, create, incur, assume, suffer to exist, or otherwise become or remain directly or indirectly liable with respect to, any Indebtedness, except:

provided, that in the case of Indebtedness of the type described in the foregoing clause (d), (i) both before and after giving effect to the incurrence of such Indebtedness no Default or Event of Default shall have occurred and be continuing and (ii) if such Indebtedness were incurred on the last day of the most recent fiscal period for which financial statements have been delivered pursuant to the terms hereof, no Default or Event of Default would have occurred as a result thereof, provided further, that the aggregate principal amount of Indebtedness of Subsidiaries arising under the foregoing clause (d) shall at no time exceed $25,000,000.

    SECTION 8.7.  Transactions with Affiliates.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, enter into any transaction with any Affiliate of Lessee, except upon fair and reasonable terms no less favorable to Lessee or such Subsidiary than would be obtainable in a comparable arm's-length transaction with a Person not an Affiliate of Lessee or such Subsidiary.

    SECTION 8.8.  Use of Proceeds.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, use any portion of any loan under any instrument evidencing Indebtedness to which Lessee or any Subsidiary of Lessee is a party, or Advance proceeds, directly or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise refinance indebtedness of Lessee or others incurred to purchase or carry Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any security in any transaction that is subject to Section 13 or 14 of the Exchange Act.

    SECTION 8.9.  Contingent Obligations.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, create, incur, assume or suffer to exist any Contingent Obligations except:

    SECTION 8.10.  Lease Obligations.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, create or suffer to exist any obligations for the payment of rent for any property under lease or agreement to lease, except for:

    SECTION 8.11.  Restricted Payments.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of its capital stock, or purchase, redeem or otherwise acquire for value any shares of its capital stock or any warrants, rights or options to acquire such shares, now or hereafter outstanding or following consummation of any Acquisition make any "earn-out" payment of assets, properties, cash, rights, obligations or securities in connection with such Acquisition; except that Lessee and any Wholly-Owned Subsidiary may:

    SECTION 8.12.  ERISA.  Lessee shall not, and shall not suffer or permit any of its ERISA Affiliates to: (a) engage in a prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan which has resulted or could reasonably be expected to result in liability of Lessee in an aggregate amount in excess of $5,000,000; or (b) engage in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.

    SECTION 8.13.  Change in Business.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to engage in any material line of business substantially different from those lines of business carried on by Lessee and its Subsidiaries on the date hereof.

    SECTION 8.14.  Accounting Changes.  Lessee shall not, and shall not suffer or permit any Subsidiary of Lessee to, make any significant change in accounting treatment or reporting practices, except for changes in accounting treatment or reporting practices (a) required by GAAP and (b) of newly acquired businesses which are made to bring such businesses into conformity with Lessee's accounting treatment or reporting practices; Lessee shall not change the fiscal year of Lessee or of any Subsidiary.

    SECTION 8.15.  Negative Pledges, Restrictive Agreements, etc.  Lessee will not, and will not permit any of its Subsidiaries to, enter into any agreement (excluding this Agreement and any other Operative Document and the Credit Agreement) prohibiting:

    SECTION 8.16.  Ability to Amend; Restrictive Agreements.  Lessee will not, and will not permit any of its Subsidiaries to, enter into, or accept obligations under, any agreement (a) prohibiting (including subjecting to any condition) the ability of Lessee, or any of its Subsidiaries to amend, supplement or otherwise modify this Agreement or any other Operative Document or (b) containing any provision that would contravene any provision of this Agreement or any other Operative Document.

    SECTION 8.17.  Net Worth.  Lessee shall not permit at any time Net Worth to be less than the sum of (a) 600,607,200 (80% of Net Worth as of October 31, 1997), plus (b) for each fiscal year, commencing with the fiscal year ending October 31, 1998, 50% of positive net income for such fiscal year, plus  (c) with respect to the issuance or sale of capital stock of Lessee or the conversion of Indebtedness of Lessee into equity of Lessee, in each case occurring after the date hereof, 50% of the aggregate Net Issuance Proceeds received by Lessee from such issuance or sale of capital stock plus 50% of the principal amount of any Indebtedness so converted if such issuance, sale or conversion occurs at a time when Lessee shall have no Rating or at a time when Lessee's Rating is lower than BBB- and Baa3, respectively; such covenant to be calculated as of the end of each fiscal quarter.

    SECTION 8.18.  Funded Debt to EBITDA Ratio.  Lessee shall not permit, as of the end of any fiscal quarter, the ratio of (a) the aggregate principal amount of funded Debt of Lessee and its Subsidiaries to (b) EBITDA for the four consecutive fiscal quarters then ending, to exceed 3.0:1.

    SECTION 8.19.  EBITDA to Interest Expense Ratio.  Lessee shall not permit for any period consisting of four consecutive fiscal quarters then ending the ratio of EBITDA for such period to Interest Expense for such period to be less than 4.0:1.


ARTICLE IX
OTHER COVENANTS AND AGREEMENTS

    SECTION 9.1.  Covenants of the Participants and Agent Lessor.  

    SECTION 9.2.  Withholding.  If Agent Lessor, any Participant or any assignee of, or Sub-Participant in, any Certificate (each such assignee or Sub-Participant, a "Transferee") is organized under the laws of any jurisdiction other than the United States or any State thereof, then such Agent Lessor, Participant or Transferee, as applicable, shall (as a condition precedent to acquiring or participating in any Certificate) (i) furnish to Agent Lessor, the agent under the Transfer Agreement and Lessee in duplicate, for each taxable year of such Participant or Transferee during the Lease Term, a properly completed and executed copy of either Internal Revenue Service Form 4224 or Internal Revenue Service Form 1001 and Internal Revenue Service Form W-8 or Internal Revenue Service Form W-9 and any additional form (or such other form or successor form) as is necessary to claim complete exemption from United States withholding taxes, and (ii) provide to Agent Lessor, the agent under the Transfer Agreement and Lessee a new Internal Revenue Service Form 4224 or Internal Revenue Service Form 1001 and Internal Revenue Service Form W-8 or Internal Revenue Service Form W-9 and any such additional form (or any successor form or forms) upon the expiration or obsolescence of any previously delivered form and comparable statements in accordance with applicable United States laws and regulations and amendments duly executed and completed by such Participant or Transferee, and to comply from time to time with all applicable United States laws and regulations with regard to such withholding tax exemption.


ARTICLE X
LESSEE DIRECTIONS; REPLACEMENT OF PARTICIPANTS

    SECTION 10.1.  Lessee Directions.  Each of the Participants, Agent Lessor and Lessee hereby agree that, so long as no Default or Event of Default exists:

    SECTION 10.2.  Replacement of Participants.  

ARTICLE XI
TRANSFERS OF PARTICIPANTS' INTERESTS

    SECTION 11.1.  Assignments.  

Any transfer or assignment made in violation of the above requirements shall not be effective against the other parties to this Participation Agreement until such requirements are satisfied.

    SECTION 11.2.  Participations.  Any Participant may at any time sell to one or more commercial banks or other Persons (each of such commercial banks and other Persons being herein called a "Sub-Participant") participating interests in all or a portion (but not less than $1,000,000) of its rights and obligations under this Participation Agreement, the other Operative Documents, or its Certificates (including, without limitation, all or portion of the Rent owing to it); provided, however, that:

    Notwithstanding the foregoing provisions of this Section 11.2, any sale, transfer or participation from any Tranche A1 Participant to any Purchaser pursuant to the Transfer Agreement shall not be subject to the provisions of Sections 11.1  and 11.2, but instead the provisions of the Transfer Agreement shall be applicable.

    SECTION 11.3.  Binding Effect; Disclosure of Information; Pledge Under Regulation A.  

ARTICLE XII
INDEMNIFICATION

    SECTION 12.1.  Indemnification.  

Nothing in this Article XII is intended as or should be construed as a limitation on the right of any Indemnitee to make indemnification, contribution or other claims of any kind against Lessee, to the extent that such claims otherwise may be made, with respect to any matter, including indemnification for Claims of the type referred to in this Section 12.1(a)(i) and 12.1(a)(ii).

To the extent that any payments made pursuant to Section 12.1(a)(i) to Section 12.1(a)(ii) are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by Agent Lessor to a trustee, debtor in possession, receiver or other Person under any Bankruptcy Law, common law or equitable cause, then to such extent, the Indemnitee who received any such payments from Agent Lessor (or any portion thereof) shall repay any such amounts to Agent Lessor, or as may otherwise be directed by a court of competent jurisdiction.

The indemnification obligations of Agent Lessor under Section 12.1(a)(ii) shall survive and be reinstated to the same extent, for the same period and in the same manner as the indemnification obligations of Lessee.

The right of any Construction Period Participant Indemnitee to seek indemnification from Agent Lessor under Section 12.1(a)(ii) is subject to and conditioned upon compliance by any such Indemnitee with the notice, cooperation, appointment of counsel, contest rights and other provisions in Section 12.4 except that any reference in such Sections to Lessee shall be deemed to be a reference to Agent Lessor.

    SECTION 12.2.  Environmental Indemnity.  Without limitation of the other provisions of this Article XII, Lessee hereby agrees to indemnify, hold harmless and defend each Indemnitee from and against any and all Claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings (including informal proceedings) and orders, judgments, remedial action, requirements, enforcement actions of any kind, and all reasonable and documented costs and expenses incurred in connection therewith (including reasonable and documented attorneys' and/or paralegals' fees and expenses), including all costs incurred in connection with any investigation or monitoring of the condition of the Premises or any clean-up, remedial, removal or restoration work by any Governmental Authority (all of the foregoing being referred to in this Section 12.2 as "Liabilities"), arising in whole or in part, out of:


Notwithstanding anything in this Participation Agreement to the contrary, Lessee shall not be liable and shall not be obligated to indemnify any Indemnitee against Liabilities arising out of:

    Promptly upon obtaining knowledge thereof, Indemnitees shall give written notice to Lessee of any claim against Indemnitees, which might give rise to a claim by Indemnitees against Lessee under the foregoing indemnity, stating the nature and basis of the claim, the amount thereof and reasonable best estimate of the amount of Lessee's liability to Indemnitees in connection therewith, provided there shall be no liability to any Indemnitee and no diminution in the obligations of Lessee for failure to give such notice. If any action shall be brought against Indemnitees, Lessee shall be entitled to participate therein, and to assume the defense thereof at the expense of Lessee with counsel reasonably satisfactory to Indemnitees and to settle and compromise any such claim or action with the consent of such Indemnitees in their sole discretion; provided, however, that Indemnitees may elect to be represented by separate counsel, at Lessee's expense, if such Indemnitee believes in good faith that a conflict of interest may exist.

    SECTION 12.3.  Premises Indemnity.  If (a) Lessee elects the Sale Option; and (b) after paying to Lessor, for the benefit of the Participants, any amounts due under Articles XX and XXI of the Lease, the Lease Balance shall not have been reduced to zero, then Lessee shall promptly pay over to Agent Lessor on the Expiration Date the shortfall, unless Lessee delivers a report from an appraiser selected by the Required Participants in form and substance satisfactory to the Required Participants and using approved methods satisfactory to the Required Participants which establishes that the reasons for the actual Fair Market Value of the Premises as of the Expiration Date being less than the Fair Market Value anticipated for such date in the Appraisal was not due to any of the following events, circumstances or conditions, whether or not permitted under the Lease: (i) the failure to maintain the Premises as required by the Lease and the other Operative Documents, and in at least as good a condition as it was in on the Completion Date, ordinary wear and tear excepted; (ii) the carrying out of or the failure to undertake any modifications, improvements or Modifications (including the Financed Improvements) whether or not permitted pursuant to the Operative Documents; (iii) any change or modification to the Approved Plans and Specifications following the earlier of (x) the Document Closing Date and (y) the delivery of the Approved Plans and Specifications pursuant to Section 6.1(p), whether or not permitted pursuant to the Operative Documents, (iv) the existence of any environmental condition at or affecting the Premises, whether or not such condition existed on the initial Advance Date; (v) any defect, exception, easement, restriction or other encumbrance on or title to the Premises, whether or not created or existing on the initial Advance Date; (vi) the dependence of the Premises on any improvement or facility not fully located on the Premises (except for government-provided utilities existing and benefitting the Premises as of the date hereof, the benefits of which are lost for reasons other than the fault of Lessee and which could not have been retained through the exercise by Lessee of commercially reasonable efforts to keep such utilities in place); (vii) any restoration or rebuilding carried out by Lessee or any sublessee; (viii) any condemnation of any portion of the Premises pursuant to Article XV of the Lease; (ix) any use of the Premises or any part thereof by Lessee or any sublessee other than as an office building; or (x) any other cause or condition within the power of Lessee to control or affect, other than ordinary wear and tear.

    SECTION 12.4.  Proceedings in Respect of Claims.  With respect to any amount that Lessee is requested by an Indemnitee to pay by reason of Section 12.1(a) or 12.2, such Indemnitee shall, if so requested by Lessee and prior to any payment, submit such additional information to Lessee as Lessee may reasonably request and which is in the possession of such Indemnitee to substantiate properly the requested payment.

    In case any action, suit or proceeding shall be brought against any Indemnitee, such Indemnitee shall notify Lessee of the commencement thereof, and Lessee shall be entitled, at its expense, to participate in, and, to the extent that Lessee desires to, assume and control the defense thereof through its own counsel, which shall be subject to the reasonable approval of the Required Participants, on behalf of the Indemnitee; provided, however, that Lessee shall have acknowledged in writing its obligation to fully indemnify such Indemnitee in respect of such action, suit or proceeding, and, Lessee shall keep such Indemnitee fully apprised of the status of such action, suit or proceeding and shall provide such Indemnitee with all information with respect to such action, suit or proceeding as such Indemnitee shall reasonably request. Lessee must indicate its election to assume such defense by written notice to the Indemnitee within 90 days following receipt of Indemnitee's notice of the Claim, or in the case of a third party claim which requires a shorter time for response then within such shorter period as specified in the Indemnitee's notice of Claim, provided  that such Indemnitee has given Lessee notice thereof. Lessee shall not be entitled to assume and control the defense of any such action, suit or proceeding if and to the extent that, (A) in the reasonable opinion of such Indemnitee, (x) such action, suit or proceeding involves any risk of imposition of criminal liability or any material risk of imposition of material civil liability on such Indemnitee or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Premises or any part thereof unless, in the case of civil liability, Lessee shall have posted a bond or other security reasonably satisfactory to the relevant Indemnitees in respect to such risk or (y) the control of such action, suit or proceeding would involve an actual or potential conflict of interest, (B) such proceeding involves Claims not fully indemnified by Lessee which Lessee and the Indemnitee have been unable to sever from the indemnified Claim(s), or (C) an Event of Default has occurred and is continuing. The Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by Lessee in accordance with the foregoing. Lessee shall not enter into any settlement or other compromise with respect to any Claim which is entitled to be indemnified under Section 12.1 or 12.2, as applicable, without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed in the case of a money settlement not involving an admission of liability of such Indemnitee.

    Each Indemnitee shall supply Lessee with such information and documents reasonably requested by Lessee as are necessary or advisable for Lessee to participate in any action, suit or proceeding to the extent permitted by Section 12.1 or 12.2, as applicable, and Lessee shall reimburse the Indemnitee for the reasonable out-of-pocket expenses of supplying such information and documents. Unless an Event of Default shall have occurred and be continuing, no Indemnitee shall enter into any settlement or other compromise with respect to any Claim which is entitled to be indemnified under Section 12.1 or 12.2, as applicable, without the prior written consent of Lessee, which consent shall not be unreasonably withheld, unless such Indemnitee waives its right to be indemnified under Section 12.1 or 12.2, as applicable, with respect to such Claim, does not admit any criminal liability or civil liability on behalf of Lessee in connection with such Claim, and uses reasonable efforts to advise Lessee on the status of proceedings from time to time during the pendency of such Claim.

    Upon payment in full of any Claim by Lessee pursuant to Section 12.1 or 12.2, as applicable, to or on behalf of an Indemnitee, Lessee, without any further action, shall be subrogated to any and all claims that such Indemnitee may have relating thereto (other than claims in respect of insurance policies maintained by such Indemnitee at its own expense), and such Indemnitee shall execute such instruments of assignment and conveyance, evidence of claims and payment and such other documents, instruments and agreements as may be necessary to preserve any such claims and otherwise cooperate with Lessee and give such further assurances as are necessary or advisable to enable Lessee vigorously to pursue such claims.

    Any amount payable to an Indemnitee pursuant to Section 12.1 or 12.2 shall be paid to such Indemnitee promptly upon receipt of a written demand therefor from such Indemnitee, accompanied by a written statement describing in reasonable detail the basis for such indemnity and the computation of the amount so payable.

    SECTION 12.5.  General Tax Indemnity.  

    Lessee shall be entitled for a period of 30 days from receipt of such notice from the Indemnitee (or such shorter period as the Indemnitee has notified Lessee is required by law or regulation for the Indemnitee to commence such contest), to request in writing that such Indemnitee contest such Imposition, at Lessee's expense. If (x) such contest can be pursued in the name of Lessee and independently from any other proceeding involving an Imposition for which Lessee has not agreed to indemnify such Indemnitee, (y) such contest must be pursued in the name of the Indemnitee, but can be pursued independently from any other proceeding involving an Imposition for which Lessee has not agreed to indemnify such Indemnitee or (z) the Indemnitee so requests, then Lessee shall be permitted to control the contest of such claim, provided that in the case of a contest described in any of clause (x), (y)  or (z) if the Indemnitee determines in good faith that such contest by Lessee could have a material adverse impact on the business or operations of the Indemnitee and provides a written explanation to Lessee of such determination, the Indemnitee may elect to control or reassert control of the contest, and provided, that by taking control of the contest, Lessee acknowledges that it is responsible for the Imposition ultimately determined to be due by reason of such claim, and provided, further, that in determining the application of clauses (x)  and (y) of the preceding sentence, each Indemnitee shall take any and all reasonable steps to segregate claims for any Impositions for which Lessee indemnifies hereunder from Impositions for which Lessee is not obligated to indemnify hereunder, so that Lessee can control the contest of the former. In all other claims requested to be contested by Lessee, the Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to Lessee. In no event shall Lessee be permitted to contest (or the Indemnitee required to contest) any claim (A) if such Indemnitee provides Lessee with a legal opinion of independent counsel that such action, suit or proceeding involves a material risk of imposition of criminal liability or will involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Lien) on the Premises or any part of any thereof unless Lessee shall have posted and maintained a bond or other security reasonably satisfactory to the relevant Indemnitee in respect to such risk, (B) if an Event of Default has occurred and is continuing, unless Lessee shall have posted and maintained a bond or other security reasonably satisfactory to the relevant Indemnitee in respect of the Impositions subject to such claim and any and all expenses for which Lessee is responsible hereunder reasonably foreseeable in connection with the contest of such claim, (C) unless Lessee shall have agreed to pay and shall pay to such Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Indemnitee may incur in connection with contesting such Imposition, including all reasonable legal, accounting and investigatory fees and disbursements, or (D) if such contest shall involve the payment of the Impositions prior to the contest, unless Lessee shall provide to the Indemnitee an interest-free advance in an amount equal to the Imposition that the Indemnitee is required to pay (with no additional net after-tax costs (including Taxes) to such Indemnitee). In addition, for Indemnitee-controlled contests and claims contested in the name of the Indemnitee in a public forum, no contest shall be required: (A) unless the amount of the potential indemnity (taking into account all similar or logically related claims that have been or could be raised in any audit involving such Indemnitee for which Lessee may be liable to pay an indemnity under this Section 12.5 exceeds $50,000 and (B) unless, if requested by the Indemnitee, Lessee shall have provided to the Indemnitee an opinion of counsel selected by Lessee (which may be in-house counsel) that a reasonable basis exists to contest such claim. In no event shall an Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court.

    The party conducting the contest shall consult in good faith with the other party and its counsel with respect to the contest of such claim for Impositions (or claim for refund) but the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement, provided, however, that if the Indemnitee is the controlling party and Lessee recommends the acceptance of a settlement offer made by the relevant Governmental Authority and such Indemnitee rejects such settlement offer then the amount for which Lessee will be required to indemnify such Indemnitee with respect to the Taxes subject to such offer shall not exceed the amount which it would have owed if such settlement offer had been accepted. In addition, the controlling party shall keep the noncontrolling party reasonably informed as to the progress of the contest, and shall provide the noncontrolling party with a copy of (or appropriate excerpts from) any reports or claims issued by the relevant auditing agent or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof.

    Each Indemnitee shall supply Lessee with such information and documents reasonably requested by Lessee as are necessary or advisable for Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 12.5(b), and Lessee shall promptly reimburse such Indemnitee for the reasonable out-of-pocket expenses of supplying such information and documents. No Indemnitee shall enter into any settlement or other compromise or fail to appeal an adverse ruling with respect to any claim which is entitled to be indemnified under this Section 12.5 (and with respect to which contest is required under this Section 12.5(b)) without the prior written consent of Lessee (such consent not to be unreasonably withheld), unless such Indemnitee waives its right to be indemnified under this Section 12.5 with respect to such claim.

    Notwithstanding anything contained herein to the contrary, an Indemnitee will not be required to contest (and Lessee shall not be permitted to contest) a claim with respect to any Imposition if (i) such Indemnitee shall waive its right to indemnification under this Section 12.5 with respect to such claim (and any claim with respect to such year or any other taxable year, the contest of which is materially adversely affected as a result of such waiver) or (ii) such Imposition is the sole result of a claim of a continuing and consistent nature, which claim has previously been resolved against the relevant Indemnitee (unless a change in law or facts has occurred since such prior adverse resolution and Lessee provides an opinion of independent tax counsel to the effect that it is more likely than not that such change in law or facts will result in a favorable resolution of the claim at issue).

                (ii) To Lessee. (x) If any Indemnitee actually shall realize a Tax benefit (whether by way of deduction, credit, allocation or apportionment or otherwise) with respect to a Tax not indemnifiable hereunder which would not have been realized but for any Tax with respect to which Lessee has reimbursed or indemnified such Indemnitee pursuant to the Operative Documents, which benefit was not previously taken into account in determining the amount of Lessee's payment to such Indemnitee, such Indemnitee shall pay to Lessee an amount equal to the amount of such Tax benefit, increased by any actual Tax savings realized by such Indemnitee and net of any additional Taxes actually borne by such Indemnitee as a result of such payment (a "Grossed-Up Basis"); provided, however, that no payment shall be made as long as an Event of Default is continuing; provided further, however, that no Indemnitee shall be required to pay to Lessee any Tax benefit to the extent such payment would be greater than the amount of such Taxes in respect of which the reimbursement or indemnification was paid by Lessee, reduced by all prior payments by such Indemnitee under this Section 12.5(c)(ii)(x) in respect of such amount; any payment to Lessee which is so limited shall, to the extent of such unpaid excess, be carried over and shall be available to offset any future obligations of Lessee under this Section 12.5. If such repaid Tax benefit is thereafter lost, the additional Tax payable shall be treated as a Tax indemnifiable hereunder without regard to the exclusions set forth in clauses (i) through (viii) of the definition of Impositions.

                (y) Upon receipt by an Indemnitee of a refund or credit of all or part of any Taxes paid or indemnified against by Lessee, which refund or credit was not previously taken into account in determining the amount of Lessee's payment to such Indemnitee, such Indemnitee shall pay to Lessee, on a Grossed-Up Basis, an amount equal to the amount of such refund or credit, plus any interest received by or credited to such Indemnitee with respect to such refund; provided, however, that no such payment shall be made as long as an Event of Default is continuing; provided, further, however, that no Indemnitee shall be required to pay to Lessee any refund or credit to the extent such refund or credit is greater than the amount of Taxes in respect of which payment or indemnification was made by Lessee, reduced by all prior payments by such Indemnitee under this Section 12.5(c)(ii)(y)  in respect of such amount. If such repaid refund or credit is thereafter lost, the additional Tax payable shall be treated as a Tax indemnifiable hereunder without regard to the exclusions set forth in clauses (vi), (vii) and (viii) of the definition of Impositions.

                (z) The Indemnitee will, at Lessee's expense, pursue refunds and tax benefits that would result in any such payments to Lessee, but only if the Indemnitee has been notified in writing by Lessee that such refunds or tax benefits are available.

    SECTION 12.6.  Gross Up.  If an Indemnitee shall not be entitled to a corresponding and equal deduction with respect to any payment or Tax which Lessee is required to pay or reimburse under any other provision of this Article XII  (each such payment or reimbursement under this Article XII, an "original payment") and which original payment constitutes income to such Indemnitee when accrued or received, then Lessee shall pay to, or for the account of, such Indemnitee on demand the amount of such original payment on an After Tax Basis.


ARTICLE XIII
LIMITATION ON RECOURSE LIABILITY DURING CONSTRUCTION PERIOD

    Notwithstanding any other provision set forth in this Participation Agreement or any of the other Operative Documents, in the event of the occurrence of a Construction Agency Event of Default occurring during the Interim Term and until the Base Term Commencement Date has occurred, Lessee shall not be required to pay more than the Construction Recourse Amount on a recourse basis with respect to any damages (which shall include Construction Breakage Costs and amounts payable by Construction Agent as Default Completion Costs) which relate to or arise from any such Construction Agency Event of Default; provided, however, that the foregoing limitation shall not apply (i) with respect to any Full Recourse Interim Term Event of Default, (ii) with respect to the rights of parties to seek all damages, without regard to such limitation, from the proceeds of the Premises or any other Collateral or (iii) to any Claim for indemnity under Article XII  or under any other Operative Document.


ARTICLE XIV
LIBOR PROVISIONS; ADDITIONAL COSTS

    SECTION 14.1.  LIBO Rate Lending Unlawful.  If any Participant shall determine (which determination shall, upon notice thereof to Lessee and the Participants, be conclusive and binding on Lessee) that the introduction of or any change in or in the interpretation of any law makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for such Participant to make available, continue or maintain any Certificate Amount that accrues Rent based upon the LIBO Rate, the obligation of such Participant to make available, continue or maintain any such Certificate Amount, shall, upon such determination, forthwith be suspended until such Participant shall notify Lessee and the Administrative Agent that the circumstances causing such suspension no longer exist and, to the extent required by any such introduction of or change in or in the interpretation of any law, all Certificate Amounts of such Participant that accrue Rent based upon the LIBO Rate shall automatically accrue Rent at the Alternate Base Rate either (a) on the last day of the then current Interest Period applicable to such Certificate Amount if such Participant may lawfully continue to maintain and fund such Certificate Amount, or (b) immediately if such Participant shall determine that it may not lawfully continue to maintain and fund such Certificate Amount to such day thereto or sooner, if required by such law or assertion.

    SECTION 14.2.  Deposits Unavailable.  If any of the Participants shall have determined that:

then, upon notice from such Participant to Lessee, the Administrative Agent and the other Participants, (i) the obligations of the Participants to make available Certificate Amounts shall be suspended and (ii) each outstanding Certificate Amount shall begin to accrue Rent at the Alternate Base Rate on the last day of the then current Interest Period applicable thereto.

    SECTION 14.3.  Increased Costs, etc.  If any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other Governmental Authority increases or would increase the cost to any Participant of, or reduces or would reduce the amount of any sum receivable by, such Participant in respect of, making available, continuing or maintaining (or of its obligation to make available, continue or maintain) or prevents or would prevent any Participant from being legally entitled to a complete exemption from withholding as described in Section 9.2 with respect to any Certificate Amounts, Lessee agrees to reimburse such Participant for each such increased cost or reduced amount when applicable to such Participant or its parent, as applicable (on an After Tax Basis). Such Participant shall promptly notify each Agent and Lessee in writing of the occurrence of any such event, such notice to state, in reasonable detail, the reasons therefor and the additional amount required fully to compensate such Participant for such increased cost or reduced amount. Such additional amounts shall be payable by Lessee as Supplemental Rent directly to such Participant within five days of its receipt of such notice. A statement of a Participant as to any such additional amount or amounts (including calculations thereof in reasonable detail) shall, in the absence of manifest error, be conclusive and binding on Lessee. In determining such amount, each Participant shall use any method of averaging or attribution that it (in its reasonable discretion) shall deem applicable.

    SECTION 14.4.  Funding Losses.  In the event any Participant shall incur any loss or out-of-pocket expense (including any Break Costs and any loss or out-of-pocket expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Participant to make available, continue or maintain any portion of the principal amount of any Certificate Amount) as a result of:

then, upon the written notice of such Participant to Lessee (with a copy to each Agent), Lessee shall, within five days of its receipt thereof, pay directly to such Participant as Supplemental Rent such amount (determined on the basis of such Participant's standard practices) as will reimburse such Participant for such loss or out-of-pocket expense. Such written notice (which shall include calculations in sufficiently reasonable detail to indicate the incurrence and amount of such loss and out-of-pocket expense) shall be presumed correct and binding on Lessee absent demonstrable error.

    SECTION 14.5.  Increased Capital Costs.  If any change, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any law or regulation, directive, guideline, decision or request (whether or not having the force of law) of any court, central bank, regulator or other Governmental Authority affects or would affect the amount of capital required or expected to be maintained by any Participant or any Person controlling such Participant, and such Participant reasonably determines that the rate of return on its or such controlling Person's capital as a consequence of its Commitments or the Certificate Amounts made available by such Participant is reduced to a level below that which such Participant or such controlling Person could have achieved but for the occurrence of any such circumstance, then, in any such case upon notice from time to time by such Participant to Lessee (with a copy to each Agent), Lessee shall immediately pay directly to such Participant or such controlling Persons for such reduction in rate of return. A statement of such Participant as to any such additional amount or amounts (including calculations thereof in reasonable detail) shall be presumed correct and binding on Lessee absent manifest error. In determining such amount, such Participant shall use its standard practice in determining such amount, and, in the absence of such standard practice, may use any reasonable method of averaging and attribution that it shall deem applicable.

    SECTION 14.6.  After Tax Basis.  Lessee shall pay all amounts owing under this Article XIV on an After Tax Basis.

    SECTION 14.7.  Funding Office.  If Lessee is required to pay additional amounts to or for the account of any Participant pursuant to Sections 14.1 to 14.3, to the extent applicable, then such Participant will agree to use reasonable efforts to change the jurisdiction of its Applicable Lending Office so as to eliminate or reduce any such additional payment which may thereafter accrue if such change, in the sole judgment of such Participant, is not otherwise disadvantageous to such Participant.


ARTICLE XV
MISCELLANEOUS

    SECTION 15.1.  Survival of Agreements.  The representations, warranties, covenants, indemnities and agreements of the parties provided for in the Operative Documents, and the parties' obligations under any and all thereof, shall survive the execution and delivery and the termination or expiration of this Participation Agreement and any of the other Operative Documents, the transfer of the interest in the Premises as provided herein or in any other Operative Documents (and shall not be merged into any bill of sale or any other conveyance or transfer document), any disposition of any interest of Agent Lessor in the Premises, the purchase and sale of the Certificates, payment therefor and any disposition thereof, and shall be and continue in effect notwithstanding any investigation made by any party hereto or to any of the other Operative Documents and the fact that any such party may waive compliance with any of the other terms, provisions or conditions of any of the Operative Documents.

    SECTION 15.2.  No Broker, etc.  Except for Lessee's dealing with ABN AMRO Bank N.V. each of the parties hereto represents to the others that it has not retained or employed any arranger, broker, finder or financial advisor to act on its behalf in connection with this Participation Agreement, nor has it authorized any arranger, broker, finder or financial adviser retained or employed by any other Person so to act, nor has it incurred any fees or commissions to which Agent Lessor or any Participant might be subjected by virtue of their entering into the Overall Transaction. Any party who is in breach of this representation shall indemnify and hold the other parties harmless from and against any liability arising out of such breach of this representation.

    SECTION 15.3.  Notices.  Unless otherwise specified herein, all notices, requests, demands or other communications to or upon the respective parties hereto shall be deemed to have been duly given and shall be effective: (i) in the case of notice by letter, the earlier of when delivered to the addressee by hand or courier if delivered on a Business Day and, if not delivered on a Business Day, the first Business Day thereafter or on the third Business Day after depositing the same in the mails, registered or certified mail, postage prepaid, return receipt requested, (ii) in the case of a prepaid delivery to a reputable national overnight air courier service, on the Business Day following such date of delivery, and (iii) in the case of notice by facsimile or bank wire, when receipt is confirmed if delivered on a Business Day and, if not delivered on a Business Day, the first Business Day thereafter, addressed as provided on Schedule II hereto, or to such other address as any of the parties hereto may designate by written notice.

    SECTION 15.4.  Counterparts.  This Participation Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.


    SECTION 15.5.  Amendments.  No Operative Document nor any of the terms thereof may be terminated, amended, supplemented, waived or modified without the written agreement or consent of Agent Lessor, Lessee and the Required Participants; provided  that such termination, amendment, supplement, waiver or modification shall require the written agreement or consent of each Participant if such termination, amendment, supplement, waiver or modification would:

    SECTION 15.6.  Headings, etc.  The Table of Contents and headings of the various Articles and Sections of this Participation Agreement are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions hereof.

    SECTION 15.7.  Parties in Interest.  Except as expressly provided herein, none of the provisions of this Participation Agreement is intended for the benefit of any Person except the parties hereto. Lessee shall not assign or transfer any of its rights or obligations under the Operative Documents without the prior written consent of the Required Participants.

    SECTION 15.8.  GOVERNING LAW.  THIS PARTICIPATION AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK AS TO ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

    SECTION 15.9.  Severability.  Any provision of this Participation 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.

    SECTION 15.10.  Liability Limited.  No Participant shall have any obligation to any other Participant or to Lessee or Agent Lessor with respect to the Overall Transaction, except those obligations of such Participant expressly set forth in the Operative Documents or except as set forth in the instruments delivered in connection therewith, and no Participant shall be liable for performance by any other party hereto of such other party's obligations under the Operative Documents, except as otherwise so set forth.

    SECTION 15.11.  Further Assurances.  The parties hereto shall promptly cause to be taken, executed, acknowledged or delivered, at the sole expense of 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 preserve the security interests and Liens (and the priority thereof) intended to be created pursuant to this Participation Agreement, the other Operative Documents and the Overall Transaction (including, without limitation, the preparation, execution and filing of any and all Uniform Commercial Code financing statements and other filings or registrations which the parties hereto may from time to time request to be filed or effected). Lessee, at its own expense and without the need of any prior request from any other party, shall take such action as may be necessary (including any action specified in the preceding sentence), or (if Agent Lessor shall so request) as so requested, in order to maintain and protect all Liens and security interests provided for hereunder or under any other Operative Document.

    SECTION 15.12.  Submission to Jurisdiction.  Each party hereto irrevocably and unconditionally:

    SECTION 15.13.  WAIVER OF JURY TRIAL.  THE PARTIES HERETO VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS PARTICIPATION AGREEMENT OR ANY OTHER OPERATIVE DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY OF THE PARTIES HERETO AND THERETO. THE PARTIES HERETO HEREBY AGREE THAT THEY WILL NOT SEEK TO CONSOLIDATE ANY SUCH LITIGATION WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL HAS NOT OR CANNOT BE WAIVED. THE PROVISIONS OF THIS SECTION 15.13  HAVE BEEN FULLY NEGOTIATED BY THE PARTIES HERETO AND SHALL BE SUBJECT TO NO EXCEPTIONS. LESSEE ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER OPERATIVE DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTICIPANTS ENTERING INTO THIS PARTICIPATION AGREEMENT AND EACH OTHER OPERATIVE DOCUMENT.

    SECTION 15.14.  Limited Liability of Agent Lessor.  The parties hereto agree that Agent Lessor, in its individual capacity, shall have no personal liability whatsoever to Lessee, the Participants or any of their respective successors and assigns for any Claim based on or in respect of this Participation Agreement or any of the other Operative Documents or arising in any way from the Overall Transaction; provided, however, that Agent Lessor shall be liable in its individual capacity: (a) for its own willful misconduct or gross negligence (or negligence in the handling of funds) and, to each Participant for the breach of its obligations to such Participant in respect of the Operative Documents and the Premises, (b) for liabilities that may result from the incorrectness of any representation or warranty expressly made by it in this Participation Agreement or from its failure to perform the covenants and agreements set forth in this Participation Agreement or any other Operative Document, or (c) for any Tax based on or measured by any fees, commission or compensation received by it for actions contemplated by the Operative Documents. It is understood and agreed that, except as provided in the preceding proviso, Agent Lessor shall have no personal liability under any of the Operative Documents as a result of acting pursuant to and consistent with any of the Operative Documents.

    SECTION 15.15.  Payment of Transaction Expenses and Other Costs.  

    SECTION 15.16.  Reproduction of Documents.  This Participation Agreement, all documents constituting an Appendix, Schedule or Exhibit hereto, and all documents relating hereto received by a party hereto, including, without limitation: (a) consents, waivers and modifications that may hereafter be executed; (b) documents received by the Participants or Agent Lessor in connection with the receipt and/or acquisition of the Premises; and (c) financial statements, certificates, and other information previously or hereafter furnished to any Participant may be reproduced by the party receiving the same by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. Each of the parties hereto agrees and stipulates that, to the extent permitted by law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such party in the regular course of business) and that, to the extent permitted by law, any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.

    SECTION 15.17.  Non-Petition.  Each of Lessee, each Purchaser, Agent Lessor and each other Participant hereby agrees that it shall not institute against, or join any other person in instituting against, any Tranche A1 Participant any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceedings under any federal or state bankruptcy or similar law, for one year and a day after the latest maturing indebtedness for borrowed money issued by that Tranche A1 Participant is paid. This Section 15.17 shall survive the termination of this Participation Agreement.

    SECTION 15.18.  Assignment of Tranche A1 Participant's Interest to Purchasers.  In the event a Tranche A1 Participant exercises its option to sell all of its interests under the Operative Documents to the Purchasers pursuant to Section 2.3 of the Transfer Agreements, the Tranche A1 Participant, without further act, will be deemed to have assigned to the Purchasers on a several basis in accordance with their Purchase Percentages all of its right, title and interest in the Operative Documents, and the Purchasers will be deemed to have assumed as of the date of transfer on a several basis as aforesaid all obligations of the Tranche A1 Participant arising on or after the date of transfer. In the event a Tranche A1 Participant assigns all or a portion of its Certificate Amounts and its rights and interests under its Transfer Agreement to ABN AMRO Bank N.V. or any other Person in accordance with Section 4.12(f) of the Transfer Agreement, then (unless and until repurchased by a Tranche A1 Participant pursuant to Section 2.2 of the Transfer Agreement) such Tranche A1 Participant, without further act, will be deemed to have assigned to such Person all or a portion, as applicable, of its right, title and interest in the Operative Documents and such Person will be deemed to have assumed all or a portion, as applicable, of the obligations of the Tranche A1 Participant arising on or after the date of such assignment. The Administrative Agent shall promptly notify Lessee of any assignment pursuant to this Section 15.18.

    SECTION 15.19.  Deliveries to Participants.  Lessee may fulfill its obligations hereunder and under each of the other Operative Documents to provide any item (other than any notices) to any Participant by providing sufficient copies of such item directly to Agent Lessor, along with the costs of postage, with instructions to Agent Lessor to deliver such item to such Participant.

    SECTION 15.20.  Excess Funds.  The Tranche A1 Participant shall be required to make payment of the amounts required to be paid pursuant hereto only if the Tranche A1 Participant has Excess Funds (as defined below). If the Tranche A1 Participant does not have Excess Funds, the excess of the amounts due hereunder over the amount paid shall not constitute a "claim" (as defined in Section 101(5) of the Federal Bankruptcy Code) against the Tranche A1 Participant until such time as the Tranche A1 Participant has Excess Funds. If the Tranche A1 Participant does not have sufficient Excess Funds to make any payment due hereunder, then the Tranche A1 Participant may pay a lesser amount and make additional payments that in the aggregate equal the amount of deficiency as soon as possible thereafter. The term "Excess Funds" means the excess of (a) the aggregate projected value of the Tranche A1 Participant's assets and other property (including cash and cash equivalents), over (b) the sum of (i) the sum of all scheduled payments of principal, interest and other amounts payable on publicly or privately placed indebtedness of the Tranche A1 Participant for borrowed money, plus (ii) the sum of all other liabilities, indebtedness and other obligations of the Tranche A1 Participant for borrowed money or owed to any credit or liquidity provider, together with all unpaid interest then accrued thereon, plus (iii) all taxes payable by the Tranche A1 Participant to the Internal Revenue Service, plus (iv) all other indebtedness, liabilities and obligations of the Tranche A1 Participant then due and payable, but the amount of any liability, indebtedness or obligation of the Tranche A1 Participant shall not exceed the projected value of the assets to which recourse for such liability, indebtedness or obligation is limited. Excess Funds shall be calculated once each Business Day.


ARTICLE XVI
AGENTS

    SECTION 16.1.  Appointment of Agents; Powers and Authorization to Take Certain Actions.  

    SECTION 16.2.  Reliance.  Each Agent may rely upon, and shall not be bound or obligated to make any investigation into the facts or matters stated in, any certificate, notice or other communication (including any communication by telephone, telecopy, telex, telegram or cable) reasonably believed by it to be genuine and correct and to have been made, signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of legal counsel, independent accountants and other experts selected by such Agent (including any expert selected by such Agent to aid such Agent in any calculations required in connection with its duties under the Operative Documents).

    SECTION 16.3.  Action Upon Instructions Generally.  Subject to Sections 16.4 and 16.6, upon written instructions of the Required Participants, Agent Lessor shall, on behalf of the Participants, give such notice or direction, exercise such right, remedy or approval or power hereunder or in respect of the Premises, and give such consent or enter into such amendment to any document to which it is a party as Agent Lessor as may be specified in such instructions. Agent Lessor shall deliver to each Participant a copy of each notice, report and certificate received by Agent Lessor pursuant to the Operative Documents. Neither Agent shall have any obligation to investigate or determine whether there has been an Event of Default or Default. Neither Agent shall be deemed to have notice or knowledge of an Event of Default or Default unless a Responsible Officer of such Agent is notified in writing of such Event of Default or Default. If either Agent receives notice of an Event of Default, such Agent shall give prompt notice thereof, at Lessee's expense, to each Participant. Subject to Sections 16.4, 16.6 and 15.5, such Agent shall take action or refrain from taking action with respect to such Event of Default as directed by the Required Participants; provided that, unless and until such Agent receives such directions, such Agent may refrain from taking any action, or may act in its discretion, with respect to such Event of Default. Prior to the date the Lease Balance shall have become due and payable by acceleration pursuant to Section 18.2 of the Lease, Required Participants may deliver written instructions to Agent Lessor to waive, and Agent Lessor shall waive pursuant thereto, any Event of Default and its consequences; provided that in the absence of written instructions from all Participants, Agent Lessor shall not waive any (i) Payment Default or (ii) covenant or provision which, under Section 15.5, cannot be modified or amended without the consent of all Participants. As to any matters not expressly provided for by this Agreement, each Agent shall in all cases be fully protected in acting, or in refraining from acting, hereunder in accordance with instructions signed by the Required Participants and such instructions of the Required Participants and any action taken or failure to act pursuant thereto shall be binding on each Participant.

    SECTION 16.4.  Indemnification.  Each Participant shall reimburse and hold each Agent harmless, ratably in accordance with its outstanding Certificate Amount at the time the indemnification is required to be given (but only to the extent that any such indemnified amounts have not in fact been paid to such Agent by, or on behalf of, Lessee in accordance with Section 12.1), from any and all claims, losses, damages, obligations, penalties, liabilities, demands, suits, judgments, or causes of action, and all legal proceedings, and any reasonable costs or expenses in connection therewith, including allocated charges, costs and expenses of internal counsel of such Agent and all other reasonable attorneys' fees and expenses incurred by such Agent, in any way relating to or arising in any manner out of (i) any Operative Document, the enforcement hereof or thereof or the consummation of the transactions contemplated thereby, or (ii) instructions from the Required Participants (including, without limitation, the costs and expenses that Lessee is obligated to and does not pay hereunder), provided that no Participant shall be liable for any of the foregoing to the extent they arise from (a) the gross negligence or willful misconduct of such Agent, (b) the inaccuracy of any representation or warranty or breach of any covenant given by such Agent in Section 7.4 or Section 9.1 hereof or in the Lease, (c) in the case of such Agent's handling of funds, the failure to act with the same care as such Agent uses in handling its own funds or (d) any taxes, fees or other charges payable by such Agent based on or measured by any fees, commissions or compensation received by it for acting as an Agent in connection with the transactions contemplated by the Operative Documents.

    SECTION 16.5.  Independent Credit Investigation.  Each Participant by entering into this Agreement agrees that it has, independently and without reliance on either Agent or any other Participant and based on such documents and information as it has deemed appropriate, made its own credit analysis of Lessee and its own decision to enter into this Agreement and each of the other Operative Documents to which it is a party and that it will, independently and without reliance upon either Agent or any other Participant, and based on such documents and information as it shall deem appropriate at the time, continue to make its own analysis and decisions in taking action under this Agreement and any related documents to which it is a party. Neither Agent shall be required to keep itself informed as to the performance or observance by Lessee of any other document referred to (directly or indirectly) or provided for herein or to inspect the properties or books of Lessee. Except for notices or statements which an Agent is expressly required to give under this Agreement and for notices, reports and other documents and information expressly required to be furnished to an Agent alone (and not also to each Participant, it being understood that such Agent shall forward copies of same to each Participant) hereunder or under any other Operative Agreement, such Agent shall not have any duty or responsibility to provide any Participant with copies of notices or with any credit or other information concerning the affairs, financial condition or business of Lessee (or any of its Affiliates) that may come into the possession of such Agent or any of its Affiliates.

    SECTION 16.6.  Refusal to Act.  Except for notices and actions expressly required of an Agent hereunder and except for the performance of its covenants in Section 9.1, each Agent shall in all cases be fully justified in failing or refusing to act unless (a) it is indemnified to its reasonable satisfaction by the Participants against any and all liability and reasonable expense which may be incurred by it by reason of taking or continuing to take any such action (provided that such indemnity shall not be required to extend to liability or expense arising from any matter described in clauses (a) through (d) of Section 16.4, it being understood that no action taken by an Agent in accordance with the instructions of the Required Participants shall be deemed to constitute any such matter) and (b) it is reasonably satisfied that such action is not contrary to any Operative Document or to any Applicable Law.

    SECTION 16.7.  Resignation or Removal of an Agent; Appointment of Successor.  Subject to the appointment and acceptance of a successor Agent as provided below, either Agent may resign at any time by giving notice thereof to each Participant and Lessee. Upon any such resignation, the Required Participants at the time of the resignation shall have the right (with the reasonable, prompt approval of Lessee unless an Event of Default shall be continuing) to appoint a successor Agent which shall be a financial institution having a combined capital and surplus of not less than $100,000,000. If, within 30 calendar days after the retiring Agent's giving of notice of resignation, a successor Agent is not so appointed and does not accept such appointment, then the retiring Agent may appoint a successor Agent and transfer to such successor Agent all rights and obligations of the retiring Agent. Such successor Agent shall be a financial institution having combined capital and surplus of not less than $100,000,000. Upon the acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent and the retiring Agent shall be discharged from duties and obligations as Agent thereafter arising hereunder and under any related document. If the retiring Agent does not appoint a successor, any Participant shall be entitled to apply to a court of competent jurisdiction for such appointment, and such court may thereupon appoint a successor to act until such time, if any, as a successor shall have been appointed as above provided.

    SECTION 16.8.  Separate Agent Lessor.  The Required Participants may, and if they fail to do so at any time when they are so required, Agent Lessor may, for the purpose of meeting any legal requirements of any jurisdiction in which the Premises or Collateral may be located, appoint one or more individuals or corporations either to act as co-agent jointly with Agent Lessor or to act as separate agent of all or any part of the Premises or Collateral or the Lease, and vest in such individuals or corporations, in such capacity, such title to the Premises or Collateral or the Lease or any part thereof, and such rights or duties as Agent Lessor may consider necessary or desirable. Agent Lessor shall not be required to qualify to do business in any jurisdiction where it is not now so qualified. Agent Lessor shall execute, acknowledge and deliver all such instruments as may be required by any such co-agent or separate agent more fully confirming such title, rights or duties to such co-agent or separate agent. Upon the acceptance in writing of such appointment by any such co-agent or separate agent, it, she or he shall be vested with such interest in the Premises or Collateral and the Lease or any part thereof, and with such rights and duties, not inconsistent with the provisions of the Operative Documents, as shall be specified in the instrument of appointment, jointly with Agent Lessor (except insofar as local law makes it necessary for any such co-agent or separate agent to act alone), subject to all terms of the Operative Documents. Any co-agent or separate agent, to the fullest extent permitted by legal requirements of the relevant jurisdiction, at any time, by an instrument in writing, shall constitute Agent Lessor its attorney-in-fact and agent, with full power and authority to do all acts and things and to exercise all discretion on its behalf and in its name. If any co-agent or separate agent shall die, become incapable of acting, resign or be removed, the interest in the Premises or Collateral and the Lease and all rights and duties of such co-agent or separate agent shall, so far as permitted by law, vest in and be exercised by Agent Lessor, without the appointment of a successor to such co-agent or separate agent.

    SECTION 16.9.  Termination of Agency.  The agency created hereby shall terminate upon the final disposition by Agent Lessor of all Collateral at any time subject hereto and the final distribution by the Administrative Agent of all moneys or other property or proceeds received pursuant to the Lease in accordance with its terms, provided that at such time Lessee shall have complied fully with all the terms hereof.

    SECTION 16.10.  MERGER.  THIS WRITTEN AGREEMENT TOGETHER WITH THE OTHER OPERATIVE DOCUMENTS REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.

    THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.

    SECTION 16.11.  Limitations.  It is expressly understood and agreed by and among the parties hereto that, except as otherwise provided herein or in the other Operative Documents: (a) this Participation Agreement and the other Operative Documents to which either Agent is a party are executed by such Agent, not in its individual capacity (except with respect to the representations and covenants of Agent Lessor in Sections 7.4  and 9.1), but solely as Agent Lessor or the Administrative Agent, as applicable, under the Operative Documents in the exercise of the power and authority conferred and vested in it as such Agent; (b) each and all of the undertakings and agreements herein made on the part of such Agent are each and every one of them made and intended not as personal undertakings and agreements by such Agent, or for the purpose or with the intention of binding such Agent personally, but are made and intended for the purpose of binding only the Collateral unless expressly provided otherwise; (c) actions to be taken by such Agent pursuant to its obligations under the Operative Documents may, in certain circumstances, be taken by such Agent only upon specific authority of the Participants; (d) nothing contained in the Operative Documents shall be construed as creating any liability on such Agent, individually or personally, or any incorporator or any past, present or future subscriber to the capital stock of, or stockholder, officer or director, employee or agent of, such Agent to perform any covenants either express or implied contained herein, all such liability, if any, being expressly waived by the other parties hereto and by any Person claiming by, through or under them; and (e) so far as such Agent, individually or personally, is concerned, the other parties hereto and any Person claiming by, through or under them shall look solely to the Collateral and Lessee for the performance of any obligation under any of the instruments referred to herein; provided, however, that nothing in this Section 16.11 shall be construed to limit in scope or substance the general corporate liability of such Agent in respect of its gross negligence or willful misconduct or with respect to Agent Lessor those representations, warranties and covenants of Agent in its individual capacity set forth herein or in any of the other agreements contemplated hereby. Nothing in this Section 16.11  shall affect the duties, liabilities and obligations of Agent Lessor or the Administrative Agent in its additional capacity as Participant.

    SECTION 16.12.  Confidentiality.  Each Participant and each Agent shall maintain in confidence and not disclose to any Person any non-public information furnished to it pursuant to this Agreement or any other Operative Agreement and designated by the Lessee in writing as such ("Confidential Information") without the prior consent of the Lessee, subject to each Participant's and each Agent's (a) obligation to disclose any Confidential Information pursuant to a request or order under applicable laws and regulations or pursuant to a subpoena or other legal process, (b) right to disclose any Confidential Information to other Participants, to bank examiners, to its affiliates, auditors and counsel, and to any prospective transferee pursuant to Section 11  approved by the Lessee (if such approval is required pursuant to Section 11), (c) right to disclose any Confidential Information in connection with any litigation or dispute or the exercise of any remedy hereunder involving either Agent or the Participants and the Lessee or any of its Subsidiaries; provided, however, that Confidential Information disclosed pursuant to clause (b) or (c)  of this sentence shall be so disclosed subject to such procedures as are reasonably calculated to maintain the confidentiality thereof and (d) right to disclose any Confidential Information to any rating agency rating the Commercial Paper. Notwithstanding the foregoing provisions of this Section 16.12, (a) the foregoing obligation of confidentiality shall not apply to any Confidential Information that was known to such Agent, Participant or any of their respective affiliates prior to the time it received such Confidential Information from the Lessee pursuant to this Agreement or any other Operative Agreement, other than as a result of the disclosure thereof by a Person who, to the knowledge or reasonable belief of such Participant, was prohibited from disclosing it by any duty of confidentiality arising (under this Agreement or otherwise) by contract or law, and (b) the foregoing obligation of confidentiality shall not apply to any Confidential Information that becomes part of the public domain independently of any act of such Participant not permitted hereunder or when identical or substantially similar information is received by such Participant, without restriction as to its disclosure or use, from a Person who was not prohibited from disclosing it by any duty of confidentiality arising (under this Agreement or otherwise) by contract or law. The obligations of each Participant and each Agent under this Section 16.12 shall survive the termination of this Agreement and the payment of any Certificates and all other amounts payable thereunder.

    IN WITNESS WHEREOF, the parties hereto have caused this Participation Agreement to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.

  ADC TELECOMMUNICATIONS, INC., as Lessee
 
 		  
By:  /S/ GOKUL HEMMADY
  Name:  Gokul Hemmady
  Title:  Vice President/Treasurer
 
 		  
LEASE PLAN NORTH AMERICA, INC., not its individual capacity, except as expressly stated herein, but solely as Agent Lessor
 
 		  
By:  /S/ BLAKE J. LACHER
  Name:  Blake J. Lacher
  Title:  Vice President
 
 		  
By:
  Name:
  Title:
 
 		  
AMSTERDAM FUNDING CORPORATION, as a Participant
 
 		  
By:  /S/ BERNARD J. ANGELO
  Name:  Bernard J. Angelo
  Title:  Vice President

 
 		  
ABN AMRO BANK N.V., as a Participant
 
 		  
By:  /S/ PETER L. EATON
  Name:  Peter L. Eaton
  Title:  Group Vice Presidentr
 
 		  
By:  /S/ JOHN P. RICHARDSON
  Name:  John P. Richardson
  Title:  Vice President
 
 		  
ABN AMRO BANK N.V., not in its individual capacity but solely as the Administrative Agent
 
 		  
By:  /S/ PETER L. EATON
  Name:  Peter L. Eaton
  Title:  Group Vice President
 
 		  
By:  /S/ JOHN P. RICHARDSON
  Name:  John P. Richardson
  Title:  Vice President

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TABLE OF CONTENTS
PARTICIPATION AGREEMENT
ARTICLE I DEFINITIONS; INTERPRETATION
ARTICLE II DOCUMENT CLOSING DATE
ARTICLE III PURCHASE AND LEASE OF PREMISES; FUNDING OF ADVANCES

ARTICLE IV FEES
ARTICLE V CERTAIN INTENTIONS OF THE PARTIES
ARTICLE VI CONDITIONS PRECEDENT TO ADVANCES; COMPLETION DATE CONDITIONS

ARTICLE VII REPRESENTATIONS

ARTICLE VIII COVENANTS OF LESSEE

ARTICLE IX OTHER COVENANTS AND AGREEMENTS
ARTICLE X LESSEE DIRECTIONS; REPLACEMENT OF PARTICIPANTS
ARTICLE XI TRANSFERS OF PARTICIPANTS' INTERESTS
ARTICLE XII INDEMNIFICATION

ARTICLE XIII LIMITATION ON RECOURSE LIABILITY DURING CONSTRUCTION PERIOD
ARTICLE XIV LIBOR PROVISIONS; ADDITIONAL COSTS
ARTICLE XV MISCELLANEOUS

ARTICLE XVI AGENTS