EXHIBIT 10.30
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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 20, 2001
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Re: Synthetic Lease Financing for
LSI Logic Corporation
(LSI Logic Trust No. 2001-A)
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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 20, 2001 (as heretofore amended) is
among LSI LOGIC CORPORATION, a Delaware corporation (solely in its capacity as a
Participant (as defined below) under the Participation Agreement (as defined
below), "LSI" and, otherwise, "Lessee"), WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION (f/k/a First Security Bank, National Association), not in its
individual capacity but solely as Certificate Trustee ("Certificate Trustee"),
WELLS FARGO BANK NEVADA, NATIONAL ASSOCIATION (f/k/a First Security Trust
Company of Nevada), 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").
RECITALS:
A. Lessee, Certificate Trustee, Agent and the Participants are parties
to that certain Participation Agreement, dated as of April 20, 2001 (the
"Participation Agreement"), as amended by the First Amendment to Participation
Agreement dated as of July 13, 2001 and the Second Amendment to Participation
Agreement dated as of August 2, 2001.
B. Pursuant to the Assignment Agreement dated as of an even date hereof
(the "Assignment Agreement"), certain of the original Participants have assigned
(i) their Notes (or a portion thereof) to LSI and Eligible Assignees in an
aggregate principal amount equal to $112,556,805.25, and (ii) their Certificates
(or a portion thereof) to Eligible Assignees in an aggregate Certificate Amount
equal to $4,461,440.51, in each case, as well as their commitments to fund
additional Advances.
C. Pursuant to the Cash Collateral Agreement, dated as of an even date
hereof, Lessee shall pledge cash or certificates of deposit in amount equal to
at least the outstanding principal amount of the Notes (other than Notes held by
LSI) and the Certificate Amount of the Certificates held by the Participants.
D. Lessee, Certificate Trustee, Agent and the Participants now wish to
amend certain provisions contained in the Operative Documents (as such term is
defined in Appendix I to the Participation Agreement) and have agreed to effect
such amendments upon the terms and subject to the conditions set forth herein.
E. 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
7.1 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 Appendix I to the Participation
Agreement, when used in this Omnibus Amendment, shall have the meaning given to
that term in Appendix I, and (b) the rules of interpretation set forth in
Appendix I 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. Section 2.14(a)(i) of the Participation Agreement shall be
and is hereby amended in its entirety to read as follows:
(a) (i) Lessee shall pay to each Lender through the Agent,
on each Payment Date occurring in each calendar month during the
Commitment Period, and on the last day of the Commitment Period, a
commitment fee at a rate per annum equal to the Applicable Lender
Commitment Fee Margin on the unused Commitment of such Lender
hereunder, during the preceding one-month period (or other period
commencing on the Document Closing Date or ending on the last day of
the Commitment Period); provided, however, that no commitment fee
shall accrue or be payable to LSI on any unused Commitment of LSI as
a Lender. Such fee shall commence to accrue on the Document Closing
Date and shall cease to accrue on the day prior to the last day of
the Commitment Period;
Section 2.2. Section 3.1(b) of the Participation Agreement shall be and is
hereby amended in its entirety to read as follows:
(b) Cash Collateral. Lessee shall have deposited the
Required Cash Collateral Amount in the Cash Collateral Account in
accordance with Section 5.3(b) hereof on such Advance Date.
Section 2.3. Section 5.3(a) and (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 said Section 7.14(b) (or any definition
used therein) or the expiration, replacement or termination of such
Bank Credit Agreement.
(b) Cash Collateral Account. (i) Pursuant to the Cash
Collateral Agreement, on September 28, 2001 and on each
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Advance Date, Lessee shall cause (by delivery to the Securities
Intermediary of, or by otherwise depositing into the Cash Collateral
Account, sufficient Cash Collateral) Cash Collateral in an amount
equal to (a) the Lease Balance plus the amount of Interest and Yield
due on the next succeeding Payment Date, minus (b) the Lease Balance
and Interest attributable to the Notes held by LSI (the "Required
Cash Collateral Amount") to be held in the Cash Collateral Account,
which Required Cash Collateral Amount shall be pledged to the
Securities Intermediary as security for the obligations of Lessee
under the Operative Documents.
(ii) On each Payment Date, Lessee shall furnish or
cause to be furnished to Certificate Trustee a certificate in form
reasonably satisfactory to Certificate Trustee setting forth, in a
reasonably detailed calculation, the value of the Cash Collateral as
of such date.
(iii) If on any date that a certificate is furnished in
accordance with subsection (ii) of this Section 5.3(b) the value of
the Cash Collateral shall be less than the Required Cash Collateral
Amount, then Lessee shall pledge to the Securities Intermediary, by
delivery to the Securities Intermediary or by otherwise depositing
into the Cash Collateral Account, additional Cash Collateral in an
amount such that the Cash Collateral is equal to or greater than the
Required Cash Collateral Amount. If, on such date, the value of the
Cash Collateral shall be greater than the Required Cash Collateral
Amount and provided that no Default or Event of Default shall have
occurred and be continuing, then 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 Cash Collateral remaining in the Cash Collateral Account held
by the Securities Intermediary shall equal or exceed the Required
Cash Collateral Amount (for the purposes of this subsection (iii),
such released 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 (ii) of this
Section 5.3(b).
Section 2.4. Section 5.3(c), (d), (f) and (g) of the Participation
Agreement shall be and are hereby amended in their entirety to read as follows:
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"[Reserved]"
Section 2.5. Section 6.3(a) of the Participation Agreement shall be and is
hereby amended by amending the last sentence of Section 6.3(a)(i) in its
entirety to read as follows:
"Notwithstanding anything to the contrary contained herein or in any
other Operative Document, (i) any Lender other than LSI may pledge
or assign its rights under the Operative Documents in accordance
with Section 6.3(f) without regard to the limitations contained in
this Section 6.3(a) and (ii) LSI shall not assign any of its Notes
to any Person without the prior written consent of each
Participant."
Section 2.6. Article VI of the Participation Agreement shall be and is
hereby amended by adding thereto a new Section 6.5 to read as follows:
"Section 6.5. Set-Off. Lessee hereby irrevocably agrees that
any amounts owed to LSI as a Lender or holder of a Note 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 Cash Collateral."
Section 2.7. The following paragraph shall be added at the end of Section
9.5 of the Participation Agreement:
"Notwithstanding any other provision to the contrary contained
in any Operative Document, none of LSI nor any Affiliate of Lessee
shall have any rights whatsoever as a holder of a Note with respect
to any amendments, modifications, waivers, approvals or consents, or
directions 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 the Lenders or Participants, as
the case may be, approved or consented to any amendment,
modification, waiver or consent to be given under any 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 the Lenders or Participants, as
the case may be, Notes directly or indirectly held by LSI or any of
its Affiliates shall be deemed not to be outstanding."
Section 2.8. Section 9.9(b) of the Participation Agreement shall be and is
hereby amended in its entirety to read as follows:
"(b) Continuing Expenses. The continuing fees, expenses and
disbursements (including reasonable counsel fees) of
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(i) Bank, set forth in the Trustee Fee Letter, (ii) Agent, set forth
in the Agent Fee Letter, (iii) Arranger, as set forth in the
Engagement Letter, and (iv) Participants, as set forth in Section
2.14(a), shall be paid directly by Lessee as Supplemental Rent,
provided, however, that, no fees, expenses, indemnities or
disbursements shall be payable to LSI as a Lender or holder of any
Note."
Section 2.9. The following definitions contained in Annex I of the
Participation Agreement shall be and are hereby amended and restated in their
entirety:
"Applicable Interest Rate Margin" shall mean, for each Payment
Period, the interest rate margin set forth below (expressed in a
percentage) opposite the Pricing Level for that Payment Period:
Pricing Level Applicable Margin
I 1.25%
II 1.50%
III 1.75%
; provided, however, with respect to the Notes held by Lenders other
than LSI, the Applicable Margin shall be 0.50%; provided, further,
if a Lease Event of Default exists, the Applicable Margin set forth
opposite the Pricing Levels stated above or in the immediately
preceding proviso shall be increased by 2.00%.
"Applicable Lender Commitment Fee Margin" shall mean, for each
Payment Period, the margin set forth below (expressed in a
percentage) opposite the Pricing Level for that Payment Period:
Pricing Level Applicable Lender Facility Fee Margin
I 0.20%
II 0.25%
III 0.30%
; provided, however, with respect to the Lenders other than LSI, the
margin shall be 0.30%.
"Applicable Yield Rate Margin" shall mean, for each Payment
Period, 2.00%; provided, however, if a Lease Event of Default
exists, the Applicable Margin set forth above shall be increased by
2.00%.
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"Lenders" shall mean the financial institutions party to the
Loan Agreement and the Participation Agreement and listed as Lenders
on the signature pages thereto and their permitted successors and
assigns, including, without limitation, LSI so long as it is the
holder of any Note.
"Lessee Collateral" shall mean all of Lessee's right, title
and interest in and to each of the following, however arising and
whether now existing or hereafter acquired or arising:
(a) the Items of Equipment (including all Parts thereof,
accessions thereto and replacements and substitutions therefor);
(b) the Subleases;
(c) the purchase agreements between Lessee and a
Manufacturer with respect to the Items of Equipment;
(d) all other contracts necessary to purchase, operate and
maintain the Items of Equipment;
(e) any rights to a rebate, offset or other assignment,
warranty or service under a purchase order, invoice or purchase
agreement with any manufacturer of any Item of Equipment;
(f) all books, manuals, logs, records, writings, software,
information and other property solely relating to any of the
foregoing;
(g) all cash, monies, certificates of deposits and
investments held in the Cash Collateral Account; and
(h) all products, accessions, rents, issues, profits,
returns, income and proceeds of and from any and all of the
foregoing collateral (including proceeds which constitute property
of the types described in clauses (a), (b), (c), (d), (e), (f) and
(g) above and, to the extent not otherwise included, all payments
under insurance (whether or not Lessor is the loss payee thereof),
or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing
collateral).
"Lessor Liens" shall mean Liens on or against any Item of
Equipment, the Lease, the Trust Estate, the Cash Collateral, the
Cash Collateral Account or any payment of Rent (a) which result from
any act of, or any Claim against Lessor (in its individual
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capacity or in its trustee capacity as Lessor), the Trust, the
Agent, the Securities Intermediary or any Participant, in either
case, unrelated to the transactions contemplated by the Operative
Documents, (b) which result from any Tax owed by Lessor (in its
individual capacity), the Trust, Agent, the Securities Intermediary
or any Participant, except any Tax for which Lessee is obligated to
indemnify or (c) which result from any act or omission of
Certificate Trustee (in its individual or in its trustee capacity),
the Trust, Agent, the Securities Intermediary or any Participant
that is in breach of such Person's covenants or agreements under the
Operative Documents.
"Loan Documents" shall mean the Loan Agreement, the Notes, the
Assignment of Lease and Rent, the Cash Collateral Agreement, the
Control Agreement and all documents and instruments executed and
delivered in connection with each of the foregoing.
"Operative Documents" shall mean, as the context requires:
(1) the Participation Agreement;
(2) the Trust Agreement;
(3) the Lease;
(4) each Lease Supplement;
(5) Assignment of Lease and Rent;
(6) each Assignment of Lease and Rent Supplement;
(7) the Loan Agreement;
(8) the Notes;
(9) the Certificates;
(10) the Cash Collateral Agreement; and
(11) the Control Agreement.
"Required Lenders" shall mean, as of the date of the
determination, subject to Section 9.5 of the Participation
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Agreement, Lenders holding Notes representing at least 51% of the
unpaid principal amount of all Loans.
"Required Participants" shall mean, as of the date of the
determination, subject to Section 9.5 of the Participation
Agreement, Participants holding Notes and/or Certificates
representing at least 51% of the outstanding Lease Balance.
Section 2.10. The following shall be added as new definitions in
alphabetical order to Annex I to the Participation Agreement:
"Assignment Agreement" shall mean the Assignment Agreement
dated as of September 28, 2001 between 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" means certificates of deposit having a final
maturity from the date of issuance of not more than (i) 30 days
during the Interim Term and (ii) 90 days during the Base Term,
issued by any 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 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 all of the
Participants.
"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 Certificate Trustee.
"Control Agreement" means that certain Control Agreement dated
as of September 28, 2001 among the Securities Intermediary, the
Lessee and the Certificate Trustee.
"LSI" means LSI Logic Corporation solely in its capacity as a
Participant under the Loan Agreement and as a holder of Notes.
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"Required Cash Collateral Amount" is defined in Section
5.3(b)(i) of the Participation Agreement.
"Securities Intermediary" means Fleet National Bank, in its
capacity as Securities Intermediary pursuant to the Cash Collateral
Agreement, or its successors and permitted assigns.
"Surplus Collateral" is defined in Section 5.3(b)(iii) of the
Participation Agreement.
Section 2.11. Annex I of the Participation Agreement is amended by
deleting the definitions of "Consolidated CMLTD", "Consolidated Tangible Net
Worth", "Consolidated Total Debt", "Net Proceeds" and "Total Capital" contained
in Annex I of the Participation Agreement.
Section 2.12. Each of Schedules I-A, I-B and II to the Participation
Agreement shall be and is hereby amended in its entirety in the form set forth
hereto as Schedule I-A, I-B and II.
Section 2.13. Schedule III to the Participation Agreement shall be and is
hereby amended by adding the Equipment described hereto on Schedule III.
Section 2.14. Article II of the Participation Agreement shall be and is
hereby amended by adding new Sections 2.19 and 2.20 to read as follows:
"2.19. Right to Purchase following Event of Default. At any
time following the fifth Business Day after the occurrence of a
Lease Event of Default (without regard to any waiver thereof or any
amendment or modification relating thereto or in contemplation
thereof), (a) any holder of a Certificate (for purposes of this
Section 2.19, the "Purchasing Certificate Holder") may require that
(i) all, but not less than all, of the Lenders (other than LSI) sell
their Notes and Commitments to the Purchasing Certificate Holder for
an amount equal to the outstanding principal amount of such Notes
plus accrued Interest up to and including the date of such sale and
(ii) all, but not less than all, of the holders of Certificates
other than the Purchasing Certificate Holder sell their Certificates
and Commitments to the Purchasing Certificate Holder for an amount
equal to the outstanding principal amount of such Certificates plus
accrued Yield up to and including the date of such sale; and (b) any
Lender other than LSI (for purposes of this Section 2.19, the
"Purchasing Lender") may require that (i) all, but not less than
all, of the other Lenders (other than LSI) sell their Notes and
Commitments to such Purchasing Lender for an amount equal to the
outstanding principal amount of such Notes plus accrued Interest up
to and including the date of such sale and (ii) all, but not less
than all, of the holders of Certificates sell their
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Certificates and Commitments to the Purchasing Lender for an amount
equal to the outstanding principal amount of such Certificates plus
accrued Yield up to and including the date of such sale.
Section 2.20 Sixty Day Right to Purchase. For a period of
sixty days after September 28, 2001 Banc of America Leasing &
Capital, LLC/Bank of America, N.A. (for purposes of this Section
2.20, the "Purchaser") and Fleet National Bank (for purposes of this
Section 2.20, together with its successors and assigns, including
any subsequent assignee hereunder, the "Seller") agree that
Purchaser shall have the right, at its sole option, to purchase, and
Seller shall have the obligation to sell, all Notes held by Seller
for an amount equal to the outstanding principal amount of such
Notes plus accrued Interest up to and including the date of such
sale."
Section 2.15. Section 9.5(a) of the Participation Agreement shall be and
is hereby amended by adding, at the end of such Section 9.5(a) after the word
"Documents", the following:
"or modify or waive any provision of any Operative Document relating
to the Cash Collateral"
SECTION 3. AMENDMENTS TO LOAN AGREEMENT.
Section 3.1. Section 2.8 of the Loan Agreement shall be and is hereby
amended in its entirety to read as follows:
"Section 2.8. Pro Rata Treatment and Payments. Except as
otherwise set forth in Article III, each payment (including each
prepayment) by Borrower on account of principal of and interest on
the Loans shall be made pro rata to the Lenders according to the
outstanding principal amount of the Loans held by each Lender. All
payments (including prepayments) to be made by Borrower hereunder
and under the Notes shall be made without set-off or counterclaim,
except in the case of any Notes held by LSI which, regardless of the
adequacy of any collateral, may be set-off against Rent owed by
Lessee, and shall be made to Agent, for the account of the Lenders,
at Agent's office referred to in Schedule II of the Participation
Agreement, in lawful money of the United States of America and in
immediately available funds. Agent shall distribute such payments to
each Lender pursuant to the payment instructions set forth in
Schedule II of the Participation Agreement, promptly upon receipt in
like funds as received."
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Section 3.2. Section 2.10 of the Loan Agreement shall be and is hereby
amended in its entirety to read as follows:
"Section 2.10. Payment from Trust Estate Only All payments to
be made by Borrower in respect of the Loans and under this Loan
Agreement shall be made only from the income and the proceeds from
the Trust Estate and only to the extent that Borrower has received
sufficient income or proceeds from the Trust Estate (including
payments made by Lessee directly to Agent pursuant to Section 2.6(b)
of the Participation Agreement) to make such payments in accordance
with the terms of Article III, provided that, regardless of the
adequacy of any collateral, the Agent may set-off amounts due on any
Notes held by LSI against Rent due from Lessee under the Lease. Each
Lender agrees that it will look solely to the income and proceeds
from the Trust Estate to the extent available for distribution to
such Lender as herein provided and that none of Borrower, any
Certificate Purchaser or Agent is or shall be personally liable to
any Lender for any amount payable hereunder or under any Note
(except as provided in Section 7.10 hereof)."
Section 3.3. Article III of the Loan Agreement shall be and is hereby
amended by adding thereto a new Section 3.8 and Section 3.9 to read as follows:
"Section 3.8. Cash Collateral. Notwithstanding any provision
to the contrary contained in any Operative Document, no Cash
Collateral shall be allocated or used to pay any amounts owed to LSI
as a Lender or holder of any Note and such Cash Collateral shall be
applied pursuant to Section 3.3 without regard to LSI as a Lender or
holder of any Note.
"Section 3.9. Distribution and Application of Receipts to LSI.
Notwithstanding any provision to the contrary contained in any
Operative Document, 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 Agent, shall be allocated
or used to pay any amounts due and payable to LSI as a Lender or
holder of any Note and such Rent, monies, amounts, collateral and
proceeds thereof shall be applied pursuant to the applicable
provisions of Article III without regard to LSI as a Lender or
holder of any Note, provided, however, that, regardless of the
adequacy of any collateral, any amount that is due and payable to
LSI as a Lender or holder of any Notes 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
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or more Item(s) of Equipment is being purchased pursuant to Article
XI or Section 12.1(b) of the Lease 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 Lessee Affiliate and all other
amounts due and owing by Lessee under the Operative Documents are
paid in full, the provisions of this Section 3.9 (other than this
proviso) shall not apply with respect to any amounts paid by such
third party purchaser."
Section 3.4. Section 6.2(a) of the Loan Agreement shall be and is hereby
amended in its entirety to read as follows:
"(a) Upon the occurrence of a Loan Event of Default, (i) if such
event is a Lease Event of Default under clause (e) or (f) of Section
9.1 of the Lease, automatically the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Loan
Agreement and the Notes shall immediately become due and payable,
(ii) if such event is any other Lease Event of Default, with the
consent of the Required Participants, Agent may, or upon the request
of the Required Participants, Agent shall, by notice of default to
Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Loan Agreement and
the Notes to be due and payable forthwith, whereupon the same shall
immediately become due and payable, and (iii) if the Loans hereunder
(with accrued interest thereon) and all other amounts owing under
this Loan Agreement and the Notes have become due and payable,
whether pursuant to the immediately preceding clauses (i) or (ii)
above, regardless of the adequacy of any collateral, all amounts
owed to LSI as a Lender hereunder or under any Operative Document
shall be set-off against Rent owed by Lessee under the Lease."
SECTION 4. AMENDMENTS TO TRUST AGREEMENT.
Section 4.1. Article III of the Trust Agreement shall be and is hereby
amended by adding thereto a new Section 3.6 to read as follows:
"Section 3.6. Cash Collateral. Notwithstanding any provision
to the contrary contained in any Operative Document, no Cash
Collateral shall be used to pay any amounts owed to LSI."
SECTION 5. AMENDMENTS TO ASSIGNMENT OF LEASE AND RENT AND SECURITY AGREEMENT.
Section 5.1. The introductory paragraph of Section 2 of the Assignment of
Lease and Rent shall be and is hereby amended in its entirety to read as
follows:
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"To secure the obligations of the Assignor under the Loan Agreement
and the Trust Agreement and the other Operative Documents, the
Assignor hereby conveys, warrants, mortgages, grants, assigns,
transfers and sets over to the Agent for the ratable benefit of the
Participants, except for the Cash Collateral Account which shall not
secure the obligations of the Notes held by Lessee and shall only
secure the obligations of the Notes held by Lenders other than
Lessee, a lien and security interest in all of the Assignor's right,
title, interest, benefits, powers and privileges in and to all of
the following described property (including, without limitation,
each Item of Equipment described in a Supplement to this Assignment,
as delivered from time to time in the form attached hereto as
Exhibit A), whether now owned or held or hereafter acquired
(collectively, "Lessor Collateral"):"
Section 5.2. Section 2(f) of the Assignment of Lease and Rent shall be and
is hereby amended in its entirety to read as follows:
"(f) all Cash Collateral together with all estate, right,
title, interest, benefits, powers and privileges of the Assignor
under the Cash Collateral Account, the Cash Collateral Agreement and
the Control Agreement and the right to do any and all other things
whatsoever which the Assignor is or may be entitled to do
thereunder;"
Section 5.3. Section 2 of the Assignment of Lease and Rent shall be and is
hereby amended by adding a new Section 2(g) to read as follows:
"(g) all proceeds of the foregoing."
SECTION 6. REPRESENTATIONS AND WARRANTIES; REAFFIRMATION OF LIEN AND SECURITY
INTEREST.
Section 6.1 Representations and Warranties of Lessee. Lessee hereby
represents and warrants to Certificate Trustee, Agent 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 Lessee set forth in
Section 4.1 of the Participation Agreement and in the other Operative
Documents are true and correct in all material respects as if made on such
date (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 Lease Default or Lease Event of Default has occurred and is
continuing; and
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(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 6.1 that, on and after the date hereof, such term includes this
Amendment, the Cash Collateral Agreement and the Control Agreement.)
Section 6.2. Representations and Warranties of Certificate Trustee.
Certificate Trustee 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 Certificate Trustee set
forth in Section 4.3 of the Participation Agreement and in the other
Operative Documents are true and correct in all material respects as if
made on such date (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 Loan 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", Certificate
Trustee expressly acknowledges in making the representations and warranties set
forth in this Section 6.2 that, on and after the date hereof, such term includes
this Amendment, the Cash Collateral Agreement and the Control Agreement.)
Section 6.3. 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 other parties to the Participation Agreement that the
representations and warranties of the Participants set forth in Section 4.2 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 6.3 that, on and after
the date hereof, such term includes this Amendment, the Control Agreement and
the Cash Collateral Agreement.)
Section 6.4. Representations and Warranties of Agent. As of the date
hereof, Agent, in its capacity, represents and warrants to the Participants
that, after giving effect to the provisions hereunder (and with respect to
Section 4.4(f), as to the Cash Collateral and the Cash Collateral Account as
well as the Items of Equipment), the representations and warranties of the Agent
set forth in Section 4.4 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", Agent expressly acknowledges in making the
representations and warranties set forth in this Section 6.4 that, on and after
the date hereof, such term includes this Amendment, the Control Agreement and
the Cash Collateral Agreement.)
-14-
Section 6.5. Reaffirmation of Lien and Security Interest of Lessee. Lessee
hereby reaffirms its grant of a lien and security interest to the Certificate
Trustee in the Lessee Collateral as set forth in the Lease and as amended
pursuant hereto.
Section 6.6. Reaffirmation of Lien and Security Interest of Certificate
Trustee. The Certificate Trustee hereby reaffirms its grant of a lien and
security interest to the Agent in the Lessor Collateral as set forth in the
Assignment of Lease and Rent and as amended pursuant hereto.
SECTION 7. CONDITIONS TO EFFECTIVENESS OF THIS OMNIBUS AMENDMENT.
Section 7.1. 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, Agent, Certificate Trustee and Lessee; each of the documents
referred to above shall be in full force and effect as to all parties and
no Lease Default or Lease 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 of the Notes and Certificates as contemplated
by the Assignment Agreement shall have been consummated and new Notes and
Certificates evidencing such assignments shall have been duly issued to
the Participants in exchange for the surrender of the original Notes and
Certificates issued on the Document Closing Date;
(d) all accrued Interest on the Notes and all accrued Yield on the
Certificates to, but not including, September 28, 2001 shall have been
paid to the appropriate Participants by Lessee;
(e) each Participant, Agent and Certificate Trustee shall have
received favorable opinions, in each case, dated September 28, 2001 of (i)
Ray, Quinney & Nebeker, special counsel to Certificate Trustee, (ii)
counsel or Assistant General Counsel of Lessee, and (iii) Latham &
Watkins, special counsel to Lessee, in each case, in form and substance
reasonably satisfactory to such recipient.
(f) the Agent shall have received its processing fee from Lessee
with respect to the assignments of the Notes and Certificates in an
aggregate amount equal to $3,500;
(g) the Bank Credit Agreement shall have been consummated;
-15-
(h) 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;
(i) amendments to that certain synthetic lease financing entered
into among Lessee, ABN AMRO Bank, as Agent for the lessors and
participants party thereto, shall have been executed and delivered in
connection therewith and shall be in scope and form satisfactory to the
Participants;
(k) the reasonable fees and expenses of Chapman and Cutler and
Hinckley, Allen & Snyder LLP shall have been paid;
(l) the arrangement fee described in the Engagement Letter dated
September 13, 2001 shall have been paid by Lessee to the Arranger;
(m) All Governmental Actions and other approvals and consents
required to be taken, given or obtained, as the case may be, by or from
any Governmental Agency 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 Governmental 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
(n) Agent shall have received (x) a certificate of the Secretary
or Assistant Secretary of Lessee and Certificate Trustee attaching and
certifying as to: (i) the corporate authority for the execution, delivery
and performance by Lessee or Certificate Trustee, as the case may be, 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 or Certificate Trustee, as the case may be, and (y) a
good standing certificate from the appropriate Governmental Agency as to
the good standing of Lessee or Certificate Trustee, as the case may be, in
its jurisdiction of formation.
Upon the satisfaction to the Participants (other than the Lessee) of all of the
foregoing, this Omnibus Amendment shall become effective.
SECTION 8. MISCELLANEOUS.
Section 8.1. 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
-16-
herein, operate as a waiver of any right, power, or remedy of Certificate
Trustee, Agent or the Participants, nor constitute a waiver of any provision of
any Operative Document.
Section 8.2. 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 8.3. 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 8.4. THIS OMNIBUS AMENDMENT HAS BEEN DELIVERED IN, AND SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS
OF, THE STATE OF CALIFORNIA, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES
OF SUCH STATE.
Section 8.5. This Omnibus Amendment shall be binding upon and inure to the
benefit of Lessee, Certificate Trustee, 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 8.6. 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.
[Signature pages follow]
-17-
IN WITNESS WHEREOF, Lessee, Certificate Trustee, Agent and the
Participants have caused this Third Amendment to Participation Agreement and
Omnibus Amendment to Operative Documents to be executed as of the day and year
first above written.
LESSEE: LSI LOGIC CORPORATION
By:________________________________________
Name:__________________________________
Title:_________________________________
CERTIFICATE TRUSTEE: WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION (f/k/a First Security Bank,
National Association), not in its
individual capacity but solely as
Certificate Trustee
By:________________________________________
Name:__________________________________
Title:_________________________________
AGENT: WELLS FARGO BANK NEVADA, NATIONAL
ASSOCIATION (f/k/a First Security Trust
Company of Nevada), not in its individual
capacity but solely as Agent
By:________________________________________
Name:__________________________________
Title:_________________________________
PARTICIPANTS: BANC OF AMERICA LEASING & CAPITAL, LLC
By:________________________________________
Name:__________________________________
Title:_________________________________
By:________________________________________
Name:__________________________________
Title:_________________________________
-18-
FLEET NATIONAL BANK
By:________________________________________
Name:__________________________________
Title:_________________________________
LSI LOGIC CORPORATION
By:________________________________________
Name:__________________________________
Title:_________________________________
-19-
SCHEDULE I-A
TO PARTICIPATION AGREEMENT
CERTIFICATE PURCHASERS' COMMITMENTS
CERTIFICATE PURCHASERS COMMITMENT AMOUNTS
---------------------- ------------------
Banc of America Leasing & Capital, LLC $ 7,410,600
Total Certificate Purchaser's Commitments $ 7,410,600
Total Loan Commitments $172,589,400
TOTAL COMMITMENT $180,000,000
COMMITMENT PERCENTAGE
Noneligible Accrued Amounts
COMMITMENT PERCENTAGE
Commitment ---------------------------
Percentage
CERTIFICATE PURCHASERS ----------
----------------------
Banc of America Leasing & Capital, LLC 100% 100%
Total Certificate Purchaser's Commitment 3.00000% 100.00000%
Total Loan Commitments 97.00000%
---------
TOTAL COMMITMENT 100.00000%
Schedule I-B
TO PARTICIPATION AGREEMENT
LENDERS' COMMITMENTS
COMMITMENT
LENDERS AMOUNTS
------- -----------
Fleet National Bank $ 21,317,400
LSI Logic Corporation $151,272,000
------------
Total Loan Commitments $172,589,000
Total Certificate Purchaser's Commitments $ 7,410,600
TOTAL COMMITMENT $180,000,000
LENDERS COMMITMENT
------- PERCENTAGE
----------
Fleet National Bank 11.97831%
LSI Logic Corporation 85.02169%
Total Loan Commitment Percentage 97.00000%
Total Certificate Purchaser's Commitment Percentage 3.00000%
TOTAL COMMITMENT PERCENTAGE 100.00000%
SCHEDULE II
TO PARTICIPATION AGREEMENT
NOTICE INFORMATION AND PAYMENT INSTRUCTIONS
LESSEE AND LENDER
LSI Logic Corporation
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.
CERTIFICATE TRUSTEE
Wells Fargo Bank Northwest, National Association
79 South Main, 3rd Floor
Salt Lake City, Utah 84111
Attn: Nancy Dahl/Vice President
Telephone: 801-246-5630
Fax: 801-246-5053
Email: nancy.m.dahl@wellsfargo.com
BUSINESS CONTACT:
Wells Fargo Bank Northwest, National Association
79 South Main, 3rd Floor
Salt Lake City, Utah 84111
Attn: Nancy Dahl/Vice President
Telephone: 801-246-5630
Fax: 801-246-5053
Email: nancy.m.dahl@wellsfargo.com
AGENT
Wells Fargo Bank Nevada, National Association
79 South Main Street, 3rd Floor
Salt Lake City, Utah 84111
Attention: DeAnn Madsen/Trust Officer
Phone: 801-246-5630
Fax: 801-246-5053
Email: deann.madsen@wellsfargo.com
PAYMENT/WIRING INSTRUCTIONS:
Wells Fargo Bank Northwest, National Association
79 South Main Street
Salt Lake City, Utah 84111
ABA Routing # 121-000-248
Account #051-0922115
Reference: LSI Logic
-2-
CERTIFICATE HOLDER
BANC OF AMERICA LEASING & CAPITAL, LLC
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
-3-
LENDER
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
-4-
SCHEDULE III
LSI LOGIC CORPORATION
2001 BANK OF AMERICA SYNTHETIC LEASE EQUIPMENT LIST
ADDITIONAL EQUIP. AUG-SEPT 01
EQUIPMENT MANUFACTURER OTHER DELIVERY INTERNAL
LOCATION DESCRIPTION MODEL DESCRIPTION PO # SERIAL # DATE ORDER #
- -----------------------------------------------------------------------------------------------------------------------
Gresham IPEC 776 W SPEEDFAM-IPEC 4500019464-3 SN 111 2/16/01 6960742
Gresham Alliance Contact LAM 4500034666-10 6961166
Via 4520
Gresham Alloy Furnace ASML 4500036032-1 4/9/01 6605091
Gresham Alliance NitSpcr LAM 4500034666-3 4/9/01 6961165
Etcher 9400
Gresham Add CVD TiN APPLIED MATERIALS 4501009529-1 5/31/01 6960712
Chambers
Gresham ResMap CREATIVE DESIGN 4501004829-1 7/6/01 6605175
ENGINEERING
Gresham ASML ASML 4500032492-9 8/10/01 6961179
PAS5500/400C
I-LINE
SCANNER STP
Gresham ES20 SEM KLA-Tencor 4501018992-1 6961167
Inspect W/ ADC
Upgrade
FORECASTED PERMITTED FORECASTED PERMITTED
ACQUISITION INSTALLATION FORECASTED DELIVERY ACQUISITION INSTALLATION PURCHASE DATE
LOCATION COST COST TOTAL COST DATE COST COST APPRAISAL VALUE
- ---------------------------------------------------------------------------------------------------------------------------
Gresham 3,013,724.24 400,000 3,413,724.24 2/1/01 3,027,255.63 400,000 3,427,255.63
Gresham 3,961,609.50 480,000.00 4,441,609.50 3/1/01 3,934,840.44 480,000 4,414,840.44
Gresham 1,008,638.10 176,000.00 1,184,638.10 4/1/01 832,730.67 176,000 1,008,730.67
Gresham 3,640,039.65 550,000.00 4,190,039.65 4/1/01 4,240,400.50 550,000 4,790,400.50
Gresham 1,126,664.00 100,000 1,226,664.00 5/1/01 952,240.70 100,000 1,052,240.70
Gresham 114,972.00 15,000 129,972.00 7/1/01 135,175.54 15,000 150,175.54
Gresham 5,000,000.00 440,000 5,440,000.00 8/1/01 4,502,909.13 220,000 4,722,909.13
Gresham 6,300,000.00 150,000.00 6,450,000.00 1/1/02
--------------------------------------------
26,476,647.49
8