EXHIBIT 10.24
FIRST AMENDMENT TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED PARTICIPATION AGREEMENT
(this "Amendment"), dated as of August 2, 2001, is entered into by and among:
(1) LSI LOGIC CORPORATION, a Delaware corporation ("Lessee");
(2) ABN AMRO BANK N.V., KEYBANK NATIONAL ASSOCIATION, FBTC
LEASING CORP., as "Lessors" under the Amended and Restated Participation
Agreement referred to in Recital A below (collectively in such capacity,
"Lessors");
(3) ABN AMRO BANK N.V., as agent for Lessors (in such capacity,
"Lessor Agent");
(4) Each of the financial institutions currently a "Participant"
under the Amended and Restated Participation Agreement referred to in
Recital A below (collectively in such capacity, the Participants"); and
(5) ABN AMRO BANK N.V., as agent for the Participants (in such
capacity, "Agent").
RECITALS
A. Lessee, Lessors, Lessor Agent, the Participants and Agent are parties
to an Amended and Restated Participation Agreement, dated as of April 18, 2000
(the "Participation Agreement"), which amended and restated a Participation
Agreement, dated as of March 31, 2000.
B. Lessee, Lessors, Lessor Agent, the Participants and Agent now wish to
amend the Participation Agreement to clarify certain provisions and have agreed
to effect such amendments upon the terms and subject to the conditions set forth
herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS; INTERPRETATION. Unless otherwise indicated in this
Amendment, (a) each term set forth in Schedule 1.01 to the Participation
Agreement, when used in this Amendment, shall have the meaning given to that
term in such Schedule 1.01 and (b) the rules of interpretation set forth in
Schedule 1.02 to the Participation Agreement shall apply to this Amendment and
are incorporated herein by this reference.
2. AMENDMENTS TO PARTICIPATION AGREEMENT. The Participation Agreement is
hereby amended as follows:
(a) Schedule 1.01 is amended by adding thereto, in the
appropriate alphabetical order, the following definition:
"Existing Subordinated Debt" shall mean (a) the
Indebtedness of Lessee in the principal amount of $345,000,000
outstanding under the 4.25% Convertible Subordinated Notes due
March 15, 2004 issued by Lessee pursuant to the Indenture, dated
as of March 15, 1999, between Lessee and State Street Bank and
Trust Company of California, N.A., as Trustee, and (b) the
Indebtedness of Lessee in the principal amount of $500,000,000
outstanding under the Convertible Subordinated Notes due February
15, 2005 issued by Lessee pursuant to the Subordinated Indenture,
dated as of February 15, 2000, between Lessee and State Street
Bank and Trust Company of California, N.A., as Trustee, in each
case, in the form thereof in effect on the date of this
Agreement.
(b) Schedule 1.01 is further amended by changing the definition
of "Subordinated Debt" to read in its entirety as follows:
"Subordinated Debt" shall mean:
(a) The Existing Subordinated Debt; and
(b) Any other Indebtedness of Lessee or any of its
Subsidiaries the stated maturity date of any scheduled
principal payment of which is not earlier than the first
anniversary of the last Scheduled Expiration Date of any
Lease Supplement and which is subordinated on terms and
conditions reasonably acceptable to Required Participants;
provided, that any Subordinated Debt having subordination
provisions no more favorable in any material respect to
the holder than those attached as Exhibit I hereto shall
be deemed to be reasonably acceptable to Required
Participants for the purposes hereof.
Without limiting the foregoing, the terms of such Subordinated
Debt shall not include any requirement that the holders thereof
approve the issuance of the Senior Debt or Designated Senior Debt
(as defined in Exhibit I) entitled to the benefit of such
subordination provisions.
3. REPRESENTATIONS AND WARRANTIES. Lessee hereby represents and warrants
to Lessors, Lessor Agent, the Participants and Agent that the following are true
and correct on the
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date of this Amendment and that, after giving effect to the amendments set forth
in Paragraph 2 above, 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
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 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
Paragraph 3 that, on and after the date hereof, such term includes this
Amendment.)
4. EFFECTIVENESS OF AMENDMENTS. The amendments set forth in Paragraph 2
above shall become effective upon receipt by Agent of this Amendment duly
executed by Lessee, Lessors, Lessor Agent, the Participants and Agent and, upon
such receipt, shall be deemed to amend the Participation Agreement from the
original date thereof as though incorporated in the Participation Agreement as
originally executed; subject, however, to the following:
(a) It shall be a condition subsequent to the effectiveness of
the amendments set forth in Paragraph 2 above that Lessee shall deliver
to Agent, on or prior to September 30, 2001, the Conforming Amendment
(as defined below). If Lessee fails so to deliver the Conforming
Amendment, the amendments set forth in Paragraph 2 above shall cease to
be effective, and be treated as though never adopted.
(b) If the amendments set forth in Paragraph 2 above cease to be
effective pursuant to Subparagraph 4(a) above, Lessee shall pay not
later than October 15, 2001, as additional Base Rent under the Lease
Agreement, such additional amount as Lessee would have been required to
pay as Base Rent prior to September 30, 2001, had the Participation
Agreement not been amended as provided in Paragraph 2 above. (The
failure by Lessee to pay any such additional Base Rent during the period
from the date of the Participation Agreement through September 30, 2001,
will not constitute an Event of Default under the Lease Agreement,
notwithstanding that the amendments set forth in Paragraph 2 above cease
to be effective, and are treated as though never adopted pursuant to
Subparagraph 4(a) above.)
As used herein, each term set forth below shall have the respective meaning
given to that term below:
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"BofA Participation Agreement" shall mean that certain
Participation Agreement dated as of April 20, 2001 by and among Lessee,
First Security Bank, National Association, not in its individual
capacity except as expressly stated therein, but solely as certificate
trustee and lessor, First Security Trust Company of Nevada, not in its
individual capacity except as expressly stated therein, but solely as
agent, the certificate purchasers party thereto, and the lenders party
thereto.
"Conforming Amendment" shall mean an amendment to the BofA
Participation Agreement, substantially in the form attached hereto as
Exhibit A, with such additional changes (if any) reasonably satisfactory
to Agent (which approval shall not be unreasonably withheld) in order to
cause the definition of "Subordinated Debt" in the BofA Participation
Agreement to be substantially the same as the definition of
"Subordinated Debt" in the Participation Agreement, as amended hereby
(acknowledging, however, that each facility has its own expiration or
termination date), and thereby to cause the definition of "Pricing
Ratio" in the BofA Participation Agreement to be substantially the same
as the definition of "Pricing Ratio" in the Participation Agreement, as
amended hereby.
5. EFFECT OF THIS AMENDMENT. During the period that the amendments set
forth in Paragraph 2 above are effective, each reference in the Participation
Agreement and the other Operative Documents to the Participation Agreement shall
mean the Participation Agreement as amended by this Amendment. Except as
expressly amended pursuant hereto, (a) the Participation Agreement and the other
Operative Documents shall remain unchanged and in full force and effect and are
hereby ratified and affirmed and (b) the execution, delivery and effectiveness
of this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power, or remedy of Lessors, Lessor Agent, the Participants
or Agent, nor constitute a waiver of any provision of the Participation
Agreement or any other Operative Document.
6. MISCELLANEOUS.
(a) Binding Effect. This Amendment shall be binding upon and
inure to the benefit of Lessee, Lessors, the Participants, Lessor Agent,
Agent and their respective permitted successors and assigns. All
references in this Amendment to any Person shall be deemed to include
all successors and assigns of such Person.
(b) Counterparts. This Amendment may be executed in any number of
identical counterparts, any set of which signed by all the parties
hereto shall be deemed to constitute a complete, executed original for
all purposes.
[Signature pages follow]
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IN WITNESS WHEREOF, Lessee, Lessors, Lessor Agent, the Participants and
Agent have caused this First Amendment to Restated Participation Agreement to be
executed as of the day and year first above written.
LESSEE: LSI LOGIC CORPORATION
By:______________________________________
Name:______________________________
Title:_____________________________
LESSORS: ABN AMRO BANK N.V.
By:______________________________________
Name:______________________________
Title:_____________________________
By:______________________________________
Name:______________________________
Title:_____________________________
KEYBANK NATIONAL ASSOCIATION
By:______________________________________
Name:______________________________
Title:_____________________________
FBTC LEASING CORP.
By:______________________________________
Name:______________________________
Title:_____________________________
LESSOR AGENT: ABN AMRO BANK N.V.
By:______________________________________
Name:______________________________
Title:_____________________________
By:______________________________________
Name:______________________________
Title:_____________________________
AGENT: ABN AMRO BANK N.V.
By:______________________________________
Name:______________________________
Title:_____________________________
By:______________________________________
Name:______________________________
Title:_____________________________
PARTICIPANTS: ABN AMRO BANK N.V.
By:______________________________________
Name:______________________________
Title:_____________________________
By:______________________________________
Name:______________________________
Title:_____________________________
BANK ONE, N.A.
By:______________________________________
Name:______________________________
Title:_____________________________
BANQUE NATIONALE DE PARIS
By:______________________________________
Name:______________________________
Title:_____________________________
THE DAI-ICHI KANGYO BANK, LTD.
By:______________________________________
Name:______________________________
Title:_____________________________
FIRST SECURITY BANK, N.A.
By:______________________________________
Name:______________________________
Title:_____________________________
FBTC LEASING CORP.
By:______________________________________
Name:______________________________
Title:_____________________________
THE FUJI BANK, LIMITED
By:______________________________________
Name:______________________________
Title:_____________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:______________________________________
Name:______________________________
Title:_____________________________
KEYBANK NATIONAL ASSOCIATION
By:______________________________________
Name:______________________________
Title:_____________________________
NATIONAL CITY BANK
By:______________________________________
Name:______________________________
Title:_____________________________
SUMITOMO BANK LEASING AND
FINANCE, INC.
By:______________________________________
Name:______________________________
Title:_____________________________
UNION BANK OF CALIFORNIA, N.A.
By:______________________________________
Name:______________________________
Title:_____________________________
EXHIBIT A
Form of Amendment to BofA Participation Agreement
