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
vii
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
viii
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
ix
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),
(a)
the Lessor will enter into the Ground Lease with the Ground Lessor
pursuant to which the Ground Lessor will lease to the Lessor all of the Ground
Lessor's right,