Exhibit 10.25(h)
SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY
THIS SEVENTH AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY (this
"Amendment"), dated as of February 27, 1998, is entered into by and among
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Advanced Micro Devices, Inc., a Delaware corporation ("Guarantor"), CIBC Inc., a
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Delaware corporation ("Lessor"), and, solely for the purpose of making certain
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representations and warranties in Section 5 below, AMD International Sales &
Service, Ltd., a Delaware corporation ("Lessee").
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RECITALS
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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, by a Fifth Amendment to Third Amended and
Restated Guaranty, dated as of August 1, 1996, and by a Sixth Amendment to Third
Amended and Restated Guaranty, dated as of February 6, 1998 (as so amended, the
"Guaranty").
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B. The Guarantor has requested that the Lessor agree to certain
additional amendments of the Guaranty.
X. Xxxxxx is willing to further amend the Guaranty, subject to the
terms and conditions of this Amendment.
AGREEMENT
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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 Guaranty.
2. Amendment. Subject to satisfaction of the conditions set forth
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herein, the Guaranty shall be amended as follows:
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(a) The definition of "Existing Bank of America Credit Agreement"
shall be deleted and replaced with the following definition:
"Existing Bank of America Credit Agreement" means that certain Credit
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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, by the Fourth Amendment to Credit Agreement dated as of
January 26, 1998, and by the Fifth Amendment to Credit Agreement dated as
of [February 26, 1998] (the "Fifth Amendment to Credit Agreement").
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(b) The following definitions shall be added as follows:
"Fifth Amendment Effective Date" means the date on which the Fifth
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Amendment to Credit Agreement shall first have become effective in
accordance with the terms set forth at Section 4 therein.
(c) Section 4.1.11 shall be amended and restated as follows:
SECTION 4.1.11 Existing Bank of America Credit Agreement. Guarantor
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agrees that Guarantor will perform, comply with and be bound by all of its
agreements, covenants and obligations contained in Sections 7.01 through
7.19 (other than Section 7.07) of the Existing Bank of America Credit
Agreement as such Sections existed on the Fifth 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
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:
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(i) all references to "Company" shall be deemed to refer to
Guarantor;
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(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 "Default" or "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 a breach or default under
the Guaranty;
(iv) all references to "Majority Banks" in Article VII of the
Existing Bank of America Credit Agreement shall be deemed to refer to Lessor;
(v) 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)
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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."
(vi) 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 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
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Section 4.1.11 hereof replace such existing definitions in their entirety.
3. Delivery of Consolidated Balance Sheet for May 24, 1998. Without
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limiting Guarantor's obligations under Section 4.1.1 of the Guaranty or any
other provision thereof or any other Operative Document, Guarantor shall deliver
to Lessor and Lender by no later than June 5, 1998 an unaudited consolidated
balance sheet of Guarantor and its Subsidiaries (as that term is presently
defined in the Existing Bank of America Credit Agreement) as at May 24, 1998,
certified by the chief financial officer or the treasurer of Guarantor as being
complete and accurate in all material respects and fairly presenting, in
accordance with GAAP (subject to ordinary, good faith, year-end audit
adjustments), the financial position of Guarantor and its Subsidiaries as of
such date, subject to the omission of the related statements of income,
shareholders' equity and cash flows for the relevant period. For the avoidance
of doubt, Guarantor's failure to satisfy the requirements of this Section 3
shall constitute an Event of Default under each of the Leases and a breach and
default and Deposit Event under this Guaranty. During such period of time that
Lessor (or in the case of Lessor, Canadian Imperial Bank of Commerce) or Lender
is also a party to the Existing Bank of America Credit Agreement and, by reason
of such status, receives the balance sheet required by this Section 3, then a
delivery of such balance sheet to such Person pursuant to the Existing Bank of
America Credit Agreement within the time periods required above shall be deemed
a receipt by such Person of such balance sheet under this Section 3 and
duplicate deliveries are not required.
4. Amendment Fees. In consideration of this Amendment and the approvals
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given herein, Guarantor agrees to pay a one-time nonrefundable fee of
Twenty-Five Thousand Dollars ($25,000) to Lessor and Twenty-Five Thousand
Dollars ($25,000) to Lender (the "Amendment Fees"). The Amendment Fees shall be
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paid by Guarantor by wire transfer to an account to be specified by each
recipient.
5. Representations and Warranties. To induce Lessor to amend the
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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 Fifth Amendment to Credit Agreement
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has become effective in accordance with Section 4 thereof, and (b) Lessee hereby
represents that (i) after giving effect to the amendments and covenants set
forth in Sections 2, 3 and 4 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.
6. Reaffirmation. Guarantor hereby acknowledges and reaffirms in their
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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.
7. Conditions to Effectiveness of Amendment. This Amendment shall become
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effective on the date on which all of the following conditions precedent have
been satisfied:
(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
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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 Fifth Amendment to Credit
Agreement.
(c) Lessor shall have received a legal opinion from O'Melveny & Xxxxx
LLP in the form attached hereto as Exhibit A.
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(d) Lessor and Lender shall have received the Amendment Fees.
(e) Each of the representations and warranties set forth in Section 5
above are true and correct as of such date.
8. Reservation of Rights. The Guarantor acknowledges and agrees that the
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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.
9. Miscellaneous.
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(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
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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 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 provision 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first written above.
CIBC INC.
By: /s/
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Title:
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ADVANCED MICRO DEVICES, INC.
By: /s/ Xxxxxx X. XxXxx
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Title:
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AMD INTERNATIONAL SALES &
SERVICE, LTD.
By: /s/ Xxxxxx X. XxXxx
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Title:
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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
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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/
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Title:
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Date:
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