EXHIBIT 10.26
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LSI LOGIC CORPORATION
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THIRD AMENDMENT TO PARTICIPATION AGREEMENT
AND
OMNIBUS AMENDMENT
Dated as of September 28, 2001
to
OPERATIVE DOCUMENTS
Dated as of April 18, 2000
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Re: $182,109,462 Equipment Lease Facility for
LSI Logic Corporation
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OMNIBUS AMENDMENT TO OPERATIVE DOCUMENTS
THIS THIRD AMENDMENT TO PARTICIPATION AGREEMENT AND OMNIBUS AMENDMENT
dated as of September 28, 2001 (the or this "Omnibus Amendment") to the
Operative Documents each dated as of April 18, 2000 (as heretofore amended) is
among LSI LOGIC CORPORATION, a Delaware corporation (solely in its capacity as a
"Participant" under the Participation Agreement referred to below, "LSI" and,
otherwise, "Lessee"), BANC OF AMERICA LEASING & CAPITAL, LLC, not in its
individual capacity, but solely as Lessor ("Lessor"), FLEET NATIONAL BANK, not
in its individual capacity, but solely as Lessor Agent ("Lessor Agent"), FLEET
NATIONAL BANK, not in its individual capacity, but solely as Agent ("Agent") and
each of the institutions currently a "Participant" under Participation Agreement
referred to below (collectively, the "Participants"), and ABN AMRO BANK N.V.,
not in its individual capacity, but solely as the original Agent and Lessor
Agent under the Participation Agreement and solely with respect to Section 5 and
Section 6 hereof (in such capacities, "Resigning Agent").
RECITALS:
A. Lessee, Lessor, Resigning Agent (in its capacity as Lessor Agent and
Agent) and the Participants are parties to that certain Amended and Restated
Participation Agreement dated as of April 18, 2000 (as it may have been and may
be from time to time amended, supplemented or modified, the "Participation
Agreement").
B. Lessee, Lessor, Resigning Agent, Lessor Agent, Agent and the
Participants now wish to amend certain provisions of the Participation Agreement
and the other Operative Documents (as defined in the Participation Agreement)
to, inter alia, effect the resignation of Resigning Agent as "Agent" and "Lessor
Agent" under the Operative Documents and to replace Resigning Agent with Agent
and Lessor Agent in those capacities, respectively, and to remove certain
financial covenants and provide cash collateral for the benefit of certain
Participants, and have agreed to effect such amendments upon the terms and
subject to the conditions set forth herein.
C. All requirements of law have been fully complied with and all other
acts and things necessary to make this Omnibus Amendment a valid, legal and
binding instrument according to its terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this Omnibus Amendment set forth in Section 5
hereof, and in consideration of good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties do hereby agree as
follows:
SECTION 1. DEFINITIONS AND INTERPRETATIONS.
Section 1. Definitions; Interpretation. Unless otherwise indicated in this
Omnibus Amendment, (a) each term set forth in Schedule 1.01 to the Participation
Agreement, when used
in this Omnibus Amendment, shall have the meaning given to such term in Schedule
1.01 to the Participation Agreement, and (b) the rules of interpretation set
forth in Schedule 1.01 to the Participation Agreement shall apply to this
Omnibus Amendment and are incorporated herein by this reference.
SECTION 2. AMENDMENTS TO PARTICIPATION AGREEMENT.
Section 2.1. Subparagraph 5.03(a) and Subparagraph 5.03(b) of the
Participation Agreement shall be and are hereby amended in their entirety to
read as follows:
"(a) Unrestricted Cash. Lessee shall at all times comply with
Section 7.14(b) of the Bank Credit Agreement as in effect on
September 28, 2001, without regard to any subsequent amendment,
modification or waiver of Section 7.14(b) of the Bank Credit
Agreement (or any definition used therein) or the expiration,
replacement or termination of the Bank Credit Agreement.
(b) Cash Collateral Account. (i) Pursuant to the Cash
Collateral Agreement, on September 28, 2001, Lessee shall cause
Additional Cash Collateral in an amount not less than (i) the
aggregate Outstanding Tranche B Amount under the Lease Supplements
plus (ii) the aggregate Outstanding Equity Amount under the Lease
Supplements plus (iii) an amount equal to the next due payments of
the Variable Component of Rent attributable to the Outstanding
Tranche B Amount and the Outstanding Equity Amount (the "Required
Cash Collateral Amount") to be held in the Cash Collateral Account,
as security for the obligations of Lessee to the Tranche B
Participants and the Equity Participants under the Operative
Documents.
(ii) On October 28, 2001 and on the 28th day of each
succeeding month (unless such day is not a Business Day, in which
case on the next succeeding Business Day), Lessee shall furnish or
cause to be furnished to Agent a certificate in form reasonably
satisfactory to Agent setting forth, in a reasonably detailed
calculation, the value of the Additional Cash Collateral in the Cash
Collateral Account as of such date.
(iii) If on any date that a certificate is furnished in
accordance with Subparagraph 5.03(b)(ii) the value of the Additional
Cash Collateral in the Cash Collateral Account shall be less than
the Required Cash Collateral Amount, then Lessee shall deliver to
the Securities Intermediary Additional Cash Collateral in an amount
such that the Additional Cash Collateral in the Cash Collateral
Account is equal to or greater than the Required Cash Collateral
Amount. If, on such date, the value of the Additional
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Cash Collateral in the Cash Collateral Account shall be greater than
the Required Cash Collateral Amount, and provided that no Default or
Event of Default shall have occurred and be continuing, Lessee may
request that Securities Intermediary shall promptly release such
excess amount to Lessee in an amount such that, after giving effect
to such release, the value of the Additional Cash Collateral
remaining in the Cash Collateral Account shall equal or exceed the
Required Cash Collateral Amount (for the purposes of this subsection
(iii), such released Additional Cash Collateral, "Surplus
Collateral"). By 5:00 P.M., San Francisco, California time, on the
next Business Day after receipt of such notice, the Securities
Intermediary shall release such Surplus Collateral to the Lessee;
provided, however, that after giving effect to such release, no
Default or Event of Default shall have occurred and be continuing;
and provided further, that no release of Surplus Collateral shall in
any way affect the obligations of the Lessee pursuant to
Subparagraph 5.03(b)(ii)."
Section 2.2. Subparagraphs 5.03(c), 5.03(d), 5.03(f) and 5.03(g) of the
Participation Agreement shall be and are hereby amended in their entirety to
read as follows:
"[Reserved]"
Section 2.3. Section 7 of the Participation Agreement shall be and is
hereby amended by adding a new Paragraph 7.15 to read as follows:
"7.15. Set-Off of Amounts due LSI as Tranche A Participant.
Lessee hereby irrevocably agrees that any amounts owed to LSI as a
Tranche A Participant under any Operative Document may be set-off
against amounts owed by Lessee under the Lease, regardless of the
adequacy of any Collateral, including, without limitation, the
Additional Cash Collateral."
Section 2.4. The following sentence shall be added at the end of Paragraph
7.04 of the Participation Agreement:
"Notwithstanding any other provision to the contrary contained
in any Operative Document, LSI and its Affiliates shall have no
rights whatsoever as a Tranche A Participant with respect to any
amendment, modification, waiver, approval or consent, or direction
with respect to the taking of any action, in each case, under the
Operative Documents; and for the purpose of determining whether the
requisite percentage of (a) the Participants or (b) the Tranche A
Participants and/or the Tranche B Participants, as the case may be,
approved or consented to any amendment, modification, waiver or
consent to be given under any
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Operative Document, or have given any other approval or directed the
taking of any action provided herein or therein to be taken upon the
direction of all or a specified percentage of (a) the Participants
or (b) the Tranche A Participants and/or the Tranche B Participants,
as the case may be, LSI's aggregate Outstanding Tranche A Amount in
all Lease Supplements shall be deemed not to be outstanding."
Section 2.5. Paragraph 7.02 of the Participation Agreement shall be and is
hereby amended by adding a third sentence to read as follows:
"Notwithstanding the first sentence of this Paragraph 7.02, no
fees, expenses, indemnities or disbursements shall be payable to
LSI."
Section 2.6. The following definitions contained in Schedule 1.01 of the
Participation Agreement shall be and are hereby amended and restated in their
entirety:
"Agent" shall mean Fleet National Bank, acting in its capacity
as Agent for the Participants under the Operative Documents, and its
successors and assigns in such capacity.
"Agent's Letter" shall mean the letter agreement dated as of
September 28, 2001, between Lessee and Agent.
"Collateral" shall mean the Property Collateral, the Cash
Collateral, the Additional Cash Collateral and all other property in
which any Lessor Party has a Lien to secure any of the Lessee
Obligations.
"Lessor Agent" shall mean Fleet National Bank, acting in its
capacity as agent for the Lessors under the Operative Documents, and
its successors and assigns in such capacity.
"Lessors" shall mean Banc of America Leasing & Capital, LLC,
acting in its capacity as a Lessor under the Operative Documents,
and its successors and assigns in such capacity, including, without
limitation, the institutions from time to time listed as a lessor in
Schedule I hereto, as amended from time to time, each acting in its
capacity as a Lessor under the Operative Documents.
"Operative Documents" shall mean and include the Participation
Agreement, the Lease Agreement, the Purchase Agreement, the Lessee
Security Documents, the Lessor Security Agreement, the Cash
Collateral Agreement and the Control
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Agreement; all other notices, requests, certificates, documents,
instruments and agreements delivered to any Lessor Party pursuant to
Paragraph 3.01 or 3.02 of the Participation Agreement; and all
notices, requests, certificates, bills of sale, documents,
instruments and agreements delivered to any Lessor Party in
connection with any of the foregoing on or after the date of the
Participation Agreement. (Without limiting the generality of the
preceding definition, the term "Operative Documents" shall include
all written waivers, amendments and modifications to any of the
notices, requests, certificates, documents, instruments and
agreements referred to therein.)
"Participation Agreement" shall mean the Amended and Restated
Participation Agreement, dated as of April 18, 2000, among Lessee
and the Lessor Parties, as it may from time to time be amended,
supplemented or otherwise modified.
"Prime Rate" shall mean the variable per annum rate of
interest publicly announced by Fleet National Bank from time to time
as its Prime Rate at its Boston, MA office. Any change in the Prime
Rate resulting from a change in the Prime Rate shall become
effective on the Business Day on which each change in the Prime Rate
occurs. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to any customer.
"Required Participants" shall mean, subject to the last
sentence of Paragraph 7.04, (a) at any time the aggregate
Outstanding Lease Amounts of all Lease Supplements are greater than
$0, Participants whose aggregate Outstanding Participation Amounts
in all Lease Supplements equal or exceed fifty-one percent (51%) or
more of the aggregate Outstanding Lease Amounts of all Lease
Supplements at such time and (b) at any time the aggregate
Outstanding Lease Amounts of all Lease Supplements are $0,
Participants whose Proportionate Shares equal or exceed fifty-one
percent (51%).
Section 2.7. The following shall be added as new definitions in
alphabetical order to Schedule 1.01 to the Participation Agreement:
"Additional Cash Collateral" means certificates of deposit
having a final maturity from the date of issuance of not more than
30 days, issued by commercial bank incorporated under the laws of
the United States of America or any state thereof or the District of
Columbia, which bank is a member of the Federal Reserve System, has
a combined capital and surplus of not less than $500,000,000
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and with a senior unsecured debt credit rating of at least "Aa3" by
Moody's and "AA-" by S & P and is otherwise acceptable to each
Participant.
"Assignment Agreement" shall mean the Assignment Agreement
dated as of September 28, 2001 among the assignors and assignees
named therein.
"Bank Credit Agreement" shall mean the Credit Agreement dated
as of September 28, 2001 among Lessee, as Borrower, Bank of America,
N.A. as Administrative Agent and the other lenders party thereto.
"Cash Collateral Account" is defined in Section 1.1(a) to the
Cash Collateral Agreement.
"Cash Collateral Agreement" means the Assignment of Cash
Collateral Account dated as of September 28, 2001 executed by Lessee
in favor of Lessor Agent.
"Control Agreement" means that certain Control Agreement dated
as of September 28, 2001 among the Securities Intermediary, Lessee,
Lessor and the Agent.
"Required Cash Collateral Amount" is defined in Subparagraph
5.03(b)(i) of the Participation Agreement.
"LSI" means LSI Logic Corporation solely in its capacity as a
Tranche A Participant under the Operative Documents.
"Securities Intermediary" means Fleet National Bank, in its
capacity as Securities Intermediary pursuant to the Cash Collateral
Agreement, and its successors and permitted assigns in such
capacity.
"Surplus Collateral" is defined in Subparagraph 5.03(b)(iii)
of the Participation Agreement.
Section 2.8. Schedule 1.01 of the Participation Agreement is amended by
deleting the definitions of "Consolidated CMLTD", "Consolidated Tangible Net
Worth", "Consolidated Total Debt" and "Total Capital" contained in Schedule 1.01
of the Participation Agreement.
Section 2.9. Schedule II to the Participation Agreement shall be and is
hereby amended by adding a sixth numbered paragraph to read as follows:
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"6. Notwithstanding anything to the contrary in this Schedule II or
in any Operative Document, (a) the Tranche B Applicable Margin is
.50% and (b) the Equity Applicable Margin is 2.00%."
Section 2.10. Paragraph 2.06 of the Participation Agreement shall be and
is hereby amended by adding thereto new Subparagraphs 2.06(e) and (f) to read as
follows:
"(e) Additional Cash Collateral. Notwithstanding any
provision to the contrary contained in any Operative Document, no
Additional Cash Collateral shall be used to pay any amounts owed to
LSI as a Tranche A Participant and such Additional Cash Collateral
shall be applied pursuant to Paragraph 2.06 without regard to LSI as
a Tranche A Participant.
(f) Distribution and Application of Receipts to LSI.
Notwithstanding any provision to the contrary contained in any
Operative Documents, no payment of Rent or interest on overdue
installments of Rent under the Lease or any other monies, amounts,
Collateral or proceeds thereof received by the Agent, shall be
allocated or used to pay any amounts due and payable to LSI as a
Tranche A Participant, and such Rent, monies, amounts, Collateral
and proceeds thereof shall be applied pursuant to the applicable
provisions of Paragraph 2.06 without regard to LSI as a Tranche A
Participant; provided however, that, regardless of the adequacy of
any Collateral, any amount that is due and payable to LSI as a
Tranche A Participant on any date shall be set-off against Rent that
is due and payable by Lessee under the Lease on such date; provided
further, that, notwithstanding anything in the foregoing to the
contrary, in the event that any one or more items of Property is
being purchased pursuant to Section 2 or Paragraph 3.03 of the
Purchase Agreement and such purchase is being effected by or on
behalf of, and is being funded in full by a third party other than
Lessee or any of its Affiliates and all other amounts due and owing
by Lessee under the Operative Documents are paid in full, the
provisions of this Subparagraph 2.06(f) (other than this proviso)
shall not apply with respect to amounts paid by such third party
purchaser."
Section 2.11. Paragraph 7.05 of the Participation Agreement shall be and
is hereby amended by adding a new Subparagraph 7.05(b)(v) to read as follows:
"Notwithstanding anything to the contrary contained herein or in any
other Operative Document, LSI shall not sell or assign any of its
rights and obligations as a Tranche A Participant under this
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Agreement and the other Operative Documents without the prior
written consent of each Participant."
Section 2.12. Paragraph 7.01 shall be and is hereby amended by replacing
the notice information for the Lessor Agent and the Agent with the following:
Agent / Lessor Agent: Fleet National Bank, 100 Federal Street,
Boston, Massachusetts, 02110, Attention: Technology Loan
Administrator, 617-434-4218.
Section 2.13. Schedule 1 to the Participation Agreement shall be amended
and replaced in its entirety by Schedule I attached hereto.
Section 2.14. Section 2 shall be and is hereby amended by adding new
Subparagraphs 2.16, 2.17 and 2.18 to read as follows:
"2.16. Right to Purchase Upon Event of Default. At any time
following the fifth Business Day after the occurrence of an Event of
Default (without regard to any waiver thereof or any amendment or
modification relating thereto or in contemplation thereof), (a) any
Equity Participant (for purposes of this Paragraph 2.16, the
"Purchasing Equity Participant") may require that (i) each and every
Tranche B Participant sell all of its right, title and interest as a
Tranche B Participant to Purchasing Equity Participant for an amount
equal to the Outstanding Tranche B Participation Amount of such
Tranche B Participant for each Lease Supplement plus an amount equal
to the Variable Component of Rent accrued on such Tranche B
Participant's Outstanding Tranche B Participation Amount under each
Lease Supplement as of the date of such sale and (ii) each and every
Equity Participant other than the Purchasing Equity Participant sell
all of its right, title and interest as an Equity Participant to the
Purchasing Equity Participant for an amount equal to the Outstanding
Equity Participation Amount of such Equity Participant for each
Lease Supplement plus an amount equal to the Variable Component of
Rent accrued on such Equity Participant's Outstanding Equity
Participation Amount under each Lease Supplement as of the date of
such sale and (b) any Tranche B Participant (for purposes of this
Paragraph 2.16, the "Purchasing Tranche B Participant") may require
that (i) each and every Tranche B Participant sell all of its right,
title and interest as a Tranche B Participant to Purchasing Tranche
B Participant for an amount equal to the Outstanding Tranche B
Participation Amount of such Tranche B Participant for each Lease
Supplement plus an amount equal to the Variable Component of Rent
accrued on such Tranche B Participant's Outstanding Tranche B
Participation Amount under each Lease Supplement as of the date of
such sale and (ii) each and every
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Equity Participant sell all of its right, title and interest as an
Equity Participant to the Purchasing Tranche B Participant for an
amount equal to the Outstanding Equity Participation Amount of such
Equity Participant for each Lease Supplement plus an amount equal to
the Variable Component of Rent accrued on such Equity Participant's
Outstanding Equity Participation Amount under each Lease Supplement
as of the date of such sale.
2.17. Sixty Day Right to Purchase. For a period of sixty days
beginning on September 28, 2001, Banc of America Leasing & Capital,
LLC/Bank of America, N.A. (for purposes of this Paragraph 2.17, the
"Purchaser") shall have the right, at its sole option, to purchase
all of Fleet National Bank's (for purposes of this Paragraph 2.17,
together with its successors and assigns, including any subsequent
assignee hereunder, the "Seller") right title and interest as a
Tranche B Participant for an amount equal to (a) the Outstanding
Tranche B Participation Amount of Seller for each Lease Supplement
plus (b) an amount equal to the Variable Component of Rent accrued
on Seller's Outstanding Tranche B Participation Amount under each
Lease Supplement as of the date of such sale.
2.18. Quarterly Rental Periods. Notwithstanding anything
contained in the Lease or any other Operative Document to the
contrary, including, without limitation, the definition of "Rental
Period" and anything to the contrary in Paragraph 2.03 of the Lease,
after September 28, 2001, the Variable Component of Rent shall be
payable quarterly."
Section 2.15. Subparagraph 7.04(c) shall be and is hereby amended in its
entirety to read as follows:
"(c) Any amendment, waiver or consent which affects the rights or
obligations of Lessor Agent or Agent must by in writing and signed
by Lessor Agent or Agent, as the case may be. Any amendment, waiver
or consent of any provision relating to the Additional Cash
Collateral must be in writing and signed by each affected
Participant."
SECTION 3. AMENDMENTS TO LESSOR SECURITY AGREEMENT.
Section 3.1. Paragraph 2.01 of the Lessor Security Agreement shall be and
is hereby amended by adding the following sentence to the end of the paragraph:
"Notwithstanding anything to the contrary in this Paragraph
2.01 or in any Operative Document, the Additional Cash Collateral
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shall not secure the Lessor Obligations owing to LSI as a Tranche A
Participant."
SECTION 4. REPRESENTATIONS AND WARRANTIES; REAFFIRMATION OF LIEN AND
SECURITY INTEREST.
Section 4.1 Representations and Warranties of Lessee. Lessee hereby
represents and warrants to the Lessor Parties that, after giving effect to the
provisions hereunder, the following will be true and correct on the date hereof:
(a) The representations and warranties of Lessee set forth in
Paragraph 4.01 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on the
date hereof (except for representations and warranties expressly made as
of a specified date, which shall be true in all material respects as of
such date);
(b) No Default or Event of Default has occurred and is continuing;
and
(c) All of the Operative Documents are in full force and effect.
(Without limiting the scope of the term "Operative Documents", Lessee expressly
acknowledges in making the representations and warranties set forth in this
Section 4.1 that, on and after the date hereof, such term includes this Omnibus
Amendment, the Cash Collateral Agreement and the Control Agreement.)
Section 4.2. Representations and Warranties of Lessor. Each Lessor hereby
represents and warrants to Agent, Lessee and the Participants that, after giving
effect to the provisions hereunder, the following will be true and correct on
the date hereof:
(a) The representations and warranties of Lessor set forth in
Paragraph 4.02 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on the
date hereof (except for representations and warranties expressly made as
of a specified date, which shall be true in all material respects as of
such date);
(b) No Default or Event of Default has occurred and is continuing;
and
(c) All of the Operative Documents are in full force and effect.
(Without limiting the scope of the term "Operative Documents," Lessor expressly
acknowledges in making the representations and warranties set forth in this
Section 4.2 that, on and after the date hereof, such term includes this Omnibus
Amendment, the Cash Collateral Agreement and the Control Agreement.)
Section 4.3. Representations and Warranties of Participants. As of the
date hereof, each Participant represents and warrants, severally and only as to
itself, to each of the parties to
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the Participation Agreement that, after giving effect to the provisions
hereunder, the representation and warranties of the Participants set forth in
Paragraph 4.03 of the Participation Agreement are true and correct in all
material respects as if made on such date. (Without limiting the scope of the
term "Operative Documents", each Participant expressly acknowledges in making
the representations and warranties set forth in this Section 4.3 that, on and
after the date hereof, such term includes this Omnibus Amendment, the Cash
Collateral Agreement and the Control Agreement.)
Section 4.4. Reaffirmation by Lessee of Lien and Security Interest of
Lessor Agent. Lessee hereby reaffirms its grant of a lien and security interest
in the Collateral, including, without limitation, the Additional Cash
Collateral, as set forth in the Lease and as amended pursuant hereto.
Section 4.5. Reaffirmation by Lessor of Lien and Security Interest of
Agent. The Lessor hereby reaffirms its grant of a lien and security interest in
the Lessor Collateral as set forth in the Lessor Security Agreement and as
amended pursuant hereto.
SECTION 5. CONDITIONS TO EFFECTIVENESS OF THIS OMNIBUS AMENDMENT.
Section 5.1. This Omnibus Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied:
(a) this Omnibus Amendment, the Assignment Agreement, the Cash
Collateral Agreement and the Control Agreement shall have been duly
authorized, executed and delivered by the parties thereto, shall be in
form and substance satisfactory to each Participant and an executed
counterpart of each thereof shall have been received by each of the
Participants, Lessor Agent, Agent and Lessee; each of the documents
referred to above shall be in full force and effect as to all parties and
no Default or Event of Default shall have occurred or be continuing;
(b) the Required Cash Collateral Amount shall have been deposited
in the Cash Collateral Account;
(c) the assignment contemplated by the Assignment Agreement shall
have been consummated;
(d) all accrued amounts of the Variable Component of Base Rent to,
but not including, September 28, 2001 shall have been paid to the
appropriate Participants by Lessee;
(e) each Participant, Agent and Lessor Agent shall have received
favorable opinions, in each case, dated September 28, 2001 of (i) General
Counsel of Lessee, and (ii) Latham & Watkins, special counsel to Lessee,
in each case, in form and substance reasonably satisfactory to such
recipient.
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(f) the Resigning Agent shall have received via wire transfer in
immediately available funds all amounts owed to date by Lessee to
Resigning Agent in its capacity as original Agent and Lessor Agent under
the Participation Agreement and the other Operative Documents (including
without limitation agent's fees, legal fees and expenses).
(h) the Bank Credit Agreement shall have been consummated;
(i) all UCC financing statements or amendments to existing UCC
financing statements necessary to perfect the liens and security interests
granted pursuant to the Operative Documents shall have been prepared,
executed (to the extent required by law) and held by Agent for filing in
the appropriate offices or locations;
(j) amendments to that certain synthetic lease financing entered
into among Lessee, Wells Fargo Bank Northwest, National Association, as
Certificate Trustee, Wells Fargo Bank Nevada, National Association, as
Agent and the "Participants" party thereto, shall have been executed and
delivered and shall be effected in scope and form satisfactory to the
Participants;
(k) the reasonable fees and expenses of Chapman and Cutler and
Hinckley, Allen & Snyder LLP (subject to the terms of the Commitment
Letter dated September 26, 2001 from Agent to Lessee) shall have been
paid;
(l) Agent shall have received (x) a certificate of the Secretary
or Assistant Secretary of Lessee attaching and certifying as to: (i) the
corporate authority for the execution, delivery and performance by Lessee
of each Operative Document to which it is or will be a party, (ii) its
organizational documents, (iii) its by-laws, and (iv) the incumbency and
signature of persons authorized to execute and deliver such documents on
behalf of Lessee and (y) a good standing certificate from the Secretary of
State of Delaware as to the good standing of Lessee;
(m) the arrangement fee described in the Engagement Letter dated
September 13, 2001 shall have been paid by Lessee to the party entitled
thereto;
(n) all actions and other approvals and consents required to be
taken, given or obtained, as the case may be, by or from any Governmental
Authority or other Person, that are necessary at such time for the
performance of the terms hereof or any other Operative Document as amended
hereby shall have been taken, given or obtained, as the case may be, shall
be in full force and effect and shall not be subject to any pending
proceedings or appeals (administrative, judicial or otherwise), except for
any action, consent, approval or authorization the failure to obtain
which, or the appeal of or further procedures with respect to which, would
not reasonably be expected to have a Material Adverse Effect; and
(o) Lessee shall have paid the fee described in the Agent's
Letter.
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Upon the satisfaction to the Participants (other than the Lessee) of all of the
foregoing, this Omnibus Amendment shall become effective.
SECTION 6. RESIGNATION AND APPOINTMENT OF AGENTS.
Section 6.1. Resignation of Lessor Agent and Agent. Pursuant to Paragraph
6.07 of the Participation Agreement, ABN AMRO Bank, N.V. hereby resigns as
Lessor Agent and Agent whereupon it shall be discharged from its duties and
obligations as Lessor Agent and Agent under the Participation Agreement and the
other Operative Documents for matters arising from and after the effectiveness
of this Omnibus Amendment, provided that the provisions of Paragraphs 6.05, 7.02
and 7.03 of the Participation Agreement shall survive in accordance with
Paragraph 6.07 of the Participation Agreement and continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was Lessor
Agent and Agent under the Participation Agreement and the other Operative
Documents. In addition, ABN AMRO Bank N.V. (a) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Participation
Agreement or any other Operative Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Participation
Agreement, any other Operative Document or, any other instrument or document
furnished pursuant thereto, or any Collateral other than that it has not created
any adverse claim upon the interests being assigned hereunder except as provided
in the Participation Agreement and the other Operative Documents and that the
interests being assigned hereunder are free and clear of any such adverse claim;
and (b) makes no representation or warranty and assumes no responsibility with
respect to the solvency or financial condition of Lessee, any other guarantor or
any other obligor or the performance or observance by Lessee, any other
guarantor or any other obligor of any of their respective obligations under the
Participation Agreement, any other Operative Document or any other instrument or
document furnished pursuant hereto or thereto. Lessee and Lessor hereby waive
the thirty day notice requirement with respect to the Lessor Agent's
resignation. The Participants hereby waive the thirty day notice requirement
with respect to the Agent's resignation.
Section 6.2. Appointment of Successor Lessor Agent and Successor Agent.
Pursuant to Paragraph 6.07 of the Participation Agreement, Lessor hereby
appoints Fleet National Bank as Lessor Agent and the Participants hereby appoint
Fleet National Bank as Agent and Fleet National Bank hereby accepts such
appointments. Lessee hereby consents to the appointment of Fleet National Bank
as Agent.
SECTION 7. MISCELLANEOUS.
Section 7.1. This Omnibus Amendment shall be construed in connection with
and as part of each of the Operative Documents, and except as modified and
expressly amended by this Omnibus Amendment, all terms, conditions and covenants
contained in the Operative Documents are hereby ratified and shall be and remain
in full force and effect. The execution, delivery and effectiveness of this
Omnibus Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power, or remedy of Lessor, Lessor Agent, Agent or the
Participants, nor constitute a waiver of any provision of any Operative
Document.
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Section 7.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Omnibus Amendment may refer to the Operative Documents without making specific
reference to this Omnibus Amendment but nevertheless all such references shall
include this Omnibus Amendment unless the context otherwise requires.
Section 7.3. The descriptive headings of the various Sections or parts of
this Omnibus Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
Section 7.4. This Omnibus Amendment shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules, except as otherwise provided in Schedule 1.02 of the
Participation Agreement.
Section 7.5. This Omnibus Amendment shall be binding upon and inure to the
benefit of Lessee, Lessor, Lessor Agent, Agent and the Participants and their
respective permitted successors and assigns. All references in this Omnibus
Amendment to any Person shall be deemed to include all successors and assigns of
such Person.
Section 7.6. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this Omnibus
Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
[INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Lessee, Lessor, Lessor Agent, Agent, Resigning Agent
and the Participants have caused this Omnibus Amendment to be executed as of the
day and year first above written.
LESSEE: LSI LOGIC CORPORATION
By:______________________________________
Name:____________________________________
Title:___________________________________
LESSOR: BANC OF AMERICA LEASING & CAPITAL, LLC,
not in its individual capacity but
solely as Lessor
By:______________________________________
Name:____________________________________
Title:___________________________________
LESSOR AGENT: FLEET NATIONAL BANK, not in its
individual capacity but solely as
Lessor Agent
By:______________________________________
Name:____________________________________
Title:___________________________________
AGENT: FLEET NATIONAL BANK, not in its
individual capacity but solely as
Agent
By:______________________________________
Name:____________________________________
Title:___________________________________
RESIGNING AGENT: ABN AMRO BANK N.V., as Resigning Agent
and solely for purposes of
Section 6 hereof
By:______________________________________
Name:____________________________________
Title:___________________________________
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IN WITNESS WHEREOF, Lessee, Lessor, Lessor Agent, Agent, Resigning Agent
and the Participants have caused this Omnibus Amendment to be executed as of the
day and year first above written.
PARTICIPANTS: LSI Logic Corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
FLEET NATIONAL BANK
By:______________________________________
Name:____________________________________
Title:___________________________________
BANC OF AMERICA LEASING & CAPITAL, LLC
By:______________________________________
Name:____________________________________
Title:___________________________________
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SCHEDULE I
LESSORS AND PARTICIPANTS
PART A
COMMITMENTS
PARTICIPANT COMMITMENT AMOUNT TYPE OF COMMITMENT
----------------------------------------------------------------------------------------
LSI Logic Corporation $147,050,607.31 Tranche A
Fleet National Bank $25,891,522.19 Tranche B
Banc of America Leasing & Capital, LLC $9,167,333.22 Equity
TOTAL $182,109,462.72
PART B
ADDRESSES, ETC.
(as Participant, Agent and Lessor Agent)
FLEET NATIONAL BANK
Address for All required Documentation and Financial Information
100 Federal Street
Boston, MA 02110
CREDIT CONTACTS
PRIMARY:
Lee A. Merkle-Raymond
435 Tasso Street, Suite 250
Palo Alto, CA 94301
Telephone: 650-470-4130
Facsimile: 650-853-1425
E-mail: lee_a_merkle-raymond@fleet.com
ADMINISTRATIVE CONTACTS
Technology Loan Administrator
100 Federal Street
Boston, MA 02110
Telephone: 617-434-4218
DE 100-09H
PAYMENT/WIRE INSTRUCTIONS
Fleet National Bank
ABA No.: 011000138
Account No.: 1510351-66156
Account Name: LA Suspense
Ref: LSI Logic Corporation
LSI Logic Corporation (as Participant)
1551 McCarthy Blvd.
Milpitas, California 95035
Contact: Anita Prasad, Vice President -- Treasury & Tax
Telephone: (408) 433-8000
Fax: (408) 433-6896
Wire Instructions:
Bank of America
ABA# 121-000-358
Account Name: LSI Logic Corporation
Account No.: 12335 01388
Notify Tanu Mahajan at (408) 433-4033 when sent
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BANC OF AMERICA LEASING & CAPITAL, LLC (as Participant and Lessor)
Address for All required Documentation and Financial Information
555 California Street, 4th Floor
San Francisco, CA 94104
CREDIT CONTACTS
PRIMARY:
Gino Verza
555 California Street, 4th Floor
San Francisco, CA 94104
Telephone: 415-765-7496
Facsimile: 415-765-7418
E-mail: Gino.e.verza@bankofamerica.com
BACK-UP:
Bob Stark
555 California Street, 4th Floor
San Francisco, CA 94104
Telephone: 415-765-7409
Facsimile: 415-765-7353
E-mail: Robert.Stark@bankofamerica.com
ADMINISTRATIVE CONTACTS
Anita Garfagnoli
555 California Street, 4th Floor
San Francisco, CA 94104
Telephone: 415-765-1803
Facsimile: 415-765-7373
E-mail: Anita.l.garfagnoli@bankofamerica.com
PAYMENT/WIRE INSTRUCTIONS
Bank of America, NA (San Francisco, CA)
ABA No.: 121-000-358
Account No.: 12578-03258
Account Name: BA Leasing & Capital, LLC
Attention: Controller
Ref: LSI Logic Corporation
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