LSI Logic Corporation
Exhibit 10.41
FORM OF CONTROL AGREEMENT
THIS CONTROL AGREEMENT (this "Agreement") is dated as of March 28, 2003
and is by and among LSI LOGIC CORPORATION, a Delaware corporation (the
"Lessee"), BANK OF AMERICA, NATIONAL ASSOCIATION (the "Lessor"), and
[_______________________] not in its individual capacity but solely in its
capacity as Securities Intermediary (the "Securities Intermediary").
RECITALS
WHEREAS, the Lessee, the Lessor and Wells Fargo Bank Northwest,
National Association, a national banking association, not in its individual
capacity, but solely in its capacity as Agent (the "Agent"), have entered into
that certain Lease and Security Agreement, dated as of March 28, 2003 (the
"Lease").
WHEREAS, the Lessee has granted a security interest to the Lessor in,
inter alia, that certain investment account, bearing account number
[________________] (the "Cash Collateral Account") maintained by the Lessee with
Securities Intermediary pursuant to that certain Assignment of Cash Collateral
Accounts, dated as of the date hereof (the "Assignment"). All capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Assignment.
WHEREAS, the parties hereto are entering into this Agreement to provide
for the control of the Cash Collateral Account and to perfect the security
interest of Lessor in the Cash Collateral Account.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
Section 1. The Account. Securities Intermediary hereby represents and
warrants to the Lessor that (a) the Cash Collateral Account has been established
in the name of the Lessee as recited above and bears the account number
[______________], and (b) except for the claims and interests of the Lessee and
the Lessor in the Cash Collateral Account, the officer of the Securities
Intermediary active on the Lessee's account has not received written notice of
any claim to or interest in the Cash Collateral Account. The Lessee and Lessor
agree that all property held by Securities Intermediary in the Cash Collateral
Account will be treated as financial assets under Division 9 of the Uniform
Commercial Code of the State of California (the "CAUCC"). Further, all terms
used in this Agreement shall be construed in accordance and consistent with the
CAUCC.
LSI Logic Corporation
Section 2. Priority of Lien. Securities Intermediary hereby
acknowledges the security interest granted to the Lessor by the Lessee in the
Cash Collateral Account. Securities Intermediary hereby waives and releases all
liens, encumbrances, claims and rights of setoff it may have or hereafter
acquire against the Cash Collateral Account, the Cash Collateral or any other
financial asset carried in the Cash Collateral Account or any free credit
balance in the Cash Collateral Account and agrees that it will not assert any
lien, encumbrance, claim or right against the Cash Collateral Account, the Cash
Collateral or any other financial asset carried in the Cash Collateral Account
or any credit balance in the Cash Collateral Account without the written consent
of the Lessor. Notwithstanding the foregoing, the Securities Intermediary shall
be permitted from time to time to debit the Cash Collateral Accounts for any of
its customary charges for maintaining such Cash Collateral Accounts or
reimbursement for the reversal of any provisional credits granted by the
Securities Intermediary, to the extent, in each case, that the Lessor has not
separately paid or reimbursed the Securities Intermediary therefor. Without the
prior written consent of the Lessor and the Lessee, Securities Intermediary will
not execute and deliver, or otherwise become bound by, any agreement (i.e., a
control agreement) under which Securities Intermediary agrees with any third
party or Lessee that Securities Intermediary will comply with entitlement orders
concerning the Cash Collateral Account originated by such third party or Lessee.
Section 3. Control. Subject to the last sentence of Section
18.3(b)(ii) of the Lease, Securities Intermediary will comply with entitlement
orders originated by the Lessor concerning the Cash Collateral Account without
further consent by the Lessee, including, without limitation, any direction by
the Lessor to pay over to the Lessor or such other Person as Lessor may direct
the entire dollar amount and any other financial assets in the Cash Collateral
Account. Securities Intermediary shall neither accept nor comply with any
entitlement order from the Lessee withdrawing or making a free delivery of any
financial assets from the Cash Collateral Account nor deliver any such financial
assets to the Lessee nor pay any free credit balance or other amount owing from
Securities Intermediary to the Lessee with respect to the Cash Collateral
Account without the specific prior written consent of the Lessor. Furthermore,
Securities Intermediary agrees to note the Lessor's security interest in the
Cash Collateral Account in its books and records.
Section 4. Statements, Confirmations and Notices of Adverse Claims.
Securities Intermediary will send copies of all statements and confirmations
concerning the Cash Collateral Account to each of the Lessee, the Lessor and the
Agent at their respective addresses set forth in Schedule I. Without limiting
the obligations of the Securities Intermediary in the immediately preceding
sentence, Securities Intermediary hereby agrees that on each Payment Date,
Securities Intermediary shall deliver to each of Lessee, Lessor and the Agent a
statement showing the value of the Cash Collateral and the breakdown of such
Cash Collateral between Securities Intermediary Issued Cash Collateral (as
defined in Article I of the Lease) and Non-Securities Intermediary Issued Cash
Collateral (as defined in Article I of the Lease) as of such Payment Date and a
reasonably detailed calculation of such value and breakdown. Upon receipt of
written notice of any lien, encumbrance or adverse claim against the Cash
Collateral Account or in any financial asset carried therein, Securities
Intermediary will promptly notify the Lessor, the Agent and the Lessee thereof
in writing. Upon receipt of deposits from the Lessee, Securities Intermediary
shall promptly contact the Lessor and the Agent via facsimile at the number set
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forth for the Lessor and the Agent in Schedule I to confirm the date and amount
of such deposit along with the current balance or fair market value of financial
assets carried in the Cash Collateral Account and the breakdown of such Cash
Collateral between Securities Intermediary Issued Cash Collateral (as defined in
Article I of the Lease) and Non-Securities Intermediary Issued Cash Collateral
(as defined in Article I of the Lease).
Section 5. Limited Responsibility of Securities Intermediary.
Securities Intermediary shall have no responsibility or liability to the Lessor
or the Agent with respect to the value of the Cash Collateral Account or any
asset held therein. Securities Intermediary shall have no duty to investigate or
make any determination as to whether a default or an event of default exists
under any agreement between the Lessee and the Lessor with respect to the Cash
Collateral Account. This Agreement does not create any obligation or duty of
Securities Intermediary other than those expressly set forth herein.
Section 6. Indemnification. The Lessee hereby releases the Securities
Intermediary from any and all liabilities that may arise as a result of the
Securities Intermediary acting in accordance with entitlement orders and
instructions and other directives from the Lessor, and the Lessee agrees to
indemnify and hold harmless the Securities Intermediary, its affiliates,
officers, directors and employees from and against any and all claims, causes of
action, liabilities, losses, lawsuits, demands, and/or damages, fines, penalties
and expenses, including, without limitation, out-of-pocket expenses and any and
all court costs and reasonable attorney's fees, that may arise as a result of
the Securities Intermediary acting in accordance with entitlement orders,
instructions, or other directives from the Lessor. This indemnification shall
survive the termination of this Agreement.
Section 7. Termination. The rights and powers granted herein to the
Lessor (a) have been granted in order to perfect the Lessor's security interest
in the Cash Collateral Account, (b) are powers coupled with an interest and (c)
will neither be affected by the bankruptcy of the Lessee (except as required by
applicable law) nor by the lapse of time. The obligations of Securities
Intermediary hereunder shall continue in effect until the Lessor has notified
Securities Intermediary in writing that this Agreement is to be terminated. Upon
payment in full of all amounts due and owing by Lessee under the Operative
Documents, this Control Agreement shall terminate and, if required by Lessee in
connection with such termination, Lessor shall execute and deliver to Lessee an
appropriate release of its security interest in the Cash Collateral Account.
Section 8. Entire Agreement. This Agreement, any schedules or
exhibits hereto and the instructions and notices required or permitted to be
executed and delivered hereunder set forth the entire agreement of the parties
with respect to the subject matter hereof.
Section 9. Amendments. No amendment, modification or (except as
otherwise specified in Section 7 above) termination of this Agreement, nor any
assignment of any rights hereunder, shall be binding on any party hereto unless
it is in writing and is signed by each of the Agent, at the direction of Lessor,
Lessee and the Securities Intermediary and any attempt to so amend, modify,
terminate or assign except pursuant to such a writing shall be null and void. No
waiver of any rights hereunder shall be binding on any party hereto unless such
waiver is in
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writing and signed by the party against whom enforcement is sought, which, in
the case of Lessor, shall be Agent at the direction of Lessor.
Section 10. Severability. If any term or provision set forth in this
Agreement shall be invalid or unenforceable, the remainder of this Agreement, or
the application of such terms or provisions to persons or circumstances, other
than those to which it is held invalid or unenforceable, shall be construed in
all respects as if such invalid or unenforceable term or provision were omitted.
Section 11. Notices. Unless otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be by letter or facsimile (if the sender on the same day sends a
confirming copy of such facsimile by a recognized overnight delivery service
(charges prepaid)) and shall be deemed to have been given (i) in the case of
notice by letter, the earlier of when delivered to the addressee by hand or
courier if delivered on a business day and, if not delivered on a business day,
the first business day thereafter or on the third business day after depositing
the same in the mails, registered or certified mail, postage prepaid, return
receipt requested, addressed as provided on Schedule I, and (ii) in the case of
notice by facsimile, when transmitted during business hours on a business day
and, if not transmitted during business hours on a business day, the first
business day thereafter (if the sender on the same day sends a confirming copy
of such facsimile by a recognized overnight delivery service (charges prepaid)),
addressed as provided on Schedule I, or to such other address as any of the
parties hereto may designate by written notice.
Section 12. Counterparts. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing and delivering one or
more counterparts.
Section 13. Choice of Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California. Lessee, Lessor
and Securities Intermediary expressly agree that, for purposes of this Agreement
and the Uniform Commercial Code, the jurisdiction of the Securities Intermediary
is the State of California.
Section 14. Application of Proceeds. Notwithstanding any provision to
the contrary contained herein or in any of the other Operative Documents, all
proceeds realized from the security interest in the Cash Collateral shall be
used to satisfy amounts due by the Lessee under the Operative Documents.
[Intentionally Blank]
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IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized officer of each of the parties set forth below.
LSI LOGIC CORPORATION, as Lessee
By ________________________________________
Name:____________________________________
Title:___________________________________
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Lessor
By ________________________________________
Name: __________________________________
Title: _________________________________
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LSI Logic Corporation
[_______________________], as Securities
Intermediary
By ________________________________________
Name:____________________________________
Title:___________________________________
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SCHEDULE I
NOTICE INFORMATION