EXHIBIT 10.24(b)
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), is
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entered into as of September 9, 1996, among Advanced Micro Devices, Inc., a
Delaware corporation (the "Company"), Bank of America National Trust and Savings
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Association, ABN AMRO Bank N.V. and Canadian Imperial Bank of Commerce (the
"Banks" and, individually, each a "Bank"), ABN AMRO Bank N.V., as Syndication
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Agent for the Banks (the "Syndication Agent"), Canadian Imperial Bank of
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Commerce, as Documentation Agent for the Banks (the "Documentation Agent"), and
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Bank of America National Trust and Savings Association, as Administrative Agent
for the Banks (the "Agent").
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WHEREAS, the Company, the Banks, the Syndication Agent, the
Documentation Agent and the Agent are parties to a Credit Agreement dated as of
July 19, 1996, as amended by a First Amendment to Credit Agreement dated as of
August 7, 1996 (as so amended, the "Credit Agreement");
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WHEREAS, the Company has requested that the Banks agree to certain
amendments to the Credit Agreement;
WHEREAS, the Banks have agreed to such request, subject to the terms
and conditions hereof;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties hereto agree as follows:
1. Definitions; Interpretation.
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(a) Terms Defined in Credit Agreement. All capitalized terms used in
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this Amendment (including in the recitals hereof) and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.
(b) Interpretation. The rules of interpretation set forth in Section
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1.02 of the Credit Agreement shall be applicable to this Amendment and are
incorporated herein by this reference.
2. Amendments to the Credit Agreement.
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(a) Amendment. Effective as of the date upon which executed signature
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pages hereof for the Agent, the Banks, the Company, the Syndication Agent and
the Documentation Agent shall have been received by the Agent (the "Effective
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Date"), the Credit Agreement is amended as follows:
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1.
(i) Subsection 7.04(g) of the Credit Agreement is hereby amended by
inserting after the word "hereof" and before the period at the end of such
subsection the following:
"; minus the aggregate amount of Contingent Obligations of the Company
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outstanding under Subsection 7.08(g) at such time"
(ii) Section 7.08 of the Credit Agreement is hereby amended by
deleting "and" at the end of Subsection 7.08(e), replacing the period at the end
of Subsection 7.08(f) with "; and" and adding a new Subsection 7.08(g) as
follows:
"(g) other Contingent Obligations of the Company not described above
of not more than $50,000,000 at any time in the aggregate, provided that
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after giving effect to the incurrence of such Contingent Obligations the
Company shall be and remain in compliance with Subsection 7.04(g)."
(b) References Within Credit Agreement. Each reference in the Credit
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Agreement to "this Agreement" and the words "hereof," "herein," "hereunder," or
words of like import, shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
3. Representations and Warranties.
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To induce the Agent, the Syndication Agent, the Documentation Agent
and each Bank to enter into this Amendment, the Company hereby confirms and
restates, as of the date hereof, the representations and warranties made by it
in Article V of the Credit Agreement and in the other Loan Documents to which it
is a party. For the purposes of this Section 3, (i) each reference in Article V
of the Credit Agreement to "this Agreement," and the words "hereof," "herein,"
"hereunder," or words of like import in such Section, shall mean and be a
reference to the Credit Agreement as amended by this Amendment, and (ii) any
representations and warranties which relate solely to an earlier date shall not
be deemed confirmed and restated as of the date hereof (provided that such
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representations and warranties shall be true, correct and complete as of such
earlier date).
4. Miscellaneous.
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(a) Credit Agreement Otherwise Not Affected. Except as expressly
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amended pursuant hereto, the Credit Agreement shall remain unchanged and in full
force and effect and is hereby ratified and confirmed in all respects. The
Banks', the Agent's, the Syndication Agent's and the Documentation Agent's
execution and delivery of, or acceptance of, this Amendment shall not be deemed
to create a course of dealing or otherwise create any express or implied duty by
any of them to provide any other or further amendments, consents or waivers in
the future.
2.
(b) No Reliance. The Company hereby acknowledges and confirms to the
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Agent, the Syndication Agent, the Documentation Agent and the Banks that the
Company is executing this Amendment on the basis of its own investigations and
for its own reasons without reliance upon any agreement, representation,
understanding or communication by or on behalf of the Agent, the Syndication
Agent, the Documentation Agent, any Bank or any other Person.
(c) Amendments and Waivers. The provisions of this Amendment may only
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be amended or waived, and any consent with respect to any departure by the
Company therefrom may only be granted, in accordance with the terms of Section
10.01 of the Credit Agreement.
(d) Costs and Expenses. The Company shall, whether or not the
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amendments contemplated hereby shall become effective, pay or reimburse the
Agent on demand for all costs and expenses incurred by the Agent in connection
with the development, preparation, delivery, administration and execution of,
and any amendment, supplement, waiver or modification to, this Amendment and the
consummation of the transactions contemplated hereby and thereby, including the
Attorney Costs incurred by the Agent with respect thereto.
(e) Successors and Assigns. The provisions of this Amendment shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
(f) Counterparts. This Amendment may be executed by one or more of
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the parties to this Amendment in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Company and the Agent. The parties hereto agree that
the Agent may accept and rely on facsimile transmissions of executed signature
pages of this Amendment.
(g) Severability. The illegality or unenforceability of any
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provision of this Amendment or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Amendment or any instrument or agreement required
hereunder.
(h) No Third Parties Benefited. This Amendment is made and entered
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into for the sole protection and legal benefit of the Company, the Syndication
Agent, the Documentation Agent, the Banks and the Agent, and their successors
and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Amendment. Each of the Agent, the Syndication Agent, the
Documentation Agent and the Banks shall
3.
not have any obligation to any Person not a party to this Amendment.
(i) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT
THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(j) Entire Agreement. This Amendment embodies the entire agreement
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and understanding among the Company, the Banks, the Syndication Agent, the
Documentation Agent and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
(k) Interpretation. This Amendment is the result of negotiations
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between and has been reviewed by counsel to the Agent, the Company and other
parties, and is the product of all parties hereto. Accordingly, this Amendment
shall not be construed against the Banks, the Syndication Agent, the
Documentation Agent or the Agent merely because of the Agent's or such other
Person's involvement in the preparation of such documents and agreements.
[SIGNATURE PAGES FOLLOW]
4.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered in San Francisco, California, by their proper and duly
authorized officers as of the day and year first above written.
THE COMPANY
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ADVANCED MICRO DEVICES, INC.
By: /s/ Marvin D. Burkett
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Title: Senior Vice President, Chief
Financial and Administrative
Officer and Treasurer
THE AGENT
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ Kevin McMahon
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Title: Vice President
THE SYNDICATION AGENT
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ABN AMRO BANK N.V., as Syndication Agent
By: ABN AMRO NORTH AMERICA, INC.,
its agent
By: /s/ Tom R. Wagner
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Title: VP and Director
By: /s/ Robin S. Yim
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Title: VP and Director
5.
THE DOCUMENTATION AGENT
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CANADIAN IMPERIAL BANK OF COMMERCE,
as Documentation Agent
By: /s/ James E. Anderson
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Title: Managing Director
THE BANKS
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Kevin McMahon
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Title: Vice President
ABN AMRO BANK N.V., as a Bank
By: ABN AMRO NORTH AMERICA, INC.,
its agent
By: /s/ Tom R. Wagner
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Title: VP and Director
By: /s/ Robin S. Yim
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Title: VP and Director
CANADIAN IMPERIAL BANK OF COMMERCE,
as a Bank
By: /s/ James E. Anderson
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Title: Managing Director
6.