EXHIBIT 10.25(o)
FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY
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THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY (this
"Amendment") dated as of June 20, 1996, is entered into by and among Advanced
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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 &
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 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, and by a Third Amendment to Third Amended and Restated
Guaranty, dated as of May 10, 1996 (as so amended, the "Guaranty").
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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
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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
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shall have the meanings given to them in the Guaranty.
2. Amendment. Subject to satisfaction of the conditions set forth
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herein, Section 4.2.9 of the Guaranty shall be amended and restated so as to
read as follows:
"4.2.9 Modified Quick Ratio. Guarantor shall not, as of the
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last day of any fiscal quarter, suffer or permit its ratio (determined on a
consolidated basis) of (a) cash plus the value (valued in accordance with
GAAP) of all Cash Equivalents and 75% of all Long Term
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Investments, other than Cash Equivalents or Long Term Investments subject
to a Lien securing an obligation that is not a GAAP liability, plus the
amount of Receivables, net of allowances for doubtful accounts, to (b)
Consolidated Current Liabilities of the Guarantor and its Subsidiaries,
to be less than 1.10 to 1.00; provided, however, that such ratio may be
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less than 1.10 to 1.00, but may not be less than 0.80 to 1.00, for the
fiscal quarter ended June 30, 1996."
3. Representations and Warranties. To induce Lessor to amend the Guaranty
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as provided above: (a) Guarantor hereby represents that (i) after giving
effect to the amendment 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, and (ii) all representations and warranties of Guarantor contained
in the Guaranty are true and correct, and (b) Lessee hereby represents that
(i) after giving effect to the amendment 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.
4. 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 Long-Term
Credit Bank of Japan, 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 from the Majority Banks under the Term
Loan Agreement, a duly executed original (or, if elected by Lessor, an
executed facsimile copy) amendment to the Term Loan Agreement amending the
"Modified Quick Ratio" set forth in Section 7.10 of the Term Loan Agreement as
provided in Section 2 above.
(c) Lessor shall have received from the Majority Banks under that certain
Amended and Restated Credit Agreement dated as of September 21, 1994, as
amended and restated from time to time (the "Credit Agreement"), among
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Guarantor, the Banks party thereto, Bank of America National Trust and Savings
Association, as agent for the Banks, and The First National Bank of Boston, as
co-agent for the Banks, a duly executed original (or, if elected by Lessor, an
executed facsimile copy) amendment to the Credit Agreement changing the
"Modified Quick Ratio" set forth in Section 7.10 of the Credit Agreement as
provided in Section 2 above.
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(d) Each of the representations and warranties set forth in Section 3 above
are true and correct as of such date.
5. 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.
6. 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 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 (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 Guaranty, 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.
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(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.
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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: /c/ Xxx X. Xxxxxx
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Title: Director
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ADVANCED MICRO DEVICES, INC.
By: /c/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief Financial
and Administrative Officer and Treasurer
AMD INTERNATIONAL SALES &
SERVICE, LTD.
By: /c/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Chief Financial
and Administrative 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
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Section 8(a) of the Loan Agreement, Lender hereby consents to the foregoing
Amendment.
THE LONG-TERM CREDIT BANK OF
JAPAN, LOS ANGELES AGENCY
By: /c/Xxxxxxxx Xxxxxxx
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Title: Xxxxxxxx Xxxxxxx,
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Deputy General Manager
Date: June 21, 1996
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