exv10w1



 






Exhibit 10.1




FIRST AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS




     THIS FIRST AMENDMENT TO CERTAIN OPERATIVE AGREEMENTS dated as of March 28, 2005 (this
“Amendment”) is by and among CYPRESS SEMICONDUCTOR CORPORATION, a Delaware corporation (the
“Lessee”); WACHOVIA DEVELOPMENT CORPORATION, a North Carolina corporation, (the
“Lessor”); the various financial institutions and other institutional investors which are
parties hereto from time to time as holders of the Credit Notes (individually, a “Credit
Lender” and collectively, the “Credit Lenders”); the various financial institutions and
other institutional investors, which are parties hereto from time to time as Mortgage Lenders
(individually, a “Mortgage Lender” and collectively, the “Mortgage Lenders”) (the
Lessor, each Credit Lender and each Mortgage Lender may be referred to individually as a
“Primary Financing Party” and collectively as the “Primary Financing Parties”); and
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as the agent for the Primary
Financing Parties and respecting the Security Documents, as the agent for the Secured Parties (in
such capacity, the “Agent”).



WITNESSETH:




     WHEREAS, the parties to this Amendment are parties to that certain Participation Agreement
dated as of June 27, 2003 (as amended, modified, extended, supplemented, restated and/or replaced
from time to time, the “Participation Agreement”), and certain other Operative Agreements;
and



     WHEREAS, the parties to this Amendment wish to amend certain agreements, instruments and other
documents to which they are a party (or to which certain of them are a party) in connection with a
lease financing provided in favor of Lessee by the other parties to this Amendment with regard to
the Properties.



     WHEREAS, the Lessee has requested certain modifications to Appendix A to the
Participation Agreement; and



     WHEREAS, the Financing Parties which are signatories hereto have agreed to the requested
modifications on the terms and conditions set forth herein;



     NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which is acknowledged, the parties hereto agree as follows:



AGREEMENT:




     1. Definitions. Capitalized terms used herein and not otherwise defined shall have
the meaning given to such terms in Appendix A to the Participation Agreement and the Rules of Usage
set forth therein shall apply herein. In the case of any conflict between the provisions of



 









 







this Amendment and the provisions of the Operative Agreements, the provisions of this
Amendment shall control construction of the terms.



     2. Amendment to Appendix A to the Participation Agreement. The amendment pursuant to
this Section 2 of this Amendment is deemed to be made and effective as of June 27, 2003 and
thereafter. Appendix A to the Participation Agreement is hereby amended by deleting and replacing
clause (b) in the definition of “Current Ratio” with the following:




     (b) current liabilities as defined in accordance with GAAP less up to $180,000,000 of
current liabilities arising from Lessee’s obligation to make cash payments to holders of
Lessee’s 1.25% convertible notes issued in 2003 upon conversion of such notes. (For the
avoidance of doubt, such $180,000,000 shall be reduced by the aggregate of all payments made
by or on behalf of Lessee to the holders of the 1.25% convertible notes as a result of the
conversion of such notes.)



     3. Effect of Agreement. Except as expressly set forth herein, this Amendment shall
not by implication or otherwise limit, impair, constitute a forbearance or waiver of, or otherwise
affect the rights and remedies of any Financing Party under any Operative Agreement, and shall not
alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Operative Agreements, all of which are ratified and affirmed in all
respects and shall continue in full force and effect. Nothing herein shall be deemed to create a
course of dealing or otherwise entitle The Lessee to a consent, waiver, forbearance, amendment,
modification or other change of, any of the terms, conditions, obligations, covenants or agreements
contained in any Operative Agreement in similar or different circumstances in the future.



     4. Conditions Precedent and Subsequent. Notwithstanding anything contained herein to
the contrary, this Amendment, shall not become effective until (a) completion and delivery to the
Agent of executed counterpart signature pages to this Amendment from the Lessee, the Lessor and the
Majority Secured Parties and (b) all proceedings taken in connection with the transactions
contemplated by this Amendment and all documentation and other legal matters incident thereto shall
be satisfactory to the Agent and its legal counsel, Moore & Van Allen PLLC.



     5. Representations and Warranties. The Lessee hereby represents and warrants that (i)
the representations and warranties contained in Section 6.2 of the Participation Agreement are true
and accurate as of the date hereof as if made on the date hereof, except to the extent such
representations and warranties relate solely to an earlier date, in which case such representations
and warranties were true and accurate as of such earlier date, (ii) no event or condition exists or
would result from or continue after the consummation of the transactions contemplated hereby, which
constitutes a Default or an Event of Default, (iii) each Operative Agreement to which the Lessee is
a party remains in full force and effect with respect to it and shall remain in full force and
effect after the effectiveness of this Amendment, and (iv) it knows of no event that would or with
the passage of time or giving of notice or both could constitute a Casualty, Condemnation or
Environmental Violation.



2









 





     6. Release. In consideration of entering into this Amendment, the Lessee (a)
represents and warrants to each Financing Party that as of the date hereof there are no Claims or
offsets against or defenses or counterclaims to its obligations under the Operative Agreements and
furthermore, the Lessee waives any and all such Claims, offsets, defenses or counterclaims whether
known or unknown, arising prior to the date of this Amendment and (b) releases each Financing Party
and each of their respective Affiliates, Subsidiaries, officers, employees, representatives,
agents, counsel and directors and each Indemnified Person from any and all actions, causes of
action, Claims, demands, damages and liabilities of whatever kind or nature, in law or in equity,
now known or unknown, suspected or unsuspected to the extent that any of the foregoing arises from
any action or failure to act with respect to this Amendment or any other Operative Agreement, on or
prior to the date hereof.



     7. Continued Effectiveness of Operative Agreements. Except as modified hereby, all of
the terms and conditions of the Operative Agreements are hereby ratified and affirmed and shall
remain in full force and effect. By its execution and delivery of this Amendment, the Lessee
acknowledges and agrees to the terms and conditions of this Amendment and reaffirms its obligations
pursuant to the Operative Agreements.



     8. Direction to Lessor. The Agent, the Lenders and the Holders hereby instruct the
Lessor to enter into this Amendment and such other documents necessary to effectuate the intent of
this Amendment.



     9. Miscellaneous.




     (a) Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.




     (b) Counterparts. This Amendment may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an original
and it shall not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart. Delivery of an executed counterpart by telecopy shall be as
effective as delivery of a manually executed counterpart hereto and shall constitute a
representation that an original executed counterpart will be provided.




     (c) Headings. The headings of the various articles and sections of this
Amendment are for convenience of reference only and shall not modify, define, expand or
limit any of the terms or provisions hereof. Unless otherwise stated, references to
Sections made in this Amendment shall be interpreted as references to the applicable Section
herein.




     (d) Fees and Expenses. The Lessee agrees to pay or reimburse all reasonable
costs and expenses of the Agent in connection with the preparation, execution and



3









 






delivery of this Amendment and any documents related hereto, including, without limitation,
the reasonable fees and expenses of Moore & Van Allen PLLC.




     (e) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK EXCEPT TO THE EXTENT THE LAWS OF A STATE
WHERE A PARTICULAR PROPERTY IS LOCATED ARE REQUIRED TO APPLY.




     (f) JURISDICTION, VENUE AND ARBITRATION. THE PROVISIONS OF THE PARTICIPATION
AGREEMENT RELATING TO ACTIONS AND PROCEEDINGS ARE HEREBY INCORPORATED BY REFERENCE HEREIN,
MUTATIS MUTANDIS.




     (g) Further Assurances. The provisions of the Participation Agreement relating
to further assurances are hereby incorporated by reference herein, mutatis mutandis.




     (g) Survival of Representations and Warranties. All representations and
warranties made in this Amendment or any other Operative Agreement shall survive the
execution and delivery of this Amendment and the other Operative Agreements, and no
investigation by any Financing Party or any closing shall affect the representations and
warranties or the right of the Financing Parties to rely upon them.




     (h) Amendment. This Amendment shall not be terminated, amended, supplemented,
waived, modified or discharged except by an instrument in writing executed by the party
against which enforcement is sought and in accordance with Section 12.4 of the Participation
Agreement.




     (i) No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Amendment. In the event an ambiguity or question of intent
or interpretation arises, this Amendment shall be construed as if drafted jointly by the
parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Amendment.



[The remainder of this page has been left blank intentionally.]





4









 








     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective officers thereunto duly authorized as of the date first above written.



	 	 	 	 	 
	LESSEE:	 	CYPRESS SEMICONDUCTOR CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	 	 	Name: Emmanuel Hernandez
	 	 	Title: Chief Financial Officer
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	 	 	Name: Neil H. Weiss
	 	 	Title: Vice President & Treasurer






(signature pages continue)




 









 








	 	 	 	 	 
	LESSOR:	 	WACHOVIA DEVELOPMENT CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	Name:	 	 
	

	 	 	 	 
	

	 	Title:	 	 
	

	 	 	 	 






(signature pages continue)




 









 








	 	 	 	 	 
	AGENT:	 	WACHOVIA BANK, NATIONAL

ASSOCIATION, as the Agent
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	Name:	 	 
	

	 	 	 	 
	

	 	Title:	 	 
	

	 	 	 	 






(signature pages continue)





 









 








	 	 	 	 	 
	CREDIT NOTE LENDER:	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as a Credit Note Lender
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	Name:	 	 
	

	 	 	 	 
	

	 	Title:	 	 
	

	 	 	 	 






(signature pages continue)




 









 








	 	 	 	 	 
	MORTGAGE NOTE LENDER:	 	WACHOVIA BANK, NATIONAL ASSOCIATION,

as a Mortgage Note Lender
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	Name:	 	 
	

	 	 	 	 
	

	 	Title:	 	 
	

	 	 	 	 






(signature pages end)