Exhibit 10.36
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FIRST AMENDMENT
TO
LEASE AND SECURITY AGREEMENT (LEASE A)
Dated as of March 31, 2003
among
Bank of America, National Association,
as Lessor,
LSI Logic Corporation,
as Lessee,
and
Wells Fargo Bank Northwest, National Association,
as Agent
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LSI Logic Corporation
Lease A
FIRST AMENDMENT TO LEASE AND SECURITY AGREEMENT (LEASE A)
THIS FIRST AMENDMENT TO LEASE AND SECURITY AGREEMENT (LEASE A) (this
"First Amendment") is dated as of March 31, 2003 and is among LSI LOGIC
CORPORATION, a Delaware corporation ("Lessee"); BANK OF AMERICA, NATIONAL
ASSOCIATION ("Lessor") and WELLS FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, not
in its individual capacity, except as expressly stated in the Lease, but solely
as Agent (the "Agent").
RECITALS:
A. Pursuant to the Lease and Security Agreement (Lease A) dated
as of March 28, 2003 (the "Lease"), among Lessee, Lessor and Agent, Lessee
agreed to lease from Lessor, and Lessor agreed to lease to Lessee, certain Items
of Equipment. Capitalized terms used but not otherwise defined in this First
Amendment shall have the meanings assigned to such terms in the Lease.
B. Pursuant to the Cash Collateral Agreement, Lessee granted to
Lessor a security interest in the Cash Collateral and the Cash Collateral
Accounts in order to secure Lessee's obligations under the Lease and the other
Operative Documents.
C. Pursuant to the Control Agreements, Lessee, Lessor and the
various Securities Intermediaries perfected the Lessor's security interest in
the various Cash Collateral Accounts.
D. Pursuant to the Lessor Participation Agreement, Lessor, as
seller, sold to the buyers thereunder (the "Buyers"), interests in portions of
the Lease Balance, and the rights appurtenant thereto, including the right to
direct the Lessor to direct the applicable Securities Intermediary to release
Cash Collateral to such Buyer upon an acceleration of the Lease Balance.
E. As a condition precedent to the issuance by Lessor of a
non-recourse note to Key Corporate Capital, Inc., Key Corporate Capital, Inc.
has required that Lessor collaterally assign its retained interest in the Series
A Lease Balance and its rights with respect thereto, including Lessor's rights
with respect to the Cash Collateral ultimately securing Lessee's obligations to
Lessor with respect to Lessors retained interest in the Series A Lease Balance,
pursuant to a collateral assignment agreement (the "Collateral Agreement").
F. In order to reflect such collateral assignment, the parties
hereto wish to amend the Lease in the respects and only in the respects set
forth herein.
G. All requirements of law have been fully complied with and all
other acts and things necessary to make this First Amendment a legal, valid 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 First Amendment set forth in
Section 3 hereof, and in consideration of
LSI Logic Corporation
Lease A
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE LEASE.
Section 1.1. The following defined terms contained in Article I of
the Lease shall be and are hereby amended and restated in their entirety to read
as follows:
"Required Bank of America Cash Collateral Amount" shall mean,
as of any date of determination, an amount equal to 100% of the Series
A Lease Balance held by Lessor, plus 100% of the Series A Accrual Rent
relating to such portion of the Series A Lease Balance due on the next
succeeding Payment Date; provided that so long as and to the extent
that Lessor's interest in the Series A Lease Balance is collaterally
assigned to a third party, such Series A Lease Balance shall be deemed
not held by Lessor for purposes of this definition."
"Required Key Corporate Cash Collateral Amount" shall mean, as
of any date of determination, an amount equal to 100% of the Series A
Lease Balance held by Key Corporate Capital, Inc., plus 100% of the
Series A Accrual Rent relating to such portion of the Series A Lease
Balance due on the next succeeding Payment Date; provided that such
amount shall include the Required Bank of America Cash Collateral
Amount for so long as Lessor's interest in the Series A Lease Balance
is collaterally assigned to Key Corporate Capital, Inc."
Section 1.2. Section 18.1(j). Section 18.1(j) of the Lease shall
be and is hereby amended and restated in its entirety to read as follows:
"(j) Cash Collateral. Lessee shall maintain at all times
Cash Collateral in each of the Cash Collateral Accounts (except the
Bank of America Cash Collateral Account while the Lessor's interest in
the Series A Lease Balance are collaterally assigned to a third party)
with a value equal to or greater than the Required Cash Collateral
Amount for each such Cash Collateral Account."
SECTION 2. CONDITIONS TO EFFECTIVENESS.
This First Amendment shall become effective on March 31, 2003 (the
"Effective Date") upon the satisfaction of the following conditions precedent:
(a) This First Amendment and the Collateral Agreement
shall have been duly authorized, executed and delivered by each of the
parties hereto.
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LSI Logic Corporation
Lease A
(b) After giving effect to this First Amendment and the
Collateral Agreement, the Operative Documents 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.
(c) Key Corporate Capital, Inc. shall have received an
original, duly executed Note in favor of Key Corporate Capital, Inc.
incurred in the principal amount of $19,809,568.
(d) Lessee shall have paid to the Persons entitled
thereto all costs and expenses incurred in connection with this First
Amendment (including any amendment fees).
(e) All UCC financing statements necessary or appropriate
to perfect the security interest of Key Corporate Capital, Inc. under
the Collateral Agreement shall have been filed.
(f) At the direction of Lessor, the Bank of America
Securities Intermediary shall have paid over to Key Corporate Capital,
Inc. for investment account number 47405822140248, $19,809,568.
(g) The representations and warranties of the Lessee set
forth herein shall be true and correct in all material respects.
SECTION 3. REPRESENTATIONS AND WARRANTIES; REAFFIRMATION OF SECURITY
INTERESTS.
Section 3.1. Representations and Warranties. In order to induce
the Agent and Lessor to enter into this First Amendment, Lessee represents and
warrants to such parties that, as of the date hereof:
(a) No Default or Event of Default has occurred and is
continuing, or will occur as a result of, or after giving effect to,
this First Amendment.
(b) After giving effect to this First Amendment, the
representations and warranties of Lessee contained in Section 17.1 of
the Lease are true and correct in all material respects on and as of
the date hereof, except to the extent such representations and
warranties relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all
material respects on and as of such earlier date. For purposes of the
foregoing representation, the term "Operative Documents" as used in
Section 17.1 of the Lease shall include this First Amendment and the
other Operative Documents as amended hereby.
(c) Each of the Operative Documents is in full force and
effect.
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LSI Logic Corporation
Lease A
Section 3.2. Reaffirmation of Lien and Security Interest of
Lessee. Lessee hereby reaffirms its grant of a lien and security interest to the
Lessor in the Lessee Collateral as set forth in the Lease and the Cash
Collateral Agreement, as applicable, and in each case, as amended pursuant
hereto.
SECTION 4. MISCELLANEOUS
Section 4.1. Construction. This First Amendment shall be construed
in connection with and as part of the Operative Documents, and except as
modified and expressly amended by this First Amendment, all terms, conditions
and covenants contained in the Operative Documents are hereby ratified and shall
be and remain in full force and effect.
Section 4.2. Headings and Table of Contents. The headings of the
Sections of this First Amendment are inserted for purposes of convenience only
and shall not be construed to affect the meaning or construction of any of the
provisions hereof and any reference to numbered Sections, unless otherwise
indicated, are to Sections of this First Amendment.
Section 4.3. References. Any and all notices, requests,
certificates and other instruments executed and delivered after the execution
and delivery of this First Amendment may refer to the Lease and the other
Operative Documents without making specific reference to this First Amendment
but nevertheless all such references shall be deemed to include this First
Amendment unless the context otherwise requires.
Section 4.4. Counterparts. This First Amendment may be executed in
any number of counterparts, each executed counterpart constituting an original
but all together only one amendment.
SECTION 4.5. GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF, THE STATE OF
CALIFORNIA, WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OF STATE.
[SIGNATURE PAGES FOLLOW]
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LSI Logic Corporation
Lease A
IN WITNESS WHEREOF, the parties heretoabove caused this First Amendment
to be duly executed and delivered by their properly and duly authorized officers
as of the day and year first above written.
LSI LOGIC CORPORATION, as Lessee
By:_________________________________________
Name:____________________________________
Title:___________________________________
WELLS FARGO BANK NORTHWEST, NATIONAL
ASSOCIATION, not in its individual
capacity, but solely as Agent
By:_________________________________________
Name:____________________________________
Title:___________________________________
BANK OF AMERICA, NATIONAL ASSOCIATION, as
Lessor
By:_________________________________________
Name:____________________________________
Title:___________________________________