EXHIBIT 10.25(g)
SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY
THIS SIXTH AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY (this
"Amendment"), dated as of February 6, 1998, is entered into by and among
---------
Advanced Micro Devices, Inc., a Delaware corporation ("Guarantor"), CIBC Inc.,
---------
a Delaware corporation ("Lessor"), and, solely for the purpose of making
------
certain representations and warranties in Section 3 below, AMD International
Sales & Services, Ltd., a Delaware corporation ("Lessee").
------
RECITALS
--------
A. Guarantor executed and delivered to Lessor a Third Amended and
Restated Guaranty, dated as of August 21, 1995 and accepted by Lessor as of
August 21, 1995, pursuant to which the Guarantor guarantied to Lessor certain
obligations of Lessee. Such Third Amended and Restated Guaranty was amended by
a First Amendment to Third Amended and Restated Guaranty, dated as of
October 20, 1995, by a Second Amendment to Third Amended and Restated
Guaranty, dated as of January 12, 1996, by a Third Amendment to Third Amended
and Restated Guaranty, dated as of May 10, 1996, by a Fourth Amendment to
Third Amended and Restated Guaranty, dated as of June 20, 1996, and by a Fifth
Amendment to Third Amended and Restated Guaranty, dated as of August 1, 1996
(as so amended, the "Guaranty").
--------
B. The Guarantor has requested that the Lessor agree to certain
amendments of the Guaranty.
X. Xxxxxx is willing to amend the Guaranty, subject to the terms
and conditions of this Amendment.
AGREEMENT
---------
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 have the meanings given to them in the Guaranty.
2. Amendment. Subject to satisfaction of the conditions set forth
---------
herein, the Guaranty shall be amended as follows:
(a) The definition of "Bank of America Credit Agreement" shall be
deleted and replaced with the following definition:
-1-
""Bank of America Credit Agreement" means the Existing Bank of
--------------------------------
America Credit Agreement, as the same may be further amended, modified,
supplemented or restated from time to time."
(b) The following definitions shall be added as follows:
"Existing Bank of America Credit Agreement" means that certain
-----------------------------------------
Credit Agreement dated as of July 19, 1996, among Guarantor, Bank of
America National Trust and Savings Association, ABN Amro Bank N.V.,
Canadian Imperial Bank of Commerce, and the other financial institutions
party thereto, as amended by the First Amendment to Credit Agreement
dated as of August 7, 1996, by the Second Amendment to Credit Agreement
dated as of September 9, 1996, by the Third Amendment to Credit
Agreement dated as of October 1, 1997, and by the Fourth Amendment to
Credit Agreement dated as of January 26, 1998 (the "Fourth Amendment to
-------------------
Credit Agreement").
----------------
"Existing German Documents" means the agreements listed at
-------------------------
Schedule 1 to this Amendment.
"Fourth Amendment Effective Date" means the date on which the
-------------------------------
Fourth Amendment to Credit Agreement shall first have become effective in
accordance with the terms set forth at Section 4 therein.
"German Subsidiary" means, together, AMD Saxony Manufacturing
-----------------
GmbH, a German corporation, and any company formed under the laws of a
jurisdiction other than one of the United States of America for the
purpose of holding 100% of the equity in AMD Saxony Manufacturing GmbH.
(c) Section 4.1.11 shall be amended and restated as follows:
SECTION 4.1.11 Existing Bank of America Credit Agreement.
-----------------------------------------
Guarantor agrees that Guarantor will perform, comply with and be bound
by all of its agreements, covenants and obligations contained in
Sections 7.01 through 7.18 (other than Section 7.07) of the Existing
Bank of America Credit Agreement as such Sections existed on the Fourth
Amendment Effective Date, regardless of whether the Existing Bank of
America Credit Agreement thereafter is amended, restated, terminated or
ceases to be effective (such Sections and all other terms of the
Existing Bank of America Credit Agreement to which reference is made
herein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Guaranty by reference as though
specifically set forth in this Guaranty, except as specifically set
forth below), and each such section which is
-2-
incorporated herein by reference and as amended by the Existing Bank of
America Credit Agreement shall be deemed to have been incorporated
herein as of the date each such section and amendment first became
effective under the Existing Bank of America Credit Agreement;
provided, however, that:
-------- -------
(i) all references to "Company" shall be deemed to refer to
Guarantor;
(ii) all references to "this Agreement" and "herein," "hereof" and
words of similar purport shall, except where the context otherwise
requires, be deemed to refer to this Guaranty;
(iii) all references to "Event of Default" shall be deemed to
refer to a "Default" or an "Event of Default" under either of the
Leases or the other Operative Agreements, or breach or default under
this Guaranty;
(iv) the following sentence shall be added to the end of Section
7.01 of the Existing Bank of America Credit Agreement as incorporated
herein by reference:
"provided, however, that no Liens otherwise permitted by (a)
-------- ------
through (n) above shall be permitted if such Liens are otherwise
prohibited under either of the Leases or the Consent Agreement or
the Second Consent Agreement."
(v) Paragraph (b) of Section 7.03 of the Existing Bank of America
Credit Agreement as incorporated by reference herein shall be deleted
and replaced with the following:
"(b) any Restricted Subsidiary (other than Lessee) of
Guarantor may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise), to Guarantor or another Wholly-
Owned Subsidiary (other than Lessee or the German Subsidiary) of
Guarantor."
All such Sections and other terms, definitions and provisions of the Existing
Bank of America Credit Agreement incorporated herein shall, except as Lessor
shall otherwise consent in writing for purposes of this Guaranty, continue in
full force and effect for the benefit of Lessor, whether or not the Banks fund
the Loans thereunder, the debt and obligations thereunder remain outstanding
or such agreement remains in effect among the parties thereto.
Except as specifically provided above and except that the term
"Material Adverse Effect" as defined in the Guaranty shall continue to be used
in the Guaranty, to the extent that any definitions incorporated by reference
from the Existing Bank of America Credit
-3-
Agreement conflict with the existing definitions in the Guaranty, such
incorporated definitions shall with respect to the Sections of the Existing
Bank of America Credit Agreement which are incorporated by reference and listed
in the first paragraph of this Section 4.1.11 hereof replace such existing
definitions in their entirety.
(d) Section 4.2.16 shall be amended by inserting at the end of
subsection (b) after the word "Lessee" and before the period the following:
", but excluding any prohibitions or restrictions relating to the
German Subsidiary as set forth in the Existing German Documents as
those prohibitions or restrictions existed on February 6, 1998, and
without regard to any amendments, modifications, restatements,
consents or waivers entered into or granted thereafter."
3. Representations and Warranties. To induce Lessor to amend the
------------------------------
Guaranty as provided above: (a) Guarantor hereby represents that (i) after
giving effect to the amendments set forth in Section 2 above, no Default,
Event of Default or Deposit Event under the Guaranty, or Guarantor Default
under the Amended Land Lease or the Amended Building Lease, has occurred and
is continuing, (ii) all representations and warranties of Guarantor contained
in the Guaranty are true and correct on and as of the date of this Amendment
as though made on and as of such date, and (iii) the Existing Bank of America
Credit Agreement and each other Loan Document (as defined therein) to which
the Guarantor is a party constitutes the legal, valid and binding obligation
of the Guarantor, enforceable against the Guarantor in accordance with their
respective terms, and the Fourth Amendment to Credit Agreement has become
effective in accordance with Section 4 thereof, and (b) Lessee hereby
represents that (i) after giving effect to the amendments set forth in Section
2 above, no Default or Event of Default under the Amended Land Lease or the
Amended Building Lease has occurred and is continuing, and (ii) all
representations and warranties of Lessee contained in the Amended Land Lease
and the Amended Building Lease are true and correct on and as of the date of
this Amendment as though made on and as of such date.
4. Reaffirmation. Guarantor hereby acknowledges and reaffirms in
-------------
their entirety each of the waivers set forth in the Guaranty, including,
without limitation, those set forth at Sections 2.5, 2.6 and 2.7.
5. Conditions to Effectiveness of Amendment. This Amendment shall
----------------------------------------
become effective on the date on which all of the following conditions
precedent have been satisfied:
-4-
(a) Lessor shall have received from Guarantor, Lessee and The
Long-Term Credit Bank of Japan, Ltd., Los Angeles Agency (the "Lender"), a
------
duly executed original (or, if elected by Lessor, an executed facsimile copy)
of this Amendment.
(b) Lessor shall have received a duly executed original (or, if
elected by Lessor, an executed facsimile copy) of the Fourth Amendment to
Credit Agreement.
(c) Lessor shall have received a legal opinion from O'Melveny &
Xxxxxx LLP in the form attached hereto as Exhibit A.
---------
(d) Each of the representations and warranties set forth in
Section 3 above are true and correct as of such date.
6. Reservation of Rights. The Guarantor acknowledges and agrees that
---------------------
the execution and delivery by Lessor of this Amendment shall not be deemed to
create a course of dealing or otherwise obligate Lessor to forbear or execute
similar amendments under the same or similar circumstances in the future.
7. Miscellaneous.
-------------
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Guaranty are and shall remain in full force and effect and
all references therein to such Guaranty shall henceforth refer to the Guaranty
as amended by this Amendment. This Amendment shall be deemed incorporated
into, and a part of, the Guaranty. The Guaranty, as amended by this Amendment,
is hereby absolutely and unconditionally affirmed in its entirety by the
Guarantor.
(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.
(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 facsimile transmission to be
followed promptly by mailing of a hard copy original, and that receipt by
lessor of a facsimile transmitted document purportedly bearing the signature
of Guarantor or Lessee shall bind Guarantor and Lessee with the same force
and effect as the delivery of a hard copy original. Any failure by Lessor to
receive the hard copy executed original of
-5-
such document shall not diminish the binding effect of receipt of the
facsimile transmitted executed original of such document of the party whose
hard copy page was not received by Lessor.
(e) This Amendment, together with the Guaranty, including the
exhibits hereto and thereto, 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 6.2 of the Guaranty.
(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.
(g) The Guarantor covenants to pay or to reimburse Lessor, upon
demand, for all costs and expenses (including reasonable fees and costs of
counsel) incurred in connection with the development, preparation,
negotiation, execution and delivery of this Amendment.
(h) The Guarantor agrees that at any time and from time to time, upon
the written request of Lessor, the Guarantor shall, and shall cause Lessee to,
promptly and duly execute and deliver any and all such further instruments and
documents and take such further action as the Lessor shall reasonably request
in order to effectuate the transactions contemplated hereby.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
-6-
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first written above.
CIBC INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Xxxxxxx Xxxxx
Title: Managing Director
CIBC Xxxxxxxxxxx Corp. AS AGENT
--------------------------------------
ADVANCED MICRO DEVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief
Financial and Administrative Officer
and Treasurer
--------------------------------------
AMD INTERNATIONAL SALES & SERVICE, LTD.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
Title: President, Chief Financial Officer
and Treasurer
--------------------------------------
Reference is made to the Loan Agreement, dated as of December 17, 1993, as
amended (the "Loan Agreement") between Lessor and the Lender. In accordance
--------------
with Section 8 of the Loan Agreement, Lender hereby consents to the foregoing
Amendment.
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By: /s/ illegible signature
-----------------------------------
Title: General Manager
--------------------------------
Date:
---------------------------------
S-1
Schedule 1
----------
- Konsortialkreditvertrag (Syndicated Loan Agreement) dated 11 March 1997
among, inter alia, AMD Saxony Manufacturing GmbH ("AMD Saxonia"), Dresdner
Bank Luxembourg S.A. as Agent (successor to Dresdner Bank A.G. in such
capacity, the "Agent") and Paying Agent and Dresdner Bank A.G., as Security
Agent (the "Security Agent").
- Zuschussvertrag (Subsidy Agreement) dated 11 March 1997 between AMD Saxonia
and Dresdner Bank A.G.
- AMD Inc. Guaranty dated 11 March 1997 by Advanced Micro Devices, Inc. ("AMD
Inc.") in favour of the Agent and the Security Agent.
- Sponsors' Support Agreement dated 11 March 1997 among AMD Inc., AMD Saxony
Holding GmbH ("AMD Holding") and the Agent and Security Agent.
- Sponsors' Loan Agreement dated 11 March 1997 among AMD Inc., AMD Holding
and the Agent and Security Agent.
- Sponsors' Subordination Agreement dated 11 March 1997 among AMD Inc, AMD
Holding and the Agent and Security Agent.
- Sponsors' Consent and Agreement dated 11 March 1997 among AMD Inc., AMD
Holding and the Agent and Security Agent.
- Sponsors' Guaranty dated 11 March 1997 by AMD Inc. and AMD Holding in favour
of the Agent and Security Agent.
- AMD Holding Wafer Purchase Agreement dated as of March 11, 1997 between AMD
Inc. and AMD Holding.
- AMD Holding Research, Design and Development Agreement dated as of March
11, 1997.
- AMD Saxonia Wafer Purchase Agreement dated as of March 11, 1997 between AMD
Holding and AMD Saxonia.
- AMD Saxonia Research, Design and Development Agreement dated as of March
11, 1997 between AMD Inc. and AMD Holding.
- Amended and Restated Management Services Agreement dated as of March 11,
1997 among AMD Inc., AMD Holding and AMD Saxonia.
- License Agreement dated as of March 11, 1997 among AMD Inc., AMD Holding
and AMD Saxonia.
1
- Verpfandungsvereinbarung (Geschaftsanteile AMD Saxony Holding GmbH,
Dresden) (Share Pledge Agreement (Shares of AMD Holding)) dated June 12,
1997 between AMD Inc. and the Security Agent.
- Verpfandungsvereinbarung (Geschaftsanteile AMD Saxony Manufacturing GmbH,
Dresden) (Share Pledge Agreement (Shares of AMD Saxonia)) dated June 12,
1997 between AMD Holding and the Security Agent.
- AMD Holding Sicherungsubereignung Umlaufvermogen (AMD Holding Assignment of
Current Assets) dated September 25, 1997 between AMD Holding and the
Security Agent.
- AMD Holding Globalzession (AMD Holding Global Assignment) dated September
25, 1997 between AMD Holding and the Security Agent.
- AMD Holding Verpfandung von Bankkonten (AMD Holding Pledge of Bank Accounts
and Security Deposits) dated September 25, 1997 between AMD Holding and the
Security Agent.
- AMD Holding Abtretung von Vertragsrechten (AMD Holding Assignment of
Contract Rights) dated September 25, 1997 between AMD Holding and the
Security Agent.
- AMD Holding Assignment (U.S.A.) dated September 25, 1997 between AMD
Holding and the Security Agent.
- AMD Saxonia Grundschuldbestellung (AMD Saxonia Land Charge) dated July 4,
1997 between AMD Saxonia and the Security Agent.
- AMD Saxonia Sicherungsubereignung Umlaufvermogen (AMD Assignment of Current
Assets) dated September 25, 1997 between AMD Saxonia and the Security Agent.
- AMD Saxonia Sicherungsubereignung Sachanlagevermogen (AMD Assignment of
Fixed Assets) dated September 25, 1997 between AMD Saxonia and the Security
Agent.
- AMD Saxonia Sicherungsubereignung Versicherungsanspruche (AMD Assignment
of Insurances) dated September 25, 1997 between AMD Saxonia and the
Security Agent.
- AMD Saxonia Globalzession (AMD Saxonia Global Assignment) dated September
25, 1997 between AMD Saxonia and the Security Agent.
- AMD Saxonia Verpfandung von Projektkonten (AMD Saxonia Pledge of Project
Accounts and Securities Deposits) dated September 25, 1997 between AMD
Saxonia and the Security Agent.
2
- AMD Saxonia Abtretung von Vertragsrechten (AMD Saxonia Assignment of
Contractual Rights) dated September 25, 1997 between AMD Saxonia and the
Security Agent.
- AMD Saxonia Assignment (U.S.A.) dated September 25, 1997 between AMD
Saxonia and the Security Agent.
- Master Agreement dated March 11, 1997 between AMD Inc. and AMD Saxonia,
together with the Confirmation thereunder dated March 11, 1997 and the
Confirmation thereunder dated on or about February 6, 1998.
- Nachtragsvereinbarung (Supplemental Agreement to Loan Agreement) dated
February 6, 1998 among inter alia, AMD Saxonia, Agent, Paying Agent and
Security Agent.
- First Amendment to Sponsors' Support Agreement dated February 6, 1998 among
AMD, Inc., AMD Holding, Agent and Security Agent.
- First Amendment to Sponsors' Loan Agreement dated February 6, 1998 among
AMD Inc., AMD Holding and AMD Saxonia.
- First Amendment to AMD Saxonia Wafer Purchase Agreement dated as of
February 6, 1998 between AMD Saxonia and AMD Holding.
3
