<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 6, 1998
LSI LOGIC CORPORATION
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
DELAWARE 0-11674 94-2712976
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
(STATE OR OTHER JURISDICTION OF (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
</TABLE>
1551 MCCARTHY BOULEVARD
MILPITAS, CALIFORNIA 95035
- --------------------------------------------------------------------------------
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE:
(408) 433-8000
NOT APPLICABLE
- --------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
================================================================================
<PAGE> 2
AMENDMENT NO. 1
The undersigned Registrant hereby amends the following items, financial
statements, exhibits or other portions of its Current Report on Form 8-K,
originally filed with the Securities Exchange Commission on August 21, 1998,
reporting the acquisition by Registrant from Hyundai Electronics America, a
California corporation ("HEA"), of all of the outstanding capital stock of
Symbios, Inc. ("Symbios"), a Delaware corporation and the wholly-owned
subsidiary of HEA, as set forth in the pages attached hereto:
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
The Registrant funded the purchase through a combination of cash
reserves and credit facilities by and among the Registrant, LSI Logic Japan
Semiconductor, Inc., a wholly-owned subsidiary of Registrant ("LLJS"), ABN AMRO
Bank N.V., as agent for the syndicate of lenders ("ABN AMRO"), and a syndicate
of lenders to be determined by ABN AMRO (the "Lenders"), pursuant to a credit
agreement, dated as of August 5, 1998, by and among the Registrant, LLJS, ABN
AMRO and the Lenders, which credit agreement was amended and restated and
superseded by the Amended and Restated Credit Agreement dated as of September
22, 1998.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired.
The required financial statements of the business acquired are set forth
below.
SYMBIOS, INC.
Consolidated Financial Statements
December 31, 1997
With Report of Independent Accountants Thereon
Unaudited Condensed Consolidated Financial Statements as outlined below:
Condensed Consolidated Balance Sheet as of June 30, 1998
Condensed Consolidated Statements of Operations-Six months ended
June 30, 1998 and 1997
Condensed Consolidated Statements of Cash Flows -
Six months ended June 30, 1998 and 1997
Notes to Condensed Consolidated Financial Statements
<PAGE> 3
SYMBIOS, INC.
Table of Contents
<TABLE>
<CAPTION>
PAGE
<S> <C>
Consolidated Financial Statements:
Report of Independent Accountants 1
Consolidated Balance Sheet-December 31, 1997 2
Consolidated Statement of Operations- year ended 3
December 31, 1997
Consolidated Statement of Cash Flows- year ended 4
December 31, 1997
Consolidated Statement of Shareholder's Equity- 6
December 31, 1997
Notes to Consolidated Financial Statements 7
Unaudited Condensed Consolidated Balance Sheet - June 30, 1998 36
Unaudited Condensed Consolidated Statements of Operations - Six months ended 37
June 30, 1998 and June 30, 1997
Unaudited Condensed Consolidated Statement of Cash 38
Flows-Six months ended June 30, 1998 and 1997
Notes to Unaudited Condensed Consolidated Financial Statements 39
</TABLE>
<PAGE> 4
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders
of Symbios, Inc.:
We have audited the accompanying consolidated balance sheet of Symbios, Inc. as
of December 31, 1997, and the related consolidated statements of operations,
cash flows and shareholder's equity for the year then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with generally accepted auditing standards.
Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as the overall financial statement presentation. We believe
that our audit provides a reasonable basis for our opinion.
As discussed in Note 18 to the consolidated financial statements, the Company's
ultimate parent, Hyundai Electronics Industries Co., Ltd. ("HEI") is located in
the Republic of Korea. The Republic of Korea has recently experienced
instability in its currency and interest rates which have affected the
operations of most Korean companies, including HEI. HEI is a guarantor of the
debt of Hyundai Electronics America (HEA), the Company's immediate parent.
Subsequent to December 31, 1997, HEA has pledged the Symbios, Inc. stock it owns
as collateral for Symbios, Inc. debt and has borrowed $150 million from Symbios,
Inc.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Symbios, Inc. as
of December 31, 1997, and the consolidated results of their operations and their
cash flows for the year then ended, in conformity with generally accepted
accounting principles.
/s/ PricewaterhouseCoopers LLP
- ----------------------------------------
Denver, Colorado
January 24, 1998, except for Note 21, as
to which the date is August 6, 1998.
-1-
<PAGE> 5
SYMBIOS, INC.
CONSOLIDATED BALANCE SHEET
December 31, 1997
(Dollars in thousands)
-------
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Current assets:
Cash and cash equivalents $ 57,118
Accounts receivable, net of allowance for doubtful accounts of $1,323 70,233
Inventory, net 62,312
Income taxes receivable from HEA 843
Deferred income taxes 5,963
Other current assets 3,828
---------
Total current assets 200,297
Property, plant and equipment, net 286,081
Intangible assets, net 10,035
Other assets 3,454
---------
Total assets $ 499,867
=========
LIABILITIES AND SHAREHOLDER'S EQUITY
Current liabilities:
Accounts payable $ 43,152
Accrued compensation and other liabilities 34,480
Capital leases, current portion 18,112
Deferred revenue 8,862
---------
Total current liabilities 104,606
---------
Capital leases, noncurrent portion 79,445
Deferred income taxes 5,006
Other 797
---------
Total liabilities 189,854
---------
Commitments (Note 16)
Redeemable common stock, $0.02 par value, 40 million shares authorized;
83,996 shares outstanding at December 31, 1997 2
Additional paid-in capital 484
Notes receivable, employees (34)
---------
452
---------
Shareholder's equity:
Convertible, noncumulative, voting, Series A preferred stock,
$0.10 par value, 40 million shares authorized and 34 million
shares outstanding (liquidation preference of $340,000) 3,400
Common stock, $.02 par value, 40 million shares authorized --
Additional paid-in capital 332,120
Note receivable from HEA (30,000)
Retained earnings 4,041
---------
Total shareholder's equity 309,561
---------
Total liabilities and shareholder's equity $ 499,867
=========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements
-2-
<PAGE> 6
SYMBIOS, INC.
CONSOLIDATED STATEMENT OF OPERATIONS
for the year ended December 31, 1997
(Dollars in thousands, except per share)
-------
Sales, external $ 618,132
Sales, parent and affiliates 1,337
---------
Total sales 619,469
---------
Cost of sales, external 368,094
Cost of sales, parent and affiliates 877
---------
Total cost of sales 368,971
---------
Gross profit 250,498
---------
Operating expenses:
Research and development 88,188
Selling and marketing 64,276
General and administrative 19,025
Amortization of intangibles 8,468
Stock compensation expense 22,931
Fab closure costs 11,547
Other expense (273)
---------
Total operating expenses 214,162
---------
Operating income 36,336
Interest expense (8,488)
Interest income 7,657
Other expense (379)
---------
Income before income taxes 35,126
Taxes on income (18,900)
---------
Net income $ 16,226
=========
Basic earnings per share:
Net loss per common share $ (11.28)
=========
Diluted earnings per share:
Net loss per common equivalent share $ (11.28)
=========
The accompanying notes are an integral part of these consolidated financial
statements.
-3-
<PAGE> 7
SYMBIOS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
for the year ended December 31, 1997
(Dollars in thousands)
-------
<TABLE>
<S> <C>
Operating activities:
Net income $ 16,226
Adjustments to reconcile net income (loss) to net cash
provided by operating activities:
Depreciation and amortization 74,826
Amortization of intangibles 8,468
Reduction in doubtful accounts (299)
Reduction in excess and obsolete inventory (2,665)
Loss on sales of property, plant and equipment 1,257
Interest income on notes receivable from HEA (266)
Interest income on notes receivable from employees (174)
Deferred income benefit 3,300
Stock compensation expense 22,931
Fab closure costs 11,547
Changes in operating assets and liabilities:
Accounts receivable (4,221)
Inventory 6,889
Other current assets 238
Other assets (156)
Accounts payable 8,293
Deferred revenue (1,011)
Accrued compensation and other liabilities 2,694
Income taxes receivable from HEA (22,144)
---------
Net cash provided by operating activities 125,733
---------
Investing activities:
Loans to HEA (90,000)
Payments received on loans to HEA 30,000
Acquisition of property, plant and equipment (73,121)
Proceeds from sales of property, plant and equipment 1,322
---------
Net cash used in investing activities (131,799)
---------
Financing activities:
Cash paid for employee stock buyback (23,235)
Payments for stock options 6
Repayment of capital lease obligations (17,025)
Payment received on notes receivable from employees 88
---------
Net cash used in financing activities (40,166)
---------
Net change in cash and cash equivalents (46,232)
Cash and cash equivalents, beginning of year 103,350
---------
Cash and cash equivalents, end of year $ 57,118
=========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-4-
<PAGE> 8
SYMBIOS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS, Continued
for the year ended December 31, 1997
(Dollars in thousands)
-------
<TABLE>
<S> <C>
Noncash transactions and supplemental disclosures:
Acquisition of equipment through the assumption of
capital lease obligations $ 1,408
Accounts payable incurred for purchase of equipment 3,097
Issuance of common stock for notes receivable to employees 21
Non-cash dividend to HEA 30,266
Interest paid 7,978
Income taxes paid to HEA 37,745
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-5-
<PAGE> 9
SYMBIOS, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDER'S EQUITY
December 31, 1997
(Amounts in thousands)
-------
<TABLE>
<CAPTION>
Preferred Preferred Additional Note Retained
Stock Stock Paid-in Receivable Earnings Total
Shares Amount Capital From HEA (Deficit) Amounts
------ --------- --------- ---------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Balances, January 1, 1997 34,000 $ 3,400 $ 341,246 $ -- $ 8,955 $ 353,601
Net income -- -- -- -- 16,226 16,226
Dividend to HEA -- -- (9,126) -- (21,140) (30,266)
Note receivable from HEA -- -- -- (30,000) -- (30,000)
------ --------- --------- --------- --------- ---------
Balances, December 31, 1997 34,000 $ 3,400 $ 332,120 $ (30,000) $ 4,041 $ 309,561
====== ========= ========= ========= ========= =========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
-6-
<PAGE> 10
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollars in thousands)
-------
1. Basis of Presentation and Defining the Entity:
Symbios, Inc. ("the Company") was acquired by Hyundai Electronics
America ("HEA") on February 15, 1995. HEA is a majority owned subsidiary
of Hyundai Electronics Industries Co., Ltd. ("HEI"), a Korean
corporation. HEI is a member of the Hyundai Group of companies (see Note
18). The Company previously operated as the Microelectronic Products
Division ("MPD" or "Predecessor") of AT&T Global Information Solutions
("AT&T GIS"). MPD was incorporated as Symbios, Inc. immediately prior to
its acquisition by HEA.
The Company designs, manufactures, markets and supports ASICs for
peripheral and storage systems connectivity, peripheral controller
electronics, host adapter integrated circuits and boards and a complete
line of RAID storage systems, subsystems and related software.
The Company's financial statements include the consolidated accounts of
the Company's two divisions and its subsidiaries. All significant
intercompany accounts and transactions have been eliminated.
Effective February 16, 1995, HEA, its parent company, HEI and the
Company entered into a Patent Agreement. Pursuant to the agreement, HEA
assigned to the Company a joint ownership interest in certain patents
and patent applications acquired by HEA from AT&T GIS for $40,000. In
exchange, the Company issued to SLSI, a subsidiary of HEA, 4 million
additional preferred shares and granted HEA a joint ownership interest
in the Company's patent applications and patents issued after February
16, 1995, and before the termination date of the agreement. HEI also
granted the Company a license to its patents and the patents of its
subsidiaries. HEA and HEI agreed to pay to the Company certain royalties
received from third-party licensees of the co-owned patents. In
exchange, the Company agreed to pay HEA any royalties it received from
third-party licensees of its co-owned patents. The agreement is
effective until the later of (a) February 16, 2005, or (b) such time as
the Company is no longer a direct or indirect subsidiary of HEA. The
Company has accounted for the $40,000 of preferred stock as receipt of
patents and technology since the applicable intellectual property (i) is
used by the Company to generate revenues, (ii) was previously used by
the Company and (iii) the acquisition of the rights were made in
connection with the acquisition of the Company (See also Note 21).
2. Summary of Significant Accounting Policies:
Cash and Cash Equivalents:
Cash and cash equivalents include highly liquid investments with
original maturities of three months or less. Cash equivalents are
principally composed of money market mutual fund investments and
certificates of deposit. Money market mutual fund investments of
approximately $14,300 as of December 31, 1997, are classified as
available-for-sale investments. Certificates of deposit of approximately
$40,000 as of December 31, 1997 are classified as held-to-maturity
investments. Book value approximates fair value for both types of
investments and there are no unrealized gains or losses as of December
31, 1997. All investments are included in cash and cash equivalents for
financial statement purposes.
-7-
<PAGE> 11
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
2. Summary of Significant Accounting Policies, continued:
Cash and Cash Equivalents, continued:
Available cash is held on deposit at three federally insured
financial institutions. The Company has not experienced any
material losses relating to any short term financial instruments.
Inventory:
Inventory is stated at the lower of cost or market. Cost is
determined by using the average cost on a first-in, first-out
basis.
Property, Plant and Equipment:
Property, plant and equipment are stated at cost. Depreciation is
computed for financial reporting purposes principally by use of the
straight-line method over the estimated useful lives of the assets.
Buildings and their components are depreciated over 25 years.
Office furniture, fixtures and equipment are depreciated over five
years, except for computer equipment which is depreciated over
three years.
Gains or losses on the sale of property, plant and equipment are
recognized in the period of disposition of the asset. Betterments
which extend the useful lives of assets are capitalized. Repairs
and maintenance are expensed as incurred.
Preoperating and Start-up Costs:
The Company expenses preoperating and start-up costs.
Software:
The Company capitalizes the cost of software acquired from vendors.
The Company also capitalizes certain costs of developing software
for internal use. Such costs are amortized over their estimated
useful lives of five years on a straight line basis. Costs totaling
$4,665 were capitalized during the year ended December 31, 1997,
related to software for internal use.
The Company incurs costs to develop software used in hardware
products sold to customers. The software development costs incurred
subsequent to the establishment of technological feasibility are
immaterial to the financial statements.
Intangible Assets:
Intellectual property rights, including patents and trademarks, are
amortized over their estimated useful lives of five years using the
sum of the years digit method. Goodwill arising from the
acquisition of the Company in 1995 represents the excess of cost
over fair value of net assets acquired and is being amortized over
seven years using the straight-line method.
-8-
<PAGE> 12
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
2. Summary of Significant Accounting Policies, continued:
Long-Lived Assets:
In March 1995, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards ("SFAS") Statement No.
121 ("SFAS 121"), "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets Disposed Of," which requires
impairment losses to be recorded on long-lived assets used in
operations when indicators of impairment are present and the
undiscounted cash flows estimated to be generated by those assets
are less than the assets' carrying amounts.
Warranties:
A provision has been recorded for expected costs to be incurred as
a result of customer product warranties at the time the sale is
recognized. The Company warrants that products will be free from
defects in workmanship and materials for one to five years from the
date of shipment.
Deferred Revenue and Revenue Recognition:
Revenue from direct product sales to customers is recognized upon
shipment. Certain of the Company's sales are made to distributors
under agreements with stock rotation provisions, price protection
on inventory held by distributors and contract termination clauses.
Accordingly, the Company defers recognition of such sales until the
merchandise is sold by the distributors to a third party.
The Company accrues for the estimated loss on sales commitments for
which the anticipated production costs of sales exceed the related
selling price.
Research and Development Expenses:
Expenditures incurred for research and development of products are
expensed as incurred.
Stock-Based Compensation:
The Company uses the intrinsic value method of Accounting
Principles Board Opinion No. 25 to account for all of its employee
stock-based compensation plans.
Accounting for Income Taxes:
Under the asset and liability method of SFAS No. 109, "Accounting for
Income Taxes," deferred tax assets and liabilities are recognized for
the future tax consequences attributable to differences between the
financial statement carrying amounts and the tax bases of existing
assets and liabilities, and are measured using the enacted tax rates
expected to apply to taxable income in the years in which the temporary
differences are expected to reverse.
-9-
<PAGE> 13
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
2. Summary of Significant Accounting Policies, continued:
Accounting for Income Taxes, continued:
The currently payable and deferred income taxes in the accompanying
financial statements have been calculated as if the Company was a
separate entity, except for the research and experimentation credit
(see Note 8).
Earnings Per Share:
In February 1997, the Financial Accounting Standards Board issued
SFAS No. 128, "Earnings Per Share," which is effective for periods
ending after December 15, 1997. The Company adopted SFAS 128 in
1997. SFAS 128 requires presentation of both basic and diluted
earnings per share. The basic earnings per share are computed using
the weighted-average number of common shares outstanding. Dilutive
earnings per share include the weighted-average of common shares
outstanding, outstanding convertible preferred stock and
outstanding stock options which have dilutive potential. The net
income used to calculate the basic and diluted earnings per share
has been reduced by the $30,266 preferred stock dividend.
Derivative Financial Instruments:
The Company uses derivative financial instruments, including
interest rate swaps and forward exchange contracts, as part of an
overall risk-management strategy. These instruments are used as a
means of hedging exposure to foreign currency and interest rate
risk connected to firm commitments or capital lease obligations.
The Company does not hold or issue derivative financial instruments
for trading or speculative purposes.
Hedge accounting is applied if the derivative reduces the risk of
the underlying hedged item and is designated at inception as a
hedge. Additionally, changes in the value of the derivative must
result in payoffs that are highly correlated to the changes in
value of the hedged item. Derivatives are measured for
effectiveness both at inception and on an ongoing basis. The
Company enters into foreign exchange contracts that are designated
as and effective as hedges for firmly committed purchases.
The Company uses interest rate swaps to synthetically change its
variable-rate capital lease obligations to fixed rate obligations.
These derivatives are designated and effective as hedges at
inception and on an ongoing basis, and their terms are aligned with
the capital lease.
Gains and losses on foreign exchange contracts accounted for as
hedges are deferred in other current assets or liabilities. The
deferred gains and losses are recognized as adjustments to the
underlying hedged transaction when the future sales or purchases
are recognized. Interest rate swap payments and receipts are
recorded as part of interest expense. The fair value of the swap
contracts is not recognized in the financial statements (see Note
11 for fair values). Cash flows from derivatives are recognized in
the consolidated statement of cash flows in the same category as
the item being hedged.
-10-
<PAGE> 14
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
2. Summary of Significant Accounting Policies, continued:
Derivative Financial Instruments, continued:
If a derivative instrument ceases to meet the criteria for
deferral, any subsequent gains or losses are recognized in
operations. If a firm commitment does not occur, the foreign
exchange contract is terminated and any gain or loss is recognized
in operations. If a hedging instrument is sold or terminated prior
to maturity, gains or losses continue to be deferred until the
hedged item is recognized. Should a swap be terminated while the
underlying capital lease obligation remains outstanding, the gain
or loss is capitalized as part of the underlying lease obligation
and amortized into interest expense over the remaining term of the
lease obligation.
Comprehensive Income:
In June 1997, the Financial Accounting Standards Board ("FASB")
issued Statement of Financial Accounting Standard ("SFAS") No. 130,
"Reporting Comprehensive Income," which is effective for periods
beginning after December 15, 1997. SFAS 130 establishes standards
for reporting and display of comprehensive income and its
components in a full set of general-purpose financial statements.
The Company adopted SFAS 130 in 1997.
Estimates and Industry Factors:
The preparation of these financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of
assets and liabilities and the reported amounts of revenues and
expenses during the reporting period. Significant estimates are
required with respect to the ultimate realization of accounts
receivable and inventories, as well as amounts of revenue to be
deferred, among others. Actual results could differ from those
estimates.
The market for the Company's products is characterized by rapidly
changing technology, evolving industry standards and marketing
channels and changing customer needs. Seasonality, fluctuating
market pricing, inventory obsolescence, changes in availability of
critical components, the ability to implement new manufacturing
technologies, the effect of product reviews and industry awards and
the timing of new product introductions by the Company and its
competitors all play a significant role in determining operating
results for a given period of time. The Company's success
therefore, will depend in part on current products, development of
new products and systems on a timely and cost-effective basis and
the Company's ability to continue to respond to changing customer
needs and rapid paced technological developments.
-11-
<PAGE> 15
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
3. Inventory:
The major classes of inventory as of December 31, 1997 are as follows:
<TABLE>
<S> <C>
Raw materials $ 16,128
Work-in-process 32,627
Finished goods 18,057
Demonstration equipment 2,176
--------
68,988
Allowance for excess and obsolete inventory (6,676)
--------
Inventory, net $ 62,312
========
</TABLE>
4. Property, Plant and Equipment:
The major classes of property, plant and equipment as of December 31,
1997 are as follows:
<TABLE>
<S> <C>
Land $ 8,275
Buildings 79,806
Machinery and equipment 337,205
Construction in progress 34,778
Office furniture and equipment 12,064
---------
472,128
Less accumulated depreciation and amortization (186,047)
---------
Property, plant and equipment, net $ 286,081
=========
</TABLE>
Included in the property, plant and equipment balances as of December 31,
1997 above, the following assets are held under capital lease
arrangements:
<TABLE>
<S> <C>
Land $ 2,069
Buildings 9,063
Machinery and equipment 109,980
Office furniture and equipment 1,937
---------
123,049
Less accumulated depreciation and amortization (43,167)
---------
Property, plant and equipment, net $ 79,882
=========
</TABLE>
Interest capitalized in the year ended December 31, 1997 was $-0-.
-12-
<PAGE> 16
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
5. Intangible Assets:
Intangible assets as of December 31, 1997 consist of the following:
<TABLE>
<S> <C>
Intellectual property rights $ 39,234
Goodwill 2,023
--------
41,257
Less accumulated amortization (31,222)
--------
Intangible assets, net $ 10,035
========
</TABLE>
6. Accrued Compensation and Other Liabilities:
Accrued compensation and other liabilities as of December 31, 1997
consist of the following:
<TABLE>
<S> <C>
Accrued compensation and bonuses $15,995
Non-income taxes 3,382
Warranty provision 2,642
Fab closure accrual 2,626
Other 9,835
-------
$34,480
=======
</TABLE>
7. Capital Leases:
On December 28, 1995, the Company entered into a $57,049 sale-leaseback
arrangement with respect to semiconductor production equipment. On March
11, 1996, the Company entered into a $16,982 sale-leaseback arrangement
for semiconductor equipment purchased prior to December 31, 1995. On
November 11, 1996, the Company entered into a $34,403 sale-leaseback
arrangement for semiconductor equipment. These sale-leaseback
arrangements are collateralized by the aforementioned semiconductor
equipment and have a five year term, with an option to renew for one
year.
On December 22, 1995, the Company entered into a $12,000 office building
Lease Agreement and Construction Loan Agreement maturing on April 30,
2000. At December 31, 1996, the Company had borrowed the full $12,000
permitted under these agreements. This lease is collateralized by an
office building.
-13-
<PAGE> 17
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
7. Capital Leases, continued:
On May 23, 1997, the Company entered into an agreement for software
licenses and related technical support for $3,108 payable in three
annual installments beginning June 30, 1997.
Rent payments with respect to the capital lease obligations are
dependent on the stated interest rates in the lease agreements which are
variable. The future minimum lease payments are based on the interest
rate in effect at December 31, 1997. Stated interest rates on the
capital lease obligations ranged from 3.8% to 8.5% at December 31, 1997.
See Note 11 for information on the related interest rate swaps used by
the Company to effectively fix the effective interest rates on these
leases. The Company's operating lease commitments, expiring in various
years through 2002, are summarized in Note 16.
The approximate future minimum lease payments under these capital leases
for the four years subsequent to December 31, 1997 and in the aggregate
are:
<TABLE>
<S> <C>
1998 $ 24,415
1999 36,413
2000 33,864
2001 17,611
Thereafter --
---------
112,303
Less amount representing interest (14,746)
---------
Present value of minimum lease payments 97,557
Less current portion of capital lease obligations (18,112)
---------
Noncurrent portion of capital lease obligations $ 79,445
=========
</TABLE>
See Note 21 for a discussion of the repayment of the capital leases.
8. Income Taxes:
The Company is a member of the HEA affiliated group of corporations
which files a consolidated federal income tax return and various
consolidated and separate state income tax returns. All members of the
group have entered into a tax allocation agreement which provides for
the allocation of federal and state consolidated income tax liability
based upon each members proportionate share of taxable income
contributing to such liability. To the extent that any member of the
group currently utilizes the tax benefits of another member, the member
utilizing those benefits shall currently reimburse such other member for
those benefits. To the extent that HEA currently utilizes any other
member's tax benefits, HEA is obligated to reimburse such member only
when HEA would have been
-14-
<PAGE> 18
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
8. Income Taxes, continued:
able to utilize such benefits giving consideration to any separate HEA
tax benefit carryforwards. The tax sharing agreement with HEA does not
permit the Company to take a benefit for a research and experimentation
credit ("R&E") and the income tax expense does not reflect an R&E
credit. During the fourth quarter of 1995, the tax allocation agreement
was amended to provide the Company with an additional $20,000 of tax
benefits related to the intellectual property rights acquired from AT&T
GIS.
The Company records a valuation allowance based, in part, upon filing
taxes as a member of this affiliated group.
Significant components of the Company's deferred tax accounts as of
December 31, 1997 are detailed below:
<TABLE>
<S> <C>
Deferred tax assets:
Receivables $ --
Inventory 3,289
Intellectual property 9,040
Vacation accrual 133
Warranty accrual 976
Other accrued liabilities 647
Employee benefits 104
Fab shutdown 3,778
Stock compensation 447
Net operating loss --
--------
18,414
Less valuation allowance (6,122)
--------
12,292
Deferred tax liabilities:
Property, plant and equipment (11,335)
--------
Net deferred tax asset $ 957
========
</TABLE>
Deferred income taxes reflect the net effects of temporary differences
between the carrying amounts of assets for financial reporting purposes
and the amounts used for income tax purposes. Due to uncertainties about
the recoverability of the deferred tax asset at December 31, 1997, the
Company recorded a deferred tax asset valuation allowance in the amount
of $6,122.
-15-
<PAGE> 19
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
8. Income Taxes, continued:
The effective income tax rate on income before income taxes differed
from the federal statutory rate for the year ended December 31, 1997 for
the following reasons for the periods described below:
<TABLE>
<S> <C>
Federal statutory rate 35%
State and local taxes, net of federal benefit 5
Nondeductible stock compensation expense 15
Other (1)
------
54%
======
</TABLE>
The provision for income tax expense for the year ended December 31,
1997 is as follows:
<TABLE>
<S> <C>
Federal $16,600
State 2,300
-------
$18,900
=======
</TABLE>
The components of income tax expense for the year ended December 31,
1997 are as follows:
<TABLE>
<S> <C>
Current $15,600
Deferred 3,300
-------
$18,900
=======
</TABLE>
9. Long-Term Credit Facility:
On December 28, 1995, the Company entered into a $70 million Credit
Facility which matures on December 28, 1998. Effective June 30, 1997,
the Company amended its Credit Facility which included increasing the
credit line by $30 million to $100 million, changing from a
collateralized to uncollateralized line, lowering the interest rate, and
changing the due date to January 31, 1999. The revised loan agreement
permits the Company to make advances to HEA of up to $30 million. At
December 31, 1997, the Company had no borrowings under the agreement. As
of December 31, 1997, the variable interest rate on this agreement
(London InterBank Offered Rate "LIBOR" plus .75%,) was approximately
6.4%. Commitment fees accrue on the unused portion of the revolving line
of credit and the Lease Agreement and Construction Loan Agreement
discussed in Note 7. Commitment and agency fees of $227 were paid in
1997.
The terms of the credit and capital lease agreements (see Note 7)
require the Company to maintain minimum levels of tangible net worth,
working capital and capitalization ratios. In addition, payments of
dividends and expenditures for property, plant and equipment and loans
to affiliates are restricted. The Company obtained the necessary lender
and lessor approvals for loans and dividends made during 1997. See Note
21 for a discussion of the subsequent collateralized credit facility
entered into on February 26, 1998.
-16-
<PAGE> 20
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
10. Intercompany Credit Agreements:
On March 20, 1997, the Company loaned $30 million to HEA at 7.55%
interest. The loan plus accrued interest was repaid in full on April 9,
1997. On August 22, 1997 and August 28, 1997, the Company loaned $20
million and $10 million, respectively, to HEA at 7.7% interest per annum
and due on December 30, 1997. In October 1997, the Company and HEA
entered into discussions regarding the structure for an initial public
offering. Those discussions resulted in the Board of Directors approving
on November 11, 1997, the Company making a dividend of the note to HEA.
Of the $30.266 million dividend declared, $20.4 million was paid in 1997
by dividending that amount of the note to HEA with the remainder paid in
1998 by dividending the remaining balance of the note. On December 12,
1997, the Company loaned $30 million to HEA at an interest rate of LIBOR
plus 200 basis points (approximately 7.9% at December 31, 1997). The
loan is due March 8, 1998. Because of the uncertainty as to repayment of
this loan, the Company has shown it as a reduction of shareholder's
equity in the accompanying financial statements. See Note 21 for a
discussion regarding the subsequent dividend of this amount to HEA on
March 6, 1998.
11. Interest Rate and Foreign Currency Risk Management:
Interest Rate Swap Contracts:
The Company uses interest rate swap contracts to adjust a
proportion of the capital leases that are subject to variable
interest rates. This protects the Company from increases in the
variable rate indices and locks in a constant interest rate on the
capital leases.
Under interest rate swap contracts, the Company agrees with another
party to exchange interest payments monthly. Interest payments are
calculated by reference to the notional amount based on the
fixed-rate and variable-rate terms of the swap agreements. The net
interest received or paid as part of the interest rate swap is
accounted for as an adjustment to interest expense.
The counterparties to these interest rate contracts are major U.S.
and International financial institutions. The Company is exposed to
credit loss in the event of nonperformance by these counterparties.
The Company manages this risk by monitoring the credit standing and
reviewing the financial statements of the counterparty. Risk of
nonperformance by the counterparties does not appear to be probable
and no loss due to nonperformance is currently anticipated.
At December 31, 1997, the Company had interest rate swap contracts
to pay fixed-rates of interest (weighted average of 6.3%) and
receive floating-rates of interest (average 30-day LIBOR plus 135
basis points - 5.8%) on $82.7 million notional amount of
indebtedness. Approximately 12.3% or $12,000 of the Company's
underlying capital lease indebtedness is still subject to variable
interest rates.
-17-
<PAGE> 21
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
11. Interest Rate and Foreign Currency Risk Management, continued:
Interest Rate Swap Contracts, continued:
Based on the level of interest rates prevailing at December 31,
1997, the Company would have had a $403 unrealized loss on the
termination of its interest rate swaps. Unrealized gains or losses
on debt or interest rate swaps are not recognized for financial
reporting purposes unless the debt is retired or the swap contracts
are terminated prior to their maturity.
<TABLE>
<CAPTION>
Notional Termination
Amount Cost
December 31, December 31,
1997 Maturities 1997
----------- ----------------- ------------
<S> <C> <C> <C>
Variable to fixed (Swap I) $40,762 December 28, 2000 $ 161
Variable to fixed (Swap II) 12,746 March 28, 2001 62
Variable to fixed (Swap III) 29,196 November 28, 2001 180
</TABLE>
The following table summarizes the terms of interest rate swaps at
December 31, 1997. The lease variable interest rates are indexed to the
30-day LIBOR, while the fixed swap rates were originally indexed to the
five-year constant Treasury maturity at the time of the swap.
<TABLE>
<CAPTION>
Weighted
Average
Variable
Notional Actual Fixed Rates
Amount Rates Paid Received
December 31, December 31, December 31,
1997 Maturities 1997 1997
------------ ---------- ------------ ------------
<S> <C> <C> <C> <C>
Variable to fixed
(Swap I) $40,762 December 28, 2000 6.1% 5.6%
Variable to fixed
(Swap II) 12,746 March 28, 2001 7.5% 7.0%
Variable to fixed
(Swap III) 29,196 November 28, 2001 6.2% 5.6%
</TABLE>
-18-
<PAGE> 22
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
11. Interest Rate and Foreign Currency Risk Management, continued:
Foreign Currency Exchange Contracts:
Foreign currency exchange contracts are used to manage exposure to
changes in currency exchange rates. The use of foreign currency
exchange contracts allows the Company to reduce its exposure to the
risk that the eventual dollar net cash inflows and outflows
resulting from the sale of products to foreign customers and
purchases from foreign suppliers will be adversely affected by
changes in exchange rates. The foreign currency exchange contracts
are designated as hedges for firmly committed purchases. These
transactions are generally expected to occur in one year or less.
However, due to the long lead times in ordering semiconductor
manufacturing equipment certain exchange contracts may exceed one
year.
The Company also funds foreign operations with foreign currencies
and may from time to time enter into exchange contracts to control
currency risk associated with funding foreign operations.
At December 31, 1997, the Company had fixed rate contracts of
foreign currencies for the sale of $4,978 and purchase of $5,615.
<TABLE>
<CAPTION>
U.S. Dollar Gain
Value at (Loss) at
December 31, December 31,
Currency Delivery Date Buy/Sell 1997 1997
-------- ------------- -------- ------------ ------------
<S> <C> <C> <C> <C>
Dutch Guilders January 30, 1998 Sell $(4,424) $ (574)
Dutch Guilders January 30, 1998 Buy 4,998 --
Dutch Guilders February 27, 1998 Buy 617 --
Dutch Guilders February 27, 1998 Sell (554) (63)
------- -------
$ 637 $ (637)
======= =======
</TABLE>
The net increase in the above contract values of $637 offset a similar
decrease in the actual cost of the equipment purchased due to the change
in the exchange ratio for the dollar and guilder.
During 1996, the Company entered into a March 14, 1997 "buy" contract in
connection with an agreement to purchase a specific piece of equipment.
At the time the Company elected not to purchase this particular piece of
equipment, the Company entered into offsetting "sell" contracts for
March 14, 1997. The related net loss of $149 on these offsetting
contracts was recorded as a reduction of net income in 1997.
-19-
<PAGE> 23
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
12. Employee Benefit Plans:
The Company provides a voluntary 401(k) plan (the "401(k) Plan") in
which all U.S. employees of the Company may participate. Employees may
make any combination of pre-tax and after-tax contributions up to 15% of
their annual compensation subject to an annual dollar limitation
provided by the Internal Revenue Code. The Company provides 150%
employer matching contribution on the first 2% of employee
contributions, provides 75% employer matching contribution on the next
1% of employee contributions and 50% employer matching contribution on
the next 3% of employee contributions. Maximum employer matching
contribution is therefore 5.25% on employee contributions of 6% of pay
or more. Vesting of employer contributions is 25% per year at the end of
each year of full time service. Additionally, employees who have at
least four full years of continuous service with NCR, AT&T GIS and/or
the Company are fully vested in their account. Contributions are
therefore fully vested after four years. For the year ended December 31,
1997, employer matching contributions to the 401(k) Plan were $4,400.
During year ended December 31, 1996, the Company began providing a
Retirement Performance Account plan (the "RPA") for all of its U.S.
employees. Under the RPA, depending on the level of financial
performance of the Company, a certain portion of the Company's annual
profits will be allocated to employee 401(k) Plan accounts as a
discretionary employer contribution. For the 1997 fiscal year, employees
may receive a discretionary contribution equal to up to 3% of their
annual compensation if the Company achieves its financial objectives in
1997. Vesting of employer contributions under the RPA is the same as for
the 401(k) Plan described above. For the year ended December 31, 1997,
employer matching contributions of $2,277 were made to the 401(k) Plan
on behalf of the RPA.
The Company has a discretionary management bonus and employee profit
sharing arrangement with its management and employees. The Board of
Directors approves the bonus formula on an annual basis. For 1997, the
Company recognized expense of $11,687 related to the arrangement.
13. Shareholder's Equity:
Authorized Stock:
Effective February 15, 1995, the Board of Directors adopted a
resolution pursuant to which the Company authorized 40 million
shares and issued 30 million shares of its $0.10 par value $0.60
per share noncumulative, voting, convertible Series A preferred
stock to a subsidiary of HEA (SLSI) in exchange for all the common
stock of the Company held by SLSI (see Note 1). The Company has
issued an additional 4 million shares of the Series A preferred
stock to SLSI in exchange for HEA granting the Company a joint
ownership interest in certain patents and patent applications
acquired
-20-
<PAGE> 24
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
13. Shareholder's Equity, continued:
Authorized Stock, continued:
from AT&T GIS for $40,000. In December 1997, SLSI was merged into
HEA and as a result, HEA now directly owns the preferred stock of
the Company. The preferred stock has a liquidation preference of
$10.00 per share. Each share of the preferred stock is convertible
into one share of common stock at the option of the shareholder or
automatically converts into common stock upon an initial public
offering ("IPO"). The preferred stock has voting rights equal to
those of the common stock. In addition, the Company has authorized
40 million shares of common stock with a par value of $0.02 per
share. Of this amount, 34 million shares of the common stock are
reserved for the conversion of the Series A preferred stock to
common stock. The Company must fully pay any outstanding declared
dividends on the preferred stock before paying any dividend on
common stock.
1995 Stock Plan:
The Company has adopted an incentive stock plan ("the Plan") under
which the Company's directors are authorized to grant either
restricted common stock purchase rights or common stock options to
management, employees, consultants and outside directors of the
Company ("each Grantee"). The Plan is authorized to grant 10% of
the Company's outstanding equity stock (3,777,777 shares as of
December 31, 1997).
The Company is obligated pursuant to agreements with the holders of
the restricted common stock to provide a stock liquidity event
contingent upon the Company attaining a predetermined market
valuation. If at any time on or before August 31, 1998, the Company
receives advice from an investment banking firm that it is possible
for the Company to successfully complete a public offering of its
common stock at a valuation in excess of $550 million, or at any
time after August 31, 1998 but before August 31, 1999, the Company
receives advice from an investment banking firm that it is possible
for the Company to successfully complete a public offering of its
common stock at a valuation in excess of $680 million, then the
Company can either commence an initial public offering or it will
have the obligation to buy back the restricted common stock at a
price equal to the fair market value of the stock at that time. At
the Company's option, the Company can purchase both the vested and
unvested shares at the current fair market value, or alternatively,
purchase only the currently vested shares with future annual
purchases of newly vested shares at the then current fair market
value. The Company records a charge to earnings over the vesting
period of the awards, beginning with the date it becomes probable
the Company will achieve the valuations noted above, for the
difference between the exercise price or purchase price of the
options or stock awards and the IPO price.
-21-
<PAGE> 25
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
13. Shareholder's Equity, continued:
1995 Stock Plan, continued:
If the aforementioned valuations are not attained by the specified
dates, then the Company may offer to buy back the common stock at a
price equal to the fair market value of the stock at that time. Any
vested shares not reacquired by August 31, 2005 must be repurchased
at each Grantee's initial purchase price plus accrued interest at
that date.
The shares of issued restricted common stock vest 10% upon issue,
with the balance vesting ratably over the following 48 months. The
restricted common stock will continue to vest only so long as each
Grantee continues to be employed by the Company. Twenty-five
percent of the options vest on the first anniversary date of the
grant and the remainder of the options vest ratably over a
three-year period. All restricted common stock is held in escrow
with the Company's Secretary who is authorized by each Grantee to
vote the shares in accordance with the instructions of the Company.
Stock Buyback Program:
In August 1997, the Board of Directors approved the Company making
an offer to all employees and directors to purchase their vested
and unvested restricted stock and stock options. The Board of
Directors set the purchase price at the fair market value of $13
per share. The Company also agreed to reimburse certain employees
approximately $1.2 million in 1998, for the incremental income
taxes they incur in excess of the applicable capital gains rate.
Employees with stock options exercised their options, and then sold
the restricted stock to the Company. In September 1997, 2,231,941
shares of common stock were purchased pursuant to the voluntary
program.
The directors and employees who accepted the Company's voluntary
offer were granted replacement stock options equal in number to the
number of shares of stock they sold to the Company. The new options
were granted at the fair market value of $13. The replacement stock
options do not include the terms in the original restricted stock
and stock options that required the Company to repurchase the
restricted stock or stock options under certain liquidity events.
The replacement stock options vest 33% on June 30, 1998 and 22% on
each six-month anniversary date thereafter and will be fully vested
as of December 31, 1999.
-22-
<PAGE> 26
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
----------
13. Shareholder's Equity, continued:
Summary of Restricted Common Stock Rights and Common Stock Option
Activity:
The restricted stock rights and common stock option activity are
summarized as follows:
<TABLE>
<CAPTION>
Restricted Common
Stock Rights Common Stock Options
------------------------------- -------------------------------
Weighted Weighted
Average Average
Shares Exercise Shares Exercise
(in thousands) Price (in thousands) Price
-------------- -------- -------------- ---------
<S> <C> <C> <C> <C>
Outstanding at January 1, 1997 1,634 $ 2.00 597 $ 2.00
Granted 21 6.00 2,946 12.98
Exercised -- -- (3) 2.00
Repurchased (1,544) 2.05 (688) 3.27
Canceled (30) 2.00 (89) 7.19
------ ------ ------ ------
Outstanding at December 31, 1997 81 $ 2.00 2,763 $ 13.14
====== ====== ======
Common stock from exercise of
common stock options 3
------
Common stock shares 84
======
</TABLE>
-23-
<PAGE> 27
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
----------
The restricted common stock rights outstanding at December 31, 1997 have
a weighted average remaining contractual life of 7.6 years and a
weighted average price of $2.00. The following table summarizes
information about the common stock options outstanding at December 31,
1997.
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
---------------------------------------------------- ---------------------------
Weighted
Number Average Weighted Number Weighted
Outstanding at Remaining Average Exercisable at Average
Exercise December 31, Contractual Exercise December 31, Exercise
Prices 1997 Life Price 1997 Price
------------ -------------- ----------- --------- ------------- --------
(Shares in (Shares in
thousands) thousands)
<S> <C> <C> <C> <C> <C>
$ 2.00 6 8.4 years $ 2.00 2 $ 2.00
$ 10.00 2 9.3 years $ 10.00 -- $ 10.00
$ 13.00 2,689 9.6 years $ 13.00 -- $ 13.00
$ 20.00 66 9.8 years $ 20.00 -- $ 20.00
-------- -----
2,763 9.6 years $ 13.14 2 $ 2.00
======== =====
</TABLE>
13. Shareholder's Equity, continued:
Summary of Restricted Common Stock Rights and Common Stock Option
Activity, continued:
As of December 31, 1997, 75,355 restricted common stock shares were
vested.
At December 31, 1997, 2,309 common stock options were vested.
The weighted average grant date fair value of options granted
during the year ended December 31, 1997 for purposes of calculating
compensation expense was $13.16. Compensation expense of $22,931
has been recorded for the year ended December 31, 1997.
-24-
<PAGE> 28
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
Had compensation cost for options granted in 1997 been determined based
on the fair value at the grant dates, as prescribed by SFAS 123, the
Company's pro forma net income (loss) and pro forma net income (loss)
per share for the year ended December 31, 1997, would have been as
follows:
<TABLE>
<S> <C>
Net income (loss):
As reported $ 16,226
Pro forma 16,393
Basic earnings per share:
Net income (loss) per common share:
As reported $ (11.28)
Pro forma (11.14)
Diluted earnings per share:
Net income (loss) per common equivalent share:
As reported $ (11.28)
Pro forma (11.14)
</TABLE>
The fair value of each option grant is estimated annually using the
minimum value method with the following assumptions for the year ended
December 31, 1997:
<TABLE>
<S> <C>
Expected dividend yield 0.0 %
Risk-free interest rate 5.8 - 6.6 %
Expected life (in years) 2 - 4
</TABLE>
-25-
<PAGE> 29
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
13. Shareholders' Equity, continued:
Because the determination of the fair value of all options granted if
the Company becomes a public entity will include an expected volatility
factor in addition to the factors described in the preceding paragraph
and, because additional option grants are expected to be made each year,
the above pro forma disclosures are not representative of pro forma
effects of reported net income for future years.
The changes in the redeemable common stock issued under the restricted
stock purchase rights are as follows:
<TABLE>
<CAPTION>
Redeemable
Common Common Additional Notes
Stock Stock Paid-in Receivable, Total
Shares Amounts Capital Employees Amounts
----- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Balances, January 1, 1997 1,634 $ 33 $ 5,536 $ (3,446) $ 2,123
Common stock granted to employees
for notes receivable 21 1 128 (129) --
Cancellation of common stock granted
and notes receivable from employees (30) (1) (61) 62 --
Payments for notes receivable from
employees -- -- -- 88 88
Payments for purchase of incentive
stock options 3 -- 6 -- 6
Additional paid-in capital for stock
compensation -- -- 21,605 -- 21,605
Interest on notes receivable from
employees -- -- -- (174) (174)
Purchase of stock from directors and
employees and cancellation of notes
receivable (1,544) (31) (26,730) 3,565 (23,196)
----- -------- -------- -------- --------
Balances, December 31, 1997 84 $ 2 $ 484 $ (34) $ 452
===== ======== ======== ======== ========
</TABLE>
14. Net Income (Loss) Per Share:
The net income available to common shareholders for the year ended
December 31, 1997, consists of the following:
<TABLE>
<S> <C>
Net income $ 16,226
Less preferred dividends declared (30,266)
--------
Net loss available to common shareholders $(14,040)
========
</TABLE>
-26-
<PAGE> 30
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
14. Net Income (Loss) Per Share, continued:
The weighted average shares for the year ended December 31, 1997,
consist of the following:
<TABLE>
<S> <C>
Weighted average common shares used for
basic earnings per share 1,244,570
Convertible preferred stock --
Stock options --
---------
Adjusted weighted average common shares
used for diluted earnings per share 1,244,570
=========
</TABLE>
The convertible preferred stock and stock options are not included in
the 1997 calculations because they would be antidilutive.
15. Fab Closure Costs:
In August 1997, the Board of Directors approved and the Company
announced to its employees its intention to phase out the Fort Collins
fabrication plant with final closure occurring by December 31, 1997. The
shutdown is a result of the low utilization levels experienced and the
older technology of the plant. The fab closure charges of $11,547
reflected in the year ended December 31, 1997 are directly related to
the closure of the Fort Collins fabrication facility. There were 157
employees, primarily manufacturing employees, working in the Fort
Collins facility were terminated when the plant closed in 1997. Another
37 employees are expected to be relocated to the Company's Colorado
Springs facility. The estimated relocation and other costs totaling
approximately $1.5 million will be charged to operations when incurred.
Relocation and other costs totaling $600 were charged to operations
during the year ended December 31, 1997.
-27-
<PAGE> 31
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
15. Fab Closure Costs, continued:
The components of the fab shutdown charges to operations in the year
ended December 31, 1997 are summarized as follows:
<TABLE>
<CAPTION>
Recorded in
Year Ended Total
December 31, Expected
1997 Charges
----------- -------
<S> <C> <C>
Charges to operations
Noncash charges:
Write-down to fair value for certain
equipment in accordance with SFAS 121 $ 7,972 $ 7,972
Cash related charges and liabilities:
Dismantling costs 1,277 1,277
Employee severance and termination benefits 2,298 2,298
------- -------
Fab shutdown charges 11,547 11,547
Employee relocation costs 200 1,000
Other 400 500
------- -------
Total fab shutdown charges $12,147 $13,047
======= =======
</TABLE>
The activity in the liability for the fab closure costs is as follows:
<TABLE>
<S> <C>
Original liability, September 28, 1997 $ 3,575
Cash payments (949)
-------
Liability, December 31, 1997 $ 2,626
=======
</TABLE>
The Company has estimated the costs associated with the decision to
close the Fort Collins facility and these other matters based on the
best information available when the decision was made to close the
facility. The liability will be utilized when specific criteria are met
indicating the planned action has occurred. Although the Company
believes its estimates to be reasonable, actual costs associated with
these plans may differ. Therefore, the Company may, in future periods,
need to change its estimated costs associated with the fab closure as
more information becomes available.
-28-
<PAGE> 32
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
16. Commitments:
The Company leases certain office facilities and equipment under
noncancelable operating lease agreements which expire at various dates
through fiscal 2002. The approximate future minimum lease payments under
these leases for the five years immediately subsequent to December 31,
1997 and in the aggregate are:
<TABLE>
<S> <C>
1998 $2,574
1999 798
2000 437
2001 200
2002 97
------
Total $4,106
======
</TABLE>
In December 1997, the Company entered into a contract for construction
of a new engineering center building in Fort Collins, Colorado. This
building is expected to be completed by December 31, 1998 at a cost of
approximately $17 million.
Rent expense for the year ended December 31, 1997 was $3,437.
17. Related Parties:
The Company enters into transactions with HEA, HEI and Maxtor
Peripherals, in which HEA is an investor. These related party
transactions are principally comprised of the purchase of assembly
services and foundered wafers from HEI, sales of storage systems
products to HEI, and sales of drive electronic semiconductors to Maxtor
Peripherals. Related party purchases for the year ended December 31,
1997 were $4,501. Sales to related parties for the year ended December
31, 1997 were $1,337. The related party cost of sales for the same
period was $877.
18. Concentrations of Credit Risk and Geographic Information:
The Company sells its products to original equipment manufacturers and
distributors in North America, Europe and Asia. The Company regularly
sells to financially secure and creditworthy customers on open account.
Based upon a customer's credit history, the Company may require payment
in advance or the issuance of a letter of credit in favor of the Company
prior to shipment. The Company maintains adequate reserves for potential
credit losses and performs ongoing credit evaluations.
-29-
<PAGE> 33
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
18. Concentrations of Credit Risk and Geographic Information, continued:
For the year ended December 31, 1997, the Company's export shipments and
sales to geographic regions approximated the following:
<TABLE>
<S> <C>
Sales to:
Europe $ 80,740
Asia Pacific 168,395
Other international 27,090
--------
Total export sales $276,225
========
</TABLE>
For the year ended December 31, 1997, $233,404 of the above export sales
related to Symbios Semiconductors and the remaining $42,821 related to
the Storage Systems Division. Sales to Singapore represented over $103
million of Symbios Semiconductors export sales and sales to Ireland
represented over $15 million of Storage Systems Division export sales.
Sales and shipments of approximately $135.7 million to Asia Pacific in
1997 were made to foreign locations or foreign subcontractors of
U.S.-based companies.
The Company's ultimate parent is HEI, a Korean corporation. HEI is a
guarantor of the debt of HEA, the Company's immediate parent. Subsequent
to December 31, 1997, HEA pledged the stock of the Company it owns as
collateral for the Company's debt, and has borrowed $150 million from
the Company. Subsequent to year end, the Company negotiated a new credit
agreement with a new lender and loaned $150 million to HEA (see Note
21). The new agreement contains limited cross-default provisions with
respect to HEA. Asian country economies, including Korea, have recently
experienced economic instability including significant devaluations in
currencies, increases in interest rates, declines in public equity
markets and a lack of liquidity in the financial institutions and
businesses. The International Monetary Fund has agreed, subject to
certain conditions, to provide financial assistance to certain Asian
countries, including Korea. It is reasonably possible that further
deteriorations in the Korean economy and the value of the Korean
currency could have an adverse effect on the ability of the ultimate
parent to continue to guarantee the debt of HEA. The ultimate effect of
the economic instability in the Asian marketplace on HEI, Asian
businesses and the U.S. semiconductor and storage industries is not
determinable at this time.
As of December 31, 1997, two customers accounted for the following
percentages of accounts receivable:
<TABLE>
<S> <C>
Customer A 12 %
Customer B 11 %
</TABLE>
-30-
<PAGE> 34
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
18. Concentrations of Credit Risk and Geographic Information, continued:
For the year ended December 31, 1997, four customers accounted for the
following percentages of sales:
<TABLE>
<S> <C>
Customer A 15 %
Customer B 11 %
Customer C 10 %
Customer D 10 %
</TABLE>
Customer A accounted for 52% of sales for the Storage Systems Division
for the year ended December 31, 1997.
The Company's storage systems division currently relies on one vendor as
the Company's primary disk drive supplier.
19. Fair Values of Financial Instruments:
Cash and cash equivalents are carried at a cost plus accrued interest
which approximates market value. The carrying value of the Company's
debt approximates fair market value of the instrument based on the
variable interest rate nature of the debt and management's best estimate
of what interest rates would be available for similar debt obligations
as of December 31, 1997. The fair value of interest rate swaps and other
derivatives are based on quoted amounts the Company would receive or pay
to terminate such swap agreements taking into account the current
interest rate environment and the creditworthiness of each counterparty
(see Note 11).
20. Segment Information:
In June 1997, the FASB issued SFAS 131, "Disclosures About Segments of
an Enterprise and Related Information," which is effective for periods
beginning after December 15, 1997. SFAS 131 establishes standards for
the way that public business enterprises report information about
operating segments. The Company adopted SFAS 131 in 1997.
The Company's operations are conducted through its two divisions:
Symbios Semiconductors and the Storage Systems Division. Symbios
Semiconductors designs, manufactures and markets the Company's
semiconductor products including host adapter ICs and boards, peripheral
ICs and other non-I/O ASIC products. The Storage Systems Division
designs, manufactures, and markets a complete line of storage system
products, including controller boards, RAID storage systems, subsystems
and related software. There are no differences between the measurement
of these two segments' assets, profits or losses and those of the
Company. All significant long-lived assets are located in the United
States. The basis for accounting for any transactions between Symbios
Semiconductors and the Storage Systems Division is cost.
-31-
<PAGE> 35
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
20. Segment Information, continued:
In 1997, bonus plan liabilities and expense were allocated to each
division. Cash, income tax liabilities and interest income have
continued to be principally allocated to Symbios Semiconductors in 1997.
<TABLE>
<S> <C>
Capital expenditures:
Symbios Semiconductors $68,651
Storage Systems 4,470
-------
Total capital expenditures $73,121
=======
Interest expense:
Symbios Semiconductors $ 8,488
Storage Systems --
-------
Total interest expense $ 8,488
=======
Interest income:
Symbios Semiconductors $ 7,657
Storage Systems --
-------
Total interest income $ 7,657
=======
Income tax expense:
Symbios Semiconductors $15,988
Storage Systems 2,912
-------
Total income tax expense $18,900
=======
</TABLE>
-32-
<PAGE> 36
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
20. Segment Information, continued:
The segment information with respect to the two divisions for the year
ended December 31, 1997, is as follows:
<TABLE>
<S> <C>
Sales:
Symbios Semiconductors $450,419
Storage Systems 169,050
--------
Total sales $619,469
========
Operating income:
Symbios Semiconductors $ 30,443
Storage Systems 5,893
--------
Total operating income $ 36,336
========
Depreciation and amortization:
Symbios Semiconductors $ 79,017
Storage Systems 4,277
--------
Total depreciation and amortization $ 83,294
========
Identifiable assets:
Symbios Semiconductors $381,500
Storage Systems 55,286
Nonallocated assets (1) 63,081
--------
Total identifiable assets $499,867
========
</TABLE>
(1) Primarily cash and cash equivalents.
21. Subsequent Events:
On August 6, 1998, the Company was sold to LSI Logic, Corporation.
Pursuant to the sale agreement between HEA and LSI Logic, Corporation,
upon the closing of the sale, the vesting of Director options was
accelerated and they were repurchased for net cash of approximately $4.7
million.
In February 1998, the Board of Directors approved the reacquisition of
the outstanding common stock of the Company at a price of $20.65 per
share. The Company reacquired 83,996 shares at a cost of $1.7 million in
March 1998.
In February 1998, the Board of Directors approved employment agreements
for a limited number of employees of the Company. The terms of the
employment agreements vary by employee and provide for various lump sum
payments and in some limited instances, vesting of common stock options
upon the occurrence of certain triggering events.
-33-
<PAGE> 37
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
21. Subsequent Events, continued:
On March 6, 1998, the Company's Board of Directors declared a dividend
of $30 million to HEA, which will offset the $30 million intercompany
loan to HEA at December 31, 1997.
The Company terminated its $100 million unsecured line of credit
effective February 20, 1998. On February 26, 1998, the Company entered
into a new $300 million collateralized credit facility with a new
lender, comprised of a $245 million term loan and a $55 million
revolving line of credit, with a maturity date of February 25, 1999. The
facility is collateralized by substantially all of the assets of the
Company. HEA has pledged the stock of the Company it owns as additional
collateral for the loan. On February 26, 1998, the Company borrowed the
$245 million term loan and used the proceeds to (a) pay off the GE
Capital capital leases of $82.7 million and the Credit Lyonnais capital
lease of $12 million and (b) make a term loan of $150 million to HEA
under the same terms and conditions that the Company received from its
new lender. Under the new facility, the Company is obligated to maintain
certain covenants, including minimum net worth, EBITDA and consolidated
fixed charge ratios, as well as restrictions on transactions with
related parties including dividends, limitations on capital spending and
incurrence of additional debt.
Effective February 19, 1998, HEI, HEA and the Company entered into a
termination and license agreement. This agreement terminated the patent
agreement entered into in 1995 by the three companies. It also resulted
in HEA granting the Company an irrevocable, nonexclusive, worldwide,
royalty-free license on any products covered by any issued or pending
HEA patents for the life of those patents. The Company granted HEA an
irrevocable, nonexclusive, worldwide, royalty-free license to any
products covered by issued or pending patents of the Company, or any
patent issued or pending prior to February 15, 2005. HEI granted the
Company an irrevocable, nonexclusive, worldwide, royalty-free license to
any products covered by any HEI patent owned as of February 19, 1998 or
acquired prior to December 31, 2010. The license between HEI and the
Company shall terminate on December 31, 2010.
-34-
<PAGE> 38
SYMBIOS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, Continued
(Dollars in thousands)
-------
22. Year 2000:
In 1996, the Company commenced an evaluation of its software systems to
identify potential Year 2000 software issues. In 1997, the Company
commenced an upgrade of its financial and management reporting systems,
as well as its Storage Systems Division manufacturing systems. This
project is currently scheduled to be completed in 1998 at a cost of
approximately $10 million. Approximately $5.5 million had been expended
on the project through December 31, 1997. The Company must also upgrade
its semiconductor manufacturing software. This is expected to be
completed in December 1998 at a cost that is not currently anticipated
to be material to the financial statements. However, due to the
complexity of the systems, there can be no assurance that the projects
will be completed on schedule or within budget. If the projects are not
successfully completed, it could potentially have a material adverse
affect on the operations of the business.
Certain of the Company's software products are not currently compliant
with Year 2000 requirements. The Company is in the process of
redesigning such products. There can be no assurance that the Company
will be able to redesign such products on a timely basis or without
incurring significant expense. Even after such modifications have been
completed, there can be no assurance that the Company's software
products, particularly when such products incorporate third party
software, will contain all necessary date code changes. The Company
currently believes the cost of making such upgrades will not be material
to the financial statements. However, if the Company's products cannot
be successfully modified, the Company's business, operating results and
financial condition could be materially and adversely affected.
-35-
<PAGE> 39
SYMBIOS, INC.
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEET
(IN THOUSANDS)
<TABLE>
<CAPTION>
Unaudited
---------
June 30,
ASSETS 1998
---------
<S> <C>
Current assets:
Cash and cash equivalents $ 42,327
Accounts receivable, net 76,023
Inventory, net 68,979
Other current assets 9,533
---------
Total current assets 196,862
Property, plant and equipment, net 289,207
Other assets 9,096
---------
Total assets $ 495,165
=========
LIABILITIES AND SHAREHOLDER'S EQUITY
Current liabilities:
Current liabilities $ 70,281
Current portion of long-term obligations and other 246,266
---------
Total current liabilities 316,547
Long-term obligations and other 5,181
---------
Total liabilities 321,728
---------
Shareholder's equity:
Stock 316,117
Notes receivable from HEA (151,647)
Retained earnings 8,967
---------
Total shareholder's equity 173,437
---------
Total liabilities and shareholder's equity $ 495,165
=========
</TABLE>
The accompanying notes are an integral part of these unaudited
condensed consolidated financial statements.
-36-
<PAGE> 40
SYMBIOS, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Unaudited Unaudited
---------- ---------
Six Months Six Months
Ended Ended
June 30, June 30,
1998 1997
--------- ---------
<S> <C> <C>
Sales $ 300,107 $ 303,165
Cost of sales 171,044 176,951
--------- ---------
Gross profit 129,063 126,214
--------- ---------
Operating expenses:
Research and development 47,239 40,191
Selling and marketing 31,909 31,655
General, administrative and other 12,669 8,191
Amortization of intangibles 3,091 4,401
Stock compensation expense 106 1,774
Fab closure costs (1,166) --
--------- ---------
Total operating expenses 93,848 86,212
--------- ---------
Operating income 35,215 40,002
Interest expense (15,475) (4,305)
Interest income and other 7,302 4,093
--------- ---------
Income before income taxes 27,042 39,790
Taxes on income (10,275) (15,914)
--------- ---------
Net income $ 16,767 $ 23,876
</TABLE>
The accompanying notes are an integral part of these unaudited
condensed consolidated financial statements.
37
<PAGE> 41
SYMBIOS, INC.
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Unaudited Unaudited
---------- ----------
Six Months Six Months
Ended Ended
June 30, June 30,
1998 1997
--------- ---------
<S> <C> <C>
Net cash provided by operating activities $ 37,146 $ 47,016
--------- ---------
Investing activities:
Property, plant and equipment net of
proceeds from sales (44,332) (27,435)
Loans to HEA (150,427) (30,000)
Payments received on loans to HEA 30,000 30,000
--------- ---------
Net cash used in investing activities (164,759) (27,435)
--------- ---------
Financing activities:
Repayment of long-term obligations (95,811) (7,793)
Dividends paid (30,000) --
Cash paid for employee stock buyback (1,700) --
Credit facility, net of issuance costs 240,333 --
--------- ---------
Net cash provided by / (used in) financing activities 112,822 (7,793)
--------- ---------
Net change in cash and cash equivalents (14,791) 11,788
Cash and cash equivalents, beginning of period 57,118 103,350
--------- ---------
Cash and cash equivalents, end of period $ 42,327 $ 115,138
========= =========
</TABLE>
The accompanying notes are an integral part of these unaudited
condensed consolidated financial statements.
38
<PAGE> 42
SYMBIOS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(In Thousands)
Note 1- BASIS OF PRESENTATION
In the opinion of Symbios, Inc. (the "Company"), the accompanying
unaudited condensed consolidated financial statements contain all
adjustments (consisting only of normal recurring adjustments)
necessary to present fairly the financial information included
therein. While the Company believes that the disclosures are
adequate to make the information not misleading, it is suggested
that these financial statements be read in conjunction with the
audited consolidated financial statements and accompanying notes
included herein for the year ended December 31, 1997.
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the amounts reported in
the consolidated condensed financial statements and accompanying
notes. Actual results could differ from those estimates.
For financial reporting purposes, the Company reports on 13 or 14
week quarters with a year ending December 31. For presentation
purposes, the unaudited condensed consolidated financial statements
refer to the calendar month end for convenience. LSI Logic's and
Symbios's month end were both June 28. The results of operations
for the six months ended June 30, 1998 are not necessarily
indicative of the results to be expected for the full year.
On August 6, 1998, LSI Logic Corporation ("LSI Logic") completed
the acquisition of all of the outstanding capital stock of the
Company from Hyundai Electronics America ("HEA"). The transaction
was completed pursuant to (a) the Stock purchase Agreement dated as
of June 28, 1998 by and among LSI Logic, HEA and Hyundai
Electronics Industries Co., Ltd. ("HEI") and (b) the First
Amendment to the Stock Purchase Agreement dated August 6, 1998 by
and among LSI Logic, HEA and HEI and (c) the Supplementary
Liability Agreement dated August 6, 1998 by and among LSI Logic,
HEA and HEI.
SELF-INSURANCE RESERVES
The Company retains certain exposures in its insurance plan under
self-insurance programs. Reserves for claims made and reserves for
estimated claims incurred but not yet reported are recorded as
current liabilities.
-39-
<PAGE> 43
Note 2- Balance sheet information
<TABLE>
<CAPTION>
June 30,
1998
---------
<S> <C>
Inventories:
Raw materials $15,532
Work-in-process 29,434
Finished Goods 22,089
Demonstration equipment 1,924
-------
Total $68,979
=======
</TABLE>
Note 3- Credit Facility
Effective February 20, 1998, the Company terminated its $100
million unsecured line of credit. On February 26, 1998, the Company
entered into a new $300 million collateralized credit facility with
a new lender, consisting of a $245 million term loan and a $55
million revolving line of credit, with a maturity date of February
25, 1999. On July 16, 1998, the term loan was increased to $275
million. The facility is collateralized by substantially all of the
assets of the Company. HEA has pledged the Company's stock as
additional collateral for the loan. Borrowings against the credit
facility accrues interest at LIBOR plus 3.5% (9.2% at June 30,
1998). Under the new facility, the Company is obligated to maintain
certain covenants and is in compliance with these covenants as of
June 30, 1998. The Company had $245 million outstanding under the
term loan at June 30, 1998.
The Company loaned a portion of the proceeds of this credit
facility to HEA under the same terms and conditions that the
Company received from its lender. The principal amount of this note
receivable was $150 million at June 30, 1998. The Company has shown
the note receivable as a reduction of shareholder's equity in the
accompanying financial statements due to collectibility concerns.
Additionally, the Company used a portion of the proceeds of the
term loan to repay two capital leases with a balance of
approximately $95 million.
Note 4- Financial Instruments
During the first half of 1998, the Company terminated its interest
rate swap and foreign currency exchange contracts. The related
effects were insignificant to the financial statements for the six
months ended June 30, 1998. The Company does not plan to enter
into such contracts in the future.
-40-
<PAGE> 44
Note 5- On March 6, 1998, the Company's Board of Directors declared a
dividend of $30 million to HEA, which offset the $30 million
intercompany loan to HEA at December 31, 1997.
Note 6- On August 6, 1998, LSI Logic Corporation ("LSI Logic") acquired all
of the outstanding capital stock of the Company from HEA. As a
result of the transaction, the Company is now a wholly owned
subsidiary of LSI Logic and all agreements between the Company and
HEA have been terminated. LSI Logic paid approximately $767 in cash
for all of the outstanding capital stock of the Company, which
included assumed liabilities of the Company. The final purchase
price is subject to certain post-closing requirements. In addition,
LSI Logic assumed all of the options outstanding under the
Company's 1995 Stock Plan and has terminated the 401(k) savings
plan and the RPA plan, subject to IRS approval.
On August 7, 1998, HEA paid approximately $230 million to the
Company to repay their note including interest plus additional
obligations in accordance with the Stock Purchase Agreement, the
First Amendment to the Stock Purchase Agreement and the
Supplementary Liability Agreement. The Company then repaid the
lender of the credit facility the term loan balance including
interest and commitment fees on the unused portion of the term
loan.
-41-
<PAGE> 45
(b) Pro Forma Financial Information.
--------------------------------
The following unaudited pro forma condensed consolidated financial
statements are presented for illustrative purposes only and are not necessarily
indicative of the consolidated financial position or results of operations for
future periods or the results that actually would have been realized had LSI
Logic and Symbios been a consolidated company during the specified periods. The
unaudited pro forma condensed consolidated financial statements, including the
notes thereto, are qualified in their entirety by reference to, and should be
read in conjunction with the historical consolidated financial statements and
the notes thereto of LSI Logic which were previously reported in LSI Logic's
Annual Report on Form 10-K for the year ended December 31, 1997 and the
Quarterly Report on Form 10-Q for the quarter ended June 30, 1998, which are
hereby incorporated by reference, and the consolidated financial statements and
the notes thereto for the year ended December 31, 1997 and the Unaudited
Condensed Consolidated Statements and the notes thereto for the six month period
ended June 30, 1998, of Symbios included elsewhere in this Current Report on
Form 8-K.
The following unaudited pro forma condensed consolidated financial
statements are based on the respective historical unaudited and audited
consolidated financial statements and the notes thereto of Symbios and LSI Logic
after giving effect to the acquisition of Symbios using the purchase method of
accounting and the assumptions and adjustments described below. The purchase
price was allocated to the estimated fair value of assets acquired and
liabilities assumed. The preliminary purchase price allocation is based on an
independent appraisal and management estimates. The purchase price
allocation is subject to further refinement and change over the next year.
Management is in the final process of completing its restructuring plans related
to Symbios, and accordingly, the amounts recorded related to Symbios are based
on management's current estimate of those costs.
This Current Report on Form 8-K contains forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. In particular, the assumptions set forth
below regarding revenue growth, gross margin increases, cost decreases and cost
of capital which underlie the Company's calculation of the in-process research
and development expenses contain forward-looking statements and are qualified by
the risks associated with "Dependence on New Process Technologies and Products,"
"Manufacturing Risks," "Capital Needs," "Fluctuations in Operating Results,"
"Competition," "Currency Risks," "Customer Concentration," "Cyclical Nature of
the Semiconductor Business" and "Acquisitions and Investment Alliances" and
other risks detailed in LSI Logic's Annual Report on Form 10-K for the year
ended December 31, 1997 and its Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998 and June 30, 1998 and other reports filed by LSI Logic with
the Securities Exchange Commission from time to time. Actual results could
differ materially from those projected in these forward-looking statements as a
result of the risks described above as well as other risk factors set forth in
LSI Logic's periodic reports both previously and hereafter filed with the
Securities Exchange Commission.
The required pro forma unaudited financial information is set forth
below.
42
<PAGE> 46
PRO FORMA FINANCIAL INFORMATION
Table of Contents
<TABLE>
<CAPTION>
PAGE
<S> <C>
Unaudited Pro Forma Condensed Consolidated balance sheet - 1
June 30, 1998
Unaudited Pro Forma Condensed Consolidated Statement of Operations - 2
Year ended December 31, 1997
Unaudited Pro Forma Condensed Consolidated Statement of Operations - 3
Six months ended June 30, 1998
Unaudited Notes to Pro Forma Condensed Consolidated Financial Statements 4
</TABLE>
<PAGE> 47
LSI LOGIC CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
JUNE 30, 1998
(in thousands)
<TABLE>
<CAPTION>
Pro Forma Pro Forma
LSI Logic Symbios Adjustments Combined
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Assets
Cash and short term investments $ 409,230 $ 42,327 $ (178,732) (B,J) $ 272,825
Accounts receivable, net 231,461 76,023 307,484
Inventories 101,379 68,979 5,000 (C) 175,358
Other current assets 82,132 9,533 (4,276) (D) 87,389
----------- ----------- ----------- -----------
Total current assets 824,202 196,862 (178,008) 843,056
Property, plant and equipment, net 1,165,206 289,207 (36,025) (E) 1,418,388
Other assets 142,664 9,096 240,478 (F,G) 392,238
----------- ----------- ----------- -----------
Total assets $ 2,132,072 $ 495,165 $ 26,445 $ 2,653,682
=========== =========== =========== ===========
Liabilities and Stockholders' Equity
Current liabilities 357,896 70,281 13,321 (I,Q) 441,498
Current portion of long-term obligations and
other 40,955 246,266 (95,000) (B,J) 192,221
----------- ----------- ----------- -----------
Total current liabilities 398,851 316,547 (81,679) 633,719
Long-term obligations and other 111,810 5,181 481,214 (D,J) 598,205
----------- ----------- ----------- -----------
Total liabilities 510,661 321,728 399,535 1,231,924
----------- ----------- ----------- -----------
Minority interest in subsidiaries 4,920 4,920
----------- ----------- ----------- -----------
Stockholders' equity:
Stock 978,825 316,117 (290,970) (O,P) 1,003,972
Note receivable from HEA (151,647) 151,647 (B)
Retained Earnings 674,099 8,967 (233,767) (A,O) 449,299
Cumulative translation adjustment (36,433) (36,433)
----------- ----------- ----------- -----------
Total stockholders' equity 1,616,491 173,437 (373,090) 1,416,838
----------- ----------- ----------- -----------
Total liabilities and stockholders' $ 2,132,072 $ 495,165 $ 26,445 $ 2,653,682
equity =========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these unaudited pro forma
condensed consolidated financial statements.
1
<PAGE> 48
LSI LOGIC CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1997
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Pro Forma Pro Forma
LSI Logic Symbios Adjustments Combined
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues $ 1,290,275 $ 619,469 $ $ 1,909,744
Costs and expenses:
Cost of revenues 675,153 368,971 (14,720) (E) 1,029,404
Research and development 226,219 88,188 314,407
Selling, general and administrative 190,680 83,301 407 (E) 274,388
Amortization of intangibles 8,468 22,464 (H) 30,932
Stock compensation expense 22,931 22,931
Fab closure costs 11,547 11,547
Acquired in-process research and
development 2,850 2,850
----------- ----------- ----------- -----------
Total Operating expenses 1,094,902 583,406 8,151 1,686,459
Income/(loss) from operations 195,373 36,063 (8,151) 223,285
Interest expense (1,497) (8,488) (38,100) (J) (48,085)
Interest income and other 30,287 7,551 (8,765) (K,M) 29,073
----------- ----------- ----------- -----------
Income/(loss) before income taxes 224,163 35,126 (55,016) 204,273
Provision/(benefit) for income taxes 62,748 18,900 (17,324) (N) 64,324
----------- ----------- ----------- -----------
Net income before minority interest 161,415 16,226 (37,692) 139,949
----------- ----------- ----------- -----------
Minority interest 727 -- 727
----------- ----------- ----------- -----------
Net income/(loss) before cumulative accounting 160,688 16,226 (37,692) 139,222
change
----------- ----------- ----------- -----------
Cumulative effect of change in accounting (1,440) -- (1,440)
principle
----------- ----------- ----------- -----------
Net income/(loss) $ 159,248 $ 16,226 $ (37,692) $ 137,782
=========== =========== =========== ===========
Basic earnings per share $ 1.15 $ 0.99
=========== ===========
Diluted earnings per share $ 1.11 $ 0.95
=========== ===========
Shares used in computing basic net income
per share 138,576 138,576
=========== ===========
Shares used in computing diluted net
income per share 144,027 144,780
=========== ===========
</TABLE>
The accompanying notes are an integral part of these unaudited pro forma
condensed consolidated financial statements.
2
<PAGE> 49
LSI LOGIC CORPORATION
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1998
(in thousands, except per share Amounts)
<TABLE>
<CAPTION>
Pro Forma Pro Forma
LSI Logic Symbios Adjustments Combined
--------- -------- ----------- --------
<S> <C> <C> <C> <C>
Revenues $ 654,951 $ 300,107 $ $ 955,058
Costs and expenses:
Cost of revenues 358,951 171,044 (7,360) (E) 522,635
Research and development 128,688 47,239 175,927
Selling, general, administrative and other 94,342 44,578 203 (E) 139,123
Amortization of intangibles 3,091 12,375 (H) 15,466
Stock compensation expense 106 106
Fab closure costs (1,166) (1,166)
--------- --------- --------- ---------
581,981 264,892 5,218 852,092
Income/(loss) from operations 72,970 35,215 (5,218) 102,967
Interest expense -- (15,475) (11,355) (J, L) (26,830)
Interest income and other 10,385 7,302 (8,605) (K,M) 9,082
--------- --------- --------- ---------
Income/(loss) before income taxes 83,355 27,042 (25,178) 85,219
Provision/(benefit) for income taxes 20,878 10,275 (7,105) (N) 24,048
--------- --------- --------- ---------
Net income/(loss) $ 62,477 $ 16,767 $ (18,073) $ 61,171
========= ========= ========= =========
Basic earnings per share $ 0.44 $ .44
========= =========
Diluted earnings per share $ 0.44 $ .43
========= =========
Shares used in computing basic net income per
share 140,540 140,540
========= =========
Shares used in computing diluted net income
per share 141,949 142,443
========= =========
</TABLE>
The accompanying notes are an integral part of these unaudited pro forma
condensed consolidated financial statements.
3
<PAGE> 50
LSI LOGIC CORPORATION
UNAUDITED NOTES TO PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(in thousands)
Note 1. Basis of Presentation
On August 6, 1998, LSI Logic Corporation ("LSI Logic") completed the acquisition
of all of the outstanding capital stock of Symbios, Inc. ("Symbios") from
Hyundai Electronics America ("HEA"). HEA is a majority owned subsidiary of
Hyundai Electronics Industries Co.,Ltd. ("HEI"), a Korean corporation. The
transaction was completed pursuant to (a) the Stock Purchase Agreement dated as
of June 28, 1998 by and among LSI Logic, HEA and HEI and (b) the First Amendment
to the Stock Purchase Agreement dated August 6, 1998 by and among LSI Logic, HEA
and HEI and (c) the Supplementary Liability Agreement dated August 6, 1998 by
and among LSI Logic, HEA and HEI. LSI Logic paid approximately $767 million in
cash for all of the outstanding capital stock of Symbios. In addition, LSI Logic
assumed all of the options outstanding under Symbios' 1995 Stock Plan.
The components of purchase price are as follows:
<TABLE>
<S> <C>
Bank line of credit bearing interest at adjustable rates $635,000
Liability to HEA (1) 10,000
Estimated direct acquisition costs 6,077
Fair value of options assumed 25,147
Cash 121,700
--------
Total purchase price $797,924
========
</TABLE>
(1) LSI Logic, in accordance with its agreement with HEA, withheld
$10 million in payment to HEA pending resolution of the
liabilities subject to the supplementary liability agreement
dated August 6, 1998. This amount is ultimately payable to HEA
and has accordingly been reflected as a component of the
purchase price.
The total purchase price was allocated to the estimated fair value of assets
acquired and liabilities assumed. The estimate of fair value of the assets
acquired is based on an independent appraisal and use of management estimates.
The purchase price allocation is subject to further refinement and change over
the next year. Management is in the final process of completing its
restructuring plans related to Symbios, and accordingly, the amounts recorded
related to Symbios are based on management's current estimate of those costs.
The allocation of purchase price is discussed further in Note 2.
The pro forma unaudited condensed consolidated statement of operations is
presented using LSI Logic's unaudited condensed consolidated statement of
operations for the six months ended June 30, 1998 combined with Symbios's
unaudited condensed consolidated statement of operations for the six months
ended June 30, 1998 assuming the transaction occurred on January 1, 1998.
Additionally, the presentation includes LSI Logic's condensed consolidated
statement of operations for the year ended December 31, 1997 combined with
Symbios's condensed consolidated statement of operations for the year ended
December 31, 1997 as if the transaction had taken place on January 1, 1997.
The pro forma unaudited condensed consolidated balance sheet gives effect to the
acquisition as if the transaction had taken place on June 30, 1998 and combines
LSI Logic's unaudited June 30, 1998 condensed consolidated balance sheet amounts
with Symbios's unaudited June 30, 1998 condensed consolidated balance sheet
amounts.
4
<PAGE> 51
For financial reporting purposes, LSI Logic and Symbios report on 13 or 14 week
quarters with their years ending December 31. For pro forma presentation
purposes, the unaudited pro forma condensed consolidated financial statements
refer to the calendar month end for convenience. LSI Logic's and
Symbios's month end were both June 28. The results of operations
for the six months ended June 30, 1998 are not necessarily indicative of the
results to be expected for the full year.
There were no transactions between LSI Logic and Symbios during the period
presented and there are no significant differences between the accounting
policies of LSI Logic and Symbios.
The pro forma unaudited condensed consolidated financial statements should be
read in conjunction with the consolidated financial statements and notes thereto
of LSI Logic, which were previously reported in LSI Logic's Annual Report on
10-K for the year ended December 31, 1997 and its Quarterly Report on Form 10-Q
for the quarter ended June 30, 1998, incorporated herein by reference, and with
the combined financial statements and notes thereto of Symbios included
elsewhere as exhibits in the Form 8-K. These pro forma statements are based on
such consolidated financial statements after giving effect to the transaction
under the purchase method of accounting and the assumptions and adjustments
described below. The pro forma information does not purport to be indicative of
the results which would have been reported if the purchase had been in effect
for the periods presented or which may result in the future.
5
<PAGE> 52
Note 2. Pro Forma Adjustments
The pro forma adjustments are based on a preliminary allocation of the purchase
price to the assets acquired and liabilities assumed. This allocation is subject
to refinement and change over the next year. The allocation of the purchase
price is based on an independent appraisal of certain assets as well as
management estimates of fair value. It also reflects the results of an
integration plan, which includes employee separations, elimination of
duplicative facilities, employee relocation and other restructuring actions.
The accruals recorded related to the restructuring of Symbios operations are in
accordance with Emerging Issue Task Force No. 95-3 "Recognition of Liabilities
in Connection with a Purchase Business Combination."
This Current Report on Form 8-K contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. In particular, the assumptions set forth below
regarding revenue growth, gross margin increases, cost decreases and cost of
capital which underlie the Company's calculation of the in-process research and
development expenses contain forward-looking statements and are qualified by the
risks associated with "Dependence on New Process Technologies and Products,"
"Manufacturing Risks," "Capital Needs," "Fluctuations in Operating Results,"
"Competition," "Currency Risks," "Customer Concentration," "Cyclical Nature of
the Semiconductor Business" and "Acquisitions and Investment Alliances" and
other risks detailed in LSI Logic's Annual Report on Form 10-K for the year
ended December 31, 1997 and its Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998 and June 30, 1998 and other reports filed by LSI Logic with
the Securities Exchange Commission from time to time. Actual results could
differ materially from those projected in these forward-looking statements as a
result of the risks described above as well as other risk factors set forth in
LSI Logic's periodic reports both previously and hereafter filed with the
Securities Exchange commission.
(A) To reflect the allocation of purchase price to net assets acquired
and liabilities assumed. The purchase price was allocated as
follows:
<TABLE>
<S> <C>
Fair value of property, plant and equipment $253,182
Fair value of other tangible net assets 72,483
In-process research and development 224,800
Current technology 199,600
Assembled workforce and trademarks 35,200
Excess of purchase price over net assets assumed 12,659
--------
$797,924
========
</TABLE>
The amount allocated to in-process research and development was
approximately $225 million. This was determined through valuation
techniques generally used by appraisers in the high-technology industry
and was immediately expensed in the period of acquisition because
technological feasibility had not been established and no alternative
use had been identified. This amount was expensed as a non-recurring
charge upon consummation of the acquisition. This amount has been
reflected as a reduction to stockholders' equity and has been excluded
from the unaudited pro forma condensed consolidated statements of
operations due to its non-recurring nature.
The value assigned to in-process research and development was
determined by identifying research projects in areas for which
technological feasibility has not been established. These include
semiconductor projects of $144 million, storage systems projects of $59
million, and mixed signal process technology projects of $22 million.
The value was determined by estimating the costs to develop the
in-process research and development into commercially viable projects,
estimating the resulting cash flows from such projects and discounting
the net cash flows back to their present value.
The nature of the efforts to develop the in-process research and
development into commercially viable products principally relate to the
completion of design, verification, documentation, test program
development, prototyping, firmware development, hardware and software
integration as well as customer system-level testing for semiconductor,
product concept, architecture, design and development, module and unit
test, system integration, product release for storage, design rule
definition, spice model development, test chip fabrication, silicon to
simulation correlation and process qualification for mixed signal
process technology. The estimated costs expected to develop the
in-process research and development into commercially viable products
are approximately $90 million in aggregate -- $23 million in 1998 after
August 7, $44 million in 1999, $15 million in 2000, and $8 million from
2001 through 2005.
6
<PAGE> 53
The resulting net cash flows from such projects are based on LSI Logic
management's estimates of revenues, cost of sales, research and
development costs, selling, general and administrative costs, and
income taxes from such projects. These estimates are based on the below
mentioned assumptions.
The estimated revenues are based on projected average compounded annual
revenue growth rates for semiconductor and storage products that are
in line with industry analysts' forecasts of growth in substantially
all of the markets in which the divisions compete. Estimated total
revenues from the in-process research and development product areas are
expected to peak in the year 2001 and decline from 2002 - 2005 as other
new products are expected to enter the market. These projections are
based on LSI Logic's estimates of market size and growth, expected
trends in technology, and the nature and expected timing of new product
introductions by Symbios and its competitors. These estimates include
projected revenue related to LSI Logic integrating certain Symbios
in-process technology into ASIC designs with current LSI Logic
customers. These estimates also include projected incremental revenue
to LSI Logic's mixed signal business plan due to integrating
Symbios'advanced in-process mixed signal capabilities into LSI Logic's
in-process mixed signal technologies.
Symbios's estimated gross margin as a percentage of revenues is
expected to increase primarily due to leveraging the combined volumes
of LSI Logic and Symbios to achieve more favorable pricing from LSI
Logic's current test and assembly subcontractors, leveraging LSI
Logic's more advanced process technologies to achieve smaller die sizes
and increased capacity utilization of the wafer fabrication factories
due to the combined volumes. As a result of these savings, the
estimated gross margin for the semiconductor operations as a percentage
of revenues is projected to increase in 1999 with continued improvement
until it reaches LSI Logic historical gross margin levels.
The estimated selling, general and administrative costs are expected to
decrease from Symbios's historical cost structure. Cost savings are
expected to result from the replacement of Symbios' third party sales
distributors with LSI Logic's internal sales force, closure of
duplicate sales and engineering offices worldwide, reductions in
marketing staff and expenses for overlapping product lines and
marketing communications, and significant reductions in administrative
expenses.
Discounting the net cash flows back to their present value is based on
the weighted average cost of capital (WACC). The WACC calculation
produces the average required rate of return of an investment from an
operating enterprise, based on various required rates of return from
investments in various areas of that enterprise. The WACC assumed for
LSI Logic, as a corporate business enterprise, is approximately 15%.
The discount rate used in discounting the net cash flows from
in-process research and development is 23%, which is 500 basis points
higher than the discount rate used in discounting the net cash flows
from current technology. This discount rate is higher than the WACC due
to the inherent uncertainties in the estimates described above
including the uncertainty surrounding the successful development of the
in-process research and development, the useful life of such
technology, the profitability levels of such technology and the
uncertainty of technological advances that are unknown at this time.
7
<PAGE> 54
If these projects are not successfully developed, the sales and
profitability of the combined company may be adversely affected in
future periods. Additionally, the value of other intangible assets
acquired may become impaired.
(B) Adjustment to reflect repayment by HEA of $195,913 for their note
including interest to Symbios and payment for additional obligations
outlined in the Stock Purchase Agreement, the First Amendment to the
Stock Purchase Agreement and the Supplementary Liability Agreement and
to record the Symbios repayment of the term loan balance including
outstanding interest and commitment fees on the unused portion of the
term loan to the lender of the credit facility.
(C) Adjustment to reflect the fair value of inventories.
(D) Adjustment to eliminate Symbios' deferred income taxes to post-
acquisition values.
(E) Adjustment to reflect fair value of property, plant and equipment in
the unaudited pro forma condensed consolidated balance sheet and the
corresponding change in depreciation in the unaudited pro forma
condensed consolidated statements of operations for the periods
presented.
(F) Adjustment to eliminate intangible assets previously recorded by
Symbios in the amount of approximately $7 million.
(G) Adjustment to record fair value of intangible assets for current
technology, assembled workforce, trademarks and goodwill with values as
outlined in (A) above. The estimated weighted average useful life of
the intangible assets is approximately 8 years.
(H) Adjustment to reverse amortization of intangibles previously recorded
by Symbios and to record amortization expense of intangible assets
straight-line over the estimated weighted average useful life as
outlined in (G) above.
(I) Adjustment to reflect estimate of accrued restructuring charges related
to Symbios to be incurred in connection with the acquisition. The
restructuring plans include initiatives to integrate the operations of
Symbios and LSI Logic and consolidate duplicative operations.
Management is finalizing its restructuring plans related to Symbios,
and accordingly, the amounts recorded related to Symbios are based on
management's current estimate of those costs. Areas where management
estimates may be revised primarily relate to Symbios employee severance
and relocation costs and other exit costs. Adjustments to accrued
restructuring costs related to Symbios were recorded as an adjustment
to the purchase price allocation. Accrued restructuring charges include
$4 million related to involuntary employee separation and relocation
benefits related to approximately 300 Symbios employees and $1.4
million in other exit costs primarily relating to the closing of
Symbios sales offices and the termination of certain contractual
relationships.
(J) Adjustment to record the current ($150 million) and long-term ($485
million) portion of the term loan entered into on August 5, 1998 on the
unaudited pro forma condensed consolidated balance sheet as of June 30,
1998 and the related receipt of funds. The term loan bears interest at
adjustable rates and an increase or decrease in the interest rate by
.125% would have an insignificant effect to the unaudited pro forma
condensed consolidated statements of operations presented. The
unaudited pro forma condensed consolidated statements of operations
include an adjustment to record interest expense for the periods
presented related to the incremental borrowing entered into by LSI to
finance the Symbios acquisition using an assumed rate of 6%.
Amortization of capitalized debt issuance costs are considered
immaterial for the periods presented. Adjustment also reflects the
payment to HEA including cash reserves used by LSI Logic as outlined in
Note 1.
-8-
<PAGE> 55
(K) Adjustment to reflect the reversal of interest income on the pro forma
adjustment to cash resulting from the acquisition. The assumed rate of
return on the cash balance was approximately 5.8% which is based upon
the estimated rate of return on short-term investments for LSI Logic.
(L) Adjustment to eliminate interest expense related to the Symbios term
loan assumed to be repaid as of the beginning of the periods presented.
(M) Adjustment to eliminate interest income associated with the HEA note
assumed to be repaid as of the beginning of the periods presented.
(N) Adjustment to reflect the tax effect of the pro forma adjustments at
the combined rate of Symbios and LSI Logic during the periods
presented.
(O) Adjustment to eliminate total stockholders' equity previously recorded
by Symbios.
(P) Adjustment to stockholders' equity to record the Black-Scholes value of
the Symbios stock options assumed as a result of the transaction.
(Q) Adjustment to accrue for $10 million payable to HEA as discussed in
Note 1.
Note 3. Pro Forma Earnings Per Share
Basic pro forma earnings per share was calculated based on shares of LSI Logic's
Common Stock outstanding at June 30, 1998 and December 31, 1997. Diluted
earnings per share included equivalent LSI Logic's common shares of which 494
and 753 were included in diluted shares for the periods ended June 30, 1998 and
December 31, 1997 attributable to Symbios stock options assumed as part of the
transaction.
-9-
<PAGE> 56
(c) Exhibits.
2.1(1) Stock Purchase Agreement, dated as of June 28,
1998, by and among the Registrant, HEA and HEI.
2.2(1) First Amendment to Stock Purchase Agreement,
dated as of August 6, 1998, by and among
Registrant, HEA and HEI.
10.43 Amended and Restated Credit Agreement, dated as
of September 22, 1998, by and among Registrant,
LLJS, ABN AMRO and Lenders.
23.1 Consent of Independent Accountants
23.2 Consent of Independent Accountants
99.1(1) Text of Press Release dated August 7, 1998
================================================================================
(1) Incorporated by reference to Current Report on Form 8-K filed on
August 21, 1998
<PAGE> 57
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
LSI LOGIC CORPORATION
a Delaware corporation
Dated: October 20, 1998 By: /s/ R. Douglas Norby
--------------------------------------
R. Douglas Norby
Executive Vice President, Finance and
Chief Financial Officer
<PAGE> 58
EXHIBIT INDEX
Exhibit Number Description
2.1(1) Stock Purchase Agreement, dated as of June 28, 1998, by and
among the Registrant, HEA and HEI.
2.2(1) First Amendment to Stock Purchase Agreement, dated as of
August 6, 1998, by and among Registrant, HEA and HEI.
10.43 Amended and Restated Credit Agreement, dated as of September
22, 1998, by and among Registrant, LLJS, ABN AMRO and Lenders.
23.1 Consent of Independent Accountants
23.2 Consent of Independent Accountants
99.1(1) Text of Press Release dated August 7, 1998
================================================================================
(1) Incorporated by reference to Current Report on Form 8-K filed on August 21,
1998
<PAGE> 1
EXHIBIT 10.43
================================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
LSI LOGIC CORPORATION
AND
LSI LOGIC JAPAN SEMICONDUCTOR, INC.
AND
THE LENDERS NAMED HEREIN
AND
ABN AMRO BANK N.V.,
AS AGENT FOR LENDERS
AND
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
AS YEN MANAGER
SEPTEMBER 22, 1998
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION I. INTERPRETATION................................................1
1.01. Definitions...................................................1
1.02. GAAP.........................................................23
1.03. Headings.....................................................23
1.04. Plural Terms.................................................23
1.05. Governing Law................................................23
1.06. English Language.............................................23
1.07. Construction.................................................23
1.08. Entire Agreement.............................................23
1.09. Calculation of Interest and Fees.............................24
1.10. References...................................................24
1.11. Other Interpretive Provisions................................24
SECTION II. CREDIT FACILITIES............................................25
2.01. U.S. Borrowings..............................................25
2.02. Japanese Borrowing...........................................29
2.03. Amount Limitations, Commitment Reductions, Etc...............30
2.04. Fees.........................................................32
2.05. Prepayments..................................................33
2.06. Other Payment Terms..........................................34
2.07. Loan Accounts; Notes.........................................36
2.08. Loan Funding.................................................37
2.09. Pro Rata Treatment...........................................38
2.10. Change of Circumstances......................................39
2.11. Taxes on Payments............................................42
2.12. Funding Loss Indemnification.................................43
2.13. Security.....................................................44
2.14. Replacement of Lenders.......................................44
SECTION III. CONDITIONS...................................................45
3.01. Initial Closing Date Conditions..............................45
</TABLE>
i
<PAGE> 3
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
3.02. Second Closing Date Conditions Precedent.....................45
3.03. Conditions Precedent to Each Credit Event....................45
3.04. Covenant to Deliver..........................................46
SECTION IV. REPRESENTATIONS AND WARRANTIES...............................46
4.01. Borrowers' Representations and Warranties....................46
4.02. Reaffirmation................................................50
SECTION V. COVENANTS....................................................51
5.01. Affirmative Covenants........................................51
5.02. Negative Covenants...........................................56
5.03. Financial Covenants..........................................60
SECTION VI. DEFAULT......................................................62
6.01. Events of Default............................................62
6.02. Remedies.....................................................64
6.03. Lender Rate Contract Remedies................................65
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS........................66
7.01. Appointment, Powers and Immunities...........................66
7.02. Reliance by Agent............................................66
7.03. Defaults.....................................................66
7.04. Indemnification..............................................67
7.05. Non-Reliance.................................................67
7.06. Resignation or Removal of Agent..............................67
7.07. Agent in its Individual Capacity.............................68
SECTION VIII. MISCELLANEOUS................................................68
8.01. Notices......................................................68
8.02. Expenses.....................................................70
8.03. Indemnification..............................................70
8.04. Waivers; Amendments..........................................70
8.05. Successors and Assigns.......................................72
8.06. Setoff; Security Interest....................................76
</TABLE>
ii
<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C>
8.07. No Third Party Rights........................................76
8.08. Partial Invalidity...........................................76
8.09. Jury Trial...................................................76
8.10. Counterparts.................................................76
8.11. Borrowers' Liabilities.......................................77
8.12. Confidentiality..............................................77
8.13. Consent to Jurisdiction......................................77
8.14. Effect on Existing Credit Agreement..........................78
</TABLE>
SCHEDULES
I Lenders
II Pricing Grid
3.01 Initial Closing Date Conditions Precedent
4.01(d) Governmental Consents
4.01(g) Litigation
4.01(i) Environmental Compliance
4.01(l) Significant Subsidiaries
5.02(a) Liens
EXHIBITS
A Notice of U.S. Borrowing (2.01(c))
B Notice of U.S. Borrowing Conversion (2.01(e))
C Notice of U.S. Borrowing Interest Period Selection (2.01(f))
D Notice of Japanese Borrowing (2.02(b))
E Notice of Japanese Borrowing Interest Period Selection (2.02(d))
F Note (2.07(b))
G LSI Guaranty (2.13(a))
H Assignment Agreement (8.05(c))
I Form of Opinion of Wilson, Sonsini, Goodrich & Rosati
J Form of Opinion of Japanese Counsel for LLJS
iii
<PAGE> 5
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 22,
1998, is entered into by and among:
(1) LSI LOGIC CORPORATION, a Delaware corporation ("LSI");
(2) LSI LOGIC JAPAN SEMICONDUCTOR, INC., a Japanese corporation
("LLJS");
(3) Each of the financial institutions from time to time listed
in Schedule I hereto, as amended from time to time (such financial
institutions to be referred to herein collectively as "Lenders"); and
(4) ABN AMRO BANK N.V., as agent for Lenders (in such capacity,
"Agent").
RECITALS
A. LSI and LLJS (collectively, "Borrowers") and ABN AMRO Bank N.V., as a
Lender and as Agent, are parties to that certain Credit Agreement, dated as of
August 5, 1998 (the "Existing Credit Agreement"), pursuant to which Lenders have
provided certain credit facilities to each of Borrowers severally, but not
jointly, upon the terms and subject to the conditions set forth therein.
B. Borrowers and Lenders have requested that the Existing Credit
Agreement be amended in certain respects at the time additional parties become
Lenders, and Borrowers, Lenders and Agent have agreed to amend the Existing
Credit Agreement upon the terms and subject to the conditions set forth herein.
For convenience of reference, the parties hereto wish to restate the Existing
Credit Agreement as so amended in its entirety.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree that the Existing
Credit Agreement shall be amended and restated as of the date hereof to read in
its entirety as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Credit Document, each term set forth below, when used in this Agreement or
any other Credit Document, shall have the respective meaning given to that term
below or in the provision of this Agreement or other document, instrument or
agreement referenced below.
<PAGE> 6
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"Acquisition" shall mean any transaction or series of related
transactions for the purpose of or resulting in (a) the acquisition,
directly or indirectly, of all or substantially all of the assets of a
Person or of any business or division of a Person, (b) the acquisition,
directly or indirectly, of all or substantially all of the capital
stock, obligations or other securities of or interest in a Person, or
(c) a merger or consolidation or any other combination by either
Borrower or any of its Subsidiaries with another Person.
"Affiliate" shall mean any Person which, directly or indirectly,
controls, is controlled by or is under common control with another
Person. For purposes of the foregoing, "control" with respect to any
Person shall mean the possession, directly or indirectly, of the power
(a) to vote twenty-five percent (25%) or more of the securities having
ordinary voting power for the election of directors of such Person, or
(b) to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or by
contract or otherwise.
"Agent" shall have the meaning given to that term in clause (4)
of the introductory paragraph hereof.
"Agent's Fee Letter" shall mean the letter agreement dated as of
July 17, 1998 between LSI and Agent.
"Agent's Syndication Letter" shall mean the letter agreement
dated as of August 5, 1998 between LSI and Agent.
"Agreement" shall mean this Amended and Restated Credit
Agreement.
"Applicable Lending Office" shall mean:
(a) With respect to any U.S. Lender and any U.S.
Borrowing, (i) in the case of any Base Rate Loan, such Lender's
Domestic Lending Office, and (ii) in the case of any LIBOR Loan,
such Lender's Euro-Dollar Lending Office; and
(b) With respect to any Japanese Lender and the Japanese
Borrowing, such Lender's Japanese Lending Office.
"Applicable Margin" shall mean, with respect to any Borrowing at
any time, the per annum margin which is determined pursuant to the
Pricing Grid and added to the Base Rate, LIBO Rate or TIBO Rate, as the
case may be, for such Borrowing; provided, however, that each Applicable
Margin determined pursuant to the Pricing Grid shall be increased by two
percent (2.00%) per annum on the date an Event of Default occurs and
shall continue at such increased rate unless and until such Event of
Default is cured or waived in accordance with this Agreement. The
Applicable Margins shall be determined as provided in the Pricing Grid
and may change for each Pricing Period.
"Assignee Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
2
<PAGE> 7
"Assignment" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment Agreement" shall have the meaning given to that term
in Subparagraph 8.05(c).
"Assignment Effective Date" shall have, with respect to each
Assignment Agreement, the meaning set forth therein.
"Assignor Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Bankruptcy Code" shall mean Title 11 of the United States Code
entitled "Bankruptcy."
"Base Rate" shall mean, on any day, the greater of (a) the Prime
Rate in effect on such date and (b) the Federal Funds Rate for such day
plus one-half percent (0.50%).
"Base Rate Loan" shall mean, at any time, a U.S. Loan which then
bears interest at a rate specified in clause (i) of Subparagraph
2.01(d).
"Borrowers" shall have the meaning given to that term in Recital
A.
"Borrowing" shall mean a U.S. Borrowing or the Japanese
Borrowing.
"Business Day" shall mean any day on which commercial banks are
not authorized or required to close in San Francisco, California, or New
York, New York and (a) if such Business Day is related to a LIBOR Loan,
dealings in Dollar deposits are carried out in the London interbank
market and commercial banks are open for business in London or (b) if
such Business Day is related to the Japanese Borrowing, dealings in Yen
deposits are carried out in the Tokyo interbank market and commercial
banks are open for business in Tokyo.
"Capital Adequacy Requirement" shall have the meaning given to
that term in Subparagraph 2.10(d).
"Capitalized Interest" shall mean interest that is incurred or
accrued in any period and added to the cost of the asset in connection
with which such interest is incurred.
"Capital Lease" shall mean, for any Person, any lease of property
(whether real, personal or mixed) which, in accordance with GAAP, would,
at the time a determination is made, be required to be recorded as a
capital lease in respect of which such Person is liable as lessee.
3
<PAGE> 8
"Change of Control" shall mean
(a) With respect to LSI, (i) the acquisition after the
date hereof by any person or group of persons (within the meaning
of Section 13 or 14 of the Securities Exchange Act of 1934 (as
amended, the "Exchange Act")) of (A) beneficial ownership (within
the meaning of Rule 13d-3 promulgated by the SEC under the
Exchange Act) of thirty percent (30%) or more of the outstanding
equity securities of LSI entitled to vote for members of the
Board of Directors of LSI, or (B) all or substantially all of the
assets of LSI; or (ii) during any period of twelve (12)
consecutive calendar months, individuals who are directors of LSI
on the first day of such period ("Initial Directors") and any
directors of LSI who are specifically approved by two-thirds of
the Initial Directors and previously-approved Directors shall
cease to constitute a majority of the Board of Directors of LSI
before the end of such period; or
(b) With respect to LLJS, LSI shall cease to own directly
or indirectly one hundred percent (100%) of the equity securities
of LLJS, except for any nominal amount of director stock
necessary to do business in Japan.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.10(b).
"Closing Date" shall mean the U.S. Closing Date or the Japanese
Closing Date.
"Commitment Fees" shall mean, collectively, the U.S. Revolving
Commitment Fees and the U.S. 364 Day Commitment Fees.
"Commitments" shall mean, collectively, the U.S. Revolving
Commitments, the U.S. 364 Day Commitments and the Japanese Commitments.
"Compliance Certificate" shall have the meaning given to that
term in Subparagraph 5.01(a).
"Consolidated CMLTD" shall mean, as of any date of determination,
the portion of long-term indebtedness coming due in the current quarter
and the next succeeding three-quarter period as determined in accordance
with GAAP.
"Consolidated Current Liabilities" shall mean, as of any date of
determination, the sum of current liabilities of LSI and its
Subsidiaries on a consolidated basis, as determined in accordance with
GAAP, plus (without duplication) Guaranty Obligations with respect to
that portion of the underlying obligations which come due within one
year of such date of determination.
"Consolidated EBITDA" shall mean, for any period, Consolidated
Net Income plus Consolidated Interest Expense plus income tax expense
plus depreciation expense, amortization expense and other non-recurring,
non-cash expenses or charges relating to the Symbios Acquisition taken
between the date of this Agreement and September 30, 1998 which were
deducted in determining Consolidated Net Income, of LSI and its
4
<PAGE> 9
Subsidiaries on a consolidated basis, as determined in accordance with
GAAP. For purposes of this calculation, Symbios shall be deemed to be a
Subsidiary of LSI for any period prior to the Symbios Acquisition.
"Consolidated Interest Expense" shall mean, for any period,
interest expense (including interest expense attributable to Capital
Leases) of LSI and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
"Consolidated Net Income" shall mean, for any period, the net
income of LSI and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period, as determined in accordance
with GAAP.
"Consolidated Quick Assets" shall mean, as of any date of
determination, the sum of all unencumbered and unrestricted (except
those encumbered or restricted in favor of Agent or Lenders as security
for the Obligations) cash, cash equivalents and net accounts receivable
classified as current assets according to GAAP, of LSI and its
Subsidiaries on a consolidated basis, as determined in accordance with
GAAP.
"Consolidated Tangible Net Worth" shall mean, as of any date of
determination, Consolidated Total Assets minus Consolidated Total
Liabilities, minus (a) all assets which would be classified in a
separate account as intangible assets in accordance with GAAP, including
goodwill, organizational expense, research and development expense,
capitalized software, patent applications, patents, trademarks, trade
names, brands, copyrights, trade secrets, customer lists, licenses,
franchises and covenants not to compete, (b) all unamortized debt
discount and expense and (c) all treasury stock; provided, however, that
to the extent otherwise included in the amount set forth in the
foregoing clause (a) of this definition, there shall be excluded from
such amount the sum of (i) all engineering costs incurred in connection
with the development of major production capabilities at new
manufacturing facilities or refurbishment of an existing facility or
with respect to introducing a new manufacturing process to existing or
new manufacturing facilities and which are classified as a fixed asset
and capitalized on the consolidated balance sheet of LSI in accordance
with GAAP and (ii) amounts representing the capitalized portion of the
acquisition and development costs of software necessary for the
operation of the business of LSI and its Subsidiaries, as shown on the
consolidated balance sheet of LSI.
"Consolidated Total Assets" shall mean, as of any date of
determination, the total assets of LSI and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Consolidated Total Debt" shall mean, as of any date of
determination, all Indebtedness of LSI and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Consolidated Total Liabilities" shall mean, as of any date of
determination, the total liabilities of LSI and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
5
<PAGE> 10
"Contractual Obligation" of any Person shall mean, any indenture,
note, lease, loan agreement, security, deed of trust, mortgage, security
agreement, guaranty, instrument, contract, agreement or other form of
contractual obligation or undertaking to which such Person is a party or
by which such Person or any of its property is bound.
"Credit Documents" shall mean and include this Agreement, the
Notes, the LSI Guaranty, the Lender Rate Contracts, the Agent's Fee
Letter and the Agent's Syndication Letter; all other documents,
instruments and agreements delivered to Agent or any Lender pursuant to
Section III; and all other documents, instruments and agreements
delivered to Agent or any Lender in connection with this Agreement on or
after the date of this Agreement.
"Credit Event" shall mean the making of any Loan; the conversion
of any U.S. Loan into a LIBOR Loan; the selection of a new Interest
Period for a LIBOR Loan; or the selection of a new Interest Period
exceeding one (1) month for the Japanese Borrowing.
"Default" shall mean an Event of Default or any event or
circumstance not yet constituting an Event of Default which, with the
giving of any notice or the lapse of any period of time or both, would
become an Event of Default.
"Defaulting Lender" shall mean a Lender which has failed to fund
its portion of any Borrowing which it is required to fund under this
Agreement and has continued in such failure for three (3) Business Days
after written notice from Agent.
"Dollar Equivalent" shall mean, as to any amount denominated in
Yen as of any date of determination, the equivalent amount in Dollars as
determined by Agent on the basis of the Telegraphic Transfer Mid Rate
quoted by Bank of Tokyo Mitsubishi at or about 10:00 a.m. (Tokyo time)
on such date.
"Dollars" and "$" shall mean the lawful currency of the United
States of America and, in relation to any payment under this Agreement,
same day or immediately available funds.
"Domestic Lending Office" shall mean, with respect to any U.S.
Lender and any U.S. Borrowing, (a) initially, its office designated as
such in Part B of Schedule I (or, in the case of any U.S. Lender which
becomes a U.S. Lender by an assignment pursuant to Subparagraph 8.05(c),
its office designated as such in the applicable Assignment Agreement)
and (b) subsequently, such other office or offices as such U.S. Lender
may designate to Agent as the office at which such Lender's Base Rate
Loans will thereafter be maintained and for the account of which all
payments of principal of, and interest on, such Lender's Base Rate Loans
will thereafter be made.
"Eligible Assignee" shall mean a commercial bank having a
combined capital and surplus of at least $100,000,000, or another
financial institution which is a qualified institutional buyer as
defined in Rule 144A under the Securities Act of 1933, as amended, that
is acting through a branch or agency or an office located in (a) the
United States, in the case of a potential Assignee Lender that is to
become a U.S. Lender or (b) Japan, in the case of a potential Assignee
Lender that is to become a Japanese Lender.
6
<PAGE> 11
"Environmental Laws" shall mean all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directives, requests, licenses,
authorizations and permits of, and agreements with (including consent
decrees), any Governmental Authorities, in each case relating to or
imposing liability or standards of conduct concerning public health,
safety and environmental protection matters, including the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the
Clean Air Act, the Federal Water Pollution Control Act of 1972, the
Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
Act, the Toxic Substances Control Act, the Emergency Planning and
Community Right-to-Know Act, the California Hazardous Waste Control Law,
the California Solid Waste Management, Resource Recovery and Recycling
Act, the California Water Code and the California Health and Safety
Code.
"Equity Capital" shall mean, as of any date of determination,
Consolidated Total Assets minus Consolidated Total Liabilities
(exclusive of the cumulative translation adjustment account as reported
in the consolidated balance sheet of LSI and its Subsidiaries as of such
date).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) which is under common control with LSI within the
meaning of Section 4001(a)(14) of ERISA and Sections 414(b), (c) and (m)
of the IRC.
"ERISA Event" shall mean (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by LSI or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in
which it was a substantial employer (as defined in Section 4001(a)(2) of
ERISA) or a cessation of operations which is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) the filing of a notice of
intent to terminate, the treatment of a plan amendment as a termination
under Section 4041 or 4041A of ERISA or the commencement of proceedings
by the PBGC to terminate a Pension Plan subject to Title IV of ERISA;
(d) a failure by LSI or any ERISA Affiliate to make required
contributions to a Pension Plan or other Plan subject to Section 412 of
the IRC; (e) an event or condition which might reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan; (f) the
imposition of any liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon LSI or
any ERISA Affiliate; or (g) an application for a funding waiver or an
extension of any amortization period pursuant to Section 412 of the IRC
with respect to any Pension Plan.
"Euro-Dollar Lending Office" shall mean, with respect to any U.S.
Lender and any U.S. Borrowing, (a) initially, such Lender's office
designated as such in Part B of Schedule I (or, in the case of any U.S.
Lender which becomes a U.S. Lender by an assignment pursuant to
Subparagraph 8.05(c), its office designated as such in the applicable
Assignment Agreement) and (b) subsequently, such other office or offices
as such Lender may designate to Agent as the office at which such
Lender's LIBOR Loans
7
<PAGE> 12
will thereafter be maintained and for the account of which all payments
of principal of, and interest on, such Lender's LIBOR Loans will
thereafter be made.
"Event of Default" shall have the meaning given to that term in
Paragraph 6.01.
"Existing Credit Agreement" shall have the meaning given to that
term in Recital A.
"Federal Funds Rate" shall mean, for any day, the rate per annum
set forth in the weekly statistical release designated as H.15 (519), or
any successor publication, published by the FRB (including any such
successor publication, "H.15 (519)") for such day opposite the caption
"Federal Funds (Effective)". If on any relevant day, such rate is not
yet published in H.15 (519), the rate for such day shall be the rate set
forth in the daily statistical release designated as the Composite 3:30
p.m. Quotations for U.S. Government Securities, or any successor
publication, published by the Federal Reserve Bank of New York
(including any such successor publication, the "Composite 3:30 p.m.
Quotations") for such day under the caption "Federal Funds Effective
Rate". If on any relevant day, such rate is not yet published in either
H.15 (519) or the Composite 3:30 p.m. Quotations, the rate for such day
shall be the arithmetic means, as determined by Agent, of the rates
quoted to Agent for such day by three (3) federal funds brokers of
recognized standing selected by Agent for overnight federal funds
transactions.
"Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of income, shareholders' equity and
cash flows of such Person for such period, and a balance sheet of such
Person as of the end of such period, setting forth in each case in
comparative form figures for the corresponding period in the preceding
fiscal year if such period is less than a full fiscal year or, if such
period is a full fiscal year, corresponding figures from the preceding
annual audit, all prepared in reasonable detail and in accordance with
GAAP.
"Foreign Plan" shall mean any employee benefit plan maintained by
LSI, LLJS or any of their Subsidiaries which is mandated or governed by
any Governmental Rule of any Governmental Authority other than the
United States.
"FRB" shall mean the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"GAAP" shall mean generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession),
which are applicable to the circumstances as of the date of
determination.
"Governmental Authority" shall mean any domestic or foreign
national, state or local government, any political subdivision thereof,
any department, agency, authority or bureau of any of the foregoing, or
any other entity exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to government, including,
8
<PAGE> 13
without limitation, the Federal Deposit Insurance Corporation, the FRB,
the Comptroller of the Currency, any central bank or any comparable
authority.
"Governmental Charges" shall mean, with respect to any Person,
all levies, assessments, fees, claims or other charges imposed by any
Governmental Authority upon such Person or any of its property or
otherwise payable by such Person.
"Governmental Rule" shall mean any law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive,
guidelines, policy or similar form of decision of any Governmental
Authority.
"Guaranty Obligation" shall mean, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of that Person:
(a) With respect to any Indebtedness, lease (other than an
operating lease), dividend, or other obligation (the "primary
obligations") of another Person (the "primary obligor"),
including any obligation of that Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor, or
(ii) to advance or provide funds (A) for the payment or discharge
of any such primary obligation, or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item,
level of income or financial condition of the primary obligor, or
(iii) to purchase property, securities or services primarily for
the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such
primary obligation, or (iv) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect
thereof;
(b) (i) With respect to letters of credit, acceptances,
bank guaranties, surety bonds or similar instruments issued for
the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings, or (ii) as a
partner or joint venturer in any partnership or joint venture;
(c) With respect to synthetic leases; or
(d) Net obligations with respect to Rate Contracts, other
than Rate Contracts entered into in connection with a bona fide
hedging operation that provides offsetting benefits to such
Person.
"Hazardous Substances" shall mean any toxic or hazardous
substances, materials, wastes, contaminants or pollutants, including
asbestos, PCBs, petroleum products and byproducts, and any substances
defined or listed as "hazardous substances," "hazardous materials,"
"hazardous wastes" or "toxic substances" (or similarly identified),
regulated under or forming the basis for liability under any applicable
Environmental Law.
9
<PAGE> 14
"Indebtedness" shall mean, for any Person, without duplication:
(a) All indebtedness or other obligations of such Person
for borrowed money;
(b) All obligations of such Person for the deferred
purchase price of property or services (including obligations
under credit facilities which secure or finance such purchase
price and obligations under "synthetic" leases), other than trade
payables incurred by such Person in the ordinary course of its
business on ordinary terms;
(c) All obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of property, assets
or businesses;
(d) All indebtedness created or arising under any
conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such
property);
(e) All obligations under Capital Leases;
(f) All Guaranty Obligations other than Guaranty
Obligations described in clauses (a)(iii) and (a)(iv) of the
definition of "Guaranty Obligation" where the primary obligor is
a Subsidiary; and
(g) All indebtedness of another Person secured by any Lien
upon or in property owned by the Person for whom Indebtedness is
being determined, whether or not such Person has assumed or
become liable for the payment of such indebtedness of such other
Person; provided, that if such indebtedness is not assumed and
recourse is limited solely to such property, the Indebtedness
incurred hereunder shall be valued at the lesser of the principal
amount of the obligation so secured or the fair market value of
the property subject to such Lien.
"Initial Closing Date" shall mean the earlier of the U.S. Closing
Date and the Japanese Closing Date. (If the U.S. Closing Date and the
Japanese Closing Date are the same date, the Initial Closing Date and
the Second Closing Date shall be the same date.)
"Interest Period" shall mean:
(a) With respect to any LIBOR Loan, the time period
selected by LSI pursuant to Subparagraph 2.01(c) or Subparagraph
2.01(e) which commences on the first day of such U.S. Borrowing
or the effective date of any conversion and ends on the last day
of such time period, and thereafter, each subsequent time period
selected by LSI pursuant to Subparagraph 2.01(f) which commences
on the last day of the immediately preceding time period and ends
on the last day of that time period; and
10
<PAGE> 15
(b) With respect to the Japanese Borrowing, the time
period selected by LLJS pursuant to Subparagraph 2.02(b) which
commences on the first day of the Japanese Borrowing and ends on
the last day of such time period, and thereafter, each subsequent
time period selected by LLJS pursuant to Subparagraph 2.02(d)
which commences on the last day of the immediately preceding time
period and ends on the last day of that time period.
"IRC" shall mean the Internal Revenue Code of 1986.
"IRS" shall mean the Internal Revenue Service, or any successor
thereto.
"Japanese Borrowing" shall mean the borrowing by LLJS consisting
of Japanese Loans made by the Japanese Lenders on the Japanese Closing
Date. Any reference to the Japanese Borrowing shall include the Japanese
Loans.
"Japanese Closing Date" shall mean the date, not later than
August 31, 1998, designated by LLJS in the Notice of Japanese Borrowing
as the date of the Japanese Borrowing.
"Japanese Commitment" shall mean, with respect to each Lender,
the Yen amount set forth under the caption "Japanese Commitment"
opposite such Lender's name on Part A of Schedule I, or, if changed,
such Yen amount as may be set forth for such Lender in the Register.
"Japanese Lender" shall mean (a) prior to the Japanese Closing
Date, a Lender having a Japanese Commitment or (b) thereafter, a Lender
having a Japanese Loan.
"Japanese Lending Office" shall mean, with respect to any
Japanese Lender and the Japanese Borrowing, (a) initially, such Lender's
office designated as such in Part B of Schedule I (or, in the case of
any Japanese Lender which becomes a Japanese Lender by an assignment
pursuant to Subparagraph 8.05(c), its office designated as such in the
applicable Assignment Agreement) and (b) subsequently, such other office
or offices as such Lender may designate to Agent as the office at which
such Lender's Japanese Loans will thereafter be maintained and for the
account of which all payments of principal of, and interest on, such
Lender's Japanese Loans will thereafter be made.
"Japanese Loan" shall have the meaning given to that term in
Subparagraph 2.02(a).
"Lender Rate Contract" shall mean any Rate Contract entered into
by either Borrower or any of its Subsidiaries with a Lender or its
Affiliates as permitted by this Agreement of which Agent will be given
written notice upon the occurrence and during the continuance of an
Event of Default.
"Lenders" shall have the meaning given to that term in clause (3)
of the introductory paragraph hereof.
11
<PAGE> 16
"LIBO Rate" shall mean, with respect to any Interest Period for
the LIBOR Loans in any U.S. Borrowing, a rate per annum equal to the
quotient (rounded upward if necessary to the nearest 1/100 of one
percent) of (a) the arithmetic mean (rounded upward if necessary to the
nearest 1/16 of one percent) of the rates per annum appearing on
Telerate Page 3750 (or any successor publication) on the second Business
Day prior to the first day of such Interest Period at or about 11:00
A.M. (London time) (for delivery on the first day of such Interest
Period) for a term comparable to such Interest Period, divided by (b)
one minus the Reserve Requirement for such LIBOR Loans in effect from
time to time. If for any reason rates are not available as provided in
clause (a) of the preceding sentence, the rate to be used in clause (a)
shall be, at the Agent's discretion, (i) the rate per annum at which
Dollar deposits are offered to Agent in the London interbank market or
(ii) the rate at which Dollar deposits are offered to Agent in, or by
Agent to major banks in, any offshore interbank market selected by
Agent, in each case on the second Business Day prior to the commencement
of such Interest Period at or about 10:00 A.M. (New York time) (for
delivery on the first day of such Interest Period) for a term comparable
to such Interest Period and in an amount approximately equal to the
amount of the LIBOR Loan to be made or funded by Agent as part of such
U.S. Borrowing. The LIBO Rate shall be adjusted automatically as to all
LIBOR Loans then outstanding as of the effective date of any change in
the Reserve Requirement.
"LIBOR Loan" shall mean, at any time, a U.S. Loan which then
bears interest at a rate specified in clause (ii) of Subparagraph
2.01(d).
"Lien" shall mean any mortgage, deed of trust, pledge, security
interest, assignment, deposit arrangement, charge or encumbrance, lien
(statutory or other), or other preferential arrangement (including any
conditional sale or other title retention agreement, or any financing
lease having substantially the same economic effect as any of the
foregoing or any agreement to give any security interest, but excluding
any operating lease, regardless of whether precautionary filings are
made in respect thereof under Section 9408 of the California Uniform
Commercial Code).
"LLJS" shall have the meaning given to that term in clause (2) of
the introductory paragraph hereof.
"Loan" shall mean a U.S. Revolving Loan, a U.S. 364 Day Loan or a
Japanese Loan.
"Loan Account" shall have the meaning given to that term in
Subparagraph 2.07(a).
"LSI" shall have the meaning given to that term in clause (1) of
the introductory paragraph hereof.
"LSI Guaranty" shall have the meaning given to that term in
Subparagraph 2.13(a).
"Material Adverse Effect" shall mean (a) a material adverse
change in, or a material adverse effect upon, the operations, business,
properties, condition (financial or
12
<PAGE> 17
otherwise) or prospects of either Borrower or either Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability
of either Borrower to perform its Obligations or to pay any Indebtedness
described in Subparagraph 6.01(e); or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability of any Credit
Document.
"Maturity" shall mean, with respect to any Loan, interest, fee or
other amount payable by either Borrower under this Agreement or the
other Credit Documents, the date such Loan, interest, fee or other
amount becomes due, whether upon the stated maturity or due date, upon
acceleration or otherwise.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined
in Sections 3(37) and 4001(a)(3) of ERISA.
"Net Proceeds" shall mean, with respect to any sale of any asset
(including any sale of assets to be leased back in connection with a
"synthetic" lease of such assets) or any sale or issuance of any
Indebtedness or equity securities by any Person, the aggregate
consideration received by such Person from such sale or issuance less
the sum of the actual amount of the reasonable fees and commissions
payable to Persons other than such Person or any Affiliate of such
Person, the reasonable legal expenses and other costs and expenses
directly related to such sale or issuance that are to be paid by such
Person.
"Note" shall have the meaning given to that term in Subparagraph
2.07(b).
"Notice of Borrowing" shall mean a Notice of U.S. Borrowing or
the Notice of Japanese Borrowing.
"Notice of Interest Period Selection" shall mean a Notice of U.S.
Borrowing Interest Period Selection or a Notice of Japanese Borrowing
Interest Period Selection
"Notice of Japanese Borrowing" shall have the meaning given to
that term in Subparagraph 2.02(b).
"Notice of Japanese Borrowing Interest Period Selection" shall
have the meaning given to that term in Subparagraph 2.02(d).
"Notice of U.S. Borrowing" shall have the meaning given to that
term in Subparagraph 2.01(c).
"Notice of U.S. Borrowing Conversion" shall have the meaning
given to that term in Subparagraph 2.01(e).
"Notice of U.S. Borrowing Interest Period Selection" shall have
the meaning given to that term in Subparagraph 2.01(f).
"Obligations" shall mean and include all loans, advances, debts,
liabilities, and obligations, howsoever arising, owed by either Borrower
individually to Agent or any Lender of every kind and description
(whether or not evidenced by any note or
13
<PAGE> 18
instrument and whether or not for the payment of money), direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising pursuant to the terms of this Agreement or any of the
other Credit Documents, including all interest, fees, charges, expenses,
attorneys' fees and accountants' fees chargeable to Borrowers or payable
by Borrowers thereunder.
"Outstanding Japanese Loan Facility" shall mean the Yen credit
facility provided pursuant to the Agreement for Y25,000,000,000 Floating
Rate Guaranteed Credit Facility, dated December 27, 1995, as amended,
among LLJS, as borrower, LSI, as guarantor, the banks and financial
institutions parties thereto, as lenders, ABN AMRO, as agent for such
lenders, and The Industrial Bank of Japan, Limited, as co-agent for such
lenders.
"Outstanding Japanese Lease Facility" shall mean the Yen
"synthetic" lease provided pursuant to the Master Lease Agreement, dated
June 16, 1995, as amended, among LLJS, as lessee, and certain financial
institutions parties thereto, as lessors, including IBJ Leasing Co.,
Ltd., as lead lessor.
"Outstanding U.S. Loan Facility" shall mean the Dollar credit
facility provided pursuant to the Credit Agreement, dated as of December
20, 1996, as amended, among LSI, as borrower, the financial institutions
parties thereto, as lenders, and ABN AMRO, as agent for such lenders.
"Overnight Rate" shall mean, for any amount payable in Yen on any
day, the per annum interest rate at which overnight deposits in Yen in
an amount approximately equal to such amount would be offered for such
day by ABN AMRO's Japanese Lending Office to major banks in the Tokyo
interbank market.
"Participant" shall have the meaning given to that term in
Subparagraph 8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Pension Plan" shall mean any employee pension benefit plan
covered by Title IV of ERISA (other than a Multiemployer Plan) that is
maintained for employees of LSI or any ERISA Affiliate or with regard to
which LSI or an ERISA Affiliate is a contributing sponsor within the
meaning of Section 4001(a)(13) or 4069 of ERISA.
"Permitted Acquisition" shall mean:
(a) The Symbios Acquisition; and
(b) Any Acquisition of any other Person by either Borrower
or any of its Subsidiaries for which (i) the sole consideration
paid by the acquiring Borrower or Subsidiary, as the case may be,
consists of capital stock, or (ii) the total cash consideration
paid by the acquiring Borrower or Subsidiary, as the case may be,
does not exceed, in the aggregate with all other Acquisitions and
all investments under clause (vi) of Subparagraph 5.02(e),
$300,000,000 during the period from the date of this Agreement
through the Revolving Termination Date
14
<PAGE> 19
and no Default exists at the time of such Acquisition and no
Default or Material Adverse Effect would occur as a result
thereof.
"Permitted Investments" shall mean any investments selected by
LSI in accordance with its Corporate Cash Investment Policy as adopted
by LSI on August 16, 1996 (as the same may be amended from time to time
with the approval of Agent); provided that any investments not meeting
the standards set forth in such Corporate Cash Investment Policy shall
nevertheless be deemed to be "Permitted Investments" if they do not
exceed at any time, in the aggregate, ten percent (10%) of all Permitted
Investments at such time.
"Permitted Liens" shall mean:
(a) Liens which may at any time be granted in favor of
Agent or any Lender to secure the Obligations;
(b) Liens in existence as of the date of this Agreement
listed on Schedule 5.02(a), and any substitutions or renewals
thereof, provided that (i) any substitute or renewal Lien is
limited to the property encumbered by the existing Lien, and (ii)
the principal amount of the obligations secured thereby is not
increased;
(c) Liens for current taxes, assessments or other
Governmental Charges which are not delinquent or remain payable
without any penalty or which are being contested in good faith
via appropriate proceedings, with appropriate reserves
established therefor in accordance with GAAP;
(d) Liens in connection with workers' compensation,
unemployment insurance or other social security obligations;
(e) Mechanics', workers', materialmen's, landlords',
carriers' or other like Liens arising in the ordinary and normal
course of business with respect to obligations which are not past
due or which are being contested in good faith via appropriate
proceedings, with appropriate reserves established therefor in
accordance with GAAP;
(f) Purchase money security interests (including by way of
installment sales and title retention agreements) in personal or
real property hereafter acquired when the security interest is
granted contemporaneously with such acquisition (or within nine
months thereafter), Liens created to secure the cost of
construction or improvement of property and Liens created to
secure Indebtedness incurred to finance such purchase price or
cost (including Liens in favor of the United States or any state
thereof, or any department, agency, instrumentality or political
subdivision thereof, securing any real property or other assets
in connection with the financing of industrial revenue bond
facilities or of any equipment or other property designed
primarily for the purpose of air or water pollution control);
provided that (i) any such Lien shall attach only to the property
so purchased. constructed or improved, together with attachments
and accessions
15
<PAGE> 20
thereto, and rents, proceeds, products, substitutions,
replacements and profits thereof and attachments and accessories
thereto, and (ii) the amount of Indebtedness secured by any such
Lien shall not exceed the purchase or construction price of such
property plus transaction costs and financing charges relating
to the acquisition or construction thereof;
(g) Liens arising from attachments or similar proceedings,
pending litigation, judgments or taxes or assessments in any such
event whose validity or amount is being contested in good faith
by appropriate proceedings and for which adequate reserves have
been established and are maintained in accordance with GAAP;
(h) Liens arising in the ordinary course of business or by
operation of law, not securing Indebtedness, but securing such
obligations as (i) judgments or awards, which (A) are covered by
applicable insurance or (B) have been outstanding less than
thirty (30) consecutive days, (ii) interests of landlords or
lessors under leases of real or personal property entered into in
the ordinary course of business arising by contract or operation
of law, (iii) Liens in favor of customs and revenue authorities
which secure payment of customs in connection with the
importation of goods, (iv) Liens which constitute rights of
set-off of a customary nature or bankers' liens on amounts on
deposit, whether arising by contract or by operation of law, in
connection with arrangements entered into with depository
institutions in the ordinary course of business, (v) such minor
defects, irregularities, encumbrances, easements, rights of way,
and clouds on title as normally exist with respect to similar
properties which do not, individually or in the aggregate,
materially impair the property affected thereby or the use
thereof and (vi) subleases, licenses, and sublicenses granted to
third parties, the granting of which does not result in a
Material Adverse Effect;
(i) Liens securing reimbursement obligations of either
Borrower or any of its Subsidiaries under documentary letters of
credit; provided that such Liens shall attach only to documents
relating to such letters of credit, goods covered thereby and
products and proceeds thereof;
(j) Liens on insurance policies or the proceeds of
insurance policies incurred solely to secure the financing of
premiums owing with respect thereto;
(k) Liens existing on property (including the proceeds and
accessions thereto) acquired by either Borrower or any of its
Subsidiaries (including Liens on assets of any corporation at the
time it becomes a Subsidiary), but excluding any Liens created in
contemplation of any such acquisition;
(l) Liens encumbering customary initial deposits and
margin deposits, and other Liens that are within the general
parameters customary in the industry and incurred in the ordinary
course of business in connection with Rate Contracts or portfolio
investments maintained with financial intermediaries; and
16
<PAGE> 21
(m) Liens related to a "synthetic" lease financing of
equipment, provided that (i) such Liens cover only the equipment
and related property and (ii) the "principal" amount of such
financing does not exceed $250,000,000.
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint
venture, a trust or other entity or a Governmental Authority.
"Plan" shall mean an employee benefit plan (as defined in Section
3(3) of ERISA) which LSI or any ERISA Affiliate sponsors or maintains,
or to which LSI or any ERISA Affiliate makes, is making, or is obligated
to make contributions, and includes any Pension Plan.
"Pricing Grid" shall mean Schedule II.
"Pricing Period" shall mean (a) the period commencing on the date
of this Agreement and ending on September 30, 1998, and (b) each
consecutive calendar quarter thereafter which commences on the day
following the last day of the immediately preceding calendar quarter and
ends on the last day of that calendar quarter.
"Pricing Ratio" shall mean, as of the last day of any fiscal
quarter, the ratio of (a) Senior Debt as of such date to (b) annualized
Consolidated EBITDA for such fiscal quarter and the immediately
preceding fiscal quarter, plus, to the extent deducted in calculating
such Consolidated EBITDA, the sum of (i) preproduction engineering
charges not exceeding $135,000,000 taken by LSI during 1999 as a result
of the Financial Accounting Standards Executive Committee Statement of
Position regarding capitalization of preproduction charges, plus (ii)
the aggregate amount of restructuring charges not exceeding $100,000,000
taken by LSI during the quarter ending September 30, 1998.
"Prime Rate" shall mean the per annum rate publicly announced by
ABN AMRO from time to time at its Chicago office. The Prime Rate is
determined by ABN AMRO from time to time as a means of pricing credit
extensions to some customers and is neither directly tied to any
external rate of interest or index nor necessarily the lowest rate of
interest charged by ABN AMRO at any given time for any particular class
of customers or credit extensions. Any change in the Base Rate resulting
from a change in the Prime Rate shall become effective on the Business
Day on which each change in the Prime Rate occurs.
"Proportionate Share" shall mean:
(a) With respect to any U.S. Lender and its U.S. Revolving
Commitment or U.S. Revolving Loans, if any, the ratio (expressed
as a percentage rounded to the eighth digit to the right of the
decimal point) of (i) such Lender's U.S. Revolving Commitment to
the Total U.S. Revolving Commitment at any time on or prior to
the Revolving Termination Date or (ii) the aggregate principal
amount of such Lender's U.S. Revolving Loans to the aggregate
principal amount
17
<PAGE> 22
of the U.S. Revolving Borrowings outstanding at any time after
the Revolving Termination Date;
(b) With respect to any U.S. Lender and its U.S. 364 Day
Commitment or U.S. 364 Day Loans, if any, the ratio (expressed as
a percentage rounded to the eighth digit to the right of the
decimal point) of (i) such Lender's U.S. 364 Day Commitment to
the Total U.S. 364 Day Commitment at any time on or prior to the
U.S. 364 Day Termination Date or (ii) the aggregate principal
amount of such Lender's U.S. 364 Day Loans to the aggregate
principal amount of the U.S. 364 Day Borrowings outstanding at
any time after the U.S. 364 Day Termination Date;
(c) With respect to any Japanese Lender and its Japanese
Commitment or Japanese Loans, if any, the ratio (expressed as a
percentage rounded to the eighth digit to the right of the
decimal point) of (i) such Lender's Japanese Commitment to the
Total Japanese Commitment at any time on or prior to the Japanese
Closing Date or (ii) the aggregate principal amount of such
Lender's Japanese Loans to the aggregate principal amount of the
Japanese Borrowing outstanding at any time after the Japanese
Closing Date; and
(d) With respect to any Lender without reference to a
particular type of Commitment or Loan, the ratio (expressed as a
percentage rounded to the eighth digit to the right of the
decimal point) of (i) the aggregate of such Lender's U.S.
Revolving Commitment, U.S. 364 Day Commitment and the Dollar
Equivalent of such Lender's Japanese Commitment to the sum of the
Total U.S. Revolving Commitment, the Total U.S. 364 Day
Commitment and the Dollar Equivalent of the Total Japanese
Commitment at any time on or prior to the Initial Closing Date or
(ii) the weighted average of the sums determined for such Lender
pursuant to clauses (a), (b) and (c) above at any time after the
Initial Closing Date.
"Rate Contracts" shall mean interest rate swaps, caps, floors and
collars, currency swaps, or other similar financial products designed to
provide protection against fluctuations in interest, currency or
exchange rates.
"Register" shall have the meaning given to that term in
Subparagraph 8.05(d).
"Reportable Event" shall mean any of the events set forth in
Section 4043(b) of ERISA or the regulations promulgated thereunder,
other than any such event for which the 30-day notice requirement under
ERISA has been waived in regulations issued by the PBGC.
"Required Lenders" shall mean, at any time, Lenders whose
Proportionate Shares equal or exceed fifty-one percent (51%).
"Reserve Requirement" shall mean (a) with respect to any day in
an Interest Period for a LIBOR Loan, the aggregate of the reserve
requirement rates (expressed as a decimal) in effect on such day for
eurodollar funding (currently referred to as "Eurocurrency liabilities"
in Regulation D of the FRB) maintained by a member bank of
18
<PAGE> 23
the Federal Reserve System or (b) with respect to any day in an Interest
Period for a Japanese Loan, the aggregate of the reserve requirement
rates, if any (expressed as a decimal), in effect on such day for Yen
funding in Tokyo maintained by commercial banks in Tokyo. As used
herein, the term "reserve requirement" shall include, without
limitation, any basic, supplemental or emergency reserve requirements
imposed on any Lender by any Governmental Authority.
"Responsible Officer" shall mean, with respect to any Person, the
chief executive officer, the president, the chief financial officer or
the treasurer of such Person, or any other senior officer of such Person
having substantially the same authority and responsibility; or, with
respect to compliance with financial covenants, the chief financial
officer or the treasurer of any such Person, or any other senior officer
of such Person involved principally in the financial administration or
controllership function of such Person and having substantially the same
authority and responsibility.
"Revolving Termination Date" shall mean August 4, 2002, or, with
respect to U.S. Revolving Borrowings, such earlier date as the Total
U.S. Revolving Commitment is cancelled pursuant to Subparagraph 2.03(c).
"Scheduled Reduction Date" shall mean the last day of each of
December 1999, March, June, September and December 2000, and March, June
and September 2001.
"SEC" shall mean the Securities and Exchange Commission, or any
successor thereto.
"Second Closing Date" shall mean the later of the U.S. Closing
Date and the Japanese Closing Date. (If the U.S. Closing Date and the
Japanese Closing Date are the same date, the Initial Closing Date and
the Second Closing Date shall be the same date.)
"Security Documents" shall mean and include the LSI Guaranty and
any other instruments, agreements, certificates, opinions and documents
(including Uniform Commercial Code financing statements and fixture
filings and landlord waivers) delivered to Agent or any Lender to secure
the Obligations.
"Senior Debt" shall mean all Indebtedness, other than
Subordinated Debt, of LSI and its Subsidiaries on a consolidated basis.
"Significant Subsidiary" shall mean, at any time, any Subsidiary
of LSI having at such time total assets, as of the last day of the
preceding fiscal quarter, having a net book value in excess of
$10,000,000 (exclusive of intercompany assets and liabilities), based
upon LSI's most recent annual or quarterly Financial Statements
delivered to Agent under Subparagraph 5.01(a).
"Solvent" shall mean, with respect to any Person, that as of the
date of determination, (a) the then fair saleable value of the property
of such Person is (ii) greater than the total amount of liabilities
(including reasonably anticipated liabilities with respect to contingent
obligations) of such Person and (ii) greater than the amount that will
be required to pay the probable liabilities on such Person's then
existing debts as they
19
<PAGE> 24
become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person, and (b) such
Person has not incurred and does not intend to incur, or does not
believe that it will incur, debts beyond its ability to pay such debts
as they become due.
"Subordinated Debt" shall mean any Indebtedness of LSI or any of
its Subsidiaries under which principal payments will become due and
payable no earlier than the first anniversary of the Revolving
Termination Date and which is subordinated on terms and conditions
reasonably acceptable to Required Lenders; provided, that any
Subordinated Debt having subordination provisions no more favorable to
the holder than those contained in LSI's 5 1/2% Convertible Subordinated
Notes Due 2001 and the indenture relating thereto shall be deemed to be
reasonably acceptable to the Required Lenders for the purposes hereof.
"Subsidiary" shall mean any corporation, association,
partnership, joint venture or other business entity of which more than
fifty percent (50%) of the voting stock or other equity interest is
owned directly or indirectly by any Person or one or more of the other
Subsidiaries of such Person or a combination thereof. (All references in
this Agreement and the other Credit Documents to Subsidiaries of LSI
shall, unless otherwise indicated, include LLJS and its Subsidiaries.)
"Swap Termination Value" shall mean, in respect of any one or
more Rate Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Rate Contracts, (a) for
any date on or after the date such Rate Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the mark-to-market value(s)
for such Rate Contracts, as determined based upon one or more mid-
market or other readily available quotations provided by any recognized
dealer in such Rate Contracts (which may include any Lender).
"Symbios" shall mean Symbios, Inc., a Delaware corporation.
"Symbios Acquisition" shall mean the acquisition by LSI of the
capital stock of Symbios pursuant to the Symbios Acquisition Documents.
"Symbios Acquisition Documents" shall mean the Stock Purchase
Agreement, dated as of June 28, 1998, by and among LSI, Hyundai
Electronics America, a California corporation, and Hyundai Electronics
Industries Ltd., a legal entity under the laws of the Republic of Korea,
and all material documents, instruments and agreements delivered to or
by LSI in connection with the Symbios Acquisition.
"Taxes" shall have the meaning given to such term in Subparagraph
2.11(a).
"TIBO Rate" shall mean, with respect to any Interest Period for
the Japanese Loans in the Japanese Borrowing, a rate per annum equal to
the quotient (rounded upward if necessary to the nearest 1/100 of one
percent) of (a) the rate per annum appearing on the Reuter Screen TIBM
Page (All Banks Average) (or any successor
20
<PAGE> 25
publication) on the second Business Day prior to the first day of such
Interest Period at or about 11:00 A.M. (Tokyo time) (for delivery on the
first day of such Interest Period) in an amount substantially equal to
Agent's Japanese Loan for the Japanese Borrowing and for a term
comparable to such Interest Period, divided by (b) one minus the Reserve
Requirement for such Japanese Loan in effect from time to time. If for
any reason rates are not available as provided in clause (a) of the
preceding sentence, the rate to be used in clause (a) shall be the rate
per annum at which Yen deposits are offered to Agent (or if Agent does
not have a Japanese Loan at such time, another Japanese Lender selected
by Agent) in the Tokyo interbank market or, if such rate is not
available, the rate at which Yen deposits are offered to Agent in, or by
Agent to major banks in, any offshore interbank market selected by
Agent, in each case on the second Business Day prior to the commencement
of such Interest Period at or about 11:00 A.M. (Tokyo time) (for
delivery on the first day of such Interest Period) for a term comparable
to such Interest Period and in an amount approximately equal to the
amount of the Japanese Loan to be made or funded by Agent (or such other
Japanese Lender selected by Agent) as part of the
Japanese Borrowing. The TIBO Rate shall be adjusted automatically
as to all Japanese Loans then outstanding as of the effective date of
any change in the Reserve Requirement.
"Total Capital" shall mean the sum of Equity Capital, Senior Debt
and Subordinated Debt.
"Total Japanese Commitment" shall mean Eight Billion Six Hundred
Million Yen (Y8,600,000,000).
"Total U.S. Revolving Commitment" shall mean Five Hundred Fifteen
Million Five Hundred Twenty-One Thousand Four Hundred Seventy-Four
Dollars and Fifty-One Cents ($515,521,474.51), or such amount as reduced
pursuant to Subparagraph 2.03(b) or Subparagraph 2.03(c).
"Total U.S. 364 Day Commitment" shall mean One Hundred Fifty
Million Dollars ($150,000,000), or such amount as reduced pursuant to
Subparagraph 2.03(b) or Subparagraph 2.03(c).
"Type" shall mean, with respect to any U.S. Loan or U.S.
Borrowing at any time, the classification of such Loan or Borrowing by
the type of interest rate it then bears, whether an interest rate based
upon the Base Rate or the LIBO Rate.
"Unfunded Pension Liability" shall mean the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that Plan's assets, determined in accordance with the
assumptions used for funding the Plan pursuant to Section 412 of the IRC
for the applicable plan year.
"United States" and "U.S." each shall mean the United States of
America.
"U.S. Borrowing" shall mean a U.S. Revolving Borrowing or a U.S.
364 Day Borrowing.
21
<PAGE> 26
"U.S. Closing Date" shall mean the date, not later than August
31, 1998, designated by LSI in the initial Notice of U.S. Borrowing as
the date on which the initial U.S. Borrowing is to occur.
"U.S. Lender" shall mean a Lender having a U.S. Revolving
Commitment or a U.S. 364 Day Commitment or, after the U.S. 364 Day
Termination Date, a Lender having a U.S. Loan or a U.S. Revolving
Commitment.
"U.S. Loan" shall mean a U.S. Revolving Loan or a U.S. 364 Day
Loan.
"U.S. Revolving Borrowing" shall mean a borrowing by LSI
consisting of U.S. Revolving Loans made by U.S. Lenders on the same date
and of the same Type pursuant to a single Notice of U.S. Borrowing. Any
reference to a U.S. Revolving Borrowing shall include the U.S. Revolving
Loans made pursuant to such U.S. Revolving Borrowing.
"U.S. Revolving Commitment" shall mean, with respect to each
Lender, the Dollar amount set forth under the caption "U.S. Revolving
Commitment" opposite such Lender's name on Part A of Schedule I, or, if
changed, such Dollar amount as may be set forth for such Lender in the
Register.
"U.S. Revolving Commitment Fees" shall have the meaning given to
that term in Subparagraph 2.04(b).
"U.S. Revolving Loan" has the meaning given to that term in
Subparagraph 2.01(a).
"U.S. 364 Day Borrowing" shall mean a borrowing by LSI consisting
of U.S. 364 Day Loans made by U.S. Lenders on the same date and of the
same Type pursuant to a single Notice of U.S. Borrowing. Any reference
to a U.S. 364 Day Borrowing shall include the U.S. 364 Day Loans made
pursuant to such U.S. 364 Day Borrowing.
"U.S. 364 Day Commitment" shall mean, with respect to each
Lender, the Dollar amount set forth under the caption "U.S. 364 Day
Commitment" opposite such Lender's name on Part A of Schedule I, or, if
changed, such Dollar amount as may be set forth for such Lender in the
Register.
"U.S. 364 Day Commitment Fees" shall have the meaning given to
that term in Subparagraph 2.04(b).
"U.S. 364 Day Loan" has the meaning given to that term in
Subparagraph 2.01(b).
"U.S. 364 Day Termination Date" shall mean August 3, 1999, or
such earlier date as the Total U.S. 364 Day Commitment is cancelled
pursuant to Subparagraph 2.03(c).
"Yen" and "Y" shall mean the lawful currency of Japan and, in
relation to any payment under this Agreement, same day or immediately
available funds.
22
<PAGE> 27
"Yen Equivalent" shall mean, as to any amount denominated in
Dollars as of any date of determination, the equivalent amount in Yen as
determined by Agent on the basis of the Telegraphic Transfer Mid Rate
quoted by Bank of Tokyo Mitsubishi at or about 10:00 a.m. (Tokyo time)
on such date.
1.02. GAAP. Unless otherwise indicated in this Agreement or any other
Credit Document, all accounting terms used in this Agreement or any other Credit
Document shall be construed, and all accounting and financial computations
hereunder or thereunder shall be computed, in accordance with GAAP. If GAAP
changes during the term of this Agreement such that any covenants contained
herein would then be calculated in a different manner or with different
components, Borrowers, Lenders and Agent agree to negotiate in good faith to
amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrowers' financial condition to
substantially the same criteria as were effective prior to such change in GAAP;
provided, however, that, until Borrowers, Lenders and Agent so amend this
Agreement, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
1.03. Headings. Headings in this Agreement and each of the other Credit
Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
1.04. Plural Terms. All terms defined in this Agreement or any other
Credit Document in the singular form shall have comparable meanings when used in
the plural form and vice versa.
1.05. Governing Law. Unless otherwise expressly provided in any Credit
Document, this Agreement and each of the other Credit Documents shall be
governed by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
1.06. English Language. This Agreement and the other Credit Documents
are executed and shall be construed in the English language. All instruments,
agreements, certificates, opinions and other documents to be furnished or
communications to be given or made under this Agreement or any other Credit
Document shall be in the English language, except that LLJS may deliver the
Japanese language version of (a) any LLJS corporate document initially prepared
in the ordinary course of its business in the Japanese language or (b) any
certificate or other document prepared by a Japanese Governmental Authority in
the Japanese language, provided that, in each such case, the Japanese language
version of such document is delivered along with an English language translation
thereof which shall be binding upon Borrowers.
1.07. Construction. This Agreement is the result of negotiations among,
and has been reviewed by, Borrowers, each Lender, Agent and their respective
counsel. Accordingly, this Agreement shall be deemed to be the product of all
parties hereto, and no ambiguity shall be construed in favor of or against
either Borrower, any Lender or Agent.
1.08. Entire Agreement. This Agreement and each of the other Credit
Documents, taken together, constitute and contain the entire agreement of
Borrowers, Lenders and Agent and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written or oral, respecting the subject matter hereof
23
<PAGE> 28
(excluding the Agent's Fee Letter and the Agent's Syndication Letter but
including the commitment letter dated as of July 17, 1998 between LSI and ABN
AMRO).
1.09. Calculation of Interest and Fees. All calculations of interest and
fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 360 days for actual
days elapsed, except that during any period any Loan bears interest based upon
the Prime Rate, such interest shall be calculated on the basis of a year of 365
or 366 days, as appropriate, for actual days elapsed.
1.10. References.
(a) References in this Agreement to "Recitals," "Sections,"
"Paragraphs," "Subparagraphs," "Exhibits" and "Schedules" are to
recitals, sections, paragraphs, subparagraphs, exhibits and schedules
therein and thereto unless otherwise indicated.
(b) References in this Agreement or any other Credit Document to
any document, instrument or agreement (i) shall include all exhibits,
schedules and other attachments thereto, (ii) shall include all
documents, instruments or agreements issued or executed in replacement
thereof if such replacement is permitted hereby, and (iii) shall mean
such document, instrument or agreement, or replacement or predecessor
thereto, as amended, modified and supplemented from time to time and in
effect at any given time if such amendment, modification or supplement
is permitted hereby.
(c) References in this Agreement or any other Credit Document to
any Governmental Rule (i) shall include any successor Governmental Rule,
(ii) shall include all rules and regulations promulgated under such
Governmental Rule (or any successor Governmental Rule), and (iii) shall
mean such Governmental Rule (or successor Governmental Rule) and such
rules and regulations, as amended, modified, codified or reenacted from
time to time and in effect at any given time.
(d) References in this Agreement or any other Credit Document to
any Person in a particular capacity (i) shall include any permitted
successors to and assigns of such Person in that capacity and (ii) shall
exclude such Person individually or in any other capacity.
1.11. Other Interpretive Provisions. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement or any other
Credit Document shall refer to this Agreement or such other Credit Document, as
the case may be, as a whole and not to any particular provision of this
Agreement or such other Credit Document, as the case may be. The words "include"
and "including" and words of similar import when used in this Agreement or any
other Credit Document shall not be construed to be limiting or exclusive. In the
event of any inconsistency between the terms of this Agreement and the terms of
any other Credit Document, the terms of this Agreement shall govern.
24
<PAGE> 29
SECTION II. CREDIT FACILITIES.
2.01. U.S. Borrowings.
(a) U.S. Revolving Borrowing Availability. Subject to the terms
and conditions of this Agreement (including the amount limitations set
forth in Paragraph 2.03), each U.S. Lender with a U.S. Revolving
Commitment severally agrees to advance to LSI from time to time during
the period beginning on the U.S. Closing Date and ending on the
Revolving Termination Date such loans in Dollars as LSI may request
under this Subparagraph 2.01(a) (individually, a "U.S. Revolving Loan");
provided, however, that
(i) the aggregate principal amount of all U.S. Revolving
Loans made by such Lender at any time outstanding shall not
exceed such Lender's U.S. Revolving Commitment at such time; and
(ii) the aggregate principal amount of all U.S. Revolving
Loans made by all Lenders at any time outstanding shall not
exceed the Total U.S. Revolving Commitment at such time.
All U.S. Revolving Loans shall be made on a pro rata basis by all U.S.
Lenders with U.S. Revolving Commitments in accordance with their
respective Proportionate Shares of the Total U.S. Revolving Commitment,
with each U.S. Revolving Borrowing to be comprised of a U.S. Revolving
Loan by each U.S. Lender with a U.S. Revolving Commitment equal to such
Lender's Proportionate Share of such U.S. Revolving Borrowing. Except as
otherwise provided herein, LSI may borrow, repay and reborrow U.S.
Revolving Loans until the Revolving Termination Date.
(b) U.S. 364 Day Borrowing Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations set forth
in Paragraph 2.03), each U.S. Lender with a U.S. 364 Day Commitment
severally agrees to advance to LSI from time to time during the period
beginning on the U.S. Closing Date and ending on the U.S. 364 Day
Termination Date such loans in Dollars as LSI may request under this
Subparagraph 2.01(b) (individually, a "U.S. 364 Day Loan"); provided,
however, that
(i) the aggregate principal amount of all U.S. 364 Day
Loans made by such Lender at any time outstanding shall not
exceed such Lender's U.S. 364 Day Commitment at such time; and
(ii) the aggregate principal amount of all U.S. 364 Day
Loans made by all Lenders at any time outstanding shall not
exceed the Total U.S. 364 Day Commitment at such time.
All U.S. 364 Day Loans shall be made on a pro rata basis by all U.S.
Lenders with U.S. 364 Day Commitments in accordance with their
respective Proportionate Shares of the Total U.S. 364 Day Commitment,
with each U.S. 364 Day Borrowing to be comprised of a U.S. 364 Day Loan
by each U.S. Lender with a U.S. 364 Day Commitment equal to such
Lender's Proportionate Share of such U.S. 364 Day Borrowing. Except as
otherwise
25
<PAGE> 30
provided herein, LSI may borrow, repay and reborrow U.S. 364 Day Loans
until the U.S. 364 Day Termination Date.
(c) Notice of Borrowing. LSI shall request each U.S. Borrowing by
delivering to Agent an irrevocable written notice in the form of Exhibit
A, appropriately completed (a "Notice of U.S. Borrowing"), which
specifies, among other things:
(i) Whether the requested U.S. Borrowing is a U.S.
Revolving Borrowing or a U.S. 364 Day Borrowing;
(ii) The principal amount of the requested U.S. Borrowing,
which shall be in the minimum amount of $15,000,000 or an
integral multiple of $5,000,000 in excess thereof;
(iii) Whether the requested U.S. Borrowing is to consist
of Base Rate Loans or LIBOR Loans;
(iv) If the requested U.S. Borrowing is to consist of
LIBOR Loans, the initial Interest Period selected by LSI for such
LIBOR Loans in accordance with Subparagraph 2.01(f); and
(v) The date of the requested U.S. Borrowing, which (A) in
the case of a U.S. Revolving Borrowing, shall be a Business Day
not later than the Revolving Termination Date, and (B) in the
case of a U.S. 364 Day Borrowing, shall be a Business Day not
later than the U.S. 364 Day Termination Date;
Provided, however, that all U.S. Borrowings made during the period
commencing on the date of this Agreement and ending three (3) Business
Days thereafter shall consist solely of Base Rate Loans. LSI shall give
each Notice of U.S. Borrowing to Agent at least three (3) Business Days
before the date of the requested U.S. Borrowing in the case of a U.S.
Borrowing consisting of LIBOR Loans and at least one (1) Business Day
before the date of the requested U.S. Borrowing in the case of a U.S.
Borrowing consisting of Base Rate Loans. Each Notice of U.S. Borrowing
shall be delivered by first-class mail or facsimile to Agent at the
office or facsimile number and during the hours specified in Paragraph
8.01; provided, however, that LSI shall promptly deliver to Agent the
original of any Notice of U.S. Borrowing initially delivered by
facsimile. Agent shall promptly notify each U.S. Lender with a U.S.
Revolving Commitment of each Notice of U.S. Borrowing requesting a U.S.
Revolving Borrowing and of the amount and Type of (and, if applicable,
the Interest Period for) each U.S. Revolving Loan to be made by such
Lender as part of the requested U.S. Revolving Borrowing, and Agent
shall promptly notify each U.S. Lender with a U.S. 364 Day Commitment of
each Notice of U.S. Borrowing requesting a U.S. 364 Day Borrowing and of
the amount and Type of (and, if applicable, the Interest Period for)
each U.S. 364 Day Loan to be made by such Lender as part of the
requested U.S. 364 Day Borrowing.
(d) Interest Rates. LSI shall pay interest on the unpaid
principal amount of each U.S. Loan from the date of such U.S. Loan until
the Maturity thereof, at one of the following rates per annum:
26
<PAGE> 31
(i) During such periods as such U.S. Loan is a Base Rate
Loan, at a rate per annum equal to the Base Rate plus the
Applicable Margin therefor, such rate to change from time to time
as the Applicable Margin or Base Rate shall change; and
(ii) During such periods as such U.S. Loan is a LIBOR
Loan, at a rate per annum equal at all times during each Interest
Period for such LIBOR Loan to the LIBO Rate for such Interest
Period plus the Applicable Margin therefor, such rate to change
from time to time as the Applicable Margin shall change.
All U.S. Loans in each U.S. Borrowing shall, at any given time prior to
Maturity, bear interest at one, and only one, of the above rates. The
number of U.S. Borrowings consisting of LIBOR Loans shall not exceed
four (4) at any time.
(e) Conversion of U.S. Loans. LSI may convert any U.S. Borrowing
from one Type of U.S. Borrowing to the other Type; provided, however,
that any conversion of a U.S. Borrowing consisting of LIBOR Loans into a
U.S. Borrowing consisting of Base Rate Loans shall be made on, and only
on, the last day of an Interest Period for such LIBOR Loans. LSI shall
request such a conversion by an irrevocable written notice to Agent in
the form of Exhibit B, appropriately completed (a "Notice of U.S.
Borrowing Conversion"), which specifies, among other things:
(i) The U.S. Borrowing which is to be converted;
(ii) The Type of U.S. Borrowing into which it is to be
converted;
(iii) If any U.S. Borrowing is to be converted into a U.S.
Borrowing consisting of LIBOR Loans, the initial Interest Period
selected by LSI for such LIBOR Loans in accordance with
Subparagraph 2.01(f); provided, that no such conversion shall be
made if a Default has occurred and is continuing; and
(iv) The date of the requested conversion, which shall be
a Business Day.
LSI shall give each Notice of U.S. Borrowing Conversion to Agent at
least three (3) Business Days before the date of the requested
conversion. Each Notice of U.S. Borrowing Conversion shall be delivered
by first-class mail or facsimile to Agent at the office or to the
facsimile number and during the hours specified in Paragraph 8.01;
provided, however, that LSI shall promptly deliver to Agent the original
of any Notice of U.S. Borrowing Conversion initially delivered by
facsimile. Agent shall promptly notify each U.S. Lender with U.S.
Revolving Loans of the contents of each Notice of U.S. Borrowing
Conversion relating to such U.S. Revolving Loans, and Agent shall
promptly notify each U.S. Lender with U.S. 364 Day Loans of the contents
of each Notice of U.S. Borrowing Conversion relating to such U.S. 364
Day Loans.
27
<PAGE> 32
(f) LIBOR Loan Interest Periods.
(i) The initial and each subsequent Interest Period
selected by LSI for a U.S. Borrowing consisting of LIBOR Loans
shall be one (1), two (2), three (3) or six (6) months; provided,
however, that (A) any Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the
next succeeding Business Day unless such next Business Day falls
in another calendar month, in which case such Interest Period
shall end on the immediately preceding Business Day; (B) any
Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month; (C) with respect to any U.S. 364 Day Borrowing, no
Interest Period shall end after the U.S. 364 Day Termination
Date; and (D) with respect to any U.S. Revolving Borrowing, no
Interest Period shall end after a Scheduled Reduction Date
unless, after giving effect to such Interest Period, the
aggregate principal amount of all U.S. Revolving Borrowings
consisting of Base Rate Loans and LIBOR Loans having Interest
Periods ending on or prior to such Scheduled Reduction Date
equals or exceeds the amount of the Total U.S. Revolving
Commitment on such Scheduled Reduction Date, and no Interest
Period shall end after the Revolving Termination Date.
(ii) LSI shall notify Agent by an irrevocable written
notice in the form of Exhibit C, appropriately completed (a
"Notice of U.S. Borrowing Interest Period Selection"), at least
three (3) Business Days prior to the last day of each Interest
Period for a U.S. Borrowing consisting of LIBOR Loans of the
Interest Period selected by LSI for the next succeeding Interest
Period for such LIBOR Loans. Each Notice of U.S. Borrowing
Interest Period Selection shall be given to Agent by first-class
mail or facsimile to the office or the facsimile number and
during the hours specified in Paragraph 8.01; provided, however,
that LSI shall promptly deliver to Agent the original of any
Notice of U.S. Borrowing Interest Period Selection initially
delivered by facsimile. If LSI fails to notify Agent of the next
Interest Period for a U.S. Borrowing consisting of LIBOR Loans in
accordance with this Subparagraph 2.01(f), such LIBOR Loans shall
automatically convert to Base Rate Loans on the last day of the
current Interest Period therefor.
(g) Scheduled Payments. Unless earlier repayment is required by
Subparagraph 2.05(c), LSI shall repay the principal amount of the U.S.
Revolving Loans on the Revolving Termination Date. LSI shall repay the
principal amount of the U.S. 364 Day Loans on the U.S. 364 Day
Termination Date. LSI shall pay accrued interest on the unpaid principal
amount of each U.S. Loan in arrears (i) in the case of a Base Rate Loan,
on the last day in each March, June, September and December (commencing
with the first such day after the U.S. Closing Date), (ii) in the case
of a LIBOR Loan, on the last day of each Interest Period (and if any
such Interest Period is equal to or longer than three (3) months, every
three (3) months); and (iii) in the case of all U.S. Loans, upon
prepayment (to the extent thereof) and at Maturity.
28
<PAGE> 33
(h) Purpose. LSI shall use the proceeds of the U.S. Borrowings to
consummate the Symbios Acquisition, repay in full all amounts owing
under the Outstanding U.S. Loan Facility and for general corporate
purposes.
2.02. Japanese Borrowing.
(a) Availability. Subject to the terms and conditions of this
Agreement (including the amount limitations set forth in Paragraph
2.03), each Japanese Lender severally agrees to advance to LLJS in a
single advance on the Japanese Closing Date a term loan in Yen under
this Paragraph 2.02 (individually, a "Japanese Loan"); provided,
however, that
(i) the aggregate principal amount of all Japanese Loans
made by such Lender shall not exceed such Lender's Japanese
Commitment on such date; and
(ii) the aggregate principal amount of the Japanese
Borrowing shall not exceed the Total Japanese Commitment.
All Japanese Loans shall be made on a pro rata basis by all Japanese
Lenders in accordance with their respective Proportionate Shares of the
Total Japanese Commitment. LLJS may not reborrow the principal amount of
any Japanese Loan after repayment or prepayment thereof.
(b) Notice of Borrowing. LLJS shall request the Japanese
Borrowing by delivering to Agent an irrevocable written notice in the
form of Exhibit D, appropriately completed (the "Notice of Japanese
Borrowing"), which specifies, among other things:
(i) The principal amount of the Japanese Borrowing, which
shall be in the minimum amount of Y1,000,000,000 or an integral
multiple of Y100,000,000 in excess thereof;
(ii) The initial Interest Period selected by LLJS for the
Japanese Borrowing in accordance with Subparagraph 2.02(d); and
(iii) The date of the Japanese Borrowing, which shall be a
Business Day not later than August 31, 1998.
LLJS shall give the Notice of Japanese Borrowing to Agent at least four
(4) Business Days before the Japanese Closing Date. The Notice of
Japanese Borrowing shall be delivered by first-class mail or facsimile
to Agent at the office or facsimile number and during the hours
specified in Paragraph 8.01; provided, however, that LLJS shall promptly
deliver to Agent the original of the Notice of Japanese Borrowing if
initially delivered by facsimile. Agent shall promptly notify each
Japanese Lender of the amount of and Interest Period for each Japanese
Loan to be made by such Lender as part of the Japanese Borrowing.
(c) Interest Rates. LLJS shall pay interest on the unpaid
principal amount of each Japanese Loan from the date of such Japanese
Loan until the Maturity thereof, at a
29
<PAGE> 34
rate per annum equal at all times during each Interest Period to the
TIBO Rate for such Interest Period plus the Applicable Margin therefor,
such rate to change from time to time as the Applicable Margin shall
change.
(d) Japanese Borrowing Interest Periods.
(i) The initial and each subsequent Interest Period
selected by LLJS for the Japanese Borrowing shall be one (1), two
(2), three (3) or six (6) months; provided, however, that (A) any
Interest Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business
Day unless such next Business Day falls in another calendar
month, in which case such Interest Period shall end on the
immediately preceding Business Day; (B) any Interest Period which
begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month; and (C) no Interest
Period shall end after the Revolving Termination Date.
(ii) LLJS shall notify Agent by an irrevocable written
notice in the form of Exhibit E, appropriately completed (a
"Notice of Japanese Borrowing Interest Period Selection"), at
least four (4) Business Days prior to the last day of each
Interest Period for the Japanese Borrowing of the Interest Period
selected by LLJS for the next succeeding Interest Period for the
Japanese Borrowing. Each Notice of Japanese Borrowing Interest
Period Selection shall be given to Agent by first-class mail or
facsimile to the office or the facsimile number and during the
hours specified in Paragraph 8.01; provided, however, that LLJS
shall promptly deliver to Agent the original of any Notice of
Japanese Borrowing Interest Period Selection initially delivered
by facsimile. If LLJS fails to notify Agent of the next Interest
Period for the Japanese Borrowing in accordance with this
Subparagraph 2.02(d), the Japanese Borrowing shall automatically
have an Interest Period of one (1) month following the current
Interest Period.
(e) Scheduled Payments. Unless earlier repayment is required by
Subparagraph 2.05(c), LLJS shall repay the principal amount of the
Japanese Borrowing on the Revolving Termination Date. LLJS shall pay
accrued interest on the unpaid principal amount of each Japanese Loan in
arrears on the last day of each Interest Period (and if any such
Interest Period is equal to or longer than three (3) months, every three
(3) months), upon prepayment (to the extent thereof) and at Maturity.
(f) Purpose. LLJS shall use the proceeds of the Japanese
Borrowing to repay in full the Outstanding Japanese Loan Facility and
for its general corporate purposes.
2.03. Amount Limitations, Commitment Reductions, Etc.
(a) Total Commitments. The aggregate principal amount of all U.S.
Revolving Loans outstanding at any time shall not exceed the Total U.S.
Revolving Commitment at such time, and the aggregate principal amount of
all U.S. 364 Day Loans
30
<PAGE> 35
outstanding at any time shall not exceed the Total U.S. 364 Day
Commitment. Until the Outstanding Japanese Loan Facility is terminated
and repaid in full, the unused amount of the Commitments (including the
Yen Equivalent of the U.S. Revolving Commitments and the U.S. 364 Day
Commitments) shall not be less than the aggregate amount outstanding
under the Outstanding Japanese Loan Facility.
(b) Mandatory Reduction of Commitments. The Commitments shall be
reduced as follows:
(i) On each Scheduled Reduction Date, the Total U.S.
Revolving Commitment shall be permanently reduced by an amount
equal to Thirty-Four Million Three Hundred Seventy-Five Thousand
Dollars ($34,375,000).
(ii) If at any time after the Initial Closing Date LSI or
any of its Subsidiaries sells assets other than in the ordinary
course of business (including any sale of assets to be leased
back in connection with a "synthetic" lease of such assets), or
sells or issues any Indebtedness for borrowed money (including
Indebtedness evidenced by notes, bonds, debentures or other
similar instruments), yielding Net Proceeds which exceed
$50,000,000 for any single transaction or series of related
transactions, immediately after such sale or issuance the Total
U.S. 364 Day Commitment shall be permanently reduced by an
aggregate amount equal to the Net Proceeds of such sale or
issuance and, if such Net Proceeds exceed the Total U.S. 364 Day
Commitment, the Total U.S. Revolving Commitment shall be
permanently reduced by an aggregate amount equal to such excess
Net Proceeds; provided, that with respect to the Net Proceeds
from "synthetic" leases or Indebtedness for borrowed money, LSI
shall have no obligation under this provision to reduce the Total
U.S. Revolving Commitment if, after taking into account any
voluntary reduction pursuant to Subparagraph 2.03(c), such
reduction would reduce the aggregate of the Total U.S. Revolving
Commitment and the Dollar Equivalent of the outstanding principal
amount of the Japanese Loans below $300,000,000.
(c) Voluntary Reduction or Cancellation of Commitments. LSI may,
upon three (3) Business Days written notice to Agent, permanently reduce
or cancel in their entirety either of the Total U.S. Revolving
Commitment or the Total 364 Day Commitment; provided, however, that:
(i) Any reduction of the Total U.S. Revolving Commitment
shall be in the amount of $15,000,000 or an integral multiple of
$5,000,000 in excess thereof and LSI shall not reduce or cancel
the Total U.S. Revolving Commitment prior to the Revolving
Termination Date, if, after giving effect to such reduction, the
aggregate principal amount of all U.S. Revolving Loans then
outstanding would exceed the Total U.S. Revolving Commitment as
so reduced or, after giving effect to such cancellation, any
U.S. Revolving Loan would then remain outstanding; and
31
<PAGE> 36
(ii) Any reduction of the Total U.S. 364 Day Commitment
shall be in the amount of $15,000,000 or an integral multiple of
$5,000,000 in excess thereof and LSI shall not reduce or cancel
the Total U.S. 364 Day Commitment prior to the U.S. 364 Day
Termination Date, if, after giving effect to such reduction, the
aggregate principal amount of all U.S. 364 Day Loans then
outstanding would exceed the Total U.S. 364 Day Commitment as so
reduced or, after giving effect to such cancellation, any U.S.
364 Day Loan would then remain outstanding.
(d) Effect of Commitment Reductions. From the effective date of
any reduction of any of the Commitments, the Commitment Fees payable
with respect to such Commitments pursuant to Subparagraph 2.04(b) shall
be computed on the basis of the Commitments as so reduced. Once reduced
or cancelled, Commitments may not be increased or reinstated without the
prior written consent of all Lenders holding Loans of the type covered
by such Commitments. Any reduction of the Total U.S. Revolving
Commitment or the Total U.S. 364 Day Commitment pursuant to Subparagraph
2.03(b) shall be applied ratably to reduce each Lender's U.S. Revolving
Commitment or U.S. 364 Day Commitment, as the case may be, in accordance
with clause (i) of Subparagraph 2.09(a). Any reduction of the Total U.S.
Revolving Commitment pursuant to clause (ii) of Subparagraph 2.03(b) or
Subparagraph 2.03(c) shall be in addition to, and not in substitution
for, the reduction of the Total U.S. Revolving Commitment required by
clause (i) of Subparagraph 2.03(b).
2.04. Fees.
(a) Agent's Fee. LSI shall pay to Agent, for its own account,
agent's fees and other compensation in the amounts and at the times set
forth in the Agent's Fee Letter and the Agent's Syndication Letter.
(b) Commitment Fees.
(i) LSI shall pay to Agent, for the ratable benefit of
U.S. Lenders with U.S. Revolving Commitments as provided in
clause (iv) of Subparagraph 2.09(a), commitment fees (the "U.S.
Revolving Commitment Fees") equal to the per annum percentage
which is determined pursuant to the Pricing Grid of the daily
average difference between the Total U.S. Revolving Commitment
and the aggregate principal amount of all U.S. Revolving Loans
outstanding for each day during the period beginning on the date
of this Agreement and ending on the Revolving Termination Date.
LSI shall pay the U.S. Revolving Commitment Fees in arrears on
the last day in each March, June, September and December
(commencing with the first such day after the U.S. Closing Date)
and the Revolving Termination Date.
(ii) LSI shall pay to Agent, for the ratable benefit of
U.S. Lenders with U.S. 364 Day Commitments as provided in clause
(v) of Subparagraph 2.09(a), commitment fees (the "U.S. 364 Day
Commitment Fees") of twenty-two and one-half hundredths of one
percent (0.225%) of the daily average difference between the
Total U.S. 364 Day Commitment and the aggregate principal amount
32
<PAGE> 37
of all U.S. 364 Day Loans outstanding for each day during the
period beginning on the date of this Agreement and ending on the
U.S. 364 Day Termination Date. LSI shall pay the U.S. 364 Day
Commitment Fees in arrears on the last day in each March, June,
September and December (commencing with the first such day after
the U.S. Closing Date) and the U.S. 364 Day Termination Date.
2.05. Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any
Borrowing (whether such prepayment is an optional prepayment under
Subparagraph 2.05(b) or a mandatory prepayment required by any provision
of this Agreement or the other Credit Documents, including a prepayment
upon acceleration), the Borrower making such prepayment shall pay to the
applicable Lenders (i) all accrued interest to the date of such
prepayment on the amount prepaid and (ii) if such prepayment is the
prepayment of LIBOR Loans or the prepayment of Japanese Loans on a day
other than the last day of an Interest Period for such Loans, all
amounts payable to such Lenders pursuant to Paragraph 2.12.
(b) Optional Prepayments. At its option, LSI may, upon one (1)
Business Day notice to Agent in the case of Base Rate Loans or three (3)
Business Days notice to Agent in the case of LIBOR Loans, prepay any
U.S. Borrowing in part, in an aggregate principal amount of $15,000,000
or more, or in whole. At its option, LLJS may, upon four (4) Business
Days notice to Agent, prepay the Japanese Borrowing in part, in an
aggregate principal amount of Y1,000,000,000 or more, or in whole.
(c) Mandatory Prepayments. Borrowers shall prepay the Loans as
follows:
(i) If at any time the aggregate principal amount of all
U.S. Revolving Loans then outstanding exceeds the Total U.S.
Revolving Commitment at such time, LSI shall immediately prepay
U.S. Revolving Loans in an aggregate principal amount equal to
such excess.
(ii) If at any time the aggregate principal amount of all
U.S. 364 Day Loans then outstanding exceeds the Total U.S. 364
Day Commitment at such time, LSI shall immediately prepay U.S.
364 Day Loans in an aggregate principal amount equal to such
excess.
(iii) If at any time after the U.S. Closing Date LSI or
any of its Subsidiaries sells assets other than in the ordinary
course of business (including any sale of assets to be leased
back in connection with a "synthetic" lease of such assets), or
sells or issues any Indebtedness for borrowed money (including
Indebtedness evidenced by notes, bonds, debentures or other
similar instruments), yielding Net Proceeds which exceed
$50,000,000 for any single transaction or series of related
transactions, LSI shall, immediately after such sale or issuance,
prepay the U.S. 364 Day Loans in an aggregate amount equal to the
Net Proceeds of such sale or issuance and, if such Net Proceeds
exceed the total amount payable with respect to the U.S. 364 Day
Loans, LSI shall prepay the U.S.
33
<PAGE> 38
Revolving Loans in an aggregate amount equal to such excess Net
Proceeds; provided, that with respect to the Net Proceeds from
"synthetic" leases or Indebtedness for borrowed money, LSI shall
have no obligation under this provision to prepay such U.S. Loans
if, after taking into account any optional prepayment pursuant to
Subparagraph 2.05(b), such prepayment would reduce the aggregate
of the outstanding principal amount of the U.S. Loans and the
Dollar Equivalent of the outstanding principal amount of the
Japanese Loans below $300,000,000.
(d) Application of Prepayments. All prepayments of the U.S.
Borrowings shall, to the extent possible, be first applied to prepay
Base Rate Loans, if any, and then if any funds remain, to prepay LIBOR
Loans.
2.06. Other Payment Terms.
(a) Place and Manner.
(i) LSI shall make all payments due to each U.S. Lender or
Agent related to U.S. Borrowings by payments to Agent at Agent's
New York office located at the address specified in Paragraph
8.01, with each such payment due to a U.S. Lender to be for the
account of such Lender and such Lender's applicable Domestic
Lending Office or Euro-Dollar Lending Office.
(ii) LLJS shall make all payments due to each Japanese
Lender or Agent related to the Japanese Borrowing by payments to
Agent at Agent's Tokyo office located at the address specified in
Paragraph 8.01, with each such payment due to a Japanese Lender
to be for the account of such Lender and such Lender's Japanese
Lending Office.
(iii) Each Borrower shall, unless otherwise directed by
Agent, make all other payments due to each Lender or Agent
hereunder by payments to Agent's New York office located at the
address specified in Paragraph 8.01, with each such payment due
to a Lender to be for the account of such Lender and such
Lender's Applicable Lending Office.
(iv) Borrowers shall make all payments hereunder in the
lawful currency required by Subparagraph 2.06(c) and in same day
or immediately available funds and without deduction or offset
not later than 11:00 a.m. (New York time, in the case of any
payment to be made to Agent's New York office, or Tokyo time, in
the case of any payment to be made to Agent's Tokyo office) and
on the date due. Agent shall promptly disburse to each Lender
each payment received by Agent for the account of such Lender.
(b) Date. Whenever any payment due hereunder shall fall due on a
day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included in
the computation of interest or fees, as the case may be, unless such
next Business Day falls in another calendar month, in which case such
payment shall be due on the immediately preceding Business Day.
34
<PAGE> 39
(c) Currency of Payment.
(i) LSI shall pay principal of, interest on and all other
amounts related to U.S. Borrowings in Dollars, and LLJS shall pay
principal of, interest on and all other amounts related to the
Japanese Borrowing in Yen. Borrowers shall pay all other amounts
payable under this Agreement and the other Credit Documents in
Dollars. If, for any reason, LLJS is prohibited by any
Governmental Rule from making any required Yen payment hereunder
in Yen, LLJS shall make such payment in Dollars in the Dollar
Equivalent of such Yen amount.
(ii) If any amounts required to be paid by either Borrower
under this Agreement, any other Credit Document or any order,
judgment or award given or rendered in relation hereto or thereto
has to be converted from the currency (the "first currency") in
which the same is payable hereunder or thereunder into another
currency (the "second currency") for the purpose of (A) making or
filing a claim or proof against such Borrower with any
Governmental Authority, (B) obtaining an order or judgment in any
court or other tribunal or (C) enforcing any order or judgment
given or made in relation hereto, such Borrower shall, to the
fullest extent permitted by law, indemnify and hold harmless each
of the Persons to whom such amounts are payable from and against
any loss suffered as a result of any discrepancy between (1) the
rate of exchange used for such purpose to convert the amounts in
question from the first currency into the second currency and (2)
the rate or rates of exchange at which such Person may, using
reasonable efforts in the ordinary course of business, purchase
the first currency with the second currency upon receipt of a sum
paid to it in satisfaction, in whole or in part, of any such
order, judgment, claim or proof. The foregoing indemnity shall
constitute a separate obligation of each Borrower distinct from
their other respective obligations hereunder and shall survive
the giving or making of any judgment or order in relation to all
or any of such obligations. The respective obligations of
Borrowers under this Subparagraph 2.06(c) shall survive the
payment and performance of their respective Obligations and the
termination of this Agreement.
(d) Late Payments. If any amount required to be paid by either
Borrower under this Agreement or the other Credit Documents (including,
without limitation, principal or interest payable on any Loan, any fees
or any other amount) remains unpaid after such amount is due and after
the expiration of any applicable grace period, such Borrower shall pay
interest on the aggregate, outstanding balance of such amount from the
date due until such amount is paid in full at a per annum rate equal to
(i) in the case any amount payable in Dollars, the Base Rate plus two
percent (2.00%), such rate to change from time to time as the Base Rate
shall change, and (ii) in the case of any amount payable in Yen, the
Overnight Rate for such amount plus three percent (3.00%), such rate to
change from time to time as the Overnight Rate shall change.
(e) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable
under this Agreement
35
<PAGE> 40
or the other Credit Documents, second to accrued interest then due and
payable under this Agreement or the other Credit Documents and finally
to reduce the principal amount of outstanding Loans. Upon an Event of
Default or if the applicable Borrower does not specify the Borrowing to
which any payment relates, a payment in Dollars to be applied to accrued
interest or principal shall be applied to all accrued interest or
principal then due and payable on all outstanding U.S. Loans and a
payment in Yen to be applied to accrued interest or principal shall be
applied to all accrued interest or principal then due and payable on all
outstanding Japanese Loans.
(f) Failure to Pay Agent. Unless Agent shall have received notice
from a Borrower at least one (1) Business Day prior to the date on which
any payment is due to Lenders hereunder that such Borrower will not make
such payment in full, Agent shall be entitled to assume that such
Borrower has made or will make such payment in full to Agent on such
date and Agent may, in reliance upon such assumption, cause to be paid
to the applicable Lenders on such due date an amount equal to the amount
then due such Lenders. If and to the extent such Borrower shall not have
so made such payment in full to Agent, each such Lender shall repay to
Agent forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such amount
is distributed to such Lender until the date such Lender repays such
amount to Agent, at a per annum rate equal to (i) the Federal Funds Rate
for the first three (3) days and the Base Rate thereafter for any amount
in Dollars or (ii) the Overnight Rate plus one percent (1%) for any
amount in Yen. A certificate of Agent submitted to any Lender with
respect to any amount owing by such Lender under this Subparagraph
2.06(f) shall constitute prima facie evidence of such amount.
2.07. Loan Accounts; Notes.
(a) Loan Accounts. The obligation of each Borrower to repay the
Loans made to it by each Lender and to pay interest thereon at the rates
provided herein shall be evidenced by an account or accounts maintained
by such Lender on its books (individually, a "Loan Account"), except
that any Lender may request that its U.S. Loans be evidenced by a note
or notes pursuant to Subparagraph 2.07(b). Each Lender shall record in
its Loan Accounts (i) the date and amount of each Loan made by such
Lender, (ii) the interest rates applicable to each such Loan and the
effective dates of all changes thereto, (iii) the Interest Period for
each LIBOR Loan and each Japanese Loan, (iv) the date and amount of each
principal and interest payment on each Loan and (v) such other
information as such Lender may determine is necessary for the
computation of principal and interest payable to it by each Borrower
hereunder; provided, however, that any failure by a Lender to make, or
any error by any Lender in making, any such notation shall not affect
Borrowers' Obligations hereunder. The Loan Accounts shall constitute
prima facie evidence of the matters noted therein.
(b) Notes. If any Lender so requests, such Lender's U.S. Loans
shall be evidenced by one or more promissory notes in the form of
Exhibit F (individually, a "Note"), each of which shall be (i) payable
to the order of such Lender, (ii) in the amount of such Lender's U.S.
Revolving Commitment or U.S. 364 Day Commitment, as the case may be,
(iii) dated the U.S. Closing Date, and (iv) otherwise appropriately
completed.
36
<PAGE> 41
2.08. Loan Funding.
(a) Lender Funding and Disbursements to Borrowers.
(i) Each U.S. Lender shall, before 11:00 a.m. (New York
time) on the date of each U.S. Borrowing, make available to Agent
at Agent's New York office specified in Paragraph 8.01, in
immediately available funds, such Lender's Proportionate Share of
such U.S. Borrowing. After Agent's receipt of such funds and upon
satisfaction of the applicable conditions set forth in Section
III, Agent shall promptly disburse such funds to LSI no later
than 1:00 p.m. (New York time) in immediately available funds.
Agent shall disburse the proceeds of such U.S. Borrowing to the
account or accounts specified by LSI in the applicable Notice of
U.S. Borrowing.
(ii) Each Japanese Lender shall, before 10:00 a.m. (Tokyo
time) on the date of the Japanese Borrowing, make available to
Agent at Agent's Tokyo office specified in Paragraph 8.01, in
immediately available funds, such Lender's Proportionate Share of
the Japanese Borrowing. After Agent's receipt of such funds and
upon satisfaction of the applicable conditions set forth in
Section III, Agent shall promptly disburse such funds to LLJS no
later than 1:00 p.m. (Tokyo time) in immediately available funds.
Agent shall disburse the proceeds of the Japanese Borrowing to
the account or accounts specified by LLJS in the Notice of
Japanese Borrowing.
(b) Lender Failure to Fund. Unless Agent shall have received
notice from a Lender prior to the date of any Borrowing that such Lender
will not make available to Agent such Lender's Proportionate Share of
such Borrowing, Agent shall be entitled to assume that such Lender has
made or will make such portion available to Agent on the date of such
Borrowing in accordance with Subparagraph 2.08(a), and Agent may on such
date, in reliance upon such assumption, disburse or otherwise credit to
the applicable Borrower a corresponding amount. If any Lender does not
make the amount of its Proportionate Share of such Borrowing available
to Agent on or prior to the date of such Borrowing, such Lender shall
pay to Agent, on demand, interest which shall accrue on such amount from
the date of such Borrowing until such amount is paid to Agent at rates
equal to (i) the Federal Funds Rate for the first three (3) days and the
Base Rate thereafter for any amount in Dollars or (ii) the Overnight
Rate plus one percent (1%) for any amount in Yen. A certificate of Agent
submitted to any Lender with respect to any amount owing by such Lender
under this Subparagraph 2.08(b) shall constitute prima facie evidence of
such amount. If the amount of any Lender's Proportionate Share of any
Borrowing is not paid to Agent by such Lender within three (3) Business
Days after the date of such Borrowing, the applicable Borrower shall
repay such amount to Agent, on demand, together with interest thereon,
for each day from the date such amount was disbursed to such Borrower
until the date such amount is repaid to Agent, at the interest rate
applicable at the time to the Loans comprising such Borrowing.
(c) Lenders' Obligations Several. The failure of any Lender to
make a Loan to be made by it as part of any Borrowing shall not relieve
any other Lender of its
37
<PAGE> 42
obligation hereunder to make its Loan as part of such Borrowing, but no
Lender shall be obligated in any way to make any Loan which another
Lender has failed or refused to make or otherwise be in any way
responsible for the failure or refusal of any other Lender to make any
Loan required to be made by such other Lender.
2.09. Pro Rata Treatment.
(a) Borrowings, Commitment Reductions, Etc. Except as otherwise
provided herein:
(i) Each U.S. Revolving Borrowing and reduction in the
Total U.S. Revolving Commitment shall be made or shared by U.S.
Lenders with U.S. Revolving Commitments pro rata according to
their applicable respective U.S. Revolving Commitments, each U.S.
364 Day Borrowing and reduction in the Total U.S. 364 Day
Commitment shall be made or shared by U.S. Lenders with U.S. 364
Day Commitments pro rata according to their applicable respective
U.S. 364 Day Commitments, and the Japanese Borrowing shall be
made by Japanese Lenders pro rata according to their applicable
respective Japanese Commitments;
(ii) Each payment of principal on Loans in any Borrowing
shall be shared among Lenders which made or funded the Loans in
such Borrowing pro rata according to the respective unpaid
principal amounts of such Loans then owed to such Lenders;
(iii) Each payment of interest on Loans in any Borrowing
shall be shared among Lenders which made or funded the Loans in
such Borrowing pro rata according to (A) the respective unpaid
principal amounts of such Loans so made or funded by such Lenders
and (B) the dates on which such Lenders so made or funded such
Loans;
(iv) Each payment of U.S. Revolving Commitment Fees shall
be shared among U.S. Lenders with U.S. Revolving Commitments
(except for Defaulting Lenders) pro rata according to (A) their
respective Proportionate Shares of the Total U.S. Revolving
Commitment and (B) in the case of each U.S. Lender which becomes
a U.S. Lender with a U.S. Revolving Commitment hereunder after
the date hereof and before the Revolving Termination Date, the
date upon which such U.S. Lender so became a U.S. Lender with a
U.S. Revolving Commitment;
(v) Each payment of U.S. 364 Day Commitment Fees shall be
shared among U.S. Lenders with U.S. 364 Day Commitments (except
for Defaulting Lenders) pro rata according to (A) their
respective Proportionate Shares of the Total U.S. 364 Day
Commitment and (B) in the case of each U.S. Lender which becomes
a U.S. Lender with a U.S. 364 Day Commitment hereunder after the
date hereof and before the U.S. 364 Day Termination Date, the
date upon which such U.S. Lender so became a U.S. Lender with a
U.S. 364 Day Commitment;
38
<PAGE> 43
(vi) Each payment of interest (other than interest on
Loans) shall be shared among Lenders and Agent owed the amount
upon which such interest accrues pro rata according to (A) the
respective amounts so owed such Lenders and Agent and (B) the
dates on which such amounts became owing to such Lenders and
Agent; and
(vii) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person or
Persons specified.
(b) Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of Loans owed to it as part of
any Borrowing in excess of its ratable share of payments on account of
all Loans in such Borrowing obtained by all applicable Lenders entitled
to such payments, such Lender shall forthwith purchase from such other
Lenders such participations in their Loans as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such
purchase shall be rescinded and each other applicable Lender shall repay
to the purchasing Lender the purchase price to the extent of such
recovery together with an amount equal to such other Lender's ratable
share (according to the proportion of (i) the amount of such other
Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable
by the purchasing Lender in respect of the total amount so recovered.
Each Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Subparagraph 2.09(b) may, to the fullest
extent permitted by law, exercise all its rights of payment (including
the right of setoff) with respect to such participation as fully as if
such Lender were the direct creditor of such Borrower in the amount of
such participation.
2.10. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first day
of any Interest Period for any LIBOR Loan or any Japanese Loan, (i) any
U.S. Lender or Japanese Lender, as the case may be, shall advise Agent
that the LIBO Rate or TIBO Rate, as the case may be, for such Interest
Period cannot be adequately and reasonably determined due to the
unavailability of funds in or other circumstances affecting the London
interbank market or the Tokyo interbank market, as the case may be, or
(ii) any U.S. Lender or Japanese Lender, as the case may be, shall
advise Agent that the rate of interest for such Loan does not adequately
and fairly reflect the cost to such Lender of making or maintaining such
Loan, Agent shall immediately give notice of such condition to the
applicable Borrower and the other U.S. Lenders or Japanese Lenders, as
the case may be. After the giving of any such notice and until Agent
shall otherwise notify the applicable Borrower that the circumstances
giving rise to such condition no longer exist, such Borrower's right to
obtain, continue or convert to LIBOR Loans or Japanese Loans, as the
case may be, shall be suspended. Any LIBOR Loans outstanding at the
commencement of any such suspension affecting the LIBO Rate shall be
converted at the end of the then current Interest Period for such LIBOR
Loans into Base Rate Loans unless such
39
<PAGE> 44
suspension has then ended. All Japanese Loans outstanding at the
commencement of any such suspension affecting the TIBO Rate shall after
the end of the then current Interest Period for such Japanese Loans bear
interest at the Overnight Rate plus one percent (1.0%), such rate to
change from time to time as the Overnight Rate shall change, until such
suspension has ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by any Lender with any request or directive (whether or
not having the force of law) of any Governmental Authority (a "Change of
Law") shall make it unlawful or impossible for any U.S. Lender to make
or maintain any LIBOR Loans or any Japanese Lender to make or maintain
any Japanese Loans, such Lender shall immediately notify Agent and the
applicable Borrower of such Change of Law. Upon receipt of such notice,
(i) such Borrower's right to obtain, continue or convert to LIBOR Loans
or Japanese Loans, as the case may be, shall be suspended until such
time as Agent shall notify such Borrower and the applicable Lenders that
the circumstances giving rise to such suspension no longer exist, and
(ii) such Borrower shall, if so requested by such Lender, immediately
repay such Loans if such Lender shall notify such Borrower that such
Lender may not lawfully continue to fund and maintain such Loans. Any
conversion or prepayment of LIBOR Loans or Japanese Loans made pursuant
to the preceding sentence prior to the last day of an Interest Period
for such Loans shall be deemed a prepayment thereof for purposes of
Paragraph 2.12. After any Lender notifies Agent and the applicable
Borrower of such a Change in Law and until such Lender notifies Agent
and such Borrower that it is no longer unlawful or impossible for such
Lender to make or maintain a LIBOR Loan, all U.S. Loans of such Lender
shall be Base Rate Loans.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any U.S. Lender or Japanese Lender to
any tax, duty or other charge with respect to any LIBOR Loan or
Japanese Loan, as the case may be, or shall change the basis of
taxation of payments by either Borrower to any such Lender on or
in respect to such LIBOR Loan or Japanese Loan, as the case may
be, under this Agreement (except for changes in the rate of
taxation on the overall net income of such Lender imposed by its
jurisdiction of incorporation or the jurisdiction of its
Applicable Lending Office); or
(ii) Shall impose, modify or hold applicable any reserve
(excluding any Reserve Requirement or other reserve to the extent
included in the calculation of the LIBO Rate or TIBO Rate for any
Loans), special deposit or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances or loans by, or any other acquisition of funds by any
Lender for any LIBOR Loans or Japanese Loans, as the case may be;
or
40
<PAGE> 45
(iii) Shall impose on any Lender any other condition
related to any LIBOR Loans or Japanese Loans or such Lender's
Commitments;
And the effect of any of the foregoing is to increase the cost to such
Lender of making, continuing or maintaining any such LIBOR Loans,
Japanese Loans or its Commitments or to reduce any amount receivable by
such Lender hereunder; then the applicable Borrower shall from time to
time, within twenty (20) days after written demand by such Lender, pay
to such Lender additional amounts sufficient to reimburse such Lender
for such increased costs or to compensate such Lender for such reduced
amounts; provided, however, that such Borrower shall have no obligation
to make any payment to any demanding party under this Subparagraph
2.10(c) on account of any such increased costs or reduced amounts unless
such Borrower receives notice of such increased costs or reduced amounts
from the demanding party within six (6) months after they are incurred
or realized. A certificate setting forth in reasonable detail the amount
of such increased costs or reduced amounts, submitted by such Lender to
such Borrower, shall constitute prima facie evidence of such costs or
amounts. The obligations of Borrowers under this Subparagraph 2.10(c)
shall survive the payment and performance of the Obligations and the
termination of this Agreement.
(d) Capital Requirements. If, after the date of this Agreement,
any Lender determines that (i) any Change of Law affects the amount of
capital required or expected to be maintained by such Lender or any
Person controlling such Lender (a "Capital Adequacy Requirement") and
(ii) the amount of capital maintained by such Lender or such Person
which is attributable to or based upon the Loans, the Commitments or
this Agreement must be increased as a result of such Capital Adequacy
Requirement (taking into account such Lender's or such Person's policies
with respect to capital adequacy), the applicable Borrower shall pay to
such Lender or such Person, within twenty (20) days after written demand
of such Lender, such amounts as such Lender or such Person shall
determine are necessary to compensate such Lender or such Person for the
increased costs to such Lender or such Person of such increased capital;
provided, however, that such Borrower shall have no obligation to make
any payment to any demanding party under this Subparagraph 2.10(d) on
account of any such increased costs unless such Borrower receives notice
of such increased costs from the demanding party within twelve (12)
months after they are incurred or realized. A certificate setting forth
in reasonable detail the amount of such increased costs, submitted by
any Lender to such Borrower, shall constitute prima facie evidence of
such costs. The obligations of Borrowers under this Subparagraph 2.10(d)
shall survive the payment and performance of the Obligations and the
termination of this Agreement.
(e) Mitigation. Any Lender which becomes aware of (i) any Change
of Law which will make it unlawful or impossible for such Lender to make
or maintain any LIBOR Loan or Japanese Loan or (ii) any Change of Law or
other event or condition which will obligate either Borrower to pay any
amount pursuant to Subparagraph 2.10(c) or Subparagraph 2.10(d) shall
notify such Borrower and Agent thereof as promptly as practical. If any
Lender has given notice of any such Change of Law or other event or
condition and thereafter becomes aware that such Change of Law or other
event or condition has ceased to exist, such Lender shall notify such
Borrower and Agent thereof
41
<PAGE> 46
as promptly as practical. Each Lender affected by any Change of Law
which makes it unlawful or impossible for such Lender to make or
maintain any LIBOR Loan or Japanese Loan or to which either Borrower is
obligated to pay any amount pursuant to Subparagraph 2.10(c) or
Subparagraph 2.10(d) shall use reasonable commercial efforts (including
changing the jurisdiction of its Applicable Lending Offices) to avoid
the effect of such Change of Law or to avoid or materially reduce any
amounts which either Borrower is obligated to pay pursuant to
Subparagraph 2.10(c) or Subparagraph 2.10(d) if, in the reasonable
opinion of such Lender, such efforts would not be disadvantageous to
such Lender or contrary to such Lender's normal banking practices.
2.11. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrowers under
this Agreement and the other Credit Documents shall be made free and
clear of, and without deduction or withholding for or on account of, all
present and future income, stamp, documentary and other taxes and
duties, and all other levies, imposts, charges, fees, deductions and
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority (except net income taxes and
franchise taxes in lieu of net income taxes imposed on Agent or any
Lender by its jurisdiction of incorporation or the jurisdiction in which
its Applicable Lending Office is located) (all such non-excluded taxes,
duties, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable to Agent or any Lender
hereunder or under the other Credit Documents, the amounts so payable to
Agent or such Lender shall be increased to the extent necessary to yield
to Agent or such Lender (after payment of all Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the other Credit Documents. Whenever any
Taxes are payable by either Borrower, as promptly as possible
thereafter, such Borrower shall send to Agent for its own account or for
the account of such Lender, as the case may be, a certified copy of an
original official receipt received by such Borrower showing payment
thereof. If either Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to Agent the required
receipts or other required documentary evidence, such Borrower shall
indemnify Agent and Lenders for any Taxes (including interest or
penalties) that may become payable by Agent or any Lender as a result of
any such failure. The obligations of Borrowers under this Subparagraph
2.11(a) shall survive the payment and performance of the Obligations and
the termination of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the
applicable Closing Date, each U.S. Lender which is not organized under
the laws of the United States of America or a state thereof and each
Japanese Lender which is not organized under the laws of Japan shall
deliver to LSI or LLJS, respectively, and Agent such certificates and
other evidence as such Borrower or Agent may reasonably request to
establish that such Lender is entitled to receive payments under this
Agreement on account of any U.S. Borrowing or the Japanese Borrowing, as
the case may be, without deduction or withholding of any United States
federal income taxes or Japanese income taxes, respectively. Each such
Lender further agrees (i) promptly to notify the applicable Borrower and
Agent of any change of circumstances (including any change in any
treaty,
42
<PAGE> 47
law or regulation) which would prevent such Lender from receiving
payments hereunder without any deduction or withholding of such taxes
and (ii) on or before the date that any certificate or other form
delivered by such Lender under this Subparagraph 2.11(b) expires or
becomes obsolete or after the occurrence of any event requiring a change
in the most recent such certificate or form previously delivered by such
Lender, to deliver to the applicable Borrower and Agent a new
certificate or form, certifying that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of such
taxes. If any Lender fails to provide to Borrowers or Agent pursuant to
this Subparagraph 2.11(b) (or, in the case of an Assignee Lender,
Subparagraph 8.05(c)) any certificates or other evidence required by
such provision to establish that such Lender is, at the time it becomes
a Lender hereunder, entitled to receive payments under this Agreement on
account of any U.S. Borrowing or the Japanese Borrowing, as the case
may be, without deduction or withholding of any United States federal
income taxes or Japanese income taxes, respectively, such Lender shall
not be entitled to any indemnification under Subparagraph 2.11(a) for
any Taxes imposed on such Lender primarily as a result of such failure.
(c) Mitigation. If Agent or any Lender claims any additional
amounts to be payable to it pursuant to this Paragraph 2.11, such Person
shall use reasonable commercial efforts to file any certificate or
document requested in writing by the applicable Borrower reflecting a
reduced rate of withholding or to change the jurisdiction of its
Applicable Lending Office if the making of such a filing or such change
in the jurisdiction of its Applicable Lending Office would avoid the
need for or materially reduce the amount of any such additional amounts
which may thereafter accrue and if, in the reasonable opinion of such
Person, in the case of a change in the jurisdiction of its Applicable
Lending Office, such change would not be disadvantageous to such Person
or contrary to such Person's normal banking practices.
(d) Tax Returns. Nothing contained in this Paragraph 2.11 shall
require Agent or any Lender to make available any of its tax returns (or
any other information relating to its taxes which it deems to be
confidential).
(e) Lender Rate Contracts. Nothing contained in this Paragraph
2.11 shall override or supercede any term or provision of any Lender
Rate Contract regarding withholding taxes relating to Rate Contracts.
2.12. Funding Loss Indemnification. If either Borrower shall (a) repay
or prepay any LIBOR Loan or Japanese Loan, or convert any LIBOR Loan, on any day
other than the last day of an Interest Period therefor (whether a scheduled
payment, an optional prepayment or conversion, a mandatory prepayment or
conversion, a payment upon acceleration or otherwise), (b) fail to borrow any
LIBOR Loan or Japanese Loan after delivering the applicable Notice of Borrowing
therefor to Agent (whether as a result of the failure to satisfy any applicable
conditions or otherwise) or (c) fail to convert any U.S. Borrowing into LIBOR
Loans in accordance with a Notice of U.S. Borrowing Conversion delivered to
Agent (whether as a result of the failure to satisfy any applicable conditions
or otherwise), such Borrower shall, within twenty (20) days after written demand
of such Lender, reimburse such Lender for and hold such Lender harmless from all
reasonable costs and losses incurred by such Lender as a result of such
43
<PAGE> 48
repayment, prepayment, conversion or failure; provided, however, that such
Borrower shall have no obligation to make any payment to any demanding party
under this Paragraph 2.12 on account of any such costs or losses unless such
Borrower receives notice of such costs or losses from the demanding party within
six (6) months after they are incurred or realized. Borrowers understand that
such costs and losses may include, without limitation, losses incurred by a
Lender as a result of funding and other contracts entered into by such Lender to
fund a LIBOR Loan or Japanese Loan. Each Lender demanding payment under this
Paragraph 2.12 shall deliver to the applicable Borrower, with a copy to Agent, a
certificate setting forth the amount of costs and losses for which demand is
made, which certificate shall set forth in reasonable detail the calculation of
the amount demanded. Such a certificate so delivered to such Borrower shall
constitute prima facie evidence of such costs and losses. The obligations of
Borrowers under this Paragraph 2.12 shall survive the payment and performance of
the Obligations and the termination of this Agreement.
2.13. Security.
(a) The Obligations of LLJS shall be secured by a guaranty duly
executed by LSI in the form of Exhibit G (the "LSI Guaranty").
(b) Further Assurances. Each Borrower shall deliver to Agent such
other instruments, agreements, certificates, opinions and documents
(including Uniform Commercial Code financing statements) as Agent may
reasonably request to implement the provisions of Subparagraph 2.13(a)
and otherwise to establish, maintain, protect and evidence the rights
provided to Agent, for the benefit of Agents and Lenders, pursuant to
the Security Documents. Each Borrower shall fully cooperate with Agent
and Lenders and perform all additional acts reasonably requested by
Agent or any Lender to effect the purposes of this Paragraph 2.13.
2.14. Replacement of Lenders. If any Lender shall (a) become a
Defaulting Lender more than one (1) time in a period of twelve (12) consecutive
months, (b) continue as a Defaulting Lender for more than five (5) Business Days
at any time, (c) suspend its obligation to make or maintain LIBOR Loans or
Japanese Loans pursuant to Subparagraph 2.10(b) for a reason which is not
applicable to any other Lender or (d) demand any payment under Subparagraph
2.10(c), 2.10(d) or 2.11(a) for a reason which is not applicable to any other
Lender, then Agent may (or upon the written request of Borrowers, shall) replace
such Lender (the "affected Lender"), or cause such affected Lender to be
replaced, with another lender (the "replacement Lender") satisfying the
requirements of an Assignee Lender under Subparagraph 8.05(c), by having the
affected Lender sell and assign all of its rights and obligations under this
Agreement and the other Credit Documents to the replacement Lender pursuant to
Subparagraph 8.05(c); provided, however, that if Borrowers seek to exercise such
right, they must do so within sixty (60) days after either Borrower first knows
or should have known of the occurrence of the event or events giving rise to
such right, and neither Agent nor any Lender shall have any obligation to
identify or locate a replacement Lender for Borrowers. Upon receipt by any
affected Lender of a written notice from Agent stating that Agent is exercising
the replacement right set forth in this Paragraph 2.14, such affected Lender
shall sell and assign all of its rights and obligations under this Agreement and
the other Credit Documents to the replacement Lender pursuant to an Assignment
Agreement and Subparagraph 8.05(c) for a purchase price equal to
44
<PAGE> 49
the sum of the principal amount of the affected Lender's Loans so sold and
assigned, all accrued and unpaid interest thereon and its ratable share of all
fees to which it is entitled.
SECTION III. CONDITIONS.
3.01. Initial Closing Date Conditions. The obligations of the applicable
Lenders to make the Loans to be made on the Initial Closing Date are subject to
(a) receipt by Agent, on or prior to the Initial Closing Date, of each item
listed in Part I of Schedule 3.01, each in form and substance satisfactory to
Agent and each Lender, and with sufficient copies for, Agent and each Lender,
(b) the termination of the Outstanding U.S. Loan Facility and payment by LSI in
full of all amounts payable thereunder, (c) either confirmation in form and
substance satisfactory to Agent and each Lender that the transactions
contemplated by this Agreement do not contravene the provisions of the
Outstanding Japanese Loan Facility, if the Initial Closing Date is the U.S.
Closing Date, or the termination of the Outstanding Japanese Loan Facility and
payment by LLJS in full of all amounts payable thereunder, if the Initial
Closing Date is the Japanese Closing Date, and (d) confirmation in form and
substance satisfactory to Agent and each Lender that the transactions
contemplated by this Agreement do not contravene the provisions of the
Outstanding Japanese Lease Facility. The obligations of the applicable Lenders
to maintain the Loans made on the Initial Closing Date are subject to receipt by
Agent within ten (10) Business Days after the Initial Closing Date of each item
listed in Part II of Schedule 3.01, each in form and substance satisfactory to
Agent and each Lender, and with sufficient copies for, Agent and each Lender.
3.02. Second Closing Date Conditions Precedent. The obligations of the
applicable Lenders to make the Loans to be made on the Second Closing Date are
subject to (a) the satisfaction of the conditions set forth in Paragraph 3.01,
(b) if such Loans are U.S. Loans, the receipt by Agent, on or prior to the
Second Closing Date, of each Note requested by a U.S. Lender, each duly executed
by LSI, and (c) if such Loans are Japanese Loans, the receipt by Agent of the
LSI Guaranty duly executed by LSI and the termination of the Outstanding
Japanese Loan Facility and payment by LLJS in full of all amounts payable
thereunder on or prior to the Second Closing Date.
3.03. Conditions Precedent to Each Credit Event. The occurrence of each
Credit Event (including the initial Borrowing) is subject to the further
conditions that:
(a) Borrowers shall have delivered to Agent the Notice of
Borrowing, Notice of U.S. Borrowing Conversion or Notice of Interest
Period Selection, as the case may be, for such Credit Event in
accordance with this Agreement; and
(b) On the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(i) The representations and warranties of Borrowers and
their Subsidiaries set forth in Paragraph 4.01 and in the other
Credit Documents are true and correct in all material respects as
if made on such date (except for
45
<PAGE> 50
representations and warranties expressly made as of a specified
date, which shall be true as of such date);
(ii) No Default has occurred and is continuing or will
result from such Credit Event; and
(iii) All of the Credit Documents are in full force and
effect.
The submission by either Borrower to Agent of each Notice of Borrowing, each
Notice of U.S. Borrowing Conversion (other than a notice for a conversion to
Base Rate Loans) and each Notice of Interest Period Selection (other than a
notice selecting an Interest Period of one (1) month for the Japanese Borrowing)
shall be deemed to be a representation and warranty by such Borrower that each
of the statements set forth above in this Subparagraph 3.03(b) is true and
correct as of the date of such notice.
3.04. Covenant to Deliver. Borrowers agree (not as a condition but as a
covenant) to deliver to Agent each item required to be delivered to Agent as a
condition to the occurrence of any Credit Event if such Credit Event occurs.
Borrowers expressly agree that the occurrence of any such Credit Event prior to
the receipt by Agent of any such item shall not constitute a waiver by Agent or
any Lender of Borrowers' obligation to deliver such item.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrowers' Representations and Warranties. In order to induce
Agent and Lenders to enter into this Agreement, Borrowers hereby represent and
warrant to Agent and Lenders as follows:
(a) Organization and Powers. Each of Borrowers and the
Significant Subsidiaries is a corporation or partnership duly organized
or formed, as the case may be, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation, is
qualified to do business and is in good standing in each jurisdiction in
which the failure so to qualify or be in good standing would result in a
Material Adverse Effect and has all requisite power and authority to own
its assets and carry on its business and, with respect to each Borrower,
to execute, deliver and perform its obligations under the Credit
Documents and the Symbios Acquisition Documents to which it is a party.
(b) Authorization; No Conflict. The execution, delivery and
performance by each Borrower of the Credit Documents and the Symbios
Acquisition Documents to which it is a party have been duly authorized
by all necessary corporate action of each Borrower and do not and will
not (i) contravene the terms of the certificate or articles, as the case
may be, of incorporation and the bylaws of either Borrower or result in
a breach of or constitute a default under any material Contractual
Obligation to which either Borrower is a party or by which it or its
properties may be bound or affected; or (ii) violate any provision of
Governmental Rule binding on or affecting either Borrower.
(c) Binding Obligation. The Credit Documents and the Symbios
Acquisition Documents constitute, or when delivered will constitute,
legal, valid and binding
46
<PAGE> 51
obligations of each Borrower which is a party thereto, enforceable
against such Borrower in accordance with their respective terms, except
to the extent the enforceability thereof would be subject to bankruptcy,
insolvency, receivership or similar laws providing relief from
creditors, or principles of equity generally.
(d) Governmental Consents. No authorization, consent, approval,
license, exemption of, or filing or registration with, any Governmental
Authority, or approval or consent of any other Person, is required for
the due execution, delivery or performance by either Borrower of any of
the Credit Documents or the Symbios Acquisition Documents except those
set forth on Schedule 4.01(d) which have been obtained or made and are
in full force and effect.
(e) No Defaults. None of Borrowers and their Significant
Subsidiaries is in default under any material Contractual Obligation or
Governmental Rule to which it is a party or by which it or its
properties may be bound which, individually or together with all such
defaults, could reasonably be expected to have a Material Adverse
Effect.
(f) Title to Properties. Each Borrower and each Significant
Subsidiary has good record and marketable title in fee simple to, or
valid leasehold interests in, all real property necessary or used in the
ordinary conduct of their respective businesses, except for such defects
in title as could not, individually or in the aggregate, have a Material
Adverse Effect. The property of Borrowers and their Significant
Subsidiaries is subject to no Liens, other than Liens permitted under
Subparagraph 5.02(a).
(g) Litigation. Except as set forth in Schedule 4.01(g), there
are no actions, suits or proceedings pending or, to the best of either
Borrower's knowledge, threatened against or affecting such Borrower or
any of its Significant Subsidiaries or the properties of such Borrower
or any of its Significant Subsidiaries before any Governmental Authority
or arbitrator which if determined adversely to such Borrower or any such
Significant Subsidiary would be reasonably likely to result in a
Material Adverse Effect.
(h) Compliance with Consents and Licenses. Every consent required
by either Borrower or any of its Significant Subsidiaries (including
those required under or pursuant to any Environmental Law) in connection
with the conduct of its business and the ownership, use, exploitation or
occupation of its property and assets has been obtained and is in full
force and effect and there has not been any default in the observance of
the conditions and restrictions (if any) imposed in, or in connection
with, any of the same, except where the failure to obtain any of the
foregoing would not reasonably be expected to have a Material Adverse
Effect.
(i) Compliance with Environmental Law. Except as set forth in
Schedule 4.01(i), to the best of each Borrower's knowledge after due
investigation, (i) the properties of each Borrower and its Subsidiaries
do not contain and have not previously contained (at, under, or about
any such property) any Hazardous Substances or other contamination (A)
in amounts or concentrations that constitute or constituted a violation
of, or could give rise to liability under, any Environmental Laws, in
either case where such violation or liability could reasonably be
expected to result in a Material Adverse
47
<PAGE> 52
Effect, (B) which could interfere with the continued operation of such
property, or (C) which could materially impair the fair market value
thereof; and (ii) there has been no transportation or disposal of
Hazardous Substances from, nor any release or threatened release of
Hazardous Substances at or from, any property of either Borrower or any
of its Subsidiaries in violation of or in any manner which could give
rise to liability under any Environmental Laws, where such violation or
liability, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
(j) Governmental Regulation. None of Borrowers and their
Significant Subsidiaries is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the
Investment Company Act of 1940, the Interstate Commerce Act, any state
public utilities code or any other Governmental Rule limiting its
ability to incur Indebtedness.
(k) Employment Benefit Plans.
(i) Except as specifically disclosed to Agent and Lenders
in writing prior to the date of this Agreement: (A) each Plan is
in compliance in all material respects with the applicable
provisions of ERISA, the IRC and other Governmental Rules; (B)
there are no pending, or to the best knowledge of either
Borrower, threatened, claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan which has
resulted or could reasonably be expected to result in a Material
Adverse Effect; (C) there has been no prohibited transaction or
other violation of the fiduciary responsibility rule with respect
to any Plan which could reasonably result in a Material Adverse
Effect; (D) no ERISA Event has occurred or is reasonably expected
to occur with respect to any Pension Plan; (E) no Pension Plan
has any Unfunded Pension Liability; (F) neither Borrower has
incurred, nor does it reasonably expect to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of
ERISA); (G) no trade or business (whether or not incorporated
under common control with either Borrower within the meaning of
Section 414(b), (c), (m) or (a) of the IRC) maintains or
contributes to any Pension Plan or other Plan subject to Section
412 of the IRC; and (H) none of Borrowers and any entity under
common control with either Borrower in the preceding sentence has
ever contributed to any Multiemployer Plan.
(ii) All employer and employee contributions required by
any applicable Governmental Rule in connection with all Foreign
Plans have been made, or, if applicable, accrued, in accordance
with the country-specific accounting practices. The fair market
value of the assets of each funded Foreign Plan, the liability of
each insurer for any Foreign Plan funded through insurance or the
book reserve established for any Foreign Plan, together with any
accrued contributions, is sufficient to procure or provide for
the accrued benefit obligations, as of the date hereof, with
respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations most
recently used to determine employer contributions to such
48
<PAGE> 53
Foreign Plan, which actuarial assumptions are commercially reasonable.
Each Foreign Plan required to be registered has been registered and has
been maintained in good standing with applicable Governmental
Authorities. Each Foreign Plan reasonably complies in all material
respects with all applicable Governmental Rules.
(l) Significant Subsidiaries. The name and ownership of each
Significant Subsidiary on the date of this Agreement is as set forth in
Schedule 4.01(l). All of the outstanding capital stock of, or any other
interest in, each such Significant Subsidiary has been validly issued,
and is fully paid and nonassessable.
(m) Margin Regulations. Neither Borrower is engaged in the
business of extending credit for the purpose of purchasing or carrying
"margin stock" (within the meaning of Regulation U of the FRB). No part
of the proceeds of the Loans will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing
or carrying any margin stock, except in compliance with said Regulation
U.
(n) Taxes. Borrowers and their Significant Subsidiaries have
filed all federal and other material tax returns and reports required to
be filed, and have paid all federal and other material taxes,
assessments, fees and other Governmental Charges levied or imposed upon
them or their properties, income or assets otherwise due and payable,
except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against either
Borrower or any of its Significant Subsidiaries that would, if made,
have a Material Adverse Effect.
(o) Patents and Other Rights. Each Borrower and each Significant
Subsidiary possesses all permits, franchises, licenses, patents,
trademarks, trade names, service marks, copyrights and all rights with
respect thereto, free from maintenance and operation of its business,
except where the failure to obtain any of the foregoing would not
reasonably be expected to have a Material Adverse Effect.
(p) Insurance. The properties of each Borrower and its
Significant Subsidiaries are insured against losses and damages of the
kinds and in amounts which are deemed prudent by such Borrower in its
reasonable business judgment and within the general parameters customary
among similarly situated businesses in the industry, and such insurance
is maintained with financially sound and reputable insurance companies
or pursuant to a plan or plans of self-insurance to such extent as is
usual for companies of similar size engaged in the same or similar
businesses and owning similar properties.
(q) Financial Statements. The audited Financial Statements of LSI
and its Subsidiaries for the fiscal year ended December 31, 1997 and the
unaudited Financial Statements of LSI and its Subsidiaries for the
fiscal quarter ended March 31, 1998 are complete and correct and fairly
present the financial condition of LSI and its Subsidiaries as at such
dates and the results of operations of LSI and its Subsidiaries for the
periods covered by such statements, in each case in accordance with GAAP
consistently applied, subject, in the case of the March 31, 1998
Financial Statements, to normal year-end
49
<PAGE> 54
adjustments and the absence of notes. Since December 31, 1997, there has
been no Material Adverse Effect.
(r) Liabilities. None of Borrowers and their Significant
Subsidiaries has any material liabilities, fixed or contingent, that are
not reflected in the Financial Statements referred to in Subparagraph
4.01(q), in the notes thereto or otherwise disclosed in writing to the
Agent and Lenders, other than liabilities arising in the ordinary course
of business since March 31, 1998.
(s) Labor Disputes. Etc. There are no strikes, lockouts or other
labor disputes against either Borrower or any of its Significant
Subsidiaries, or, to the best of either Borrower's knowledge, threatened
against or affecting either Borrower or any of its Significant
Subsidiaries, which may result in a Material Adverse Effect.
(t) Solvency. Each Borrower and its Subsidiaries on a
consolidated basis are Solvent.
(u) Year 2000 Compatibility. Borrowers and their Significant
Subsidiaries have reviewed the areas within their business and
operations which could be adversely affected by, and have developed or
are developing a program to address on a timely basis, the "Year 2000
Problem" (that is, the risk that computer applications used by Borrowers
and their Significant Subsidiaries may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior
to and any date on or after December 31, 1999), and have made related
appropriate inquiry of material suppliers and vendors. Based on such
review and program, each Borrower reasonably believes that the "Year
2000 Problem" will not have a Material Adverse Effect.
(v) Disclosure. None of the representations or warranties made by
either Borrower in the Credit Documents as of the date of such
representations and warranties, and none of the statements contained in
any exhibit, report, statement or certificate furnished by or on behalf
of either Borrower or any of its Significant Subsidiaries to Agent or
any Lender in connection with the Credit Documents, contains any untrue
statement of a material fact or omits any material fact required to be
stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading in
any material respect as of the time when made or delivered.
4.02. Reaffirmation. Each Borrower shall be deemed to have reaffirmed,
for the benefit of Lenders and Agent, each representation and warranty contained
in Paragraph 4.01 on and as of the date of each Credit Event (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date).
50
<PAGE> 55
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Agreement and
the satisfaction in full by each Borrower of all of their respective
Obligations, each Borrower will comply, and will cause compliance, with the
following affirmative covenants, unless Required Lenders shall otherwise consent
in writing:
(a) Financial Statements and Other Reports. LSI, on behalf of
Borrowers, will furnish to Agent in sufficient copies for distribution
to Lenders:
(i) As soon as available and in any event within fifty
(50) days after the end of each of the first three fiscal
quarters of each fiscal year, the consolidated Financial
Statements of LSI and its Subsidiaries for such fiscal quarter,
prepared in accordance with GAAP consistently applied, all in
reasonable detail;
(ii) As soon as available and in any event within one
hundred (100) days after the end of each fiscal year, the
consolidated Financial Statements of LSI and its Subsidiaries for
such fiscal year, prepared in accordance with GAAP consistently
applied, all in reasonable detail, and accompanied by a report
thereon of Ernst & Young LLP or another firm of independent
certified public accountants of recognized national standing,
which report shall be unqualified as to scope of audit or the
status of LSI and its Subsidiaries as a going concern;
(iii) Together with the Financial Statements required
pursuant to clauses (i) and (ii) of this Subparagraph 5.01(a), a
compliance certificate of a Responsible Officer of LSI (a
"Compliance Certificate") which (A) states that such Financial
Statements fairly present the financial condition of LSI and its
Subsidiaries as at the last day of the fiscal quarter or fiscal
year covered by such Financial Statements and the results of
operations of LSI and its Subsidiaries for such quarter or year
and have been prepared in accordance with GAAP consistently
applied, subject to normal, year-end audit adjustments in the
case of the Financial Statements for any fiscal quarter; (B)
states that no Default has occurred and is continuing, or, if any
such Default has occurred and is continuing, a statement as to
the nature thereof and what action LSI or LLJS proposes to take
with respect thereto; (C) sets forth, for the fiscal quarter or
fiscal year covered by such Financial Statements or as of the
last day of such quarter or year, the calculation of the
financial ratios and tests provided in Paragraph 5.03; and (D)
states that the Year 2000 remediation efforts of Borrowers and
their Subsidiaries are proceeding as scheduled;
(iv) As soon as available and in any event within fifty
(50) days after the end of each fiscal quarter, a certificate of
a Responsible Officer of LSI which sets forth the calculation of
the Pricing Ratio as of the last day of such quarter;
(v) Promptly after the giving, sending or filing thereof,
copies of all reports, if any, which each Borrower or any of its
Subsidiaries sends generally to
51
<PAGE> 56
any class of holders of its respective capital stock or other
securities and of all reports or filings, if any, by each
Borrower or any of its Subsidiaries with the SEC or any national
securities exchange;
(vi) Promptly after either Borrower has knowledge or
becomes aware thereof, notice of the occurrence or existence of
any Default;
(vii) Prompt written notice of any action, event or
occurrence that could reasonably be expected to result in a
Material Adverse Effect due to environmental liability under
Environmental Laws;
(viii) Prompt written notice of all actions, suits and
proceedings before any Governmental Authority or arbitrator
pending, or to the best of either Borrower's knowledge,
threatened against or affecting either Borrower or any of its
Subsidiaries which (A) if adversely determined would involve an
aggregate liability of $25,000,000 or more in excess of amounts
covered by third-party insurance, or (B) otherwise may have a
Material Adverse Effect;
(ix) Promptly after either Borrower has knowledge or
becomes aware thereof, (A) notice of the occurrence of any ERISA
Event, together with a copy of any notice of such ERISA Event to
the PBGC, and (B) the details concerning any action taken or
proposed to be taken by the IRS, PBGC, Department of Labor or
other Person with respect thereto;
(x) Promptly upon the commencement or increase of
contributions to, the adoption of, or an amendment to, a Plan by
LSI or an ERISA Affiliate, if such commencement or increase of
contributions, adoption, or amendment could reasonably be
expected to result in a net increase in unfunded liability to LSI
or an ERISA Affiliate in excess of $10,000,000, a calculation of
the net increase in unfunded liability;
(xi) Promptly after filing or receipt thereof by LSI or
any ERISA Affiliate, copies of the following:
(A) Any notice received from the PBGC of intent to
terminate or have a trustee appointed to administer any
Pension Plan;
(B) Any notice received from the sponsor of a
Multiemployer Plan concerning the imposition, delinquent
payment, or amount of withdrawal liability;
(C) Any demand by the PBGC under Subtitle D of
Title IV of ERISA; and
(D) Any notice received from the IRS regarding the
disqualification of a Plan intended to qualify under
Section 401(a) of the IRC;
52
<PAGE> 57
(xii) Within forty-five (45) days of the date thereof, or,
if earlier, on the date of delivery of any Financial Statements
pursuant to clause (i) or (ii) of this Subparagraph 5.01(a),
notice of any change in accounting policies or financial
reporting practices by either Borrower or any of the Significant
Subsidiaries that is expected to affect (or has affected)
materially under U.S. GAAP the consolidated financial condition
of LSI and its Subsidiaries;
(xiii) Promptly after the occurrence thereof, notice of
any labor controversy resulting in or threatening to result in
any strike, work stoppage, boycott, shutdown or other material
labor disruption against or involving either Borrower or any of
its Subsidiaries which could result in a Material Adverse Effect;
(xiv) Upon the request from time to time of Agent or any
Lender (through Agent), the Swap Termination Values, together
with a description of the method by which such values were
determined, relating to any then-outstanding Rate Contracts to
which either Borrower or any of its Subsidiaries is party;
(xv) Prompt written notice of any change in either
Borrower's fiscal year;
(xvi) Prompt written notice of any Person or Subsidiary
not identified on Schedule 4.01(l) that becomes a Significant
Subsidiary after the date of this Agreement;
(xvii) Prompt written notice of any other condition or
event which has resulted, or that could reasonably be expected to
result, in a Material Adverse Effect;
(xviii) Prior written notice of any sale of assets other
than in the ordinary course of business (including any sale of
assets to be leased back in connection with a "synthetic" lease
of such assets) or any sale or issuance of Indebtedness for
borrowed money (including Indebtedness evidenced by notes, bonds,
debentures or other similar instruments) for Net Proceeds which
exceed $50,000,000 for any single transaction or series of
related transactions; and
(xix) Such other information respecting the operations,
properties, business or condition (financial or otherwise) of
either Borrower or the Significant Subsidiaries as Agent or any
Lender (through Agent) may from time to time reasonably request.
Each notice pursuant to clauses (vi) - (xix) of this Subparagraph
5.01(a) shall be accompanied by a written statement by a Responsible
Officer of LSI setting forth details of the occurrence referred to
therein, and stating what action LSI or LLJS proposes to take with
respect thereto.
(b) Preservation of Corporate Existence. Etc. Each Borrower shall
and shall cause each of its Significant Subsidiaries to:
53
<PAGE> 58
(i) Preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state
or jurisdiction of incorporation or formation, except in
connection with transactions permitted by Paragraph 5.02 and (B)
in the case of any Significant Subsidiary (other than LLJS) to
the extent that failure to obtain or maintain the foregoing would
not reasonably be expected to have a Material Adverse Effect;
(ii) Preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits,
licenses and franchises necessary or desirable in the normal
conduct of its business, except to the extent that the failure to
obtain or maintain the foregoing would not reasonably be expected
to have a Material Adverse Effect;
(iii) Use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill,
except in the case of any Significant Subsidiary (other than
LLJS) to the extent that the failure to obtain or maintain the
foregoing would not reasonably be expected to have a Material
Adverse Effect; and
(iv) Preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation
of which could reasonably be expected to have a Material Adverse
Effect.
(c) Payment of Taxes. Etc. Each Borrower will, and will cause
each of its Significant Subsidiaries to, pay and discharge all taxes,
fees, assessments, levies and other Governmental Charges imposed upon it
or upon its properties or assets prior to the date on which penalties
attach thereto, and all lawful claims for labor, materials and supplies
which, if unpaid, might become a Lien upon any properties or assets of
such Borrower or any of its Significant Subsidiaries, except to the
extent such taxes, fees, assessments, levies or other Governmental
Charges, or such claims, are being contested in good faith by
appropriate proceedings and are adequately reserved against in
accordance with GAAP.
(d) Licenses. Each Borrower will, and will cause each of its
Significant Subsidiaries to, obtain and maintain all licenses,
authorizations, consents, filings, exemptions, registrations and other
governmental approvals necessary in connection with the execution,
delivery and performance of the Credit Documents, the consummation of
the transactions therein contemplated or the operation and conduct of
its business and ownership of its properties, except to the extent that
the failure to obtain or maintain the foregoing would not reasonably be
expected to have a Material Adverse Effect.
(e) Maintenance of Property. Except as otherwise permitted under
Subparagraph 5.02(c) or Subparagraph 5.02(d), each Borrower shall, and
shall cause each of its Subsidiaries to, maintain and preserve all its
property which is used in its business in good working order and
condition, ordinary wear and tear excepted.
54
<PAGE> 59
(f) Insurance. Each Borrower shall maintain, and shall cause each
of its Significant Subsidiaries to maintain, with financially sound and
reputable independent insurers, insurance with respect to its properties
and business against losses and damages of the kinds and in amounts
which are deemed prudent by such Borrower in its reasonable business
judgment and within the general parameters customary among similarly
situated businesses in the industry.
(g) Payment of Indebtedness. Each Borrower shall, and shall cause
each of its Significant Subsidiaries to, pay and discharge as the same
shall become due and payable, all Indebtedness as and when due and
payable or within any grace periods applicable thereto, but subject to
any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
(h) Compliance with Laws. Each Borrower shall comply, and shall
cause each of its Significant Subsidiaries to comply, in all material
respects with the requirements of all Environmental Laws and all other
Governmental Rules applicable to it or its business.
(i) Employment Benefit Plans.
(i) LSI shall, and shall cause each of its ERISA
Affiliates to: (A) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the
IRC and other federal or state law; (B) cause each Plan which is
qualified under Section 401(a) of the IRC to maintain such
qualification; and (C) make all required contributions to any
Plan subject to Section 412 of the IRC.
(ii) None of Borrowers and their Significant Subsidiaries
shall (A) engage in any transaction prohibited by any
Governmental Rule applicable to any Foreign Plan, (B) fail to
make full payment when due of all amounts due as contributions to
any Foreign Plan or (C) otherwise fail to comply with the
requirements of any Governmental Rule applicable to any Foreign
Plan, where singly or cumulatively, the above would be reasonably
likely to have a Material Adverse Effect.
(j) Inspection of Property and Books and Records. Each Borrower
shall maintain and shall cause each of its Significant Subsidiaries to
maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets and
business of such Borrower or such Significant Subsidiary. Each Borrower
shall permit, and shall cause each of its Significant Subsidiaries to
permit, representatives and independent contractors of Agent or any
Lender to visit and inspect any of their respective properties, to
examine its respective corporate, financial and operating records, and
make copies thereof or abstracts therefrom, and to discuss its
respective affairs, finances and accounts with its respective directors,
officers, and independent public accountants, all at the expense of such
Borrower and at such reasonable times during normal business hours and
as often as may be reasonably desired, upon reasonable
55
<PAGE> 60
advance notice to such Borrower; provided, however, that (i) unless an
Event of Default shall have occurred and be continuing, (A) Borrowers
shall be responsible under this Subparagraph 5.01(j) for the reasonable
costs and expenses of Agent only, (B) all inspections, visits,
examinations and other actions permitted or authorized hereunder shall
be coordinated only through Borrowers, and (C) physical inspections of
either Borrower's or any such Significant Subsidiary's facilities in
Japan shall be made on two weeks' prior notice and shall occur no more
frequently than semiannually in the case of inspections by Agent and no
more frequently than annually otherwise, and (ii) when an Event of
Default exists Agent or any Lender may make any visit, inspection or
examination or take any other action authorized hereunder at the expense
of Borrowers at any time during normal business hours, without advance
notice and without being subject to any of the other restrictions
described in clause (i).
(k) Use of Proceeds. Except as otherwise expressly provided in
Subparagraph 2.01(h) or Subparagraph 2.02(f), each Borrower will use the
proceeds of the Loans solely for general corporate purposes, including
for working capital, capital expenditures, Permitted Investments and
Permitted Acquisitions. If either Borrower uses the proceeds of the
Loans to purchase or carry "margin stock" (within the meaning of
Regulation U of the FRB) or extend credit to others for the purpose of
purchasing or carrying margin stock, such Borrower will do so only in
compliance with said Regulation U and only if not more than twenty
percent (20%) of the value of the assets of such Borrower and its
Subsidiaries on a consolidated basis consists of margin stock.
(l) Further Assurances and Additional Acts. Each Borrower will
execute, acknowledge, deliver, file, notarize and register at its own
expense all such further agreements, instruments, certificates,
documents and assurances and perform such acts as Agent or Required
Lenders shall deem necessary or appropriate to effectuate the purposes
of the Credit Documents, and promptly provide Agent with evidence of the
foregoing satisfactory in form and substance to Agent or Required
Lenders.
(m) Year 2000 Compatibility. Each of Borrower and its Significant
Subsidiaries shall take all acts reasonably necessary to ensure that all
software, hardware, firmware, equipment, goods and systems utilized by
or material to its business operations or financial condition will
properly perform date sensitive functions before, during and after the
year 2000. At the request of Agent, each Borrower shall provide to Agent
such reasonable certifications or other evidence of compliance with this
Subparagraph 5.01(m) as Agent may from time to time reasonably require.
5.02. Negative Covenants. Until the termination of this Agreement and
the satisfaction in full by each Borrower of all of their respective
Obligations, each Borrower will comply, and will cause compliance, with the
following negative covenants, unless Required Lenders shall otherwise consent in
writing:
(a) Liens. Neither Borrowers nor any of its Significant
Subsidiaries will create, incur, assume or suffer to exist any Lien upon
or with respect to any of their properties, revenues or assets, whether
now owned or hereafter acquired, other than (i) Permitted Liens and (ii)
other Liens that, in the aggregate at any time, secure obligations
56
<PAGE> 61
in an amount not in excess of ten percent (10%) of Consolidated Total
Assets determined as of the last day of the immediately preceding fiscal
quarter (or fiscal year, as the case may be).
(b) Change in Nature of Business. None of Borrowers and their
Significant Subsidiaries will engage in any material line of business
other than the electronics business and other businesses incidental or
reasonably related thereto.
(c) Restrictions on Fundamental Changes. None of Borrowers and
their Significant Subsidiaries will merge with or consolidate into, or
acquire all or substantially all of the assets of, any Person, or sell,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets,
except that:
(i) Any of LSI's Significant Subsidiaries may merge with,
consolidate into or transfer all or substantially all of its
assets to another of LSI's Significant Subsidiaries or to LSI and
in connection therewith such Significant Subsidiary (other than
LSI) may be liquidated or dissolved, provided that (A) if the
transaction involves either Borrower, such Borrower shall be the
surviving Person, and (B) if any transaction shall be between a
non-wholly owned Significant Subsidiary and a wholly owned
Significant Subsidiary, the wholly owned Significant Subsidiary
shall be the continuing or surviving Person, and provided further
that no Material Adverse Effect or Default shall result
therefrom;
(ii) Either Borrower or any of its Significant
Subsidiaries may sell or dispose of assets in accordance with the
provisions of Subparagraph 5.02(d);
(iii) Either Borrower or any of its Significant
Subsidiaries may make any investment permitted by Subparagraph
5.02(e); and
(iv) Either Borrower may merge with or consolidate into
any other Person pursuant to an Acquisition permitted by
Subparagraph 5.02(e), provided that (A) such Borrower is the
surviving Person, (B) no such merger or consolidation shall be
made while there exists a Default or if a Default or Material
Adverse Effect would occur as a result thereof, and (C) such
Borrower shall have complied with the notice and other
requirements of Subparagraph 5.02(e) with respect to any
Acquisition.
(d) Sales of Assets. None of Borrowers and their Significant
Subsidiaries will convey, sell, lease, transfer, or otherwise dispose
of, or part with control of (whether in one transaction or a series of
transactions) any assets (including any shares of stock in any
Subsidiary or other Person), except:
(i) Sales or other dispositions of inventory in the
ordinary course of business;
57
<PAGE> 62
(ii) Sales or other dispositions of assets in the ordinary
course of business which have become worn out or obsolete or
which are promptly being replaced;
(iii) Sales of accounts receivable to financial
institutions not affiliated with either Borrower; provided that
(A) the discount rate shall not at any time exceed ten percent
(10%), (B) the amount of all accounts receivable permitted to be
sold in any fiscal quarter shall not exceed twenty percent (20%)
of the consolidated accounts receivable of LSI and its
Subsidiaries, determined as of the last day of the immediately
preceding fiscal quarter (or fiscal year, as the case may be),
and (C) the sole consideration received for such sales shall be
cash;
(iv) Sales of equipment to be leased back to LSI in
conjunction with a "synthetic" lease financing of such equipment,
provided that the "principal" amount of such financing does not
exceed $250,000,000;
(v) Sales or other dispositions of assets outside the
ordinary course of business which do not constitute Substantial
Assets (as defined below);
(vi) Sales of assets which yield Net Proceeds which are
applied to prepay the U.S. Loans pursuant to clause (iv) of
Subparagraph 2.05(c); and
(vii) Sales or other dispositions of Permitted
Investments.
For purposes of clause (v) above, a sale, lease, transfer or other
disposition of assets shall be deemed to be of "Substantial Assets" if
such assets, when added to all other assets conveyed, sold, leased,
transferred or otherwise disposed of by LSI and its Subsidiaries in any
period of four consecutive fiscal quarters (other than assets sold in
the ordinary course of business or pursuant to clause (iii) above),
shall exceed ten percent (10%) of Consolidated Total Assets as
determined as of the last day of the fiscal quarter of LSI immediately
preceding the date of determination.
(e) Loans and Investments. None of Borrowers and their
Significant Subsidiaries will enter into any Acquisition or otherwise
extend any credit to, guarantee the obligations of or make any
additional investments in or acquire any interest in, any Person, other
than in connection with:
(i) Extensions of credit in the nature of accounts
receivable or notes receivable arising from the sales of goods or
services in the ordinary course of business;
(ii) Permitted Investments;
(iii) Additional purchases of or investments in the stock
of, or guarantees of the obligations of, Subsidiaries;
(iv) Permitted Acquisitions;
58
<PAGE> 63
(v) Employee loans and guarantees in accordance with LSI's
usual and customary practices with respect thereto; or
(vi) Additional investments not exceeding, in the
aggregate with all such investments and all Acquisitions,
$300,000,000 during the period from the date of this Agreement
through the Revolving Termination Date;
Provided that in the case of an Acquisition or an investment referred to
in clause (vi) above, (A) no such Acquisition or investment shall be
made while there exists a Default or if a Default or Material Adverse
Effect would occur as a result thereof, and (B) the acquired or other
Person in which any such Acquisition or investment is made shall be in
the electronics business or other business incidental or reasonably
related thereto.
(f) Distributions. Neither Borrower will declare or pay any
dividends in respect of its capital stock, or purchase, redeem, retire
or otherwise acquire for value any of its capital stock now or hereafter
outstanding, return any capital to its shareholders as such, or make any
distribution of assets to its shareholders as such, or permit any of its
Subsidiaries to purchase, redeem, retire, or otherwise acquire for value
any stock of either Borrower, except that LLJS may declare and pay
dividends and distributions to LSI and either Borrower may:
(i) Declare and deliver dividends and distributions
payable only in common stock of such Borrower;
(ii) Purchase shares of its capital stock from time to
time in connection with the issuance of shares under such
Borrower's employee stock option plans;
(iii) Purchase, redeem, retire, or otherwise acquire
shares of its capital stock with the proceeds received from a
substantially concurrent issue of new shares of its capital
stock; and
(iv) In addition to the dividends, purchases, redemptions,
retirements and other acquisitions permitted by the foregoing
clauses (i) through (iii) above, declare and deliver dividends
and distributions, and purchase, redeem, retire, or otherwise
acquire shares of its capital stock, in an aggregate amount not
exceeding $100,000,000 in any period of four consecutive fiscal
quarters.
(g) Transactions with Related Parties. None of Borrowers and
their Significant Subsidiaries will enter into any transaction,
including the purchase, sale or exchange of property or the rendering of
any services, with any Affiliate, any officer or director thereof or any
Person which beneficially owns or holds twenty percent (20%) or more of
the equity securities, or twenty percent (20%) or more of the equity
interest, thereof (a "Related Party"), or enter into, assume or suffer
to exist, or permit any such Significant Subsidiary to enter into,
assume or suffer to exist, any employment or consulting contract with
any Related Party, except (i) a transaction or contract which is in the
ordinary course of such Borrower's or Significant Subsidiary's business,
including a transaction in the ordinary course of business between or
among such Borrower and one or more of its Subsidiaries, and (ii) any
other transaction which is upon fair and
59
<PAGE> 64
reasonable terms not less favorable to such Borrower or Significant
Subsidiary than it would obtain in a comparable arm's length transaction
with a Person not a Related Party. For purposes of this Subparagraph
5.02(g), the sale, transfer or disposition of more than thirty percent
(30%) of its assets (in any transaction or a series of related
transactions) by a Borrower or any of its Significant Subsidiaries shall
be deemed to be outside the ordinary course of business.
(h) Accounting Changes. None of Borrowers and their Significant
Subsidiaries will make any significant change in accounting treatment or
reporting practices, except as required or permitted by GAAP (or, in the
case of any such Significant Subsidiary domiciled in a jurisdiction
other than the United States, in accordance with generally accepted
accounting principles and practices in such jurisdiction).
5.03. Financial Covenants. Until the termination of this Agreement and
the satisfaction in full by each Borrower of all of their respective
Obligations, LSI will comply, and will cause compliance, with the following
financial covenants, unless Required Lenders shall otherwise consent in writing:
(a) Senior Debt to Total Capital. LSI will maintain a ratio of
Senior Debt to Total Capital as of each date set forth below that is not
more than the ratio set forth opposite such date:
<TABLE>
<S> <C>
September 30, 1998 0.40 to 1.00;
December 31, 1998 0.40 to 1.00;
March 31, 1999 0.40 to 1.00;
June 30, 1999 0.40 to 1.00;
The last day of each
quarter thereafter 0.35 to 1.00.
</TABLE>
(b) Quick Ratio. Commencing with the fiscal quarter ending
December 31, 1998, LSI will maintain a ratio of Consolidated Quick
Assets to Consolidated Current Liabilities as of each date set forth
below that is not less than the ratio set forth opposite such date:
<TABLE>
<S> <C>
December 31, 1998 0.70 to 1.00;
March 31, 1999 0.75 to 1.00;
June 30, 1999 0.80 to 1.00;
September 30, 1999 0.85 to 1.00;
December 31, 1999 0.90 to 1.00;
</TABLE>
60
<PAGE> 65
<TABLE>
<S> <C>
The last day of each
quarter thereafter 1.00 to 1.00;
</TABLE>
Provided, however, that, if LSI sells assets other than in the ordinary
course of business for Net Proceeds which exceed $125,000,000 on or
prior to June 30, 1999, LSI will maintain a ratio of Consolidated Quick
Assets to Consolidated Current Liabilities that is not less than 1.00 to
1.00 on the last day of the fiscal quarter in which such sale occurs and
on the last day of each fiscal quarter thereafter.
(c) Minimum Consolidated Tangible Net Worth. LSI will maintain a
Consolidated Tangible Net Worth (exclusive of the cumulative translation
adjustment account as reported in the consolidated balance sheet of LSI
and its Subsidiaries as of such date) as of the end of each fiscal
quarter of not less than (i) $1,050,000,000 plus (ii) one hundred
percent (100%) of the Net Proceeds received by LSI or any of its
Subsidiaries from the sale or issuance of equity securities (including
equity securities issued upon the conversion of Subordinated Debt) to
any Person other than LSI or any of its Subsidiaries after June 30,
1998, plus (iii) eighty percent (80%) of the sum of Consolidated Net
Income plus the charges described below in clauses (iv) and (vi) to the
extent deducted in determining Consolidated Net Income, if such sum is
positive, for each fiscal quarter elapsed after June 30, 1998, minus
(iv) one hundred percent (100%) of preproduction engineering charges not
exceeding $135,000,000 taken by LSI during 1999 as a result of the
Financial Accounting Standards Executive Committee Statement of Position
regarding capitalization of preproduction charges, minus (v) the net
value of LSI stock not exceeding $250,000,000 in aggregate amount
repurchased by LSI pursuant to employee stock ownership and purchase
plans (provided that LSI shall not so repurchase stock in an aggregate
amount which exceeds five percent (5%) of its stock outstanding as of
the last day of such fiscal quarter), minus (vi) the aggregate amount of
restructuring charges not exceeding $100,000,000 taken by LSI during the
quarter ending September 30, 1998.
(d) Debt Service Coverage Ratio. LSI will maintain a ratio of:
(i) Consolidated EBITDA, plus, to the extent deducted in
calculating such Consolidated EBITDA, the sum of (A)
preproduction engineering charges not exceeding $135,000,000
taken by LSI during 1999 as a result of the Financial Accounting
Standards Executive Committee Statement of Position regarding
capitalization of preproduction charges, plus (B) the aggregate
amount of restructuring charges not exceeding $100,000,000 taken
by LSI during the quarter ending September 30, 1998;
to
(ii) The sum of Consolidated CMLTD, plus Consolidated
Interest Expense, plus Capitalized Interest;
61
<PAGE> 66
for each period of four consecutive fiscal quarters ending as of the
date set forth below, calculated as of the end of such period, that is
not less than the ratio set forth opposite such date:
<TABLE>
<S> <C>
September 30, 1998 1.50 to 1.00;
December 31, 1998 1.50 to 1.00;
March 31, 1999 1.50 to 1.00;
June 30, 1999 1.50 to 1.00;
The last day of each
quarter thereafter 2.00 to 1.00.
</TABLE>
(e) Subordinated Debt. LSI will not permit Subordinated Debt of
LSI and its consolidated Subsidiaries to exceed $750,000,000 at any
time; and LSI will not, and will not permit any of its Subsidiaries to,
make any voluntary or optional payment or repayment on, redemption,
exchange or acquisition for value of, or any sinking fund or similar
payment with respect to, any Subordinated Debt if a Default shall then
exist or would occur as a result thereof.
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more
of the following shall constitute an "Event of Default" hereunder:
(a) Non-Payment. Either Borrower shall (i) fail to pay when due
any principal of any Loan or fail to make any payment or transfer when
due under any Lender Rate Contract or (ii) fail to pay within five (5)
Business Days after the same becomes due any interest, fee or other
payment required under the terms of this Agreement or any of the other
Credit Documents; or
(b) Specific Defaults. Either Borrower or any of its Significant
Subsidiaries shall fail to observe or perform any covenant, obligation,
condition or agreement set forth in Paragraph 5.02 or Paragraph 5.03; or
(c) Other Defaults. Either Borrower or any of its Significant
Subsidiaries shall fail to observe or perform any other covenant,
obligation, condition or agreement contained in this Agreement or the
other Credit Documents and such failure shall continue for thirty (30)
days after the earlier of (i) either Borrower's written acknowledgement
of such failure and (ii) Agent's or any Lender's written notice to
Borrowers of such failure; or
(d) Representations and Warranties. Any representation, warranty,
certificate, information or other statement (financial or otherwise)
made or furnished by or on behalf of either Borrower to Agent or any
Lender in or in connection with this Agreement or any
62
<PAGE> 67
of the other Credit Documents, or as an inducement to Agent or any
Lender to enter into this Agreement, shall be false, incorrect,
incomplete or misleading in any material respect when made (or deemed
made) or furnished; or
(e) Cross-Default. (i) Either Borrower or any of its Significant
Subsidiaries shall fail to make any payment on account of any
Indebtedness of such Person (other than the Obligations) when due
(whether at scheduled maturity, by required prepayment, upon
acceleration or otherwise) and such failure shall continue beyond any
period of grace provided with respect thereto, if the aggregate amount
of such Indebtedness exceeds $10,000,000 or the effect of such failure
is to cause, or permit the holder or holders thereof to cause,
Indebtedness of either Borrower or any of its Significant Subsidiaries
(other than the Obligations) in an aggregate amount exceeding
$10,000,000 to become due (whether at scheduled maturity, by required
prepayment, upon acceleration or otherwise) or (ii) either Borrower or
any of its Significant Subsidiaries shall otherwise fail to observe or
perform any agreement, term or condition contained in any agreement or
instrument relating to any Indebtedness of such Person (other than the
Obligations), or any other event shall occur or condition shall exist,
and such failure, event or condition shall continue beyond any period of
grace provided with respect thereto, if the effect of such failure,
event or condition is to cause, or permit the holder or holders thereof
to cause, Indebtedness of either Borrower or any of its Significant
Subsidiaries (other than the Obligations) in an aggregate amount
exceeding $10,000,000 to become due (and/or to be secured by cash
collateral); or
(f) Insolvency, Voluntary Proceedings. Either Borrower or any of
its Significant Subsidiaries shall (i) apply for or consent to the
appointment of a receiver, trustee, liquidator or custodian of itself or
of all or a substantial part of its property, (ii) be unable, or admit
in writing its inability, to pay its debts generally as they mature,
(iii) make a general assignment for the benefit of its or any of its
creditors, (iv) be dissolved or liquidated in full or in part, (v)
become insolvent (as such term may be defined or interpreted under any
applicable statute), (vi) commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or consent to any such relief or to the
appointment of or taking possession of its property by any official in
an involuntary case or other proceeding commenced against it, or (vi)
take any action for the purpose of effecting any of the foregoing; or
(g) Involuntary Proceedings. Proceedings for the appointment of
a receiver, trustee, liquidator or custodian of either Borrower or any
of its Significant Subsidiaries or of all or a substantial part of the
property thereof, or an involuntary case or other proceedings seeking
liquidation, reorganization or other relief with respect to either
Borrower or any of its Significant Subsidiaries or the debts thereof
under any bankruptcy, insolvency or other similar law now or hereafter
in effect shall be commenced and an order for relief entered or such
proceeding shall not be dismissed or discharged within sixty (60) days
of commencement; or
(h) Judgments. (i) A final nonappealable judgment or order for
the payment of money against either Borrower or any of its Significant
Subsidiaries in an amount of
63
<PAGE> 68
$25,000,000 or more in excess of amounts covered by third-party
insurance shall remain unpaid for ninety (90) days following the due
date for such payment; or (ii) any non-monetary judgment or order shall
be rendered against either Borrower or any of its Significant
Subsidiaries which has or would reasonably be expected to have a
Material Adverse Effect; or
(i) Process Issued. A warrant of attachment, execution,
distraint, or similar process against any substantial part of the assets
of either Borrower or any of its Significant Subsidiaries is issued
which remains undismissed or undischarged for a period of thirty (30)
days, if as a result thereof there is reasonably expected to occur a
Material Adverse Effect; or
(j) Seizure. All or a material part of the undertaking, assets,
rights or revenues of either Borrower or any of its Significant
Subsidiaries are seized, nationalized, expropriated or compulsorily
acquired by or under the authority of any Governmental Authority; or
(k) ERISA. (i) An ERISA Event shall occur with respect to a
Pension Plan which has resulted or could reasonably be expected to
result in liability of either Borrower or any of its Subsidiaries under
Title IV of ERISA to the Pension Plan or PBGC in an aggregate amount in
excess of $10,000,000; (ii) the commencement or increase of
contributions to, or the adoption of or the amendment of a Pension Plan
by either Borrower or any of its Subsidiaries which has resulted or
could reasonably be expected to result in an increase in Unfunded
Pension Liability among all Pension Plans in an aggregate amount in
excess of $10,000,000; or (iii) any of the representations and
warranties contained in Subparagraph 4.01(k) shall cease to be true and
correct which, individually or in combination, has resulted or could
reasonably be expected to result in a Material Adverse Effect; or
(l) Credit Documents. Any Credit Document or any material term
thereof shall cease to be, or be asserted by either Borrower or any of
its Significant Subsidiaries not to be, a legal, valid and binding
obligation of such Borrower or such Significant Subsidiary enforceable
in accordance with its terms; or
(m) Dissolution. Etc. Either Borrower or any of its Significant
Subsidiaries shall (i) liquidate, wind up or dissolve (or suffer any
liquidation, wind-up or dissolution), except to the extent expressly
permitted by clause (i) of Subparagraph 5.02(c), (ii) suspend its
operations other than in the ordinary course of business, or (iii) take
any corporate action to authorize any of the actions or events set forth
above in this Subparagraph; or
(n) Change of Control. Any Change of Control shall occur; or
(o) Material Adverse Effect. Any event(s) or condition(s) which
is (are) reasonably likely to have a Material Adverse Effect shall occur
or exist.
6.02. Remedies. At any time after the occurrence and during the
continuance of any Event of Default (other than an Event of Default referred to
in Subparagraph 6.01(f) or 6.01(g) or
64
<PAGE> 69
any Event of Default which has been cured by LSI under the LSI Guaranty), Agent
may, with the consent of the Required Lenders, or shall, upon instructions from
the Required Lenders, by written notice to Borrowers, (a) terminate the
Commitments and the obligations of Lenders to make Loans and/or (b) declare all
outstanding Obligations payable by Borrowers to be immediately due and payable
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein or in the Notes to
the contrary notwithstanding. Upon the occurrence or existence of any Event of
Default described in Subparagraph 6.01(f) or 6.01(g), immediately and without
notice, (1) the Commitments and the obligations of Lenders to make Loans shall
automatically terminate and (2) all outstanding Obligations payable by Borrowers
hereunder shall automatically become immediately due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding. In addition to the foregoing remedies, upon the
occurrence or existence of any Event of Default, Agent may exercise any other
right, power or remedy available to it under any of the Credit Documents or
otherwise by law, either by suit in equity or by action at law, or both.
6.03. Lender Rate Contract Remedies. Notwithstanding any other provision
of this Section VI, each Lender or its Affiliate which has entered into a Lender
Rate Contract shall have the right, with prior notice to Agent, but without the
approval or consent of Agent or any other Lender, (a) to declare an event of
default, termination event or other similar event thereunder which will result
in the early termination of such Lender Rate Contract, (b) to determine Swap
Termination Values in accordance with the terms of such Lender Rate Contract and
to set-off amounts between Lender Rate Contracts of such Lender, and (c) to
prosecute any legal action against either Borrower or its Subsidiaries to
enforce Swap Termination Values owing to such Lender or its Affiliate under such
Lender Rate Contracts.
65
<PAGE> 70
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.
7.01. Appointment, Powers and Immunities. Each Lender hereby appoints
and authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Lender or have any fiduciary duty to
any Lender. Notwithstanding anything to the contrary contained herein Agent
shall not be required to take any action which is contrary to this Agreement or
any other Credit Document or any applicable Governmental Rule. Neither Agent nor
any Lender shall be responsible to any other Lender for any recitals,
statements, representations or warranties made by either Borrower or any of its
Subsidiaries contained in this Agreement or in any other Credit Document, for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Credit Document or for any failure by either
Borrower or any of its Subsidiaries to perform its respective obligations
hereunder or thereunder. Agent may employ agents and attorneys-in-fact and shall
not be responsible to any Lender for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable care. Neither Agent
nor any of its directors, officers, employees, agents or advisors shall be
responsible to any Lender for any action taken or omitted to be taken by it or
them hereunder or under any other Credit Document or in connection herewith or
therewith, except for its or their own gross negligence or willful misconduct.
Except as otherwise provided under this Agreement, Agent shall take such action
with respect to the Credit Documents as shall be directed by the Required
Lenders.
7.02. Reliance by Agent. Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Agent with reasonable care. As to any other matters not
expressly provided for by this Agreement, Agent shall not be required to take
any action or exercise any discretion, but shall be required to act or to
refrain from acting upon instructions of the Required Lenders and shall in all
cases be fully protected by Lenders in acting, or in refraining from acting,
hereunder or under any other Credit Document in accordance with the instructions
of the Required Lenders, and such instructions of the Required Lenders and any
action taken or failure to act pursuant thereto shall be binding on all of
Lenders.
7.03. Defaults. Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default unless Agent has received a written notice from a
Lender or either Borrower, referring to this Agreement, describing such Default
and stating that such notice is a "Notice of Default". If Agent receives such a
notice of the occurrence of a Default, Agent shall give prompt notice thereof to
Lenders. Agent shall take such action with respect to such Default as shall be
reasonably directed by the Required Lenders; provided, however, that until Agent
shall have received such directions, Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of Lenders.
66
<PAGE> 71
7.04. Indemnification. Without limiting the Obligations of Borrowers
hereunder, each Lender agrees to indemnify Agent, ratably in accordance with
their Proportionate Shares, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against Agent in any way relating to or arising out of this
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof; provided, however, that no Lender shall be liable for
any of the foregoing to the extent they arise from Agent's gross negligence or
willful misconduct. Agent shall be fully justified in refusing to take or in
continuing to take any action hereunder unless it shall first be indemnified to
its satisfaction by Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
obligations of each Lender under this Paragraph 7.04 shall survive the payment
and performance of the Obligations, the termination of this Agreement and any
Lender ceasing to be a party to this Agreement (with respect to events which
occurred prior to the time such Lender ceased to be a Lender hereunder).
7.05. Non-Reliance. Each Lender represents that it has, independently
and without reliance on Agent, or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of the
business, prospects, management, financial condition and affairs of Borrowers
and their Subsidiaries and its own decision to enter into this Agreement and
agrees that it will, independently and without reliance upon Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own appraisals and decisions in taking or not
taking action under this Agreement. Neither Agent nor any of its affiliates nor
any of their respective directors, officers, employees, agents or advisors shall
(a) be required to keep any Lender informed as to the performance or observance
by either Borrower or any of its Subsidiaries of the obligations under this
Agreement or any other document referred to or provided for herein or to make
inquiry of, or to inspect the properties or books of either Borrower or any of
its Subsidiaries; (b) have any duty or responsibility to provide any Lender with
any credit or other information concerning either Borrower or any of its
Subsidiaries which may come into the possession of Agent, except for notices,
reports and other documents and information expressly required to be furnished
to Lenders by Agent hereunder; or (c) be responsible to any Lender for (i) any
recital, statement, representation or warranty made by either Borrower or any
officer, employee or agent of either Borrower in this Agreement or in any of the
other Credit Documents, (ii) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any Credit Document, (iii)
the value or sufficiency of any collateral or the validity or perfection of any
of the liens or security interests intended to be created by the Credit
Documents, or (iv) any failure by either Borrower to perform its obligations
under this Agreement or any other Credit Document.
7.06. Resignation or Removal of Agent. Agent may resign at any time by
giving thirty (30) days prior written notice thereof to Borrowers and Lenders,
and Agent may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent, which Agent, if not a Lender, shall be
reasonably acceptable to Borrowers; provided, however, that Borrowers shall have
no right to approve a successor Agent if a Default has occurred and is
continuing. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent
67
<PAGE> 72
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from the duties and obligations thereafter arising hereunder. After
any retiring Agent's resignation or removal hereunder as Agent, the provisions
of this Section VII shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
7.07. Agent in its Individual Capacity. Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of banking
or other business with Borrowers and their Subsidiaries and affiliates as though
Agent were not Agent hereunder. With respect to Loans, if any, made by Agent in
its capacity as a Lender, Agent in its capacity as a Lender shall have the same
rights and powers under this Agreement and the other Credit Documents as any
other Lender and may exercise the same as though it were not Agent, and the
terms "Lender" or "Lenders" shall include Agent in its capacity as a Lender.
SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
either Borrower, any Lender or Agent under this Agreement or the other Credit
Documents shall be in writing and faxed, mailed or delivered, if to either
Borrower or Agent, at its respective facsimile number or address set forth below
or, if to any Lender, at the address or facsimile number specified for such
Lender in Part B of Schedule I (or to such other facsimile number or address for
any party as indicated in any notice given by that party to the other parties).
All such notices and communications shall be effective (a) when sent by an
overnight courier service of recognized standing, on the second Business Day
following the deposit with such service; (b) when mailed, first class postage
prepaid and addressed as aforesaid through the United States Postal Service or
registered mail through the Japanese Post Office, upon receipt; (c) when
delivered by hand, upon delivery; and (d) when faxed, upon confirmation of
receipt; provided, however, that any notice delivered to Agent under Section II
shall not be effective until received by Agent.
Agent: For notices related to the Japanese Borrowing:
ABN AMRO Bank N.V.
Tokyo Branch
13F, Shiroyama JT Mori Building
4-3-1, Toranomon, Minato-ku
Tokyo 105
Japan
Attn: Kiyoharu Michiwaki or Takamasa Marito
Tel. No: 81-3-5405-6575 or 6565
Fax No: 81-3-5405-6902 or 6903
68
<PAGE> 73
For notices related to any U.S. Borrowing, all
other notices and copies of notices related to the
Japanese Borrowing:
ABN AMRO Bank N.V.
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
U.S.A.
Attn: Linda Boardman
Tel. No: (212) 314-1724
Fax. No: (212) 314-1712
With a copy in each case to:
ABN AMRO Bank N.V.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn: Thomas R. Wagner
Tel: (415) 984-3734
Fax: (415) 362-3524
LSI: LSI Logic Corporation
1551 McCarthy Boulevard
Milpitas, CA 95035
Attn: Mark R. Kent, Treasurer
Mail Stop D106
Tel: (408) 433-7189
Fax: (408) 433-6896
LLJS: LSI Logic Japan Semiconductor, Inc.
10, Kitahara
Tsukuba-shi
Ibaraki, Japan
Attn: Makoto Kaneda
Tel: (81) ###-##-####
Fax: (81) ###-##-####
with a copy to LSI as provided above.
Each Notice of U.S. Borrowing, Notice of U.S. Borrowing Conversion and Notice of
U.S. Borrowing Interest Period Selection shall be given by LSI to Agent's New
York office located at the address referred to above during such office's normal
business hours; provided, however, that any such notice received by Agent after
11:00 a.m. (New York time) on any Business Day shall be deemed received by Agent
on the next Business Day. The Notice of Japanese Borrowing and each Notice of
Japanese Borrowing Interest Period Selection shall be given by LLJS to Agent's
Tokyo office at the address referred to above during such office's normal
69
<PAGE> 74
business hours; provided, however, that any such notice received by Agent after
10:00 a.m. (Tokyo time) on any Business Day shall be deemed received by Agent on
the next Business Day. In any case where this Agreement authorizes notices,
requests, demands or other communications by Borrowers to Agent or any Lender to
be made by telephone or facsimile, Agent or any Lender may conclusively presume
that anyone purporting to be a Person designated in any incumbency certificate
or other similar document received by Agent or a Lender is such a Person.
8.02. Expenses. LSI agrees to pay promptly upon receipt of an invoice
therefor, whether or not any Loan is made hereunder, (a) all reasonable fees and
expenses, including reasonable attorneys' fees and expenses, incurred by Agent
in connection with the syndication of the credit facilities provided hereunder,
the preparation, negotiation, execution and delivery of, and the exercise of its
duties under, this Agreement and the other Credit Documents, and the
preparation, negotiation, execution and delivery of amendments and waivers
hereunder and thereunder and (b) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and Lenders in the
enforcement or attempted enforcement of any of the Obligations or in preserving
any of Agent's or Lenders' rights and remedies (including, without limitation,
all such fees and expenses incurred in connection with any "workout" or
restructuring affecting the Credit Documents or the Obligations or any
bankruptcy or similar proceeding involving either Borrower or any of its
Subsidiaries). As used herein, the term "reasonable attorneys' fees and
expenses" shall include, without limitation, allocable costs and expenses of
Agent's and Lenders' in-house legal counsel and staff. The obligations of LSI
under this Paragraph 8.02 shall survive the payment and performance of the
Obligations and the termination of this Agreement.
8.03. Indemnification. To the fullest extent permitted by law, LSI
agrees to protect, indemnify, defend and hold harmless Agent, Lenders and their
Affiliates and their respective directors, officers, employees, agents and
advisors ("Indemnitees") from and against any and all liabilities, losses,
damages or expenses of any kind or nature and from any suits, claims or demands
(including in respect of or for reasonable attorney's fees and other expenses)
arising on account of or in connection with any matter or thing or action or
failure to act by Indemnitees, or any of them, arising out of or relating to the
Credit Documents or any transaction contemplated thereby, including without
limitation any use by either Borrower of any proceeds of the Loans, except to
the extent such liability arises from the willful misconduct or gross negligence
of such Indemnitee. Upon receiving knowledge of any suit, claim or demand
asserted by a third party that Agent or any Lender believes is covered by this
indemnity, Agent or such Lender shall give LSI notice of the matter and an
opportunity to defend it, at LSI's sole cost and expense, with legal counsel
satisfactory to Agent or such Lender, as the case may be. Agent or such Lender
may also require LSI to defend the matter. Any failure or delay of Agent or any
Lender to notify LSI of any such suit, claim or demand shall not relieve LSI of
its obligations under this Paragraph 8.03 but shall reduce such obligations to
the extent of any increase in those obligations caused solely by any such
failure or delay which is unreasonable. The obligations of LSI under this
Paragraph 8.03 shall survive the payment and performance of the Obligations and
the termination of this Agreement.
8.04. Waivers; Amendments. Any term, covenant, agreement or condition of
this Agreement or any other Credit Document may be amended or waived, and any
consent under
70
<PAGE> 75
this Agreement or any other Credit Document may be given, if such
amendment, waiver or consent is in writing and is signed by Borrowers and the
Required Lenders (or Agent on behalf of the Required Lenders with the written
approval of the Required Lenders); provided, however that:
(a) Any amendment, waiver or consent which would (i) reduce any
fees or other amounts payable for the account of all Lenders hereunder
or extend the scheduled date for payment of any such fees or amounts,
(ii) amend this Paragraph 8.04, (iii) amend the definition of Required
Lenders or (iv) release the LSI Guaranty or any substantial part of any
other guaranty or collateral which may be granted under the Security
Documents, must be in writing and signed or approved in writing by all
Lenders;
(b) Any amendment, waiver or consent which would (i) extend the
Revolving Termination Date with respect to the U.S. Revolving
Borrowings, (ii) increase the Total U.S. Revolving Commitment or (iii)
reduce the principal of or interest on the U.S. Revolving Loans or the
U.S. Revolving Commitment Fees or any other fees or amounts payable for
the account of all U.S. Lenders with U.S. Revolving Commitments or
extend the scheduled date for payment of any such principal, interest,
fees or amounts, must be in writing and signed or approved in writing by
all U.S. Lenders with U.S. Revolving Commitments or U.S. Revolving
Loans;
(c) Any amendment, waiver or consent which would (i) extend the
U.S. 364 Day Termination Date, (ii) increase the Total U.S. 364 Day
Commitment or (iii) reduce the principal of or interest on the U.S. 364
Day Loans or the U.S. 364 Day Commitment Fees or any other fees or
amounts payable for the account of all U.S. Lenders with U.S. 364 Day
Commitments or extend the scheduled date for payment of any such
principal, interest, fees or amounts, must be in writing and signed or
approved in writing by all U.S. Lenders with U.S. 364 Day Commitments or
U.S. 364 Day Loans;
(d) Any amendment, waiver or consent which would (i) extend the
Maturity with respect to the Japanese Borrowing, (ii) increase the Total
Japanese Commitment or (iii) reduce the principal of or interest on the
Japanese Loans or any other fees or amounts payable for the account of
all Japanese Lenders hereunder or extend the scheduled date for payment
of any such principal, interest, fees or amounts, must be in writing and
signed or approved in writing by all Japanese Lenders;
(e) Any amendment, waiver or consent which would increase or
decrease the Commitment of any Lender (except for a pro rata decrease in
the Commitments of all Lenders with the same type of Commitment) must be
in writing and signed by such Lender; and
(f) Any amendment, waiver or consent which affects the rights or
obligations of Agent must be in writing and signed by Agent.
No failure or delay by Agent or any Lender in exercising any right under this
Agreement or any other Credit Document shall operate as a waiver thereof or of
any other right hereunder or thereunder nor shall any single or partial exercise
of any such right preclude any other further
71
<PAGE> 76
exercise thereof or of any other right hereunder or thereunder. Unless
otherwise specified in such waiver or consent, a waiver or consent given
hereunder shall be effective only in the specific instance and for the
specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Credit Documents
shall be binding upon and inure to the benefit of Borrowers, Lenders,
Agent, all future holders of the Notes and their respective successors
and permitted assigns, except that neither Borrower may assign or
transfer any of its rights or obligations under any Credit Document
without the prior written consent of Agent and each Lender.
(b) Participations. Any Lender may at any time sell to one or
more banks or other financial institutions ("Participants")
participating interests in any Loan owing to such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of
such Lender under this Agreement and the other Credit Documents. In the
event of any such sale by a Lender of participating interests, such
Lender's obligations under this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of its Notes for all purposes under this
Agreement and Borrowers and Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement pursuant to which any
such sale is effected may require the selling Lender to obtain the
consent of the Participant in order for such Lender to agree in writing
to any amendment, waiver or consent of a type specified in clause
(a)(iv), (b)(i), (b)(iii), (c)(i), (c)(iii), (d)(i), (d)(iii) or
Subparagraph (e) of Paragraph 8.04 but may not otherwise require the
selling Lender to obtain the consent of such Participant to any other
amendment, waiver or consent hereunder. Borrowers also agree that any
Lender which has transferred any participating interest in its
Commitments or Loans shall, notwithstanding any such transfer, be
entitled to the full benefits accorded such Lender under Paragraph 2.10,
Paragraph 2.11, and Paragraph 2.12, as if such Lender had not made such
transfer.
(c) Assignments. Any Lender may, at any time, sell and assign to
any other Lender or any Eligible Assignee (individually, an "Assignee
Lender") all or a portion of its rights and obligations under this
Agreement and the other Credit Documents (such a sale and assignment to
be referred to herein as an "Assignment") pursuant to an assignment
agreement in the form of Exhibit H (an "Assignment Agreement"), executed
by each Assignee Lender and such assignor Lender (an "Assignor Lender")
and delivered to Agent for its acceptance and recording in the Register;
provided, however, that:
(i) Without the written consent of Agent and, if no
Default has occurred and is continuing, LSI (which consent of
Agent and LSI shall not be unreasonably withheld), no U.S. Lender
may make any Assignment of its U.S. Revolving Commitment, U.S.
364 Day Commitment or U.S. Loans to any Assignee Lender which is
not, immediately prior to such Assignment, a U.S. Lender
hereunder or an Affiliate thereof acting through an office or
branch located in the United States;
72
<PAGE> 77
(ii) Without the written consent of Agent and, if no
Default has occurred and is continuing, LLJS (which consent of
Agent and LLJS shall not be unreasonably withheld), no Japanese
Lender may make any Assignment of its Japanese Commitment or
Japanese Loans to any Assignee Lender which is not, immediately
prior to such Assignment, a Japanese Lender hereunder or an
Affiliate thereof acting through an office or branch located in
Japan;
(iii) Without the written consent of Agent and, if no
Default has occurred and is continuing, LSI (which consent of
Agent and LSI shall not be unreasonably withheld), no U.S. Lender
may make any Assignment of its U.S. Revolving Commitment, U.S.
364 Day Commitment or U.S. Loans to any Assignee Lender if, after
giving effect to such Assignment, the U.S. Revolving Commitment,
the U.S. 364 Day Commitment or the U.S. Loans of such Lender or
such Assignee Lender would in the aggregate be less than Ten
Million Dollars ($10,000,000) (except that a U.S. Lender may make
an Assignment which reduces its U.S. Revolving Commitment, U.S.
364 Day Commitment and U.S. Loans to zero without the written
consent of LSI and Agent);
(iv) Without the written consent of Agent and, if no
Default has occurred and is continuing, LLJS (which consent of
Agent and LLJS shall not be unreasonably withheld), no Japanese
Lender may make any Assignment of its Japanese Commitment or
Japanese Loans to any Assignee Lender if, after giving effect to
such Assignment, the Japanese Commitment or Japanese Loans of
such Lender or such Assignee Lender would in the aggregate be
less than One Billion Yen (Y1,000,000,000) (except that a
Japanese Lender may make an Assignment which reduces its Japanese
Commitment and Japanese Loans to zero without the written consent
of LSI and Agent);
(v) Without the written consent of Agent and, if no
Default has occurred and is continuing, LSI (which consent of
Agent and LSI shall not be unreasonably withheld), no U.S. Lender
with a U.S. Revolving Commitment may make any Assignment of its
U.S. Revolving Commitment or U.S. Revolving Loans which does not
assign and delegate an equal pro rata interest in all rights,
duties and obligations of such Lender under this Agreement and
the other Credit Documents (except for its rights and duties, if
any, relating to its U.S. 364 Day Commitment or U.S. 364 Day
Loans or its Japanese Commitment or Japanese Loans);
(vi) Without the written consent of Agent and, if no
Default has occurred and is continuing, LSI (which consent of
Agent and LSI shall not be unreasonably withheld), no U.S. Lender
with a U.S. 364 Day Commitment may make any Assignment of its
U.S. 364 Day Commitment or U.S. 364 Day Loans which does not
assign and delegate an equal pro rata interest in all rights,
duties and obligations of such Lender under this Agreement and
the other Credit Documents (except for its rights and duties, if
any, relating to its U.S. Revolving Commitment or U.S. Revolving
Loans or its Japanese Commitment or Japanese Loans);
73
<PAGE> 78
(vii) Without the written consent of Agent and, if no
Default has occurred and is continuing, LLJS (which consent of
Agent and LLJS shall not be unreasonably withheld), no Japanese
Lender may make any Assignment of its Japanese Commitment or
Japanese Loan which does not assign and delegate an equal pro
rata interest in all rights, duties and obligations of such
Lender under this Agreement and the other Credit Documents
(except for its rights and duties, if any, relating to its U.S.
Revolving Commitment or U.S. Revolving Loans or its U.S. 364 Day
Commitment or U.S. 364 Day Loans); and
(viii) Any Assignor Lender which is, or which has an
Affiliate which is, a party to a Lender Rate Contract may not
make an Assignment of all of its Commitment or all of its Loans
to an Assignee Lender unless such Assignee Lender or its
Affiliate shall also assume all obligations of such Assignor
Lender or its Affiliate with respect to such Lender Rate
Contract.
Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (A) each Assignee
Lender thereunder shall be a Lender hereunder with Commitments or Loans
as set forth on Attachment 1 to such Assignment Agreement (under the
caption "Commitments or Loans After Assignment") and shall have the
rights, duties and obligations of such a Lender under this Agreement and
the other Credit Documents, and (B) the Assignor Lender thereunder shall
be a Lender with Commitments or Loans as set forth on Attachment 1 to
such Assignment Agreement (under the caption "Commitments or Loans After
Assignment"), or, if the Commitments or Loans of the Assignor Lender
have been reduced to zero, the Assignor Lender shall cease to be a
Lender and to have any obligation to make any Loan; provided, however,
that any such Assignor Lender which ceases to be a Lender shall continue
to be entitled to the benefits of any provision of this Agreement which
by its terms survives the termination of this Agreement. Each Assignment
Agreement shall be deemed to amend Schedule I to the extent, and only to
the extent, necessary to reflect the addition of each Assignee Lender,
the deletion of each Assignor Lender which reduces its Commitments or
Loans to zero, and the resulting adjustment of Commitments or Loans
arising from the purchase by each Assignee Lender of all or a portion of
the rights and obligations of an Assignor Lender under this Agreement
and the other Credit Documents. On or prior to the Assignment Effective
Date determined pursuant to each Assignment Agreement, LSI, at its own
expense, shall, if requested by Assignee Lenders, execute and deliver to
Agent, in exchange for the surrendered Notes, if any, of the Assignor
Lender thereunder, new Notes to the order of each Assignee Lender
thereunder and, if the Assignor Lender is continuing as a Lender
hereunder, new Notes to the order of the Assignor Lender. The Notes
surrendered by the Assignor Lender shall be returned by Agent to LSI
marked "Replaced". Each Assignee Lender which becomes a U.S. Lender and
was not previously a U.S. Lender hereunder and which is not incorporated
under the laws of the United States of America or a state thereof shall,
within three (3) Business Days of becoming a U.S. Lender, deliver to LSI
and Agent such certificates and other evidence as LSI or Agent may
reasonably request to establish that such Lender is entitled to receive
payments under this Agreement on account of its U.S. Loans without
deduction or withholding of any United States federal income taxes. Each
Assignee Lender which
74
<PAGE> 79
becomes a Japanese Lender and was not previously a Japanese Lender
hereunder and which is not incorporated under the laws of Japan shall,
within three (3) Business Days of becoming a Japanese Lender, deliver to
LLJS and Agent such certificates and other evidence as LLJS or Agent may
reasonably request to establish that such Lender is entitled to receive
payments under this Agreement on account of its Japanese Loans without
deduction or withholding of any Japanese income taxes.
(d) Register. Agent shall maintain at its address referred to in
Paragraph 8.01 a copy of each Assignment Agreement delivered to it and a
register (the "Register") for the recordation of the names and addresses
of Lenders and the Commitments or Loans of each Lender from time to
time. The entries in the Register shall be conclusive in the absence of
manifest error, and Borrowers, Agent and Lenders may treat each Person
whose name is recorded in the Register as the owner of the Commitments
or Loans recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by either Borrower or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Lender and an Assignee Lender (and, to the
extent required by Subparagraph 8.05(c), by Borrowers and Agent)
together with payment to Agent by Assignor Lender of a registration and
processing fee of $3,000, Agent shall (i) promptly accept such
Assignment Agreement and (ii) on the Assignment Effective Date
determined pursuant thereto record the information contained therein in
the Register and give notice of such acceptance and recordation to
Lenders and Borrowers. Agent may, from time to time at its election,
prepare and deliver to Lenders and Borrowers a revised Schedule I
reflecting the names, addresses and respective Commitments or Loans of
all Lenders then parties hereto.
(f) Confidentiality. Subject to Paragraph 8.12, Agent and Lenders
may disclose the Credit Documents and any financial or other information
relating to Borrowers or any of their Subsidiaries to each other or to
any potential Participant or Assignee Lender.
(g) Pledges to Federal Reserve Banks. Notwithstanding any other
provision of this Agreement, any Lender may at any time assign all or a
portion of its rights under this Agreement and the other Credit
Documents to a Federal Reserve Bank. No such assignment shall relieve
the assigning Lender from its obligations under this Agreement and the
other Credit Documents.
75
<PAGE> 80
8.06. Setoff; Security Interest.
(a) Setoff. In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, with the prior
consent of Agent but without prior notice to or consent of Borrowers,
any such notice and consent being expressly waived by Borrowers to the
extent permitted by applicable law, upon the occurrence and during the
continuance of an Event of Default, to set-off and apply against the
Obligations of either Borrower any amount owing from such Lender to such
Borrower. The aforesaid right of set-off may be exercised by such Lender
against a Borrower or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver or
execution, judgment or attachment creditor of such Borrower or against
anyone else claiming through or against such Borrower or such trustee in
bankruptcy, debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor, notwithstanding
the fact that such right of set-off may not have been exercised by such
Lender at any prior time. Each Lender agrees promptly to notify the
applicable Borrower after any such set-off and application made by such
Lender, provided that the failure to give such notice shall not affect
the validity of such set-off and application.
(b) Security Interest. As security for the Obligations, each
Borrower hereby grants to Agent and each Lender, for the benefit of all
Lenders, a continuing security interest in any and all deposit accounts
or moneys of such Borrower now or hereafter maintained with such Lender.
Each Lender shall have all of the rights of a secured party with respect
to such security interest.
8.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
8.08. Partial Invalidity. If at any time any provision of this Agreement
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
8.09. Jury Trial. EACH OF BORROWERS, LENDERS AND AGENT, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.
8.10. Counterparts. This Agreement 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.
76
<PAGE> 81
8.11. Borrowers' Liabilities. LSI is individually liable for the payment
of the U.S. Revolving Commitment Fees, the U.S. 364 Day Commitment Fees and the
principal of, interest on and all other amounts related to the U.S. Loans and
all expenses and indemnification payable under Paragraphs 8.02 and 8.03, and
LLJS is individually liable for the payment of the principal of, interest on and
all other amounts related to the Japanese Loans. LSI also is liable for the
payment and performance of all Obligations of LLJS under this Agreement and the
other Credit Documents as provided in the LSI Guaranty.
8.12. Confidentiality. Neither any Lender nor Agent shall disclose to
any Person any information with respect to Borrowers or any of their
Subsidiaries which is furnished pursuant to this Agreement or under the other
Credit Documents, except that any Lender or Agent may disclose any such
information (a) to its own directors, officers, employees, auditors, counsel and
other advisors and to its Affiliates to the extent reasonably determined by such
Lender or Agent to be necessary for the administration or enforcement of the
Credit Documents; (b) to any other Lender or Agent; (c) which is otherwise
available to the public; (d) if required or appropriate in any report, statement
or testimony submitted to any Governmental Authority having or claiming to have
jurisdiction over such Lender or Agent; (e) if required in response to any
summons or subpoena; (f) in connection with any enforcement by Lenders and Agent
of their rights under this Agreement or the other Credit Documents or any
litigation among the parties relating to the Credit Documents or the
transactions contemplated thereby; (g) to comply with any requirement of law
applicable to such Lender or Agent; (h) to any Assignee Lender or Participant or
any prospective Assignee Lender or Participant, provided that such Assignee
Lender or Participant or prospective Assignee Lender or Participant agrees to be
bound by this Paragraph 8.12; or (i) otherwise with the prior consent of
Borrowers; provided, however, that (i) any Lender or Agent served with any
summons or subpoena demanding the disclosure of any such information shall use
reasonable efforts to notify Borrowers promptly of such summons or subpoena if
not prohibited by any requirement of law and, if requested by Borrowers and not
disadvantageous to such Lender or Agent, to cooperate with Borrowers in
obtaining a protective order restricting such disclosure, and (ii) any
disclosure made in violation of this Agreement shall not affect the obligations
of Borrowers and their Subsidiaries under this Agreement and the other Credit
Documents.
8.13. Consent to Jurisdiction. Each Borrower irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of California and the
courts of the United States of America located in the Northern District of
California and agrees that any legal action, suit or proceeding arising out of
or relating to this Agreement or any of the other Credit Documents may be
brought against such party in any such courts. Final judgment against either
Borrower in any such action, suit or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment, a certified or
exemplified copy of which shall be conclusive evidence of the judgment, or in
any other manner provided by law. Nothing in this Paragraph 8.13 shall affect
the right of Agent or any Lender to commence legal proceedings or otherwise sue
either Borrower in any other appropriate jurisdiction, or concurrently in more
than one jurisdiction, or to serve process, pleadings and other papers upon
either Borrower in any manner authorized by the laws of any such jurisdiction.
Each Borrower agrees that process served either personally or by registered mail
shall, to the extent permitted by law, constitute adequate service of process in
any such suit. Without limiting the foregoing, each Borrower hereby appoints, in
the case of any such action or proceeding brought in the courts of or in the
State of California, CT Corporation,
77
<PAGE> 82
with offices on the date hereof at 818 West Seventh Street, Los Angeles,
California 90017, to receive for it and on its behalf, service of process in the
State of California with respect thereto, provided each Borrower may appoint any
other Person, reasonably acceptable to Agent, with offices in the State of
California to replace such agent for service of process upon delivery to Agent
of a reasonably acceptable agreement of such new agent agreeing so to act. Each
Borrower irrevocably waives to the fullest extent permitted by applicable law
(a) any objection which it may have now or in the future to the laying of the
venue of any such action, suit or proceeding in any court referred to in the
first sentence above; (b) any claim that any such action, suit or proceeding has
been brought in an inconvenient forum; (c) its right of removal of any matter
commenced by any other party in the courts of the State of California to any
court of the United States of America; (d) any immunity which it or its assets
may have in respect of its obligations under this Agreement or any other Credit
Document from any suit, execution, attachment (whether provisional or final, in
aid of execution, before judgment or otherwise) or other legal process; and (e)
any right it may have to require the moving party in any suit, action or
proceeding brought in any of the courts referred to above arising out of or in
connection with this Agreement or any other Credit Document to post security for
the costs of such Borrower or to post a bond or to take similar action.
8.14. Effect on Existing Credit Agreement. Borrowers, Agent and Lenders
agree that on and after the date that this Agreement is executed by all parties
hereto, (a) this Agreement shall amend, restate in its entirety and replace,
without notation, the Existing Credit Agreement, (b) all obligations of the
Japanese Lenders to make additional Japanese Loans to LLJS under the Existing
Credit Agreement shall be terminated and (c) the LSI Guaranty shall remain in
full force and effect with respect to this Agreement and the obligations of LLJS
hereunder; provided, however, that nothing contained herein shall (i) operate as
a waiver of any right, power or remedy of Agent or any Lender under the Existing
Credit Agreement or any related document, instrument or agreement or (ii)
extinguish or impair any obligations of either Borrower under the Existing
Credit Agreement or any related document, instrument or agreement except to the
extent any such obligation is actually satisfied by such Borrower; and provided,
further, that all Loans outstanding under the Existing Credit Agreement shall
remain outstanding and shall be deemed to have been made under this Agreement on
a pro rata basis by the Lenders hereunder in accordance with their respective
Proportionate Shares for the applicable category of Loan.
[The first signature page follows.]
78
<PAGE> 83
IN WITNESS WHEREOF, Borrowers, Lenders and Agent have caused this
Agreement to be executed as of the day and year first above written.
BORROWERS: LSI LOGIC CORPORATION
By: /s/ R. DOUGLAS NORBY
--------------------------------
Name: R. Douglas Norby
Title: Exec. VP/CEO
LSI LOGIC JAPAN SEMICONDUCTOR, INC.
By: /s/ R. DOUGLAS NORBY
--------------------------------
Name: R. Douglas Norby
Title: Representative Director
AGENT: ABN AMRO BANK N.V.
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
LENDERS: ABN AMRO BANK N.V.
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
S-1
<PAGE> 84
IN WITNESS WHEREOF, Borrowers, Lenders and Agent have caused this
Agreement to be executed as of the day and year first above written.
BORROWERS: LSI LOGIC CORPORATION
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
LSI LOGIC JAPAN SEMICONDUCTOR, INC.
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
AGENT: ABN AMRO BANK N.V.
By: /s/ THOMAS R. WAGNER
--------------------------------
Name: Thomas R. Wagner
Title: Group Vice President
By: /s/ NANCI MEYER
--------------------------------
Name: Nanci Meyer
Title: Vice President
LENDERS: ABN AMRO BANK N.V.
By: /s/ THOMAS R. WAGNER
--------------------------------
Name: Thomas R. Wagner
Title: Group Vice President
By: /s/ NANCI MEYER
--------------------------------
Name: Nanci Meyer
Title: Vice President
S-1
<PAGE> 85
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ DOUGLAS C. WATSON
--------------------------------
Name: Douglas C. Watson
Title: Vice President
By: ________________________________
Name: __________________________
Title: _________________________
BANKBOSTON, N.A.
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
THE BANK OF NOVA SCOTIA
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
S-2
<PAGE> 86
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
BANKBOSTON, N.A.
By: /s/ JOHN B. DESMOND
--------------------------------
Name: John B. Desmond
Title: Vice President
By: ________________________________
Name: __________________________
Title: _________________________
THE BANK OF NOVA SCOTIA
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
S-2
<PAGE> 87
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: __________________________________
Name: ____________________________
Title: ___________________________
By: __________________________________
Name: ____________________________
Title: ___________________________
BANKBOSTON, N.A.
By: __________________________________
Name: ____________________________
Title: ___________________________
By: __________________________________
Name: ____________________________
Title: ___________________________
THE BANK OF NOVA SCOTIA
By: /s/ M. VAN OTTERLOO
----------------------------------
Name: M. Van Otterloo
Title: Senior Relationship Manager
By: __________________________________
Name: ____________________________
Title: ___________________________
S-2
<PAGE> 88
FLEET NATIONAL BANK
By: /s/ MATHEW M. GLAUNINGER
--------------------------------
Name: Mathew M. Glauninger
Title: VP
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
KEYBANK NATIONAL ASSOCIATION
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
By:
---------------------------------
Name:
---------------------------
Title:
--------------------------
S-3
<PAGE> 89
FLEET NATIONAL BANK
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ K. IWATA
--------------------------------
Name: K. Iwata
Title: Deputy General Manager
KEYBANK NATIONAL ASSOCIATION
By: ________________________________
Name: __________________________
Title: _________________________
By: ________________________________
Name: __________________________
Title: _________________________
S-3
<PAGE> 90
FLEET NATIONAL BANK
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: _________________________________
Name: ___________________________
Title: __________________________
By: _________________________________
Name: ___________________________
Title: __________________________
KEYBANK NATIONAL ASSOCIATION
By: /s/ MARY K. YOUNG
---------------------------------
Name: Mary K. Young
Title: Commercial Banking Officer
S-3
<PAGE> 91
SCHEDULE I
LENDERS
PART A - COMMITMENTS
<TABLE>
<CAPTION>
U.S.
LENDER REVOLVING U.S 364 DAY JAPANESE
COMMITMENT COMMITMENT COMMITMENT
- -------------------------- --------------------------------------------------------------
<S> <C> <C> <C>
ABN AMRO Bank N.V. $267,645,368.09 $77,876,106.42 Y8,600,000,000
Bank of America National 46,476,769.95 13,523,230.05
Trust and Savings
Association
BankBoston, N.A. 38,730,641.63 11,269,358.37
The Bank of Nova Scotia 46,476,769.95 13,523,230.05
Fleet National Bank 38,730,641.63 11,269,358.37
The Industrial Bank of 30,984,513.30 9,015,486.70
Japan, Limited
KeyBank National 46,476,769.95 13,523,230.05
Association
TOTAL $515,521,474.51 $150,000,000.00 Y8,600,000,000
</TABLE>
I-1
<PAGE> 92
PART B - ADDRESSES FOR NOTICES, ETC.
ABN AMRO BANK N.V.
Domestic Lending Office and Euro-Dollar Lending Office:
ABN AMRO Bank N.V.
135 South LaSalle Street
Chicago, IL 60603
Japanese Lending Office:
ABN AMRO Bank N.V.
Tokyo Branch
13F, Shiroyama JT Mori Building
4-3-1, Toranomon, Minato-ku
Tokyo 105, Japan
Address for Notices related to U.S. Borrowings:
ABN AMRO Bank N.V.
San Francisco International Branch
101 California Street, Suite 4550
San Francisco, CA 94111
Attn: Thomas R. Wagner
Tel. No: (415) 984-3734
Fax No: (415) 362-3524
Address for Notices related to the Japanese Borrowing:
ABN AMRO Bank N.V.
Tokyo Branch
13F, Shiroyama JT Mori Building
4-3-1, Toranomon, Minato-ku
Tokyo 105, Japan
Attn: Kiyoharu Michiwaki or Takamasa Marito
Tel. No: 81-3-5405-6575 or 6565
Fax No: 81-3-5405-6902 or 6903
II-2
<PAGE> 93
With a copy of all notices to:
ABN AMRO North America, Inc.
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
Attn: Linda Boardman
Tel. No: (212) 314-1724
Fax No: (212) 314-1712
Wiring Instructions for U.S. Borrowings:
ABN AMRO Bank N.V.
New York, New York
RT/ABA No.: 026009580
Account Name: ABN AMRO Bank N.V. - Chicago CPU
Account No.: 650-001-1789-41
Reference: LSI Logic Corporation
Wiring Instructions for the Japanese Borrowing:
Paying Bank: Sakura Bank, Tokyo Eigyo-bu
Beneficiary: Oranda Ginko Tokyo Shiten
(Japanese Account Name for ABN AMRO Bank Tokyo Branch)
Type of Account: Current
Account No.: 1008000
Reference: LSI Logic Japan 1998 Credit Facility
- -or-
BOJ Net (Bank of Japan Financial Network System)
Tohzo Yokin Furikae
Account No.: 0422-001
Settlement: Kokan Jiri
II-3
<PAGE> 94
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Domestic Lending Office and Euro-Dollar Lending Office:
Bank of America National Trust and Savings Association
Global Payments Operations #5693
1850 Gateway Boulevard, 3rd Floor
Concord, CA 94520
Address for Notices related to U.S. Borrowings:
Bank of America National Trust and Savings Association
Global Payments Operations #5693
1850 Gateway Boulevard, 3rd Floor
Concord, CA 94520
Attn: John Sanchez, Account Administrator
Tel. No: (925) 675-7331
Fax No: (925) 675-7531 or 7532
Wiring Instructions for U.S. Borrowings:
Bank of America National Trust and Savings Association
Concord, CA
ABA No.: 121000358
Account No.: 12331-83920
Reference: LSI Logic Corporation
II-4
<PAGE> 95
THE BANK OF NOVA SCOTIA
Domestic Lending Office and Euro-Dollar Lending Office:
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Suite 2700
Atlanta, GA 30308
Address for Notices related to U.S. Borrowings:
The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, CA 94104
Attn: Chris Osborn
Tel. No: (415) 986-1100
Fax No: (415) 397-0791
Wiring Instructions for U.S. Borrowings:
The Bank of Nova Scotia
One Liberty Plaza
New York, NY
ABA No.: 026002532
Account Name: The Bank of Nova Scotia
Account No.: 0610135
Reference: LSI Logic Corporation
II-5
<PAGE> 96
BANKBOSTON, N.A.
Domestic Lending Office and Euro-Dollar Lending Office:
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
Address for Notices related to U.S. Borrowings:
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
Attn: Anthony Dunn
Tel. No: (617) 434-9625
Fax No: (617) 434-9820
Wiring Instructions for U.S. Borrowings:
BankBoston, N.A.
100 Federal Street
Boston, MA 02110
ABA No.: 011-000-390
Account No.: 540-99647
Reference: LSI Logic Corporation
II-6
<PAGE> 97
FLEET NATIONAL BANK
Domestic Lending Office and Euro-Dollar Lending Office:
Fleet National Bank
One Federal Street, Mail Stop MAOF D07A
Boston, MA 02110
Address for Notices related to U.S. Borrowings:
Fleet National Bank
One Federal Street, Mail Stop MAOF D07A
Boston, MA 02110
Attn: Mat Glauninger
Tel. No: (617) 346-0029
Fax No: (617) 346-0151
With a copy of all notices to:
Fleet National Bank
One Federal Street, Mail Stop MAOF D07A
Boston, MA 02110
Attn: Scott Lander
Tel. No: (617) 346-5424
Fax No: (617) 346-0151
Wiring Instructions for U.S. Borrowings:
Fleet National Bank
Boston, MA
ABA No.: 011000138
Account No.: 151-0351-03156
For further credit to Commercial Loan in Process
Reference: LSI Logic
II-7
<PAGE> 98
THE INDUSTRIAL BANK OF JAPAN, LIMITED
Domestic Lending Office and Euro-Dollar Lending Office:
The Industrial Bank of Japan, Limited
San Francisco Agency
555 California Street, Suite 3110
San Francisco, CA 94104
Address for Notices related to U.S. Borrowings:
The Industrial Bank of Japan, Limited
San Francisco Agency
555 California Street, Suite 3110
San Francisco, CA 94104
Attn: Greg Stewart
Tel. No: (415) 693-1824
Fax No: (415) 982-1917
With a copy of all notices to:
The Industrial Bank of Japan, Limited
Los Angeles Agency
350 South Grand Avenue, Suite 1500
Los Angeles, CA 90071
Attn: Credit Administration Department
Tel. No: (213) 893-6498
Fax No: (213) 688-7486
Wiring Instructions for U.S. Borrowings:
Bank of America National Trust and Savings Association
International Deposit Services #6561
1850 Gateway Boulevard
Concord, CA 94520
ABA No.: 121-000-358
Account Name: The Industrial Bank of Japan, Limited
Los Angeles Agency
Account No.: 62906-14014
For credit to IBJ SFA Account No. 2601-22011
II-8
<PAGE> 99
KEYBANK NATIONAL ASSOCIATION
Domestic Lending Office and Euro-Dollar Lending Office:
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, WA 98104
Address for Notices related to U.S. Borrowings:
KeyBank National Association
700 Fifth Avenue, 46th Floor
Seattle, WA 98104
Attn: Mary Young
Tel. No: (206) 684-6085
Fax No: (206) 684-6035
With a copy of all notices to:
KeyBank National Association
431 Parkcenter Boulevard
Boise, ID 83704
Attn: Specialty Services Team
Tel. No: (800) 297-5518
Fax No: (800) 297-5495
Wiring Instructions for U.S. Borrowings:
KeyBank National Association
Seattle, WA
ABA No.: 125000574
Account No.: 01500163
Reference: LSI Logic
II-9
<PAGE> 100
SCHEDULE II
PRICING GRID
<TABLE>
<CAPTION>
APPLICABLE APPLICABLE APPLICABLE
MARGIN MARGIN MARGIN
PRICING U.S. REVOLVING FOR FOR FOR
PRICING PERIOD COMMITMENT BASE RATE LIBOR JAPANESE
RATIO LEVEL FEES LOANS LOANS LOANS
----- ----- ---- ----- ----- -----
<S> <C> <C> <C> <C> <C>
[LESS THAN
OR EQUAL
TO] 0.75 1 0.250% 0% 0.750% 0.750%
>0.75,
[LESS THAN
OR EQUAL
TO] 1.50 2 0.300% 0% 1.000% 1.000%
>1.50 3 0.325% 0% 1.250% 1.250%
</TABLE>
EXPLANATION
1. The U.S. Revolving Commitment Fees and the Applicable Margin For Base Rate
Loans, LIBOR Loans and Japanese Loans will be set for each Pricing Period
and will vary depending upon whether such period is a Level 1 Period, a
Level 2 Period or a Level 3 Period.
2. The first Pricing Period which commences on the date of this Agreement and
ends on September 30, 1998, will be a Level 3 Period.
3. Each Pricing Period thereafter will be a Level 1 Period, a Level 2 Period,
or a Level 3 Period depending upon the Pricing Ratio calculated on an
annualized basis for the most recent consecutive two-quarter period ending
on the last day of the quarter that ended prior to the first day of such
Pricing Period.
4. If the Applicable Margin has not yet been determined for a Pricing Period on
the date any Interest Period commences or any interest is payable with
respect to any Loans, interest shall accrue and be paid on such Loans
calculated on the basis of the Applicable Margin for the applicable category
of Loans during the prior Pricing Period. When the Applicable Margin is
determined for such Pricing Period, accrued but unpaid interest on the Loans
outstanding during such Pricing Period shall be recalculated on the basis of
such Applicable Margin, but Agent and Lenders shall not be required to
refund any excess interest and Borrowers shall not be required to pay any
additional interest with respect to Loans on which interest was paid during
such Pricing Period prior to determination of the Applicable Margin.
II-1
<PAGE> 101
5. Examples:
(a) Pricing Ratio is 1.55 on an annualized basis for the
consecutive two- quarter period ending on September 30, 1998. The
Pricing Period of October 1, 1998 through December 31, 1998 will be a
Level 3 Period.
(b) Pricing Ratio is 1.10 on an annualized basis for the
consecutive two- quarter period ending on December 31, 1998. The Pricing
Period of January 1, 1999 through March 31, 1999 will be a Level 2
Period.
II-2
<PAGE> 102
SCHEDULE 3.01
I. INITIAL CLOSING DATE CONDITIONS PRECEDENT
A. PRINCIPAL CREDIT DOCUMENTS.
(1) The Credit Agreement, duly executed by each Borrower, each
Lender and Agent;
(2) Agent's Syndication Letter, duly executed by each Borrower;
(3) If the Initial Closing Date is the U.S. Closing Date, a Note
payable to each applicable U.S. Lender requesting such a Note for its
U.S. Revolving Loans or U.S. 364 Day Loans, each duly executed by LSI;
and
(4) If the Initial Closing Date is the Japanese Closing Date, the
LSI Guaranty, duly executed by LSI.
B. LSI CORPORATE DOCUMENTS.
(1) The Certificate of Incorporation of LSI, certified as of a
recent date prior to the Initial Closing Date by the Secretary of State
of Delaware;
(2) A Certificate of Good Standing (or comparable certificate)
for LSI, certified as of a recent date prior to the Initial Closing Date
by the Secretary of State of Delaware;
(3) A certificate of the Secretary or an Assistant Secretary of
LSI, dated the Initial Closing Date, certifying (a) that attached
thereto is a true and correct copy of the Bylaws of LSI as in effect on
the Initial Closing Date; (b) that attached thereto are true and correct
copies of resolutions duly adopted by the Board of Directors of LSI and
continuing in effect, which (i) authorize the execution, delivery and
performance by LSI of this Agreement and the other Credit Documents
executed or to be executed by LSI and the consummation of the
transactions contemplated hereby and thereby and (ii) designate the
officers authorized so to execute, deliver and perform on behalf of LSI;
and (c) that there are no proceedings for the dissolution or liquidation
of LSI;
(4) A certificate of the Secretary or an Assistant Secretary of
LSI, dated the Initial Closing Date, certifying the incumbency,
signatures and authority of the officers of LSI authorized to execute,
deliver and perform this Agreement, the other Credit Documents and all
other documents, instruments or agreements related thereto executed or
to be executed by LSI;
(5) Certificates of Good Standing (or comparable certificates)
for LSI, certified as of a recent date prior to the Initial Closing Date
by the Secretaries of State (or comparable official) of California and
each other jurisdiction in which LSI is qualified to do business and has
assets with a net book value in excess of $10,000,000 (exclusive of
intercompany assets and liabilities); and
3.01-1
<PAGE> 103
(6) Acceptance of appointment as agent for service of process on
LSI relating to the Credit Documents, executed by CT Corporation prior
to the Initial Closing Date.
C. LLJS CORPORATE DOCUMENTS.
(1) The Articles of Association (Teikan) of LLJS, certified as of
a recent date prior to the Initial Closing Date by a Representative
Director of LLJS;
(2) A copy of the commercial registry (Syougyou Tookibotoohon)
for LLJS, issued as of a recent date prior to the Initial Closing Date
by the registrar of the Tokyo Legal Affairs Bureau of the Ministry of
Justice;
(3) A certificate of a Representative Director of LLJS, dated the
Initial Closing Date, certifying (a) that attached thereto are true and
correct copies of resolutions duly adopted by the Board of Directors of
LLJS and continuing in effect, which (i) authorize the execution,
delivery and performance by LLJS of this Agreement and the other Credit
Documents executed or to be executed by LLJS and the consummation of the
transactions contemplated hereby and (ii) designate the officers,
directors and attorneys authorized so to execute, deliver and perform on
behalf of LLJS; and (b) that there are no proceedings for the
dissolution or liquidation of LLJS, together with an English translation
thereof (if appropriate);
(4) A certificate of a Representative Director of LLJS, dated the
Initial Closing Date, certifying the incumbency, signatures and
authority of the officers, directors or attorneys of LLJS authorized to
execute, deliver and perform this Agreement, the other Credit Documents
and all other documents, instruments or agreements related thereto
executed or to be executed by LLJS, together with an English translation
thereof (if appropriate); and
(5) Acceptance of appointment as agent for service of process on
LLJS relating to the Credit Documents, executed by CT Corporation prior
to the Initial Closing Date.
D. FINANCIAL STATEMENTS, FINANCIAL CONDITION, ETC.
(1) A copy of the unaudited Financial Statements of LSI and its
Subsidiaries for the fiscal quarter ended March 31, 1998, and for the
fiscal year to such date (prepared on a consolidated and consolidating
basis), certified by the Chief Financial Officer or Treasurer of LSI to
present fairly the financial condition, results of operations and other
information reflected therein and to have been prepared in accordance
with GAAP (subject to normal year-end audit adjustments);
(2) A copy of the audited consolidated Financial Statements of
LSI for the fiscal year ended December 31, 1997, prepared by Ernst &
Young LLP, together with a copy of the unqualified opinion and
management letter delivered by such accountants in connection with such
Financial Statements;
3.01-2
<PAGE> 104
(3) A copy of the 10-Q report filed by LSI with the SEC for the
quarter ended March 31, 1998;
(4) A copy of the 10-K report filed by LSI with the SEC for the
fiscal year ended December 31, 1997;
(5) A final sources and uses statement for the Symbios
Acquisition (including transaction costs);
(6) A pro forma balance sheet of LSI prepared as of June 30,
1998, but incorporating all preclosing adjustments and reflecting the
consummation of the Symbios Acquisition, the Loans to be made in
connection therewith and the other transactions contemplated by the
Symbios Acquisition Documents, certified by the Chief Financial Officer
or Treasurer of LSI as having been prepared based upon reasonable
assumptions and in good faith; and
(7) Such other financial, business and other information
regarding Borrowers or any of their Subsidiaries as Agent or any Lender
may reasonably request, including information as to the Symbios
Acquisition and possible contingent liabilities, tax matters,
environmental matters and obligations for employee benefits and
compensation.
E. OPINIONS.
A favorable written opinion from Wilson, Sonsini, Goodrich &
Rosati, counsel for Borrowers and LSI as guarantor under the LSI
Guaranty, in the form of Exhibit I, dated the Initial Closing Date,
addressed to Agent for the benefit of Agent and Lenders, covering such
legal matters as Agent may reasonably request and otherwise in form and
substance satisfactory to Agent:
F. OTHER ITEMS.
(1) A duly completed and timely delivered Notice of Borrowing for
the applicable Borrowing;
(2) Copies of the principal Symbios Acquisition Documents;
(3) Copies of all filings made by LSI with the SEC in connection
with the Symbios Acquisition, together with all exhibits and all
amendments thereto through the Initial Closing Date;
(4) A certificate from each of the Chief Financial Officer or
Treasurer of LSI and a Representative Director of LLJS, respectively,
addressed to Agent and dated the Initial Closing Date, certifying that:
(a) The representations and warranties set forth in
Paragraph 4.01 and in the other Credit Documents are true and
correct in all material respects as of such date (except for such
representations and warranties made as of a specified date, which
shall be true as of such date); and
3.01-3
<PAGE> 105
(b) No Default has occurred and is continuing as of such
date.
(5) All fees and expenses payable to Agent and Lenders on or
prior to the Initial Closing Date (including all fees payable to Agent
pursuant to the Agent's Fee Letter);
(6) All fees and expenses of Agent's counsels through the Initial
Closing Date;
(7) Such other evidence as Agent or any Lender may reasonably
request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Agreement and the other Credit Documents;
(8) Copies of the irrevocable notices delivered by LLJS pursuant
to the Outstanding Japanese Loan Facility of its intention to cancel all
commitments and prepay all amounts outstanding thereunder by no later
than August 31, 1998;
(9) Copies of the form of LSI's 5 1/2% Subordinated Notes due
2001 and the indenture relating thereto;
(10) Such documentation as ABN AMRO may require in order for LLJS
to open an account with its Tokyo branch, including, without limitation,
an Agreement on Bank Transactions and an Agreement on Overdraft in
Current Account.
II. POST-CLOSING CONDITIONS SUBSEQUENT
A. English translations of the Articles of Association (Teikan) and
commercial registry (Syougyou Tookibotoohon) for LLJS delivered pursuant to
Items C(1) and C(2) of Part I of this Schedule 3.01.
B. A favorable written opinion from Nagashima & Ohno, , Japanese counsel
for LLJS, in the form of Exhibit J, addressed to Agent for the benefit of Agent
and Lenders, covering such legal matters as Agent may reasonably request and
otherwise in form and substance satisfactory to Agent:
3.01-4
<PAGE> 106
Schedule 4.01(d)
GOVERNMENTAL CONSENTS
(1) Pursuant to the Hart, Scott, Rodino Act, LSI Logic Corporation was granted
early termination from the Federal Trade Commission (FTC) on July 21, 1998 with
respect to its proposed acquisition of Symbiosis, Inc.
<PAGE> 107
DISCLOSURE SCHEDULE
SECTION 4.01(g)
Ethel Taylor v. LSI Logic Corporation.
- --------------------------------------
Case # 13915 in Court of Chancery of the State of Delaware in and for New
Castle County. This matter is described in the Form 10-K of LSI Logic
Corporation at Item 3, Legal Proceedings therein. Plaintiff's appeal of
the court of Chancery's dismissal upon LSI Logic's motion is still
pending.
In the Matter of LSI Logic Corporation of Canada and its Shareholders.
- ----------------------------------------------------------------------
Action #9501-15628 in the Court of Queen's Bench of Alberta, Judicial
District of Calgary. This matter is described in the Form 10-K of LSI
Logic Corporation at Item 3, Legal Proceedings therein.
<PAGE> 108
Schedule 4.01 (i)
-----------------
None
<PAGE> 109
SCHEDULE 4.01(1)
SIGNIFICANT SUBSIDIARIES
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
%
NAME OF SUBSIDIARY SHAREHOLDER(S) OWNERSHIP
- -------------------------------------------------------------------------------
<S> <C> <C>
LSI Logic Corporation of LSI Logic Corporation 100%
Canada, Inc.
- -------------------------------------------------------------------------------
Mint Technology, Inc. LSI Logic Corporation 100%
- -------------------------------------------------------------------------------
LSI Logic Netherlands B.V. LSI Logic Corporation 100%
- -------------------------------------------------------------------------------
LSI Logic Europe LTD LSI Logic Netherlands B.V. 100%
- -------------------------------------------------------------------------------
LSI Logic Hong Kong LSI Logic Netherlands B.V. 100%
- -------------------------------------------------------------------------------
LSI Logic HK Holdings LSI Logic Netherlands 100%
Antilles B.V.
- -------------------------------------------------------------------------------
LSI Logic KK LSI Logic Netherlands B.V. 91%
- -------------------------------------------------------------------------------
LSI Logic Japan LSI Logic Netherlands B.V. 100%
Semiconductor, Inc.
- -------------------------------------------------------------------------------
</TABLE>
<PAGE> 110
DISCLOSURE SCHEDULE
SECTION 5.02(a)
Liens of LSI Logic Corporation
- ------------------------------
See Attached Schedule "Lease Base Report", 07/98.
Liens of Subsidiaries
- ---------------------
1. Nippon Life Insurance Company: The outstanding balance as of July 31, 1998
is 150,000,000 Yen. The security for the loans is the land, building and
equipment of the Borrower which constitute a kojo-zaidan-teito (factory
mortgage) (located at 10-banchi, Kitahara, Tsukuba-shi):
2. Kawasaki Leasing Co.
Miscellaneous lease agreements involving automobiles, office computer,
testing instruments and so on. Those leased items are owned by Kawasaki
Leasing Co.
3. The Industrial Bank of Japan Leasing
Master Lease Agreement and Master Purchase Agreement dated June 16, 1995
and leasing transactions thereunder in connection with 15 billion Yen
synthetic lease. The net present value of the remaining lease payments,
including the equipment purchase option, is approximately 8,279,048,000
Yen as of July 31, 1998.
1
<PAGE> 111
LEASE BASE REPORT
97/98
- -----------------------------------------------------------------------------
<TABLE>
<CAPTION>
Equip. Original Lease
Schedule B Description Purchase Maturity
Price
- -----------------------------------------------------------------------------
<S> <C> <C> <C>
Com/Disco:
CE 18-00 SUN SS 10M51 W1GB CLD SN034F2003 16,987 09/30/98
CE 18-00 SUN 4120 3,214 09/30/98
CE 18-00 NS 5000 NETWORK SERVER AND UPGRADE 331,707 09/30/99
CE 18-00 19" COLOR MONITOR OLD SN 524F2484 1,797 09/30/99
CE 18-00 SUN 4120 3,214 09/30/98
CE 18-00 SUN SS10 M51 W1GB OLD SN 034F2052 16,987 09/30/98
CE 18-00 SUN SS10 M51 W1GB OLD SN 046F1778 16,987 09/30/98
CE 18-00 SUN 4120 3,214 09/30/98
CE 18-00 SUN SPARC SS10/30 16,097 09/30/98
CE 18-00 SUN 4120 3,214 09/30/98
CE 18-00 SUN SS10 M51 W1GB OLD SN 038F1093 16,987 09/30/98
CE 18-00 SUN SPARC SS10/30 18,097 09/30/98
CE 18-00 SUN 41470 SPARCSTATION 55,341 09/30/98
CE 18-00 SUN SPARC SS10/30 18,097 09/30/98
CE 18-00 SUN SS10M51 W1GB OLD SN 034F2043 16,987 09/30/98
CE 21-01 SUN SPARC 10-40 W1GB 13,299 03/31/99
CE 21-01 SUN 8MB 19" COLOR WORKSTATION 8,343 03/31/99
CE 21-01 SUN IPX S10-40 W1GB 10,113 03/31/99
CE 21-01 SUN 8MB 16" COLOR GX WORKSTATION 9,875 03/31/99
CE 21-01 SUN SPARCSTATION UPG TO4/75 4,197 03/31/99
CE 21-01 SUN SS10 M41 W1GB INTERNAL SCSI DISK 8,745 03/31/99
CE 21-01 SUN SPARC 10-40 W1GB 13,299 03/31/99
CE 21-01 SUN SPARCPRINTER LASERPRINTER 1,730 03/31/99
CE 21-01 SUN IPK 510-40 VW 1GB 10,113 03/31/99
CE 21-01 3/200 UG TO 4/300 W320B 11,133 03/31/99
CE 21-01 SUN SPARC 10GX-40 W1GB 13,797 03/31/99
CE 21-01 6040 SIMM 2,640 03/31/99
CE 21-01 SUN SPARC 10-40 W1GB 12,300 03/31/99
CE 21-01 SUN IMB 10" COLOR WORKSTATION 8,343 03/31/99
CE 21-01 SUN IPX S10-40 W1GB 10,113 03/31/99
CE 21-01 6000 SIMM 2,640 03/31/90
CE 21-01 6040 SIMM 2,640 03/31/99
CE 24-00 SEAGATE L2GD 11 DISH UG 194212 6,365 12/31/00
CE 24-00 UG TO 4/75 OLD SN D1EF0239 4,491 12/31/99
CE 24-00 128MB MEM BD UG TO A590151(CE-12) 28,890 12/31/99
CE 24-00 SEAGATE 1 GB JPI DISK UG #99282 6,365 12/31/99
CE 24-00 SUN B2 S10-40 W1GB 10,170 12/31/99
CE 24-00 2 EA 32MB MEM BO UG TO #99015 16,692 12/31/99
CE 24-00 2 EA 32MB MEM BO UG TO #99035 16,692 12/31/99
CE 24-00 ADD GX TO MG COLR SYS 1,800 12/31/99
CE 24-00 2 EA 32MB MEM BO UG TO #90033 16,692 12/31/99
CE 24-00 128MR MEM RD, UG TOO #99032 (CE-15) 28,890 12/31/99
CE 24-00 128MR MEM RD, UG TOO #99013 (CE-12) 28,890 12/31/99
CE 24-00 2 EA 32MB MEM BO UG TO #90016 (CE-12) 16,692 12/31/99
CE 24-00 SUN NFS PRESTOSERVER ACCL-FOR 4/490 4,814 12/31/99
CE EG-01 MICROSCAN SVGL DUV EXPOSURE SYSTEM 4,150,571 09/27/99
CE EG-02 Tokyo Electronic Limited,
Clean Track Mark 6 1,478,420 05/12/00
AT&T 002 CREDENCE LT1101 TEST SYSTEM 2,615,748 10/31/98
AT&T 003 CREDENCE LT1101 TEST SYSTEM 2,190,347 10/31/98
Capital
Lease DANA THERMCO OXIDATION SERIES 7000 VTR 1,664,244 06/01/00
Capital
Lease GE 22 DS 3000 PROBE STATION 205,811 01/01/99
CIT 1-002 CREDENCE STS 6266 VLS TEST SYSTEM 599,950 07/01/98
GE CITIZENS
LEASING C-1 Lam Rainbow 4520 Oxide Etching System
w/pum 1,006,400 04/01/02
GE CITIZENS
LEASING C-2 NOVELLUS HDP 1,146,320 04/01/02
GE CITIZENS
LEASING C-3 NOVELLUS HDP 1,146,320 04/01/02
GE CITIZENS
LEASING C-4 NOVELLUS CONCEPT ONE 1,280,220 04/01/02
GE E-02 CANON FPA 2500 STEPPER 2,150,000 10/01/99
GE E-03 KLA WAFER INSPECTOR 1,748,000 10/01/99
GE E-04 CREDENCE 5C212 TESTER W/UNIVERSAL L0 741,866 12/01/99
GE E-04 CREDENCE SC212 TESTER 712,773 12/01/99
GE E-05 ONTRACK FS/BS WAFER CLEANER 319,088 12/01/99
GE E-05 WESTECH CMP POLISHER 292,036 12/31/99
GE E-05 WESTECH CMP POLISHER 192,036 12/31/99
GE E-07 Fisions Monitoring System
for AMT 5500 210,090 12/31/99
GE E-07 Applied Material 6500
Splitting System 3,760,324 12/31/99
GE E-08 Eaton High Energy Implanter 3,661,849 01/02/02
GE E-09 LAM 9600 METAL ETCHER 1,599,133 01/02/02
GE E-10 Hitachi S-867 CDYSEM
for Jeida Wafer 1,300,305 01/02/02
GE E-11 DNS SPINCOAT DEVELOPER 1,041,239 01/02/02
GE KEYCORP K-1 DNS AMNEALING SYSTEM FOR ATM 871,100 04/01/02
GE PNC
LEASING P-1 (2) DNS TRACKS 3,522,037 01/02/02
GE PNC
LEASING P-2 LAM 9400 1,146,320 01/02/02
PITNEY
BOWES 001 NIKON STEPPER 3,784,200 12/30/02
USL CAP 122012 LAM R4500 RAINBOW OXIDE ETCH SYSTEM 738,102 12/10/98
USL CAP 123845 Lam Research 9600 Metal
Etcher w/pump 1,601,472 12/01/99
CIT 01 LAM 4520 OXIDE ETCH SYSTEM 829,200 07/02/99
</TABLE>
<PAGE> 112
EXHIBIT A
NOTICE OF U.S. BORROWING
[Date]
ABN AMRO Bank N.V.,
as Agent
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
U.S.A.
Attn: Linda Boardman
1. Reference is made to that certain Amended and Restated Credit
Agreement, dated as of September 22, 1998 (the "Credit Agreement"), among LSI
Logic Corporation ("LSI"), LSI Logic Japan Semiconductor, Inc., the financial
institutions listed in Schedule I to the Credit Agreement (the "Lenders") and
ABN AMRO Bank N.V., as agent for Lenders (in such capacity, "Agent"). Unless
otherwise indicated, all terms defined in the Credit Agreement have the same
respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(c) of the Credit Agreement, LSI hereby
irrevocably requests a U.S. Borrowing upon the following terms:
(a) The requested U.S. Borrowing is to be a [U.S. Revolving
Borrowing][U.S. 364 Day Borrowing];
(b) The principal amount of the requested U.S. Borrowing is to be
$__________;
(c) The requested U.S. Borrowing is to consist of [Base
Rate][LIBOR] Loans;
(d) If the requested U.S. Borrowing is to consist of LIBOR Loans,
the initial Interest Period for such Loans will be ____ month[s]; and
(e) The date of the requested U.S. Borrowing is to be __________,
____.
3. LSI hereby certifies to Lenders and Agent that, on the date of this
Notice of U.S. Borrowing and after giving effect to the requested U.S.
Borrowing:
(a) The representations and warranties of Borrowers and their
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in
the other Credit 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 as of such
date);
A-1
<PAGE> 113
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
4. Please disburse the proceeds of the requested U.S. Borrowing to
_______________________________________________________________________________.
IN WITNESS WHEREOF, LSI has executed this Notice of U.S. Borrowing on
the date set forth above.
LSI LOGIC CORPORATION
By: ___________________________________
Name: _____________________________
Title: ____________________________
A-2
<PAGE> 114
EXHIBIT B
NOTICE OF U.S. BORROWING CONVERSION
[Date]
ABN AMRO Bank N.V.,
as Agent
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
U.S.A.
Attn: Linda Boardman
1. Reference is made to that certain Amended and Restated Credit
Agreement, dated as of September 22, 1998 (the "Credit Agreement"), among LSI
Logic Corporation ("LSI"), LSI Logic Japan Semiconductor, Inc., the financial
institutions listed in Schedule I to the Credit Agreement (the "Lenders") and
ABN AMRO Bank N.V., as agent for Lenders (in such capacity, "Agent"). Unless
otherwise indicated, all terms defined in the Credit Agreement have the same
respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(e) of the Credit Agreement, LSI hereby
irrevocably requests to convert a U.S. Borrowing as follows:
(a) The U.S. Borrowing to be converted consists of ["Base Rate"
or "LIBOR"] Loans in the aggregate principal amount of $__________ which
were initially advanced to LSI on __________, __________, as a [U.S.
Revolving Borrowing or U.S. 364 Day Borrowing][, and have a current
Interest Period of ____ month[s] expiring on __________, ____];
(b) The U.S. Loans in such U.S. Borrowing are to be converted
into ["Base Rate" or "LIBOR"] Loans;
(c) If such U.S. Loans are to be converted into LIBOR Loans, the
initial Interest Period for such U.S. Loans commencing upon conversion
will be ______ month[s]; and
(d) The date of the requested conversion is to be ________, ____.
B-1
<PAGE> 115
3. LSI hereby certifies to Lenders and Agent that, on the date of this
Notice of U.S. Borrowing Conversion, and after giving effect to the requested
conversion:
(a) The representations and warranties of Borrowers and their
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in
the other Credit 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 as of such
date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
IN WITNESS WHEREOF, LSI has executed this Notice of U.S. Borrowing
Conversion on the date set forth above.
LSI LOGIC CORPORATION
By: ___________________________________
Name: _____________________________
Title: ____________________________
B-2
<PAGE> 116
EXHIBIT C
NOTICE OF U.S. BORROWING INTEREST PERIOD SELECTION
[Date]
ABN AMRO Bank N.V.,
as Agent
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
U.S.A.
Attn: Linda Boardman
1. Reference is made to that certain Amended and Restated Credit
Agreement, dated as of September 22, 1998 (the "Credit Agreement"), among LSI
Logic Corporation ("LSI"), LSI Logic Japan Semiconductor, Inc., the financial
institutions listed in Schedule I to the Credit Agreement (the "Lenders") and
ABN AMRO Bank N.V., as agent for Lenders (in such capacity, "Agent"). Unless
otherwise indicated, all terms defined in the Credit Agreement have the same
respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(f) of the Credit Agreement, LSI hereby
irrevocably selects a new Interest Period for a U.S. Borrowing as follows:
(a) The U.S. Borrowing for which a new Interest Period is to be
selected consists of LIBOR Loans in the aggregate principal amount of
$__________ which were initially advanced to LSI on __________, ______,
as a [U.S. Revolving Borrowing or U.S. 364 Day Borrowing];
(b) The last day of the current Interest Period for such LIBOR
Loans is ___________, ____; and
(c) The next Interest Period for such LIBOR Loans commencing upon
the last day of the current Interest Period is to be _________ month[s].
3. LSI hereby certifies to Lenders and Agent that, on the date of this
Notice of U.S. Borrowing Interest Period Selection, and after giving effect to
the requested selection:
(a) The representations and warranties of Borrowers and their
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in
the other Credit 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 as of such
date);
(b) No Default has occurred and is continuing; and
C-1
<PAGE> 117
(c) All of the Credit Documents are in full force and effect.
IN WITNESS WHEREOF, LSI has executed this Notice of U.S. Borrowing
Interest Period Selection on the date set forth above.
LSI LOGIC CORPORATION
By: ___________________________________
Name: _____________________________
Title: ____________________________
C-2
<PAGE> 118
EXHIBIT D
NOTICE OF JAPANESE BORROWING
[Date]
ABN AMRO Bank N.V.,
as Agent
13F, Shiroyama JT Mori Building
4-3-1, Toranomon, Minato-ku
Tokyo 105, Japan
Attn: Kiyoharu Michiwaki
1. Reference is made to that certain Credit Agreement, dated as of
August 5, 1998 (the "Credit Agreement"), among LSI Logic Corporation, LSI Logic
Japan Semiconductor, Inc. ("LLJS"), the financial institutions listed in
Schedule I to the Credit Agreement (the "Lenders") and ABN AMRO Bank N.V., as
agent for Lenders (in such capacity, "Agent"). Unless otherwise indicated, all
terms defined in the Credit Agreement have the same respective meanings when
used herein.
2. Pursuant to Subparagraph 2.02(b) of the Credit Agreement, LLJS hereby
irrevocably requests the Japanese Borrowing upon the following terms:
(a) The principal amount of the Japanese Borrowing is to be
Y__________;
(b) The initial Interest Period of the Japanese Borrowing will
be ___________ month[s]; and
(c) The date of the Japanese Borrowing is to be __________, ____.
3. LLJS hereby certifies to Lenders and Agent that, on the date of this
Notice of Japanese Borrowing and after giving effect to the Japanese Borrowing:
(a) The representations and warranties of Borrowers and their
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in
the other Credit 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 as of such
date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
D-1
<PAGE> 119
4. Please disburse the proceeds of the Japanese Borrowing to .
IN WITNESS WHEREOF, LLJS has executed this Notice of Japanese Borrowing
on the date set forth above.
LSI LOGIC JAPAN SEMICONDUCTOR, INC.
By: ___________________________________
Name: _____________________________
Title: ____________________________
D-2
<PAGE> 120
EXHIBIT E
NOTICE OF JAPANESE BORROWING INTEREST PERIOD SELECTION
[Date]
ABN AMRO Bank N.V.,
as Agent
13F, Shiroyama JT Mori Building
4-3-1, Toranomon, Minato-ku
Tokyo 105, Japan
Attn: Kiyoharu Michiwaki
1. Reference is made to that certain Amended and Restated Credit
Agreement, dated as of September 22, 1998 (the "Credit Agreement"), among LSI
Logic Corporation, LSI Logic Japan Semiconductor, Inc. ("LLJS"), the financial
institutions listed in Schedule I to the Credit Agreement (the "Lenders") and
ABN AMRO Bank N.V., as agent for Lenders (in such capacity, "Agent"). Unless
otherwise indicated, all terms defined in the Credit Agreement have the same
respective meanings when used herein.
2. Pursuant to Subparagraph 2.02(d) of the Credit Agreement, LLJS hereby
irrevocably selects a new Interest Period for the Japanese Borrowing as follows:
(a) The last day of the current Interest Period for the Japanese
Borrowing is ___________, ____; and
(b) The next Interest Period for the Japanese Borrowing
commencing upon the last day of the current Interest Period is to be
_________ month[s].
3. LLJS hereby certifies to Lenders and Agent that, on the date of this
Notice of Japanese Borrowing Interest Period Selection, and after giving effect
to the requested selection:
(a) The representations and warranties of Borrowers and their
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in
the other Credit 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 as of such
date);
(b) No Default has occurred and is continuing; and
(c) All of the Credit Documents are in full force and effect.
E-1
<PAGE> 121
IN WITNESS WHEREOF, LLJS has executed this Notice of Japanese Borrowing
Interest Period Selection on the date set forth above.
LSI LOGIC JAPAN SEMICONDUCTOR, INC.
By: ___________________________________
Name: _____________________________
Title: ____________________________
E-2
<PAGE> 122
EXHIBIT F
NOTE
$______________ ____________________, __________
________________, ____
FOR VALUE RECEIVED, LSI LOGIC CORPORATION, a Delaware corporation
("Borrower"), hereby promises to pay to the order of ____________________, a
____________________ ("Lender"), the principal sum of __________________ DOLLARS
($__________), or such lesser amount as shall equal the aggregate outstanding
principal balance of the [U.S. Revolving Loans][U.S. 364 Day Loans] made by
Lender to Borrower pursuant to the Credit Agreement referred to below (as
amended from time to time, the "Credit Agreement"), on or before the [Revolving
Termination Date][U.S. 364 Day Termination Date] specified in the Credit
Agreement; and to pay interest on the outstanding amount of said sum, or such
lesser amount, at the rates and on the dates provided in the Credit Agreement.
Borrower shall make all payments hereunder, for the account of Lender's
Applicable Lending Office, to Agent as indicated in the Credit Agreement, in
lawful money of the United States and in same day or immediately available
funds.
Borrower hereby authorizes Lender to record on the schedule(s) annexed
to this note the date and amount of each [U.S. Revolving Loan][U.S. 364 Day
Loan] and of each payment or prepayment of principal made by Borrower and agrees
that all such notations shall constitute prima facie evidence of the matters
noted; provided, however, that the failure of Lender to make any such notation
shall not affect Borrower's obligations hereunder.
This note is one of the Notes referred to in the Amended and Restated
Credit Agreement, dated as of September 22, 1998, among Borrower, LSI Logic
Japan Semiconductor, Inc., Lender and the other financial institutions from time
to time parties thereto (collectively, the "Lenders") and ABN AMRO Bank N.V., as
agent for Lenders. This note is subject to the terms of the Credit Agreement,
including the rights of prepayment and the rights of acceleration of Maturity
set forth therein. Terms used herein have the meanings assigned to those terms
in the Credit Agreement, unless otherwise defined herein.
The transfer, sale or assignment of any rights under or interest in this
note is subject to certain restrictions contained in the Credit Agreement,
including Paragraph 8.05 thereof.
F-1
<PAGE> 123
Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys' fees, incurred by Lender in the enforcement or attempt to
enforce any of Borrower's obligations hereunder not performed when due. Borrower
hereby waives notice of presentment, demand, protest or notice of any other
kind. This note shall be governed by and construed in accordance with the laws
of the State of California.
LSI LOGIC CORPORATION
By: ___________________________________
Name: _____________________________
Title: ____________________________
F-2
<PAGE> 124
LOANS AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------
Amount of
Type of Amount of Interest Principal Paid Unpaid Principal Notation
Date Loan Loan Period or Prepaid Balance Made By
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------
</TABLE>
F-3
<PAGE> 125
EXHIBIT G
LSI GUARANTY
THIS GUARANTY, dated as of [ ], 1998, is executed by LSI LOGIC
CORPORATION, a Delaware corporation ("Guarantor"), in favor of ABN AMRO BANK
N.V., acting as agent (in such capacity, and each successor thereto in such
capacity, "Agent") for the financial institutions which are from time to time
parties to the Credit Agreement referred to in Recital A below (collectively,
"Lenders").
RECITALS
A. Pursuant to a Credit Agreement dated as of August 5, 1998 (as amended
from time to time, the "Credit Agreement"), among LSI Logic Japan Semiconductor,
Inc. ("Borrower"), Guarantor, Lenders and Agent, Lenders have agreed to extend
certain credit facilities to Borrower and Guarantor upon the terms and subject
to the conditions set forth therein. Borrower is a wholly-owned Subsidiary of
Guarantor.
B. Lenders' obligations to extend the credit facilities to Borrower and
Guarantor under the Credit Agreement are subject, among other conditions, to
receipt by Agent of this Guaranty, duly executed by Guarantor.
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, Guarantor hereby agrees with Agent, for the ratable benefit of
Lenders and Agent, as follows:
1. DEFINITIONS AND INTERPRETATION.
(a) Definitions. When used in this Guaranty, the following terms
shall have the following respective meanings:
"Agent" shall have the meaning given to that term in the
introductory paragraph hereof.
"Borrower" shall have the meaning given to that term in
the Recital A hereof.
"Credit Agreement" shall have the meaning given to that
term in the Recital A hereof.
"Debtor Relief Proceeding" shall mean any suit, action, case or
other proceeding commenced by, against or for Borrower or
Guarantor or its property
G-1
<PAGE> 126
seeking the dissolution, liquidation, reorganization,
rearrangement or other relief of Borrower or Guarantor or its
debts under any applicable bankruptcy, insolvency or debtor
relief law or other similar Governmental Rule now or hereafter in
effect or seeking the appointment of a receiver, trustee,
liquidator, custodian or other similar official for Borrower or
Guarantor or any substantial part of its property or any general
assignment by Borrower or Guarantor for the benefit of its
creditors, whether or not any such suit, action, case or other
proceeding is voluntary or involuntary.
"Disallowed Post-Commencement Interest and Expenses" shall
mean interest computed at the rate provided in the Credit
Agreement and claims for reimbursement, costs, expenses or
indemnities under the terms of any of the Credit Documents
accruing or claimed at any time after the commencement of any
Debtor Relief Proceeding, if the claim for such interest,
reimbursement, costs, expenses or indemnities is not allowable,
allowed or enforceable against Borrower in such Debtor Relief
Proceeding.
"Guaranteed Obligations" shall mean and include all loans,
advances, debts, liabilities, and obligations, howsoever arising,
owed by Borrower to Agent or any Lender of every kind and
description (whether or not evidenced by any note or instrument
and whether or not for the payment of money), direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter arising pursuant to the terms of the Credit Documents,
including all interest, fees, charges, expenses, attorneys' fees
and accountants' fees chargeable to Borrower or payable by
Borrower thereunder.
"Guarantor" shall have the meaning given to that term in
the introductory paragraph hereof.
"Lenders" shall have the meaning given to that term in the
introductory paragraph hereof.
"Subordinated Obligations" shall have the meaning given to
that term in Paragraph 4 hereof.
"Taxes" shall have the meaning given to such term in
Subparagraph 5(h).
Unless otherwise defined herein, all other capitalized terms used herein
and defined in the Credit Agreement shall have the respective meanings
given to those terms in the Credit Agreement.
(b) Other Interpretive Provisions. The rules of construction set
forth in Section I of the Credit Agreement shall, to the extent not
inconsistent with the terms of this Guaranty, apply to this Guaranty and
are hereby incorporated by reference.
G-2
<PAGE> 127
2. GUARANTY.
(a) Payment Guaranty. Guarantor unconditionally guarantees and
promises to pay and perform as and when due, whether at stated maturity,
upon acceleration or otherwise, any and all of the Guaranteed
Obligations. If any Debtor Relief Proceeding relating to Borrower is
commenced, Guarantor further unconditionally guarantees and promises to
pay and perform, upon the demand of Agent, any and all of the Guaranteed
Obligations (including any and all Disallowed Post-Commencement Interest
and Expenses) in accordance with the terms of the Credit Documents,
whether or not such obligations are then due and payable by Borrower and
whether or not such obligations are modified, reduced or discharged in
such Debtor Relief Proceeding. This Guaranty is a guaranty of payment
and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of Lenders to extend credit to Borrower
have terminated and all of the Guaranteed Obligations have been fully
paid. If any payment on any Guaranteed Obligation is set aside, avoided
or rescinded or otherwise recovered from Agent or any Lender, such
recovered payment shall constitute a Guaranteed Obligation hereunder
and, if this Guaranty was previously released or terminated, it
automatically shall be fully reinstated, as if such payment was never
made.
(c) Independent Obligation. The liability of Guarantor hereunder
is independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor irrespective of
whether action is brought against Borrower or any other guarantor of the
Guaranteed Obligations or whether Borrower or any other guarantor of the
Guaranteed Obligations is joined in any such action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to enforce
this Guaranty, any court of competent jurisdiction determines that
enforcement against Guarantor for the full amount of the Guaranteed
Obligations is not lawful under or would be subject to avoidance under
Section 548 of the Bankruptcy Code or any applicable provision of any
comparable law of any state or other jurisdiction, the liability of
Guarantor under this Guaranty shall be limited to the maximum amount
lawful and not subject to such avoidance.
(e) Termination. Notwithstanding any termination of this Guaranty
in accordance with Paragraph 3 hereof, this Guaranty shall continue to
be in full force and effect and applicable to any Guaranteed Obligations
arising thereafter which arise because prior payments of Guaranteed
Obligations are rescinded or otherwise required to be surrendered by
Agent or any Lender after receipt.
G-3
<PAGE> 128
3. AUTHORIZATIONS, WAIVERS, ETC.
(a) Authorizations. Guarantor authorizes Agent and Lenders, in
their discretion, without notice to Guarantor, irrespective of any
change in the financial condition of Borrower, Guarantor or any other
guarantor of the Guaranteed Obligations since the date hereof, and
without affecting or impairing in any way the liability of Guarantor
hereunder, from time to time to:
(i) Create new Guaranteed Obligations and renew,
compromise, extend, accelerate or otherwise change the time for
payment or performance of, or otherwise amend or modify the
Credit Documents or change the terms of the Guaranteed
Obligations or any part thereof, including increase or decrease
of the rate of interest thereon;
(ii) Take and hold security for the payment or performance
of the Guaranteed Obligations and exchange, enforce, waive or
release any such security; apply such security and direct the
order or manner of sale thereof; and purchase such security at
public or private sale;
(iii) Otherwise exercise any right or remedy they may have
against Borrower, Guarantor, any other guarantor of the
Guaranteed Obligations or any security, including, without
limitation, the right to foreclose upon any such security by
judicial or nonjudicial sale;
(iv) Settle, compromise with, release or substitute any
one or more makers, endorsers or guarantors of the Guaranteed
Obligations; and
(v) Assign the Guaranteed Obligations, this Guaranty or
the other Credit Documents in whole or in part to the extent
provided in the Credit Agreement and the other Credit Documents.
(b) Waivers. Guarantor hereby waives:
(i) Any right to require Agent or any Lender to (A)
proceed against Borrower or any other guarantor of the Guaranteed
Obligations, (B) proceed against or exhaust any security received
from Borrower, Guarantor or any other guarantor of the Guaranteed
Obligations or otherwise marshall the assets of Borrower,
Guarantor or any other guarantor of the Guaranteed Obligations or
(C) pursue any other remedy in Agent's or any Lender's power
whatsoever;
(ii) Any defense arising by reason of the application by
Borrower of the proceeds of any borrowing;
(iii) Any defense resulting from the absence, impairment
or loss of any right of reimbursement, subrogation, contribution
or other right or remedy of Guarantor against Borrower, any other
guarantor of the Guaranteed Obligations or any security, whether
resulting from an election by Agent or any Lender to foreclose
upon security by nonjudicial sale, or otherwise;
G-4
<PAGE> 129
(iv) Any setoff or counterclaim of Borrower or any defense
which results from any disability or other defense of Borrower or
the cessation or stay of enforcement from any cause whatsoever of
the liability of Borrower (including, without limitation, the
lack of validity or enforceability of any of the Credit
Documents);
(v) Any defense based upon any law, rule or regulation
which provides that the obligation of a surety must not be
greater or more burdensome than the obligation of the principal;
(vi) Until all obligations of Agent or any Lender to
extend credit to Borrower have terminated and all of the
Guaranteed Obligations have been fully paid, any right of
subrogation, reimbursement, indemnification or contribution and
other similar right to enforce any remedy which Agent, Lenders or
any other Person now has or may hereafter have against Borrower
on account of the Guaranteed Obligations, and any benefit of, and
any right to participate in, any security now or hereafter
received by Agent, any Lender or any other Person on account of
the Guaranteed Obligations;
(vii) All presentments, demands for performance, notices
of non-performance, notices delivered under the Credit Documents,
protests, notice of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation or incurring of new or
additional Guaranteed Obligations and notices of any public or
private foreclosure sale;
(viii) The benefit of any statute of limitations to the
extent permitted by law;
(ix) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for
marshalling;
(x) Any right to be informed by Agent or any Lender of the
financial condition of Borrower or any other guarantor of the
Guaranteed Obligations or any change therein or any other
circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations;
(xi) Until all obligations of Agent or any Lender to
extend credit to Borrower have terminated and all of the
Guaranteed Obligations have been fully paid, any right to revoke
this Guaranty;
(xii) Any defense arising from an election for the
application of Section 1111(b)(2) of the Bankruptcy Code which
applies to the Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant of a
security interest under Section 364 of the Bankruptcy Code; and
G-5
<PAGE> 130
(xiv) Any right it may have to a fair value hearing to
determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this
Paragraph 3, Guarantor hereby further waives (A) all rights and defenses
arising out of an election of remedies by Agent or any Lender, even
though that election of remedies, such as a nonjudicial foreclosure with
respect to security for a Guaranteed Obligation, has destroyed
Guarantor's rights of subrogation and reimbursement against Borrower by
the operation of Section 580d of the California Code of Civil Procedure
or otherwise, (B) all rights and defenses Guarantor may have by reason
of protection afforded to Borrower with respect to the Guaranteed
Obligations pursuant to the antideficiency or other laws of California
limiting or discharging the Guaranteed Obligations, including, without
limitation, Section 580a, 580b, 580d, or 726 of the California Code of
Civil Procedure, and (C) all other rights and defenses available to
Guarantor by reason of Sections 2787 to 2855, inclusive, Section 2899 or
Section 3433 of the California Civil Code or Section 3605 of the
California Commercial Code.
(c) Financial Condition of Borrower, Etc. Guarantor is fully
aware of the financial condition and affairs of Borrower. Guarantor has
executed this Guaranty without reliance upon any representation,
warranty, statement or information concerning Borrower furnished to
Guarantor by Agent or any Lender and has, independently and without
reliance on Agent or any Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations. Guarantor is in a position to obtain, and assumes full
responsibility for obtaining, any additional information about the
financial condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations and will, independently and without reliance upon Agent or
any Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own appraisals and
decisions in taking or not taking action in connection with this
Guaranty.
4. SUBORDINATION. Guarantor hereby subordinates any and all debts,
liabilities and obligations owed to Guarantor by Borrower (the "Subordinated
Obligations") to the Guaranteed Obligations as provided in this Paragraph 4.
(a) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of any Debtor
Relief Proceeding relating to Borrower), Guarantor may receive regularly
scheduled payments from Borrower on account of Subordinated Obligations.
After the occurrence and during the continuance of
any Default (including the commencement and continuation of any Debtor
Relief Proceeding relating to Borrower), however, unless Agent otherwise
agrees, Guarantor shall not demand, accept or take any action to collect
any payment on account of the Subordinated Obligations.
G-6
<PAGE> 131
(b) Prior Payment of Guaranteed Obligations. In any Debtor Relief
Proceeding relating to Borrower, Guarantor agrees that Agent and Lenders
shall be entitled to receive payment of all Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses) before Guarantor receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance of
any Default (including the commencement and continuation of any Debtor
Relief Proceeding relating to Borrower), Guarantor shall, if Agent so
requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for Agent and Lenders and deliver
such payments to Agent on account of the Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses), together with any necessary endorsements or other instruments
of transfer, but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation
of any Debtor Relief Proceeding relating to Borrower), Agent is
authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of Guarantor to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any
and all Disallowed Post- Commencement Interest and Expenses), and (ii)
to require Guarantor (A) to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and (B) to pay any amounts received
on such obligations to Agent for application to the Guaranteed
Obligations (including any and all Disallowed Post-Commencement Interest
and Expenses).
5. MISCELLANEOUS.
(a) Notices. Except as otherwise specified herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Guarantor or Agent under this Agreement shall be given as provided
in Paragraph 8.01 of the Credit Agreement.
(b) Payments.
(i) Guarantor shall make all payments of the Guaranteed
Obligations to Agent, or its order, at the office of Agent and at
the times specified in the Credit Documents for the payment of
such Guaranteed Obligations. Guarantor shall make all other
payments hereunder at such office as Agent may designate. Each
payment shall be made in same day or immediately available funds
not later than 11:00 a.m.(local time of the office of Agent at
which such payment is to be made) on the date due.
(ii) Guarantor shall make all payments of the Guaranteed
Obligations hereunder in the currency in which such Guaranteed
Obligations are required to
G-7
<PAGE> 132
be paid by Borrower pursuant to the Credit Documents and shall
make all other payments hereunder in Dollars; provided, however,
that, if Agent shall request Guarantor to pay any amount
hereunder which would otherwise be payable in another currency in
the lawful currency of the United States, Guarantor shall pay to
Agent the Dollar Equivalent of such amount.
(iii) If any sum due from Guarantor under this Guaranty or
any other Credit Document to which Guarantor is a party or any
order, judgment or award given or rendered in relation hereto or
thereto has to be converted from the currency (the "first
currency") in which the same is payable hereunder or thereunder
into another currency (the "second currency") for the purpose of
(A) making or filing a claim or proof against Guarantor with any
Governmental Authority, (B) obtaining an order or judgment in any
court or other tribunal or (C) enforcing any order or judgment
given or made in relation hereto, Guarantor shall, to the fullest
extent permitted by law, indemnify and hold harmless each of
the Persons to whom such sum is due from and against any loss
suffered as a result of any discrepancy between (1) the rate of
exchange used for such purpose to convert the amounts in question
from the first currency into the second currency and (2) the rate
or rates of exchange at which such Person may, using reasonable
efforts in the ordinary course of business, purchase the first
currency with the second currency upon receipt of a sum paid to
it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. The foregoing indemnity shall
constitute a separate obligation of Guarantor distinct from its
other obligations hereunder and shall survive the giving or
making of any judgment or order in relation to all or any of such
obligations.
(iv) If any amounts required to be paid by Guarantor under
this Guaranty or any order, judgment or award given or rendered
in relation hereto remain unpaid after such amounts are due,
Guarantor shall pay interest on the aggregate, outstanding
balance of such amounts from the date due until those amounts are
paid in full at a per annum rate equal to:
(A) In the case of amounts payable in Dollars, the
Base Rate plus two percent (2.00%), such rate to change
from time to time as the Base Rate shall change.
(B) In the case of amounts payable in Yen, the
Overnight Rate plus three percent (3.00%), such rate to
change from time to time as the Overnight Rate shall
change.
(c) Expenses. Guarantor shall pay promptly upon receipt of an
invoice therefor, (i) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent in connection
with the preparation, execution and delivery of, and the exercise of its
duties under, this Guaranty and the preparation, execution and delivery
of amendments and waivers hereunder and (ii) all reasonable fees and
expenses, including reasonable attorneys' fees and expenses, incurred by
Agent and Lenders in connection with the enforcement or attempted
enforcement of this Guaranty or any of the
G-8
<PAGE> 133
Guaranteed Obligations or in preserving any of Agent's or Lenders'
rights and remedies (including, without limitation, all such fees and
expenses incurred in connection with any "workout" or restructuring
affecting the Credit Documents or the Guaranteed Obligations or any
bankruptcy or similar proceeding involving Guarantor, Borrower or any of
their affiliates).
(d) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by Guarantor and Agent. Each waiver or consent under
any provision hereof shall be effective only in the specific instances
for the purpose for which given. No failure or delay on Agent's or any
Lender's part in exercising any right hereunder shall operate as a
waiver thereof or of any other right nor shall any single or partial
exercise of any such right preclude any other further exercise thereof
or of any other right.
(e) Successors and Assigns. This Guaranty shall be binding upon
and inure to the benefit of Agent, Lenders, Guarantor and their
respective successors and assigns; provided, however, that Guarantor may
not assign or transfer any of its rights and obligations under this
Guaranty without the prior written consent of Agent and Lenders, and,
provided, further, that Agent or any Lender may sell, assign and
delegate their respective rights and obligations hereunder only as
permitted by the Credit Agreement. All references in this Guaranty to
any Person shall be deemed to include all permitted successors and
assigns of such Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of
Agent and Lenders under this Guaranty shall be in addition to all
rights, powers and remedies given to Agent and Lenders by virtue of any
applicable law, rule or regulation of any Governmental Authority, the
Credit Agreement, any other Credit Document or any other agreement, all
of which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing Agent's or any
Lender's rights hereunder. Guarantor waives any right to require Agent
or any Lender to proceed against any Person or to exhaust any collateral
or to pursue any remedy in Agent's or such Lender's power.
(g) Setoff; Security Interest.
(i) In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, with the prior
consent of Agent but without prior notice to or consent of
Guarantor, any such notice and consent being expressly waived by
Guarantor to the extent permitted by applicable law, upon the
occurrence and during the continuance of an Event of Default, to
set-off and apply against the obligations of Guarantor any amount
owing from such Lender to Guarantor. The aforesaid right of
set-off may be exercised by such Lender against Guarantor or
against any trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver or execution, judgment or
attachment creditor of Guarantor or against anyone else claiming
through or against Guarantor or such trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
receiver, or execution, judgment or attachment creditor,
G-9
<PAGE> 134
notwithstanding the fact that such right of set-off may not have
been exercised by such Lender at any prior time. Each Lender
agrees promptly to notify Guarantor after any such set-off and
application made by such Lender, provided that the failure to
give such notice shall not affect the validity of such set-off
and application.
(ii) As security for the obligations of Guarantor
hereunder, Guarantor hereby grants to Agent and each Lender, for
the benefit of all Lenders, a continuing security interest in any
and all deposit accounts or moneys of Guarantor now or hereafter
maintained with such Lender. Each Lender shall have all of the
rights of a secured party with respect to such security interest.
(h) Payments Free of Taxes. All payments made by Guarantor under
this Guaranty shall be made free and clear of, and without deduction or
withholding for or on account of, all present and future income, stamp,
documentary and other taxes and duties, and all other levies, imposts,
charges, fees, deductions and withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority
(except net income taxes and franchise taxes in lieu of net income taxes
imposed on Agent or any Lender by its jurisdiction of incorporation or
the jurisdiction in which its Applicable Lending Office is located) (all
such non-excluded taxes, duties, levies, imposts, duties, charges, fees,
deductions and withholdings being hereinafter called "Taxes"). If any
Taxes are required to be withheld from any amounts payable to Agent or
any Lender hereunder, the amounts so payable to Agent or such Lender
shall be increased to the extent necessary to yield to Agent or such
Lender (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this
Guaranty or the other Credit Documents, as applicable. Whenever any
Taxes are payable by Guarantor, as promptly as possible thereafter,
Guarantor shall send to Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
official receipt received by Guarantor showing payment thereof. If
Guarantor fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Agent the required receipts or other
required documentary evidence, Guarantor shall indemnify Agent and
Lenders for any taxes (including interest or penalties) that may become
payable by Agent or any Lender as a result of any such failure. The
obligations of Guarantor under this Subparagraph 5(h) shall survive the
payment and performance of the Guaranteed Obligations and the
termination of this Guaranty. Nothing contained in this Subparagraph
5(h) shall require Agent or any Lender to make available any of its tax
returns (or any other information relating to its taxes which it deems
to be confidential).
(i) Partial Invalidity. If at any time any provision of this
Guaranty is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guaranty nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired thereby.
(j) Jury Trial. EACH OF GUARANTOR, LENDERS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE
G-10
<PAGE> 135
RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY.
(k) Governing Law, Consent to Jurisdiction, Etc.
(i) This Guaranty shall be governed by and construed in
accordance with the laws of the State of California without
reference to conflicts of law rules.
(ii) Guarantor irrevocably submits to the non-exclusive
jurisdiction of the courts of the State of California and the
courts of the United States of America located in the Northern
District of California and agrees that any legal action, suit or
proceeding arising out of or relating to this Guaranty or any of
the other Credit Documents may be brought against Guarantor in
any such courts. Final judgment against Guarantor in any such
action, suit or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment, a
certified or exemplified copy of which shall be conclusive
evidence of the judgment, or in any other manner provided by law.
Nothing in this Subparagraph 5(k) shall affect the right of Agent
or any Lender to commence legal proceedings or otherwise sue
Guarantor in any other appropriate jurisdiction, or concurrently
in more than one jurisdiction, or to serve process, pleadings and
other papers upon Guarantor in any manner authorized by the laws
of any such jurisdiction. Guarantor agrees that process served
either personally or by registered mail shall, to the extent
permitted by law, constitute adequate service of process in any
such suit. Without limiting the foregoing, Guarantor hereby
appoints, in the case of any such action or proceeding brought in
the courts of or in the State of California, CT Corporation, with
offices on the date hereof at 818 West Seventh Street, Los
Angeles, California 90017, to receive for it and on its behalf,
service of process in the State of California with respect
thereto, provided Guarantor may appoint any other Person,
reasonably acceptable to Agent, with offices in the State of
California to replace such agent for service of process upon
delivery to Agent of a reasonably acceptable agreement of such
new agent agreeing so to act. Guarantor irrevocably waives to the
fullest extent permitted by applicable law (A) any objection
which it may have now or in the future to the laying of the venue
of any such action, suit or proceeding in any court referred to
in the first sentence above; (B) any claim that any such action,
suit or proceeding has been brought in an inconvenient forum; (C)
its right of removal of any matter commenced by any other party
in the courts of the State of California to any court of the
United States of America; (D) any immunity which it or its assets
may have in respect of its obligations under this Agreement or
any other Credit Document from any suit, execution, attachment
(whether provisional or final, in aid of execution, before
judgment or otherwise) or other legal process; and (E) any right
it may have to require the moving party in any suit, action or
proceeding brought in any of the courts referred to above arising
out of or in connection with this Agreement or any other Credit
Document to post security for the costs of Guarantor or to post a
bond or to take similar action.
G-11
<PAGE> 136
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed as
of the day and year first above written.
LSI LOGIC CORPORATION
By: ___________________________________
Name: _____________________________
Title: ____________________________
G-12
<PAGE> 137
EXHIBIT H
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the Assignment Effective Date set
forth in Attachment 1 hereto, by and among:
(1) The bank designated in Attachment 1 hereto as the Assignor
Lender ("Assignor Lender"); and
(2) Each bank designated in Attachment 1 hereto as an Assignee
Lender (individually, an "Assignee Lender").
RECITALS
A. Assignor Lender is one of the Lenders which is a party to the Credit
Agreement dated as of August 5, 1998, by and among LSI Logic Corporation
("LSI"), LSI Logic Japan Semiconductor, Inc. ("LLJS"), Assignor Lender and the
other financial institutions parties thereto (collectively, the "Lenders") and
ABN AMRO Bank N.V., as agent for Lenders (in such capacity, "Agent"). (Such
credit agreement, as amended, supplemented or otherwise modified in accordance
with its terms from time to time to be referred to herein as the "Credit
Agreement").
B. Assignor Lender wishes to sell, and each Assignee Lender wishes to
purchase, all or a portion of Assignor Lender's rights under the Credit
Agreement pursuant to Subparagraph 8.05(c) of the Credit Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Credit Agreement
have the respective meanings given to those terms in the Credit Agreement.
2. Sale and Assignment. Subject to the terms and conditions of this
Assignment Agreement, Assignor Lender hereby agrees to sell, assign and delegate
to each Assignee Lender and each Assignee Lender hereby agrees to purchase,
accept and assume the rights, obligations and duties of a Lender under the
Credit Agreement and the other Credit Documents with Commitments or Loans equal
to the respective amounts set forth under the caption "Commitments or Loans
Assigned" opposite such Assignee Lender's name on Attachment 1 hereto. Such
sale, assignment and delegation shall become effective on the date designated in
Attachment 1 hereto (the "Assignment Effective Date"), which date shall be,
unless Agent shall otherwise consent, at least five (5) Business Days after the
date following the date counterparts of this Assignment Agreement are delivered
to Agent in accordance with Paragraph 3 hereof.
H-1
<PAGE> 138
3. Assignment Effective Notice. Upon (a) receipt by Agent of five (5)
counterparts of this Assignment Agreement (to each of which is attached a fully
completed Attachment 1), each of which has been executed by Assignor Lender and
each Assignee Lender (and, to the extent required by Subparagraph 8.05(c) of the
Credit Agreement, by Borrowers and Agent) and (b) payment to Agent of the
registration and processing fee specified in Subparagraph 8.05(e) of the Credit
Agreement by Assignor Lender, Agent will transmit to Borrowers, Assignor Lender
and each Assignee Lender an Assignment Effective Notice substantially in the
form of Attachment 2 hereto, fully completed (an "Assignment Effective Notice").
4. Assignment Effective Date. At or before 12:00 noon (New York time for
a U.S. Loan and Tokyo time for a Japanese Loan) on the Assignment Effective
Date, each Assignee Lender shall pay to Assignor Lender, in immediately
available or same day funds, an amount equal to the purchase price, as agreed
between Assignor Lender and such Assignee Lender (the "Purchase Price"), for
each portion of a Commitment or Loan purchased by such Assignee Lender
hereunder. Effective upon receipt by Assignor Lender of each Purchase Price
payable by each Assignee Lender, the sale, assignment and delegation to such
Assignee Lender of such Commitments or Loans as described in Paragraph 2 hereof
shall become effective.
5. Payments After the Assignment Effective Date. Assignor Lender and
each Assignee Lender hereby agree that Agent shall, and hereby authorize and
direct Agent to, allocate amounts payable under the Credit Agreement and the
other Credit Documents as follows:
(a) All principal payments made after the Assignment Effective
Date with respect to each portion of a Loan assigned to an Assignee
Lender pursuant to this Assignment Agreement shall be payable to such
Assignee Lender.
(b) All interest, fees and other amounts accrued after the
Assignment Effective Date with respect to each portion of a Loan
assigned to an Assignee Lender pursuant to this Assignment Agreement
shall be payable to such Assignee Lender.
Assignor Lender and each Assignee Lender shall make any separate arrangements
between themselves which they deem appropriate with respect to payments between
them of amounts paid under the Credit Documents on account of the Commitments or
Loans assigned to such Assignee Lender, and neither Agent nor Borrowers shall
have any responsibility to effect or carry out such separate arrangements.
6. Delivery of Notes. On or prior to the Assignment Effective Date,
Assignor Lender will deliver to Agent any Notes payable to Assignor Lender with
respect to its U.S. Loans. On or prior to the Assignment Effective Date, LSI
will deliver to Agent new Notes for each Assignee Lender and Assignor Lender, in
each case in principal amounts reflecting, in accordance with the Credit
Agreement, their respective U.S. Revolving Commitments or U.S. 364 Day
Commitments, as the case may be (as adjusted pursuant to this Assignment
Agreement). Promptly after the Assignment Effective Date, Agent will send to
each of Assignor Lender and the Assignee Lenders its new Notes and will send to
LSI the superseded Note payable to Assignor Lender, marked "Replaced."
H-2
<PAGE> 139
7. Delivery of Copies of Credit Documents. Concurrently with the
execution and delivery hereof, Assignor Lender will provide to each Assignee
Lender (if it is not already a Lender party to the Credit Agreement) conformed
copies of all documents delivered to Assignor Lender on or prior to the Closing
Date in satisfaction of the conditions precedent set forth in the Credit
Agreement.
8. Further Assurances. Each of the parties to this Assignment Agreement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Assignment Agreement.
9. Further Representations, Warranties and Covenants. Assignor Lender
and each Assignee Lender further represent and warrant to and covenant with each
other, Agent and Lenders as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, Assignor Lender makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with
the Credit Agreement or the other Credit Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
the Credit Agreement or the other Credit Documents furnished or any
collateral or any security interest therein.
(b) Assignor Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
Borrowers or any of their obligations under the Credit Agreement or any
other Credit Documents.
(c) Each Assignee Lender confirms that it has received a copy of
the Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Assignment Agreement.
(d) Each Assignee Lender will, independently and without reliance
upon Agent, Assignor Lender or any other Lender and based upon such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement and the other Credit Documents.
(e) Each Assignee Lender appoints and authorizes Agent to take
such action as Agent on its behalf and to exercise such powers under the
Credit Agreement and the other Credit Documents as Agent is authorized
to exercise by the terms thereof, together with such powers as are
reasonably incidental thereto, all in accordance with Section VII of the
Credit Agreement.
(f) Each Assignee Lender agrees that it will perform in
accordance with their terms all of the obligations which by the terms of
the Credit Agreement and the other Credit Documents are required to be
performed by it as a Lender.
H-3
<PAGE> 140
(g) Attachment 1 hereto sets forth administrative information
with respect to each Assignee Lender.
10. Effect of this Assignment Agreement. On and after the Assignment
Effective Date, (a) each Assignee Lender shall be a Lender with Commitments or
Loans as set forth under the caption "Commitments or Loans After Assignment"
opposite such Assignee Lender's name on Attachment 1 hereto and shall have the
rights, duties and obligations of such a Lender under the Credit Agreement and
the other Credit Documents and (b) Assignor Lender shall be a Lender with
Commitments or Loans as set forth under the caption "Commitments or Loans After
Assignment" opposite Assignor Lender's name on Attachment 1 hereto and shall
have the rights, duties and obligations of such a Lender under the Credit
Agreement and the other Credit Documents, or, if the Commitments and Loans of
Assignor Lender have been reduced to $0, Assignor Lender shall cease to be a
Lender and shall have no further obligation to make any Loans.
11. Miscellaneous. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Paragraph
headings in this Assignment Agreement are for convenience of reference only and
are not part of the substance hereof.
H-4
<PAGE> 141
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers as of the
date set forth in Attachment 1 hereto.
________________________________, as
Assignor Lender
By: _______________________________
Name: _________________________
Title: ________________________
_____________________________, as an
Assignee Lender
By: _______________________________
Name: _________________________
Title: ________________________
_____________________________, as an
Assignee Lender
By: _______________________________
Name: _________________________
Title: ________________________
_____________________________, as an
Assignee Lender
By: _______________________________
Name: _________________________
Title: ________________________
H-5
<PAGE> 142
CONSENTED TO AND ACKNOWLEDGED BY:
By: ______________________________
Name: ________________________
Title: _______________________
ABN AMRO BANK N.V.,
as Agent
By: ______________________________
Name: ________________________
Title: _______________________
ACCEPTED FOR RECORDATION
IN REGISTER:
ABN AMRO BANK N.V.,
as Agent
By: ______________________________
Name: ________________________
Title: _______________________
H-6
<PAGE> 143
ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
PART A
<TABLE>
<CAPTION>
Commitments or Loans Commitments or Loans
Assigned After Assignment
----------------------------------------------- -------------------------------------------------
U.S. U.S.
Revolving 364 Day Japanese U.S. Revolving U.S. 364 Day Japanese
Commitment/ Commitment/ Commitment/ Commitment/ Commitment/ Commitment/
Loan Loan Loan Loan Loan Loan
----------------------------------------------- --------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Assignor Lender:
-------------- $---------- $---------- (Y)---------- $------------ $----------- (Y)---------
Assignee Lenders:
-------------- $---------- $---------- Y---------- $------------ $----------- Y---------
-------------- $---------- $---------- Y---------- $------------ $----------- Y---------
-------------- $---------- $---------- Y---------- $------------ $----------- Y---------
-------------- $---------- $---------- Y---------- $------------ $----------- Y---------
</TABLE>
H(1)-1
<PAGE> 144
PART B
[ASSIGNEE PARTICIPANT]
Domestic Lending Office:
Euro-Dollar Lending Office:
Japanese Lending Office:
Address for Notices related to U.S. Borrowings:
Address for Notices related to the Japanese Borrowing:
Wiring Instructions for U.S. Borrowings:
Wiring Instructions for the Japanese Borrowing:
H(1)-2
<PAGE> 145
PART C
ASSIGNMENT EFFECTIVE DATE ________, ____
H(1)-3
<PAGE> 146
ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
Reference is made to the Credit Agreement, dated as of August 5, 1998,
among LSI Logic Corporation ("LSI"), LSI Logic Japan Semiconductor, Inc., the
financial institutions parties thereto (the "Lenders") and ABN AMRO Bank N.V.,
as agent for Lenders (in such capacity, "Agent"). Agent hereby acknowledges
receipt of five executed counterparts of a completed Assignment Agreement, a
copy of which is attached hereto. [Note: Attach copy of Assignment Agreement.]
Terms defined in such Assignment Agreement (whether directly or indirectly by
reference) are used herein as therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Effective Date will be __________.
[2. Pursuant to such Assignment Agreement, Assignor Lender is required
to deliver to Agent on or before the Assignment Effective Date the Notes payable
to Assignor Lender.]
[3. Pursuant to such Assignment Agreement, LSI is required to deliver to
Agent on or before the Assignment Effective Date the following Notes, each dated
_________________ [Insert appropriate date]:
[Describe each new Note for Assignor Lender and each Assignee Lender as
to principal amount.]]
4. Pursuant to such Assignment Agreement, each Assignee Lender is
required to pay its Purchase Price to Assignor Lender at or before 12:00 Noon [(
time)] on the Assignment Effective Date in immediately available funds.
Very truly yours,
ABN AMRO BANK N.V.,
as Agent
By: __________________________________
Name: ____________________________
Title: ___________________________
H(2)-1
<PAGE> 147
EXHIBIT I
FORM OF OPINION OF WILSON, SONSINI, GOODRICH & ROSATI
(a) LSI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, is qualified to do business
and is in good standing in the State of California and has all requisite power
and authority to execute, deliver and perform its obligations under the Credit
Documents and the Symbios Acquisition Documents to which it is a party.
(b) The execution, delivery and performance by LSI of the Credit
Documents and the Symbios Acquisition Documents to which it is a party have been
duly authorized by all necessary corporate action of LSI and will not contravene
the terms of the certificate of incorporation and the bylaws of LSI.
(c) The execution, delivery and performance by each Borrower of the
Credit Documents and the Symbios Acquisition Documents to which it is a party
will not (i) to our knowledge, result in a breach of or constitute a default
under any material Contractual Obligation to which either Borrower is a party or
by which it or its properties may be bound or affected or (ii) violate any
provision of Governmental Rule binding on or affecting either Borrower.
(d) The Credit Documents and the Symbios Acquisition Documents
constitute legal, valid and binding obligations of each Borrower which is a
party thereto, enforceable against such Borrower in accordance with their
respective terms, except to the extent the enforceability thereof would be
subject to bankruptcy, insolvency, receivership or similar laws providing relief
from creditors, or principles of equity generally.
(e) No authorization, consent, approval, license, exemption of, or
filing or registration with, any Governmental Authority, or, to our knowledge,
approval or consent of any other Person, is required for the due execution,
delivery or performance by either Borrower of any of the Credit Documents or the
Symbios Acquisition Documents except those set forth on Schedule 4.01(d) which
have been obtained or made and are in full force and effect.
(f) To our knowledge, except as set forth in Schedule 4.01(g), there are
no actions, suits or proceedings pending or threatened against or affecting
either Borrower or any of its Significant Subsidiaries or the properties of such
Borrower or any of its Significant Subsidiaries before any Governmental
Authority or arbitrator which if determined adversely to such Borrower or any
such Significant Subsidiary would be reasonably likely to result in a Material
Adverse Effect.
(g) None of Borrowers and their Significant Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Investment Company Act of 1940, the Interstate Commerce Act, any
state public utilities code or any other Governmental Rule limiting its ability
to incur Indebtedness.
I-1
<PAGE> 148
(h) The use of proceeds from the U.S. Borrowings to consummate the
Symbios Acquisition as provided in Subparagraph 2.01(h) of the Credit Agreement
will not violate Regulation U of the FRB.
I-2
<PAGE> 149
EXHIBIT J
FORM OF OPINION OF JAPANESE COUNSEL
(a) LLJS is a corporation duly organized, validly existing and in good
standing under the laws of Japan and has all requisite power and authority to
execute, deliver and perform its obligations under the Credit Documents to which
it is a party.
(b) The execution, delivery and performance by LLJS of the Credit
Documents to which it is a party have been duly authorized by all necessary
corporate action of LLJS and will not contravene the terms of the articles of
association of LLJS.
(c) The execution, delivery and performance by LLJS of the Credit
Documents to which it is a party will not (i) to our knowledge, result in a
breach of or constitute a default under any material Contractual Obligation to
which LLJS is a party or by which it or its properties may be bound or affected
or (ii) violate any provision of Governmental Rule binding on or affecting LLJS.
(d) The Credit Documents to which LLJS is a party constitute legal,
valid and binding obligations of LLJS, enforceable against LLJS in accordance
with their respective terms, except to the extent the enforceability thereof
would be subject to bankruptcy, insolvency, receivership or similar laws
providing relief from creditors, or principles of equity generally.
(e) No authorization, consent, approval, license, exemption of, or
filing or registration with, any Governmental Authority, or, to our knowledge,
approval or consent of any other Person, is required for the due execution,
delivery or performance by LLJS of any of the Credit Documents to which LLJS is
a party.
(f) To our knowledge, except as set forth in Schedule 4.01(g), there are
no actions, suits or proceedings pending or threatened against or affecting LLJS
or any of its Significant Subsidiaries or the properties of LLJS or any of its
Significant Subsidiaries before any Governmental Authority or arbitrator which
if determined adversely to LLJS or any such Significant Subsidiary would be
reasonably likely to result in a Material Adverse Effect.
(g) The execution and delivery by LLJS of the Credit Documents to which
it is a party are not subject to any stamp duty or other tax, and no deduction
or withholding on account of any taxes of any nature whatsoever is required to
be made from any payment by LLJS under the Credit Documents to which it is a
party.
(h) The obligations of LLJS under the Credit Documents to which it is a
party rank at least pari passu in order of priority with all its other unsecured
obligations.
(i) Neither LLJS nor any of its property has any right of immunity from
jurisdiction, attachment (before or after judgment) or judgment in the courts of
Japan in respect of any action or proceeding relating to the Credit Documents to
which LLJS is a party.
J-1
<PAGE> 150
(j) The courts of Japan will (i) give effect to the choice of the law of
the State of California as the governing law of the Credit Agreement and to
LLJS's submission to jurisdiction and the manner of service of process as
provided in the Credit Agreement and (ii) recognize and enforce any judgment on
or in respect of the Credit Agreement in Japan.
J-2
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
LSI Logic Inc. on Form S-8 of our report dated January 24, 1998, except for
Note 21, as to which the date is August 6, 1998, on our audit of the
consolidated financial statements of Symbios, inc. as of December 31, 1997 and
for the year then ended which report is included in this Form 8-K.
/s/ Pricewaterhouse Coopers LLP
- ------------------------------------
Denver, Colorado
October 20, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Form S-8 (No. 2-86474, No. 2-91907, No. 2-98732, No. 33-6188, No.
33-6203, No. 33-13265, No. 33-17720, No. 33-30385, No. 33-30386, No. 33-36249,
No. 33-41999, No. 33-42000, No. 33-53054, No. 33-66548, No. 33-66546, No.
33-55631, No. 33-55633, No. 33-55697, No. 33-59981, No. 33-59985, No. 33-59987,
No. 333-34285, No. 333-62159, No. 333-57563) of LSI Logic Corporation of our
report dated January 22, 1998 appearing on page 36 of the Annual Report to
Stockholders, which is incorporated in this Form 8-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
October 19, 1998
