EXECUTION VERSION
LSI Logic Corporation
Lease A
Exhibit 10.38
ASSIGNMENT OF CASH COLLATERAL ACCOUNTS (LEASE A)
THIS ASSIGNMENT OF CASH COLLATERAL ACCOUNTS (Lease A) is made as of
March 28, 2003 (as amended, modified, supplemented, restated or replaced from
time to time, this "Assignment") by LSI LOGIC CORPORATION, a Delaware
corporation (the "Pledgor"), to BANK OF AMERICA, NATIONAL ASSOCIATION, as Lessor
(the "Lessor") under the hereinafter defined Lease. Capitalized terms used
herein and not otherwise defined herein shall have the meaning given to such
terms in Article I of the Lease.
RECITALS
1. The Pledgor, (as 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 (Lease A) dated as of
March 28, 2003 (as amended, supplemented or otherwise modified from time to
time, the "Lease").
2. The Pledgor shall from time to time make deposits of Cash
Collateral into the Cash Collateral Accounts (as hereinafter defined) as
required by Section 2.6 of the Lease. The Lessor has required and the Pledgor
has agreed to execute this Assignment in favor of the Lessor with respect to the
Cash Collateral Accounts and such deposits of Cash Collateral by the Pledgor.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
CREATION OF SECURITY INTEREST
Section 1.1. To secure the prompt payment and performance in full
when and as due, whether by lapse of time, acceleration or otherwise, of the
obligations of the Pledgor under the Operative Documents (the "Secured
Obligations"), the Pledgor hereby assigns, mortgages, conveys, pledges,
hypothecates and delivers to the Lessor and hereby grants to the Lessor a
security interest in and Lien on, all right, title and interest of the Pledgor,
whether now or hereafter existing, in and to:
(a) Investment account number 1947300770300 maintained by
Bank of America, National Association (the "Bank of America Securities
Intermediary") in the
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name of Pledgor or for the benefit of Pledgor, and each account which
the Bank of America Securities Intermediary notifies Pledgor, Lessor
and Agent in writing is a successor or replacement account therefor,
regardless of the numbers of such accounts or the offices at which such
accounts are maintained (collectively, any or all of the foregoing
accounts provided for in this subsection (a) may be referred to herein
as the "Bank of America Account" or the "Bank of America Cash
Collateral Account") and all rights of Pledgor in connection with the
Bank of America Account; and
(b) Investment account number 6459018914 maintained by
Union Bank of California, N.A. (the "UBC Securities Intermediary) in
the name of Pledgor or for the benefit of Pledgor, and each account
which the UBC Securities Intermediary notifies Pledgor, Lessor and
Agent in writing is a successor or replacement account therefor,
regardless of the numbers of such accounts or the offices at which such
accounts are maintained (collectively, any or all of the foregoing
accounts provided for in this subsection (b) may be referred to herein
as the "UBC Account" or the "UBC Cash Collateral Account) and all
rights of Pledgor in connection with the UBC Account; and
(c) Investment account number 114010 maintained by Key
Corporate Capital, Inc. (the "Key Corporate Securities Intermediary) in
the name of Pledgor or for the benefit of Pledgor, and each account
which the Key Corporate Securities Intermediary notifies Pledgor,
Lessor and Agent in writing is a successor or replacement account
therefor, regardless of the numbers of such accounts or the offices at
which such accounts are maintained (collectively, any or all of the
foregoing accounts provided for in this subsection (c) may be referred
to herein as the "Key Corporate Account" or the "Key Corporate Cash
Collateral Account) and all rights of Pledgor in connection with the
Key Corporate Account; and
(d) Investment account number 181188 maintained by
Societe Generale Financial Corporation (the "Societe Generale
Securities Intermediary") in the name of Pledgor or for the benefit of
Pledgor, and each account which the Societe Generale Securities
Intermediary notifies Pledgor, Lessor and Agent in writing is a
successor or replacement account therefor, regardless of the numbers of
such accounts or the offices at which such accounts are maintained
(collectively, any or all of the foregoing accounts provided for in
this subsection (d) may be referred to herein as the "Societe Generale
Account" or the "Societe Generale Cash Collateral Account") and all
rights of Pledgor in connection with the Societe Generale Account; and
(e) Investment account number DDA 4945090231 maintained
by Wells Fargo Bank, N.A. (the "Wells Fargo Securities Intermediary) in
the name of Pledgor or for the benefit of Pledgor, and each account
which the Wells Fargo Securities Intermediary notifies Pledgor, Lessor
and Agent in writing is a successor or replacement account therefor,
regardless of the numbers of such accounts or the offices at which such
accounts are maintained (collectively, any or all of the foregoing
accounts provided for in this subsection (e) may be referred to herein
as the "Wells Fargo Account" or the "Wells
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Fargo Cash Collateral Account) and all rights of Pledgor in connection
with the Wells Fargo Account; and
(f) Investment account number LSI26498 GL# 2014188-29480
maintained by Fleet National Bank (the "Fleet Securities Intermediary")
in the name of Pledgor or for the benefit of Pledgor, and each account
which the Fleet Securities Intermediary notifies Pledgor, Lessor and
Agent in writing is a successor or replacement account therefor,
regardless of the numbers of such accounts or the offices at which such
accounts are maintained (collectively, any or all of the foregoing
accounts provided for in this subsection (f) may be referred to herein
as the "Fleet Account" or the "Fleet Cash Collateral Account" and all
rights of Pledgor in connection with the Fleet Account; and
(g) Investment account number LSI26499 maintained by the
Fleet Securities Intermediary in the name of Pledgor or for the benefit
of Pledgor, and each account which the Fleet Securities Intermediary
notifies Pledgor, Lessor and Agent in writing is a successor or
replacement account therefor, regardless of the numbers of such
accounts or the offices at which such accounts are maintained
(collectively, any or all of the foregoing accounts provided for in
this subsection (g) may be referred to herein as the "Comerica
Sub-account" or the "Comerica Cash Collateral Sub-account") and all
rights of Pledgor in connection with the Comerica Sub-account; and
(h) Investment account number LSI26496 maintained by the
Fleet Securities Intermediary in the name of Pledgor or for the benefit
of Pledgor, and each account which the Fleet Securities Intermediary
notifies Pledgor, Lessor and Agent in writing is a successor or
replacement account therefor, regardless of the numbers of such
accounts or the offices at which such accounts are maintained
(collectively, any or all of the foregoing accounts provided for in
this subsection (h) may be referred to herein as the "GMAC Sub-account"
or the "GMAC Cash Collateral Sub-account") and all rights of Pledgor in
connection with the GMAC Sub-account; and
(i) Investment account number LSI26500 maintained by the
Fleet Securities Intermediary in the name of Pledgor or for the benefit
of Pledgor, and each account which the Fleet Securities Intermediary
notifies Pledgor, Lessor and Agent in writing is a successor or
replacement account therefor, regardless of the numbers of such
accounts or the offices at which such accounts are maintained
(collectively, any or all of the foregoing accounts provided for in
this subsection (i) may be referred to herein as the "Lombard
Sub-account" or the "Lombard Cash Collateral Sub-account") and all
rights of Pledgor in connection with the Lombard Sub-account; and
(j) Investment account number LSI26501 maintained by the
Fleet Securities Intermediary in the name of Pledgor or for the benefit
of Pledgor, and each account which the Fleet Securities Intermediary
notifies Pledgor, Lessor and Agent in writing is a successor or
replacement account therefor, regardless of the numbers of such
accounts or the offices at which such accounts are maintained
(collectively, any or all of the
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foregoing accounts provided for in this subsection (j) may be referred
to herein as the "Fleet Sub-account" or the "Fleet Cash Collateral
Sub-account") and all rights of Pledgor in connection with the Fleet
Series A Sub-account; and
(k) Investment account number LSI26497 maintained by the
Fleet Securities Intermediary in the name of Pledgor or for the benefit
of Pledgor, and each account which the Fleet Securities Intermediary
notifies Pledgor, Lessor and Agent in writing is a successor or
replacement account therefor, regardless of the numbers of such
accounts or the offices at which such accounts are maintained
(collectively, any or all of the foregoing accounts provided for in
this subsection (k) may be referred to herein as the "ABN Sub-account"
or the "ABN Cash Collateral Sub-account") and all rights of Pledgor in
connection with the ABN Sub-account; and
(l) the Cash Collateral; and
(m) proceeds (as such term is used in Article 4 of the
UCC) of the foregoing subsections (a) through (l).
Section 1.2. The Pledgor shall execute and deliver to the Lessor
concurrently with the execution of this Assignment, and at any time or times
hereafter at the reasonable request of Lessor or Agent, all assignments,
conveyances, assignment statements, financing statements, renewal financing
statements, security agreements, affidavits, notices and all other agreements,
instruments and documents relating to the Cash Collateral or the Cash Collateral
Accounts that the Lessor or Agent may reasonably request, and will execute all
necessary endorsements in order to perfect and maintain the first priority
security interests and liens granted herein by the Pledgor to the Lessor and in
order to fully consummate all of the transactions contemplated herein and under
the other Operative Documents.
ARTICLE II
PRIORITY OF SECURITY INTERESTS
Section 2.1. The Pledgor warrants and represents that the pledge
and security interest created in Section 1.1 hereof is a first-priority security
interest in favor of the Lessor and shall constitute at all times a valid and
perfected first priority security interest in and upon all of the Cash
Collateral and the Cash Collateral Accounts and that said security interests in
said Cash Collateral and said Cash Collateral Accounts shall not become
subordinate or junior to the security interests, liens or claims of any other
Person, including, without limitation, the United States or any department,
agency or instrumentality thereof, or any state, county or local governmental
agency. The Pledgor shall not grant or suffer to exist (without the prior
written approval of the Lessor) a security interest in or permit a Lien or
encumbrance upon the Cash Collateral or any Cash Collateral Account to anyone
except the Lessor as long as all or any portion of the Secured Obligations
remain unsatisfied.
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ARTICLE III
DEFAULTS
Section 3.1. An event of default shall exist under the terms of
this Assignment upon the existence of a Lease Event of Default.
Section 3.2. Upon the occurrence of a Lease Event of Default and
during the continuation thereof, the Lessor shall have, in respect of the Cash
Collateral, (a) the right, immediately and without further action by the Lessor,
to direct each Securities Intermediary to release the applicable Cash Collateral
to Lessor or its designee or the Participant that is the ultimate beneficiary of
such Cash Collateral to be applied directly to Lessor's or Participant's
outstanding Series A Lease Balance and Series A Accrual Rent or Series B Lease
Balance and Series B Accrual Rent, as applicable, all amounts in the Accounts,
(b) all the rights and remedies contained in this Assignment, the other
Operative Documents or permitted by law and (c) all the rights and remedies of a
secured party under the Uniform Commercial Code, all of which shall be
cumulative to the extent permitted by law. Exercise by the Lessor of the
remedies contained herein shall not limit or affect any other remedies available
to the Lessor.
Section 3.3. If at any time or times hereafter the Lessor employs
counsel to prepare or consider waivers or consents or to intervene, file a
petition, answer, motion or other pleadings in any suit or proceeding related to
this Assignment or the other Operative Documents, or relating to any Cash
Collateral or any Cash Collateral Account, or to protect, take possession of, or
liquidate any Cash Collateral, or to attempt to enforce any security interest or
lien in any Cash Collateral or in any Cash Collateral Account, or to enforce any
rights of the Lessor, then in any of such events, all of the reasonable
attorneys' fees arising from such services, and any expenses, costs and charges
relating thereto, shall become a part of the Secured Obligations secured by the
Cash Collateral and the Cash Collateral Accounts and payable on demand.
Section 3.4. The Lessor's failure at any time or times hereafter
to require strict performance by the Pledgor of any of the provisions,
warranties, terms and conditions contained in this Assignment shall not waive,
affect or diminish any right of the Lessor at any time or times hereafter to
demand strict performance therewith and with respect to any other provisions,
warranties, terms and conditions contained in this Assignment.
ARTICLE IV
ACCESS/RELEASE OF CASH COLLATERAL
Section 4.1. Although the Cash Collateral Accounts will be
maintained in the name of the Pledgor, the Pledgor shall not have access to the
funds or other Cash Collateral therein, and the Lessor shall have exclusive
control and authority over such funds except as expressly provided in the other
Operative Documents.
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ARTICLE V
MISCELLANEOUS
Section 5.1. The internal laws and decisions of the State of
California shall govern and control the construction, enforceability, validity
and interpretation of this Assignment.
Section 5.2. This Assignment shall be binding upon and inure to
the benefit of the Pledgor, the Lessor and their respective successors and
assigns permitted in accordance with the provisions of this Assignment and the
other Operative Documents.
Section 5.3. This Assignment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Assignment to produce or account for more than
one such counterpart.
Section 5.4. If any provision of the Assignment is determined to
be illegal, invalid or unenforceable, such provision shall be fully severable
and the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
Section 5.5. 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 and owing by the Pledgor under the Operative Documents.
Section 5.6. No amendment, modification or waiver of this
Assignment, 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 parties
hereto, with the written consent of each affected Participant, if any, 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 writing and signed by the
party against whom enforcement is sought.
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The Pledgor has caused a counterpart of this Assignment to be duly
executed and delivered as of the date first above written.
LSI LOGIC CORPORATION, as Pledgor
By _______________________________
Name: _____________________________
Title: ____________________________
Accepted and agreed as of the date
first above written.
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Lessor
By _________________________________
Name: ____________________________
Title: ___________________________
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