EXHIBIT 10.39(a)
FIRST AMENDMENT TO TERM LOAN AGREEMENT
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THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT (this "Amendment"), dated
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as of October 20, 1995 is entered into by and among ADVANCED MICRO DEVICES,
INC., a Delaware corporation (the "Company"), the several financial institutions
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party to the Term Loan Agreement referred to in the Recitals to this Amendment
(the "Banks"), ABN AMRO Bank N.V. as Administrative Agent, and ABN AMRO Bank
N.V. and CIBC Inc. as Co-Arrangers.
RECITALS
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A. The Company, the Banks, the Administrative Agent and the Co-Arrangers
are parties to the Term Loan Agreement dated as of January 5, 1995 (the "Term
Loan Agreement"), pursuant to which the Banks have extended certain credit
facilities to the Company.
B. The Company has requested that the Banks agree to certain amendments
of the Term Loan Agreement.
C. The Banks are willing to amend the Term Loan Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein shall
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have the meanings given to them in the Term Loan Agreement and in Section 2.1 of
this Amendment.
2. Amendments to the Term Loan Agreement.
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2.1 Section 1.1 of the Term Loan Agreement is hereby amended to add the
following defined terms to the Term Loan Agreement in proper alphabetical order:
"First Amendment Effective Date" means the date on which the First
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Amendment to Loan Agreement shall have become effective in accordance with the
terms set forth therein.
1.
"First Amendment to Loan Agreement" means the First Amendment to Loan
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Agreement dated as of October 20, 1995.
"Permitted Line of Credit" means the secured line of credit
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to Target on the terms and conditions described below:
(i) The Permitted Line of Credit will be available to Target in the
maximum aggregate amount of $60,000,000, available beginning on the closing date
under a definitive agreement with respect to the Permitted Line of Credit and
ending on June 30, 1996;
(ii) The Permitted Line of Credit will be secured by a lien in favor
of the Company covering all assets of Target, including copyrights, trademarks
and patents, accounts receivable, inventory, equipment and other tangible and
intangible assets, and such lien in favor of the Company shall be junior to
certain prior liens, including without limitation the liens of (A) Ascii
Corporation and Ascii of America, Inc., with respect to all assets of Target,
securing one or more term loans in the aggregate amount of approximately
$2,000,000, (B) a certain financial institution, with respect to receivables and
inventory only, securing a revolving line of credit in the maximum amount for
principal outstanding at any time of $10,000,000; and (C) Phemus Corporation,
with respect to all assets of Target, securing one or more term loans in the
aggregate amount of approximately $10,000,000; and
(iii) The principal of, and interest (if any) on, outstanding amounts
under the Permitted Line of Credit shall be due and payable 12 months after the
date of termination of the definitive agreement (the "Merger Agreement")
relating to the Permitted Merger, or earlier, under certain conditions, if the
Company and Target shall fail to consummate the Permitted Merger.
"Permitted Merger" means the merger (to take effect in connection with
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that certain tax-free reorganization whereby the Company shall acquire all of
the issued and outstanding securities of Target) of AMD Merger Corporation, a
wholly-owned Subsidiary of the Company, into Target, with the result that upon
the consummation of such merger (a) AMD Merger corporation will cease to exist
and (b) Target will become a wholly-owned Subsidiary of the Company; provided
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that (x) such merger shall have been consummated on or before June 30, 1996 and
(y) the Investment contemplated in connection with the Permitted Merger shall
satisfy the following conditions: (i) the sole consideration paid by the Company
in connection with such merger shall be shares of the Company's capital stock,
(ii) Target and its Subsidiaries are in the Company's lines of business, or such
Investment provides vertical integration, (iii) such Investment is being
undertaken in accordance with all applicable Requirements of Law, and (iv) such
Investment shall not result in any Default or Event of Default.
2.
"Target" means that certain corporation identified in writing to the
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Administrative Agent and otherwise to the Banks on or before the First Amendment
Effective Date.
2.2 Section 7.3 of the Term Loan Agreement is hereby amended to add the
following new subsection (c) thereto:
"(c) the Permitted Merger."
In addition, "; and" shall replace the period at the end of subsection (b) of
such Section 7.3.
2.3 Section 7.4 of the Term Loan Agreement is hereby amended to add the
following new subsection (g) thereto:
"(g) the Permitted Line of Credit."
In addition, "; or" shall replace the period at the end of subsection (f) of
such Section 7.4.
3. Representations and Warranties.
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The Company hereby represents and warrants to the Administrative Agent
and the Banks as follows:
(a) No Default or Event of Default has occurred and is continuing.
(b) The execution, delivery and performance by the Company of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable. The Term Loan Agreement as amended by
this Amendment constitutes the legal, valid and binding obligations of the
Company, enforceable against it in accordance with its respective terms, without
defense, counterclaim or offset.
(c) All representations and warranties of the Company contained in
the Term Loan Agreement are true and correct.
(d) The Company is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon the
Administrative Agent and the Banks or any other Person.
(e) The Target is subject to Section 12 of the Exchange Act or
subject to the requirements of Section 15(d) of such Act, and the effective
written consent of the board of directors or equivalent governing body of the
Target has been obtained and has
3.
been delivered to the Administrative Agent or will be delivered to the
Administrative Agent within five Business Days after the execution and delivery
of the Merger Agreement.
4. Conditions to Effectiveness of Amendment.
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This Amendment will become effective on the date (the "First Amendment
Effective Date") on which all of the following conditions precedent shall have
been satisfied:
4.1 The Administrative Agent shall have received from each of the Company
and the Majority Banks a duly executed original (or, if elected by the
Administrative Agent, an executed facsimile copy) of this Amendment; and
4.2 Each of the representations and warranties set forth in Section 3 of
this Amendment shall be true and correct as of the First Amendment Effective
Date.
Solely for purposes of this Section 4, the representation and warranty
set forth in Section 3(e) shall be deemed to be true as of the date on which the
condition set forth in Section 4.1 shall have been satisfied, provided that the
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failure of the Company to deliver the effective written consent of the board of
directors (or equivalent governing body) of the Target within five Business Days
after the execution and delivery of the Merger Agreement shall constitute an
Event of Default under the Term Loan Agreement.
5. Reservation of Rights. The Company acknowledges and agrees that the
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execution and delivery by the Administrative Agent and the Banks of this
Amendment shall not be deemed to create a course of dealing or otherwise
obligate the Administrative Agent or the Banks to forbear or execute similar
amendments under the same or similar circumstances in the future.
6. Miscellaneous.
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(a) Except as herein expressly amended, all terms, covenants and
provisions of the Term Loan Agreement are and shall remain in full force and
effect and all references therein to such Term Loan Agreement shall henceforth
refer to the Term Loan Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Term Loan Agreement.
(b) This Amendment shall be binding upon and inure to the benefit of
the parties hereto and thereto and their respective successors and assigns. No
third party beneficiaries are intended in connection with this Amendment.
4.
(c) This Amendment shall be governed by and construed in accordance
with the law of the State of California.
(d) This Amendment may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the
Administrative Agent of a facsimile transmitted document purportedly bearing the
signature of a Bank or the Company shall bind such Bank or the Company,
respectively, with the same force and effect as the delivery of a hard copy
original. Any failure by the Administrative Agent to receive the hard copy
executed original of such document shall not diminish the biding effect of
receipt of the facsimile transmitted executed original of such document of the
party whose hard copy page was not received by the Administrative Agent.
(e) This Amendment, together with Term Loan Agreement, contains the
entire and exclusive agreement of the parties hereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior drafts
and communications with respect thereto. This Amendment may not be amended
except in accordance with the provisions of Section 10.01 of the Term Loan
Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or the
Term Loan Agreement, respectively.
(g) The Company covenants to pay to or reimburse the Administrative
Agent and the Banks, upon demand, for all costs and expenses (including
allocated costs of in-house counsel) incurred in connection with the
development, preparation, negotiation, execution and delivery of this Amendment.
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5.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
ADVANCED MICRO DEVICES, INC.
By _____________________________
Xxxxxx X. Xxxxxxx
Senior Vice President and
Chief Financial Officer
ABN AMRO BANK, N.V.
By _____________________________
Title:
By _____________________________
Title:
CIBC Inc.
By _____________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By _____________________________
Title: Vice President
6.
BANQUE NATIONALE DE PARIS
By _____________________________
Title:
By _____________________________
Title:
FIRST INTERSTATE BANK OF CALIFORNIA
By _____________________________
Title: Vice President
By _____________________________
Title: Vice President
FLEET BANK OF MASSACHUSETTS,
NATIONAL ASSOCIATION
By _____________________________
Title:
INDUSTRIAL BANK OF JAPAN
By _____________________________
Title:
THE NIPPON CREDIT BANK, LTD.
By _____________________________
Title:
7.
