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Participation Agreement - Adobe Systems Inc., Selco Service Corp., Victory Receivables Corp., Bank of Tokyo-Mitsubish Ltd., Keybank N.A. and Key Global Finance

EXECUTION COPY

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PARTICIPATION AGREEMENT

dated as of September 26, 2001

among

ADOBE SYSTEMS INCORPORATED
as Lessee and Construction Agent,

SELCO SERVICE CORPORATION
Doing Business in California as
OHIO SELCO SERVICE CORPORATION) as Lessor,

VICTORY RECEIVABLES CORPORATION
as Note Purchaser,

THE VARIOUS FINANCIAL INSTITUTIONS PARTIES HERETO
as Liquidity Banks,

THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH,
as Conduit Agent

and

KEYBANK NATIONAL ASSOCIATION
as Administrative Agent,

with

KEY GLOBAL FINANCE,
as Structuring Agent.

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Lease Financing of Office Tower
Located in City of San Jose, Santa Clara County, California
for Adobe Systems Incorporated

Documentation Date: September 26, 2001

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TABLE OF CONTENTS

				Page
ARTICLE I DEFINITIONS; INTERPRETATION
SECTION 1.1		Definitions; Interpretation		2
ARTICLE II DOCUMENTATION DATE
SECTION 2.1		Documentation Date		2
(a)		Participation Agreement		2
(b)		Lease		2
(c)		Construction Agency Agreement		2
(d)		Note Purchase Agreement		2
(e)		Note		2
(f)		Liquidity Documents; Available Liquidity Commitments		2
(g)		Assignment of Lease, Rent and CAA		2
(h)		Security and Assignment Agreement		2
(i)		Corporate Documents of the Lessee and the Construction Agent		2
(j)		Corporate Documents of the Lessor		3
(k)		Opinion of Counsel to the Construction Agent and the Lessee		3
(l)		Opinion of Counsel to the Lessor		4
(m)		Representations and Warranties		4
(n)		No Default		4
(o)		Governmental Approvals		4
(p)		Litigation		4
(q)		Requirements of Law		4
(r)		Note Purchase Agreement		4
ARTICLE III FUNDING OF ADVANCES
SECTION 3.1		Advances		5
(a)		Advances		5
(b)		Limitation on Advances		5
(c)		Acknowledgment of Advances		5
(d)		Cost Overruns		6
(e)		Force Majeure Costs		6
SECTION 3.2		Lessor's Commitment		6
SECTION 3.3		Note Purchaser's Commitment		6
SECTION 3.4		Procedures for Advances		6
(a)		General Procedures		6
(b)		Amount of Advance; Funding Dates		7
(c)		Use of Proceeds of Advances		7
(d)		Delivery of Funding Request to Lenders		7
SECTION 3.5		Facility Fees, Capitalized Interest and Capitalized Yield		7
SECTION 3.6		Completion Date Advances		8
SECTION 3.7		Commitment of the Liquidity Banks		8

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ARTICLE IV CALCULATION OF BASIC RENT; YIELD; INTEREST; FEES; PAYMENT
SECTION 4.1		Calculation of Basic Rent		8
SECTION 4.2		Interest on Loans and Liquidity Loans		8
SECTION 4.3		Yield		9
SECTION 4.4		Computation of Basic Rent and Yield		10
SECTION 4.5		Prepayments		10
(a)		Voluntary Prepayments		10
(b)		Mandatory Prepayments		10
(c)		Notice		10
SECTION 4.6		Fees		10
(a)		Facility Fees		11
(b)		Upfront Fee		11
(c)		Note Purchaser Unused Fee		11
SECTION 4.7		Place and Manner of Payments		11
SECTION 4.8		Certain Rights of Participants		11
SECTION 4.9		Accounting Terms; Computations		12
SECTION 4.10		Payments of Rent		12
SECTION 4.11		Late Payments; Default Rate		12
SECTION 4.12		Mandatory Repayment		12
ARTICLE V CERTAIN INTENTIONS OF THE PARTIES
SECTION 5.1		Intent		13
SECTION 5.2		Amounts Due Under Lease		13
ARTICLE VI CONDITIONS TO CLOSING DATE; FUNDING DATES; COMPLETION DATE
SECTION 6.1		Closing Date		14
(a)		Funding Request		14
(b)		Ground Lease		14
(c)		Memorandum of Lease		14
(d)		Mortgages		14
(e)		Financing Statements; UCC, Tax and Judgment Lien Searches		14
(f)		Recordation of Ground Lease, Memorandum of Lease, Lessor Mortgage, UCC Financing Statements and Assignment of Lease, Rent and CAA		15
(g)		Construction Contract		15
(h)		Consent and Acknowledgments		15
(i)		Title Insurance		15
(j)		Architect's Certificate		15
(k)		Construction Budget		15
(l)		Governmental Approvals		16
(m)		Authorized Officer's Certificates		16

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(n)		Opinions of Counsel		16
(o)		Appraisal		16
(p)		Evidence of Insurance		16
(q)		Environmental Audit		16
(r)		Delivery of Financial Statements		17
(s)		Survey		17
(t)		Litigation		17
(u)		Representations and Warranties		17
(v)		Limitation on Advances		17
(w)		Taxes		17
(x)		No Default		17
(y)		Fees		17
(z)		Note Purchase Agreement		17
(aa)		Liquidity Documents		17
SECTION 6.2		Funding Dates		18
(a)		Funding Request		18
(b)		Representations and Warranties		18
(c)		No Default		18
(d)		Fees		18
(e)		Limitation on Advances		18
(f)		Taxes		18
(g)		Note Purchase Agreement		18
(h)		Liquidity Documents		18
SECTION 6.3		Conditions to Completion Date		18
SECTION 6.4		Lessee's Covenants in Connection with Completion		19
(a)		Title Update		19
(b)		Permits		19
(c)		Permanent Certificate of Occupancy		19
(d)		Certain Construction Agency Agreement Covenants		19
ARTICLE VII DISTRIBUTIONS
SECTION 7.1		Basic Rent		19
SECTION 7.2		Purchase Payments by the Lessee		19
SECTION 7.3		Payment of Maximum Recourse Amount		20
SECTION 7.4		Sales Proceeds of Remarketing of Property		20
SECTION 7.5		Certain Construction Period Payments		21
SECTION 7.6		Distribution of Payments After Lease Event of Default or CAA Event     of Default		22
SECTION 7.7		Casualty and Condemnation Amounts		22
SECTION 7.8		Liquidated Damages; Payments Under Performance Bonds		23
SECTION 7.9		Supplemental Rent		23
SECTION 7.10		Other Payments		23

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SECTION 7.11		Order of Application		23
SECTION 7.12		Payments to Account		23
SECTION 7.13		Pro Rata Treatment		23
SECTION 7.14		Sharing of Payments		24
ARTICLE VIII REPRESENTATIONS
SECTION 8.1		Representations of the Obligors		24
(a)		Due Incorporation, Qualification, etc		24
(b)		Authority		24
(c)		Enforceability		25
(d)		Non-Contravention		25
(e)		Approvals		25
(f)		No Violation or Default		25
(g)		Litigation		25
(h)		Title; Possession Under Leases		25
(i)		Financial Statements		26
(j)		Equity Securities		26
(k)		No Agreements to Sell Assets, Etc		26
(l)		Employee Benefit Plans		26
(m)		Other Regulations		27
(n)		Patent and Other Rights		27
(o)		Governmental Charges		27
(p)		Margin Stock		27
(q)		Subsidiaries, Etc		27
(r)		Solvency, Etc		27
(s)		Catastrophic Events		27
(t)		No Material Adverse Effect		28
(u)		Accuracy of Information Furnished		28
(v)		Appraisal Data		28
(w)		Construction of Property		28
(x)		No Proceedings with Respect to Property		28
(y)		Separate Parcel		28
(z)		Utilities		28
(aa)		Access, Rights-of-Way, etc		29
(bb)		Necessary Permits		29
(cc)		Title		29
(dd)		Perfection of Liens		29
(ee)		No Transfer Taxes		29
(ff)		No Casualty		29
(gg)		Insurance		29
(hh)		Flood Hazard Areas		29
(ii)		Notes, Offer of Securities, etc		30
SECTION 8.2		Representations of the Lessee and the Construction Agent with Respect to       each Funding Date		30
(a)		Representations and Warranties		30
(b)		Improvements		30
(c)		Liens		30

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(d)		Advance		30
SECTION 8.3		Warranties and Representations of the Lessor		30
SECTION 8.4		Representations of the Lenders		32
(a)		Source of Funds		32
(b)		Status		32
(c)		Acquisition for Investment		32
(d)		Lessor Liens		32
(e)		Offer of Securities, etc		32
(f)		No Registration		32
(g)		Institutional Investor		32
ARTICLE IX COVENANTS
SECTION 9.1		Affirmative Covenants		33
(a)		Financial Statements, Reports, etc		33
(b)		Books and Records		34
(c)		Inspections		34
(d)		Insurance		34
(e)		Governmental Charges and Other Indebtedness		35
(f)		Use of Proceeds		35
(g)		General Business Operations		35
(h)		Pari Passu Ranking		35
(i)		Separate Parcel		35
(j)		Notices In Respect of Ground Lease, etc		35
SECTION 9.2		Negative Covenants		35
(a)		Indebtedness		35
(b)		Liens		36
(c)		Asset Dispositions		38
(d)		Mergers, Acquisitions, Etc		38
(e)		Investments		39
(f)		Dividends, Redemptions, Etc		40
(g)		Change in Business		40
(h)		Employee Benefit Plans		41
(i)		Transactions With Affiliates		41
(j)		Accounting Changes		41
SECTION 9.3		Financial Covenants		41
(a)		Quick Ratio		41
(b)		Debt/EBITDA Ratio		41
(c)		Fixed Charge Coverage Ratio		41
ARTICLE X GROUND LEASE
SECTION 10.1		Ground Lease		42
ARTICLE XI LESSEE DIRECTIONS EXTENSION OF MATURITY DATE; LESSOR SECURITY
SECTION 11.1		Right of Lessee		42

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SECTION 11.2		Maturity Date Extension; Basic Term Extension		42
(a)		Extension of Original Maturity Date		42
(b)		Basic Term Extension		43
(c)		New Credit Decision		43
SECTION 11.3		Replacement of Non-Consenting Participants		44
SECTION 11.4		Election to Refinance Loans		44
SECTION 11.5		Replacement of Note Purchaser		45
ARTICLE XII TRANSFERS OF PARTICIPANTS' INTERESTS
SECTION 12.1		Assignments by Participants		46
(a)		Assignments by Liquidity Banks		46
(b)		Assignments by Lessor		46
(c)		Effectiveness of Assignments		46
(d)		Assignments by the Note Purchaser		47
SECTION 12.2		Participations		47
SECTION 12.3		Pledge Under Regulation A		47
SECTION 12.4		Acknowledgment of Assignment of Lease, Rent and CAA		48
ARTICLE XIII INDEMNIFICATION
SECTION 13.1		General Indemnification		48
(a)		Construction Period		48
(b)		Basic Lease Term		48
(c)		Exclusions from General Indemnity		50
(d)		No Guaranty of Residual Value		50
SECTION 13.2		End of Term Indemnity		50
SECTION 13.3		Environmental Indemnity		51
SECTION 13.4		Proceedings in Respect of Claims		52
SECTION 13.5		General Tax Indemnity		53
(a)		Indemnification		53
(b)		Contests		53
(c)		Payments		55
(d)		Reports		56
(e)		Tax Ownership		56
(f)		Disclosure		56
(g)		Separate Agreement		57
SECTION 13.6		Indemnity Payments in Addition to Lease Obligations		57
SECTION 13.7		Illegality		57
SECTION 13.8		Inability to Determine Rates		57
SECTION 13.9		Increased Costs		58
SECTION 13.10		Funding Losses		58

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SECTION 13.11		Capital Requirements		59
SECTION 13.12		Mitigation		59
SECTION 13.13		Taxes on Payments		59
(a)		Payments Free of Taxes		59
(b)		Withholding Exemption Certificates		61
(c)		Mitigation		61
(d)		Tax Returns		61
SECTION 13.14		Survival		61
ARTICLE XIV PAYMENT OF CERTAIN EXPENSES
SECTION 14.1		Payment of Costs and Expenses		62
SECTION 14.2		Brokers' Fees and Stamp Taxes		62
SECTION 14.3		Note Purchase Agreement and Related Obligations		62
ARTICLE XV THE ADMINISTRATIVE AGENT
SECTION 15.1		Appointment		62
SECTION 15.2		Delegation of Duties		63
SECTION 15.3		Exculpatory Provisions		63
SECTION 15.4		Reliance by Administrative Agent		63
SECTION 15.5		Notice of Default		63
SECTION 15.6		Non-Reliance on Administrative Agent and Other Participants		64
SECTION 15.7		Indemnification		64
SECTION 15.8		Administrative Agent in Its Individual Capacity		64
SECTION 15.9		Successor Administrative Agent		65
SECTION 15.10		Eligibility of the Administrative Agent		65
ARTICLE XVI MISCELLANEOUS
SECTION 16.1		Survival of Agreements		65
SECTION 16.2		No Broker, etc		65
SECTION 16.3		Notices		66
SECTION 16.4		Counterparts		66
SECTION 16.5		Amendments		66
SECTION 16.6		Headings, etc		67
SECTION 16.7		Parties in Interest		67
SECTION 16.8		GOVERNING LAW		67
SECTION 16.9		Severability		68

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SECTION 16.10		Liability Limited		68
SECTION 16.11		Further Assurances		68
SECTION 16.12		SUBMISSION TO JURISDICTION		69
SECTION 16.13		Setoff		69
SECTION 16.14		WAIVER OF JURY TRIAL		69
SECTION 16.15		Limitations on Recourse to Note Purchaser		69
SECTION 16.16		Bankruptcy		70
SECTION 16.17		Assignment of Note Purchaser's Interest in Note Purchase Agreement to       Liquidity Banks		70

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SCHEDULES
SCHEDULE I		Commitments
SCHEDULE II		Notice Information, Wire Instructions, and Funding Offices
SCHEDULE III		Description of Land
SCHEDULE IV		Disclosure Schedule
EXHIBITS
EXHIBIT A-1		Form of Closing Date Notice
EXHIBIT A-2		Form of Advance Request
EXHIBIT B		Form of Authorized Officer's Certificate of Construction Agent and Lessee
EXHIBIT C		Form of Consent and Acknowledgment
EXHIBIT D		Form of Compliance Certificate
EXHIBIT E-1		Form of Lessor Mortgage
EXHIBIT E-2		Form of Lender Mortgage
EXHIBIT F-1		Form of Opinion of Special Counsel to Lessee and Construction Agent
EXHIBIT F-2		Form of Internal Opinion of Lessee and Construction Agent
EXHIBIT F-3		Form of Opinion of Special Counsel to Lessor
EXHIBIT F-4		Form of Opinion of Thompson Hine & Flory LLP
EXHIBIT F-5		Form of Local Counsel to Lessee and Construction Agent
APPENDIX A		Definitions

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PARTICIPATION AGREEMENT

        THIS PARTICIPATION AGREEMENT (this "Participation Agreement"), dated as of September 26, 2001, is entered into by and among ADOBE SYSTEMS INCORPORATED, a Delaware corporation ("Adobe"), as the Lessee (in such capacity, the "Lessee"); Adobe, as the Construction Agent (in such capacity, the "Construction Agent"); SELCO SERVICE CORPORATION, an Ohio corporation doing business in California as Ohio SELCO Service Corporation, as Lessor (together with its permitted successors and assigns, the "Lessor"); VICTORY RECEIVABLES CORPORATION, a Delaware Corporation, as the Note Purchaser (together with its permitted successors and assigns, the "Note Purchaser"); THE VARIOUS FINANCIAL INSTITUTIONS AS ARE OR MAY FROM TIME TO TIME BECOME PARTIES TO THE LIQUIDITY AGREEMENT referenced herein, as the Liquidity Banks (together with their respective permitted successors and assigns, the "Liquidity Banks"); THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH, as conduit agent for the Note Purchaser (the "Conduit Agent"); and KEYBANK NATIONAL ASSOCIATION, as administrative agent for the Participants (together with its permitted successors and assigns in such capacity, the "Administrative Agent").

WITNESSETH:

        WHEREAS, on the Closing Date (as defined herein),

        WHEREAS, the Construction Agent will, using the proceeds of Advances, direct the General Contractor to construct Improvements on the Land in accordance with the Construction Contract (the Lessor's interest in the Land, together with all Improvements from time to time located on the Land and all attachments and accessions thereto, collectively, the "Property"), which Property as constructed will be the property of the Lessor;

        WHEREAS, the Lessor desires to lease to the Lessee, and the Lessee desires to lease from the Lessor, the Property;

        WHEREAS, the Lessor is willing to provide the funding of a portion of the costs of (a) the construction of the Property in accordance with the Plans and Specifications therefor and (b) the Transaction Expenses incurred in connection with the transactions contemplated hereby and the Note Purchaser and Liquidity Banks are willing to provide financing for the remaining portion of the foregoing costs; and

        WHEREAS, to secure such financing (a) the Lessor will have the benefit of a first priority Lien on all of the right, title and interest of the Lessee and the Construction Agent in the Property and the Construction Documents and (b) the Lenders will have the benefit of (i) a Lien on the Lessor's right, title and interest in the Property and the Construction Documents and (ii) an assignment of certain of the Lessor's rights against the Lessee under the Lease and against the Construction Agent under the Construction Agency Agreement;

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        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 A hereto for all purposes hereof (as such Appendix A may be amended, supplemented, amended and restated or otherwise modified from time to time, "Appendix A"); and the rules of interpretation set forth in Appendix A shall apply to this Participation Agreement.

ARTICLE II

DOCUMENTATION DATE

        SECTION 2.1    Documentation Date.    The Documentation Date (the "Documentation Date") for the transactions contemplated by this Participation Agreement shall be deemed to have occurred as of the date of this Participation Agreement, subject to satisfaction of the following conditions precedent:

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All documents and instruments required to be delivered pursuant to this Section 2.1 shall be or deemed to be delivered at the offices of Jones, Day, Reavis & Pogue, 599 Lexington Avenue, New York, New York, or at such other location as may be determined by the Administrative Agent, the Participants and the Lessee, and the Administrative Agent and each Participant hereby agree that delivery of any document or instrument to such offices or other location shall constitute delivery to the Administrative Agent and each Participant for all purposes of the Operative Documents.

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ARTICLE III

FUNDING OF ADVANCES

        SECTION 3.1    Advances.    

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        SECTION 3.2    Lessor's Commitment.    Subject to the conditions and terms hereof, the Lessor shall make available to the Lessee at the request of the Lessee from time to time during the Commitment Period on any Funding Date an amount (together with any amounts advanced by the Lessor pursuant to Section 3.1(e), each a "Lessor Amount") in immediately available funds equal to the Lessor Percentage of the amount of the Advance being funded on such Funding Date. Notwithstanding any other provision hereof, the Lessor shall not be obligated to make available any Lessor Amount if after giving effect to the making of the proposed Lessor Amount, the aggregate outstanding Lessor Amounts of the Lessor would exceed the Lessor's Commitment.

        SECTION 3.3    Note Purchaser's Commitment.    Subject to the conditions and terms hereof and of the Note Purchase Agreement and provided that all conditions to the related Advances by the Lessor have been satisfied on and as of each such date: on the Documentation Date, the Note Purchaser shall purchase the Note or the Notes and on each subsequent Funding Date during the Commitment Period shall advance funds under the Notes in an aggregate amount in immediately available funds equal to the Loan Percentage of the amount of the Advance being funded on such Funding Date. Notwithstanding any other provision hereof, the Note Purchaser shall not be obligated to advance funds under the Note or the Notes if, after giving effect to the proposed advance of funds, the aggregate outstanding amount under the Notes would exceed the Note Purchaser's Commitment.

        SECTION 3.4    Procedures for Advances.

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        SECTION 3.5    Facility Fees, Capitalized Interest and Capitalized Yield.    During the Commitment Period,

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        SECTION 3.6    Completion Date Advances.    The Construction Agent may request an Advance pursuant to Section 3.4 on the Completion Date for the Property (such Advance, a "Completion Date Advance") for the purpose of paying Construction Costs that the Construction Agent, in its reasonable good faith judgment, expects to become payable after the Completion Date; provided, however, that (a) the Construction Agent shall deliver a Funding Request for the Completion Date Advance in accordance with the procedures set forth in Section 3.4, (b) the conditions set forth in Section 3.1(b) shall not be violated, (c) all of the applicable conditions set forth in Article VI shall have been satisfied or waived and (d) the proceeds of such Advance shall be used solely to pay Construction Costs.

        SECTION 3.7    Commitment of the Liquidity Banks.    Subject to the terms and conditions set forth herein and in the other Operative Documents, (a) each Liquidity Bank shall severally, but not jointly, make available Liquidity Loans to the Note Purchaser in an aggregate principal amount not to exceed its Liquidity Percentage of the Note Purchaser's Commitment, plus all accrued discount on all related Commercial Paper (as such amount may be adjusted pursuant to the Liquidity Agreement) less the aggregate principal amount of outstanding Percentage Interest purchased by the Liquidity Banks pursuant to the Asset Purchase Agreement, (b) each Liquidity Bank hereby agrees, on a several but not joint basis, that, to the extent the Note Purchaser shall not fund one or more Notes due to a Program Termination Event or due to any other reason, then such Liquidity Bank shall fund a portion of each such Note in proportion to its percentage of Liquidity Percentage in effect at such time, subject to satisfaction or waiver of the applicable conditions precedent set forth in this Participation Agreement, and (c) each of the Liquidity Banks shall, at the times set forth herein and therein, duly perform their respective obligations set forth herein and under the applicable Operative Documents to which such Person is a party; provided, however, that no Liquidity Bank shall be obligated to make any Liquidity Loan or fund any Note (or any portion thereof) if, after giving effect thereto, the sum of (i) the aggregate outstanding principal amount of such Liquidity Bank's Liquidity Loans and (ii) the aggregate amounts funded by such Liquidity Bank under the Notes, would exceed such Liquidity Bank's Liquidity Commitment.

ARTICLE IV

CALCULATION OF BASIC RENT; YIELD; INTEREST; FEES; PAYMENT

        SECTION 4.1    Calculation of Basic Rent.    Basic Rent shall be payable from time to time on each Rent Payment Date during the Lease Term in an amount equal to the sum of (a) all interest then due on the Loans, as calculated in accordance with Sections 4.2 and 4.11 and (b) all Yield then due on the Lessor Amounts, as calculated in accordance with Sections 4.3 and 4.11.

        SECTION 4.2    Interest on Loans and Liquidity Loans.    

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        SECTION 4.3    Yield.    

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        SECTION 4.4    Computation of Basic Rent and Yield.    Interest on the Loans and Yield on the Lessor Amounts shall be calculated on the basis of a 360-day year for the actual days elapsed at all times that such Interest Rate or Yield Rate, as the case may be, is determined by reference to the CP Rate or the BBA LIBO Rate and, at all other times, on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. Any change in the interest rate on the Loans or the Yield Rate resulting from a change in the CP Rate, Base Rate or BBA LIBO Rate shall become effective as of the opening of business on the day on which such change becomes effective. Each determination of the Interest Rate or Yield Rate by the Administrative Agent pursuant to any provision of this Participation Agreement or any other Operative Document shall be binding on the Obligors and the Participants in the absence of manifest error; provided, that, unless the Note Purchaser has made a complete assignment pursuant to the Asset Purchase Agreement, the determination of the Note Interest Amount shall be made by the Conduit Agent, which determination shall be binding on the Obligors and the Participants in the absence of manifest error.

        SECTION 4.5    Prepayments.    

        SECTION 4.6    Fees.    The Lessee agrees to pay the fees set forth in this Section 4.6 and the other fees separately agreed to by the Lessee and the Structuring Agent (collectively, the "Fees"). Fees that are due and payable during the Commitment Period shall, upon satisfaction of the applicable conditions set forth in Article VI, be payable through Advances made by the Lessor pursuant to Section 3.4 for the purpose of paying Transaction Expenses; otherwise, the Fees shall be due and payable by Lessee on the date when due without further notice.

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        SECTION 4.7    Place and Manner of Payments.    Except as otherwise specifically provided herein, all payments hereunder shall be made to the Administrative Agent (as assignee of the Lessor pursuant to the Assignment of Lease, Rent and CAA) in Dollars in immediately available funds, without offset, deduction, counterclaim or withholding of any kind, to the Account not later than 2:00 p.m. (New York time) on the date when due, and the Lessor hereby directs the Lessee to pay to the Administrative Agent the Rent from time to time due under the Lease for distribution by the Administrative Agent in accordance with Article VII. Payments received after such time shall be deemed to have been received on the next succeeding Business Day. The Lessee shall, at the time it makes any payment under any Operative Document, specify to the Administrative Agent the Loans and Lessor Amounts, Fees or other amounts payable by the Lessee hereunder to which such payment is to be applied (and in the event that it fails so to specify, or if such application would be inconsistent with the terms hereof, the Administrative Agent shall distribute such payment to the Participants in such manner as the Participants may determine to be appropriate in respect of obligations owing by the Lessee. The Administrative Agent will distribute such payments to the Participants in accordance with Article VII if any such payment is received prior to 2:00 p.m. (New York time) on a Business Day in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent will distribute such payment to the Participants on the next succeeding Business Day. Whenever any payment hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day (subject to accrual of interest and fees for the period of such extension), except that in the case of LIBOR Loans/Lessor Amounts, if the extension would cause the payment to be made in the next following calendar month, then such payment shall instead by made on the preceding Business Day.

        SECTION 4.8    Certain Rights of Participants.    The Required Participants shall have the right, upon the occurrence of any Limited Recourse CAA Event of Default or Unwind Event, to direct the Administrative Agent and the Lessor to, and upon receipt of any such directions such Persons shall (a) use reasonable commercial efforts to sell the Property to a third-party purchaser and/or (b) engage an

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Appraiser to provide an estimate of the cost to complete any Improvements thereon, in each case as directed by the Required Participants in their sole discretion.

        SECTION 4.9    Accounting Terms; Computations.    Unless otherwise indicated in this Participation Agreement or any other Operative Document, all accounting terms used in this Participation Agreement or any other Operative Document shall be construed, and all accounting and financial computations hereunder or thereunder shall be computed, in accordance with GAAP. If GAAP changes during the term of this Participation Agreement such that any covenants contained herein would then be calculated in a different manner or with different components, the Lessee, the Participants and the Administrative Agent agree to negotiate in good faith to amend this Participation Agreement in such respects as are necessary to conform those covenants as criteria for evaluating the Lessee's financial condition to substantially the same criteria as were effective prior to such change in GAAP; provided, however, that, until the Lessee, the Participants and the Administrative Agent so amend this Agreement, all such covenants shall be calculated in accordance with GAAP as in effect immediately prior to such change.

        SECTION 4.10    Payments of Rent.    Notwithstanding anything to the contrary contained herein or in any other Operative Document, except as provided for in the following sentence and excluding amounts payable by other Persons that the Lessee is required to pay over to the Lessor, the Administrative Agent or any Lender, all amounts payable by the Lessee during the Construction Period to the Administrative Agent, the Lessor, any Lender or the Structuring Agent shall, solely to the extent constituting Construction Costs under clauses (a) through (j) of the definition thereof, be payable solely from Advances pursuant to the terms and conditions hereof (including without limitation, the conditions set forth in Section 3.1(b)). All payments or other amounts (whether or not accruing during the Construction Period) (a) that do not constitute such Construction Costs or which are required to be made by the Lessee pursuant to Article XIII, or (b) subject to the limitations of Section 5.4 of the Construction Agency Agreement (to the extent applicable), which are payable by the Lessee pursuant to any of Article XV, XVI or XVIII of the Lease, shall be the direct full faith and credit recourse obligations of the Lessee and shall not be payable with Advances.

        SECTION 4.11    Late Payments; Default Rate.    If all or any portion of (i) the principal amount of any Loan, (ii) any interest payable on any Loan, (iii) any Lessor Amount, (iv) any Yield payable on any Lessor Amount or (v) any other amount payable to any Lender or Lessor hereunder (whether in respect of interest, Fees or other amounts) shall not be paid when due (whether at the stated maturity thereof, by acceleration or otherwise), then such overdue amount shall bear interest, payable on demand, at a rate per annum that is equal to the Default Rate. Without duplication of the foregoing, upon the occurrence and during the continuance of any Lease Event of Default or CAA Event of Default, the principal of the Loans and the Lessor Amounts and any other amounts owing to the Participants or the Administrative Agent hereunder or under the other Operative Documents shall bear interest, payable on demand, at a rate per annum that is equal to the Default Rate.

        SECTION 4.12    Mandatory Repayment.    If the Closing Date has not occurred prior to November 30, 2001 then, on November 30, 2001, (a) all outstanding Loans and Lessor Amounts, together with all accrued interest and Yield thereon, all accrued and unpaid Fees, and all other amounts owing to the Administrative Agent, the Participants, the Conduit Agent and the Program Administrator under the Operative Documents shall automatically become due and payable on such date, (b) the Lessee shall, not later than 2:00 p.m. (New York time) on November 30, 2001, pay to the Administrative Agent an amount equal to the sum of (i) the then outstanding Property Cost (including the Special Advance and all Capitalized Interest and Capitalized Yield with respect thereto), (ii) all accrued and unpaid interest on the Loans and Yield on the Lessor Amounts, (iii) all accrued and unpaid Fees owing under the Operative Documents and (iv) any other amounts (including any amounts payable pursuant to Article XIII or XIV) payable by the Lessee under the Operative Documents, and (c) the Administrative Agent shall distribute the amounts received by it to the Participants and the other parties hereto in accordance with Article VII.

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ARTICLE V

CERTAIN INTENTIONS OF THE PARTIES

        SECTION 5.1    Intent.    

        SECTION 5.2    Amounts Due Under Lease.    Anything else herein or elsewhere to the contrary notwithstanding, it is the intention of the Lessee, the Lessor and the Lenders that: (a) the amount and timing of installments of Basic Rent due and payable from time to time from the Lessee under the Lease

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shall be equal to the aggregate payments due and payable as interest on the Loans and Yield on the Lessor Amounts on each Rent Payment Date; (b) if the Lessee elects the Purchase Option or becomes obligated to purchase the Property under the Lease or the Construction Agency Agreement, then the Loans, the Lessor Amounts, all accrued and unpaid interest, Yield and Facility Fees and all other obligations of the Lessee owing to the Administrative Agent, the Lessor and the Lenders shall be due and payable in full by the Lessee on the date set forth in the Construction Agency Agreement or the Lease, as applicable; (c) if the Lessee properly elects the Remarketing Option, the Lessee shall only be required to pay to the Lessor the proceeds of the sale of the Property, amounts payable pursuant to clause (i) of Section 20.1(m) of the Lease (not to exceed the Maximum Recourse Amount) and any amounts due pursuant to Article XIII hereof and Section 20.2 of the Lease; (d) upon the occurrence of a Lease Event of Default or a CAA Event of Default other than a Limited Recourse CAA Event of Default that results in an acceleration of the Lessee's obligation to purchase the Property or pay the Property Cost, the amounts then due and payable by the Lessee under the Lease shall include all amounts necessary to pay in full the Property Costs plus all other amounts then due from the Lessee under the Operative Documents; and (e) if the Lessee elects to purchase or is required to purchase the Property pursuant to Section 15.1, 16.2(e) or Article XVIII of the Lease or Section 6.1 or 6.2 of the Construction Agency Agreement, the amounts then due and payable by the Lessee shall include all amounts necessary to pay the Property Balance of such Property.

ARTICLE VI

CONDITIONS TO CLOSING DATE; FUNDING DATES; COMPLETION DATE

        SECTION 6.1    Closing Date.    The obligation of the Lessor to make available any related Lessor Amount on the Closing Date and the obligation of each Lender to make any related Loan on the Closing Date, are subject to satisfaction or waiver of the following conditions precedent:

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All documents and instruments required to be delivered pursuant to this Section 6.1 shall be or deemed to be delivered at the offices of Jones, Day, Reavis & Pogue, 599 Lexington Avenue, New York, New York 10022, or at such other location as may be determined by the Administrative Agent, the Participants and the Lessee, and the Administrative Agent and each Participant hereby agree that delivery of any document or instrument to such offices or other location shall constitute delivery to the Administrative Agent and each Participant for all purposes of the Operative Documents.

        SECTION 6.2    Funding Dates.    The obligations of the Lessor to make (i) the Special Advance on the Documentation Date and (ii) an Advance (but not more than one (1) per calendar month) on each Funding Date occurring after the Closing Date, the obligation of the Lessor to make any related Lessor Amount on such Funding Date, and the obligation of each Lender to make available any related Loan on such Funding Date, are subject to satisfaction or waiver of the following conditions precedent:

        SECTION 6.3    Conditions to Completion Date.    The Completion Date with respect to the Property shall be deemed to have occurred for all purposes of the Operative Documents on the date on which the

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Property is substantially completed under the Construction Contract, as certified by the Construction Agent to the Lessor and the Administrative Agent.

        SECTION 6.4    Lessee's Covenants in Connection with Completion.    The Lessee hereby covenants and agrees with each Participant that the Lessee will perform or cause to be performed the obligations set forth in this Section 6.4:

ARTICLE VII

DISTRIBUTIONS

        SECTION 7.1    Basic Rent.    Each payment of Basic Rent (and any payment of interest on overdue installments of Basic Rent) received by the Lessor or the Administrative Agent (including each payment of Basic Rent made in connection with a payment of Property Cost, Construction Recourse Amount or Maximum Recourse Amount) shall be distributed by the Administrative Agent to the Participants pro rata in accordance with, and for application to, all accrued and unpaid interest and Yield then owing on such Participant's Loans or Lessor Amounts (including, in each case, any overdue interest or Yield due to the Note Purchaser or the Lessor); provided, that if there is any shortfall in such payment of interest and Yield, the Lenders shall be paid all interest then due and owing on the Loans prior to any payment of Yield due to the Lessor.

        SECTION 7.2    Purchase Payments by the Lessee.    Any payment of the Property Cost (or, to the extent of the Property Cost, any payment of Property Balance) received by the Lessor or the Administrative Agent as a result of:

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        SECTION 7.3    Payment of Maximum Recourse Amount.    Any payment of any portion of the Property Cost (not to exceed Maximum Recourse Amount) received by the Lessor or the Administrative Agent from the Lessee pursuant to clause (i) of Section 20.1(m) of the Lease upon the exercise of the Remarketing Option shall be distributed as follows:

        SECTION 7.4    Sales Proceeds of Remarketing of Property.    Any payments received by the Lessor or the Administrative Agent as proceeds from the sale of the Property sold pursuant to the exercise of the Remarketing Option pursuant to Article XX of the Lease, together with any payment made as a result of an appraisal pursuant to Section 13.2 of this Participation Agreement, shall be distributed in the funds so received in the following order of priority:

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        SECTION 7.5    Certain Construction Period Payments.    Any payment or amount received by the Lessor or the Administrative Agent (i) following a Limited Recourse CAA Event of Default or Unwind Event (provided, that no CAA Event of Default other than a Limited Recourse CAA Event of Default shall have occurred and be continuing) or (ii) in connection with a Construction Return, in each case during the Construction Period (including any payment of Construction Recourse Amount, any awards, compensation and insurance proceeds payable in connection with any Casualty, Condemnation or Force Majeure Event received by the Lessor or the Administrative Agent with respect to the Property during the Construction Period and all proceeds received from the sale or reletting of the Property during the Construction Period following a Construction Return), shall be distributed in the following order of priority:

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        SECTION 7.6    Distribution of Payments After Lease Event of Default or CAA Event of Default.

        SECTION 7.7    Casualty and Condemnation Amounts.    Subject to Sections 7.5 and 7.6(b), any amounts received by the Administrative Agent or the Lessor as a result of a Casualty or Condemnation pursuant to Section 14.1 of the Lease or any provision of the Construction Agency Agreement shall be distributed as follows:

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        SECTION 7.8    Liquidated Damages; Payments Under Performance Bonds.    Subject to Sections 7.5 and 7.6(a), all amounts received by the Administrative Agent or the Lessor in connection with the payment of any liquidated damages under the Construction Contract, and all payments received under any performance bonds or letters of credit provided by the General Contractor pursuant to the Construction Contract, shall be held by the Administrative Agent in a segregated account as collateral security for the Obligations under the Operative Documents and, upon the occurrence of the Completion Date, shall be distributed to the Lessee; provided, however, that if (a) the Completion Date shall not have occurred on or prior to the Outside Completion Date, (b) a Construction Return shall have occurred or (c) the Construction Agency Agreement shall have been terminated prior to the Completion Date (other than in connection with a Construction Purchase), then such amounts shall be distributed as provided in Section 7.5.

        SECTION 7.9    Supplemental Rent.    All payments of Supplemental Rent received by the Administrative Agent (including all Fees, but excluding any amounts payable pursuant to the preceding provisions of this Article VII) shall be paid directly to, and shall be directly enforceable by, the party specified in the applicable Operative Documents. To the extent any such amount is paid to the Lessor or to the Administrative Agent, the same shall hold it in trust for the intended payee and shall as soon as possible remit the full amount thereof in immediately available funds to such payee.

        SECTION 7.10    Other Payments.    

        SECTION 7.11    Order of Application.    To the extent any payment distributed to any Participant pursuant to Section 7.2, 7.3, 7.4, 7.5, 7.6 or 7.7 is insufficient to pay in full the Participant Balance of any Participant plus all accrued interest and Yield (as applicable) thereon, then each such payment shall first be applied to accrued interest or Yield and then to principal on the Loans or the Lessor Amounts, as applicable.

        SECTION 7.12    Payments to Account.    Unless otherwise expressly provided, all payments made pursuant to the Operative Documents shall be made to the Account maintained at the Administrative Agent.

        SECTION 7.13    Pro Rata Treatment.    Except to the extent otherwise provided herein, payment or prepayment of principal of any Loan shall be allocated pro rata among the Lenders, without priority of one over the other, in accordance with their outstanding Participant Balance.

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        SECTION 7.14    Sharing of Payments.    The Participants agree among themselves that, in the event that a Participant shall obtain payment in respect of any Loan or Lessor Amount or any other obligation owing to such Participant under the Operative Documents by any means other than (i) in the case of the Note Purchaser, the Liquidity Documents, or (ii) in the case of all Participants, the distributions set forth in Sections 7.1 through 7.10 hereof (including, without limitation, through the exercise of a right of setoff, banker's lien counterclaim, or secured claim), such Participant shall pay over such amount to the Administrative Agent for distribution in accordance with this Article VII. The Participants further agree among themselves that if any such amount received by a Participant and paid over to the Administrative Agent must be returned by such Participant for any reason, each Participant will return its share of such payment (together with its share of any accrued interest or Yield payable with respect thereto) to the Participant that must return such payment. The Lessee agrees that a Participant so purchasing such a participation may, to the fullest extent permitted by law, exercise all rights of payment, including setoff, banker's lien or counterclaim, with respect to such participation as fully as if such Participant were a holder of such Loan or Lessor Amount or other obligation in the amount of such participation. Except as otherwise expressly provided herein, if a Participant shall fail to remit to any other Participant an amount payable by such Participant to the other Participant pursuant to the Operative Documents on the date when such amount is due, such payments shall be made together with interest thereon (at no additional expense to the Lessee) from the date such amount is due until the date such amount is paid to such other Participant at a rate per annum equal to the Federal Funds Effective Rate. If under any applicable bankruptcy, insolvency or other similar law, a Participant receives a secured claim in lieu of a setoff to which this Section 7.14 applies, such Participant shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the other Participant under this Section 7.14 to share in the benefits of any recovery on such secured claim.

ARTICLE VIII

REPRESENTATIONS

        SECTION 8.1    Representations of the Obligors.    In order to induce the Participants and the Administrative Agent to enter into this Participation Agreement and in order to induce the Participants to advance Loans and Lessor Amounts as provided for herein, each of the Lessee and the Construction Agent makes the following representations and warranties to, and agreements with, the Administrative Agent and each Participant, all of which shall survive the execution and delivery of this Agreement and each Funding Date:

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        SECTION 8.2    Representations of the Lessee and the Construction Agent with Respect to each Funding Date.    Each of the Lessee and Construction Agent represent and warrant to the Administrative Agent and each Participant as of each Funding Date as follows:

        SECTION 8.3    Warranties and Representations of the Lessor.    The Lessor warrants and represents to the other parties hereto that:

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        SECTION 8.4    Representations of the Lenders.    Each Lender represents and warrants to the other parties hereto that:

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ARTICLE IX

COVENANTS

        SECTION 9.1    Affirmative Covenants.    The Lessee hereby covenants and agrees that on the Documentation Date and thereafter for so long as this Agreement is in effect and until such time as all Commitments have been terminated and all Obligations have been paid in full:

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        SECTION 9.2    Negative Covenants.    The Lessee hereby covenants and agrees that on the Effective Date and thereafter for so long as this Participation Agreement is in effect and until such time as all Commitments have been terminated and all Obligations have been paid in full:

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        SECTION 9.3    Financial Covenants.    Until the termination of this Agreement and the satisfaction in full by the Lessee of all Obligations, the Lessee will comply, and will cause compliance, with the following financial covenants, unless the Required Participants shall otherwise consent in writing:

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ARTICLE X

GROUND LEASE

        SECTION 10.1    Ground Lease.    The Lessee will, for the benefit of the Lessor, perform all obligations, covenants and agreements to be performed by the Lessor, as tenant, under the Ground Lease, and the Lessor shall have no responsibility for compliance with such obligations, covenants and agreements. In addition to and not in limitation of any of the Lessee's other obligations under the Lease, the Lessee shall punctually pay and perform for the benefit of the Lessor all of the obligations and liabilities whatsoever of the Lessor under the Ground Lease, including, without limitation, paying all rent due from time to time under the Ground Lease and indemnifying the Lessor from and against all claims for which the Lessor is liable under the Ground Lease to the landlord thereunder. The Lessee agrees that it will not take any action, or omit to take any action, that could result in a default under the Ground Lease or the termination of the Ground Lease.

ARTICLE XI

LESSEE DIRECTIONS EXTENSION OF MATURITY DATE; LESSOR SECURITY

        SECTION 11.1    Right of Lessee.    The Lessee shall have the exclusive right to replace a Non-Consenting Participant pursuant to Section 11.3.

        SECTION 11.2    Maturity Date Extension; Basic Term Extension.

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Notwithstanding the foregoing, KeyBank National Association, in its capacity as a Liquidity Bank (the "Specified Liquidity Bank"), hereby consents and agrees that, so long as its outstanding Loans do not exceed the Maximum Non-Refinanced Amount (after giving effect to any refinancing pursuant to Section 11.4), its consent shall not be required under this Section 11.2(a) with respect to any extension of the Original Maturity Date to a date no later than the seventh (7th) anniversary of the Documentation Date.

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        SECTION 11.3    Replacement of Non-Consenting Participants.    

        SECTION 11.4    Election to Refinance Loans.    The Lessee may elect to refinance, or cause one of its Subsidiaries to refinance (the Lessee or any such Subsidiary, a "Refinancing Lender"), all or a portion of the outstanding Notes held by the Note Purchaser by entering into a loan agreement with the Lessor pursuant to which the Refinancing Lender will make new loans ("Refinancing Loans") to the Lessor on the Original Maturity Date, the proceeds of which will be used to repay on the Original Maturity Date, all or a portion of the Notes (such Notes or portion thereof, the "Refinanced Notes"); provided, however, that (a) the Lessee shall not be permitted to refinance (or cause a Subsidiary of the Lessee to refinance) less than all of the outstanding Notes unless the aggregate principal amount of the Notes that are not refinanced by the Refinancing Lender (the "Purchased Notes") have an aggregate principal amount of not more than 11.8686% of the Property Cost (the "Maximum Non-Refinanced Amount"), (b) any Purchased Notes shall be assigned in full to the Specified Liquidity Bank (and the Specified Liquidity Bank hereby agrees, for the benefit of the Lessee, that it shall purchase such Purchased Notes from the Note Purchaser in the event that a Refinancing Lender refinances Notes in accordance with this Section) on the Original Maturity Date, (c) all outstanding Notes shall be repaid in full on the Original Maturity Date, and the Note Purchaser shall receive, on the Original Maturity Date, all accrued interest on the Notes and all other

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amounts then due and payable to the Note Purchaser under the Operative Documents, (d) the Refinancing Loans shall mature on the Scheduled Basic Term Termination Date then in effect, (e) the Purchased Notes (if any) shall be entitled to receive payments of accrued interest thereon and, at any time that the principal thereof shall become due, principal thereon, prior to the payment of any interest of or principal on the Refinancing Loans, and the Lessee shall agree to amend this Participation Agreement as reasonably requested by the Specified Liquidity Bank to give effect to such subordination in right of payment and (f) the Lessee shall pay on demand all reasonable costs and expenses (including reasonable attorneys' fees and expenses) incurred by the Administrative Agent, the Conduit Agent, the Program Administrator or any Participant in connection with the refinancing of the Refinanced Notes, the purchase of the Purchased Notes by the Specified Liquidity Bank and the negotiation, execution and delivery of any amendments to the Operative Documents in connection therewith. In furtherance of the foregoing, each of the Administrative Agent and each Participant agrees that it shall, at the sole cost and expense of the Lessee, reasonably cooperate with the Lessee to amend the Operative Documents to (i) modify the interest rate applicable to the Refinancing Loans (and make corresponding changes to the calculation of Basic Rent payable under the Lease), (ii) give effect to the subordination of the Refinancing Loans described in the preceding sentence (if applicable) and (iii) make such other changes to the Operative Documents as may be reasonably requested by the Lessee in connection with the refinancing of the Notes described herein; provided, however, that no such amendment or other modification shall adversely affect the economic assumptions, rights or obligations of the Administrative Agent or any Participant in any respect.

        SECTION 11.5    Replacement of Note Purchaser.    Upon not less than ten (10) days' prior notice, the Lessee shall be permitted to replace the Note Purchaser with an Eligible Note Purchaser selected by the Lessee (a "Replacement Note Purchaser"), with such replacement to be effective as of the date specified by the Lessee in its notice to the Note Purchaser (such date, the "Replacement Date"), if any of the following events shall have occurred: (a) the Note Purchaser shall fail to consent to an amendment, waiver or other modification to any Operative Document which amendment, waiver or other modification shall have been consented to by the Required Lenders or Required Participants (as applicable) required to consent thereto pursuant to clause (b) of the definition of "Required Lenders" or clause (b) of the definition of "Required Participants"; (b) the Note Purchaser breaches any of its covenants contained in any Operative Document (including without limitation its Commitment to fund under its Notes upon the satisfaction of all conditions thereto); or (c) the Note Purchaser is downgraded below A-1 by S&P or below P-1 by Moody's or any other event occurs that results in a required funding by the Liquidity Banks pursuant to the Asset Purchase Agreement; provided, however, that (i) such replacement does not conflict with any Applicable Law, (ii) the Replacement Note Purchaser shall purchase from the Note Purchaser (A) at par, all Notes of the Note Purchaser, and (B) all accrued interest on the Notes of the Note Purchaser, (iii) the Note Purchaser shall receive payment of all amounts owing to the Note Purchaser under the Operative Documents to the Replacement Date, (iv) without limiting any other obligation of the Lessee under Article XIII, the Lessee shall indemnify the Note Purchaser under Article XIII if the prepayment or purchase exceeds the aggregate Face Value of Commercial Paper maturing on the date of prepayment or purchase, (v) such replacement shall be made in accordance with the provisions of Article XII, including the receipt of any consents (other than consent by the Note Purchaser) required pursuant thereto (provided, that, in the case of a replacement of the Note Purchaser pursuant to clause (a) above, the Lessee or the Replacement Note Purchaser shall be obligated to pay all costs and expenses of the Note Purchaser and the Administrative Agent arising in connection with such assignment) and (vi) the Replacement Note Purchaser shall have agreed to be subject to all of the terms and conditions of the applicable Operative Documents (including, if such replacement of the Note Purchaser is being made in connection with an event of the type described in clause (a) above, the terms and conditions of the amendment, waiver or other modification requested by the Lessee).

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ARTICLE XII

TRANSFERS OF PARTICIPANTS' INTERESTS

        SECTION 12.1    Assignments by Participants.    

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        SECTION 12.2    Participations.    Any Participant may, at any time, sell to one or more financial institutions (each, a "Sub-Participant") participating interests in all or a portion of its rights and obligations under the Operative Documents, its Loans or its Lessor Amounts; provided, however, that (a) no participation contemplated in this Section 12.2 shall relieve the applicable Participant from any of its obligations hereunder or under the other Operative Documents; (b) the Participant shall remain solely responsible for the performance of its obligations hereunder and under the other Operative Documents; (c) the Obligors and the other parties hereto shall continue to deal solely and directly with the Participant in connection with their respective obligations hereunder and under the other Operative Documents; (d) no Sub-Participant (unless such Sub-Participant is also a Participant) shall be entitled to require the Participant to take or refrain from taking any action hereunder or under the other Operative Documents, except that such Participant may agree with any Sub-Participant that such Participant will not, without the Sub-Participant's consent, take any actions of the type described in Section 16.5(b) or agree to any amendment, waiver or modification that would (A) reduce the principal amount of any Loan or the amount of any Lessor Amount participated in by such Sub-Participant, or reduce the interest rate or Yield Rate applicable to or fees payable in respect of, any such Loan or Lessor Amount or (B) extend the Maturity Date or the Scheduled Basic Lease Term Termination Date; and (e) the Lessee shall not be required to pay any amount under this Participation Agreement that is greater than the amount which it would have been required to pay had no participating interest been sold.

        SECTION 12.3    Pledge Under Regulation A.    Anything in this Article XII to the contrary notwithstanding, each Participant may without the consent of the Lessee or any other Person assign and pledge all or any portion of its Notes or Lessor Amounts, as applicable, held by it to any Federal Reserve Bank or to the United States Treasury as collateral security pursuant to Regulation A of the Board of

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Governors of the Federal Reserve System and any operating circular issued by the Federal Reserve System and/or the Federal Reserve Bank or otherwise.

        SECTION 12.4    Acknowledgment of Assignment of Lease, Rent and CAA.    Each Obligor hereby acknowledges that the right of the Lessor to receive Rent and certain other rights under the Lease and Construction Agency Agreement (other than the right to receive certain Excepted Payments) will be transferred by the Lessor to the Lenders pursuant to the Assignment of Lease, Rent and CAA; provided, however, that all Basic Rent and Supplemental Rent (other than Fees and Supplemental Rent in respect of Fees and Contingent Payments) shall be paid to the Administrative Agent for distribution as set forth in Article VII.

ARTICLE XIII

INDEMNIFICATION

        SECTION 13.1    General Indemnification.    

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        SECTION 13.2    End of Term Indemnity.    

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        SECTION 13.3    Environmental Indemnity.    Without limitation of the other provisions of this Article XIII, the Lessee hereby agrees (at all times, including without limitation, whether or not the Basic Lease Term shall have commenced) to indemnify, hold harmless and defend each Indemnitee from and against any and all Claims (including, without limitation, third party claims for personal injury or real or personal property damage), losses (including, but not limited to, to the extent the Property Cost has not been fully paid, any loss of value of the Property related thereto), 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, but not limited to, reasonable and documented attorneys' and/or paralegals' fees and expenses), including, but not limited to, all costs incurred in connection with any investigation or monitoring of site conditions or any clean-up, remedial, removal or restoration work by any federal, state or local government agency, in any way relating to or arising in whole or in part, out of (or alleged to in any way relate to or arise in whole or in part out of):

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provided, however, that the Lessee shall not be required to indemnify any Indemnitee under this Section 13.3 for (i) any Claim to the extent resulting from the willful misconduct or gross negligence of such Indemnitee (it being understood that the Lessee shall be required to indemnify an Indemnitee even if the ordinary (but not gross) negligence of such Indemnitee caused or contributed to such Claim) or (ii) any Claim to the extent attributable solely to acts, circumstances or events occurring after (1) the expiration of the Basic Lease Term and (2) the return or remarketing of the Property in full compliance with the provisions of the Operative Documents, so long as no CAA Default, CAA Event of Default, Unwind Event, Acceleration Event, Lease Default or Lease Event of Default has occurred. It is expressly understood and agreed that the indemnity provided for herein shall survive the expiration or termination of and shall be separate and independent from any remedy under the Lease or any other Operative Document.

        SECTION 13.4    Proceedings in Respect of Claims.    With respect to any amount that the Lessee is requested by an Indemnitee to pay by reason of Section 13.1 or 13.3, such Indemnitee shall, if so requested by the Lessee and prior to any payment, submit such additional information to the Lessee as the 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 the Lessee of the commencement thereof, (but the failure to effect such notification shall not affect any debt, duty or obligation of Lessee hereunder except to the extent that the Lessee has been effectively precluded from contesting such action, suit or proceeding as a result of such failure), and the Lessee shall be entitled, at the Lessee's expense, to participate in, and, to the extent that the Lessee desires to, assume and control the defense thereof; provided, however, that the Lessee shall have acknowledged in writing its obligation to fully indemnify such Indemnitee in respect of such action, suit or proceeding, and, the Lessee shall keep such Indemnitee fully apprised of the status of such action, suit or proceeding and shall provide such Indemnitee with all material information with respect to such action, suit or proceeding as such Indemnitee shall reasonably request, and provided, further, that the Lessee shall not be entitled to assume and control the defense of any such action, suit or proceeding if and to the extent that (i) in the reasonable opinion of such Indemnitee (A) such action, suit or proceeding involves any 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 Property Lien of the type described in clause (a), (b) or (h) of the definition thereof) on the Property or any part thereof or (B) the control of such action, suit or proceeding would involve an actual or potential conflict of interest, (ii) such proceeding involves Claims not fully indemnified by the Lessee which the Lessee and the Indemnitee have been unable to sever from the indemnified claim(s), or (iii) any CAA Event of Default, Unwind Event or Lease Event of Default has occurred and is continuing.

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The Indemnitee may participate in a reasonable manner at its own expense and with its own counsel in any proceeding conducted by the Lessee in accordance with the foregoing; the fees and expenses of any such counsel shall be for the applicable Indemnitee's account except to the extent that representation of such Indemnitee and of the Lessee by the same counsel is inappropriate due to actual or potential conflicts of interest between them. The Lessee shall not enter into any settlement or other compromise with respect to any Claim which is entitled to be indemnified under Section 13.1 or 13.3 without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld in the case of a money settlement not involving an admission of liability of such Indemnitee.

        Each Indemnitee shall at the expense of the Lessee supply the Lessee with such information and documents reasonably requested by the Lessee as are necessary or advisable for the Lessee to participate in any action, suit or proceeding to the extent permitted by Section 13.1 or 13.3. Unless a CAA Default, CAA Event of Default, Unwind Event, Acceleration Event, Lease Default or Lease Event of Default shall have occurred and be continuing, no Indemnitee shall enter into any settlement or other compromise with respect to any Claim that is entitled to be indemnified under Section 13.1 or 13.3 without the prior written consent of the Lessee, which consent shall not be unreasonably withheld, unless such Indemnitee waives its right to be indemnified under Section 13.1 or 13.3 with respect to such Claim.

        Upon payment in full of any Claim by the Lessee pursuant to Section 13.1 or 13.3 to or on behalf of an Indemnitee, the 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, at the Lessee's sole cost and expense, such Indemnitee shall execute such instruments of assignment and conveyance, and evidence of claims and payment as may reasonably be necessary to preserve any such subrogation claims.

        Any amount payable to an Indemnitee pursuant to Section 13.1 or 13.3 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 13.5    General Tax Indemnity.    

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        The Lessee shall be entitled for a period of thirty (30) days from receipt of such notice from such Tax Indemnitee (or such shorter period as such Tax Indemnitee has notified the Lessee is required by Applicable Law for such Tax Indemnitee to commence such contest) to request in writing that such Tax Indemnitee contest the imposition of such Tax, at the Lessee's sole cost and expense. If (i) such contest can be pursued in the name of the Lessee and independently from any other proceeding involving a Tax liability of such Tax Indemnitee for which the Lessee has not agreed to indemnify such Tax Indemnitee, (ii) such contest must be pursued in the name of such Tax Indemnitee, but can be pursued independently from any other proceeding involving a Tax liability of such Tax Indemnitee for which the Lessee has not agreed to indemnify such Tax Indemnitee or (iii) such Tax Indemnitee so requests, then the Lessee shall be permitted to control the contest of such claim, provided, that in the case of a contest described in clause (ii), if such Tax Indemnitee reasonably determines that such contest by the Lessee could have an adverse impact on the business or operations of such Tax Indemnitee, such Tax Indemnitee may elect to control or reassert control of the contest, and provided, that by taking control of the contest, the Lessee acknowledges that it is responsible for the Imposition ultimately determined to be due by reason of such claim. In all other claims requested to be contested by the Lessee, such Tax Indemnitee shall control the contest of such claim, acting through counsel reasonably acceptable to the Lessee. In no event shall the Lessee be permitted to contest (or such Tax Indemnitee required to contest) any claim (A) if such Tax Indemnitee provides the Lessee with a legal opinion of counsel reasonably acceptable to the Lessee that such action, suit or proceeding involves a risk of imposition of criminal liability or could involve a material risk of the sale, forfeiture or loss of, or the creation of any Lien (other than a Permitted Property Lien of the type described in clause (a), (b), (g) or (h) of the definition thereof) on the Property or any part of any thereof unless the Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Tax Indemnitee in respect to such risk, (B) if a CAA Event of Default, Unwind Event or Lease Event of Default has occurred and is continuing unless the Lessee shall have posted and maintained a bond or other security satisfactory to the relevant Tax Indemnitee in its sole discretion in respect of the Taxes subject to such claim and any and all expenses for which the Lessee is responsible hereunder reasonably foreseeable in connection with the contest of such claim, (C) unless the Lessee shall have agreed to pay and shall pay, to such Tax Indemnitee on demand all reasonable out-of-pocket costs, losses and expenses that such Tax 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 Tax prior to the contest, unless the Lessee shall provide to such Tax Indemnitee an interest-free advance in an amount equal to the Imposition that the Tax Indemnitee is required to pay (with no additional net after-tax costs to such Tax Indemnitee). In addition, for Tax Indemnitee controlled contests and claims contested in the name of such Tax Indemnitee in a public forum, no contest shall be required unless: (A) 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 Tax Indemnitee with respect to any period for which the Lessee may be liable to pay an indemnity under this Section 13.5(b)) exceeds $50,000, (B) if requested by such Tax Indemnitee, the Lessee shall have provided to such Tax Indemnitee an opinion of counsel selected by the Lessee (except, in the case of income taxes indemnified hereunder, in which case such opinion shall be an opinion of independent tax counsel selected by such Tax Indemnitee and reasonably acceptable to the Lessee) that a reasonable basis exists to contest such claim (or, in the case of an appeal of an adverse determination, an opinion of such counsel to the effect that there is substantial authority for the position asserted in such appeal) and (C) Lessee shall have acknowledged in writing to the Tax Indemnitee its obligation to pay the costs and expenses thereof and to indemnify such Tax Indemnitee pursuant to this Section 13.5 for the Taxes subject to the proposed contest, if such contest is

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unsuccessful. In no event shall a Tax Indemnitee be required to appeal an adverse judicial determination to the United States Supreme Court. In addition, a Tax Indemnitee shall not be required to contest any claim in its name (or that of an Affiliate) if the subject matter thereof shall be of a continuing nature and shall have previously been decided adversely by a court of competent jurisdiction pursuant to the contest provisions of this Section 13.5(b), unless there shall have been a Change in Law and the Tax Indemnitee shall have received, at the Lessee's expense, an opinion of independent tax counsel selected by the Lessee and reasonably acceptable to the Tax Indemnitee stating that, as a result of such Change in Law, it is more likely than not that the Tax Indemnitee will prevail in such contest.

        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 Taxes, provided, however, that the decisions regarding what actions to be taken shall be made by the controlling party in its sole judgement. 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 agents or taxing authority to the controlling party thereof, in connection with such claim or the contest thereof.

        Each Tax Indemnitee shall, at the Lessee's sole cost and expense, supply the Lessee with such information and documents reasonably requested by the Lessee as are necessary or advisable for the Lessee to participate in any action, suit or proceeding to the extent permitted by this Section 13.5(b); provided, however, that such Tax Indemnitee shall not be required to provide to the Lessee copies of (i) any information, documentation or materials that it reasonably deems to be confidential or proprietary or (ii) its tax returns or any other information, documentation or materials in respect of such Tax Indemnitee's financial position. Notwithstanding anything in this Section 13.5(b) to the contrary, no Tax 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 13.5 (and with respect to which contest is required under this Section 13.5(b)) without the prior written consent of the Lessee, unless such Tax Indemnitee waives its right to be indemnified under this Section 13.5 with respect to such claim. No settlement of any contest may be made by the Lessee without the Tax Indemnitee's written consent (which consent shall not be unreasonably withheld).

        Notwithstanding anything contained herein to the contrary, a Tax Indemnitee will not be required to contest (and the Lessee shall not be permitted to contest) a claim with respect to the imposition of any Tax if such Tax Indemnitee shall waive its right to indemnification under this Section 13.5 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).

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        SECTION 13.6    Indemnity Payments in Addition to Lease Obligations.    The Lessee acknowledges and agrees that the Lessee's obligations to make indemnity payments under this Article XIII are separate from, in addition to, and do not reduce, the Lessee's obligation to pay under the Lease that portion of the Property Cost constituting the Maximum Recourse Amount.

        SECTION 13.7    Illegality.    If, after the date of this Participation Agreement, the adoption of any Governmental Rule, any change in any Governmental Rule or the application or requirements thereof (whether such change occurs in accordance with the terms of such Governmental Rule as enacted, as a result of amendment or otherwise), any change in the interpretation or administration of any Governmental Rule by any Governmental Authority, or compliance by any Lender with any request or directive (whether or not having the force of law) of any Governmental Authority (a "Change of Law") shall make it unlawful or impossible for the Lessor or any Liquidity Bank to make or maintain any Note, Loan or Lessor Amount, the Lessor or such Liquidity Bank (as the case may be) shall immediately notify the Administrative Agent and the Lessee of such Change of Law. Upon receipt of such notice, (i) the Lessee' s right to request the making of, conversion to or a new Basic Rent Period for LIBOR Loans/Lessor Amounts shall be terminated, and the Lessee shall, at the request of the Lessor or such Liquidity Bank (as the case may be), (A) convert any outstanding LIBOR Loans/Lessor Amounts into Base Rate Loans/Lessor Amounts at the end of the current Basic Rent Period for such LIBOR Loans/Lessor Amounts or (B) immediately convert any such LIBOR Loans/Lessor Amounts if the Lessor or such Liquidity Bank (as the case may be) shall notify the Lessee that it may not lawfully continue to fund and maintain such LIBOR Loans/Lessor Amounts. Any conversion of LIBOR Loans/Lessor Amounts made pursuant to the preceding sentence prior to the last day of the Basic Rent Period for such LIBOR Loans/Lessor Amounts shall be deemed a prepayment thereof for purposes of Section 13.10. After the Lessor or any Liquidity Bank notifies the Administrative Agent and the Lessee of such a Change of Law and until the Lessor or such Liquidity Bank (as the case may be) notifies the Administrative Agent and the Lessee that it is no longer unlawful or impossible for such Person to make or maintain a Note, Loan or Lessor Amount, all Loans or Lessor Amounts, as applicable, of such Person shall be Base Rate Loans/Lessor Amounts.

        SECTION 13.8    Inability to Determine Rates.    If, on or before the first day of any Basic Rent Period for any Note, Loan or Lessor Amount, (i) the Lessor or any Liquidity Bank shall advise the Administrative Agent that the BBA LIBO Rate for such Basic Rent Period cannot be adequately and reasonably determined due to the unavailability of funds in or other circumstances affecting the London interbank market or (ii) the Lessor or Required Lenders shall advise the Administrative Agent that the rate of interest for such Note, Loan or Lessor Amount does not adequately and fairly reflect the cost to the Lessor or such Liquidity Banks (as the case may be) of making or maintaining such Note, Loan or Lessor Amount, the Administrative Agent shall immediately give notice of such condition to the Lessee, the Lessor and the Liquidity Banks. After the giving of any such notice and until the Administrative Agent shall otherwise notify the Lessee that the circumstances giving rise to such condition no longer exist, the Lessee's right to request the making of, conversion to or a new Basic Rent Period for LIBOR Loans/Lessor Amounts shall be suspended. Any LIBOR Loans/Lessor Amounts outstanding at the commencement of any such suspension shall begin to bear interest or Yield, as applicable, by reference to the Base Rate on the last day of the then current Basic Rent Period, and shall be deemed to be converted at the end of the then current Basic Rent Period for such LIBOR Loans/Lessor Amounts into Base Rate Loans/Lessor Amounts, unless such suspension has then ended.

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        SECTION 13.9    Increased Costs.    If, after the date of this Participation Agreement, any Change of Law:

and the effect of any of the foregoing is to increase the cost to such Affected Party of making, renewing, or maintaining its Commitment, any Note, Loan, Lessor Amount (or any commitment to provide the same, or to provide liquidity or other fundings in respect thereof) or to reduce any amount receivable by such Affected Party hereunder or under any Operative Document; then the Lessee shall from time to time, within five (5) Business Days after demand by such Affected Party, pay to such Affected Party additional amounts sufficient to reimburse such Affected Party for such increased costs or to compensate such Affected Party for such reduced amounts; provided, however, that the Lessee shall have no obligation to make any payment to any demanding party under this Section 13.9 on account of any such increased costs or reduced amounts unless the Lessee receives notice of such increased costs or reduced amounts from the demanding party within six (6) months after they are incurred or realized. A certificate setting forth in reasonable detail the amount of such increased costs or reduced amounts, submitted by such Affected Party to the Lessee shall constitute prima facie evidence of such costs or amounts. The obligations of the Lessee under this Section 13.9 shall survive the termination of this Participation Agreement and the other Operative Documents and the payment of the Loans, Lessor Amounts and all other amounts payable under the Operative Documents.

        SECTION 13.10    Funding Losses.    The Lessee agrees that it shall, within five (5) Business Days after demand by any Affected Party, reimburse such Affected Party for and hold such Affected Party harmless (on an After Tax Basis) from all losses, costs and expenses (but excluding any loss of anticipated profit) that such Affected Party may sustain or incur (other than through such Person's own gross negligence or willful misconduct) as a consequence of (a) the Lessee's payment of Rent other than on a Rent Payment Date (except for Rent not due on a Rent Payment Date)) (or, in the case of the Note Purchaser, in a principal amount exceeding the Face Value of Commercial Paper maturing on the date of prepayment) (b) any Advance not being made on the date specified therefor in the applicable Funding Request (other than, if such Affected Party is a Participant, as a result of a breach by such Participant of its obligation under Section 3.1, 3.2 or 3.3, as the case may be, to make Advances or Lessor Amounts available to the Construction Agent or to make Loans available to the Lessor), (c) the Lessee's payment of the Property Cost or any portion thereof (including any payment of Maximum Recourse Amount, Construction Recourse Amount or Purchase Price) on any date other than a Rent Payment Date, (d) any conversion of LIBOR Loans/Lessor Amounts in accordance with Section 13.7 or 13.8 on a day other than a Rent Payment Date or (e) Conduit Loans that bear interest at the CP Rate being prepaid on a day other than a Rent Payment Date; provided, however, that the Lessee shall have no obligation to make any payment to any demanding party under this Section 13.10 on account of any such costs or losses unless the Lessee receives notice of such costs or losses from the demanding party within six (6) months after they are incurred or realized. The Lessee understands that such costs and losses may include, without limitation, losses incurred by an Affected Party as a result of funding, hedging and other contracts entered into by such Affected Party to fund a Note, Loan or Lessor Amount, or entered into in connection with obligation

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under the Liquidity Documents. Each Affected Party demanding payment under this Section 13.10 shall deliver to the Lessee, with a copy to the Administrative Agent, a certificate setting forth the amount of costs and losses for which demand is made, which certificate shall set forth in reasonable detail the calculation of the amount demanded. Such a certificate so delivered to the Lessee shall constitute prima facie evidence of such costs and losses. This covenant shall survive the termination of this Participation Agreement and the other Operative Documents and the payment of the Loans, Lessor Amounts and all other amounts payable under the Operative Documents.

        SECTION 13.11    Capital Requirements.    If, after the date of this Participation Agreement, any Affected Party determines that (i) any Change of Law affects the amount of capital required or expected to be maintained by such Affected Party or any Person controlling such Lender (a "Capital Adequacy Requirement") and (ii) the amount of capital maintained by such Affected Party or such Person that is attributable to or based upon the Loans or Lessor Amounts, the Commitments or this Participation Agreement or any other Operative Document must be increased as a result of such Capital Adequacy Requirement (taking into account such Affected Party's or such Person's policies with respect to capital adequacy), the Lessee shall pay to such Affected Party or such Person, within five (5) Business Days after demand of such Affected Party, such amounts as such Affected Party or such Person shall determine are necessary to compensate such Affected Party or such Person for the increased costs to such Affected Party or such Person of such increased capital; provided, however, that the Lessee shall have no obligation to make any payment to any demanding party under this Section 13.11 on account of any such increased costs unless the Lessee receives notice of such increased costs from the demanding party within six (6) months after they are incurred or realized. A certificate setting forth in reasonable detail the amount of such increased costs, submitted by any Affected Party to the Lessee shall constitute prima facie evidence of such costs. The obligations of the Lessee under this Section 13.11 shall survive the termination of this Participation Agreement and the other Operative Documents and the payment of the Loans, Lessor Amounts and all other amounts payable under the Operative Documents.

        SECTION 13.12    Mitigation.    Any Liquidity Bank that becomes aware of (i) any Change of Law that will make it unlawful or impossible for such Participant to make or maintain any Note, Loan or Lessor Amount or (ii) any Change of Law or other event or condition that will obligate the Lessee to pay any amount pursuant to Section 13.9 or Section 13.11 shall notify the Lessee and the Administrative Agent thereof as promptly as practical. If any Liquidity Bank has given notice of any such Change of Law or other event or condition and thereafter becomes aware that such Change of Law or other event or condition has ceased to exist, such Liquidity Bank shall notify the Lessee and the Administrative Agent thereof as promptly as practical. Each Liquidity Bank affected by any Change of Law that makes it unlawful or impossible for such Liquidity Bank to make or maintain any Note, Loan or Lessor Amount or to which the Lessee is obligated to pay any amount pursuant to Section 13.9 or Section 13.11 shall use reasonable commercial efforts (including changing the jurisdiction of its Applicable Lending Office) to avoid the effect of such Change of Law or to avoid or materially reduce any amounts which the Lessee is obligated to pay pursuant to Section 13.9 or Section 13.11 if, in the reasonable opinion of such Liquidity Bank, such efforts would not be disadvantageous to such Liquidity Bank or contrary to such Liquidity Bank's normal practices.

        SECTION 13.13    Taxes on Payments.

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        SECTION 13.14    Survival.    The obligations of the Lessee under this Article XIII shall survive the termination of this Participation Agreement and the other Operative Documents and the payment of the Loans, Lessor Amounts and all other amounts payable under the Operative Documents.

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ARTICLE XIV

PAYMENT OF CERTAIN EXPENSES

        SECTION 14.1    Payment of Costs and Expenses.    

        SECTION 14.2    Brokers' Fees and Stamp Taxes.    The Lessee shall pay during the Basic Lease Term, or during the Construction Period, cause to be paid, from the proceeds of the Advances or otherwise any brokers' fees and any and all stamp, transfer and other similar Taxes, fees and excises, if any, including any interest and penalties, which are payable in connection with the transactions contemplated by this Participation Agreement and the other Operative Documents.

        SECTION 14.3    Note Purchase Agreement and Related Obligations.    On and after the Completion Date, the Lessee shall pay, without duplication of any other obligation of the Lessee to pay any such amount under the Operative Documents, on or before the due date thereof, all costs, expenses and other amounts (other than principal of and interest on the Loans, which are payable to the extent otherwise required by the Operative Documents) required to be paid by the Lessor under the Note Purchase Agreement and the Assignment of Lease, Rent and CAA, except for such costs, expenses and amounts that arise solely as a result of the Lessor's gross negligence or willful misconduct.

ARTICLE XV

THE ADMINISTRATIVE AGENT

        SECTION 15.1    Appointment.    Each Participant hereby irrevocably designates and appoints the Administrative Agent as the agent of such Participant under this Participation Agreement and the other Operative Documents, and each such Participant irrevocably authorizes the Administrative Agent, in such capacity, to take such action on its behalf under the provisions of this Participation Agreement and the other Operative Documents and to exercise such powers and perform such duties as are expressly

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delegated to the Administrative Agent by the terms of this Participation Agreement and the other Operative Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this Participation Agreement, the Administrative Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Operative Documents, or any fiduciary relationship with any Participant or any other party to the Operative Documents, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Participation Agreement or any other Operative Document or otherwise exist against the Administrative Agent.

        SECTION 15.2    Delegation of Duties.    The Administrative Agent may execute any of its duties under this Participation Agreement and the other Operative Documents by or through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. The Administrative Agent shall not be responsible for the negligence or misconduct of its agents or attorneys-in-fact selected by it with reasonable care.

        SECTION 15.3    Exculpatory Provisions.    Neither the Administrative Agent (in its capacity as such) nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or omitted to be taken by it or such Person under or in connection with this Participation Agreement or any other Operative Document, except for its or such Person's own willful misconduct or gross negligence (or negligence in the handling of funds) or (b) responsible in any manner to any of the Participants or any other party to the Operative Documents for any recitals, statements, representations or warranties made by any Party or the Lessor or any officer of any Party or the Lessor contained in this Participation Agreement or any other Operative Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Administrative Agent under or in connection with, this Participation Agreement or any other Operative Document, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Participation Agreement or any other Operative Document or for any failure of any Party or the Lessor to perform its obligations hereunder or thereunder. The Administrative Agent shall not be under any obligation to any Participant or any other party to the Operative Documents to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Participation Agreement or any other Operative Document, or to inspect the properties, books or records of any Party.

        SECTION 15.4    Reliance by Administrative Agent.    The Administrative Agent shall be entitled to rely, and shall be fully protected in relying, upon any Note, writing, resolution, notice, consent, certificate, affidavit, letter, facsimile message, statement, order or other document or other written communication believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including, without limitation, counsel to the Obligor), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been delivered to the Administrative Agent in accordance with Section 12.1(c) of the Participation Agreement. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Participation Agreement or any other Operative Document unless it shall first receive the advice or concurrence of the Required Participants, or it shall first be indemnified to its satisfaction by the applicable Participants against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Participation Agreement and the other Operative Documents in accordance with a request of the Required Participants, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Participants and all future holders of the applicable Participations (including their respective successors and assigns).

        SECTION 15.5    Notice of Default.    The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any CAA Default, Lease Default, CAA Event of Default,

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Unwind Event or Lease Event of Default unless the Administrative Agent has received notice from any Participant or the Lessor referring to this Participation Agreement or any other Operative Document, describing such CAA Default, Lease Default, CAA Event of Default, Unwind Event or Lease Event of Default and stating that such notice is a "notice of default." In the event that the Administrative Agent receives such a notice, the Administrative Agent shall promptly give notice thereof to the Participants, the Lessor and the Obligor. The Administrative Agent shall take such action with respect to such CAA Default, Lease Default, CAA Event of Default, Unwind Event or Lease Event of Default as shall be directed by the Required Participants; provided, however, that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such default or event of default as it shall deem advisable in the best interests of the Participants.

        SECTION 15.6    Non-Reliance on Administrative Agent and Other Participants.    Each Participant expressly acknowledges that neither the Administrative Agent, nor the Structuring Agent nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates, has made any representations or warranties to it and that no act by the Administrative Agent or the Structuring Agent hereinafter taken, including any review of the affairs of the Obligor or the Lessor, shall be deemed to constitute any representation or warranty by the Administrative Agent or the Structuring Agent to any Participant. Each Participant represents to the Administrative Agent and the Structuring Agent that it has, independently and without reliance upon the Administrative Agent, the Structuring Agent or the Lessor, and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Obligors and the Lessor and made its own decision to enter into this Participation Agreement. Each Participant also represents that it will, independently and without reliance upon the Administrative Agent, the Structuring 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 credit analysis, appraisals and decisions in taking or not taking action under this Participation Agreement and the other Operative Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Obligors and the Lessor. Except for notices, reports and other documents expressly required to be furnished to the Participants by the Administrative Agent hereunder, neither the Administrative Agent nor the Structuring Agent shall have any duty or responsibility to provide any Participant with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Obligors or the Lessor which may come into the possession of the Administrative Agent, the Structuring Agent or any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates.

        SECTION 15.7    Indemnification.    The Administrative Agent agrees that it will be entitled to indemnification with respect to the Operative Documents and the transactions contemplated thereby solely from the Lessee and as contemplated by Article XIII hereof.

        SECTION 15.8    Administrative Agent in Its Individual Capacity.    Each Participant acknowledges that KeyBank National Association is acting as the Administrative Agent hereunder. KeyBank National Association and its Affiliates may make Participations to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Obligors, the Lessor and their respective Affiliates as though it was not the Administrative Agent hereunder and under the other Operative Documents and without notice to or consent of the Participants. Each Participant acknowledges that, pursuant to such activities, KeyBank National Association or its Affiliates may receive information regarding the Obligors, the Lessor or their respective Affiliates (including information that may be subject to confidentiality obligations in favor of the Obligors, the Lessor or such Affiliates) and acknowledges that such Persons shall be under no obligation to provide such information to them.

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        SECTION 15.9    Successor Administrative Agent.    The Administrative Agent may resign as the Administrative Agent upon twenty (20) Business Days' notice to the Participants and the Obligor provided, that no such resignation shall take effect until the appointment, acceptance and qualification of a successor Administrative Agent. The Administrative Agent may be removed for cause as the Administrative Agent upon twenty (20) Business Days' notice to the Administrative Agent and the Obligor from the Required Participants, which notice shall specify the conduct constituting the cause for removal. The Required Participants shall appoint from among the Participants a successor Administrative Agent for the Participants subject to prior approval by the Obligor (such approval not to be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term "Administrative Agent" shall include such successor agent effective upon its appointment, and the resigning or removed Administrative Agent's rights, powers and duties as the Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Participation Agreement. After the retiring Administrative Agent's resignation or removal hereunder as the Administrative Agent, the provisions of this Article XV shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under the Operative Documents. In the event of the resignation, or removal, of the Administrative Agent if no successor shall have been appointed and qualified within thirty (30) days, the resigning Administrative Agent or any Lender may petition a court of competent jurisdiction to appoint a successor.

        SECTION 15.10    Eligibility of the Administrative Agent.    The Administrative Agent shall at all times have a combined capital and surplus of at least $100,000,000 (or a combined capital and surplus in excess of $50,000,000 and the obligations of which, whether or not in existence or hereafter incurred, are fully and unconditionally guaranteed by a corporation organized and doing business under the laws of the United States, any state or territory thereof or the District of Columbia that has a combined capital and surplus of at least $100,000,000). If such corporation publishes reports of condition at least annually, pursuant to law or to requirements of Federal, State, Territorial or District of Columbia supervising or examining authority, then for the purposes of this Section 15.10, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. The Administrative Agent shall not be an Affiliate of the Lessee.

ARTICLE XVI

MISCELLANEOUS

        SECTION 16.1    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 of this Participation Agreement, the transfer of any or all of the Property to the Lessee, the Lessor or any other Person, the construction of any Improvements, any disposition of any interest of the Lessor or any Participant in the Property or any Improvements and the payment of the Obligations and any disposition thereof and shall be and continue in effect notwithstanding any investigation made by any party and the fact that any party may waive compliance with any of the other terms, provisions or conditions of any of the Operative Documents. Except as otherwise expressly set forth herein or in the other Operative Documents, the indemnities of the parties provided for in the Operative Documents shall survive the expiration or termination of the Operative Documents.

        SECTION 16.2    No Broker, etc.    Each of the parties hereto represents to the others that it has not retained or employed any broker, finder or financial adviser to act on its behalf in connection with this Participation Agreement or the transactions contemplated herein or in the other Operative Documents, nor has it authorized any broker, finder or financial adviser retained or employed by any other Person so to act. 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.

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        SECTION 16.3    Notices.    Unless otherwise specifically provided herein, all notices, consents, directions, approvals, instructions, requests and other communications required or permitted by the terms hereof to be given to any Person shall be given in writing by United States mail, by nationally recognized courier service and any such notice shall become effective five (5) Business Days after being deposited in the mails, certified or registered return receipt requested with appropriate postage prepaid or one (1) Business Day after delivery to a nationally recognized courier service specifying overnight delivery and shall be directed to the address of such Person as indicated on Schedule II. From time to time any party may designate a new address for purposes of notice hereunder by written notice to each of the other parties hereto in accordance with this Section 16.3.

        SECTION 16.4    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. Delivery of an executed counterpart hereof by facsimile or other electronic means shall be equally effective as delivery of an originally executed counterpart.

        SECTION 16.5    Amendments.    

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        SECTION 16.6    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 16.7    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. The Lessee shall not assign or transfer any of its rights or obligations under the Operative Documents except in accordance with the terms and conditions thereof.

        SECTION 16.8    GOVERNING LAW.    THIS PARTICIPATION AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES

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HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA.

        SECTION 16.9    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 16.10    Liability Limited.    

        SECTION 16.11    Further Assurances.    The parties hereto shall promptly cause to be taken, executed, acknowledged or delivered, at the sole expense of the Lessee, all such further acts, conveyances, documents and assurances as the other parties may from time to time reasonably request in order to carry out and 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 transactions thereunder (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). The Lessee, at its own expense and without need of any prior request from any other party, shall take such action as may be necessary (including any action specified in the preceding

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sentence), or as so requested, in order to maintain and protect all security interests provided for hereunder or under any other Operative Document.

        SECTION 16.12    SUBMISSION TO JURISDICTION.    EACH PARTY HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS PARTICIPATION AGREEMENT OR ANY OF THE OTHER OPERATIVE DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

        SECTION 16.13    Setoff.    Each Participant and the Administrative Agent shall, upon the occurrence of any CAA Event of Default or Lease Event of Default, have the right to appropriate and, subject to Section 7.14 and Section 13.1 hereof, and Section 5.4 of the Construction Agency Agreement, apply to the payment of the Lessee's obligations under the Lease and the Construction Agency Agreement as security for the payment of such obligations, any and all balances, credits, deposits, accounts or moneys of the Lessee then or thereafter maintained with such Participant or the Administrative Agent. The rights of the Participants and the Administrative Agent under this Section are in addition to other rights and remedies (including other rights of setoff under applicable law or otherwise) which such Person may have.

        SECTION 16.14    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. 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 16.14 HAVE BEEN FULLY NEGOTIATED BY THE PARTIES HERETO AND SHALL BE SUBJECT TO NO EXCEPTIONS. EACH OBLIGOR 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 EACH OF THE LESSOR AND THE LENDERS ENTERING INTO THIS PARTICIPATION AGREEMENT AND EACH SUCH OTHER OPERATIVE DOCUMENT.

        SECTION 16.15    Limitations on Recourse to Note Purchaser.    Notwithstanding any provision of this Participation Agreement to the contrary, each of the parties hereto agrees that the Note Purchaser shall only be required to pay (a) any fees or liabilities that it may incur hereunder only to the extent that the Note Purchaser has Excess Funds and (b) any expenses, indemnities or other liabilities that it may incur hereunder, or any fees, expenses, indemnities or other liabilities under any other Operative Document only to the extent that the Note Purchaser has Excess Funds; provided, however, that if the Note Purchaser has insufficient funds to make any payments required by this Participation Agreement to any other Person party hereto, such Person shall not be excused from the performance of its obligations hereunder. In addition, no amount owing by the Note Purchaser hereunder in excess of the liabilities that the Note Purchaser is required to pay in accordance with the preceding sentence shall constitute a claim (as defined in Section 101 of Title 11 of the United States Code) against the Note Purchaser. No recourse shall be had for the payment of any amount owing hereunder or for the payment of any fee hereunder or any other obligation of or claim against the Note Purchaser arising out of or based upon this Participation

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Agreement, against any stockholder, employee, officer, director, manager or incorporator of the Note Purchaser or Affiliate thereof; provided, however, that the foregoing shall not relieve any such Person of any liability they might otherwise have as a result of fraudulent actions or omissions taken by them. Any and all claims against the Note Purchaser by any other Person shall be subordinate to the claims of the holders of the Commercial Paper issued by the Note Purchaser. The obligations of the parties under this Section 16.15 shall survive the termination of this Participation Agreement.

        SECTION 16.16    Bankruptcy.    The Lessee, the Lessor, the Administrative Agent and each Liquidity Bank agree that they shall not institute against (or cause in any other manner), or join or assist any other Person in instituting against (or causing in any manner), the Note Purchaser any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, or for the purpose of appointing a receiver, liquidator, assignee, custodian, sequestrator or other similar official for the Note Purchaser or any substantial part of the property of the Note Purchaser, or for the purpose of ordering the winding up and/or liquidation of the affairs of the Note Purchaser, prior to the date that is one year and one day after the latest maturing Commercial Paper issued by the Note Purchaser is paid in full. The obligations of the Lessee, the Lessor, the Administrative Agent and the Liquidity Bank set forth in this Section 16.16 shall survive any termination of this Participation Agreement.

        SECTION 16.17    Assignment of Note Purchaser's Interest in Note Purchase Agreement to Liquidity Banks.    In the event that the Note Purchaser sells all of its interests under the Loan Documents to the Liquidity Banks pursuant to the Asset Purchase Agreement, the Note Purchaser, without further act, will be deemed to have assigned to the Liquidity Banks all of its right, title and interest (other than rights due or to become due under Article XIII, which shall remain fully enforceable by the Note Purchaser and each of its related Indemnitees) in the Operative Documents, and the Liquidity Banks will be deemed to have assumed as of the date of transfer as aforesaid all obligations of the Note Purchaser. The foregoing does not limit or otherwise affect any provisions of any of the Liquidity Documents with respect to the effect, as between the Note Purchaser and any Liquidity Bank, of any assignment by the Note Purchaser to the Liquidity Banks.

[THE REMAINDER OF THIS PAGE HAS
BEEN INTENTIONALLY LEFT BLANK]

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        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.

		ADOBE SYSTEMS INCORPORATED, as Lessee and as Construction Agent
		By:		/s/  BRUCE R. CHIZEN       Name: Bruce R. Chizen Title: President and Chief Executive Officer
		By:		/s/  MURRAY J. DEMO       Name: Murray J. Demo Title: Senior Vice President and Chief     Financial Officer
		SELCO SERVICE CORPORATION, as Lessor
		By:		/s/  DONALD C. DAVIS       Name: Donald C. Davis Title: Vice President
		KEYBANK NATIONAL ASSOCIATION, as Administrative Agent
		By:		/s/  THOMAS A. CRANDALL       Name: Thomas A. Crandall Title: Senior Vice President
		VICTORY RECEIVABLES CORPORATION, as Note Purchaser
		By:		/s/  KAREN A. GRANQUIST       Name: Karen A. Granquist Title: Secretary
		THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH, as Conduit Agent
		By:		/s/  ADDIYA REDDY       Name: A K Reddy Title: Vice President

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		KEYBANK NATIONAL ASSOCIATION, as Liquidity Bank
		By:		/s/  THOMAS A. CRANDELL       Name: Thomas A. Crandell Title: Senior Vice President
		BNP PARIBAS, as Liquidity Bank and Syndication Agent
		By:		/s/ Tjalling Terpatra    /s/ Janice S. H. Ho Name: Tjalling Terpatra    Janice S. H. Ho Title:    Director                  Director
		THE CHASE MANHATTAN BANK, as Liquidity Bank
		By:		/s/  DAVID GIBBS       Name: David Gibbs Title: VP
		BANK OF MONTREAL, as Liquidity Bank
		By:		/s/  KANU MODI       Name: Kanu Modi Title: Director
		FLEET NATIONAL BANK, as Liquidity Bank
		By:		/s/  WILLIAM S. ROWE       Name: William S. Rowe Title: Vice President
		THE NORTHERN TRUST COMPANY, as Liquidity Bank
		By:		/s/  ASHISH S. BHAGWAT       Name: Ashish S. Bhagwat Title: Second Vice President

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SCHEDULE I
TO PARTICIPATION AGREEMENT

COMMITMENTS

Participant		Note Purchaser's Commitment			Lessor Commitment			Liquidity Commitment
NOTE PURCHASER
Victory Receivables Corporation		$	112,905,000		$	0		$	0
LESSOR
SELCO Service Corporation		$	0		$	4,095,000		$	0
Aggregate Commitment Amount:		$	117,000,000
LIQUIDITY BANKS
KeyBank National Association		$	0		$	0		$	30,163,100
BNP Paribas		$	0		$	0		$	25,000,000
The Chase Manhattan Bank		$	0		$	0		$	20,000,000
Bank of Montreal		$	0		$	0		$	15,000,000
Fleet National Bank		$	0		$	0		$	15,000,000
The Northern Trust Company		$	0		$	0		$	10,000,000

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SCHEDULE II
TO PARTICIPATION AGREEMENT

NOTICE INFORMATION, WIRE INSTRUCTIONS AND FUNDING OFFICES

LESSEE AND CONSTRUCTION AGENT:
ADOBE SYSTEMS INCORPORATED 345 Park Avenue San Jose, California 95110
Attention:			Treasurer
Facsimile No.:			(408) 537-4035
Telephone No.:			(408) 536-3272
With a copy to:
Shartsis, Friese & Ginsburg One Maritime Plaza, 18th Floor San Francisco, California 94111
Attention:			David H. Kremer, Esq.
Wire Transfer Instructions:
	Bank:		The Northern Trust Co.
	ABA Number:		071 000 152
	Account Name:		Adobe Systems Incorporated
	Account Number:		60895
	Ref:		Almaden Tower Lease
ADMINISTRATIVE AGENT:
KEYBANK NATIONAL ASSOCIATION c/o Key Technology Finance 601 108th Avenue NE Bellevue, Washington 98004
Facsimile No.:			(425) 709-4565
Telephone No.:			(425) 709-4584
Account:
	Bank:		KeyBank National Association
	ABA Number:		125 000 574
	Account Name:		Western Loan Services—Specialty Services
	Account Number:		3072
	Ref:		Adobe Systems
LESSOR:
SELCO SERVICE CORPORATION c/o KeyCorp. Leasing 66 South Pearl Street     8th Floor Albany, New York 12207
Attention:			Donald Davis
Facsimile No.:			(518) 257-8823
Telephone No.:			(518) 257-8254

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Wire Transfer Instructions:
	Bank:		KeyBank National Association
	ABA Number:		125 000 574
	Account Name:		Western Loan Services—Specialty Services
	Account Number:		3072
	Ref:		Adobe Systems
NOTE PURCHASER:
VICTORY RECEIVABLES CORPORATION c/o The Bank of Tokyo Mitsubishi, Ltd., New York Branch 1251 Avenue of the Americas, 10th Floor New York, New York 10020
Attention:			Aditya Reddy, Vice President
Facsimile No.:			(212) 782-6448
Telephone No.:			(212) 782-6957
With a copy to:
Orrick, Herrington & Sutcliffe LLP 666 Fifth Avenue New York, New York 10103
Attention:			Stephen Sawyier
Facsimile No.:			(212) 506-5151
Telephone No.:			(212) 506-5095
Wire Transfer Instructions:
	Bank:		Bankers Trust Company
	ABA Number:		021001033
	Account Number:		01419647
	Ref:		Victory Receivables Corporation—Adobe
CONDUIT AGENT:
THE BANK OF TOKYO-MITSUBISHI, LTD., NEW YORK BRANCH 1251 Avenue of the Americas, 10th Floor New York, New York 10020
Attention:			Aditya Reddy, Vice President
Facsimile No.:			(212) 782-6448
Telephone No.:			(212) 782-6957
With a copy to:
Orrick, Herrington & Sutcliffe LLP 666 Fifth Avenue New York, New York 10103
Attention:			Stephen Sawyier
Facsimile No.:			(212) 506-5151
Telephone No.:			(212) 506-5095

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Wire Transfer Instructions:
	Bank:		Bankers Trust Company
	ABA Number:		021001033
	Account Number:		01419647
	Ref:		Victory Receivables Corporation—Adobe
LIQUIDITY BANKS:
KEYBANK NATIONAL ASSOCIATION c/o Key Technology Finance 601 108th Avenue NE Bellevue, Washington 98004
Facsimile No.:			(425) 709-4565
Telephone No.:			(425) 709-4584
Wire Transfer Instructions:
	Bank:		KeyBank National Association
	ABA Number:		125 000 574
	Account Name:		Western Loan Services—Specialty Services
	Account Number:		3072
	Ref:		Adobe Systems
Domestic Lending Office:
	c/o Key Technology Finance 601 108th Avenue NE Bellevue, Washington 98004
	Facsimile No.:		(425) 709-4565
	Telephone No.:		(425) 709-4584
Euro-Dollar Lending Office:
	c/o Key Technology Finance 601 108th Avenue NE Bellevue, Washington 98004
	Facsimile No.:		(425) 709-4565
	Telephone No.:		(425) 709-4584
BNP PARIBAS 725 South Figueroa Street, Suite #2090 Los Angeles, California 90017
Attention:			Tjalling Terpstra—Director
Facsimile No.:			(213) 488-9602
Telephone No.:			(213) 488-9120
Wire Transfer Instructions:
	Bank:		The Federal Reserve Bank of New York
	ABA Number:		026007689 BNP Paribas
	Account Name:		BNP/BNP Paribas San Francisco
	Account Number:		ACA 14334000176
	Ref:
Domestic Lending Office:
	725 South Figueroa Street, Suite #2090 Los Angeles, California 90017

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Euro-Dollar Lending Office:
	725 South Figueroa Street, Suite #2090 Los Angeles, California 90017
THE CHASE MANHATTAN BANK One Bush Street, 11th Floor San Francisco, California 94104
Attention:			Monique Ho One Bush Street, 11th Floor San Francisco, California 94104
Facsimile No.:			(415) 439-3013
Telephone No.:			(415) 371-3358
With a copy to:
			David Gibbs 111 West 40th Street, 10th Floor New York, New York 10018
Facsimile No.:			(212) 391-4098
Telephone No.:			(212) 403-5112
Wire Transfer Instructions:
	Bank:		The Chase Manhattan Bank
	ABA Number:		021000021
For further credit to:
	The Chase Manhattan Bank Commercial Loan Operations Four Chase Metrotech, 13th Floor New York, New York
	Attn:		Commercial Loan Operations
	Account Name:		9420-Victory Receivables Corp.
	Account Number:		CLAS #0002-200000 1990
Domestic Lending Office:
Euro-Dollar Lending Office:
BANK OF MONTREAL 115 South LaSalle Street, 12W Chicago, Illinois 60603
Attention:			Joseph Linder
Facsimile No.:			(312) 750-6057
Telephone No.:			(312) 750-3784

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Wire Transfer Instructions:
	Bank:		Harris Bank
	ABA Number:		071000288
	Account Name:
	Account Number:		1833201
	Ref:		Adobe Systems
For further credit to:
	Bank of Montreal, Chicago
	Account Number:		1833201
	Attn:		Client Services
	Ref:		Adobe Systems Inc.
Domestic Lending Office:
	115 South LaSalle Street, 12W Chicago, Illinois 60603
Euro-Dollar Lending Office:
	115 South LaSalle Street, 12W Chicago, Illinois 60603
FLEET NATIONAL BANK 100 Federal Street Boston, Massachusetts
Attention:			William Rowe
Facsimile No.:
Telephone No.:			(617) 434-6396
Wire Transfer Instructions:
	Bank:		Fleet National Bank
	ABA Number:		011000138
	Account Name:
	Account Number:
	Ref:
Domestic Lending Office:
Euro-Dollar Lending Office:

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THE NORTHERN TRUST COMPANY 50 South LaSalle, 11th Floor Chicago, Illinois 60675
Attention:			Ashish S. Bhagwat
Facsimile No.:			(312) 630-6062
Telephone No.:			(312) 630-6203
Wire Transfer Instructions:
	Bank:		The Northern Trust Bank
	ABA Number:		071000152
	Account Name:		Adobe Systems Inc.
	Account Number:		5186401000
	Client Acct #:		02000279172
	Ref:		Adobe Systems Inc.
	Credit to:		Commercial Loan Dept.
Domestic Lending Office:
	50 South LaSalle, 11th Floor Chicago, Illinois 60675
Euro-Dollar Lending Office:
	50 South LaSalle, 11th Floor Chicago, Illinois 60675

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SCHEDULE III
TO PARTICIPATION AGREEMENT

DESCRIPTION OF LAND

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SCHEDULE IV
TO PARTICIPATION AGREEMENT

DISCLOSURE SCHEDULE

Item 8.1(q)—Subsidiaries

Item 9.2(a)—Existing Indebtedness

Item 9.2(b)—Existing Liens

Item 9.2(e)(i)—Investment Policy of Lessee

Item 9.2(e)(ii)—Certain Existing Investments

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EXHIBIT A-1

Form of Closing Date Notice

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EXHIBIT A-2

Form of Advance Request

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EXHIBIT B

Form of Authorized Officer's Certificate of Construction Agent and Lessee

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EXHIBIT C

Form of Consent and Acknowledgment

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EXHIBIT D

Form of Compliance Certificate

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EXHIBIT E-1

Form of Lessor Mortgage

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EXHIBIT E-2

Form of Lender Mortgage

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EXHIBIT F

Forms of Opinions

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APPENDIX A
TO PARTICIPATION AGREEMENT

DEFINITIONS AND INTERPRETATION

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Lease Financing of Office Tower
Located in City of San Jose, Santa Clara County, California
for Adobe Systems Incorporated

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        A.    Interpretation.    In each Operative Document, unless a clear contrary intention appears:

        B.    Computation of Time Periods.    For purposes of computation of periods of time under the Operative Documents, the word "from" means "from and including" and the words "to" and "until" each mean "to but excluding".

        C.    Accounting Terms and Determinations.    All terms of an accounting or financial nature shall be interpreted, all accounting determinations under the Operative Documents shall be made, and all financial statements required to be delivered under the Operative Documents shall be prepared, as set forth in Section 4.9 of the Participation Agreement.

        D.    Conflict in Operative Documents.    If there is any conflict between any Operative Documents, such Operative Document shall be interpreted and construed, if possible, so as to avoid or minimize such

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conflict but, to the extent (and only to the extent) of such conflict, the Participation Agreement shall prevail and control.

        E.    Legal Representation of the Parties.    The Operative Documents were negotiated by the parties with the benefit of legal representation and any rule of construction or interpretation otherwise requiring the Operative Document to be construed or interpreted against any party shall not apply to any construction or interpretation hereof or thereof.

        F.    Defined Terms.    Unless a clear contrary intention appears, terms defined herein have the respective indicated meanings when used in each Operative Document.

        "Acceleration Event" is defined in the Note Purchase Agreement.

        "Acceptable Condition" means, after the occurrence of any Casualty or Condemnation affecting the Property, that the Property has been restored to substantially its condition as it existed immediately prior to the applicable Casualty or Condemnation.

        "Account" means the account established with the Administrative Agent pursuant to which all payments by the Lessee under the Operative Documents shall be made. The Account shall be specified on Schedule II to the Participation Agreement.

        "Administrative Agent" means KeyBank National Association, as Administrative Agent for the Participants, together with its successors and assigns (including any successor administrative agent pursuant to Section 15.9 of the Participation Agreement).

        "Adobe Incentive Partners" means Adobe Incentive Partners, L.P., a California limited partnership, in which the Lessee is the general partner and all of the limited partners are the Lessee or Affiliates of the Lessee.

        "Adobe Incentive Partners Distributions" means distributions of cash or securities owned by Adobe Incentive Partners, repurchases of unvested partnership interests in Adobe Incentive Partners, and issuances of partnership interests in Adobe Incentive Partners.

        "Advance" means an advance of funds by the Lessor pursuant to Article III of the Participation Agreement.

        "Advance Request" is defined in Section 3.4(a) of the Participation Agreement.

        "Affected Party" means any Participant or any other Credit Support Provider.

        "Affiliate" means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary, ten percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that controls, is controlled by or is under common control with such Person or any Affiliate of such Person or (c) each of such Person's officers, directors, general partners and, if such Person is a joint venture organized as a separate legal entity, joint venturers having powers comparable to a general partner; provided, however, that in no case shall any of the following Persons be deemed to be an Affiliate of the Lessee or any of its Subsidiaries for purposes of this Agreement: (i) the Administrative Agent or any Participant, (ii) any VC Partnership, (iii) the general partner of any VC Partnership which would otherwise be deemed an Affiliate solely because it acts as general partner and controls such VC Partnership, (iv) Salon Media Group, Liquent, Datalogics, Winsoft, S.A. and any other Person in which the Lessee or any Subsidiary of the Lessee holds more than ten percent (10%) of the Equity Securities thereof solely as a consequence of the distribution of such Equity Securities by Adobe Incentive Partners or any VC Partnership, or (v) any Person in which the Lessee or any Subsidiary of the Lessee holds more than ten percent (10%) of the Equity Securities thereof if and for so long as such Person has a net worth of less than $100,000,000. For the purpose of this definition, "control" of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies.

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        "After Tax Basis" means, with respect to any payment to be received or accrued by a Person ("base payment"), the sum of (a) the amount of such base payment plus (b) a further payment, if necessary, to such Person such that after reduction for all Taxes imposed on such Person as a result of the receipt or accrual of both the base payment and such further payments, such Person receives a net amount equal to base payment otherwise required to be made.

        "Aggregate Commitment Amount" means $117,000,000.

        "Aggregate Liquidity Commitment Amount" means $115,163,100.

        "Applicable Law" means all existing and future applicable laws, rules, regulations (including Environmental Laws), statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by, any Governmental Authority, and applicable judgments, decrees, injunctions, writs, orders or like action of any court, administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction (including those pertaining to health, safety or the environment (including, without limitation, wetlands) and those pertaining to the zoning, construction, use or occupancy of the Property) or in each case affecting the Lessee, the Construction Agent, a Tax Indemnitee, an Indemnitee, the Property or any material interests in any other kind of property or asset, whether real, personal or mixed, or tangible or intangible, of the Lessee or the Construction Agent.

        "Applicable Lending Office" means, with respect to any Liquidity Bank, (a) in the case of its Base Rate Loans/Lessor Amounts, its Domestic Lending Office, and (b) in the case of its LIBOR Loans/Lessor Amounts, its Euro-Dollar Lending Office.

        "Applicable Margin" means, with respect to any Loan having an Interest Rate determined by reference to the BBA LIBO Rate, the percentage per annum set forth in the table below based on the Pricing Level in effect on such date:

        "Applicable Payor" is defined in Section 13.13 of the Participation Agreement.

        "Appraisal" means an appraisal of the Property by the Appraiser as if constructed substantially in accordance with the Plans and Specifications, which Appraisal complies in all material respects with all of the provisions of the Financial Institutions Reform, Recovery and Enforcement Act of 1989, as amended, the rules and regulations adopted pursuant thereto, and all other Applicable Law addressed to the Lessor and will appraise the Fair Market Sales Value of the Property as of the Completion Date as built substantially in accordance with the Plans and Specifications.

        "Appraiser" means Cushman & Wakefield of California, Inc.

        "Appurtenant Rights" means, with respect to the Land, (i) all agreements, easements, rights of way or use, rights of ingress or egress, privileges, appurtenances, tenements, hereditaments and other rights and benefits at any time belonging or pertaining to the Land or the Improvements thereon, including, without limitation, the use of any streets, ways, alleys, vaults or strips of land adjoining, abutting, adjacent or contiguous to the Land and (ii) all permits, licenses and rights, whether or not of record, appurtenant to the Land.

        "Architect" means, collectively, the Interior Architect and the Exterior Architect.

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        "Asset Purchase Agreement" means that certain Asset Purchase Agreement, dated as of September 26, 2001, among the Program Administrator, the Note Purchaser and the Liquidity Banks.

        "Asset Purchase Price" means any "Purchase Price" under, and as defined in, the Asset Purchase Agreement.

        "Assigned Agreement" is defined in Section 2.1(a) of the Security and Assignment Agreement.

        "Assignment of Lease, Rent and CAA" means the Assignment of Lease, Rent and Construction Agency Agreement dated as of the date of the Participation Agreement, from the Lessor, as assignor, to the Administrative Agent and the Lenders, as assignees.

        "Authorized Officer" means any officer of the Lessee or the Construction Agent designated as such in writing to the Administrative Agent by the Lessee or the Construction Agent, as the case may be.

        "Authorized Officer's Certificate" means, with respect to the Lessee or the Construction Agent, a certificate signed by any Authorized Officer of such Person, which certificate shall certify as true and correct the subject matter being certified to in such certificate.

        "Available Liquidity Commitment" means, at any time with respect to a Liquidity Bank, an amount equal to the excess, if any, of (a) the Liquidity Commitment of such Liquidity Bank, minus (b) the sum of (i) the aggregate outstanding principal amount of all Liquidity Loans of such Liquidity Bank and (ii) the aggregate outstanding principal amount of all Loans of such Liquidity Bank.

        "Base Rate" means, for any period, a fluctuating interest rate per annum as shall be in effect from time to time which rate per annum shall at all times be equal to the higher of (a) the rate of interest established by the Administrative Agent at its principal office, from time to time, as its prime rate, whether or not publicly announced, which interest rate may or may not be the lowest rate charged by it for commercial loans or other extensions of credit and (b) the sum of (i) the Federal Funds Effective Rate plus (ii) ¹/2 of 1% per annum.

        "Base Rate Loan(s)/Lessor Amount(s)" means a Loan or Lessor Amount, as the case may be, accruing interest or Yield at the Base Rate.

        "Basic Lease Term" is defined in Section 2.3 of the Lease.

        "Basic Lease Term Commencement Date" means the Completion Date.

        "Basic Rent" means, as determined as of any Rent Payment Date, the amounts payable pursuant to Section 4.1 of the Participation Agreement.

        "Basic Rent Period" means,

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        The foregoing provisions relating to Basic Rent Periods are subject to the following:

        "Basic Term Extension Effective Date" is defined in Section 11.2(b) of the Participation Agreement.

        "Basic Term Extension Request" is defined in Section 11.2(b) of the Participation Agreement.

        "Basic Term Extension Response Date" is defined in Section 11.2(b) of the Participation Agreement.

        "BBA LIBO Rate" means, with respect to any Basic Rent Period for any LIBOR Loan/Lessor Amount, a rate per annum equal to the quotient (rounded upward if necessary to the nearest 1/100 of one percent) of

divided by

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        If, for any reason, the BBA LIBO Rate is not available from the aforementioned sources for any Basic Rent Period, the Administrative Agent shall determine the BBA LIBO Rate for such Basic Rent Period based upon the Reference Bank Rate.

        "Break Costs" means any amounts due and payable by the Lessee pursuant to Section 13.10 of the Participation Agreement.

        "Business Day" means any day on which (a) commercial banks are not authorized or required to close in San Francisco, California or New York, New York and (b) if such Business Day is reflected to a LIBOR Loan/Lessor Amount, dealings in Dollar deposits are carried out in the London interbank market.

        "CAA Default" means (a) any CAA Event of Default, (b) any Unwind Event or (c) any event or circumstance not yet constituting a CAA Event of Default or Unwind Event that, with the giving of any notice or the lapse of any period of time or both, would become a CAA Event of Default or Unwind Event.

        "CAA Event of Default" means a "CAA Event of Default" as defined in Section 5.1 of the Construction Agency Agreement.

        "Capital Adequacy Requirement" is defined in Section 13.11 of the Participation Agreement.

        "Capital Leases" means any and all lease obligations that, in accordance with GAAP, are required to be capitalized on the books of a lessee.

        "Capitalized Interest" means, with respect to the principal amounts of the Loans, all interest accruing on the Loans made during and for any Basic Rent Period ending on or before the Basic Lease Term Commencement Date (or, as applicable, attributable to Loans made during and for the portion of any Basic Rent Period commencing prior to, and ending after, the Basic Lease Term Commencement Date, such portion of such Basic Rent Period to be the portion occurring prior to such Basic Lease Term Commencement Date), including all interest on any such Loans that were made in connection with an Advance for the purpose of financing Capitalized Interest and/or Capitalized Yield.

        "Capitalized Yield" means, with respect to the Lessor Amounts, all Yield accruing on the Lessor Amounts attributable to Advances made during and for any Basic Rent Period ending on or before the Basic Lease Term Commencement Date (or, as applicable, attributable to Advances made during and for the portion of any Basic Rent Period commencing prior to, and ending after, the Basic Lease Term Commencement Date, such portion of such Basic Rent Period to be the portion occurring prior to such Basic Lease Term Commencement Date), including all Yield on any such Lessor Amounts that were made in connection with an Advance for the purpose of financing Capitalized Interest and/or Capitalized Yield.

        "Casualty" means any damage or destruction of all or any portion of the Property as a result of a fire, flood, earthquake or other casualty or catastrophe.

        "Certifying Party" is defined in Section 21.1 of the Lease.

        "Change of Law" is defined in Section 13.7 of the Participation Agreement.

        "Claims" means any and all obligations, liabilities, losses, actions, suits, judgments, penalties, fines, claims, demands, settlements, costs and expenses (including, without limitation, reasonable legal fees and expenses) of any nature whatsoever.

        "Closing Date" means the date that the Lessor and the Ground Lessor enter into the Ground Lease, which date shall be a Business Day on or after the Documentation Date on which each of the conditions precedent set forth in Section 6.1 of the Participation Agreement have been satisfied or waived by the applicable parties set forth therein.

        "Closing Date Notice" is defined in Section 3.4(a) of the Participation Agreement.

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        "Code" means the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and the rulings issued thereunder. Section references to the Code are to the Code, as in effect at the Documentation Date and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor.

        "Collateral" is defined in Section 2.1 of the Security and Assignment Agreement.

        "Commercial Paper" means short term debt obligations issued by the Note Purchaser to fund its Notes.

        "Commitment" means (a) as to the Note Purchaser, its Note Purchaser's Commitment, (b) as to the Lessor, the Lessor Commitment and (c) as to any Liquidity Bank, its Liquidity Commitment.

        "Commitment Period" means the period from and including the Documentation Date to but not including the Commitment Termination Date.

        "Commitment Termination Date" means the earliest of:

        "Completion" means such time as the conditions set forth in Section 6.3 of the Participation Agreement are satisfied with respect to the Property.

        "Completion Costs" means any and all costs of any kind or description incurred by the Administrative Agent or any Participant in completing the construction of the Property following a CAA Event of Default or Unwind Event, including, without limitation, costs of removal and restoration of defective work, shut down and startup costs for any party under any of the Construction Documents, redesign, rebidding, repermitting and other costs incurred in connection with any revision of the applicable Plans and Specifications required by Applicable Law and construction supervision costs, carry during any period of delay in the completion of the Property beyond the Outside Completion Date and reasonable legal fees and expenses incurred in connection with the negotiation, enforcement, termination or any other action or proceeding in connection with any of the Construction Documents or any of the foregoing.

        "Completion Date" means the earliest date on which Completion shall have occurred.

        "Completion Date Advance" is defined in Section 3.6 of the Participation Agreement.

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        "Condemnation" means, with respect to the Property, any condemnation, requisition, confiscation, seizure or other taking or sale of the use, access, occupancy, easement rights or title to the Property or any part thereof, wholly or partially (temporarily or permanently), by or on account of any actual or threatened eminent domain proceeding or other taking of action by any Person having the power of eminent domain, including an action by a Governmental Authority to change the grade of, or widen the streets adjacent to, the Property or alter the pedestrian or vehicular traffic flow to the Property so as to result in change in access to the Property (such that there is a material adverse effect on the operation of the Property), or by or on account of an eviction by paramount title or any transfer made in lieu of any such proceeding or action. A "Condemnation" shall be deemed to have occurred on the earliest of the dates that use, occupancy or title vests in the condemning authority.

        "Conduit Agent" means The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, and its permitted successors and assigns.

        "Conduit Loan" means (a) any funding under the Notes pursuant to Section 5 of the Note Purchase Agreement and Section 3.3 of the Participation Agreement or (b) any funding under the Notes pursuant to Section 3.7(b) of the Participation Agreement.

        "Consent and Acknowledgment" means a Consent and Acknowledgment delivered by any party (other than an Obligor) to any Construction Document, substantially in the form of Exhibit C to the Participation Agreement.

        "Construction" means the construction and installation of all Improvements contemplated by the Plans and Specifications for the Property.

        "Construction Agency Agreement" means the Construction Agency Agreement, dated as of the date of the Participation Agreement, between the Construction Agent and the Lessor.

        "Construction Agent" means Adobe Systems Incorporated, a Delaware corporation, as construction agent under the Construction Agency Agreement.

        "Construction Budget" means the Initial Construction Budget, as such budget may be modified from time to time by the Construction Agent in accordance with Section 2.8 of the Construction Agency Agreement.

        "Construction Contract" is defined in clause (b) of the first recital of the Participation Agreement.

        "Construction Costs" means the fees, expenses, costs and other items related to the Construction of the Property and specified below:

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        "Construction Delay Notice" is defined in Section 2.6(a)(iv) of the Construction Agency Agreement.

        "Construction Documents" means, collectively, the Construction Contract and any other agreements with architects, contractors or vendors entered into by the Construction Agent in connection with the Construction of the Property.

        "Construction Period" means the period commencing on the Closing Date and ending on the Completion Date for the Property.

        "Construction Purchase" means any purchase of the Property by the Construction Agent pursuant to Section 6.1 of the Construction Agency Agreement.

        "Construction Recourse Amount" means, as determined as of any date during the Construction Period, an amount equal to 89.95% of the Eligible Construction Costs.

        "Construction Return" means the relinquishment by the Construction Agent of all of its right, title and interest in the Property in accordance with Section 7.2 of the Construction Agency Agreement.

        "Construction Return Date" means any date specified by the Lessor or the Administrative Agent as a Construction Return Date in a Construction Return Notice, which date shall be no earlier than the fifth (5^th) business Day following delivery of such Construction Return Notice.

        "Construction Return Notice" means any written notice delivered by the Lessor or the Administrative Agent to the Construction Agent pursuant to Section 5.3(b)(ii) or 5.5 of the Construction Agent, requiring the Construction Agent to consummate a Construction Return of the Property and pay the Construction Recourse Amount.

        "Construction Termination Costs" means any costs or expenses incurred by the Administrative Agent or any Participant in connection with the termination of any of the Construction Documents following the occurrence of a CAA Event of Default or Unwind Event.

        "Contingent Obligation" means, with respect to any Person, (a) any Guaranty Obligation of that Person; and (b) any direct or indirect obligation or liability, contingent or otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings or payments, (ii) as a partner or joint venturer in any partnership or joint venture, (iii) to purchase any materials, supplies or other property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or tendered, or such services

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are ever performed or tendered, (iv) in respect to any Rate Contract that is not entered into in connection with a bona fide hedging operation that provides offsetting benefits to such Person, or (v) to purchase or sell Equity Securities or other securities of any Person. The amount of any Contingent Obligation shall (subject, in the case of Guaranty Obligations, to the last sentence of the definition of "Guaranty Obligation") be deemed equal to the maximum reasonably anticipated liability in respect thereof; provided, that (A) in the case of item (b)(v) of this definition, the amount of the Contingent Obligation with respect to the purchase or sale of such Equity Securities or other securities shall be the net settlement amount to be paid in cash or securities, and (B) in the case of item (b)(iv) of this definition, the Contingent Obligation with respect to such Rate Contracts shall be marked to market on a current basis.

        "Contingent Payments" means amounts payable to the Administrative Agent or any Participant pursuant to Article XIII of the Participation Agreement.

        "Contractual Obligation" of any Person means, any indenture, note, lease, loan agreement, security, deed of trust, mortgage, security agreement, guaranty, instrument, contract, agreement or other form of contractual obligation or undertaking to which such Person is a party or by which such Person or any of its property is bound.

        "Cost Overrun Advances" means any Advances (including any Advances made pursuant to Section 3.5 of the Participation Agreement for the purpose of financing Facility Fees, Capitalized Interest or Capitalized Yield) made for the purpose of paying Construction Costs to the extent such Advances result in the Property Cost exceeding the Aggregate Commitment Amount.

        "CP Rate" means, with respect to the Note Purchaser, the all-in-cost of funding of its acquisition of the Notes and the funding of the advances thereunder to the extent such funding is being provided by the Note Purchaser's issuance of Commercial Paper (including discount, dealer commissions and such other amounts as the Conduit Agent reasonably determines to be appropriate). The determination of the Note Purchaser's CP Rate, as well as the determination of which maturities of Commercial Paper to issue, will be made by the Conduit Agent, whose determination shall be binding for all purposes absent manifest error; provided, however, that the Conduit Agent shall consult with the Lessee concerning Commercial Paper maturities. Accrued discount on the Commercial Paper maturing between Basic Rent Payment Dates will be capitalized.

        "Credit Support Provider" means, collectively, each Liquidity Bank and each other person providing liquidity or credit support to the Note Purchaser.

        "Debt/EBITDA Ratio" means, with respect to the Lessee for any consecutive four-quarter period, the ratio, determined on a consolidated basis in accordance with GAAP, of:

        to

        "Deed" means a quitclaim, grant or special warranty deed, as applicable, with respect to the real property comprising the Property, in conformity with Applicable Law and appropriate for recording with the applicable Governmental Authorities, conveying fee simple title to the transferee thereunder.

        "Default Rate" means, (a) with respect to any Loan, any interest on any Loan, Fees or any other amount (other than amounts described in clause (b)), the Interest Rate (including any Applicable Margin) then in effect for such Loan, plus two percent (2%) or, if no Interest Rate is applicable, whether in respect of interest, Fees or other amounts, then the Default Rate shall be the Base Rate plus the Applicable Margin plus two percent (2%); and (b) with respect to any Lessor Amount or Yield, the Yield Rate plus two percent (2%). In the event that the Default Rate collected by any Participant is in violation of any

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usury or similar law, then the Default Rate shall be reduced to the extent necessary to cause the Default Rate to comply with any usury or similar law.

        "Documentation Date" is defined in Section 2.1 of the Participation Agreement.

        "Dollars" and "$" mean dollars in lawful currency of the United States of America.

        "Domestic Lending Office" means, with respect to the Lessor or any Liquidity Bank, (a) initially, its office designated as such on Schedule II to the Participation Agreement (or, in the case of any such Participant that becomes a Participant by an assignment pursuant to Section 12.1 of the Participation Agreement, its office designated as such in the applicable assignment agreement) and (b) subsequently, such other office or offices as such Participant may designate to the Administrative Agent as the office at which such Participant's Base Rate Loans/Lessor Amounts will thereafter be maintained and for the account of which all payments of principal of and interest on (in the case of Loans) or outstanding amount of and Yield on (in the case of Lessor Amounts) such Participant's Base Rate Loans/Lessor Amounts will thereafter be made.

        "EBITDA" means, with respect to the Lessee for any period, the sum, determined on a consolidated basis in accordance with GAAP, of the following:

plus

        "Eligible Construction Costs" means, as of any date of determination during the Construction Period, (a) the aggregate amount of Advances made for the purpose of paying Construction Costs plus (b) following a CAA Event of Default or Unwind Event, all Completion Costs and Construction Termination Costs which have been paid, or which have accrued or become payable (to the extent included in the basis of the facility under GAAP), minus (c) to the extent included in such Construction Costs, the portion of such Advances made for the purpose of financing accrued Yield on the Equity Amounts and the Upfront Fee and, to the extent relating to the fees and expenses of counsel for the Note Purchaser, Transaction Expenses of the type described in clauses (a) and (c) of the definition of Transaction Expenses, minus (d) all amounts paid by the Lessee (and not reimbursed by Advances) with respect to cost overruns pursuant to Section 3.1(d)(ii) of the Participation Agreement.

        "Eligible Note Purchaser" means (a) any bankruptcy remote commercial paper conduit sponsored by The Bank of Tokyo-Mitsubishi, Ltd.; (b) any Liquidity Bank; and (c) any special purpose, bankruptcy remote entity that has a rating from each of S&P and Moody's at least equal to the rating assigned by S&P and Moody's, respectively, to the Commercial Paper of the Note Purchaser.

        "Employee Benefit Plan" means any employee benefit plan within the meaning of Section 3(3) of ERISA maintained or contributed to by the Lessee or any ERISA Affiliate, other than a Multiemployer Plan.

        "End of the Term Report" is defined in Section 13.2(a) of the Participation Agreement.

        "Environmental Audit" means a Phase One environmental site assessment (the scope and performance of which meets or exceeds the then most current ASTM Standard Practice E1527 for Environmental Site Assessments: Phase One Environmental Site Assessment Process) of the Property.

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        "Environmental Laws" means the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980 (including the Superfund Amendments and Reauthorization Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules relating to the protection of human health and the environment, including all Governmental Rules pertaining to the reporting, licensing, permitting, transportation, storage, disposal, investigation or remediation of emissions, discharges, releases, or threatened releases of Hazardous Materials into the air, surface water, groundwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transportation or handling of Hazardous Materials.

        "Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Lessee or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

        "Environmental Violation" means, with respect to the Property, any activity, occurrence or condition that violates or results in non-compliance with any Environmental Law.

        "Equipment" means all equipment, apparatus, furnishings, fittings and personal property of every kind and nature whatsoever purchased, leased or otherwise acquired by the Lessor using the proceeds of the Loans and/or the Lessor Amounts and now or subsequently attached to, contained in or used or usable in any way in connection with any operation or letting of the Property, including but without limiting the generality of the foregoing, all conveyor equipment, shelving, racking, sortation equipment, mobile material handling equipment, screens, awnings, shades, blinds, curtains, draperies, artwork, carpets, rugs, storm doors and windows, display cases, counters, furniture and furnishings, heating, electrical, switch gear, uninterrupted power supply equipment, mechanical equipment, lighting, switchboards, plumbing, ventilation, air conditioning and air-cooling apparatus, refrigerating and incinerating equipment, escalators, generators, elevators, loading and unloading equipment and systems, stoves, ranges, laundry equipment, cleaning systems (including window cleaning apparatus), telephones, communications systems (including satellite dishes and antennae), televisions, computers, sprinkler systems and other fire prevention and extinguishing apparatus and materials, security systems, motors, engines, machinery, pipes, pumps, tanks, conduits, appliances, fittings and fixtures of every kind and description.

        "Equity Securities" of any Person means (a) all common stock, preferred stock, participations, shares, partnership interests or other equity interests in and of such Person (regardless of how designated and whether or not voting or non-voting) and (b) all warrants, options and other rights to acquire or sell any of the foregoing.

        "ERISA" means the Employee Retirement Income Security Act of 1974.

        "ERISA Affiliate" means any Person that is treated as a single employer with the Lessee under Section 414 of the IRC.

        "Estimated Completion Costs" means, as of any date of determination, the aggregate amount which the Lessee and the Construction Agent in good faith reasonably expect to be expended in order to achieve Completion, including Construction Costs (and including the then outstanding Property Cost).

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        "Euro-Dollar Lending Office" means, with respect to the Lessor or any Liquidity Bank, (a) initially, its office designated as such on Schedule II to the Participation Agreement (or, in the case of any such Participant that becomes a Participant by an assignment pursuant to Section 12.1 of the Participation Agreement, its office designated as such in the applicable assignment agreement) and (b) subsequently, such other office or offices as such Participant may designate to the Administrative Agent as the office at which such Participant's LIBOR Loans/Lessor Amounts will thereafter be maintained and for the account of which all payments of principal of and interest on (in the case of Loans) or outstanding amount of and Yield on (in the case of Lessor Amounts) such Participant's LIBOR Loans/Lessor Amounts will thereafter be made.

        "Event of Loss" means any of the following:

        "Excepted Payments" is defined in Section 2(a) of the Assignment of Lease, Rent and CAA.

        "Excess Casualty/Condemnation Proceeds" means at any time the excess, if any, of (a) the aggregate of all awards, compensation or insurance proceeds payable in connection with a Casualty or Condemnation minus (b) the sum of the Property Cost then outstanding, all accrued and unpaid Basic Rent and all accrued and unpaid Contingent Payments.

        "Excess Funds" means all available funds (pursuant to the applicable program collateral agreement and otherwise) of the Note Purchaser which are in excess of those needed to pay and discharge in full at maturity all debts, duties, liabilities and obligations of the Note Purchaser, including without limitation all Commercial Paper, due or to become due within 367 days from the date of the latest maturing Commercial Paper outstanding at the date of determination.

        "Excess Sales Proceeds" means the excess, if any, of (a) the aggregate of all proceeds received by the Lessor in connection with the Lessee's exercise of the Remarketing Option under Article XX of the Lease, less all fees, costs and expenses of the Lessor in connection with the exercise of its rights and remedies thereunder, minus (b) the outstanding Property Cost.

        "Expiration Date" means the earliest of (a) the Scheduled Basic Term Termination Date, (b) any date (other than the Completion Date) on which the Construction Agency Agreement shall have been terminated in accordance with the provisions thereof and (c) any date on which the Lease shall have been terminated in accordance with the provisions of the Lease or any of the other Operative Documents.

        "Exterior Architect" means Hellmuth, Obata & Kassabaum, Inc. or such other reputable architect as may be selected by the Construction Agent with the consent of the Lessor.

        "Extraordinary Lessor Investment" means any Lessor Amounts advanced by the Lessor, in its sole and absolute discretion, to the Construction Agent pursuant to Section 3.1(e) of the Participation Agreement for the purpose of paying Force Majeure Costs in the amount notified to the Lessor by the Construction Agent.

        "Face Value" means, with respect to any Commercial Paper, (a) the face amount of any such Commercial Paper that is issued at a discount or (b) the principal amount of any such Commercial Paper

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that bears interest plus the amount of interest to be paid on such Commercial Paper on the maturity date thereof.

        "Facility Fees" is defined in Section 4.6(a) of the Participation Agreement.

        "Fair Market Sales Value" means, with respect to the Property, the amount, which in any event shall not be less than zero, that would be paid in cash in an arm's-length transaction between an informed and willing purchaser and an informed and willing seller, neither of whom is under any compulsion to purchase or sell, respectively, for the ownership of the Property. For purposes of the Appraisal delivered in connection with the Closing Date, the Fair Market Sales Value of the Property shall be determined based on the assumption that the Property is in the condition and state of repair required under Section 9.1 of the Lease and the Lessee is in compliance with the other requirements of the Operative Documents relating to the condition of the Property.

        "Federal Funds Effective Rate" means, for any day, an interest rate per annum equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by the Administrative Agent.

        "Fees" is defined in Section 4.6 of the Participation Agreement.

        "Financial Statements" means, with respect to any accounting period for any Person, statements of income, shareholders' equity and cash flows of such Person for such period, and a balance sheet of such Person as of the end of such period, setting forth in each case in comparative form figures for the corresponding period in the preceding fiscal year if such period is less than a full fiscal year or, if such period is a full fiscal year, corresponding figures from the preceding annual audit, all prepared in reasonable detail and in accordance with GAAP.

        "Fixed Charge Coverage Ratio" means, with respect to the Lessee for any consecutive four-quarter period, the ratio, determined on a consolidated basis in accordance with GAAP, of:

        to

        "Fixtures" means all fixtures relating to the Improvements, including all components thereof, located in or on the Improvements, together with all replacements, modifications, alterations and additions thereto.

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        "Force Majeure Costs" means any costs of restoring the Property to an Acceptable Condition which costs result from the occurrence of a Casualty or Condemnation that (a) did not arise as a result of a Full Recourse Event and (b) did not result in a CAA Event of Default (other than a Limited Recourse CAA Event of Default) or occur after the occurrence of a CAA Event of Default (other than a Limited Recourse CAA Event of Default).

        "Force Majeure Event" means, with respect to the Construction of the Property, any event (the existence of which was not known and could not have been discovered through the exercise of reasonable due diligence by the Lessee or the Construction Agent prior to the Closing Date) beyond the control of the Lessee and the Construction Agent, including, but not limited to, strikes, lockouts, acts of God, adverse weather conditions, inability to obtain labor or materials, government activities, civil commotion and enemy action; but an event shall not be considered to have been beyond the control of the Lessee or the Construction Agent if such event (a) could have been avoided by exercising that standard of foresight, care and due diligence that an ordinary, prudent and competent person would exercise under the circumstances or (b) could have been avoided through the commercially reasonable expenditure of funds by the Lessee or Construction Agent from the proceeds of Advances.

        "Foreign Plan" means any employee benefit plan maintained by the Lessee or any of its Subsidiaries which is mandated or governed by any Governmental Rule of any Governmental Authority other than the United States.

        "Full Recourse Event" means (a) a Lease Event of Default described in Section 16.1(f) or 16.1(g) of the Lease or a CAA Event of Default described in Section 5.1(h) or 5.1(i) of the Construction Agency Agreement, (b) fraud, misapplication of funds, illegal acts or willful misconduct on the part of any Lessee Party, (c) any act or failure to act by any Lessee Party (other than failure to complete Construction of the Property when required pursuant to the Construction Agency Agreement or, except as provided in clause (b) above, to pay the costs of such Construction), or (d) any representation or warranty of any Lessee Party is untrue, inaccurate or incorrect and would have a Material Adverse Effect.

        "Funding Date" means any date on which an Advance is made.

        "Funding Office" means the office of each Participant identified on Schedule II to the Participation Agreement as its Funding Office.

        "Funding Request" is defined in Section 3.4(a) of the Participation Agreement.

        "GAAP" means generally accepted accounting principles and practices as in effect in the United States of America from time to time, consistently applied.

        "General Contractor" is defined in clause (b) of the first recital of the Participation Agreement.

        "General Contractor Payments" means amounts payable to the General Contractor from time to time under the Construction Contract, as set forth in the Construction Budget.

        "Governmental Action" means all permits, authorizations, registrations, consents, approvals, waivers, exceptions, variances, orders, judgments, written interpretations, decrees, licenses, exemptions, publications, filings, notices to and declarations of or with, or required by, any Governmental Authority, or required by any Applicable Law, and shall include, without limitation, all such environmental and operating permits and licenses that are required for the use, occupancy, zoning and operation of the Property as provided in the Lease.

        "Governmental Authority" means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

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        "Governmental Charges" means, with respect to any Person, all levies, assessments, fees, claims or other charges imposed by any Governmental Authority upon such Person or any of its property or otherwise payable by such Person.

        "Governmental Rule" means any law, rule, regulation, ordinance, order, code interpretation, judgment, decree, directive, guidelines, policy or similar form of decision of any Governmental Authority which is made publicly available.

        "Ground Lease" means that certain Ground Lease dated as of the Closing Date between the Ground Lessor, as lessor thereunder, and the Lessor, as lessee thereunder, with respect to the Land.

        "Ground Lessor" means Redevelopment Agency of the City of San Jose, a public body, corporate and politic, established pursuant to the Community Redevelopment Law of the State of California (Health and Safety Code Section 33000 et seq.), together with its permitted successors and assigns.

        "Guaranty Obligation" means, with respect to any Person, any direct or indirect liability of that Person with respect to any indebtedness, lease, dividend, letter of credit or other obligation (the "primary obligations") of another Person (the "primary obligor"), including any obligation of that Person, whether or not contingent, (a) to purchase, repurchase or otherwise acquire such primary obligations or any property constituting direct or indirect security therefor, or (b) to advance or provide funds (i) for the payment or discharge of any such primary obligation, or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level of income or financial condition of the primary obligor, or (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the holder of any such primary obligation against loss in respect thereof. The amount of any Guaranty Obligation shall be deemed equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty Obligation is made or, if not stated or if indeterminable, the maximum reasonably anticipated liability in respect thereof.

        "Hazardous Activity" means any activity, process, procedure or undertaking that (a) directly or indirectly (i) produces, generates or creates any Hazardous Material; (ii) causes or results in the Release of any Hazardous Material into the environment (including air, water vapor, surface water, groundwater, drinking water, land (including surface or subsurface), plant, aquatic and animal life); or (iii) involves the containment or storage of any Hazardous Material; and (b) is regulated as hazardous waste treatment, storage or disposal within the meaning of any Environmental Law.

        "Hazardous Materials" means all pollutants, contaminants and other materials, substances and wastes which are hazardous, toxic, caustic, harmful or dangerous to human health or the environment, including petroleum and petroleum products and byproducts, radioactive materials, asbestos, polychlorinated biphenyls and all materials, substances and wastes which are classified or regulated as "hazardous," "toxic" or similar descriptions under any Environmental Law.

        "Impositions" means any and all liabilities, losses, expenses and costs of any kind whatsoever for fees, taxes, levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever imposed by any Governmental Authority and any interest, penalties and other additions thereon ("Taxes") (including, without limitation, (a) real and personal property taxes, including personal property taxes on any property covered by the Lease that is classified by Governmental Authorities as personal property, and real estate or ad valorem taxes in the nature of property taxes; (b) sales taxes, use taxes and other similar taxes (including rent taxes and intangibles taxes); (c) any excise taxes; (d) real estate transfer taxes, conveyance taxes, mortgage taxes, intangible taxes, stamp taxes and documentary recording taxes and fees; (e) taxes that are, or are in the nature of, franchise, income, value added, privilege and doing business taxes, license and registration fees; and (f) assessments on the Property, including all assessments for public improvements or benefits (whether or not such improvements are commenced or completed during the Construction Period

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or the Basic Lease Term), and in each case all interest, additions to tax and penalties thereon), which at any time may be levied, assessed or imposed by any Federal, state, local or foreign authority upon or with respect to (i) any Tax Indemnitee, the Property or any part thereof, or interest therein, or any adjacent property or parcel that is aggregated with the Property or any part thereof for real estate tax and assessment purposes, or the Lessee or any sublessee or user of the Property; (ii) the financing, refinancing, demolition, construction, substitution, subleasing, assignment, control, condition, occupancy, servicing, maintenance, repair, ownership, possession, purchase, rental, lease, activity conducted on, delivery, insuring, use, operation, improvement, transfer, return or other disposition of the Property or any part thereof or interest therein; (iii) the Notes or interest therein or transfer thereof; (iv) the rentals, receipts or earnings arising from the Property or any part thereof or interest therein; (v) the Operative Documents or any payment made or accrued pursuant thereto; (vi) the income or other proceeds received with respect to the Property or any part thereof or interest therein upon the sale or disposition thereof; (vii) any contract (including the Construction Agency Agreement and the Construction Documents) relating to the construction, acquisition or delivery of the Improvements or any part thereof or interest therein; (viii) the issuance of the Notes; or (ix) otherwise in connection with the transactions contemplated by the Operative Documents.

        Notwithstanding anything in the first paragraph of this definition (except as provided in the final paragraph of this definition) the term "Impositions" shall not mean or include:

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Notwithstanding the foregoing, the exclusions from the definition of Impositions set forth in clauses (i) through (xi) above and shall not apply to any Taxes or any increase in Taxes imposed on a Tax Indemnitee to the extent that the imposition of such Taxes or such tax increase would not have occurred if on each Funding Date the Tax Indemnitees, collectively, had advanced funds to the Lessee in the form of a loan secured by the Property in an amount equal to the Advance funded on such Funding Date, with debt service for such loans equal to the Basic Rent payable on each Rent Payment Date and a principal balance at the maturity of such loan in an amount equal to the Property Cost at the end of the term of the Lease.

        "Improvements" means all Equipment, buildings, structures, Fixtures and other improvements of every kind existing at any time and from time to time and constructed and installed pursuant to the Construction

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Agency Agreement, or otherwise purchased, with amounts advanced by the Participants pursuant to the Participation Agreement, on or under the Land, together with any and all appurtenances to such buildings, structures or improvements, including sidewalks, utility pipes, conduits and lines, parking areas and roadways, and including all Modifications and other additions to or changes in the Improvements at any time.

        "Imputed Return" means, with respect to any date after the Expiration Date, an imputed return to each Participant equal to the Base Rate plus a margin of two percent (2.00%) per annum on such Participant's outstanding Loans or Lessor Amounts, as the case may be, during the period from the Expiration Date to such date of determination.

        "Indebtedness" of any Person means, without duplication:

        "Indemnitee" means each of the Lessor, the Note Purchaser, the Liquidity Banks, the Administrative Agent, the Conduit Agent, the Program Administrator, each Sub-Participant, their respective Affiliates and their respective successors, assigns, directors, shareholders, partners, officers, employees and agents.

        "Indirect Withholding Taxes" is defined in Section 13.13(a) of the Participation Agreement.

        "Initial Construction Budget" is defined in Section 6.1(k) of the Participation Agreement.

        "Insurance Requirements" means all terms and conditions of any insurance policy either required by the Lease to be maintained by the Lessee or required by the Construction Agency Agreement to be maintained, or arranged on behalf of the Lessor, by the Construction Agent, and all requirements of the issuer of any such policy.

        "Interest Expenses" means, with respect to any Person for any period, the sum, determined on a consolidated basis in accordance with GAAP, of (a) all interest on the Indebtedness of such Person paid or accrued during such period (including interest attributable to Capital Leases) plus (b) all fees in respect of outstanding letters of credit paid or accrued by such Person during such period.

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        "Interest Rate" means the rate of interest accruing on the Loans from time to time, as set forth in Section 4.2(a) of the Participation Agreement.

        "Interior Architect" means Arc Tec, Inc. or such other reputable architect as may be selected by the Construction Agent with the consent of the Lessor.

        "Investment" of any Person means any loan or advance of funds by such Person to any other Person (other than advances to employees of such Person for moving and travel expenses, drawing accounts and similar expenditures in the ordinary course of business), any purchase or other acquisition of any Equity Securities or Indebtedness of any other Person, any capital contribution by such Person to or any other investment by such Person in any other Person (including any Guaranty Obligations of such Person and any indebtedness of such Person of the type described in clause (g) of the definition of "Indebtedness" on behalf of any other Person); provided, however, that Investments shall not include (a) accounts receivable or other indebtedness owed by customers of such Person which are current assets and arose from sales of inventory in the ordinary course of such Person's business, (b) prepaid expenses of such Person incurred and prepaid in the ordinary course of business, or (c) acquisitions of Equity Securities subject to Section 9.2(e) of the Participation Agreement.

        "IRC" means the Internal Revenue Code of 1986.

        "Land" is defined in clause (a) of the first recital of the Participation Agreement.

        "Lease" means the Lease, dated as of the date of the Participation Agreement, between the Lessor and the Lessee.

        "Lease Default" means (a) any Lease Event of Default or (b) any event or circumstance not yet constituting a Lease Event of Default that, with the giving of any notice of the lapse of any period of time or both, would became a Lease Event of Default.

        "Lease Event of Default" means a "Lease Event of Default" as defined in Section 16.1 of the Lease.

        "Lease Term" means, collectively, the Construction Period and the Basic Lease Term.

        "Lender Mortgage" means a deed of trust on all of the interest of the Lessor in the Property, in appropriate recordable form in each relevant jurisdiction to grant to the Administrative Agent, for the benefit of the Lenders, a first priority Lien on the Lessor's interest in the Property, which deed of trust shall be substantially in the form of Exhibit E-2 to the Participation Agreement.

        "Lenders" means, collectively, the Note Purchaser and the Liquidity Banks and, after any refinancing pursuant to Section 11.4 of the Participation Agreement, includes the Refinancing Lender and the Specified Liquidity Bank.

        "Lessee" means Adobe Systems Incorporated, a Delaware corporation, as lessee under the Lease, and its successors and assigns expressly permitted under the Lease.

        "Lessee Parties" means, collectively, (a) the Lessee, (b) the Construction Agent, (c) any third party for which the Lessee or the Construction Agent has control or supervisory authority or delegated responsibility by contract or otherwise and (d) the respective Affiliates, employees, officers and agents of the foregoing.

        "Lessee's Credit Agreement" means that certain Credit Agreement dated as of August 11, 1999, among the Lessee, as the borrower, the lenders who are parties to the agreement from time to time, and ABN AMRO Bank N.V., as administrative agent, or any agreement which supersedes or replaces such agreement.

        "Lessor" means SELCO Service Corporation, an Ohio corporation doing business in California as Ohio SELCO Service Corporation, together with its successors and assigns permitted pursuant to Section 12.1 of the Participation Agreement.

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        "Lessor Amount" is defined at Section 3.2 of the Participation Agreement.

        "Lessor Commitment" means the Commitment of the Lessor in the amount set forth on Schedule I of the Participation Agreement or, upon delivery of an Assignment Agreement by any Person (whether as assignee Lessor or assignor Lessor) to the Administrative Agent pursuant to Section 12.1 of the Participation Agreement, such Person's Commitment described as a "Lessor Commitment" in such Assignment Agreement.

        "Lessor Lien" means any Lien, true lease or sublease or disposition of title arising as a result of (a) any act or omission of the Administrative Agent or any Participant that is not required or permitted by the Operative Documents or is in violation of any of the terms of the Operative Documents, (b) any claim against the Administrative Agent or any Participant against which the Lessee is not required to indemnify the Administrative Agent or any Participant pursuant to Article XIII or XIV of the Participation Agreement or Article X of the Construction Agency Agreement or (c) any claim against the Lessor arising out of any transfer by the Lessor of all or any portion of the interest of the Lessor in the Property or the Operative Documents other than the transfer of title to or possession of the Property by the Lessor pursuant to and in accordance with the Operative Documents or pursuant to the exercise of the remedies set forth in Section 16.2 of the Lease or Section 5.3 of the Construction Agency Agreement, (d) the gross negligence or willful misconduct of any Participant or (e) any claim against the Administrative Agent or any Participant that is unrelated to the transactions contemplated by the Operative Documents.

        "Lessor Mortgage" means a deed of trust on all of the interest of the Lessee and the Construction Agent in the Property, in appropriate recordable form in each relevant jurisdiction sufficient to grant to the Lessor a first priority Lien on the Lessee's and Construction Agent's interest in the Property, which deed of trust shall be substantially in the form of Exhibit E-1 to the Participation Agreement and otherwise satisfactory in form and substance to the Participants.

        "Lessor Percentage" means 3.5%.

        "LIBOR Loans/Lessor Amounts" means a Loan or Lessor Amount, as the case may be, accruing interest or Yield by reference to the BBA LIBO Rate.

        "Lien" means, with respect to any property, (a) any security interest, mortgage, pledge, lien, charge or other encumbrance in, of, or on such property or the income therefrom, including, without limitation, the interest of a vendor or lessor under a conditional sale agreement, or other title retention agreement, or any agreement to provide any of the foregoing, and (b) the filing of any financing statement or similar instrument under the Uniform Commercial Code or comparable law of any jurisdiction other than filings made for notice purposes only in connection with true (but not "synthetic") leases.

        "Limited Recourse CAA Event of Default" is defined in Section 5.3(b)(ii) of the Construction Agency Agreement.

        "Liquidity Agreement" means the Liquidity Agreement dated as of September 26, 2001, among the Note Purchaser, the Liquidity Banks, the Program Administrator and The Bank of Tokyo-Mitsubishi, Ltd., New York Branch, as administrative agent for the Liquidity Banks.

        "Liquidity Banks" means the various financial institutions, parties to the Participation Agreement and Liquidity Agreement from time to time as Liquidity Banks.

        "Liquidity Commitment" means, with respect to any Liquidity Bank, its commitment to (a) make Loans pursuant to Section 3.7 of the Participation Agreement, (b) make Liquidity Loans to the Note Purchaser pursuant to Section 3.1 of the Liquidity Agreement and (c) make purchases from the Note Purchaser pursuant to Section 1 of the Asset Purchase Agreement, in an aggregate amount set forth on Schedule I to the Participation Agreement under the heading "Liquidity Commitment" or, upon delivery of an assignment and assumption agreement signed by a Liquidity Bank to the Administrative Agent and the Conduit Agent pursuant to the Asset Purchase Agreement and Section 12.1 of the Participation

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Agreement, such Person's Commitment described as a "Liquidity Commitment" in such assignment agreement; provided, that, on the Commitment Termination Date, the Liquidity Commitment of each Liquidity Bank shall be reduced (if necessary) on a pro rata basis so that the aggregate Liquidity Commitments of all Liquidity Banks equals 102% of the sum of the aggregate outstanding principal amount of the Conduit Loans as of the Commitment Termination Date (after giving effect to any Advance made on such date).

        "Liquidity Documents" means the Asset Purchase Agreement and the Liquidity Agreement.

        "Liquidity Loans" means the "Loans" under, and as defined in, the Liquidity Agreement.

        "Liquidity Percentage" means, with respect to any Liquidity Bank, the ratio (expressed as a percentage) of (a) such Liquidity Bank's Liquidity Commitment to (b) the aggregate Liquidity Commitments of all Liquidity Banks.

        "Loan Percentage" means 96.5%.

        "Loans" means (a) the Conduit Loans or (b) after any refinancing under Section 11.4 of the Participation Agreement, the Refinancing Loans and loans outstanding under the Purchased Notes.

        "Margin Stock" shall have the meaning given to that term in Regulation U issued by the Federal Reserve Board.

        "Marketing Period" means the period commencing on the date the Lessee gives notice of its election of the Remarketing Option and ending on the earlier of (a) the date on which the Property is sold to a purchaser in accordance with Article XX of the Lease and (b) the Expiration Date.

        "Material Adverse Effect" means a material adverse effect on (a) the business, assets, operations or financial condition of the Lessee and its Subsidiaries, taken as a whole; (b) the ability of the Lessee to pay or perform the Obligations in accordance with the terms of the Participation Agreement and the other Operative Documents; or (c) practical realization of the material rights and remedies of Administrative Agent, the Lessor or any Lender intended to be provided under the Participation Agreement and the other Operative Documents.

        "Material Subsidiary" means any Subsidiary that had revenues during the immediately preceding fiscal year equal to or greater than five percent (5%) of the consolidated gross revenues of the Lessee and its Subsidiaries during such year.

        "Maturity Date" means the Original Maturity Date or, upon any extension of the Maturity Date in accordance with Section 11.2(a) of the Participation Agreement, such extended date.

        "Maximum Non-Refinanced Amount" is defined in Section 11.4 of the Participation Agreement.

        "Maximum Recourse Amount" means, as of any date of determination, an amount equal to 88.1314% of the Property Cost (less the aggregate amount of Extraordinary Lessor Investments, if any) outstanding at such time.

        "Memorandum of Lease" means a Memorandum of Lease substantially in the form of Exhibit A to the Lease.

        "Modifications" is defined in Section 10.1 of the Lease.

        "Moody's" means Moody's Investors Service, Inc. and its successors.

        "Multiemployer Plan" means any multiemployer plan within the meaning of Section 3(37) of ERISA maintained or contributed to by the Lessee or any ERISA Affiliate.

        "Multiple Employer Plan" means an employee benefit plan, other than a Multiemployer Plan, to which the Lessee or any ERISA Affiliate, and one or more employers other than the Lessee or an ERISA

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Affiliate, is making or accruing an obligation to make contributions or, in the event that any such plan has been terminated, to which the Lessee or an ERISA Affiliate made or accrued an obligation to make contributions during any of the five plan years preceding the date of termination of such plan.

        "Necessary Permits" means certificates, licenses, approvals, consents, permits (including, without limitation, building, demolition and environmental permits, licenses, approvals, authorizations and consents), easements and rights-of-way, including dedication, and all other authorizations of Governmental Authorities or other Persons, that are required for (a) the construction of the Improvements substantially in accordance with the Plans and Specifications and the Construction Agency Agreement, (b) the maintenance, use or operation of the Property as a first class corporate office building or (c) the use, treatment, storage, transport, disposal or disposition of any Hazardous Materials on, at, under or from the Property during the construction of the Improvements thereon,

        "Net Proceeds" means, with respect to any sale or issuance of any Equity Security or any other security by any Person, the aggregate consideration received by such Person from such sale or issuance less the sum of the actual amount of the reasonable fees and commissions payable to Persons other than such Person or any Affiliate of such Person, the reasonable legal expenses and the other reasonable costs and expenses directly related to such sale or issuance that are to be paid by such Person.

        "Net Property Proceeds" means all amounts received by the Lessor in connection with any Casualty or Condemnation or any sale of the Property pursuant to the Lessor's exercise of remedies under Section 16.2 of the Lease or the Lessee's exercise of the Remarketing Option under Article XX of the Lease, and all interest earned thereon, less any Impositions arising in connection with such amounts, if any, and less the expense of claiming and collecting such amounts, including all costs and expenses in connection therewith for which the Lessor or any Participant is entitled to be reimbursed pursuant to the Lease.

        "Net Remarketing Proceeds" means the proceeds of the sale of the Property pursuant to the Remarketing Option less all Sales Costs incurred in connection therewith.

        "Net Share Repurchases" means, with respect to the Lessee for any period, the remainder, calculated on a consolidated basis, of (a) the aggregate consideration paid by the Lessee during such period (including Indebtedness incurred) to purchase, redeem, retire, defease or otherwise acquire Equity Securities of the Lessee minus (b) the aggregate Net Proceeds received by the Lessee during such period for Equity Securities issued by the Lessee; provided, that (i) Equity Securities of the Lessee issued in exchange for other Equity Securities of the Lessee and its Subsidiaries as permitted by clause (i) of Section 9.2(f) of the Participation Agreement shall be excluded for purposes of calculating clauses (a) and (b) above, (ii) repurchases of Equity Securities from employees of the Lessee or its Subsidiaries as permitted by clause (iv) of Section 9.2(f) of the Participation Agreement shall be excluded for purposes of calculating clause (a) above, and (iii) Equity Securities issued in connection with acquisitions permitted by Section 9.2(d) of the Participation Agreement shall be excluded for purposes of calculating clause (b) above.

        "Net Worth" means, with respect to the Lessee at any time, the remainder at such time, determined on a consolidated basis in accordance with GAAP, of (a) the total assets of the Lessee and its Subsidiaries at such time, minus (b) the sum (without limitation and without duplication of deductions) of the total liabilities of the Lessee and its Subsidiaries at such time and all reserves of the Lessee and its Subsidiaries at such time for anticipated losses and expenses (to the extent not deducted in calculating total assets in clause (a) above).

        "Non-Consenting Lender" is defined in Section 11.2(a) of the Participation Agreement.

        "Note" is defined in Section 2.2 of the Note Purchase Agreement.

        "Note Interest Amount" is defined in Section 4.2(b) of the Participation Agreement.

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        "Note Purchase Agreement" means the Note Purchase Agreement, dated as of September 26, 2001, among the Lessee, the Lessor, the Note Purchaser and the Conduit Agent.

        "Note Purchaser" means Victory Receivables Corporation, a Delaware corporation, its capacity as the Note Purchaser under the Note Purchase Agreement, and any other Eligible Note Purchaser that becomes a Note Purchaser by virtue of an assignment from the Note Purchaser in accordance with Section 12.1 of the Participation Agreement.

        "Note Purchaser's Commitment" means the Note Purchaser's Commitment in the amount set forth on Schedule I to the Participation Agreement under the heading "Note Purchaser's Commitment" or, upon delivery of an assignment agreement signed by the Note Purchaser, as assignor, to the Administrative Agent pursuant to Section 12.1 of the Participation Agreement, the Note Purchaser's Commitment set forth in such assignment agreement.

        "Obligations" means and includes, with respect to the Lessee, all loans, advances, debts, liabilities, and obligations, howsoever arising, of the Lessee to the Administrative Agent, the Lessor, any Lender, any other Affected Party or any Indemnitee or Tax Indemnitee, of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising pursuant to the terms of any of the Operative Documents, including without limitation all Basic Rent, Supplemental Rent, fees, charges, expenses, attorneys' fees and accountants' fees chargeable to the Lessee or payable by the Lessee thereunder.

        "Obligors" means, collectively, the Lessee and the Construction Agent.

        "Operative Documents" means the following:

        "Original Date" is defined in Section 11.2(b) of the Participation Agreement.

        "Original Executed Counterpart" is defined in Section 23.10 of the Lease.

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        "Original Maturity Date" means September 26, 2006.

        "Original Maturity Date Extension Effective Date" is defined in Section 11.2(a) of the Participation Agreement.

        "Original Maturity Date Extension Request" is defined in Section 11.2(a) of the Participation Agreement.

        "Original Maturity Date Extension Response Date" is defined in Section 11.2(a) of the Participation Agreement.

        "Outside Completion Date" means December 26, 2003.

        "Participant Balance" means as of any date of determination: (a) with respect to Note Purchaser, an amount equal to its outstanding Conduit Loans, (b) with respect to any Liquidity Bank, an amount equal to its outstanding Conduit Loans and (c) with respect to the Lessor, an amount equal to the aggregate outstanding Lessor Amounts.

        "Participants" means, collectively, the Lessor, the Note Purchaser and the Liquidity Banks, together with their respective successors and assigns.

        "Participation Agreement" means the Participation Agreement, dated as of September 26, 2001, among the Lessee, the Construction Agent, the Lessee, the Lessor, the Note Purchaser, the Conduit Agent, the Liquidity Banks and the Administrative Agent.

        "PBGC" means the Pension Benefit Guaranty Corporation.

        "Percentage Interest" is defined in the Asset Purchase Agreement.

        "Permitted Indebtedness" is defined in Section 9.2(a) of the Participation Agreement.

        "Permitted Liens" is defined in Section 9.2(b) of the Participation Agreement.

        "Permitted Property Liens" means any of the following:

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        "Person" means and includes an individual, a partnership, a corporation (including a business trust), a joint stock company, an unincorporated association, a limited liability company, a joint venture, a trust or other entity or a Governmental Authority.

        "Plans and Specifications" means the plans and specifications for the Property as delivered to the Participants on the Closing Date, together with such amendments and modifications thereto as may be made from time to time in accordance with (and subject to the terms of) the Construction Agency Agreement.

        "Pricing Level" means, as of any date of determination, the level set forth in the table below that corresponds to the Debt/EBITDA Ratio of the Lessee, subject to the following provisions:

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        "Program Administrator" means Bankers Trust Company, and its successors as program administrator for the Note Purchaser.

        "Program Termination Event" is defined in Section 7 of the Note Purchase Agreement.

        "Property" is defined in the second recital of the Participation Agreement.

        "Property Balance" means the sum of (a) the Property Cost and (b) any other amounts due and owing by the Construction Agent or the Lessee under the Operative Documents (including all Contingent Payments then due and owing).

        "Property Completion Differential" is defined in Section 13.2(c) of the Participation Agreement.

        "Property Cost" means, at any date of determination, (a) the aggregate amount of Advances made on or prior to such date plus (b) the aggregate amount of Extraordinary Lessor Investments made by the Lessor on or prior to such date minus (c) any payments received by the Administrative Agent as insurance proceeds, condemnation awards or liquidated damages and which are applied to reduce the aggregate amount of the Advances then outstanding minus (d) any other payments received by the Administrative Agent that are distributed to the Lenders or Lessor pursuant to Article VII of the Participation Agreement for application to pay the Loans or the Lessor Amounts (as the case may be).

        "Property Rents" is defined in Section 22.1(c) of the Lease.

        "Proposed Construction Plan" is defined in Section 2.6(a)(iv) of the Constructing Agency Agreement.

        "Purchased Notes" is defined in Section 11.4 of the Participation Agreement.

        "Purchase Notice" means an irrevocable written notice by the Lessee delivered to the Lessor pursuant to Section 18.1 of the Lease, notifying the Lessor of the Lessee's intention to exercise its option pursuant to such Section, and specifying the proposed purchase date therefor.

        "Purchase Option" means the Lessee's option to purchase the Property in accordance with the provisions of Section 18.1 of the Lease and the Construction Agent's option to purchase the Property in accordance with the provisions of Section 6.1 of the Construction Agency Agreement.

        "Purchase Price" is defined in Section 18.1 of the Lease.

        "Quick Ratio" means, with respect to the Lessee and its Subsidiaries at any time, the ratio, determined on a consolidated basis in accordance with GAAP, of:

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        to

        "Rate Contracts" means swap agreements (as that term is defined in Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended) and any other agreements or arrangements designed to provide protection against fluctuations in interest or currency exchange rates.

        "Real Property" of any person means all of the right, title and interest of such person in and to land, improvements and fixtures, including Leaseholds.

        "Redeemable Stock" means with respect to any Person any capital stock or similar equity interests of such person that (a) is by its terms subject to mandatory redemption, in whole or in part, pursuant to a sinking fund, scheduled redemption or similar provisions, at any time prior to the Maturity Date; or (b) otherwise is required to be repurchased or retired on a scheduled date or dates, upon the occurrence of any event or circumstance, at the option of the holder or holders thereof, or otherwise, at any time prior to the Maturity Date, other than any such repurchase or retirement occasioned by a "change of control" or similar event.

        "Reference Bank Rate" means, with respect to any Basic Rent Period for any LIBOR Loan/Lessor Amount, the arithmetic mean (rounded upward if necessary to the nearest 1/100^th of one percent) of the rates per annum at which Dollar deposits are offered to each of the Reference Banks in the London interbank market on the Second Business Day prior to the first day of such Basic Rent Period at or about 11:00 a.m. (London time) (for delivery on the first day of such Basic Rent Period in an amount substantially equal to the amount of such LIBOR Loan/Lessor Amount and for a term comparable to such Basic Rent Period).

        "Reference Banks" means (a) KeyBank National Association and (b) any Participant or Participants selected as a Reference Bank by the Administrative Agent and the Required Participants, provided, that if any of such Reference Banks is no longer a Participant, such other Participant or Participants as may be selected by the Administrative Agent acting on instructions from the Required Participants.

        "Refinanced Notes" is defined in Section 11.3(a) of the Participation Agreement.

        "Refinancing Lender" is defined in Section 11.3(a) of the Participation Agreement.

        "Refinancing Loans" is defined in Section 11.3(a) of the Participation Agreement.

        "Release" means any release, pumping, pouring, emptying, injecting, escaping, leaching, dumping, seepage, spill, leak, flow, discharge, disposal or emission of a Hazardous Material.

        "Remarketing Option" is defined in Section 20.1 of the Lease.

        "Rent" means, collectively, the Basic Rent and the Supplemental Rent, in each case payable under the Lease.

        "Rent Payment Date" means the last day of each Basic Rent Period then in effect (and, if the applicable Basic Rent Period is longer than one (1) month, the last day of each monthly period in such Basic Rent Period).

        "Replacement Lender" is defined in Section 11.3(a) of the Participation Agreement.

        "Replacement Lessor" is defined in Section 11.3(a) of the Participation Agreement.

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        "Replacement Participant" is defined in Section 11.3(a) of the Participation Agreement.

        "Requesting Party" is defined in Section 21.1 of the Lease.

        "Required Lenders" means, at any time, (a) the Note Purchaser together with (b) Liquidity Banks having Liquidity Commitments representing at least 66²/3% of the aggregate Liquidity Commitments (or, if the Liquidity Commitments have been terminated, Liquidity Banks holding at least 66²/3% of the aggregate principal amount of the Liquidity Loans outstanding); provided, that "Required Lenders" shall not include the Note Purchaser (i) with respect to amendments, supplements, waivers or modifications to Section 9.1(i), 9.2 (other than Section 9.2(d)(v)) or 9.3 of the Participation Agreement or (ii) at any time during which all of the Notes have been funded and/or purchased by the Liquidity Banks pursuant to the Liquidity Documents.

        "Required Modification" is defined in Section 10.1(a) of the Lease.

        "Required Participants" means, at any time, (a) the Note Purchaser together with (b) Participants (excluding the Note Purchaser) having a Lessor Commitment or Liquidity Commitments representing at least 66²/3% of the aggregate Commitments of the Lessor and the Liquidity Banks (or, if the Liquidity Commitments have been terminated, Liquidity Banks holding at least 66²/3% of the aggregate principal amount of the Liquidity Loans outstanding); provided, that "Required Participants" shall not include the Note Purchaser (i) with respect to amendments, supplements, waivers or modifications to Section 9.1(i), 9.2 (other than Section 9.2(d)(v)) or 9.3 of the Participation Agreement or (ii) at any time during which all of the Notes have been funded and/or purchased by the Liquidity Banks pursuant to the Liquidity Documents.

        "Requirement of Law" applicable to any Person means (a) the Articles or Certificate of Incorporation and By-laws, Partnership Agreement or other organizational or governing documents of such Person, (b) any Governmental Rule applicable to such Person, (c) any license, permit, approval or other authorization granted by any Governmental Authority to or for the benefit of such Person or (d) any judgment, decision or determination of any Governmental Authority or arbitrator, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

        "Reserve Requirement" means, with respect to any day in a Basic Rent Period for a LIBOR Loan/Lessor Amount, the aggregate of the reserve requirement rates (expressed as a decimal) in effect on such day for eurocurrency funding (currently referred to as "Eurocurrency liabilities" in Regulation D of the Federal Reserve Board) maintained by a member bank of the Federal Reserve System. As used herein, the term "reserve requirement" shall include, without limitation, any basic, supplemental or emergency reserve requirements imposed on any Lender by any Governmental Authority.

        "Return Conditions" is defined in Section 20.1 of the Lease.

        "S&P" means Standard & Poor's Ratings Group, and its successors.

        "Sales Costs" means any marketing, closing or other costs, and commissions related to the sale of the Property, in each case in connection with the Lessee's exercise of its Remarketing Option.

        "Scheduled Basic Lease Term Termination Date" means September 26, 2008.

        "SEC" means the United States Securities and Exchange Commission.

        "Secured Obligations" is defined in Section 22.1(a) of the Lease.

        "Secured Parties" means each of the Administrative Agent, the Lessor, the Note Purchaser, the Conduit Agent, the Program Administrator, the Liquidity Banks and any other Lenders.

        "Securities Act" means the Securities Act of 1933, and the rules and regulations of the SEC promulgated thereunder.

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        "Security and Assignment Agreement" means the Security and Assignment Agreement dated as of the date of the Participation Agreement, among the Lessee and the Construction Agent, as grantors, in favor of the Participants.

        "Security Documents" means, collectively, the Lessor Mortgage, the Lender Mortgage, the Security and Assignment Agreement, the UCC Financing Statements, each Consent and Acknowledgment and all other documents, agreements and instruments executed and delivered in order to establish, preserve, protect and perfect the Lien of the Participants in the Collateral.

        "Shortfall Amount" means, as of the Expiration Date, an amount equal to (a) the Property Cost, minus (b) the portion of the Maximum Recourse Amount received by the Lessor from the Lessee pursuant to Section 20.1(m)(i) of the Lease, minus (c) the Net Remarketing Proceeds received by the Lessor in accordance with Section 20.1(l) of the Lease; provided, however, that if a sale of the Property is not consummated on or prior to the Expiration Date, then the term "Shortfall Amount" means an amount equal to (i) the Property Cost, minus (ii) the Maximum Recourse Amount received by the Lessor pursuant to Section 20.1(m)(i) of the Lease.

        "Solvent" means, with respect to any Person on any date, that on such date (a) the fair value of the property of such Person is greater than the fair value of the liabilities (including contingent, subordinated, matured and unliquidated liabilities) of such Person, (b) the present fair saleable value of the assets of such Person is greater than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature, and (d) such Person is not engaged in or about to engage in business or transactions for which such Person's property would constitute an unreasonably small capital.

        "Special Advance" is defined in Section 3.1(a)(i) of the Participation Agreement.

        "Specified Liquidity Bank" is defined in Section 11.2(a) of the Participation Agreement.

        "Structuring Agent" means Key Global Finance.

        "Sub-Participant" is defined in Section 12.2 of the Participation Agreement.

        "Subsidiary" of any Person means (a) any corporation of which more than 50% of the issued and outstanding Equity Securities having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency) is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Person's other Subsidiaries, (b) any partnership, joint venture, limited liability company or other association of which more than 50% of the equity interests having the power to vote, direct or control the management of such partnership, joint venture or other association is at the time owned and controlled by such Person, by such Person and one or more of the other Subsidiaries or by one or more of such Person's other Subsidiaries or (c) any other Person whose results of operations are included in the Financial Statements of such Person on a consolidated basis.

        "Supplemental Rent" means all amounts, liabilities and obligations (other than Basic Rent) which the Lessee assumes or agrees to pay to the Lessor or any other Person under the Lease, or under any of the other Operative Documents, including, without limitation, Contingent Payments, Fees, Break Costs, the Maximum Recourse Amount, the Construction Recourse Amount, and payments pursuant to Section 15.2 of the Lease and Articles XVIII and XX of the Lease.

        "Surety Instruments" means all letters of credit (including standby and commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds and similar instruments.

        "Taxes" is defined in the definition of Impositions.

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        "Tax Indemnitee" means the Lessor, the Note Purchaser, the Liquidity Banks, the Administrative Agent, the Conduit Agent, the Program Administrator, each Sub-Participant, their respective Affiliates and their respective successors, assigns, directors, shareholders, partners, officers, employees and agents.

        "Taxing Authority" is defined in Section 13.13(a) of the Participation Agreement.

        "Termination Date" is defined in Section 15.2 of the Lease.

        "Termination Notice" is defined in Section 15.1 of the Lease.

        "Testing Period" means for any determination a single period consisting of the four consecutive fiscal quarters of the Lessee then last ended (whether or not such quarters are all within the same fiscal year), except that if a particular provision of any Operative Document indicates that a Testing Period shall be of a different specified duration, such Testing Period shall consist of the particular fiscal quarter or quarters then last ended which are so indicated in such provision.

        "Title Company" means First American Title Insurance Company or such other title insurance company as may be selected by the Lessee with the approval of the Lessor.

        "Transaction Expenses" means all costs, expenses and Impositions incurred in connection with the preparation, execution and delivery of the Operative Documents and the transactions contemplated by the Operative Documents including without limitation:

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        "Trustee" is defined in Section 22.1(a) of the Lease.

        "UCC" means the Uniform Commercial Code, as in effect in any applicable jurisdiction.

        "UCC Financing Statements" means UCC financing statements appropriately completed and executed for filing in the applicable jurisdiction in order to protect the respective security interests of the Administrative Agent, the Lessor and the other Participants in the Property and other Collateral under the Lessor Mortgage, the Lender Mortgage and the Security and Assignment Agreement.

        "Uniform Commercial Code" and "UCC" means the Uniform Commercial Code as in effect in any applicable jurisdiction.

        "Unwind Event" is defined in Section 5.5 of the Construction Agency Agreement.

        "Unused Fee" is defined in Section 4.6(c) of the Participation Agreement.

        "Upfront Fee" is defined in Section 4.6 of the Participation Agreement.

        "VC Partnership" is defined in Section 9.2(e) of the Participation Agreement.

        "Withholding Taxes" is defined in Section 13.13(a) of the Participation Agreement.

        "Yield" is defined in Section 4.3(a) of the Participation Agreement.

        "Yield Rate" means at any date (a) with respect to any Lessor Amount that is a LIBOR Loan/Lessor Amount, the BBA LIBO Rate for the applicable Basic Rent Period then in effect for Lessor Amounts plus a margin of 2.00% per annum and (b) at any time that Yield on the Lessor Amounts is to be calculated by reference to the Base Rate, the Base Rate.

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