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Exhibit 10.cc  


 
 

SECOND AMENDMENT TO
  PARTICIPATION AGREEMENT    



        THIS
SECOND AMENDMENT TO PARTICIPATION AGREEMENT, dated as of August 24, 2001 (this "  Amendment  "), amends the Participation Agreement, dated as of October 22, 1999, by and among ADC
Telecommunications, Inc., a Minnesota corporation, as Lessee; Lease Plan
North America, Inc., not in its individual capacity, except as expressly stated therein, but solely as Agent Lessor for the Participants; the Persons named on Schedule I thereto, as
Participants; and ABN AMRO Bank N.V., as Administrative Agent, as amended by the First Amendment to Participation Agreement, dated as of January 29, 2001 (the "  First Amendment  ") (as so amended
by the First Amendment, the "  Participation Agreement  "). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings assigned thereto in Appendix 1 to the
Participation Agreement. 


        WHEREAS,
the parties hereto have entered into the Participation Agreement and the other Operative Documents to fund the Construction of the Financed Improvements on the Land; and 


        WHEREAS,
the parties hereto desire to amend the Participation Agreement as hereinafter set forth; 



        NOW,
THEREFORE, in consideration of the premises and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto agree as
follows: 


        SECTION
1 AMENDMENTS. Effective as of the date hereof and subject to the satisfaction of the conditions precedent set forth in  Section 3  , the Participation Agreement shall be amended in accordance with
 Sections 1.1-1.3  . 



        SECTION
1.1  Net Worth  . Section 8.17 of the Participation Agreement is hereby amended and restated in its entirety to read as follows: 



"SECTION
8.17  Net Worth  . Lessee shall not permit at any time Net Worth to be less than the sum of (a) $1,929,000,000, plus (b) 50% of positive net income for the period from and
including May 1, 2001, to and including October 31, 2001, plus (c) for each fiscal year, commencing with the fiscal year ending October 31, 2001, 50% of positive net income
for such fiscal year, plus (d) with respect to the issuance or sale of capital stock of Lessee or the conversion of Indebtedness of Lessee into equity of Lessee, in each case occurring after
the date hereof, 50% of the aggregate Net Issuance Proceeds received by Lessee from such issuance or sale of capital stock, plus 50% of the principal amount of any Indebtedness so converted if such
issuance, sale or conversion occurs at a time when Lessee shall have no Rating or at a time when Lessee's Rating is lower than BBB- and Baa3, respectively; such covenant to be calculated
as of the end of each fiscal quarter." 




        SECTION
1.2  Funded Debt to EBITDA Ratio  . Section 8.18 of the Participation Agreement is hereby amended and restated in its entirety to read as follows: 



"SECTION
8.18  Funded Debt to EBITDA Ratio  . Lessee shall not permit, as of the end of any fiscal quarter, the ratio of (a) aggregate principal amount of Funded Debt of Lessee and its Subsidiaries to
(b) EBITDA for the four consecutive fiscal quarters then ending, to exceed 2.75:1." 




        SECTION
1.3  Definitions  . (a) Each of the following definitions appearing in Appendix 1 to the Participation Agreement is hereby amended and restated in its entirety to read as follows: 



        "'  Applicable Commitment Fee Rate  ' means, at any time, the rate per annum of 37.5 basis points." 






 

        "'
 Applicable Tranche A2 Margin  ' means, at any time of determination of the LIBO Rate or the Alternate Base Rate for purposes of the Tranche A2 Certificate Amounts, the rate per annum of 225 basis
points." 



        "'  Applicable Tranche A3 Margin  ' means, at any time of determination of the LIBO Rate or the Alternate Base Rate for purposes of the
Tranche A3 Certificate Amounts, the rate per annum of 235 basis points." 


        "'
 Applicable Tranche B Margin  ' means, at any time of determination of the LIBO Rate or the Alternate Base Rate, the rate per annum of 250 basis points." 


        "'
 Applicable Tranche C Equity Margin  ' means, at any time of determination of the LIBO Rate or the Alternate Base Rate, the rate per annum of 350 basis points." 


        "'  EBITDA  ' means, for any applicable period, Net Income for such period, plus, to the extent deducted in determining Net Income for such
period, the aggregate amount of
(i) Interest Expense, (ii) federal, state, local and foreign income taxes, (iii) depletion, depreciation and amortization of tangible and intangible assets and (iv) for the
quarter ended April 30, 2001, $251,619,000 of non-recurring charges which accrued during such quarter." 



        "'  Interest Expense  ' means, for any applicable period, the aggregate consolidated interest expense (both cash and non-cash and
determined without regard to original issue discount) of
Lessee and its Subsidiaries for such period  plus  , without duplication, any interest expense which would have accrued during such period if all Indebtedness which existed immediately after the
consummation of any merger to
which Lessee is a party or of any Acquisition by Lessee or its Subsidiaries, in each case, during such period was in existence on the first day of such period, as determined in accordance with GAAP,
including, to the extent allocable to interest expense in accordance with GAAP, (i) all other fees paid or owed with respect to the issuance or maintenance of Contingent Obligations (including
letters of credit of Lessee and its Subsidiaries), (ii) net costs or benefits payable under Swap Contracts of Lessee and its Subsidiaries, (iii) the portion of any payments made in
respect of obligations in respect of capitalized leases of Lessee and its Subsidiaries allocable to interest expense and (iv) the portion of any rental payments made in respect of synthetic
leases under which Lessee or any Subsidiary is lessee allocable to interest." 


        "'
 Tranche A2 Put Margin  ' means 250 basis points per annum." 


        "'
 Tranche A3 Put Margin  ' means 260 basis points per annum." 



        "'  Tranche B Basic Rent  ' means, for each Payment Date with respect to each Interest Period ending on such Payment Date, an amount equal
to the product of (a) the daily aggregate Certificate
Amounts of the Tranche B Participants, (b) the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period (or pursuant to Section 14.1 or 14.2 of the Participation Agreement, the
Alternate Base Rate) plus the Applicable Tranche B Margin, (c) 1/360 and (d) the number of days in such Interest Period;  provided  , that if a Put Event has occurred, the foregoing 
clause (b)   shall be deemed to be the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus the Tranche B Put Margin as in effect from time to time; and  provided
further  , that immediately upon the occurrence of an Event of Default, the foregoing
clause (b)   shall be deemed to be the sum of the Alternate Base Rate in effect in such Interest Period plus 250 basis points per annum." 


        "'
 Tranche C Basic Rent  ' means, for each Payment Date with respect to each Interest Period ending on such Payment Date, an
amount equal to the product of (a) the daily aggregate Certificate Amounts of the Tranche C Equity Participants, (b) the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period
(or pursuant to Section 14.1 or 14.2 of the Participation Agreement, the Alternate Base Rate) plus the Applicable Tranche C Equity Margin, (c) 1/360 and 



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(d) the number of days in such Interest Period;  provided  , that if a Put Event has occurred, the foregoing  clause (b)   shall be deemed to be
the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus the Tranche C Put Margin as in effect from time to time; and  provided further  , that immediately upon the occurrence of an
Event of Default, the foregoing  clause (b)   shall be deemed to be the sum of the Alternate Base Rate in effect in such Interest Period plus 275 basis points per annum." 



        (b)  Appendix I
to the Participation Agreement is hereby amended by adding thereto the following new terms in proper alphabetical order: 


        "'
 Tranche B Put Margin  ' means 275 basis points per annum." 


        "'
 Tranche C Put Margin  ' means 375 basis points per annum." 




        SECTION
2 AMENDMENT FEE. Lessee agrees to pay to the Administrative Agent on the date hereof for the pro-rata benefit of the Participants an amendment fee (the "'  Amendment Fee  ") in an amount equal to 0.25%
of the Commitments. 


        SECTION
3 CONDITIONS PRECEDENT. This Amendment shall become effective as of the date hereof upon the satisfaction or waiver of each of the following conditions precedent: 



        (a)  The
Agent Lessor shall have received this Amendment, duly executed by each of the parties hereto. 


        (b)  The
Administrative Agent shall have received, on behalf of the Participants, payment of the Amendment Fee. 



        (c)  Each
of the Participants and the Agent Lessor shall have received copies (executed or certified, as may be appropriate) of all legal documents or proceedings taken in
connection with the execution and delivery of this Amendment to the extent each of the Participants or the Agent Lessor or their respective counsel may reasonably request. 


        (d)  Legal
matters incident to the execution and delivery of this Amendment shall be satisfactory to each of the Participants and the Agent Lessor and their respective
counsel. 




        SECTION
4 REPRESENTATIONS AND WARRANTIES. Each of the parties hereto hereby represents and warrants that (a) the execution, delivery and performance of this Amendment has been
duly authorized by such party, (b) the person executing this Amendment on its behalf has been duly authorized to act on its behalf, (c) this Amendment constitutes its legal, valid,
binding and enforceable agreement, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws or equitable principles relating to or limiting the
rights of creditors generally and (d) its entry into this Amendment will not violate any agreement, law, rule or regulation by which it is bound or by which any of its assets are affected. In
order to induce the Participants and the Agent Lessor to execute and deliver this Amendment, Lessee hereby represents to each of the Participants and the Agent Lessor that, as of the date hereof, the
representations and warranties set forth in Section 7.2 of the Participation Agreement are and shall be and remain true and correct and Lessee is in full compliance with all of the terms and
conditions of each Operative Document to which it is a party and no Default or Event of Default has occurred and is continuing or shall result after giving effect to this Amendment. 


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        SECTION
5 MISCELLANEOUS. 


        SECTION
5.1  Continuing Effectiveness, etc  . This Amendment shall be deemed to be an amendment to the Participation Agreement, and the Participation Agreement, as amended hereby, and each other Operative
Document, shall
remain in full force and effect and are hereby ratified, approved and confirmed in each and every respect. On and after the date hereof, all references to the "Participation Agreement" in the
Operative Documents or in any other document, instrument, certificate, agreement, opinion or writing shall be deemed to refer to the Participation Agreement as amended hereby. Except as expressly set
forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as an amendment, modification or waiver of any provision, right, power or remedy of any party hereto under
any Operative Document. 


        SECTION
5.2  Severability  . Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such provision and such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions of this Amendment or affecting the validity or enforceability of such provision in any other jurisdiction. 


        SECTION
5.3  Headings  . The various headings of this Amendment are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Amendment or any provisions
hereof. 


        SECTION
5.4  Execution in Counterparts  . This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together
but
one and the same agreement. 


        SECTION
5.5  Governing Law  .  THIS AMENDMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK AS TO ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES, EXCEPT TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS LAW.   This Amendment constitutes the entire understanding among the parties hereto with respect to the subject matter hereof and
supersedes any prior agreement, written or oral,
with respect thereto. 


        SECTION
5.6  Successors and Assigns  . This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. 


        SECTION
5.7  Fees and Expenses  . Lessee agrees to pay on demand all costs and expenses of or incurred by each of the other parties hereto in connection with the negotiation, preparation, execution and
delivery of this Amendment, including the fees and expenses of counsel for the Agent Lessor. 


        [signature
pages follow] 


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



	 	 	ADC TELECOMMUNICATIONS, INC., as Lessee
	

 	
 	

By:	
 	

/s/  GOKUL V. HEMMADY      
	 	 	 	 	

	 	 	Name:	 	Gokul V. Hemmady
	 	 	 	 	

	 	 	Title:	 	Vice President and Treasurer
	 	 	 	 	





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

 	
 	

By:	
 	

/s/  BLAKE J. LACHER      
	 	 	 	 	

	 	 	Name:	 	Blake J. Lacher
	 	 	 	 	

	 	 	Title:	 	Vice President
	 	 	 	 	





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	 	 	AMSTERDAM FUNDING CORPORATION, as a Participant
	

 	
 	

By:	
 	

/s/  ANDREW L. STIDD      
	 	 	 	 	

	 	 	Name:	 	Andrew L. Stidd
	 	 	 	 	

	 	 	Title:	 	President
	 	 	 	 	





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	 	 	ABN AMRO BANK N.V., as a Participant
	

 	
 	

By:	
 	

/s/  PETER L. EATON      
	 	 	 	 	

	 	 	Name:	 	Peter L. Eaton
	 	 	 	 	

	 	 	Title:	 	Group Vice President
	 	 	 	 	

	

 	
 	

By:	
 	

/s/  JOHN P. RICHARDSON      
	 	 	 	 	

	 	 	Name:	 	John P. Richardson
	 	 	 	 	

	 	 	Title:	 	Vice President
	 	 	 	 	





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SECOND AMENDMENT TO PARTICIPATION AGREEMENT