5TH AMENDMENT TO CREDIT AGREEMENT
Published on March 3, 1998
EXHIBIT 10.24(f)
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), is entered
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into as of February 26, 1998, among Advanced Micro Devices, Inc., a Delaware
corporation (the "Company"), the "Banks" party to the Credit Agreement
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(collectively, the "Banks"), ABN AMRO Bank N.V., as Syndication Agent for the
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Banks (the "Syndication Agent"), Canadian Imperial Bank of Commerce, as
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Documentation Agent for the Banks (the "Documentation Agent"), and Bank of
American 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,
a Second Amendment to Credit Agreement dated as of September 9, 1996, a Third
Amendment to Credit Agreement dated as of October 1, 1997, and a Fourth
Amendment to Credit Agreement dated as of January 26, 1998 (as so amended, the
"Credit Agreement";
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WHEREAS, the Company has requested that the Majority Banks agree to certain
amendments to the Credit Agreement;
WHEREAS, the Majority 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 the interpretation set forth in
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Section 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) Amendments. The Credit Agreement is hereby amended as follows:
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(i) Subsection 7.05(f) is hereby amended and restated in its
entirety as follows:
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"(f) other unsecured Indebtedness of no more than $25,000,000 in
aggregate principal amount and convertible subordinated
Indebtedness of no more than $500,000,000 in aggregate
principal amount on terms and conditions satisfactory to the
Majority Banks; and"
(ii) Section 7.15 of the Credit Agreement is hereby amended by (A)
inserting immediately following the words "fiscal quarter" in the second
line thereof the parenthetical "(or as of such other date identified
below)," and (B) deleting clauses (i) and (ii) thereof and substituting
therefor the following:
"(i) 0.60 to 1.00 at the end of the first fiscal quarter of 1998,
(ii) 0.80 to 1.00 at May 24, 1998, and at the end of the second
fiscal quarter of 1998, (iii) 0.70 to 1.00 at the end of the third
fiscal quarter of 1998, (iv) 0.80 to 1.00 at fiscal year-end 1998
and at the end of each of the first, second and third fiscal
quarters of 1999, and (v) 0.90 to 1.00 at fiscal year-end 1999
and thereafter. Notwithstanding the definition of Current
Liabilities set forth in Section 1.01, the outstanding principal
amount from time to time of the Revolving Loans shall be
excluded from such definition for purposes of determining
compliance with this Section 7.15 for each of the first, second,
third and fourth fiscal quarters of 1998."
(iii) Section 7.16 of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"7.16 Minimum Tangible Net Worth. The Company shall not
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suffer or permit its Consolidated Tangible Net Worth (a) at the
end of the Company's first fiscal quarter of 1998 to be less than
$1,970,000,000 and (b) at the end of the Company's second fiscal
quarter of 1998 and thereafter to be less than $1,925,000,000 plus
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(i) (without duplication for amounts included under clause (iv)
below) 75% of net income for the Company and its Restricted
Subsidiaries computed from the first day of the Company's second
fiscal quarter of 1998 through the end of such fiscal quarter for
which the determination is being made, determined quarterly on a
Consolidated basis and not reduced by any quarterly loss, plus
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(ii) 100% of the Net Issuance Proceeds of any sale of capital
stock of the Company by or for the account of the Company
occurring on or after the first day of the Company's second fiscal
quarter of 1998, plus (iii) any increase in stockholders'
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equity resulting from the conversion of debt securities to equity
securities on or after the first day of the Company's second
fiscal quarter of 1998, plus (iv) 100% of the Net Issuance
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Proceeds (net of Taxes payable in respect thereof) of any sale of
capital stock of the Vantis Subsidiary by or for the account of
the Company occurring on or after the first day of the Company's
second fiscal quarter of 1998."
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(iv) Section 7.17 of the Credit Agreement is hereby amended by
deleting therefrom the text "0.85 to 1.00" and substituting therefor the
following:
"(i) 1.00 to 1.00 at the end of each of the first, second and
third fiscal quarters of 1998, (ii) 0.95 to 1.00 at fiscal year-
end 1998 and at the end of each of the first, second and third
fiscal quarters of 1999, and (iii) 0.90 to 1.00 at fiscal year-end
1999 and thereafter"
(v) Section 7.18 of the Credit Agreement is hereby amended by
deleting clauses (a), (b) and (c) thereof and substituting therefor the
following:
"(a) 1.50 to 1.00 at the end of the first fiscal quarter of 1998,
(b) 1.00 to 1.00 at the end of the second fiscal quarter of 1998,
(c) 1.50 to 1.00 at the end of the third fiscal quarter of
1998, (d) 2.00 to 1.00 at fiscal year-end 1998 and at the end
of the first fiscal quarter of 1999, and (e) 2.50 to 1.00 at
the end of the second fiscal quarter of 1999 and thereafter."
(vi) A new Section 7.19 is hereby added to the Credit Agreement as
follows:
"7.19 Profitability. The Company shall not suffer or permit (a) a
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net loss of greater than $10,000,000 for the third fiscal quarter
of 1998, and (b) net income to be less than $1.00 for the fourth
fiscal quarter of 1998, in each case determined for the Company
on a Consolidated basis."
(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. The Company hereby represents and
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warrants to the Agent, the Syndication Agent, the Documentation Agent and the
Banks and follows:
a. No Default or Event of Default has occurred and is continuing.
b. The execution, delivery and performance by the Company 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.
c. This Amendment and the Loan Documents, as amended by this
Amendment, constitute the legal, valid and binding obligations of the Company,
enforceable against it in accordance with their respective terms, without
defense, counterclaim or offset.
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4. Amendment Effective Date. This Amendment will become effective on
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February 26, 1998, provided that the Agent has received (a) from each of the
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Company and the Majority Banks an executed counterpart of this Amendment, and
(b) from the Company a nonrefundable amendment fee of $500,000 to be distributed
to each Bank in accordance with its Pro Rata Share.
5. Delivery of Consolidated Balance Sheet for May 24, 1998. Without
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limiting the Company's obligations under Section 6.01 of the Credit Agreement
or any other provision thereof, the Company shall deliver to the Agent by no
later than June 5, 1998, with sufficient copies for each Bank, an unaudited
consolidated balance sheet of the Company and its Subsidiaries as at May 24,
1998, certified by a Responsible officer 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
the Company 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, the Company's failure to satisfy
the requirements of this Section 5 shall constitute an Event of Default under
the Credit Agreement.
6. Miscellaneous.
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(a) Credit Agreement Otherwise Not Affected. Except as expressly amended
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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.
(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 be
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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 amendments
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contemplated hereby shall become effective, pay or reimburse the Agent, within
five Business Days after 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
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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 the
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parties of 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 buy one and the same instrument.
The parties hereto agree that the Agent and the Company may accept and rely on
facsimile transmissions of executed signature pages of this Amendment.
(g) Severability. The illegality or unenforceability of any provision of
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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 into
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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 not have any obligation to any Person not a party to this
Amendment.
(i) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
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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 and
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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 between
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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.
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[Signature pages to follow.]
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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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Marvin D. Burkett
Title:
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THE AGENT
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ illegible signature
___________________________________
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/ Thomas R. Wagner
___________________________________
Thomas R. Wagner
Title: Group Vice President
________________________________
By: /s/ Richard R. DaCosta
___________________________________
Richard R. DaCosta
Title: Assistant Vice President
________________________________
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THE DOCUMENTATION AGENT
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CANADIAN IMPERIAL BANK OF
COMMERCE, as Documentation Agent
By: /s/ Timothy Doyle
___________________________________
Timothy Doyle
Title: Managing Director
CIBC Oppenheimer Corp. As Agent
________________________________
THE BANKS
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Kevin McMahon
___________________________________
Kevin McMahon
Title: Managing Director
________________________________
ABN AMRO BANK N.V., as a Bank
By: ABN AMRO NORTH AMERICA, INC.,
its agent
By: /s/ Thomas R. Wagner
___________________________________
Thomas R. Wagner
Title: Group Vice President
________________________________
By: /s/ Richard R. DaCosta
___________________________________
Richard R. DaCosta
Title: Assistant Vice President
________________________________
CANADIAN IMPERIAL BANK OF
COMMERCE, as a Bank
By: /s/ Timothy Doyle
___________________________________
Timothy Doyle
Title: Managing Director
CIBC Oppenheimer Corp. As Agent
________________________________
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BANKBOSTON, N.A.
By: /s/ Jay Massimo
___________________________________
Jay Massimo
Title: Vice President
________________________________
THE BANK OF NOVA SCOTIA
By: /s/ Jon A. Burckin
___________________________________
Jon A. Burckin
Title: Relationship Manager
________________________________
BANQUE PARIBAS
By: /s/ Nanci Meyer
___________________________________
Nanci Meyer
Title: Vice President
________________________________
By: /s/ illegible signature
___________________________________
Title: Managing Director
________________________________
THE DAI-ICHI KANGYO BANK, LTD.
By: /s/ Takuo Yoshida
___________________________________
Takuo Yoshida
Title: General Manager & Agent
________________________________
FLEET NATIONAL BANK
By: /s/ illegible signature
___________________________________
Title: Vice President
________________________________
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ Haruhiko Masuda
___________________________________
Haruhiko Masuda
Title: Deputy General Manager
________________________________
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KEYBANK NATIONAL ASSOCIATION
By: /s/ Mary K. Young
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Mary K. Young
Title: Commercial Banking Officer
________________________________
THE LONG-TERM CREDIT BANK OF
JAPAN, LIMITED
By: /s/ illegible signature
___________________________________
Title: Deputy General Manager
________________________________
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By: /s/ illegible signature
___________________________________
Title: Senior Vice President
________________________________
ROYAL BANK OF CANADA
By: /s/ Michael A. Cole
___________________________________
Michael A. Cole
Title: Manager
________________________________
THE SAKURA BANK LIMITED, SAN
FRANCISCO AGENCY
By: /s/ illegible signature
___________________________________
Title: Senior Vice President
________________________________
THE SUMITOMO TRUST AND
BANKING COMPANY, LIMITED
By: /s/ Ninoos Y. Benjamin
___________________________________
Ninoos Y. Benjamin
Title: Vice President & Manager
________________________________
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Wade Schlueter
___________________________________
Wade Schlueter
Title: Vice President
________________________________
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