EXHIBIT 10.25(n)
THIRD AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY
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THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED GUARANTY (the
"Amendment"), dated as of May 10, 1996 is entered into by and between
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ADVANCED MICRO DEVICES, INC., a Delaware corporation (the "Guarantor"), and
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CIBC INC., a Delaware corporation ("Lessor").
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RECITALS
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A. The Guarantor executed and delivered to Lessor as 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 AMD International Sales & Service, Ltd. a Delaware corporation.
Such Amended and Restated Guaranty was amended by a First Amendment to Third
Amended and Restated Guaranty, dated as of October 20, 1995, and by a Second
Amendment to Third Amended and Restated Guaranty, dated as of January 12, 1996
(as so amended, "Guaranty").
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B. The Guarantor has requested that the Lessor agree to certain
amendments of the Guaranty.
C. Lessor is willing to amend the Guaranty, 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
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shall have the meanings given to them in the Guaranty.
2. Amendment to the Guaranty. Section 4.2.1(k) of the Guaranty is
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hereby deleted and replaced with the following:
"(k) Purchase money security interests on any Assets (other than
the Property) acquired or held by Guarantor or its Subsidiaries in the Ordinary
Course of Business, securing Indebtness incurred or assumed for the purpose
of financing all or any part of the cost of acquiring such Assets; on the
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condition that (i) any such Lien attaches to such Assets concurrently with or
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within six months after the acquisition thereof, (ii) such Lien attaches solely
to the Assets so acquired in such transaction, and (iii) the principal amount
of the Indebtness secured thereby does not exceed 100% of the cost of such
Assets; and"
3. Representations and Warranties
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The Guarantor hereby represents and warrants to the Lessor as follows:
(a) No Default or Event of Default or Deposit Event has occurred and is
continuing.
(b) The execution, delivery and performance by the Guarantor 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 Guaranty as amended by this Amendment
constitutes the legal, valid and binding obligations of the Guarantor,
enforceable against it in accordance with its respective terms, without defense,
counterclaim or offset.
(c) All representations and warranties of the Guarantor contained in the
Guaranty are true and correct.
(d) The Guarantor is entering into this Amendment on the basis of its
own investigation and for its own reasons, without reliance upon Lessor or any
other Person.
4. Conditions to Effectiveness of Amendment.
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This Amendment will become effective on the date on which all of the
following conditions precedent have been satisfied:
4.1 Lessor shall have received from the Guarantor and Long-Term Credit
Bank of Japan, Los Angeles Agency, a duly executed original (or, if elected by
Lessor, an executed facsimile copy) of this Amendment; and
4.2 Each of the representations and warranties set forth in Section 3 of
this Amendment are true and correct as of such date.
4. 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.
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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 (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 Lessor of a
facsimile transmitted document purportedly bearing the signature of the
Guarantor shall bind the Guarantor 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.
(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 Guaranty,
respectively.
(g) The Guarantor covenants to pay or to reimburse the Lessor, upon demand,
for all costs and expenses (including allocated costs of in-house counsel)
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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 above written.
ADVANCED MICRO DEVICES, INC.
By: /s/ Marvin D. Burkett
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Marvin D. Burkett
Senior Vice President and Chief
Financial Officer
CIBC INC.
By: /s/ Tom R. Wagner
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Name: Tom R. Wagner
Title: Director
Reference is made to the Loan Agreement, dated as of December 17, 1993 (the
"Loan Agreement") between CIBC INC., a Delaware corporation, and THE LONG-TERM
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CREDIT BANK OF JAPAN, LTD., LOS ANGELES AGENCY ("Lender"). In accordance with
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Section 8(b) of the Loan Agreement, Lender hereby consents to the foregoing
Amendment.
THE LONG-TERM CREDIT BANK OF
JAPAN, LOS ANGELES AGENCY
By: /s/ Motokazu Uematsu
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Name: Motokazu Uematsu
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Title: Deputy General Manger
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Date: May 15, 1996
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