<PAGE>
Form 10-Q
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 25, 1994
------------------------
OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
---------- ----------
Commission File Number 1-7882
------------------------------------
ADVANCED MICRO DEVICES, INC
- - - -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 94-1692300
- - - ----------------------------------- ------------------------------------
State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization
One AMD Place
P. O. Box 3453
Sunnyvale, California 94088-3453
- - - ----------------------------------- ------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (408) 732-2400
--------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
------- -------
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of October 28, 1994:
Common Stock, $0.01 par value 95,221,344
- - - ----------------------------- ----------
Class Number of Shares
<PAGE>
ADVANCED MICRO DEVICES, INC.
----------------------------
INDEX
-----
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
Part I. Financial Information
---------------------
Item 1. Financial Statements
Condensed Consolidated Statements of Income--
Quarters Ended September 25, 1994
and September 26, 1993 and Nine Months Ended September
25, 1994 and September 26, 1993 3
Condensed Consolidated Balance Sheets--
September 25, 1994 and December 26, 1993 4
Condensed Consolidated Statements of Cash Flows--
Nine Months Ended September 25, 1994
and September 26, 1993 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Results of
Operations and Financial Condition 9
Part II. Other Information
-----------------
Item 1. Legal Proceedings 16
Item 6. Exhibits 28
Signature 29
---------
</TABLE>
2
<PAGE>
I. FINANCIAL INFORMATION
---------------------
ITEM 1. FINANCIAL STATEMENTS
------- --------------------
ADVANCED MICRO DEVICES, INC.
----------------------------
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
-------------------------------------------
(Unaudited)
(Thousands except per share amounts)
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
-------------------------------- ---------------------------------
September 25, September 26, September 25, September 26,
1994 1993 1994 1993
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Net sales $ 543,114 $ 418,351 $1,589,491 $1,234,876
Expenses:
Cost of sales 252,409 199,999 718,469 581,012
Research and development 67,759 64,905 203,869 196,055
Marketing, general, and administrative 87,369 71,979 271,994 207,713
------------ ----------- ------------ ------------
407,537 336,883 1,194,332 984,780
------------ ----------- ------------ ------------
Operating income 135,577 81,468 395,159 250,096
Interest income and other, net 394 4,413 10,942 11,843
Interest expense (205) (346) (1,843) (1,519)
------------ ----------- ------------ ------------
Income before income taxes and equity
in joint venture 135,766 85,535 404,258 260,420
Provision for income taxes 44,803 23,949 132,155 72,918
------------ ----------- ------------ ------------
Income before equity in joint venture 90,963 61,586 272,103 187,502
Equity in net income (loss) of joint venture (4,277) (248) (7,596) (360)
------------ ----------- ------------ ------------
Net income 86,686 61,338 264,507 187,142
Preferred stock dividends 2,587 2,587 7,762 7,762
------------ ----------- ------------ ------------
Net income applicable to common shareholders $ 84,099 $ 58,751 $ 256,745 $ 179,380
============ =========== ============ ============
Net income per common share
Primary $ 0.86 $ 0.61 $ 2.64 $ 1.89
============ =========== ============ ============
Fully diluted $ 0.83 $ 0.60 $ 2.54 $ 1.84
============ =========== ============ ============
Shares used in per share calculation
Primary 97,778 95,706 97,135 94,846
============ =========== ============ ============
Fully diluted 104,872 102,743 104,264 101,833
============ =========== ============ ============
</TABLE>
See accompanying notes
- - - ----------------------
3
<PAGE>
ADVANCED MICRO DEVICES, INC.
----------------------------
CONDENSED CONSOLIDATED BALANCE SHEETS
-------------------------------------
(Thousands)
<TABLE>
<CAPTION>
September 25, December 26,
1994 1993
(Unaudited) (Audited)
-------------- ------------
<S> <C> <C>
Assets
- - - ------
Current assets:
Cash and cash equivalents $ 130,587 $ 60,423
Temporary cash investments 388,398 427,775
Restricted cash 34,000 -
------------- ------------
Total cash and cash equivalents, temporary cash
investments, and restricted cash 552,985 488,198
Accounts receivable, net 332,411 263,617
Inventories:
Raw materials 16,001 15,371
Work-in-process 62,617 56,504
Finished goods 41,506 32,175
------------- ------------
Total inventories 120,124 104,050
Prepaid expenses and other current assets 48,598 30,399
Deferred income taxes 78,105 77,922
------------- ------------
Total current assets 1,132,223 964,186
Property, plant, and equipment, at cost 2,224,282 1,998,363
Accumulated depreciation and amortization (1,161,713) (1,094,037)
------------- ------------
Net property, plant, and equipment 1,062,569 904,326
Investment in joint venture 65,302 2,086
Other assets 61,825 58,633
------------- ------------
$ 2,321,919 $ 1,929,231
============= ============
Liabilities and Stockholders' Equity
- - - ------------------------------------
Current liabilities:
Notes payable to banks $ 33,886 $ 30,994
Accounts payable 114,158 127,151
Accrued compensation and benefits 98,469 81,860
Accrued liabilities 87,844 83,982
Income tax payable 53,788 34,991
Deferred income on shipments to distributors 84,821 74,436
Long-term debt and capital lease obligations due within one year 27,481 21,205
Litigation settlement liability 34,000 -
------------- ------------
Total current liabilities 534,447 454,619
Deferred income taxes 42,837 42,837
Long-term debt and capital lease obligations due after one year 80,744 79,504
Stockholders' equity:
Capital stock:
Serial preferred stock, par value 34 35
Common stock, par value 948 926
Capital in excess of par value 674,587 619,733
Retained earnings 988,322 731,577
------------ ------------
Total stockholders' equity 1,663,891 1,352,271
------------ ------------
$ 2,321,919 $ 1,929,231
============ ============
</TABLE>
See accompanying notes
- - - ----------------------
4
<PAGE>
ADVANCED MICRO DEVICES, INC.
----------------------------
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
-----------------------------------------------
(Unaudited)
(Thousands)
<TABLE>
<CAPTION>
Nine Months Ended
--------------------------------
September 25, September 26,
1994 1993
-------------- ---------------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 264,507 $ 187,142
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization 159,028 133,786
Net gain on sale of property, plant, and equipment (104) (3,242)
Write-down of property, plant, and equipment 2,331 199
Compensation recognized on employee stock plans 1,209 969
Undistributed loss of joint venture 7,596 360
Changes in assets and liabilities:
Net increase in receivables, inventories,
prepaids, and other assets (106,259) (51,606)
Net increase in deferred income taxes (183) (27,012)
Increase in income tax payable 53,930 69,795
Net increase in payables and accrued liabilities 17,863 13,392
--------- ---------
Net cash provided by operating activities 399,918 323,783
--------- ---------
Cash flows from investing activities:
Purchase of property, plant, and equipment (292,904) (232,993)
Proceeds from sale of property, plant, and equipment 1,244 4,454
Purchase of held-to-maturity debt securities (546,269) (620,489)
Proceeds from sale of held-to-maturity debt securities 585,646 492,009
Investment in joint venture (75,186) (3,160)
--------- ---------
Net cash used in investing activities (327,469) (360,179)
--------- ---------
Cash flows from financing activities:
Proceeds from borrowings 35,666 1,378
Principal payments on borrowings and capital lease obligations (52,785) (9,955)
Net proceeds from issuance of stock 22,596 26,521
Payments of preferred stock dividends (7,762) (7,762)
--------- ---------
Net cash (used in) provided by financing activities (2,285) 10,182
--------- ---------
Net increase (decrease) in cash and cash equivalents 70,164 (26,214)
Cash and cash equivalents-beginning of period 60,423 52,027
--------- ---------
Cash and cash equivalents-end of period $ 130,587 $ 25,813
========= =========
Supplemental disclosures of cash flow information:
Cash paid during the first nine months for:
Interest (net of amounts capitalized) $ 1,983 $ 1,208
========= =========
Income taxes $ 77,960 $ 28,548
========= =========
Non-cash financing activities:
Equipment capital leases $ 30,818 $ 34,451
========= =========
</TABLE>
See accompanying notes
- - - ----------------------
5
<PAGE>
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
- - - ----------------------------------------------------
1. The results of operations for the interim periods shown in this report are
not necessarily indicative of results to be expected for the fiscal year.
In the opinion of management, the information contained herein reflects all
adjustments necessary to make the results of operations for the interim
periods a fair statement of such operations. All such adjustments are of a
normal recurring nature.
2. The company is currently involved in the following litigation matters with
Intel Corporation: (1) the Technology Agreement Arbitration, (2) the '287
Microcode Litigation, (3) the '386 Microcode Litigation, (4) the '486
Microcode Litigation, (5) the Business Interference Case, (6) the Antitrust
Case, and (7) the International Trade Commission Proceeding. These
litigation matters, except for the Antitrust Case, arise principally out of
disputes over the nature, scope and duration of the intellectual property
rights granted to the company under two agreements: (i) a 1976 Cross-
License Agreement and (ii) a 1982 Technology Exchange Agreement
(collectively, the "Agreements").
On March 10, 1994, a federal court jury in San Jose, California returned
verdicts in the 287 Microcode Litigation finding that a 1976 patent and
copyright agreement between AMD and Intel (the "1976 Agreement") granted
AMD rights to sell microchips containing Intel microcodes. The Court
entered a judgment on the verdicts in AMD's favor on March 11, 1994. Prior
to the jury's determination, AMD and Intel agreed that the jury's verdicts
would be determinative of the question whether the 1976 Agreement grants
AMD the right to copy microcodes contained in Intel microprocessors and
peripheral microchips, including not only the 287 math co-processor, but
generally as to all microprocessors and peripheral microchips, specifically
including the 386 and 486 microprocessors.
Intel has indicated that it intends to appeal the verdicts in the 287 case
and expects that the appeal process will take at least one year. It is
AMD's expectation that Intel, notwithstanding the March 10, 1994 verdicts
or any other ruling adverse to Intel in the pending legal proceedings with
AMD, will continue to pursue the remaining intellectual property claims in
the pending litigations against the company.
In October 1994, certain developments regarding ICE (in-circuit emulation)
module of '486 microcode litigation took place which have impacted the
company (see Management's Discussion and Analysis of Results of Operations
and Financial condition and Part II, Item 1, Legal Proceedings).
An unfavorable ultimate decision in the Technology Agreement Arbitration,
the 287, 386 or 486 Microcode Litigation could result in a material
monetary damages award to Intel and/or preclude the company from continuing
to produce those Am386 and Am486 products adjudicated to contain any
copyrighted Intel microcode. Therefore, such litigations could have a
materially adverse impact on the financial condition and results of
operations of the company.
The AMD/Intel Litigations involve multiple interrelated and complex issues
of fact and law. Therefore, the ultimate outcome of the AMD/Intel
Litigations cannot presently be determined.
6
<PAGE>
Accordingly, no provision for any liability that may result upon the
adjudication of the AMD/Intel Litigations has been made in the company's
financial statements.
3. Five class-action complaints and one stockholders' derivative action were
filed against the company, and certain officers and directors in the second
half of 1993. The complaints generally alleged violations of federal
securities laws and breaches of obligations, based on statements made by
the company regarding the development of its Am486 products and statements
contained in the company's 1993 third quarter earnings release.
On July 8, 1994, the company announced that it has reached an agreement, in
principle, to settle the security class action lawsuits and stockholder's
derivative action. The proposed settlements were approved by AMD's Board
of Directors on October 26, 1994 and accordingly, a charge to record the
settlements, as described below, was recorded in the third quarter of 1994.
The cost of the settlements was $34 million of which $1 million will be
funded from insurance proceeds. The company has previously recorded $10
million with respect to this litigation. As a procedural matter, the
settlements are scheduled to continue on to the court confirmation process
by the Federal Court in San Jose, California.
Also in the third quarter, the company recorded an unrelated gain of $18
million resulting from an award of damages in an arbitration proceeding
with Intel Corporation. (See Footnote 2 above and Part II, Item 1, Legal
Proceedings) The net third quarter impact of the litigation settlements
and the gain from the arbitration award is approximately $5 million, which
is included in interest income and other, net.
4. AMD has three groundwater contamination sites that are on the Federal
Superfund list. The company is in the process of an extensive cleanup and
studies of its sites and believes it is meeting all regulatory
requirements. The company recently received a notice from the Department
of Ecology of the State of Washington that the Department had determined
the company to be a potentially liable person for the release of hazardous
substances. AMD is currently investigating this claim. The company
believes these matters will not have a material adverse effect on the
financial condition or the results of operations of the company.
5. The effective tax rates used for the third quarters and nine month periods
of 1994 and 1993 were 33 percent and 28 percent, respectively. The higher
provisions in 1994 were primarily due to reduced benefits from low taxed
foreign income and available tax credit carryforwards.
6. In 1993, the company and Fujitsu Limited established a joint venture,
"Fujitsu-AMD Semiconductor Limited (FASL)." AMD's share of FASL is 49.95
percent, and this investment is being accounted for under the equity
method. In the third quarter of 1994, the company invested $35.7 million
in FASL and AMD's share of FASL's net loss was $4.3 million.
7. Effective December 27, 1993, the company adopted the Statement of Financial
Accounting Standards No. 115 (SFAS No. 115), "Accounting for Certain
Investments in Debt and Equity Securities." Under SFAS No. 115, all
affected debt and equity securities must be stated at fair value and
classified as held-to-maturity, trading, or available-for-sale.
7
<PAGE>
The company determines the appropriate classification of debt securities at
the time of purchase and reevaluates such designation as of each balance
sheet date. Debt securities are classified as held-to-maturity when the
company has the positive intent and ability to hold the securities to
maturity. Held-to-maturity securities are stated at amortized cost. Cash
and cash equivalents and temporary cash investments include the following
held-to-maturity debt securities as of September 25, 1994 (in thousands):
<TABLE>
<S> <C>
Certificates of deposit $ 14,994
Security repurchase agreements 48,700
Other 11,575
-----------
75,269
Cash 55,318
-----------
Total cash and cash equivalents $ 130,587
===========
Certificates of deposit $146,709
Corporate notes 142,486
Treasury notes 74,985
Commercial paper 24,218
-----------
Total temporary cash investments $ 388,398
===========
</TABLE>
The market vale of the above held-to-maturity debt securities approximates
amortized cost as of September 25, 1994.
8. Shares used in the primary net income per common share computation are the
weighted average number of common shares outstanding plus dilutive common
share equivalents. The fully diluted computation also includes other
dilutive convertible securities. Shares used in the per share computations
are as follows:
<TABLE>
<CAPTION>
Quarter Ended Nine Months Ended
----------------------------- ----------------------------
Sept. 25, Sept. 26, Sept. 25, Sept. 26,
1994 1993 1994 1993
------------- ------------ ------------- ------------
(Thousands)
<S> <C> <C> <C> <C>
Primary:
Common shares outstanding 94,182 91,138 93,458 90,110
Employee stock plans 3,596 4,568 3,677 4,736
------------- ------------ ------------- ------------
97,778 95,706 97,135 94,846
============= ============ ============= ============
Fully diluted:
Common shares outstanding 94,182 91,138 93,458 90,110
Employee stock plans 3,837 4,749 3,951 4,867
Preferred stock 6,853 6,856 6,855 6,856
------------- ------------ ------------- ------------
104,872 102,743 104,264 101,833
============= ============ ============= ============
</TABLE>
8
<PAGE>
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
- - - ------- -----------------------------------------------------------------
FINANCIAL CONDITION
-------------------
The following discussion should be read in conjunction with the attached
condensed consolidated financial statements and notes thereto, and with the
company's audited financial statements and notes thereto for the fiscal year
ended December 26, 1993.
RESULTS OF OPERATIONS
- - - ---------------------
AMD reported record sales for the third quarter of 1994. Net sales of $543.1
million for the third quarter of 1994, rose by 30 percent over the $418.4
million reported for the same period last year. For the first nine months of
1994, the company reported net sales of $1.6 billion, a 29 percent increase from
the same period a year ago. These increases were primarily attributable to
substantial growth in Am486 (Registered Trademark) microprocessor sales. Net
sales grew slightly as compared to the immediate prior quarter due to increased
sales of flash memory, communication, and programmable logic devices (PLDs).
International sales grew for the third quarter and the first nine months of 1994
in all geographic regions as compared to the same periods a year ago. Sales to
international customers were approximately 57 percent of total sales for the
third quarter of 1994, and 52 percent for the same period of 1993. Sales to
international customers for the first nine months of 1994 and 1993 were 54
percent.
Revenues of Am486 microprocessors for the third quarter and the first nine
months of 1994 grew significantly from the comparable periods a year ago due to
increased unit volume. Am486 microprocessor sales increased slightly in the
third quarter of 1994, as compared to the immediate prior quarter due to
increased unit shipments partially offset by decreases in average selling
prices. In the third quarter and the first nine months of 1994, a significant
portion of the company's total revenues, profits, and margins were attributable
to Am486 products.
On October 7, 1994, a ruling was issued by the U.S. District Court in the "ICE"
(in-circuit emulation) module in the company's 486 microcode litigation with
Intel Corporation holding that AMD may not copy or use Intel's ICE microcode in
its Am486 microprocessors. On October 21, 1994, AMD and Intel agreed upon the
terms of a preliminary injunction relating to the ICE microcode (see Part II,
Item I, Legal Proceedings).
Subsequent to the issuance of the Court's ruling on October 7, 1994, the company
has begun the production of Am486 products which do not contain the ICE
microcode. It is uncertain when such products will become available, but the
company believes that they will be available soon enough so that the injunction
will have only a minimal impact upon its ability to satisfy customer
requirements. The company also halted manufacture of the System Management Mode
(SMM) devices, which made use of the ICE microcode for power management but not
for ICE purposes. The company intends to destroy its existing inventory of
these SMM devices. The value of the inventory expected to be destroyed is not
material. As of October 11, 1994, the company had shipped nearly 4 million
units of Am486 microprocessors of which approximately 100,000 units were SMM
devices. The sale of these SMM devices has not been and is not material to the
results of operations or financial condition of the company.
- - - --------------
Am386 and Am486 are registered trademarks of Advanced Micro Devices, Inc.
K86 is a trademark of Advanced Micro Devices, Inc.
9
<PAGE>
The company expects that Intel will seek damages from the company with respect
to all Am486 products containing the ICE microcode shipped through January 15,
1995. An unfavorable result with respect to Intel's claim for damages could have
a material adverse impact on the company's financial condition and results of
operations. The ultimate outcome of such proceedings cannot presently be
determined. Accordingly, no provision for any liability that may result upon the
adjudication of the AMD/Intel legal proceedings has been made in the company's
financial statements.
The company's Am386 (Registered Trademark) and Am486 products have been the
subject of litigation with Intel Corporation (see Footnote 2 of the consolidated
financial statements, Part II, Item 1, Legal Proceedings). It is AMD's
expectation that Intel will continue to pursue the remaining intellectual
property claims in the pending litigations against the company.
An unfavorable ultimate decision in the Technology Agreement Arbitration, 287,
386 or 486 Microcode Litigations could result in a material monetary damages
award to Intel and/or preclude the company from continuing to produce those
Am386 and Am486 products adjudicated to contain any copyrighted Intel microcode.
Therefore, such litigations could have a materially adverse impact on the
financial condition and results of operations of the company.
Further, an unfavorable ultimate decision in the microcode litigations could
affect the company's ability to continue to ship and produce its Am486DX
products or, in the case of the 486 Microcode Litigation, could result in a
material monetary damages award to Intel, either of which could have an
immediate, material adverse impact on the company's results of operations and
financial condition. The AMD/Intel legal proceedings involve multiple
interrelated and complex issues of fact and law. The ultimate outcome of such
proceedings cannot presently be determined. Accordingly, no provision for any
liability that may result upon the adjudication of the AMD/Intel legal
proceedings has been made in the company's financial statements.
In February 1994, the company and Digital Equipment Corporation (Digital)
entered into a two year foundry agreement for AMD's Am486 microprocessors. Both
parties have certain rights to terminate this agreement earlier in the event of
adverse developments in the company's microprocessor-related litigations.
Shipments of Am486 products from wafers manufactured by Digital are expected in
the fourth quarter of 1994. The company anticipates Am486 product demand to
continue to exceed production capacity in the fourth quarter of 1994. The
company has also recently entered into a foundry arrangement with Taiwan
Semiconductor Manufacturing Corporation (TSMC) for AMD's Am486 microprocessors.
The company anticipates volume production under the TSMC arrangement to commence
in the second half of 1995. The TSMC arrangement extends through 1997.
Regardless of these foundry arrangements, the company's production capacity is
expected to increase in late 1995 due to the completion of its 700,000 square-
foot submicron semiconductor manufacturing complex in Austin, Texas (Fab 25).
The company is developing its next generation of Microsoft (Registered
Trademark) Windows (Trademark) compatible microprocessors, referred to as the
K86 (Trademark) products, based on a superscalar RISC-type architecture
developed by and proprietary to the company. Development of the initial K86
product, known as K5, is expected to be completed in the fourth quarter of 1994
or early 1995. K5 production is expected to commence in the second half of 1995.
The K86 products are designed to not contain
10
<PAGE>
copies of any Intel copyrighted microcode. The K86 products do rely on patent
licenses the company has with several companies including Intel.
In addition to the above-mentioned litigations, the future outlook for AMD's
microprocessor business is highly dependent upon microprocessor market
conditions, which are subject to price elasticity and changes in demand. The
company anticipates that future growth in Am486 products, K86 products, and its
future generation microprocessors will depend on market demand, the company's
ability to meet this demand, as well as market acceptance and timing of new
products.
Sales of flash memory devices for the third quarter and the first nine months of
1994 decreased as compared to the corresponding periods a year ago due to lower
average selling prices. However, flash sales increased as compared to the
immediate prior quarter primarily due to an increase in unit shipments. The
company plans to meet projected long-term demand for flash memory devices
through a manufacturing joint venture with Fujitsu Limited of Japan, which is
anticipated to begin volume production in the first half of 1995.
Cost of sales of $252.4 million for the third quarter of 1994 contributed to a
gross margin of 54 percent as compared to a gross margin of 52 percent in the
third quarter of 1993. Cost of sales of $718.5 million for the first nine
months of 1994 contributed to a gross margin of 55 percent, compared to a gross
margin of 53 percent for the same period last year. These increases in gross
margins were primarily attributable to increased sales from high margin Am486
products. However, gross margin may decline from the third quarter to the
fourth quarter of 1994 due to higher foundry expenses and continued pricing
pressures.
Research and development expenses in the third quarter and the first nine months
of 1994 increased slightly as compared to the same periods last year. These
increases were due to higher spending in microprocessor development.
Marketing, general and administrative expenses grew by $15.4 million to $87.4
million for the third quarter of 1994 from the same quarter a year ago.
Marketing, general and administrative expenses increased by $64.3 million from
the first nine months of 1993. These increases were primarily due to increased
legal and microprocessor advertising expenses.
Operating expenses may rise through 1994 and continue into 1995 at a higher
rate, in both absolute dollars and as a percentage of sales, due to Fab 25
start-up manufacturing costs.
On July 8, 1994, the company announced that it has reached an agreement, in
principle, to settle the security class action lawsuits and stockholder's
derivative action. The proposed settlements were approved by AMD's Board of
Directors on October 26, 1994 and accordingly, a charge to record the
settlements, as described below, was recorded in the third quarter of 1994. The
cost of the settlements was $34 million of which $1 million will be funded from
insurance proceeds. The company has previously recorded $10 million with
respect to this litigation. As a procedural matter, the settlements are
scheduled to continue on to the court confirmation process by the Federal Court
in San Jose, California.
Also, in the third quarter of 1994, the company recorded an unrelated gain of
$18 million resulting from an award of damages in an arbitration proceeding with
Intel Corporation (see Part II, Item 1,
11
<PAGE>
Legal Proceedings). The net third quarter impact of the litigation settlements
and the gain from the arbitration award is approximately $5 million, which is
included in interest income and other, net. As a result, interest income and
other, net, decreased in the third quarter and the first nine months of 1994 as
compared to similar periods in 1993.
The income tax rate was approximately 33 percent for the third quarter and the
first nine months of 1994. The tax rate used for the same periods a year ago was
28 percent. The higher tax rates in 1994 were primarily due to reduced benefits
from low taxed foreign income and available tax credit carryforwards. The
company expects that the provision for taxes on income will remain at
approximately 33 percent through 1994.
AMD enters into foreign exchange contracts to buy and sell currencies as
economic hedges of the company's foreign net monetary asset position. The
maturities of these contracts are generally short-term in nature. The company
believes its foreign exchange contracts do not subject the company to risk from
exchange rate movements because gains and losses on these contracts are designed
to offset losses and gains on the net monetary asset position being hedged. Net
foreign currency gains and losses were not material for the third quarter and
the first nine months of 1994. As of September 25, 1994, the company had
approximately $34 million (notional amount) of foreign exchange forward
contracts.
In the third quarter of 1994, approximately 15 percent of the company's net
sales were denominated in foreign currencies. The company does not have sales
denominated in local currencies in those countries which have highly
inflationary economies. Therefore, the company believes that the impact on the
company's operating results of changes in foreign currency rates individually
and in the aggregate is not material.
The company has engaged in interest rate swaps to reduce its interest rate
exposure by effectively changing a portion of the company's interest rate
exposure from a floating rate to a fixed rate basis. At the end of the third
quarter of 1994, the net outstanding notional amount of interest rate swaps was
$40 million. For the third quarter and the first nine months of 1994, gains and
losses related to these interest rate swaps were immaterial.
FACTORS THAT MAY AFFECT FUTURE RESULTS OF OPERATIONS AND FINANCIAL CONDITION
- - - ----------------------------------------------------------------------------
The semiconductor industry is generally characterized by a highly competitive
and rapidly changing environment in which operating results are often subject to
the effects of new product introductions, manufacturing technology innovations,
rapid fluctuations in product demand, and the ability to maintain and secure
intellectual property rights. While the company attempts to identify and
respond to these changes as soon as possible, the rapidity of their onset makes
prediction of and reaction to such events an ongoing challenge.
The company believes that its future results of operations and financial
condition could be impacted by the following factors: market acceptance and
timing of new products, trends in the personal computer marketplace, capacity
constraints, intense price competition, interruption of manufacturing materials
supply, negative changes in international economic conditions and decisions in
legal disputes relating to intellectual property rights.
12
<PAGE>
As a part of its business, the company has entered into a number of licenses
and cross-licenses relating to several of the company's products. As is common
in the semiconductor industry, from time to time AMD has been notified that it
may be infringing other parties patents or copyrights. While patent and
copyright owners in such instances often express a willingness to resolve the
dispute or to grant a license, no assurance can be given that all necessary
licenses will be obtained, or that disputes will not arise with respect to
licenses which have been obtained, on satisfactory terms, or that the ultimate
resolution of any material dispute concerning the company's present or future
products will not have an adverse impact on the company's future results of
operations or financial condition.
Due to the factors noted above, the company's future operations, financial
condition and stock price may be subject to volatility. In addition, an actual
or anticipated shortfall in revenue, gross margins, or earnings from securities
analysts' expectations could have an immediate adverse effect on the trading
price of the company's common stock in any given period.
FINANCIAL CONDITION
- - - -------------------
Cash, temporary cash investments, and restricted cash increased by $64.8 million
to $553.0 million from December 26, 1993 to September 25, 1994. This increase
was primarily attributable to cash generated from operations, partially offset
by investments in property, plant and equipment to expand manufacturing
capacity.
Working capital grew by $88.2 million from $509.6 million at the end of 1993 to
$597.8 million in the third quarter of 1994. This growth was primarily due to
an increase in accounts receivable and cash resulting from higher sales.
The company is currently involved in litigations with Intel. While it is
impossible to predict the resolutions of the AMD/Intel litigations, there could
be material adverse effect on the financial condition or results of operations
of the company, or on the company's ability to raise necessary capital, or some
combination of the foregoing, if the outcome of the Intel litigations either
results in an award to Intel of material monetary damages, or if the company's
intellectual property rights are not sustained with regard to certain
microprocessor products currently the subject of litigation with Intel (see Part
II, Item 1, Legal Proceedings).
In July 1993, the company commenced construction of its 700,000 square-foot
submicron semiconductor manufacturing complex in Austin, Texas. Known as Fab
25, the new facility is expected to cost approximately $1.3 billion when fully
equipped. The first phase of construction and initial equipment installation is
expected to cost approximately $700 million through 1995. Volume production is
scheduled to begin in late 1995.
The company and Fujitsu Limited are cooperating in building and operating an
approximately $800 million wafer fabrication facility in Aizu-Wakamatsu, Japan,
through their joint venture (FASL). The forecasted joint venture costs are
denominated in yen and therefore are subject to change due to fluctuations of
foreign exchange rates. However, the company hedges foreign currency exposures
on certain firm commitments relating to the company's FASL investment with
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foreign currency options. As of September 25, 1994, the company had
approximately $77 million (notional amount) in foreign currency options for FASL
investment. Each company will contribute equally toward funding and supporting
FASL. AMD is expected to contribute approximately half of its share of funding
in cash and may be required to guarantee third-party loans made to FASL for the
remaining half. However, to the extent debt cannot be secured by FASL, AMD is
required to contribute its portion in cash. Through the third quarter of 1994,
the company's total cash investment in FASL was $77.1 million as compared to
$1.9 million at the end of 1993. The company anticipates that this investment
will increase substantially, to approximately $140 million by the end of 1994.
The company is also required under the terms of the joint venture to contribute
approximately one-half of such additional amounts as may be necessary to sustain
FASL's operations. Volume production is expected to commence in the first half
of 1995.
As of the end of the third quarter of 1994, the company had the following
financing arrangements: unsecured committed bank lines of credit of $250
million, unutilized; long-term secured equipment lease lines of $110 million, of
which $107 million were utilized; and short-term, unsecured uncommitted bank
credit in the amount of $107 million, of which $34 million was utilized.
The company's current capital plan and requirements are based on various
product-mix, selling-price and unit-demand assumptions and are, therefore,
subject to revision due to future market changes and litigation outcomes.
On April 1, 1994, the company filed a shelf registration statement with the
Securities and Exchange Commission covering up to $400 million of its
securities, which may be either debt securities, preferred stock, depositary
shares representing fractions of shares of preferred stock, common stock,
warrants to purchase common stock or any combination of the foregoing which the
company may offer from time to time in the future. The nature and terms of the
securities will be established at the time of their sale. The company may offer
the securities through underwriters to be named in the future, through agents or
otherwise. The net proceeds of any offering will be used for general corporate
purposes, which may include the reduction of outstanding indebtedness, working
capital increases and capital expenditures.
On April 4, 1994, the company announced that, given its current business
prospects, it intends to call all of its outstanding $30.00 Convertible
Exchangeable Preferred Shares ("Preferred Shares") for redemption when market
conditions permit. In such event, all of the company's outstanding Depositary
Convertible Exchangeable Preferred Shares ("Depositary Shares") would also be
redeemed. Each Depositary Share represents one-tenth of a Preferred Share, and
each ten Depositary Shares are convertible into 19.873 shares of the company's
common stock. If the redemption occurs prior to March 15, 1995, the redemption
price would be $50.90 per Depositary Share, plus accrued and unpaid dividends.
The company presently intends to redeem the Preferred Shares when it has
obtained a satisfactory commitment from underwriters to purchase from the
company the number of shares of common stock as would have been issuable upon
conversion of any Depositary Shares which are not converted. Any offering of
securities related to a redemption of the Preferred Shares would be made only by
means of a prospectus contained in a registration statement filed with the
Securities and Exchange Commission separate from the $400 million shelf
registration statement which the
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<PAGE>
company filed on April 1, 1994. The company is not certain when or if market
conditions will permit the company to call the Preferred Shares for redemption.
The company believes that, absent unfavorable litigation outcomes, cash flows
from operations and current cash balances, together with current and anticipated
available long-term financing, will be sufficient to fund operations, capital
investments, and research and development projects currently planned for the
foreseeable future.
15
<PAGE>
II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
-----------------
A. INTEL
GENERAL
Advanced Micro Devices, Inc. ("AMD" or "company") and Intel
Corporation ("Intel") are engaged in a number of legal proceedings
involving AMD's X86 products. The current status of such legal
proceedings is described below. An unfavorable ultimate decision in
the Technology Agreement Arbitration, the 287, 386 or 486 microcode
cases could result in a material monetary award to Intel and/or
preclude AMD from continuing to produce those Am386 (Registered
Trademark) and Am486 (Trademark) products adjudicated to contain any
copyrighted Intel microcode. The Am486 products are a material part of
the company's business and profits and such an unfavorable decision
could have an immediate, materially adverse impact on the financial
condition and results of the operations of AMD.
The AMD/Intel legal proceedings involve multiple interrelated and
complex issues of fact and law. The ultimate outcome of such legal
proceedings cannot presently be determined. Accordingly, no provision
for any liability that may result upon an adjudication of any of the
AMD/Intel legal proceedings has been made in the company's financial
statements.
On March 10, 1994, a federal court jury in San Jose, California
returned verdicts in the 287 microcode litigation discussed in A.2
below finding that a 1976 patent and copyright agreement between AMD
and Intel (the "1976 Agreement") granted AMD rights to sell microchips
containing Intel microcodes. The Court entered a judgment on the
verdicts in AMD's favor on March 11, 1994. Prior to the jury's
determination, AMD and Intel agreed that the jury's verdicts would be
determinative of the question whether the 1976 Agreement grants AMD
the right to copy microcodes contained in Intel microprocessors and
peripheral microchips, including not only the 287 math co-processor,
but generally as to all microprocessors and peripheral microchips,
specifically including the 386 and 486 microprocessors.
Intel has indicated that it intends to appeal the verdicts in the 287
case and it is expected that the appeal process, which has not yet
begun, will take at least one year. It is AMD's expectation that Intel
will continue to pursue the remaining intellectual property claims in
the pending litigations against the company.
STATUS OF CASES
1. AMD/Intel Technology Agreement Arbitration.
-------------------------------------------
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A 1982 technology exchange agreement (the "1982 Agreement") between
AMD and Intel has been the subject of a dispute which was submitted to
Arbitration through the Superior Court of Santa Clara County,
California and the matter is now at the California Supreme Court on
appeal. The dispute centers around issues relating to whether Intel
breached its agreement with AMD and whether that breach injured AMD,
as well as the remedies available to AMD for such a breach.
In February 1992, the Arbitrator awarded AMD several remedies
including the following: monetary damages and interest, a permanent,
royalty-free, nonexclusive, nontransferable worldwide right to all
Intel copyrights, patents, trade secrets and mask work rights, if any,
contained in the then-current version of AMD's Am386 family of
microprocessors; and a two-year extension, until December 31, 1997, of
the copyright and patent rights granted to AMD insofar as those rights
concern the Am386 microprocessor family. Intel appealed this decision
as it relates to the technology award. On May 22, 1992, the Superior
Court in Santa Clara County confirmed the Arbitrator's award and
entered judgment in the company's favor on June 1, 1992. Intel
appealed the decision confirming the Arbitrator's award in state
court. On June 4, 1993, the California Court of Appeal affirmed in
all respects the Arbitrator's determinations that Intel breached the
1982 Agreement. However, the Court of Appeal held that the Arbitrator
exceeded his powers in awarding to AMD a license to Intel intellectual
property, if any, in AMD's Am386 microprocessor and in extending the
1976 Agreement between AMD and Intel by two years. As a result, the
Court of Appeal ordered the lower court to correct the award to remove
these rights and then confirm the award as so corrected.
On September 2, 1993, the California Supreme Court granted the
company's petition for review of the California Court of Appeal
decision that the Arbitrator exceeded his authority. The company has
requested that the California Supreme Court affirm the judgment
confirming the Arbitrator's award to the company, which includes the
right to the Intel 386 microcode. The California Supreme Court is
scheduled to hear the case commencing on November 7, 1994, and is
expected to decide the case within ninety days from the hearing.
Apart from the California State Court proceedings discussed above,
Intel has also attacked the enforceability of the copyright license
provision of the Arbitration Award in the 386 Microcode Litigation
(see below).
If the California Supreme Court reverses the decision of the
California Court of Appeal and affirms the Arbitrator's award, the
company would assert the Arbitrator's award as well as the verdicts in
the 287 Microcode case discussed below as defenses against Intel's
intellectual property claims in the 386 and 486 Microcode Litigations
discussed below. If sustained, both these defenses could preclude
Intel from continuing to pursue its pending intellectual property and
related damages claims regarding the Am386 microprocessors, and the
Arbitrator's award also could preclude claims respecting the Am486SX
microprocessors. If the Supreme Court does not reverse the decision of
the California Court of Appeal, it could, among other things: (i)
decide to remand the matter for a new Arbitration proceeding
17
<PAGE>
either on the merits or solely on the issue of relief including the
damages due to the company, or (ii) order no further proceedings which
would affirm the decision of the Court of Appeal and prevent AMD from
using the Arbitration award as a defense in the 386 or 486 Microcode
Litigations discussed below.
The company believes it has the right to use Intel technology to
manufacture and sell AMD's microprocessor products based on a variety
of factors, including: (i) the 1982 Agreement, (ii) the Arbitrator's
award in the Arbitration which is pending review by the California
Supreme Court, and (iii) the 1976 Agreement. An unfavorable decision
by the California Supreme Court could materially adversely affect
other AMD/Intel microcode legal proceedings discussed herein. Such
matters involve multiple interrelated and complex issues of fact and
law. The ultimate outcome of the AMD/Intel legal proceedings cannot
presently be determined. Accordingly, no provision for any liability
that may result upon the adjudication of the AMD/Intel legal
proceedings has been made in the company's financial statements.
2. 287 Microcode Litigation (Case No. C-90-20237, N.D. Cal.)
---------------------------------------------------------
On April 23, 1990, Intel Corporation filed an action against the
company in the U.S. District Court, Northern District of California,
seeking an injunction and damages with respect to the company's
80C287, a math coprocessor designed to function with the 80286.
Intel's suit alleges several causes of action, including infringement
of Intel copyright on the Intel microcode used in its 287 math
coprocessor, mask work infringement, unfair competition by means of
false advertising and unauthorized copying of the Intel 287 microcode
by the third party developer of the AMD 80C287 microchips.
In June 1992, a jury determined that the company did not have the
right to use Intel microcode in the 80C287. On December 2, 1992, the
court denied the company's request for declaratory relief to the
effect it has the right, under the 1976 Agreement with Intel to
distribute products containing Intel microcode. The company filed a
motion on February 1, 1993, for a new trial based upon the discovery
by AMD of evidence improperly withheld by Intel at the time of trial.
In April, 1993, the court granted AMD a new trial on the issue of
whether the 1976 Agreement with Intel Corporation granted AMD a
license to use Intel microcode in its products. The ruling vacated
both an earlier jury verdict holding that the 1976 Agreement did not
cover the rights to microcode contained in the Intel 80287 math
coprocessor and the December 2, 1992 ruling (discussed above). A new
trial commenced in January, 1994 and jury verdicts were returned in
AMD's favor on March 10, 1994 finding that the 1976 Agreement granted
AMD rights to sell microchips containing Intel microcodes. The court
entered a judgment on the verdicts in AMD's favor on March 11, 1994.
Prior to the jury's determination, AMD and Intel agreed that the
jury's verdicts would be determinative of the question whether the
1976 Agreement grants AMD the right to copy microcodes contained in
Intel microprocessors and peripheral microchips, including not only
the 287 math
18
<PAGE>
co-processor, but generally as to all microprocessors and peripheral
microchips, specifically including the 386 and 486 microprocessors.
Intel filed a motion for a new trial. Intel also filed a motion
requesting that the judgment be amended to state that there remained
additional claims to be tried that had not been decided by the jury,
and that the record be reopened to allow the parties to adduce further
evidence on those claims and issues that have not yet been tried. On
April 26, 1994, the Court held a hearing on Intel's motion and denied
its motion for a new trial. The Court also stated that it would amend
the judgment to reflect that the judgment is limited only to those
claims that were tried before the jury.
On May 11, 1994, Intel filed a motion for discovery precedent to a
potential second motion for a new trial. Intel's motion was based on
assertions that the company had not provided certain documents during
discovery. By order dated September 20, 1994, the Court denied
Intel's motion.
On October 20, 1994, the federal court filed its decision on Intel's
claim that the 1976 license does not authorize AMD to have third
parties copy the microcode on AMD's behalf. Intel had also asked the
court to decide that, even if AMD had the general right to have third
parties copy Intel microcode, AMD nonetheless did not have the right
under its copyright license to use foundries to manufacture
microprocessors containing Intel microcode. The court declined to
decide Intel's contention that AMD does not have the right to have
foundries copy Intel microcode, ruling that Intel had inappropriately
raised the issue in the 287 case. The court then proceeded to rule,
however, that AMD's copyright license includes the right to have Intel
microcode copied by third party subcontractors, and that to hold
otherwise would frustrate AMD's ability to exercise the foundry right
expressly granted by the patent license aspect of the 1976 agreement.
Intel's claims for mask work infringement and unfair competition have
yet to be scheduled for trial.
The impact of the ultimate outcome of the 287 Microcode Litigation is
highly uncertain and dependent upon the scope and breadth of the final
result in the case. A decision of broad scope could not only result
in a damages award but also impact the company's ability to continue
to ship and produce its Am486 products or other microprocessor
products containing any copyrighted Intel microcode. The company's
inability to ship such products could have an immediate, material
adverse impact on the company's results of operations and financial
condition. The outcome of the 287 litigation could also materially
impact the outcomes in the other AMD/Intel microcode legal
proceedings. Such matters involve multiple interrelated and complex
issues of fact and law. The ultimate outcome of the AMD/Intel legal
proceedings cannot presently be determined. Accordingly, no provision
for any liability that may result upon the adjudication of the
AMD/Intel legal proceedings has been made in the company's financial
statements.
3. 386 Microcode Litigation (Case No. A-91-CA-800, W.D. Texas and
--------------------------------------------------------------
Case No.C-92-20039, N.D. Cal.)
------------------------------
19
<PAGE>
On October 9, 1991, Intel Corporation filed an action against the
company in the U.S. District Court for the Western District of Texas
(Case No. A-91-CA-800, W.D. Texas), alleging the separate existence
and copyrightability of the logic programming in a microprocessor and
characterizing that logic as a "control program", and further alleging
that the company violated copyrights on this material and on the Intel
microcode contained in the Am386 microprocessor. This action has been
transferred to the U.S. District Court, Northern District of
California (Case No. C-92-20039, N.D. Cal.). In this action, Intel
claims copyright infringement of what Intel describes as: (1) its 386
microprocessor microcode program and revised programs, (2) a "control
program" stored in a 386 microprocessor programmable logic array and
(3) Intel In-Circuit Emulation (ICE) microcode. The complaint seeks
damages and injunctive relief arising out of the company's
development, manufacture and sale of its Am386 microprocessors and
seeks a declaratory judgment as to the Intel/AMD license agreements
(1976 and 1982 Agreements), including a claim for a declaratory
judgment that AMD's license rights to Intel's microcodes expire on
December 31, 1995, and that AMD may no longer sell product containing
Intel microcode after that date. The monetary relief sought by Intel
is unspecified. The company has answered and counterclaimed seeking
declaratory relief.
Intel has also asserted that state and federal law prevent the company
from asserting as a defense the intellectual property rights that were
awarded in the Intel Arbitration (discussed above). On October 29,
1992, the court in the 386 Microcode Litigation granted the company's
motion to stay further proceedings pending resolution of the state
court Arbitration appeal. On December 28, 1993, the U.S. Court of
Appeals for the Ninth Circuit reversed the stay order and the case was
remanded for further proceedings. On April 20, 1994, the company filed
a petition for writ of certiorari in the Supreme Court of the United
States. The United States Supreme Court denied the company's petition
for writ of certiorari on June 13, 1994. The 386 case is no longer
stayed.
As discussed above, the jury verdicts in the 287 case resolve the
issue of whether AMD has the right to use Intel's microcodes in AMD's
Am386 microprocessor. However, the company expects Intel to argue that
the verdicts do not resolve the claims in the 386 Microcode Litigation
that AMD is not licensed to use (1) Intel's "control program" stored
in Intel's 386 microprocessor's programmable logic array or (2) what
Intel characterizes as "ICE microcode".
One of AMD's principal defenses to the "control program" and "ICE
microcode" claims, is based on the Arbitration Award. On September
29, 1994, Intel filed a motion for summary adjudication of AMD's
affirmative defense based on the Arbitration Award. On October 12,
1994, AMD filed a motion seeking an order that Intel's motion was
untimely under the Federal Arbitration Act and therefore the court
lacked authority to consider it. AMD's motion has been fully briefed
and is under submission. If AMD prevails on its motion, Intel's
motion will be denied.
20
<PAGE>
If AMD does not prevail, Intel's motion will be heard on November 22,
1994, and taken under submission at that time.
Intel's motion attacking the Arbitration Award, if granted, would not
affect the jury verdicts in the 287 litigation upholding AMD's
copyright license. If Intel's motion is granted, Intel claims that it
is entitled to proceed in its copyright infringement claims related to
control programs and the so-called "ICE microcode" regardless of the
California Supreme Court decision on the enforceability of the
Arbitration Award.
An unfavorable final decision in the 386 Microcode Litigation could
result in a material monetary damages award to Intel and/or preclude
the company from continuing to produce the Am386 and any other
microprocessors which contain any copyrighted Intel microcode, either
of which could have an immediate, material adverse impact on the
company's results of operations and financial condition. The AMD/Intel
legal proceedings involve multiple interrelated and complex issues of
fact and law. The ultimate outcome of such proceedings cannot
presently be determined. Accordingly, no provision for any liability
that may result upon the adjudication of the AMD/Intel legal
proceedings has been made in the company's financial statements.
4. 486 Microcode Litigation (Case No. C-93-20301 PVT, N.D. Cal.)
-------------------------------------------------------------
On April 28, 1993, Intel Corporation filed an action against AMD in
the U.S. District Court, Northern District of California, seeking an
injunction and damages with respect to the company's Am486
microprocessor. The suit alleges several causes of action, including
infringement of various Intel copyrighted computer programs.
Intel's Fourth Amended Complaint was filed on November 2, 1993. The
Fourth Amended Complaint seeks damages and injunctive relief based on
the following claims: (1) AMD's alleged copying and distribution of
486 "Processor Microcode Programs" and "Control Programs"; (2) AMD's
alleged copying of 486 "Processor Microcode" as an intermediate step
in creating proprietary microcodes for the AMD version of the 486. The
Fourth Amended Complaint also seeks a declaratory judgment that (1)
AMD has induced third party copyright infringement through encouraging
third parties to import Am486-based products ("Third Party Inducement
Claim"); (2) AMD's license rights to Intel microcode expire as of
December 31, 1995 and AMD may no longer sell any products containing
Intel microcode after that date ("License Expiration Claim"); (3)
AMD's license rights to Intel microcodes do not extend to In-Circuit
Emulation (ICE) microcode ("ICE Claim"); and (4) AMD is not licensed
to authorize third party foundries to copy the Intel microcode.
Intel's Fourth Amended Complaint further seeks damages and injunctive
relief based on AMD's alleged copying and distribution of Intel's "386
Processor Microcode Program" in AMD's 486SX microprocessor. The
company answered the complaint in January, 1994.
21
<PAGE>
A ruling was issued on October 7, 1994, by the U.S. District Court in
the "ICE" (in-circuit emulation) module in the company's 486 Microcode
Litigation with Intel Corporation holding that AMD is not licensed to
copy or use certain lines of Intel's 486 ICE microcode in its Am486
microprocessor. The portion of the microcode at issue was designed
solely for in-circuit emulation functions in specialized tools used to
debug microprocessor based systems. The ICE microcode is contained in
all of the company's Am486 products, but it cannot be used by the
company or its customers for ICE functions. The company's system
management mode (SMM) devices, the 486DXL and 486DXLV, made use of the
ICE microcode for power management but not for ICE purposes. The
company's Am486 products other than the SMM devices are manufactured
in such a manner that the ICE microcode cannot be accessed for ICE or
any other purposes.
Following the Court's ruling on October 7, 1994, Intel moved for a
permanent injunction and applied for a temporary restraining order to
prevent AMD from shipping 486 microprocessors containing unlicensed
ICE microcode. At a hearing on October 21, 1994, the court denied
Intel's application for a temporary restraining order and asked the
parties to confer on mutually acceptable terms of a preliminary
injunction. The parties then agreed at the hearing to terms of a
preliminary injunction as follows: (1) AMD will not ship any 486
products specifically including the 486DXL and 486 DXLV
microprocessors containing the unlicensed ICE microcode and bonded out
to use that microcode for any purpose; (2) AMD will not begin the
production of any new 486 wafers that contain the unlicensed ICE
microcode; (3) AMD may continue to ship 486 microprocessors in
inventory or work in process that contain but do not bond out the
unlicensed ICE microcode to purchasers who had existing written orders
or contracts as of October 21, 1994, pursuant to the quantity, price
and delivery terms of such written orders or contracts, except that
AMD may lower prices to meet Intel price competition for those
existing orders or contracts; and (4) AMD may not ship under any
circumstances any 486 products containing the unlicensed ICE microcode
after January 15, 1995. The company expects that the above terms of
the preliminary injunction will be incorporated into a subsequent
permanent injunction, from which the Company plans to appeal the
court's decision. The company expects that Intel will seek damages
with respect to all shipped Am 486 products containing the unlicensed
ICE microcode.
By order dated December 21, 1993, the Court granted the company's
motion to stay Intel's claim that AMD's 486SX infringes Intel
copyrights on its 386 microcode. In light of the Ninth Circuit
decision discussed above in the 386 Microcode Litigation reversing the
Court's order staying the case, the stay order in this action may be
vacated and/or appealed and the litigation concerning this claim may
proceed.
As discussed above, the jury verdicts in the 287 case resolve the
issue whether AMD has the right to use Intel's microcode in AMD's
Am486 microprocessor. The company expects Intel to argue that the
verdicts do not resolve the claims in the 486
22
<PAGE>
Microcode Litigation that AMD is not licensed to use two Intel
"control programs" stored in Intel's 486 microprocessor's programmable
logic array.
An unfavorable ultimate decision in the Technology Agreement
Arbitration, the 287 or the 486 Microcode Litigations could affect the
company's ability to continue to produce and ship its Am486 products
or, in the case of the 486 Microcode Litigation, could result in a
material monetary damages award to Intel, either of which could have
an immediate, material adverse impact on the company's results of
operations and financial condition. The AMD/Intel legal proceedings
involve multiple interrelated and complex issues of fact and law. The
ultimate outcome of such proceedings cannot presently be determined.
Accordingly, no provision for any liability that may result upon the
adjudication of the AMD/Intel legal proceedings has been made in the
company's financial statements.
5. Antitrust Case Against Intel
----------------------------
On August 28, 1991, the company filed an antitrust complaint against
Intel Corporation in the U.S. District Court for the Northern District
of California (Case No. C-91-20541-JW-EAI), alleging that Intel
engaged in a series of unlawful acts designed to secure and maintain a
monopoly in iAPX microprocessor chips. The complaint alleges that
Intel illegally coerced customers to purchase Intel chips through
selective allocations of Intel products and tying availability of the
Intel 80386 to purchases of other products from Intel, and that Intel
filed baseless lawsuits against AMD in order to eliminate AMD as a
competitor and intimidate AMD customers. The complaint requests
significant monetary damages (which may be trebled), and an injunction
requiring Intel to license the 80386 and 80486 to AMD, or other
appropriate relief. On December 17, 1991, the Court dismissed certain
of AMD's claims relating to Intel's past practices on statute of
limitations grounds. Intel filed a motion for partial summary judgment
on a single AMD claim that Intel filed a baseless trademark lawsuit
against AMD and this motion has been granted. The trial date of
October 4, 1994 has been vacated and no new date has been set. With
the Court's permission, AMD filed an amended complaint on March 9,
1994, alleging monopolization and attempted monopolization by Intel in
connection with the sale of the 286, 386, 486 and Pentium
microprocessors. On April 29, 1994, Intel filed a motion seeking to
dismiss and strike portions of the first amended complaint filed by
the company. The hearing on Intel's motion to dismiss and strike was
held on August 26, 1994. On August 29, 1994, the Court denied Intel's
motion to dismiss and to strike portions of the company's First
Amended Complaint except that the Court granted Intel's motion to
dismiss AMD's claim for conspiracy. The parties have filed a proposed
scheduling order which would set a trial date in March 1997.
6. Business Interference Case Against Intel
----------------------------------------
On November 12, 1992, the company filed a proceeding against Intel in
the Superior Court of Santa Clara County, California (Case No.
726343), for tortious interference with prospective economic
advantage, violation of California's Unfair Competition
23
<PAGE>
Act, breach of contract and declaratory relief arising out of Intel's
efforts to require AMD's customers to pay to Intel patent royalties if
they purchased 386 and 486 microprocessors from AMD. The patent
involved, referred to as the Crawford '338 patent, covers various
aspects of how the Intel 386 microprocessor, the Intel 486
microprocessor and future X86 processors manage memory and how these
microprocessors generate memory pages and page tables when combined
with external memory and multi-tasking software such as Microsoft
(Registered Trademark) Windows (Trademark), OS/2 (Registered
Trademark) or UNIX (Registered Trademark). The action was subsequently
removed to the Federal District Court where AMD amended its complaint
to include causes of action for violation of the Lanham Act and a
declaration of patent invalidity and unenforceability. The complaint
alleges that Intel is demanding royalties for the use of the Intel
patents from the company's customers, without informing the company's
customers that the company's license arrangement with Intel protects
the company's customers from an Intel patent infringement lawsuit. No
royalties for the license are charged to customers who purchase these
microprocessors from Intel. Intel has filed a counterclaim against AMD
for inducing infringement of the Crawford '338 patent by computer
manufacturers and others. This case had been stayed pending resolution
of the International Trade Commission Proceeding, discussed below. Now
that the International Trade Commission proceeding has been completed,
AMD intends to pursue this case vigorously.
7. International Trade Commission Proceeding
-----------------------------------------
The United States International Trade Commission Proceeding (the "ITC
Proceeding") (Investigation No. 337-TA-352) was filed by Intel
Corporation on May 7, 1993, against two respondents, Twinhead
International and its U.S. subsidiary, Twinhead Corporation. Twinhead
is a Taiwan-based manufacturer which is a customer of both AMD and
Intel. Twinhead purchases microprocessors from AMD and Intel, and
incorporates these microprocessors into computers sold by Twinhead.
Intel claims that the respondents induce computer end-users to
infringe on what is known as the Crawford '338 patent when the
computers containing AMD microprocessors are used with multi-tasking
software such as Windows, Unix or OS/2. Intel seeks a permanent
exclusion order from entry into the United States of certain Twinhead
personal computers and an order directing Twinhead to cease and desist
from demonstrating, testing or otherwise using such computers in the
United States.
AMD's dispute with Intel in the Intel Business Interference Case (Case
No. C-92-20789, N.D. Cal) (discussed above) requests a declaration
that the Crawford '338 patent is invalid; accordingly, AMD intervened
in the ITC Proceeding as a real party in interest by filing a motion
with the ITC to intervene on the side of the respondents. On July 2,
1993, the ITC granted AMD's motion to intervene in the ITC Proceeding
on the side of respondents and to participate fully in all proceedings
as a party. The company has vigorously contested the relief Intel
seeks. Any decision by an administrative judge would then be confirmed
or not be confirmed by the International Trade Commission (ITC).
24
<PAGE>
On February 4, 1994, the company filed a motion to suspend immediately
and thereafter to terminate the ITC proceeding on the ground that
Intel is collaterally estopped from pursuing the relief it seeks by
reason of a judgment soon to be entered in favor of Cyrix Corporation
(also an intervenor in the ITC Proceeding) and against Intel in a
trial involving the Crawford '338 patent in Texas federal court.
Intel opposed the motion, and filed a motion of its own requesting
that the ITC proceeding be suspended, not terminated, pending
appellate review of the Cyrix Judgment. On February 22, 1994, the ITC
Administrative Law Judge granted AMD's motion to suspend, and
indicated his intent to grant AMD's request to terminate the ITC
Proceeding upon entry of the judgment in the Texas federal court. The
Judge denied Intel's motion to suspend the ITC Proceeding until its
appeal of the judgment in favor of Cyrix has been resolved. The Texas
District Court entered judgment for Cyrix on April 6, 1994. On April
12, 1994, AMD moved for summary determination and termination of the
ITC proceeding based on Cyrix's judgment in Texas. On June 6, 1994,
the Administrative Law Judge granted AMD's motion. Intel filed a
petition for review on the order on June 15, 1994. The Commission
denied Intel's petition on July 11, 1994. On September 9, 1994, Intel
filed an appeal with the United States Court of Appeal for the Federal
Circuit regarding the Commission's refusal to modify the
administrative law judges' Initial Determination. Intel also requested
a stay of the appeal pending the outcome of its appeal of the Texas
action described above. On September 21, 1994, the company filed a
motion to dismiss Intel's appeal as untimely, as well as an opposition
to Intel's motion to stay.
An unfavorable outcome before the ITC could have an adverse effect on
the company's ability to sell microprocessors to Twinhead and other
computer manufacturers in Taiwan and potentially, other countries. An
unfavorable outcome could have an immediate, material adverse impact
on the company's results of operations and financial condition.
B. OTHER
1. In Re Advanced Micro Devices Securities Litigation
--------------------------------------------------
Between September 8 and September 10, 1993, five class actions were
filed, purportedly on behalf of purchasers of the company's stock,
alleging that the company and various of its officers and directors
violated Sections 10(b) and 20(a) of the Securities and Exchange Act
of 1934, 15 U.S.C. (S)(S) 78j(b) and 78t(a), respectively, and Rule
10b-5 promulgated thereunder, 17 C.F.R. (S) 240.10b-5, by issuing
allegedly false and misleading statements about the company's
development of its 486SX personal computer microprocessor products,
and the extent to which that development process included access to
Intel's 386 microcode. Some or all of the complaints alleged that the
company's conduct also constituted fraud, negligent misrepresentations
and violations of the California Corporations Code.
25
<PAGE>
By order dated October 13, 1993, these five cases, as well as any
cases that might be subsequently filed, were consolidated under the
caption "In Re Advanced Micro Devices Securities Litigation," with the
--------------------------------------------------
lead case for the consolidated actions being Samuel Sinay v. Advanced
------------------------
Micro Devices, Inc., et al. (No. C-93-20662-JW, N.D. Cal). A
---------------------------
consolidated amended class action complaint was filed on December 3,
1993, containing all the claims described above and additional
allegations that the company made false and misleading statements
about its revenues and earnings during the third quarter of its 1993
fiscal year as well as about potential foundry arrangements. The
amended complaint seeks damages in an unspecified amount.
On July 8, 1994, the company announced that it has reached an
agreement, in principle, to settle these security class actions. The
proposed settlements were approved by AMD's Board of Directors on
October 26, 1994. The cost of the settlements was $34 million. As a
procedural matter, the settlements are scheduled to continue on to the
court confirmation process by the Federal Court in San Jose,
California.
2. George A. Bilunka, et al. v. Sanders, et al. (93-20727JW, N.D.
--------------------------------------------------------------
Cal.)
-----
On September 30, 1993, an AMD shareholder, George A. Bilunka,
purported to commence an action derivatively on the company's behalf
against all of the company's directors and certain of the company's
officers. The company is named as a nominal defendant. This purported
derivative action essentially alleges that the individual defendants
breached their fiduciary duties to the company by causing, or
permitting, the company to make allegedly false and misleading
statements described in In re Advanced Micro Devices Securities
----------------------------------------
Litigation above about the company's development of its 486SX personal
----------
computer microprocessor products, and the extent to which that
development process included access to Intel's 386 microcode. This
action alleges that a pre-suit demand on the company's Board of
Directors would have been futile because of alleged director
involvement. Damages are sought against the individual defendants in
an unspecified amount.
On November 10, 1993, the company, as nominal defendant, filed a
motion to dismiss the action for failure to make a demand upon the
company's Board of Directors. The plaintiff then filed an amended
derivative complaint on December 17, 1993. The company again moved to
dismiss the complaint. The motion was heard on February 4, 1994, and
on March 1, 1994 the Court granted in part and denied in part the
motion.
By order of the court, this case was consolidated for settlement
purposes with the securities class actions discussed above. On July 8,
1994, the parties reached an agreement in principle to settle this
case for $2.25 million, payable to the company by the company's
directors and officers liability insurance carrier net of legal fees
of derivative plaintiff's counsel and other miscellaneous costs. The
net payment to the company will be approximately $1 million. The
proposed settlement was approved by AMD's Board of Directors on
October 26, 1994. As a procedural matter, the
26
<PAGE>
settlement is scheduled to continue on to the court confirmation
process by the Federal Court in San Jose, California.
3. SEC Investigation
-----------------
The Securities and Exchange Commission ("SEC") has notified the
company that it is conducting an informal investigation of the company
regarding the company's disclosures about the development of its
Am486SX products. See items 1 and 2 of Section (B) hereof. The
company is cooperating fully with the SEC.
4. AMD v. Altera Corporation (Case No. 94-20567 N.D.Cal.)
------------------------------------------------------
On August 16, 1994, the company filed a Complaint for Patent
Infringement and Injunctive Relief against Altera Corporation
("Altera") alleging that Altera has infringed seven of the company's
patents. The infringement claims are made with respect to Altera's
Max 7000 programmable logic device family, as well as other Altera
devices. On October 6, 1994, Altera answered the complaint, denying
liability for any infringement. Altera also filed a counterclaim
alleging that the company has infringed two of Altera's patents and a
conditional counterclaim alleging infringement of four additional
Altera patents. The company has not yet responded to the Altera
counterclaims but it intends to pursue its claims against Altera
vigorously and to defend against Altera's claims of infringement just
as vigorously.
5. Environmental Matters
---------------------
A notice dated October 3, 1994, was received by the company from the
Department of Ecology of the State of Washington that the Department
had determined the company to be a potentially liable person for the
release of hazardous substances on a site located in Yakema,
Washington. The company is currently investigating this claim. The
company believes that the foregoing environmental matter will not have
a material adverse effect on the financial condition or results of
operations of the company.
6. Other Matters.
--------------
The company is a defendant or plaintiff in various other actions which
arose in the normal course of business. In the opinion of management,
the ultimate disposition of these matters will not have a material
adverse effect on the financial condition or the results of operations
of the company.
27
<PAGE>
ITEM 6. EXHIBITS
--------
A. Exhibits
--------
10.1 Credit Agreement dated as of September 21, 1994, among Advanced
Micro Devices, Inc., Bank of America National Trust and Savings
Association as Agent and The First National Bank of Boston as
Co-Agent.
27.1 Financial Data Schedule
99.1 Findings of Fact and Concerns of Law following "ICE" module of
Trial dated October 7, 1994 in the Intel Corporation v. Advanced
-----------------------------
Micro Devices, Inc., Case No. C-93-20301 PVT United States
--------------------
District Court, Northern District of California, San Jose
Division.
99.2 Stipulated Preliminary Injunction dated October 31, 1994 in the
Intel Corporation v. Advanced Micro Devices, Inc., Case No. 93-
--------------------------------------------------
20301 PVT United States District of California, San Jose
Division.
28
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ADVANCED MICRO DEVICES, INC.
Date: November 4, 1994 By: /s/ Larry R. Carter
------------------- --------------------
Larry R. Carter
Vice President and
Corporate Controller
Signing on behalf of the
registrant and as chief
accounting officer
29
<PAGE>
EXHIBIT INDEX
-------------
Exhibits
--------
10.1 Credit Agreement dated as of September 21, 1994, among Advanced
Micro Devices, Inc., Bank of America National Trust and Savings
Association as Agent and The First National Bank of Boston as
Co-Agent.
27.1 Financial Data Schedule
99.1 Findings of Fact and Concerns of Law following "ICE" module of
Trial dated October 7, 1994 in the Intel Corporation v. Advanced
-----------------------------
Micro Devices, Inc., Case No. C-93-20301 PVT United States
--------------------
District Court, Northern District of California, San Jose
Division.
99.2 Stipulated Preliminary Injunction dated October 31, 1994 in the
Intel Corporation v. Advanced Micro Devices, Inc., Case No. 93-
--------------------------------------------------
20301 PVT United States District of California, San Jose
Division.
<PAGE>
EXHIBIT 10.1
CONFORMED COPY
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF SEPTEMBER 21, 1994
AMONG
ADVANCED MICRO DEVICES, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS AGENT,
THE FIRST NATIONAL BANK OF BOSTON,
AS CO-AGENT,
AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
ARRANGED BY
BA SECURITIES, INC.
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
<C> <S> <C>
ARTICLE I
DEFINITIONS.................... 1
1.01 Defined Terms............................................ 1
1.02 Other Definitional Provisions............................ 20
(a) Defined Terms....................................... 20
(b) The Agreement....................................... 20
(c) Certain Common Terms................................ 20
(d) Performance; Time................................... 20
(e) Contracts........................................... 20
(f) Laws................................................ 21
(g) Captions............................................ 21
(h) Independence of Provisions.......................... 21
1.03 Accounting Principles.................................... 21
ARTICLE II
THE CREDITS.................... 22
2.01 Amounts and Terms of Commitments......................... 22
2.02 Loan Accounts............................................ 22
2.03 Procedure for Borrowings................................. 23
2.04 Conversion and Continuation Elections.................... 24
2.05 Voluntary Termination or Reduction of Commitments........ 25
2.06 Optional Prepayments..................................... 25
2.07 Repayment................................................ 26
2.08 Interest................................................. 26
2.09 Fees..................................................... 27
(a) Arrangement Fee..................................... 27
(b) Commitment Fee...................................... 27
(c) Agency Fees......................................... 27
(d) Co-Agency Fees...................................... 27
2.10 Computation of Fees and Interest......................... 27
2.11 Payments by the Company.................................. 28
2.12 Payments by the Banks to the Agent....................... 29
2.13 Sharing of Payments, Etc................................. 30
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY....... 31
3.01 Taxes.................................................... 31
3.02 Illegality............................................... 34
3.03 Increased Costs and Reduction of Return.................. 35
3.04 Funding Losses........................................... 35
3.05 Inability to Determine Rates............................. 36
3.06 Reserves on Offshore Rate Loans.......................... 36
3.07 Certificates of Banks.................................... 37
3.08 Survival................................................. 37
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Section Page
- - - ------- ----
<C> <S> <C>
ARTICLE IV
CONDITIONS PRECEDENT................ 37
4.01 Conditions of Initial Loans.............................. 37
(a) Amended and Restated Credit Agreement............... 37
(b) Resolutions; Incumbency............................. 37
(c) Certificate of Incorporation; By-laws and Good
Standing............................................ 38
(d) Legal Opinion....................................... 38
(e) Payment of Fees..................................... 38
(f) Certificate......................................... 38
(g) Financial Statements................................ 39
(h) Other Documents..................................... 39
4.02 Conditions to All Borrowings............................. 39
(a) Notice of Borrowing................................. 39
(b) Continuation of Representations and Warranties...... 39
(c) No Existing Default................................. 39
ARTICLE V
REPRESENTATIONS AND WARRANTIES........... 39
5.01 Corporate Existence and Power............................ 40
5.02 Corporate Authorization; No Contravention................ 40
5.03 Governmental Authorization............................... 40
5.04 Binding Effect........................................... 40
5.05 Litigation............................................... 41
5.06 No Default............................................... 41
5.07 ERISA Compliance......................................... 41
5.08 Use of Proceeds; Margin Regulations...................... 43
5.09 Title to Properties...................................... 43
5.10 Taxes.................................................... 43
5.11 Financial Condition...................................... 43
5.12 Environmental Matters.................................... 44
5.13 Regulated Entities....................................... 45
5.14 No Burdensome Restrictions............................... 45
5.15 Labor Relations.......................................... 45
5.16 Copyrights, Patents, Trademarks and Licenses, etc........ 45
5.17 Subsidiaries............................................. 45
5.18 Capitalization........................................... 45
5.19 Insurance................................................ 46
5.20 Full Disclosure.......................................... 46
ARTICLE VI
AFFIRMATIVE COVENANTS............... 46
6.01 Financial Statements..................................... 46
6.02 Certificates; Other Information.......................... 47
6.03 Notices.................................................. 48
6.04 Preservation of Corporate Existence, Etc................. 50
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Section Page
- - - ------- ----
<C> <S> <C>
6.05 Maintenance of Property.................................. 50
6.06 Insurance................................................ 50
6.07 Payment of Obligations................................... 50
6.08 Compliance with Laws..................................... 51
6.09 Inspection of Property and Books and Records............. 51
6.10 Environmental Laws....................................... 51
6.11 Use of Proceeds.......................................... 51
ARTICLE VII
NEGATIVE COVENANTS................. 52
7.01 Limitation on Liens...................................... 52
7.02 Disposition of Assets.................................... 53
7.03 Consolidations and Mergers............................... 54
7.04 Loans and Investments.................................... 54
7.05 Transactions with Affiliates............................. 55
7.06 Use of Proceeds.......................................... 56
7.07 Guaranty Obligations..................................... 56
7.08 Compliance with ERISA.................................... 57
7.09 Restricted Payments...................................... 57
7.10 Modified Quick Ratio..................................... 58
7.11 Minimum Tangible Net Worth............................... 59
7.12 Leverage Ratio........................................... 59
7.13 Fixed Charge Coverage Ratio.............................. 59
7.14 Change in Business....................................... 59
7.15 Accounting Changes....................................... 59
ARTICLE VIII
EVENTS OF DEFAULT................. 59
8.01 Event of Default......................................... 59
(a) Non-Payment......................................... 59
(b) Representation or Warranty.......................... 60
(c) Specific Defaults................................... 60
(d) Other Defaults...................................... 60
(e) Cross-Default....................................... 60
(f) Bankruptcy or Insolvency............................ 60
(g) Involuntary Proceedings............................. 61
(h) ERISA............................................... 61
(i) Monetary Judgments.................................. 62
(j) Non-Monetary Judgments.............................. 62
8.02 Remedies................................................. 62
8.03 Rights Not Exclusive..................................... 63
8.04 Certain Financial Covenant Defaults...................... 63
ARTICLE IX
THE AGENT..................... 63
9.01 Appointment and Authorization............................ 63
9.02 Delegation of Duties..................................... 64
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Section Page
- - - ------- ----
<C> <S> <C>
9.03 Liability of Agent....................................... 64
9.04 Reliance by Agent........................................ 64
9.05 Notice of Default........................................ 65
9.06 Credit Decision.......................................... 65
9.07 Indemnification.......................................... 66
9.08 Agent in Individual Capacity............................. 67
9.09 Successor Agent.......................................... 67
9.10 Co-Agents................................................ 67
ARTICLE X
MISCELLANEOUS................... 68
10.01 Amendments and Waivers.................................. 68
10.02 Notices................................................. 68
10.03 No Waiver; Cumulative Remedies.......................... 69
10.04 Costs and Expenses...................................... 69
10.05 Indemnity............................................... 70
10.06 Marshalling; Payments Set Aside......................... 71
10.07 Successors and Assigns.................................. 72
10.08 Assignments, Participations, etc........................ 72
10.09 Set-off................................................. 74
10.10 Automatic Debits of Fees................................ 75
10.11 Notification of Addresses, Lending Offices, Etc......... 75
10.12 Counterparts............................................ 75
10.13 Severability............................................ 75
10.14 No Third Parties Benefitted............................. 75
10.15 Time.................................................... 75
10.16 Governing Law and Jurisdiction.......................... 76
10.17 Waiver of Jury Trial.................................... 76
10.18 Amendment and Restatement; Entire Agreement............. 76
10.19 Interpretation.......................................... 76
</TABLE>
iv
<PAGE>
SCHEDULES
Schedule 1.01 Material Subsidiaries
Schedule 2.01 Commitments
Schedule 4.01 July 8, 1994 Press Release
Schedule 5.05 Litigation
Schedule 5.07 ERISA
Schedule 5.11 Financial Condition
Schedule 5.12 Environmental Matters
Schedule 5.17 Subsidiaries and Equity Investments
Schedule 5.18 Capitalization Table
Schedule 7.01 Permitted Liens
Schedule 7.07 Guaranty Obligations
EXHIBITS
Exhibit A - Note
Exhibit B - Notice of Borrowing
Exhibit C - Notice of Conversion/Continuation
Exhibit D - Compliance Certificate
Exhibit E - Share Acquisition Certificate
Exhibit F - Assignment and Acceptance
Exhibit G - Opinion of Company's Counsel
v
<PAGE>
CREDIT AGREEMENT
----------------
This AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
September 21, 1994, among ADVANCED MICRO DEVICES, INC. a Delaware corporation
(the "Company"), the several financial institutions from time to time party to
this Agreement (collectively, the "Banks"; individually, a "Bank"), 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.
WHEREAS, the Company, the Agent, the Co-Agent and certain of the Banks
are parties to a Credit Agreement dated as of January 4, 1993, as amended by a
First Amendment to Credit Agreement dated as of June 30, 1993 and a Second
Amendment to Credit Agreement dated as of April 12, 1994 (as so amended, the
"Prior Credit Agreement"), pursuant to which the Banks have extended certain
----------------------
credit facilities to the Company.
WHEREAS, the Company has requested that the Banks amend and restate the
Prior Credit Agreement.
WHEREAS, the Banks are willing to amend and restate the Prior Credit
Agreement, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
-----------
1.01 Defined Terms. In addition to the terms defined elsewhere in this
-------------
Agreement, the following terms have the following meanings:
"Acquiree" has the meaning specified in Section 7.04(d).
--------
"Acquisition" means any transaction or series of related
-----------
transactions for the purpose of or resulting in (a) the acquisition,
directly or indirectly, of all or substantially all of the assets of a
Person, or of any business or division of a Person, (b) the acquisition,
directly or indirectly, of in excess of 50% of the capital stock,
partnership interests or equity of any Person or otherwise causing any
Person to become a Subsidiary of the Company, or (c) a merger or
consolidation or any other combination with another Person (other than a
Person that is a Subsidiary of the
1
<PAGE>
Company) provided that the Company or the Company's Subsidiary is the
surviving entity.
"Affiliate" means, as to any Person, any other Person which,
---------
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and policies
of the other Person, whether through the ownership of voting securities, by
contract or otherwise. Without limitation, any director, executive officer
or beneficial owner of 5% or more of the equity of a Person shall for the
purposes of this Agreement, be deemed to control the other Person. In no
event shall any Bank be deemed an "Affiliate" of the Company or any
Subsidiary of the Company.
"Agent" means Bank of America National Trust and Savings
-----
Association in its capacity as agent for the Banks hereunder, and any
successor agent arising under Section 9.09.
"Agent-Related Persons" has the meaning specified in Section 9.03.
---------------------
"Agent's Payment Office" means the address for payments set forth
----------------------
on the signature page hereto in relation to the Agent or such other
address as the Agent may from time to time specify in accordance with
Section 10.02.
"Aggregate Commitment" means the combined Commitments of the Banks
--------------------
in the amount of Two Hundred Fifty Million Dollars ($250,000,000), as
such amount may be reduced from time to time pursuant to this Agreement.
"Agreement" means this Amended and Restated Credit Agreement, as
---------
amended, supplemented or modified from time to time.
"Applicable Fee Amount" means, for any date, the per annum
---------------------
percentage amount set forth below based on the Applicable Rating on such
date:
<TABLE>
<CAPTION>
Applicable Commitment
Rating Fee
<S> <C>
BB+ or Ba1 0.300%
or Better
BB or Ba2 0.325%
BB- or Ba3 0.350%
B+ or B1 0.400%
=========================
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Applicable Commitment
Rating Fee
<S> <C>
B or B2 0.450%
or Worse
Otherwise 0.450%
========================
</TABLE>
"Applicable Margin" means, for any day, with respect to any
-----------------
Reference Rate Loan or Offshore Rate Loan, the applicable margin (on a per
annum basis) set forth below based on the Applicable Rating on such date:
(a) On any day when the Utilization Rate is less than or equal to
50% :
<TABLE>
<CAPTION>
Applicable Offshore Reference
Rating Rate Loans Rate Loans
<S> <C> <C>
BB+ or Ba1 0.850% 0.000%
or Better
BB or Ba2 0.925% 0.000%
BB- or Ba3 1.000% 0.000%
B+ or B1 1.250% 0.000%
B or B2 1.500% 0.250%
or Worse
Otherwise 1.500% 0.250%
=====================================
</TABLE>
(b) On any day when the Utilization Rate is greater than 50%:
<TABLE>
<CAPTION>
Applicable Offshore Reference
Rating Rate Loans Rate Loans
<S> <C> <C>
BB+ or Ba1 0.975% 0.000%
or Better
BB or Ba2 1.050% 0.000%
BB- or Ba3 1.125% 0.000%
B+ or B1 1.375% 0.125%
B or B2 1.625% 0.375%
or Worse
Otherwise 1.625% 0.375%
=====================================
</TABLE>
"Applicable Rating" means the most favorable ratings issued from
-----------------
time to time by S&P or Moody's as applicable to
3
<PAGE>
the Company's senior unsecured long-term debt; provided that (a) if the
--------
most favorable ratings established by such rating agencies indicate two
different pricing levels, the level corresponding to the more favorable of
such ratings shall apply, (b) if only one such rating agency shall provide
a rating as to the Company's senior unsecured long-term debt, the pricing
level shall be determined based upon such rating, and (c) if the ratings
system of both S&P and Moody's shall change, or if neither S&P nor Moody's
rates the Company's long term senior unsecured debt, prior to the date all
Obligations have been paid and the Commitments cancelled, the Applicable
Fee Amount or Applicable Margin, as applicable, shown above in the
"Otherwise" row will apply.
"Arranger" means BA Securities, Inc., a Delaware corporation.
--------
"Assignee" has the meaning specified in subsection 10.08(a).
--------
"Assignment and Acceptance" has the meaning specified in
-------------------------
subsection 10.08(a).
"Attorney Costs" means and includes all fees and disbursements of
--------------
any law firm or other external counsel, the allocated cost of internal
legal services and all disbursements of internal counsel.
"Bank Affiliate" means a Person engaged primarily in the business
--------------
of commercial banking and that is a Subsidiary of a Bank or of a Person of
which a Bank is a Subsidiary.
"Banks" has the meaning specified in the introductory clause hereto.
-----
"BofA" means Bank of America National Trust and Savings
----
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans made
---------
to the Company on the same day by the Banks pursuant to Article II.
"Business Day" means any day other than a Saturday, Sunday or other
------------
day on which commercial banks in New York City, Boston or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Loan, means such a day on which dealings are
carried on in the applicable offshore dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
---------------------------
directive of any central bank or other Governmental Authority, or any other
law, rule or
4
<PAGE>
regulation, whether or not having the force of law, regarding capital
adequacy of any bank or of any corporation controlling a bank .
"Capital Lease Obligations" means all monetary obligations of the
-------------------------
Company or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease.
"Cash Equivalents" means:
----------------
(a) securities issued or fully guaranteed or insured by the
United States Government or any agency thereof having maturities of
not more than 12 months from the date of acquisition;
(b) certificates of deposit, time deposits, Eurodollar time
deposits, repurchase agreements, reverse repurchase agreements, or
bankers' acceptances, having in each case a tenor of not more than 12
months, issued by any Bank, or by any U.S. commercial bank or any
branch or agency of a non-U.S. bank licensed to conduct business in
the U.S. having combined capital and surplus of not less than
$100,000,000 whose short term securities are rated at least A-1 by S&P
or at least P-1 by Moody's;
(c) taxable and tax exempt commercial paper of an issuer rated at
least A-1 by S&P or at least P-1 by Moody's and in either case having
a tenor of not more than 270 days;
(d) medium term notes of an issuer rated at least AA by S&P or at
least Aa2 by Moody's and having a remaining term of not more than 12
months after the date of acquisition by the Company or its
Subsidiaries;
(e) municipal notes and bonds which are rated at least SP-1 or AA
by S&P or at least MIG-2 or Aa by Moody's with tenors of not more than
12 months;
(f) investments in taxable or tax-exempt money market funds with
assets greater than $500,000,000 and whose assets have average
maturities less than or equal to 180 days and are rated at least A-1
by S&P or at least P-1 by Moody's; or
(g) money market preferred instruments of an issuer rated at
least A-1 by S&P or at least P-1 by Moody's with tenors of not more
than 12 months.
"CERCLA" has the meaning specified in the definition of "Environmental
------
Laws."
5
<PAGE>
"Change in Control" means the direct or indirect acquisition by
-----------------
any person (as such term is used in Section 13(d) and Section 14(d)(2) of
the Exchange Act), or related persons constituting a group (as such term is
used in Rule 13d-5 under the Exchange Act), of
(i) beneficial ownership of issued and outstanding shares of
voting stock of the Company, the result of which acquisition is that
such person or such group possesses in excess of 20% of the combined
voting power of all then-issued and outstanding voting stock of the
Company, or
(ii) the power to elect, appoint, or cause the election or
appointment of at least a majority of the members of the Board of
Directors.
"CIBC Guaranty" means the Amended and Restated Guaranty dated as
-------------
of December 17, 1993, by the Company in favor of CIBC, Inc., as amended.
"CIBC Leases" means the Land Lease dated as of September 22, 1992,
-----------
as amended by the First Amendment to Land Lease dated as of December
22, 1992 and by Second Amendment to Land Lease dated as of December 17,
1993, and the Building Lease dated as of September 22, 1992, as amended by
the First Amendment to Building Lease dated as of December 22, 1992 and by
Second Amendment to Building Lease dated as of December 17, 1993, both of
which are between CIBC, Inc. as Lessor and AMD International Sales &
Service, Ltd. as Lessee.
"Closing Date" means September 21, 1994, provided that all
------------
conditions precedent set forth in Section 4.01 are satisfied or waived by
all Banks (or, in the case of subsection 4.01(e), waived by the Person
entitled to receive such payment).
"Co-Agent" means The First National Bank of Boston in its capacity
--------
as co-agent for the Banks hereunder, and any successor co-agent.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, and any regulations promulgated thereunder.
"Commitment" with respect to each Bank, has the meaning specified
----------
in Section 2.01.
"Commitment Percentage" means, as to any Bank, the percentage
---------------------
equivalent of such Bank's Commitment divided by the Aggregate Commitment.
6
<PAGE>
"Consolidated Current Liabilities" means, as of any date of
--------------------------------
determination, all amounts which would, in accordance with GAAP, be
included under current liabilities on a consolidated balance sheet of the
Company and its Subsidiaries, but in any event including all Loans.
"Consolidated Tangible Net Worth" means, at any time of
-------------------------------
determination, in respect of the Company and its Subsidiaries, determined
on a consolidated basis, total assets (exclusive of goodwill, licensing
agreements, patents, trademarks, trade names, organization expense,
treasury stock, unamortized debt discount and premium, deferred charges and
other like intangibles) less total liabilities (including accrued and
deferred income taxes and Subordinated Debt), at such time.
"Contractual Obligations" means, as to any Person, any obligation of
-----------------------
any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument, document
or agreement to which such Person is a party or by which it or any of its
Property is bound.
"Controlled Group" means the Company and all Persons (whether or
----------------
not incorporated) under common control or treated as a single employer with
the Company pursuant to Section 414(b), (c), (m) or (o) of the Code.
"Conversion Date" means any date on which the Company elects to
---------------
convert a Reference Rate Loan to an Offshore Rate Loan; or an Offshore Rate
Loan to a Reference Rate Loan.
"Convertible Exchangeable Preferred Repurchase Program" means the
-----------------------------------------------------
repurchase or redemption by the Company of Convertible Exchangeable
Preferred Stock in consideration for the issuance of shares of common stock
of the Company or the payment of cash by the Company; provided, however,
-------- -------
that no payment of cash shall be made by the Company on account of such
repurchase or redemption, unless:
(a) the Company has entered into a firm standby arrangement
with an underwriting firm of national repute whereunder such
underwriting firm is obligated, subject to customary conditions and
termination events, to purchase common stock from the Company at a
price and in an amount sufficient to fund the repurchase or redemption
of the Convertible Exchangeable Preferred Stock, which standby
arrangement shall be used by the Company to the maximum possible
extent to fund such repurchase or redemption of Convertible
Exchangeable Preferred Stock;
7
<PAGE>
(b) after giving effect to any such payment, there does not exist
any Default or Event of Default; and
(c) all such payments are made no later than the date that is one
year after the Closing Date.
"Convertible Exchangeable Preferred Stock" means the Company's $30.00
----------------------------------------
Convertible Exchangeable Preferred Shares, par value $0.10 per
share, outstanding as of April 12, 1994.
"Default" means any event or circumstance which, with the giving of
-------
notice, the lapse of time, or both, would (if not cured or otherwise
remedied) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the United
------- ------- -
States.
"Domestic Lending Office" means, with respect to each Bank, the office
-----------------------
of that Bank designated as such in the signature pages hereto or
such other office of the Bank as it may from time to time specify to the
Company and the Agent.
"Eligible Assignee" means (i) a commercial bank organized under the
-----------------
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100,000,000; (ii) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $100,000,000, provided that such bank is acting
through a branch or agency located in the United States; and (iii) any Bank
Affiliate acting through a branch or agency in the United States.
"Environmental Claims" means all claims, however asserted, by any
--------------------
Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type
of relief, resulting from or based upon (a) the presence, placement,
discharge, emission or release (including intentional and unintentional,
negligent and non-negligent, sudden or non-sudden, accidental or non-
accidental placement, spills, leaks, discharges, emissions or releases) of
any Hazardous Material at, in, or from Property, whether
8
<PAGE>
or not owned by the Company, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means all federal, state or local laws,
------------------
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to environmental, health,
safety and land use matters; including the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the Clean Air
Act, the Federal Water Pollution Control Act of 1972, the Solid Waste
Disposal Act, the Federal Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Emergency Planning and Community Right-to-Know
Act, the California Hazardous Waste Control Law, the California Solid Waste
Management, Resource, Recovery and Recycling Act, the California Water Code
and the California Health and Safety Code.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time, and regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) under common control with the Company within the meaning of
Section 414(b), 414(c) or 414(m) of the Code.
"ERISA Event" means (a) a Reportable Event with respect to a
-----------
Qualified Plan or a Multiemployer Plan; (b) a withdrawal by the Company or
any ERISA Affiliate from a Qualified Plan subject to Section 4063 of ERISA
during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA); (c) a complete or partial withdrawal by the
Company or any ERISA Affiliate from a Multiemployer Plan; (d) the filing of
a notice of intent to terminate, the treatment of a plan amendment as a
termination under Section 4041 or 4041A of ERISA or the commencement of
proceedings by the PBGC to terminate a Qualified Plan or Multiemployer Plan
subject to Title IV of ERISA; (e) a failure by the Company or any member of
the Controlled Group to make required contributions to a Qualified Plan or
Multiemployer Plan; (f) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Qualified Plan or Multiemployer Plan; (g) the imposition of any liability
under Title IV of ERISA, other than PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon the Company or any ERISA Affiliate; (h)
an application for a funding waiver or an extension of any amortization
period pursuant to Section 412 of the Code with respect to any
9
<PAGE>
Plan; (i) a non-exempt prohibited transaction occurs with respect to any
Plan for which the Company or any Subsidiary of the Company may be directly
or indirectly liable; or (j) a violation of the applicable requirements of
Section 404 or 405 of ERISA or the exclusive benefit rule under Section
401(a) of the Code by any fiduciary or disqualified person with respect to
any Plan for which the Company or any member of the Controlled Group may be
directly or indirectly liable.
"Event of Default" means any of the events or circumstances
----------------
specified in Section 8.01.
"Exchange Act" means the Securities and Exchange Act of 1934, and
------------
regulations promulgated thereunder.
"Federal Funds Rate" means, for any day, the rate set forth in the
------------------
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if for any relevant day such rate
is not so published on any such preceding Business Day, the rate for such
day will be the arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior to 9:00 a.m.
(New York City time) on that day by each of three leading brokers of
Federal funds transactions in New York City selected by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
---------------------
Reserve System or any successor thereof.
"Fee Letter" has the meaning specified in subsection 2.09(a).
----------
"Fixed Charge Coverage Ratio" means, determined as of the last day of
---------------------------
any fiscal quarter for the Company and its Subsidiaries, determined
on a consolidated basis, the ratio of (a) the sum of interest expense,
operating lease expense and pre-tax income for the then-ending fiscal
quarter and the three fiscal quarters immediately preceding such quarter,
to (b) the sum of (i) interest expense and operating lease expense for the
same four fiscal quarter period, plus (ii) the average of the current
portion of long-term debt (as determined in accordance with GAAP) as of the
end of each of the four fiscal quarters in such four fiscal quarter period.
"FNBB" means The First National Bank of Boston, a national banking
----
association.
"GAAP" means generally accepted accounting principles set forth from
----
time to time in the opinions and
10
<PAGE>
pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board (or agencies with similar
functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as may be in
general use by significant segments of the U.S. accounting profession,
which are applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any state or
----------------------
other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranty Obligation" means, as applied to any Person, any direct or
-------------------
indirect liability of that Person with respect to any Indebtedness, lease,
dividend, letter of credit or other obligation (the "primary obligations")
of another Person (the "primary obligor"), including any obligation of that
Person, whether or not contingent, (a) to purchase, repurchase or otherwise
acquire such primary obligations or any property constituting direct or
indirect security therefor, or (b) to advance or provide funds (i) for the
payment or discharge of any such primary obligation, or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, or (c) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (d) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof. The amount of any Guaranty Obligation shall be deemed
equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof.
"Hazardous Materials" means all those substances which are regulated
-------------------
by, or which may form the basis of liability under, any Environmental Law,
including all substances identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent, special
waste, hazardous substance, hazardous material, or toxic substance, or
petroleum or petroleum derived substance or waste.
11
<PAGE>
"Indebtedness" of any Person means without duplication, (a) all
------------
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services; (c) all
reimbursement obligations with respect to surety bonds, letters of credit,
bankers' acceptances and similar instruments; (d) all obligations evidenced
by notes, bonds, debentures or similar instruments, including obligations
so evidenced incurred in connection with the acquisition of property,
assets or businesses; (e) all indebtedness created or arising under any
conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of
such property); (f) all Capital Lease Obligations; (g) all net obligations
with respect to Rate Contracts; (h) all indebtedness referred to in clauses
(a) through (g) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien upon or in property (including accounts and contracts rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (i) all Guaranty
Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (g) above.
"Indemnified Person" has the meaning specified in Section 10.05.
------------------
"Indemnified Liabilities" has the meaning specified in Section 10.05.
-----------------------
"Indenture" means the Indenture dated as of March 25, 1987,
---------
between the Company and The Bank of New York in the form delivered to the
Agent and the Banks prior to the Closing Date.
"Insolvency Proceeding" means (a) any case, action or proceeding
---------------------
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors or
other, similar arrangement in respect of its creditors generally or any
substantial portion of its creditors; in each case (a) and (b) undertaken
under U.S. Federal, State or foreign law.
"Interest Payment Date" means, with respect to any Offshore Rate Loan,
---------------------
the last day of each Interest Period applicable to such Loan and,
with respect to Reference Rate Loans, the last Business Day of each
calendar quarter and each date a Reference Rate Loan is converted into an
12
<PAGE>
Offshore Rate Loan; provided, however, that if any Interest Period for an
-------- -------
Offshore Rate Loan exceeds three months, the date which falls three months
after the beginning of such Interest Period shall also be an "Interest
Payment Date".
"Interest Period" means, with respect to any Offshore Rate Loan, the
---------------
period commencing on the Business Day the Loan is disbursed or
continued or on the Conversion Date on which the Loan is converted to the
Offshore Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company in its Notice of Borrowing;
provided that:
--------
(i) if any Interest Period pertaining to an Offshore Rate Loan
would otherwise end on a day which is not a Business Day, that
Interest Period shall be extended to the next succeeding Business Day
unless, in the case of an Offshore Rate Loan, the result of such
extension would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
immediately preceding Business Day;
(ii) any Interest Period pertaining to an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period for any Loan shall extend beyond the
date that is three years after the Closing Date.
"Lending Office" means, with respect to any Bank, the office or
--------------
offices of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, beneath its name
on the signature pages hereto, or such other office or offices of such Bank
as it may from time to time specify to the Company and the Agent.
"Leverage Ratio" means, at any time, the ratio of total consolidated
--------------
liabilities to Consolidated Tangible Net Worth at that time.
"LIBOR" means, for any Interest Period, with respect to Offshore Rate
-----
Loans comprising part of the same Borrowing, the rate of interest per
annum determined by the Agent to be the arithmetic mean (rounded upward to
the next 1/16th of 1%) of the rates of interest per annum notified to the
Agent by each
13
<PAGE>
Reference Bank as the rate at which dollar deposits for such Interest
Period and in an amount approximately equal to the amount of the Offshore
Rate Loan of such Reference Bank during such Interest Period would be
offered by its applicable Lending Office to major banks in the London
eurodollar market at or about 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, charge or deposit arrangement, encumbrance, lien (statutory or
other) or preference, priority or other security interest or preferential
arrangement of any kind or nature whatsoever (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a Capital Lease Obligation, any
financing lease having substantially the same economic effect as any of the
foregoing, or the filing of any financing statement naming the owner of the
asset to which such lien relates as debtor, under the UCC or any comparable
law), and any contingent or other agreement to provide any of the
foregoing.
"Loan" means an extension of credit by a Bank to the Company
----
pursuant to Article II, and may be an Offshore Rate Loan or a Reference
Rate Loan.
"Loan Documents" means this Agreement, any Notes, the Fee Letter and
--------------
all documents and/or instruments executed and delivered to the Agent or
any of the Banks in connection herewith or therewith.
"Long Term Investments" means those investments described below,
---------------------
provided that such investments shall have maturities of one year or
greater, but not longer than three years:
(a) securities issued or fully guaranteed or fully insured by the
United States government or any agency thereof and backed by the full
faith and credit of the United States;
(b) certificates of deposit, time deposits, eurodollar time
deposits, repurchase agreements, or banker's acceptances that are
issued by either one of the 30 largest (in assets) banks in the United
States or by one of the 100 largest (in assets) banks in the world
whose long term securities are rated at least AA by S&P or at least
Aa2 by Moody's;
(c) commercial paper and money market preferred instruments of an
issuer rated at least A-1 by S&P or at least P-1 by Moody's;
14
<PAGE>
(d) investments in taxable or tax-exempt money market funds with
assets greater than $500,000,000 and whose assets have average
maturities less than or equal to 12 months; and which are rated at
least AA by S&P or at least Aa2 by Moody's; and
(e) municipal notes and bonds which are rated at least AA by S&P
or at least Aa2 by Moody's.
"Majority Banks" means (a) at any time prior to the Revolving
--------------
Termination Date, and after the Revolving Termination Date if no Loans are
then outstanding, Banks holding at least 66-2/3% of the Commitments, and
(b) otherwise, Banks having at least 66-2/3% of the then aggregate unpaid
principal amount of the Loans.
"Margin Stock" means "margin stock" as such term is defined in
------------
Regulation G, T, U or X of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse change in, or a
-----------------------
material adverse effect upon, any of (a) the operations, business,
properties or condition (financial or otherwise) of the Company or the
Company and its Subsidiaries taken as a whole; (b) the ability of the
Company to perform under any Loan Document and avoid any Event of Default;
or (c) the legality, validity, binding effect or enforceability of any Loan
Document.
"Material Subsidiary" means, at any time, any Subsidiary of the
-------------------
Company (a) listed on Schedule 1.01 hereto, or (b) having at such time
either (i) total (gross) revenues for the preceding four fiscal quarters in
excess of 5% of gross revenue for the Company and its Subsidiaries on a
consolidated basis, or (ii) total assets, as of the last day of the
preceding quarter, having a net book value in excess of 5% of total assets
for the Company and its Subsidiaries on a consolidated basis, in each case,
based upon the Company's most recent annual or quarterly financial
statements delivered to the Agent pursuant to Section 6.01.
"Moody's" means Moody's Investors Service, Inc. and any successor
-------
thereto that is a nationally recognized rating agency.
"Multiemployer Plan" means a "multiemployer plan" (within the
------------------
meaning of Section 4001(a)(3) of ERISA) and to which any member of the
Controlled Group makes, is making, or is obligated to make contributions
or, during the preceding three calendar years, has made, or been obligated
to make, contributions.
"Net Proceeds" means, with respect to a sale of equity securities,
------------
the gross proceeds thereof reduced
15
<PAGE>
by all reasonable out-of-pocket costs and expenses paid or incurred by the
Company directly in connection therewith, including underwriter's
commissions or discounts, registration and filing fees, legal and
accounting fees, and printing costs, all as determined in accordance with
GAAP.
"Note" means a promissory note executed by the Company in favor of a
----
Bank pursuant to subsection 2.02(b), in substantially the form of
Exhibit A.
---------
"Notice of Borrowing" means a notice given by the Company to the
-------------------
Agent pursuant to Section 2.03, in substantially the form of Exhibit B.
---------
"Notice of Conversion/Continuation" means a notice given by the
---------------------------------
Company to the Agent pursuant to Section 2.04, in substantially the form of
Exhibit C.
---------
"Notice of Lien" means any "notice of lien" or similar document
--------------
intended to be filed or recorded with any court, registry, recorder's
office, central filing office or other Governmental Authority for the
purpose of evidencing, creating, perfecting or preserving the priority of a
Lien securing obligations owing to a Governmental Authority.
"Obligations" means all Loans, and other Indebtedness, advances,
-----------
debts, liabilities, obligations, covenants and duties owing by the Company
to any Bank, the Agent, or any other Person required to be indemnified
under any Loan Document, of any kind or nature, arising under this
Agreement or under any other Loan Document; present or future, whether or
not evidenced by any note, guaranty or other instrument, whether or not for
the payment of money, whether arising by reason of an extension of credit,
loan, guaranty, indemnification or in any other manner, whether direct or
indirect (including those acquired by assignment), absolute or contingent,
due or to become due, now existing or hereafter arising and however
acquired.
"Offshore Lending Office" means with respect to each Bank, the office
-----------------------
of such Bank designated as such in the signature pages hereto or such other
office of such Bank as such Bank may from time to time specify to the
Company and the Agent.
"Offshore Rate Loan" means any Loan that bears interest at a rate
------------------
determined with reference to LIBOR.
"Offshore Subsidiary" means any Subsidiary of the Company incorporated
-------------------
or otherwise organized under the laws of a jurisdiction other than one of
the 50 states of the United States.
16
<PAGE>
"Ordinary Course of Business" means, in respect of any transaction
---------------------------
involving the Company or any Subsidiary of the Company, the ordinary course
of such Person's business substantially consistent with past practice.
"Organization Documents" means, for any corporation, the certificate
----------------------
or articles of incorporation, the bylaws, any certificate of
determination or instrument relating to the rights of preferred
shareholders, and all applicable resolutions of the board of directors (or
any committee thereof) of such corporation.
"Other Taxes" has the meaning specified in subsection 3.01(b).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in subsection 10.08(d).
-----------
"Permitted Liens" has the meaning specified in Section 7.01.
---------------
"Person" means an individual, partnership, corporation, business
------
trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
----
ERISA) which the Company or any member of the Controlled Group sponsors
or maintains or to which the Company or any member of the Controlled Group
makes, is making or is obligated to make contributions, and includes any
Multiemployer Plan or Qualified Plan.
"Prior Credit Agreement" has the meaning specified in the introductory
----------------------
clause hereto.
"Property" means any estate or interest in any kind of property or
--------
asset, whether real, personal or mixed, and whether tangible or intangible.
"Qualified Plan" means a pension plan (as defined in Section 3(2) of
--------------
ERISA) intended to be tax-qualified under Section 401(a) of the Code and
which any member of the Controlled Group sponsors, maintains, or to which
it makes, is making or is obligated to make contributions, or in the case
of a multiple employer plan (as described in Section 4064(a) of ERISA) has
made contributions at any time during the immediately preceding period
covering at least five (5) plan years, but excluding any Multiemployer
Plan.
17
<PAGE>
"Rate Contracts" means interest rate and currency swap agreements,
--------------
cap, floor and collar agreements, interest rate insurance, currency spot
and forward contracts and other agreements or arrangements designed to
provide protection against fluctuations in interest or currency exchange
rates.
"Receivable" means an account (as such term is defined in the
----------
California UCC) owned by the Company which has arisen in the ordinary
course of the business of the Company from the sale of inventory or the
provision of services by the Company in the normal course of business and
all moneys due or to become due, and all rights and claims arising
thereunder and all rights related thereto, including those assertable
against other Persons in addition to the obligor.
"Reference Banks" means BofA and FNBB.
---------------
"Reference Rate" means the higher of:
--------------
(a) the rate of interest in effect for such day as publicly
announced from time to time by BofA in San Francisco, California, as
its "reference rate." The "reference rate" is a rate set by BofA based
upon various factors including BofA's costs and desired return,
general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above,
or below such announced rate; and
(b) one-half percent per annum above the latest Federal Funds
Rate.
Any change in the reference rate announced by BofA shall take effect
at the opening of business on the day specified in the public announcement
of such change.
"Reference Rate Loan" means a Loan that bears interest based on the
-------------------
Reference Rate.
"Reportable Event" means, as to any Plan, (a) any of the events set
----------------
forth in Section 4043(b) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement under ERISA has
been waived in regulations issued by the PBGC, (b) a withdrawal from a Plan
described in Section 4063 of ERISA, or (c) a cessation of operations
described in Section 4062(e) of ERISA.
"Requirement of Law" means, as to any Person, any law (statutory or
------------------
common), treaty, rule or regulation or determination of an arbitrator or
of a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
18
<PAGE>
"Responsible Officer" means the chief executive officer or the
-------------------
president of the Company, or any other officer having substantially the
same authority and responsibility or, with respect to financial matters,
the chief financial officer or the treasurer of the Company, or any other
officer having substantially the same authority and responsibility.
"Revolving Termination Date" means the earlier to occur of:
--------------------------
(a) the date that is three years after the Closing Date; and
(b) the date on which the Commitments shall terminate in
accordance with the provisions of this Agreement.
"S&P" means Standard & Poor's Rating Group of Standard & Poor's
---
Corporation and any successor thereto that is a nationally recognized
rating agency.
"SEC" means the Securities and Exchange Commission, or any successor
---
thereto.
"Subordinated Debt" means any Indebtedness of the Company that,
-----------------
pursuant to the instrument evidencing or governing such Indebtedness, is
subordinate in right of payment to the Obligations.
"Subsidiary" of a Person means any corporation, association,
----------
partnership, joint venture or other business entity of which more than 50%
of the voting stock or other equity interests (in the case of Persons other
than corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a combination
thereof.
"Taxes" has the meaning specified in subsection 3.01(a).
-----
"Transferee" has the meaning specified in subsection 10.08(e).
----------
"UCC" means the Uniform Commercial Code as in effect in any
---
jurisdiction.
"Unfunded Pension Liabilities" means the excess of a Plan's benefit
----------------------------
liabilities under Section 4001(a)(16) of ERISA, over the current value of
that Plan's assets, determined in accordance with the assumptions used by
the Plan's actuaries for funding the Plan pursuant to section 412 for the
applicable plan year.
19
<PAGE>
"United States" and "U.S." each means the United States of America.
------------- ----
"Utilization Rate" means the daily rate as determined with respect
----------------
to the credit facility described in this Agreement on each day by dividing
the amount of the total outstanding Loans for such day by the amount of the
Aggregate Commitment for such day.
"Wholly-Owned Subsidiary" means any corporation in which (other than
-----------------------
directors' qualifying shares required by law and other than other shares of
a de minimis amount issued to and held by others for the benefit of the
Company or another wholly-owned subsidiary) 100% of the capital stock of
each class having ordinary voting power, and 100% of the capital stock of
every other class, in each case, at the time as of which any determination
is being made, is owned, beneficially and of record, by the Company, or by
one or more of the other Wholly-Owned Subsidiaries, or both.
"Withdrawal Liabilities" means, as of any determination date, the
----------------------
aggregate amount of the liabilities, if any, pursuant to Section 4201 of
ERISA if the Controlled Group made a complete withdrawal from all
Multiemployer Plans and any increase in contributions pursuant to Section
4243 of ERISA.
1.02 Other Definitional Provisions.
-----------------------------
(a) Defined Terms. Unless otherwise specified herein or therein, all
-------------
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto. The meaning of
defined terms shall be equally applicable to the singular and plural forms of
the defined terms. Terms (including uncapitalized terms) not otherwise defined
herein and that are defined in the UCC shall have the meanings therein
described.
(b) The Agreement. The words "hereof", "herein", "hereunder" and
-------------
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
section, schedule and exhibit references are to this Agreement unless otherwise
specified.
(c) Certain Common Terms.
--------------------
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other writings,
however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
20
<PAGE>
(iii) The term "pro rata" means ratably in accordance with the
respective Commitment Percentages.
(d) Performance; Time. Whenever any performance obligation hereunder
-----------------
(other than a payment obligation) shall be stated to be due or required to be
satisfied on a day other than a Business Day, such performance shall be made or
satisfied on the next succeeding Business Day. In the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including"; the words "to" and "until" each mean "to but excluding,"
and the word "through" means "to and including". If any provision of this
Agreement refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be interpreted to
encompass any and all means, direct or indirect, of taking, or not taking, such
action.
(e) Contracts. Unless otherwise expressly provided herein,
---------
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document.
(f) Laws. References to any statute or regulation are to be
----
construed as including all statutory and regulatory provisions which by their
terms consolidate, amend or replace the statute or regulation.
(g) Captions. The captions and headings of this Agreement are for
--------
convenience of reference only and shall not affect the construction of this
Agreement.
(h) Independence of Provisions. The parties acknowledge that this
--------------------------
Agreement and other Loan Documents may use several different limitations, tests
or measurements to regulate the same or similar matters, and that such
limitations, tests and measurements are cumulative and must each be performed,
except as expressly stated to the contrary in this Agreement.
1.03 Accounting Principles.
---------------------
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
21
<PAGE>
ARTICLE II
THE CREDITS
-----------
2.01 Amounts and Terms of Commitments. (a) Each Bank severally agrees, on
--------------------------------
the terms and conditions hereinafter set forth, to make Loans to the Company
from time to time on any Business Day during the period from the Closing Date to
the Revolving Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite the Bank's name in Schedule 2.01 under
-------------
the heading "Commitment" (such amount as the same may be reduced pursuant to
Section 2.05 or as a result of one or more assignments pursuant to Section
10.08, the Bank's "Commitment"); provided, however, that, after giving effect to
-------- -------
any Borrowing of Loans, the aggregate principal amount of all outstanding Loans
shall not exceed the Aggregate Commitment. Within the limits of each Bank's
Commitment, and subject to the other terms and conditions hereof, the Company
may borrow under this Section 2.01, prepay pursuant to Section 2.06 and reborrow
pursuant to this Section 2.01.
(b) On and after the Closing Date, all outstanding Loans (as that term
is defined in the Prior Credit Agreement) made by the Banks to the Company under
the Prior Credit Agreement, and, except as otherwise provided in Section
4.01(e), all interest, fees and other amounts due to the Banks under the Prior
Credit Agreement, shall be deemed for all purposes (including for purposes of
the fees to be collected pursuant hereto) to constitute Loans, interest, fees
and other amounts, as applicable, outstanding under this Agreement and shall be
governed by the terms and conditions contained herein and in the other Loan
Documents, and such Loans shall reduce pro tanto the unused Aggregate Commitment
--- -----
hereunder accordingly.
2.02 Loan Accounts. (a) The Loans made by each Bank shall be evidenced by
-------------
one or more loan accounts or records maintained by such Bank in the ordinary
course of business. The loan accounts or records maintained by the Agent and
each Bank shall be conclusive absent manifest error as to the amount of the
Loans made by the Banks to the Company and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to the Loans. In case of a discrepancy between the entries in the
Agent's books and any Bank's books, such Bank's books shall constitute prima
-----
facie evidence of the accuracy of the information so recorded.
- - - -----
(b) Upon the request of any Bank made through the Agent, the Loans
made by such Bank may be evidenced by one or more Notes, instead of loan
accounts. Each such Bank shall endorse on the schedules annexed to its Note(s)
the date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by the Company with respect thereto.
22
<PAGE>
Each such Bank is irrevocably authorized by the Company to endorse its Note(s)
and each Bank's record shall be prima facie evidence of the accuracy of the
----- -----
information so recorded; provided, however, that the failure of a Bank to make,
-------- -------
or an error in making, a notation thereon with respect to any Loan shall not
limit or otherwise affect the obligations of the Company hereunder or under any
such Note to such Bank.
2.03 Procedure for Borrowings.
------------------------
(a) Each Borrowing shall be made upon the irrevocable written notice
(including notice via facsimile confirmed immediately by a telephone call) of
the Company in the form of a Notice of Borrowing, which notice must be received
by the Agent prior to 9:00 a.m. (San Francisco time) (i) three Business Days
prior to the requested borrowing date, in the case of Offshore Rate Loans; and
(ii) one Business Day prior to the requested borrowing date, in the case of
Reference Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum principal amount of Ten Million dollars ($10,000,000)
or any multiple of One Million dollars ($1,000,000) in excess thereof;
(B) the requested borrowing date, which shall be a Business
Day;
(C) whether the Borrowing is to be comprised of Offshore Rate
Loans or Reference Rate Loans; and
(D) the duration of the Interest Period applicable to such
Loans included in such notice. If the Notice of Borrowing shall fail to
specify the duration of the Interest Period for any Borrowing comprised
of Offshore Rate Loans, such Interest Period shall be three months;
provided, however, that with respect to any Borrowing to be made on the Closing
- - - -------- -------
Date, the Notice of Borrowing shall be delivered to the Agent not later than
10:00 a.m. (San Francisco time) one Business Day before the Closing Date and
such Borrowing will consist of Reference Rate Loans only.
(b) Upon receipt of the Notice of Borrowing, the Agent will promptly
notify each Bank thereof and of the amount of such Bank's Commitment Percentage
of the Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage of the
Borrowing available to the Agent for the account of the Company at the Agent's
Payment Office by 11:00 a.m. (San Francisco time) on the borrowing date
requested by the Company in funds immediately available to the Agent. Unless
any applicable condition specified in Article IV has not been satisfied, the
proceeds of all such Loans will then be made
23
<PAGE>
available to the Company by the Agent at such office by crediting the account of
the Company on the books of BofA with the aggregate of the amounts made
available to the Agent by the Banks and in like funds as received by the Agent.
(d) After giving effect to any Borrowing, unless consented to by the
Agent in its sole discretion, there shall not be more than six different
Interest Periods in effect in respect of all Loans.
2.04 Conversion and Continuation Elections.
-------------------------------------
(a) The Company may upon irrevocable written notice to the Agent in
accordance with subsection 2.04(b):
(i) elect to convert on any Business Day, any Reference Rate
Loans (or any part thereof in an amount not less than $10,000,000, or that
is in an integral multiple of $1,000,000 in excess thereof) into Offshore
Rate Loans;
(ii) elect to convert on any Interest Payment Date any Offshore
Rate Loans maturing on such Interest Payment Date (or any part thereof in an
amount not less than $10,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof) into Reference Rate Loans; or
(iii) elect to renew on any Interest Payment Date any Offshore
Rate Loans maturing on such Interest Payment Date (or any part thereof in an
amount not less than $10,000,000, or that is in an integral multiple of
$1,000,000 in excess thereof);
provided, that if the aggregate amount of Offshore Rate Loans shall have been
- - - --------
reduced, by payment, prepayment, or conversion of part thereof to be less than
$1,000,000, the Offshore Rate Loans shall automatically convert into Reference
Rate Loans, and on and after such date the right of the Company to continue such
Loans as Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/ Continuation
(including delivery via facsimile confirmed immediately by a telephone call), to
be received by the Agent not later than 9:00 a.m. (San Francisco time) at least
(i) three Business Days in advance of the Conversion Date or continuation date,
if the Loans are to be converted into or continued as Offshore Rate Loans; and
(ii) one Business Day in advance of the Conversion Date or continuation date, if
the Loans are to be converted into Reference Rate Loans, specifying:
(A) the proposed Conversion Date or continuation date;
(B) the aggregate amount of Loans to be converted or
renewed;
24
<PAGE>
(C) the nature of the proposed conversion or continuation;
and
(D) the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Loans, the Company has failed to select a new Interest Period to
be applicable to such Offshore Rate Loans, or if any Default or Event of Default
shall then exist, the Company shall be deemed to have elected to convert such
Offshore Rate Loans into Reference Rate Loans effective as of the expiration
date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/ Continuation, the Agent
will promptly notify each Bank thereof, or, if no timely notice is provided, the
Agent will promptly notify each Bank of the details of any automatic conversion.
All conversions and continuations shall be made pro rata according to the
respective outstanding principal amounts of the Loans with respect to which the
notice was given by each Bank.
(e) Unless the Majority Banks otherwise agree, during the existence of
a Default or Event of Default, the Company may not elect to have a Loan
converted into or continued as an Offshore Rate Loan.
(f) Notwithstanding any other provision contained in this Agreement,
unless consented to by the Agent in its sole discretion, after giving effect to
any conversion or continuation of any Loans, there shall not be more than six
different Interest Periods in effect.
2.05 Voluntary Termination or Reduction of Commitments. The Company may,
-------------------------------------------------
upon not less than five Business Days' prior notice to the Agent, terminate the
Aggregate Commitments or permanently reduce the Aggregate Commitments by an
aggregate minimum amount of $5,000,000 or any multiple of $5,000,000; provided
--------
that no such reduction or termination shall be permitted if, after giving effect
thereto and to any prepayments of the Loans made on the effective date thereof
(together with all amounts required by Section 3.04), the then outstanding
principal amount of the Loans would exceed the amount of the Aggregate
Commitment then in effect and, provided, further, that once reduced in
-------- -------
accordance with this Section 2.05, the Aggregate Commitment may not be
increased. Any reduction of the Aggregate Commitment shall be applied pro rata
to each Bank's Commitment in accordance with such Bank's Commitment Percentage.
All accrued commitment fees to, but not including the effective date of any
reduction or termination of Commitments, shall be paid on the effective date of
such reduction or termination.
25
<PAGE>
2.06 Optional Prepayments. Subject to Section 3.04, the Company may, at any
--------------------
time or from time to time, upon at least five Business Days' written notice to
the Agent with respect to Offshore Rate Loans, or one Business Day's written
notice (prior to 9:00 a.m. San Francisco time) to the Agent with respect to
Reference Rate Loans, ratably prepay Loans in whole or in part, in amounts of
$5,000,000 or any multiple of $1,000,000 in excess thereof. Such notice of
prepayment shall specify the date and amount of such prepayment and whether such
prepayment is of Reference Rate Loans or Offshore Rate Loans, or any combination
thereof. Such notice shall not thereafter be revocable by the Company and the
Agent will promptly notify each Bank thereof and of such Bank's Commitment
Percentage of such prepayment. If such notice is given, the Company shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to each
such date on the amount prepaid and the amounts required pursuant to Section
3.04.
2.07 Repayment.
---------
(a) Each Loan shall mature, and the principal amount thereof shall be
due and payable, on the Revolving Termination Date.
(b) The Company shall repay the unpaid principal amount of all Loans,
together with all accrued and unpaid interest, and all other amounts owing or
payable hereunder, together with amounts owing under Section 3.04, and the
Commitments shall terminate, immediately upon the occurrence of any Change in
Control.
2.08 Interest.
--------
(a) Subject to subsection 2.08(d), each Loan shall bear interest on the
outstanding principal amount thereof from the date when made until it becomes
due at a rate per annum equal to LIBOR or the Reference Rate, as the case may
be, plus the Applicable Margin as the same may be adjusted.
----
(b) Interest on each Loan shall be payable in arrears on each Interest
Payment Date. Interest shall also be payable on the date of any prepayment of
Loans for the portion of the Loans so prepaid and upon payment (including
prepayment) in full thereof and, during the existence of any Event of Default,
interest shall be payable on demand.
(c) If any amount of principal of or interest on any Loan, or any other
amount payable hereunder or under any of the other Loan Documents, is not paid
in full when due (whether at stated maturity, by acceleration, demand or
otherwise), the Company agrees to pay interest on such unpaid principal or other
amount, from the date such amount becomes due until the date such amount is paid
in full, and after as well as before any
26
<PAGE>
entry of judgment thereon, payable on demand, at a rate per annum equal to
the Reference Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations of
the Company hereunder shall be subject to the limitation that payments of
interest shall not be required, for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by the respective Bank would be contrary to the
provisions of any law applicable to such Bank limiting the highest rate of
interest which may be lawfully contracted for, charged or received by such Bank,
and in such event the Company shall pay such Bank interest at the highest rate
permitted by applicable law.
2.09 Fees.
----
(a) Arrangement Fee. In consideration of the Arranger's efforts in
---------------
arranging this facility, the Company shall pay to the Arranger for the
Arranger's own account an arrangement fee in an amount and at the times set
forth in the letter agreement among the Company, the Agent and the Arranger
dated June 30, 1994 (the "Fee Letter").
(b) Commitment Fee. The Company shall pay to the Agent for the account
--------------
of each Bank a commitment fee on the average daily unused portion of such Bank's
Commitment, computed on a quarterly basis in arrears on the last Business Day of
each calendar quarter based upon the daily utilization for that quarter as
calculated by the Agent, at a rate per annum equal to the Applicable Fee Amount.
Such commitment fee shall accrue from the Closing Date to the Revolving
Termination Date and shall be due and payable quarterly in arrears on the last
Business Day of each quarter commencing on December 31, 1994 through the
Revolving Termination Date, with the final payment to be made on the Revolving
Termination Date; provided that, in connection with any reduction or termination
--------
of Commitments under Section 2.05, the accrued commitment fee calculated for the
period ending on such date shall also be paid on the date of such reduction or
termination, with the following quarterly payment being calculated on the basis
of the period from such reduction or termination date to such quarterly payment
date. The commitment fees provided in this subsection shall accrue at all times
after the above-mentioned commencement date, including at any time during which
one or more conditions in Article IV are not met.
(c) Agency Fees. In consideration of the Agent agreeing to act as agent
-----------
for the Banks hereunder, the Company shall pay to the Agent for the Agent's own
account agency fees in the amount and at the times set forth in the Fee Letter.
(d) Co-Agency Fees. In consideration of the Co-Agent agreeing to act as
--------------
co-agent for the Banks hereunder, the Company
27
<PAGE>
shall pay to the Co-Agent for the Co-Agent's own account co-agency fees in the
amount and at the times set forth in a letter agreement between the Company and
the Co-Agent dated as of the date hereof.
2.10 Computation of Fees and Interest.
--------------------------------
(a) All computations of interest payable in respect of Reference Rate
Loans at all times as the Reference Rate is determined by BofA's "reference
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest under
this Agreement shall be made on the basis of a 360-day year and actual days
elapsed, which results in more interest being paid than if computed on the basis
of a 365-day year. Interest and fees shall accrue during each period during
which interest or such fees are computed from the first day thereof to the last
day thereof.
(b) The Agent will, with reasonable promptness, notify the Company and
the Banks of each determination of a LIBOR, provided that any failure to do so
--------
shall not relieve the Company of any liability hereunder or provide any basis
for any claim by the Company or any Bank against the Agent. Any change in the
interest rate on a Loan resulting from a change in the Applicable Margin or
Applicable Fee Amount, as applicable, shall become effective as of the opening
of business on the day on which such change in the Applicable Margin or
Applicable Fee Amount, as applicable, becomes effective. The Agent will with
reasonable promptness notify the Company and the Banks of the effective date and
the amount of each such change, provided that any failure to do so shall not
--------
relieve the Company of any liability hereunder or provide any basis for any
claim by the Company or any Bank against the Agent.
(c) Each determination of an interest rate by the Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Company and
the Banks in the absence of manifest error.
(d) If any Reference Bank's Commitment shall terminate (otherwise than
on termination of all the Commitments), or for any reason whatsoever the
Reference Bank shall cease to be a Bank hereunder, that Reference Bank shall
thereupon cease to be a Reference Bank, and LIBOR shall be determined on the
basis of the rates as notified by the remaining Reference Banks.
(e) Each Reference Bank shall use its best efforts to furnish quotations
of rates to the Agent as contemplated hereby. If any of the Reference Banks
shall be unable or otherwise fails to supply such rates to the Agent upon its
request, the rate of interest shall be determined on the basis of the quotations
of the remaining Reference Banks or Reference Bank.
28
<PAGE>
2.11 Payments by the Company.
-----------------------
(a) All payments (including prepayments) to be made by the Company on
account of principal, interest, fees and other amounts required hereunder shall
be made without set-off or counterclaim and shall, except as otherwise expressly
provided herein, be made to the Agent for the ratable account of the Banks at
the Agent's Payment Office, in dollars and in immediately available funds, no
later than 10:00 a.m. (San Francisco time) on the date specified herein. The
Agent will promptly distribute to each Bank its Commitment Percentage (or other
applicable share as expressly provided herein) of such principal, interest, fees
or other amounts, in like funds as received. Any payment which is received by
the Agent later than 10:00 a.m. (San Francisco time) shall be deemed to have
been received on the immediately succeeding Business Day and any applicable
interest or fee shall continue to accrue.
(b) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be; subject to the provisions
set forth in the definition of "Interest Period" herein.
(c) Unless the Agent shall have received notice from the Company prior
to the date on which any payment is due to the Banks hereunder that the Company
will not make such payment in full, the Agent may assume that the Company has
made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, cause to be distributed to each Bank on such due date an amount
equal to the amount then due such Bank. If and to the extent the Company shall
not have made such payment in full to the Agent, each Bank shall repay to the
Agent on demand such amount distributed to such Bank, together with interest
thereon for each day from the date such amount is distributed to such Bank until
the date such Bank repays such amount to the Agent, at the Federal Funds Rate as
in effect for each such day.
2.12 Payments by the Banks to the Agent.
----------------------------------
(a) Unless the Agent shall have received notice from a Bank on the
Closing Date or, with respect to each Borrowing after the Closing Date, at least
one Business Day prior to the date of any proposed Borrowing that such Bank will
not make available to the Agent for the account of the Company the amount of
that Bank's Commitment Percentage of the Borrowing, the Agent may assume that
each Bank has made such amount available to the Agent in immediately available
funds by 11:00 a.m. (San Francisco time) on the borrowing date and the Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the Company on such date a corresponding
29
<PAGE>
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent in immediately available funds by 11:00 a.m. (San
Francisco time) and the Agent in such circumstances has made available to the
Company such amount, that Bank shall on the next Business Day following the date
of such Borrowing make such amount available to the Agent, together with
interest at the Federal Funds Rate for and determined as of each day during such
period. A certificate of the Agent submitted to any Bank with respect to amounts
owing under this subsection 2.12(a) shall be conclusive, absent manifest error.
If such amount is so made available, such payment to the Agent shall constitute
such Bank's Loan on the date of Borrowing for all purposes of this Agreement. If
such amount is not made available to the Agent on the next Business Day
following the date of such Borrowing, the Agent shall notify the Company of such
failure to fund and, upon demand by the Agent, the Company shall pay such amount
to the Agent for the Agent's account, together with interest thereon for each
day elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any date of Borrowing
shall not relieve any other Bank of any obligation hereunder to make a Loan on
the date of such Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Loan to be made by such other Bank on the date of any
Borrowing.
2.13 Sharing of Payments, Etc. If, other than as expressly contemplated
------------------------
elsewhere herein, any Bank shall obtain on account of the Loans made by it any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its Commitment Percentage of payments on
account of the Loans obtained by all the Banks, such Bank shall forthwith (a)
notify the Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause such
purchasing Bank to share the excess payment ratably with each of them; provided,
--------
however, that if all or any portion of such excess payment is thereafter
- - - -------
recovered from the purchasing Bank, such purchase shall to that extent be
rescinded and each other Bank shall repay to the purchasing Bank the purchase
price paid thereto together with an amount equal to such paying Bank's
Commitment Percentage (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off, but subject to Section 10.09)
with respect to such participation as fully as if such Bank were the direct
creditor
30
<PAGE>
of the Company in the amount of such participation. The Agent will keep records
(which shall be conclusive and binding in the absence of manifest error), of
participations purchased pursuant to this Section 2.13 and will in each case
notify the Banks following any such purchases.
ARTICLE IIIARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
3.01 Taxes.
-----
(a) Subject to subsection 3.01(g), any and all payments by the Company
to each Bank or the Agent under this Agreement shall be made free and clear of,
and without deduction or withholding for, any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Bank and the Agent, such taxes
(including income taxes or franchise taxes) as are imposed on or measured by
each Bank's net income by the jurisdiction or any political subdivision thereof
under the laws of which such Bank or the Agent, as the case may be, is organized
or maintains a Lending Office (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes").
(b) In addition, the Company shall pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Documents (hereinafter referred to as "Other Taxes").
(c) Subject to subsection 3.01(g), the Company shall indemnify and hold
harmless each Bank and the Agent for the full amount of Taxes or Other Taxes
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 3.01) paid by the Bank or the Agent and any liability
(including penalties, interest, additions to tax and expenses) arising therefrom
or with respect thereto, and relating to the transactions contemplated hereby,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days from the date
the Bank or the Agent makes written demand therefor.
(d) If the Company shall be required by law to deduct or withhold any
Taxes or Other Taxes from or in respect of any sum payable hereunder to any Bank
or the Agent, then, subject to subsection 3.01(g):
31
<PAGE>
(i) the sum payable shall be increased as necessary so that after making
all required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section 3.01) such Bank or the
Agent, as the case may be, receives an amount equal to the sum it would have
received had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings;
(iii) the Company shall pay the full amount deducted or withheld to the
relevant taxation authority or other authority in accordance with applicable
law; and
(iv) the Company shall also pay to each Bank, or the Agent for the
account of such Bank, at the time the sum payable is paid, all additional
amounts which the respective Bank specifies as necessary to preserve the after-
tax yield the Bank would have received if such Taxes or Other Taxes had not been
imposed. Such additional amounts required to be paid to such Bank shall be
computed by a formula,
(w)(t)(i)
-----------
y = l-w-t
where the terms are defined as follows:
y = amount of additional payment;
w = rate of Taxes or Other Taxes imposed with respect to the sum
payable;
t = combined U.S. federal and state income and franchise tax rate
applicable to the Bank; and
i = amount of the sum payable with respect to which such Taxes or Other
Taxes are imposed.
(e) Within 30 days after the date of any payment by the Company of Taxes
or Other Taxes, the Company shall furnish to the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence of
payment satisfactory to the Agent.
(f) Each Bank which is a foreign person (i.e., a person other than a United
States person for United States Federal income tax purposes) agrees that:
(i) it shall, no later than the Closing Date (or, in the case of a Bank
which becomes a party hereto pursuant to Section 10.07 after the Closing Date,
the date upon which the Bank becomes a party hereto) deliver to the Company
32
<PAGE>
through the Agent two accurate and complete signed originals of Internal Revenue
Service Form 4224 or any successor thereto ("Form 4224"), or two accurate and
complete signed originals of Internal Revenue Service Form 1001 or any successor
thereto ("Form 1001"), as appropriate, in each case indicating that the Bank is
on the date of delivery thereof entitled to receive payments of principal,
interest and fees under this Agreement free from withholding of United States
Federal income tax;
(ii) if at any time the Bank makes any changes necessitating a new form,
it shall with reasonable promptness deliver to the Company through the Agent in
replacement for, or in addition to, the forms previously delivered by it
hereunder, two accurate and complete signed originals of Form 4224; or two
accurate and complete signed originals of Form 1001, as appropriate, in each
case indicating that the Bank is on the date of delivery thereof entitled to
receive payments of principal, interest and fees under this Agreement free from
withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any event
(including the passing of time but excluding any event mentioned in (ii) above)
requiring a change in or renewal of the most recent Form 4224 or Form 1001
previously delivered by such Bank, deliver to the Company through the Agent two
accurate and complete original signed copies of Form 4224 or Form 1001 in
replacement for the forms previously delivered by the Bank; and
(iv) it shall, promptly upon the Company's reasonable request to that
effect, deliver to the Company such other forms or similar documentation as may
be required from time to time by any applicable law, treaty, rule or regulation
in order to establish such Bank's tax status for withholding purposes.
(g) The Company will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to subsection 3.01(d)
to any Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts would not have
arisen but for a failure by such Bank to comply with its obligations under
subsection 3.01(f) in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Company a Form 4224 in
respect of such Lending Office pursuant to subsection 3.01(f), and such Bank
shall not at any time be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of payments by the Company hereunder
for the account of such
33
<PAGE>
Lending Office for any reason other than a change in United States law or
regulations or in the official interpretation of such law or regulations by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of delivery of such Form
4224; or
(iii) if the Bank shall have delivered to the Company a Form 1001 in
respect of such Lending Office pursuant to subsection 3.01(f), and such Bank
shall not at any time be entitled to exemption from deduction or withholding of
United States Federal income tax in respect of payments by the Company hereunder
for the account of such Lending Office for any reason other than a change in
United States law or regulations or any applicable tax treaty or regulations or
in the official interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of delivery of such Form
1001.
(h) If, at any time, the Company requests any Bank to deliver any forms
or other documentation pursuant to subsection 3.01(f)(iv), then the Company
shall, on demand of such Bank through the Agent, reimburse such Bank for any
costs and expenses (including Attorney Costs) reasonably incurred by such Bank
in the preparation or delivery of such forms or other documentati on.
(i) If the Company is required to pay additional amounts to any Bank or
the Agent pursuant to subsection 3.01(d), then such Bank shall use its
reasonable best efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment by the Company which may thereafter accrue if such change in
the judgment of such Bank is not otherwise disadvantageous to such Bank.
(j) If any Bank or the Agent receives any refund from any taxing
authority of any Tax or Other Tax as to which the Company has indemnified such
Bank or the Agent (as the case may be) under subsection (c) of this Section, or
as to which the Company has made payment under subsection 3.01(d)(iii), due to a
mistake in its assessment, then such Bank or the Agent (as the case may be) will
promptly notify the Company of such refund and will reimburse the Company to the
extent of such refund or the amount of payment or indemnification made by the
Company, whichever is less.
3.02 Illegality.
----------
(a) If any Bank shall determine that the introduction of any Requirement
of Law or any change therein or in the interpretation or administration thereof
has made it unlawful, or that any central bank or other Governmental Authority
has
34
<PAGE>
asserted that it is unlawful, for any Bank or its Lending Office to make
Offshore Rate Loans, then, on notice thereof by the Bank to the Company through
the Agent, the obligation of the Bank to make Offshore Rate Loans shall be
suspended until the Bank shall have notified the Agent and the Company that the
circumstances giving rise to such determination no longer exists.
(b) If a Bank shall determine that it is unlawful to maintain any
Offshore Rate Loan, the Company shall prepay in full all Offshore Rate Loans of
the Bank then outstanding, together with interest accrued thereon, either on the
last day of the Interest Period thereof if the Bank may lawfully continue to
maintain such Offshore Rate Loans to such day, or immediately, if the Bank may
not lawfully continue to maintain such Offshore Rate Loans, together with any
amounts required to be paid in connection therewith pursuant to Section 3.04.
(c) If the Company is required to prepay any Offshore Rate Loan
immediately as provided in subsection 3.02(b), then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such repayment, a Reference Rate Loan.
3.03 Increased Costs and Reduction of Return.
---------------------------------------
(a) If any Bank shall determine that, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation or (ii)
the compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to such Bank of agreeing to make or making, funding or
maintaining any Offshore Rate Loans, then the Company shall be liable for, and
shall from time to time, upon demand therefor by such Bank (with a copy of such
demand to the Agent), pay to the Agent for the account of such Bank, additional
amounts as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof, or (iv) compliance by the Bank (or its
Lending Office) or any corporation controlling the Bank, with any Capital
Adequacy Regulation; affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
loans, credits or obligations under this Agreement, then, upon demand of such
Bank (with a copy to the Agent), the Company shall immediately pay to the Bank,
from time
35
<PAGE>
to time as specified by the Bank, additional amounts sufficient to
compensate the Bank for such increase.
3.04 Funding Losses. The Company agrees to reimburse each
--------------
Bank and to hold each Bank harmless from any loss, cost or expense which the
Bank may sustain or incur as a consequence of:
(a) any failure of the Company to make any payment or prepayment of
principal of any Offshore Rate Loan (including payments made after any
acceleration thereof);
(b) any failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion/ Continuation;
(c) any failure of the Company to make any prepayment after the Company
has given a notice in accordance with Section 2.06;
(d) any prepayment of an Offshore Rate Loan on a day which is not the
last day of the Interest Period with respect thereto; or
(e) any conversion of any Offshore Rate Loan to a Reference Rate Loan on
a day that is not the last day of the respective Interest Period pursuant to
subsection 2.04;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans hereunder or from
fees payable to terminate the deposits from which such funds were obtained.
Solely for purposes of calculating amounts payable by the Company to the Banks
under this Section 3.04, each Offshore Rate Loan made by a Bank (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the average interbank rate used in determining
LIBOR for such Offshore Rate Loan by a matching deposit or other borrowing in
the interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Offshore Rate Loan is in fact so funded.
3.05 Inability to Determine Rates. If the Majority Banks shall have
----------------------------
determined that for any reason adequate and reasonable means do not exist for
ascertaining LIBOR for any requested Interest Period with respect to a proposed
Offshore Rate Loan or that LIBOR applicable pursuant to subsection 2.08(a) for
any requested Interest Period with respect to a proposed Offshore Rate Loan does
not adequately and fairly reflect the cost to such Banks of funding such Loan,
the Agent will forthwith give notice of such determination to the Company and
each Bank. Thereafter, the obligation of the Banks to make or maintain Offshore
Rate Loans hereunder shall be suspended until the Agent upon the instruction of
the Majority Banks
36
<PAGE>
revokes such notice in writing. Upon receipt of such notice, the Company may
revoke any Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such notice, the Banks shall
make, convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued as Reference Rate Loans instead of
Offshore Rate Loans.
3.06 Reserves on Offshore Rate Loans. The Company shall pay to each
-------------------------------
Bank, as long as such Bank shall be required under regulations of the
Federal Reserve Board to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional costs on the unpaid principal amount of
each Offshore Rate Loan equal to actual costs of such reserves allocated to such
Loan by the Bank (as determined by the Bank in good faith, which determination
shall be conclusive), payable on each date on which interest is payable on such
Loan provided the Company shall have received at least fifteen days' prior
written notice (with a copy to the Agent) of such additional interest from the
Bank. If a Bank fails to give notice fifteen days prior to the relevant Interest
Payment Date, such additional interest shall be payable fifteen days from
receipt of such notice.
3.07 Certificates of Banks. Any Bank claiming reimbursement or
---------------------
compensation pursuant to this Article III shall deliver to the Company
(with a copy to the Agent) a certificate setting forth in reasonable detail the
amount payable to the Bank hereunder and such certificate shall be conclusive
and binding on the Company in the absence of manifest error.
3.08 Survival. The agreements and obligations of the Company in
--------
this Article III shall survive the payment of all other Obligations.
ARTICLE IVARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.01 Conditions of Initial Loans. The effectiveness of this Agreement and
---------------------------
the obligation of each Bank to make its first Loan hereunder is subject to the
condition that the Agent shall have received on or before the Closing Date all
of the following, in form and substance satisfactory to the Agent, each Bank and
their respective counsel and in sufficient copies for each Bank:
(a) Amended and Restated Credit Agreement. This Agreement executed by
-------------------------------------
the Company, the Agent and each of the Banks;
37
<PAGE>
(b) Resolutions; Incumbency. Each of the following:
-----------------------
(i) copies of the resolutions of the board of directors of the Company
approving and authorizing the execution, delivery and performance by the Company
of this Agreement and the other Loan Documents to be delivered hereunder, and
authorizing the borrowing of the Loans, certified as of the Closing Date by the
Secretary or an Assistant Secretary of the Company; and
(ii) a certificate of the Secretary or Assistant Secretary of the
Company, certifying the names and true signatures of the officers of the Company
authorized to execute and deliver, as applicable, this Agreement, and all other
Loan Documents to be delivered hereunder;
(c) Certificate of Incorporation; By-laws and Good Standing. Each of
-------------------------------------------------------
the following documents:
(i) the articles or certificate of incorporation of the Company as in
effect on the Closing Date, certified by the Secretary of State of the state of
incorporation of the Company as of a recent date and by the Secretary or
Assistant Secretary of the Company as of the Closing Date and the bylaws of the
Company as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Company as of the Closing Date; and
(ii) a good standing certificate for the Company from the Secretary of
State of its state of incorporation and each state where the Company is
qualified to do business as a foreign corporation as of a recent date, together
with bring-down certificate by telex or telefacsimile for the states of
California, Delaware and Texas, dated the Closing Date;
(d) Legal Opinion. An opinion of Bronson, Bronson & McKinnon, counsel to
the Company and addressed to the Agent, Co-Agent and the Banks, substantially
in the form of Exhibit G;
---------
(e) Payment of Fees. The Company shall have paid all costs,
---------------
accrued and unpaid fees and expenses to the extent then due and payable on
the Closing Date, together with Attorney Costs to the extent invoiced prior
to or on the Closing Date, together with such additional amounts of
Attorney Costs as shall constitute a reasonable estimate of Attorney Costs
incurred or to be incurred through the closing proceedings, provided that
such estimate shall not thereafter preclude final settling of accounts
between the Company and the Agent; including (i) any such costs, fees and
expenses arising under or referenced in Sections 2.09, 3.01 and 10.04, and
(ii) facility fees which have accrued up to the Closing Date, payable
pursuant to Section 2.11(b) of the Prior Credit Agreement to the Agent for
the account of each Bank which is a party thereto, which payment
38
<PAGE>
shall fully satisfy and extinguish the Company's obligation to pay facility fees
to such Banks.
(f) Certificate. A certificate signed by a Responsible Officer,
-----------
dated as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V are true
and correct on and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would result from the
initial Borrowing; and
(iii) except as specifically disclosed in the press release dated July
8, 1994, attached as Schedule 4.01, there has occurred since June 26, 1994, no
-------------
event or circumstance that reasonably could be expected to have a Material
Adverse Effect;
(g) Financial Statements. A certified copy of financial
--------------------
statements of the Company and its Subsidiaries referred to in Section 5.11;
(h) Other Documents. Such other approvals, opinions or
---------------
documents as the Agent or any Bank may reasonably request.
4.02 Conditions to All Borrowings. The obligation of each Bank to make any
----------------------------
Loan to be made by it hereunder (including its initial Loan) is subject to the
satisfaction of the following conditions precedent on the relevant borrowing
date:
(a) Notice of Borrowing. In the case of any Loan, the Agent shall have
-------------------
received (with, in the case of the initial Loan only, a copy for each Bank) a
Notice of Borrowing;
(b) Continuation of Representations and Warranties. The representations and
----------------------------------------------
warranties made by the Company contained in Sections 5.01, 5.02, 5.03,
5.04, 5.06, 5.08, 5.09, 5.10, 5.11, 5.13, 5.14, 5.15, 5.17, 5.18, 5.19 and
5.20 shall be true and correct on and as of such borrowing date with the
same effect as if made on and as of such borrowing date (except to the
extent such representations and warranties expressly refer to an earlier
date) and the representations and warranties contained in Sections 5.05,
5.07, 5.12 and 5.16 shall be true and correct on and as of such borrowing
date with the same effect as if made on and as of such borrowing date
except for any changes since the Closing Date which do not or would
reasonably be expected not to have a Material Adverse Effect; and
(c) No Existing Default. No Default or Event of Default
-------------------
shall exist or shall result from such Borrowing.
39
<PAGE>
Each Notice of Borrowing submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the date of each
such notice or request and as of the date of each Borrowing relating thereto,
that the conditions in Section 4.02 are satisfied.
ARTICLE VARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power. The Company and each of its Material
-----------------------------
Subsidiaries:
(a) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its business
and to execute, deliver, and perform its obligations under, the Loan Documents;
(c) is duly qualified as a foreign corporation, licensed and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification; and
(d) is in compliance with all Requirements of Law; except, in each case
referred to in clause (c) or clause (d), to the extent that the failure to
do so could not have a Material Adverse Effect.
5.02 Corporate Authorization; No Contravention. The execution, delivery and
-----------------------------------------
performance by the Company of this Agreement and each other Loan Document to
which it is party, have been duly authorized by all necessary corporate action,
and do not and will not:
(a) contravene the terms of any of the Company's Organization
Documents;
(b) conflict with or result in any breach or contravention of, or the
creation of any Lien under, any document evidencing any Contractual
Obligation to which the Company is a party or any order, injunction, writ
or decree of any Governmental Authority to which the Company or its
Property is subject; or
(c) violate any Requirement of Law.
40
<PAGE>
5.03 Governmental Authorization. No approval, consent, exemption,
--------------------------
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company of
the Agreement or any other Loan Document.
5.04 Binding Effect. This Agreement and each other Loan Document to which
--------------
the Company is a party constitute the legal, valid and binding obligations of
the Company, enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
5.05 Litigation. Except as specifically disclosed in Schedule
---------- --------
5.05, there are no actions, suits, proceedings, claims or disputes pending, or
- - - ----
to the best knowledge of the Company, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against the
Company, or its Subsidiaries or any of their respective Properties which:
(a) purport to affect or pertain to this Agreement, or any other Loan
Document, or any of the transactions contemplated hereby or thereby; or
(b) if determined adversely to the Company, or its Subsidiaries, would
reasonably expected to have a Material Adverse Effect. No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority purporting to enjoin or restrain the
execution, delivery and performance of this Agreement or any other Loan
Document, or directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.
5.06 No Default. No Default or Event of Default exists or would result
----------
from the incurring of any Obligations by the Company. Neither the Company nor
any of its Subsidiaries is in default under or with respect to any Contractual
Obligation in any respect which, individually or together with all such
defaults, would reasonably be expected to have a Material Adverse Effect.
5.07 ERISA Compliance.
----------------
(a) Schedule 5.07 lists all Plans and separately identifies Plans
intended to be Qualified Plans and Multiemployer Plans.
(b) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state law,
including all requirements under the
41
<PAGE>
Code or ERISA for filing reports (which are true and correct in all material
respects as of the date filed), and benefits have been paid in accordance with
the provisions of the Plan.
(c) Each Qualified Plan and Multiemployer Plan has been determined by
the IRS to qualify under Section 401 of the Code, and the trusts created
thereunder have been determined to be exempt from tax under the provisions of
Section 501 of the Code, and to the best knowledge of the Company nothing has
occurred which would cause the loss of such qualification or tax-exempt status.
(d) Except as specifically disclosed in Schedule 5.07, there is no
-------------
outstanding liability under Title IV of ERISA with respect to any Plan
maintained or sponsored by the Company or any ERISA Affiliate, nor with respect
to any Plan to which the Company or any ERISA Affiliate contributes or is
obligated to contribute.
(e) Except as specifically disclosed in Schedule 5.07, no Plan subject
-------------
to Title IV of ERISA has any Unfunded Pension Liability.
(f) Except as specifically disclosed in Schedule 5.07, no member of the
-------------
Controlled Group has ever represented, promised or contracted (whether in oral
or written form) to any current or former employee (either individually or to
employees as a group) that such current or former employee(s) would be provided,
at any cost to any member of the Controlled Group, with life insurance or
employee welfare plan benefits (within the meaning of section 3(1) of ERISA)
following retirement or termination of employment. To the extent that any member
of the Controlled Group has made any such representation, promise or contract,
such member has expressly reserved the right to amend or terminate such life
insurance or employee welfare plan benefits with respect to claims not yet
incurred.
(g) All members of the Controlled Group have complied in all material
respects with the notice and continuation coverage requirements of Section 4980B
of the Code.
(h) Except as specifically disclosed in Schedule 5.07, no ERISA Event
-------------
has occurred or is reasonably expected to occur with respect to any Plan.
(i) There are no pending or, to the best knowledge of the Company,
threatened claims, actions or lawsuits, other than routine claims for benefits
in the usual and ordinary course, asserted or instituted against (i) any Plan
maintained or sponsored by the Company or its assets, (ii) any member of the
Controlled Group with respect to any Qualified Plan, or (iii) any fiduciary with
respect to any Plan for which the Company may be directly or indirectly liable,
through indemnification obligations or otherwise.
42
<PAGE>
(j) Except as specifically disclosed in Schedule 5.07, neither the
-------------
Company nor any ERISA Affiliate has incurred nor reasonably expects to incur (i)
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan or (ii) any liability under
Title IV of ERISA (other than premiums due and not delinquent under Section 4007
of ERISA) with respect to a Plan.
(k) Except as specifically disclosed in Schedule 5.07, neither the
-------------
Company nor any ERISA Affiliate has transferred any Unfunded Pension Liability
to a Person other than the Company or an ERISA Affiliate or otherwise engaged in
a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(l) No member of the Controlled Group has engaged, directly or
indirectly, in a non-exempt prohibited transaction (as defined in Section 4975
of the Code or Section 406 of ERISA) in connection with any Plan which has a
reasonable likelihood of having a Material Adverse Effect.
5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are
-----------------------------------
intended to be and shall be used solely for the purposes set forth in and
permitted by Section 6.11, and are intended to be and shall be used in
compliance with Section 7.06.
5.09 Title to Properties. The Company and each of its Material
-------------------
Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, all real Property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, have a Material Adverse Effect. As of the
Closing Date, the Property of the Company and its Material Subsidiaries is
subject to no Liens, other than Permitted Liens.
5.10 Taxes. The Company and its Subsidiaries have filed all Federal
-----
and other material tax returns and reports required to be filed, and have paid
all Federal and other material taxes, assessments, fees and other governmental
charges levied or imposed upon them or their Properties, income or assets
otherwise due and payable, except those which are being contested in good faith
by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP and no Notice of Lien has been filed or recorded. There is
no proposed tax assessment against the Company or any of its Subsidiaries which
would, if the assessment were made, have a Material Adverse Effect.
43
<PAGE>
5.11 Financial Condition.
-------------------
(a) The unaudited consolidated statements of financial condition of
the Company and its Subsidiaries for the period ended June 26, 1994, and the
related consolidated statements of operations, shareholders' equity and cash
flows for the fiscal quarter ended on that date:
(i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein;
(ii) are complete, accurate and fairly present the financial
condition of the Company and its Subsidiaries as of the date thereof and
results of operations for the period covered thereby; and
(iii) except as specifically disclosed in Schedule 5.11, show all
-------------
material indebtedness and other liabilities, direct or contingent of the
Company and its consolidated Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and contingent obligations.
(b) Except as specifically disclosed in the press release dated July 8,
1994, attached as Schedule 4.01, since June 26, 1994, there has been no event or
-------------
circumstances that reasonably could be expected to have a Material Adverse
Effect.
5.12 Environmental Matters.
---------------------
(a) Except as specifically disclosed in Schedule 5.12, the on-going
-------------
operations of the Company and each of its Subsidiaries comply in all respects
with all Environmental Laws, except such non-compliance which would not (if
enforced in accordance with applicable law) result in liability in excess of
$50,000,000 in the aggregate.
(b) To the best knowledge of the Company after diligent inquiry and
investigation, and except as specifically disclosed in Schedule 5.12, the
-------------
Company and each of its Subsidiaries has obtained all licenses, permits,
authorizations and registrations required under any Environmental Law
("Environmental Permits") and necessary for its ordinary course operations, all
such Environmental Permits are in good standing, and the Company and each of its
Subsidiaries is in compliance with all material terms and conditions of such
Environmental Permits.
(c) Except as specifically disclosed in Schedule 5.12, none of the
-------------
Company, its Subsidiaries, their Property or operations is subject to any
outstanding written order from or agreement with any Governmental Authority nor
subject to any
44
<PAGE>
judicial or docketed administrative proceeding, respecting any Environmental
Law, Environmental Claim or Hazardous Material.
(d) Except as specifically disclosed in Schedule 5.12, there are no
-------------
Hazardous Materials or other conditions or circumstances existing with respect
to any Property, or arising from operations prior to the Closing Date, of the
Company or any of its Subsidiaries that would reasonably be expected to give
rise to Environmental Claims with a potential liability of the Company and its
Subsidiaries in excess of $50,000,000 in the aggregate for any such condition,
circumstance or Property. In addition, to the best knowledge of the Company
after diligent inquiry and investigation, (i) neither the Company nor any of its
Subsidiaries has any underground storage tanks (x) that are not properly
registered or permitted under applicable Environmental Laws, or (y) that are
leaking or discharging Hazardous Materials off-site, and (ii) the Company and
its Subsidiaries have notified all of their employees of the existence, if any,
of any health hazard arising from the conditions of their employment and have
met all notification requirements under Title III of CERCLA and all other
Environmental Laws.
5.13 Regulated Entities. None of the Company, any Person controlling the
------------------
Company, or any Subsidiary of the Company, is (a) an "Investment Company" within
the meaning of the Investment Company Act of 1940; or (b) subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness .
5.14 No Burdensome Restrictions. As of the Closing Date, neither the
--------------------------
Company nor any of its Subsidiaries is a party to or bound by any Contractual
Obligation, or subject to any charter or corporate restriction, or any
Requirement of Law, which could reasonably be expected to have a Material
Adverse Effect.
5.15 Labor Relations. There are no strikes, lockouts or other labor
---------------
disputes against the Company or any of its Subsidiaries, or, to the best of the
Company's knowledge, threatened against or affecting the Company or any of its
Subsidiaries, and no significant unfair labor practice complaint is pending
against the Company or any of its Subsidiaries or, to the best knowledge of the
Company, threatened against any of them before any Governmental Authority.
5.16 Copyrights, Patents, Trademarks and Licenses, etc. The Company or
-------------------------------------------------
its Material Subsidiaries own or are licensed or otherwise have the right to
use all of the patents, trademarks, service marks, trade names, copyrights,
franchises, authorizations and other rights that are reasonably necessary for
the operation of their respective businesses, without conflict with the rights
of any other Person. To the best
45
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knowledge of the Company, no slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed by the Company or any of its Subsidiaries infringes
upon any rights held by any other Person; except as specifically disclosed in
Schedule 5.05, no claim or litigation regarding any of the foregoing is pending
- - - -------------
or threatened, and no patent, invention, device, application, principle or any
statute, law, rule, regulation, standard or code is pending or, to the knowledge
of the Company, proposed, which, in either case, would reasonably be expected to
result in a Material Adverse Effect.
5.17 Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries other than those specifically disclosed in part (a) of Schedule
--------
5.17 hereto and has no equity investments in excess of $500,000 in any other
- - - ----
corporation or entity other than those specifically disclosed in part (b) of
Schedule 5.17.
- - - -------------
5.18 Capitalization. As of the Closing Date, the authorized, issued and
--------------
outstanding capital stock of the Company (including securities convertible into
or exchangeable for capital stock of the Company), and any outstanding
Subordinated Debt are as set forth in Schedule 5.18 hereto.
-------------
5.19 Insurance. The Properties of the Company and its Subsidiaries are
---------
insured with insurance companies which the Company reasonably believes are
financially sound and reputable, in such amounts, with such deductibles and
covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar Properties in localities where the Company or such
Subsidiary operates.
5.20 Full Disclosure. None of the representations or warranties made by
---------------
the Company or any of its Subsidiaries in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in each exhibit, report, statement or certificate furnished
by or on behalf of the Company or any of its Subsidiaries in connection with the
Loan Documents, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading.
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
The Company covenants and agrees that, so long as any Bank shall have any
Commitment hereunder, or any Loan or other Obligation shall remain unpaid or
unsatisfied, unless the Majority Banks waive compliance in writing:
46
<PAGE>
6.01 Financial Statements. The Company shall deliver to the Agent in form
--------------------
and detail satisfactory to the Agent and the Banks, with sufficient copies for
each Bank which the Agent shall promptly forward to the Banks:
(a) as soon as available, but not later than 90 days after the end of
each fiscal year, a copy of the audited consolidated balance sheet of the
Company as at the end of such year and the related consolidated statements of
income, shareholders' equity and cash flows for such fiscal year, setting forth
in each case in comparative form the figures for the previous year, and
accompanied by the opinion of Ernst & Young or another nationally-recognized
independent public accounting firm which report shall state that such
consolidated financial statements present fairly the financial position for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years. Such opinion shall not be qualified or limited because of a
restricted or limited examination by the independent auditor of any material
portion of the Company's or any Subsidiary's records;
(b) as soon as available, but not later than 45 days after the end of
each of the first three fiscal quarters of each year a copy of the unaudited
consolidated balance sheet of the Company and its consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of income,
shareholders' equity and cash flows for the period commencing on the first day
and ending on the last day of such quarter, together with comparative year-to-
date figures for all preceding quarters in such year, and certified by an
appropriate Responsible Officer as being complete and correct and fairly
presenting, in accordance with GAAP, the financial position and the results of
operations of the Company and the Subsidiaries;
(c) not later than 45 days after the end of each of the first three
fiscal quarters of each year, a copy of the unaudited consolidating balance
sheets of the Company and each of its Subsidiaries, and the related
consolidating statements of income, shareholders' equity and cash flow for such
quarter, all certified by an appropriate Responsible Officer of the Company as
having been used (with changes thereto undertaken in good faith and in the
ordinary course of preparation of financial statements and which are not,
individually or in the aggregate, material) in connection with the preparation
of the financial statements referred to in paragraph (b) of this Section 6.01;
and
(d) not later than 90 days after the end of each fiscal year, an
unaudited consolidating balance sheet of the Company and each of its
Subsidiaries as at the end of such fiscal year and the related consolidating
statements of income, stockholders' equity and cash flows for such fiscal year,
all in reasonable detail certified by an appropriate Responsible Officer as
having been used (with changes thereto undertaken in
47
<PAGE>
good faith and in the ordinary course of preparation of financial statements and
which are not, individually or in the aggregate, material) in connection with
the preparation of the financial statements referred to in paragraph (a) of this
Section 6.01
6.02 Certificates; Other Information. The Company shall furnish to the
-------------------------------
Agent, with sufficient copies for each Bank which the Agent shall promptly
forward to the Banks:
(a) concurrently with the delivery of the financial statements
referred to in subsection 6.01(a) above, a letter in form and substance
satisfactory to the Majority Banks from the independent certified public
accountants reporting on such financial statements stating that the Banks are
entitled to rely on the information contained in the financial statements
provided;
(b) concurrently with the delivery of the financial statements
referred to in subsections 6.01(a), (b) and (c) above, a certificate of a
Responsible Officer in the form of Exhibit D (i) stating that, to the best of
---------
such officer's knowledge, the Company, during such period, has observed or
performed all of its covenants and other agreements, and satisfied every
condition contained in this Agreement to be observed, performed or satisfied by
it, and that such officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate, and (ii) showing in detail the
calculations supporting such statement in respect of Sections 7.10, 7.11, 7.12
and 7.13;
(c) within 10 days after the same are sent, copies of all financial
statements and reports which the Company sends to its shareholders, and
promptly, but in any event within 10 days after the same are filed, copies of
all financial statements and regular, periodical or special reports (including
Forms 10-K, 10-Q and 8-K) which the Company may make to, or file with, the
Securities and Exchange Commission or any successor or similar Governmental
Authority; an d
(d) promptly, such additional financial and other information as the
Agent, at the request of any Bank, may from time to time reasonably request.
6.03 Notices. The Company shall promptly notify the Agent and
-------
each Bank:
(a) of the occurrence of any Default or Event of Default, and of the
occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default;
(b) of (i) any breach or non-performance of, or any default under, any
Contractual Obligation of the Company or any
48
<PAGE>
of its Subsidiaries which could result in a Material Adverse Effect; and (ii)
any dispute, litigation, investigation, proceeding or suspension which may exist
at any time between the Company or any of its Subsidiaries and any Governmental
Authority other than as disclosed on Schedule 5.05 attached hereto;
(c) of the commencement of, or any material development in, any
litigation or proceeding affecting the Company or any Subsidiary (i) in which
the amount of damages claimed is $25,000,000 (or its equivalent in another
currency or currencies) or more, (ii) in which injunctive or similar relief is
sought and which, if adversely determined, would reasonably be expected to have
a Material Adverse Effect, or (iii) in which the relief sought is an injunction
or other stay of the performance of this Agreement or any Loan Document;
(d) upon, but in no event later than 10 days after, becoming aware of
(i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Company or
any Subsidiary or any of their Properties pursuant to any applicable
Environmental Laws, (ii) all other Environmental Claims, and (iii) any
environmental or similar condition on any real property adjoining or in the
vicinity of the property of the Company or any Subsidiary that could, based on
the information which has come to the attention of the Company, reasonably be
anticipated to cause such property or any part thereof to be subject to any
restrictions on the ownership, occupancy, transferability or use of such
property under any Environmental Laws;
(e) of any other litigation or proceeding affecting the Company or any
of its Subsidiaries which the Company would be required to report to the SEC
pursuant to the Exchange Act, within four days after reporting the same to the
SEC;
(f) of any of the following ERISA events affecting the Company or any
member of its Controlled Group (but in no event more than 10 days after such
event), together with a copy of any notice with respect to such event that may
be required to be filed with a Governmental Authority and any notice delivered
by a Governmental Authority to the Company or any member or its Controlled Group
with respect to such event:
(i) an ERISA Event;
(ii) the adoption of any new Plan that is subject to Title IV of
ERISA or section 412 of the Code by any member of the Controlled Group;
(iii) the adoption of any amendment to a Plan that is subject to
Title IV of ERISA or section 412 of the Code, if such amendment results in a
material increase in benefits or unfunded liabilities; or
49
<PAGE>
(iv) the commencement of contributions by any member of the
Controlled Group to any Plan that is subject to Title IV of ERISA or section 412
of the Code;
(g) any Material Adverse Effect subsequent to the date of the most recent
audited financial statements of the Company delivered to the Banks pursuant to
subsection 6.01(a);
(h) of any significant change in accounting policies or financial
reporting practices or any other change required to be reported to the SEC;
(i) of any labor controversy resulting in or threatening to result
in any strike, work stoppage, boycott, shutdown or other labor disruption
against or involving the Company or of its Subsidiaries;
(j) of any Change in Control, or the entry by the Company or any of its
Subsidiaries, or by any other Person of which the Company becomes aware into any
agreement, transaction or arrangement that is intended to, or would reasonably
be expected to, result in a Change in Control; and
(k) upon, but in no event later than five Business Days after the date of
promulgation thereof by such rating agency, of any change in the Applicable
Rating by S&P or Moody's that would change the Applicable Margin or Applicable
Fee Amount.
Each notice pursuant to this Section shall be accompanied by a written
statement by a Responsible Officer of the Company setting forth details of the
occurrence referred to therein, the provisions of this Agreement affected, and
stating what action the Company proposes to take with respect thereto. Each
notice under subsection 6.03(a) shall describe with particularity the clause or
provision of this Agreement or other Loan Document that has been breached or
violated.
6.04 Preservation of Corporate Existence, Etc. The Company shall and shall
----------------------------------------
cause each of its Subsidiaries to:
(a) preserve and maintain in full force and effect its corporate
existence and good standing under the laws of its state or jurisdiction of
incorporation, except as permitted by Section 7.03(b);
(b) preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary or
desirable in the normal conduct of its business except in connection with
transactions expressly permitted by Section 7.03 and sales of assets expressly
permitted by Section 7.02;
50
<PAGE>
(c) use its reasonable efforts, in the Ordinary Course of Business, to
preserve its business organization and preserve the goodwill and business of the
customers, suppliers and others having material business relations with it; and
(d) preserve or renew all of its registered trademarks, trade names and
service marks, the non-preservation of which would reasonably be expected to
have a Material Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, and shall cause
-----------------------
each of its Subsidiaries to maintain, and preserve all its Property which is
used or useful in its business in good working order and condition, ordinary
wear and tear excepted and make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so would not have a Material
Adverse Effect, except as permitted by Section 7.02. The Company shall use the
standard of care typical in the industry in the operation of its facilities.
6.06 Insurance. The Company shall maintain, and shall cause each
---------
Subsidiary to maintain, with independent insurers which the Company reasonably
believes are financially sound and reputable, insurance with respect to its
Properties and business against loss or damage of the kinds customarily insured
against by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by such
other Persons.
6.07 Payment of Obligations. The Company shall, and shall cause its
----------------------
Subsidiaries to, pay and discharge as the same shall become due and payable, all
their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental charges or levies
upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings and adequate reserves in accordance with GAAP
are being maintained by the Company or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien upon
its Property; and
(c) all Indebtedness, as and when due and payable, but subject to any
subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.
6.08 Compliance with Laws. The Company shall comply, and shall cause each
--------------------
of its Subsidiaries to comply, in all material respects with all Requirements of
Law of any Governmental Authority having jurisdiction over it or its business
(including the Federal Fair Labor Standards Act), except such as may be
contested in good faith or as to which a bona fide dispute may exist.
51
<PAGE>
6.09 Inspection of Property and Books and Records. The Company shall
--------------------------------------------
maintain and shall cause each of its Subsidiaries to maintain, proper books of
record and account, in which full, true and correct entries in conformity with
GAAP consistently applied shall be made of all financial transactions and
matters involving the assets and business of the Company and such Subsidiaries.
The Company shall permit, and shall cause each of its Subsidiaries to permit,
representatives of the Agent or any Bank to visit and inspect any of their
respective Properties, to examine their respective corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss their respective affairs, finances and accounts with their respective
directors, officers, and independent public accountants, all at the expense of
the Company and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Company; provided, however, when an Event of Default exists the Agent or any
-------- -------
Bank may visit and inspect at the expense of the Company such Properties at any
time during business hours and without advance notice.
6.10 Environmental Laws. The Company shall, and shall cause each of its
------------------
Subsidiaries to, conduct its operations and keep and maintain its Property in
compliance with all Environmental Laws.
6.11 Use of Proceeds. The Company shall use the proceeds of the Loans for
---------------
working capital and other general corporate purposes not in contravention of any
Requirement of Law.
ARTICLE VIIARTICLE VII
NEGATIVE COVENANTS
------------------
The Company hereby covenants and agrees that, so long as any Bank shall
have any Commitment hereunder, or any Loan or other Obligation shall remain
unpaid or unsatisfied, unless the Majority Banks waive compliance in writing:
7.01 Limitation on Liens. The Company shall not, and shall not suffer or
-------------------
permit any of its Subsidiaries to, directly or indirectly, make, create, incur,
assume or suffer to exist any Lien upon or with respect to any part of its
Property, whether now owned or hereafter acquired, other than the following
("Permitted Liens"):
(a) any Lien existing on the Property of the Company or its
Subsidiaries on the Closing Date and set forth in Schedule 7.01 securing
-------------
Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable
52
<PAGE>
without penalty, or to the extent that non-payment thereof is permitted by
Section 6.07, provided that no Notice of Lien has been filed or recorded;
(d) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's or other similar Liens arising in the Ordinary Course of Business
which are not delinquent or remain payable without penalty or which are being
contested in good faith and by appropriate proceedings, which proceedings have
the effect of preventing the forfeiture or sale of the Property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges
or deposits required in the Ordinary Course of Business in connection with
workers' compensation, unemployment insurance and other social security
legislation;
(f) Liens on the Property of the Company or any of its Subsidiaries
securing (i) the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, (ii) obligations on surety and appeal
bonds, and (iii) other obligations of a like nature; in each case, incurred in
the Ordinary Course of Business, provided all such Liens in the aggregate would
not (even if enforced) cause a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens, provided
that the enforcement of such Liens is effectively stayed;
(h) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the Ordinary Course of Business which do not in any
case materially detract from the value of the Property subject thereto or
interfere with the ordinary conduct of the businesses of the Company and its
Subsidiaries on such Property;
(i) Liens on assets of corporations which become Subsidiaries after the
date of this Agreement, provided, however, that such Liens existed at the time
-------- -------
the respective corporations became Subsidiaries and were not created in
anticipation thereof;
(j) Purchase money security interests on any Property acquired or held
by the Company or its Subsidiaries in the Ordinary Course of Business, securing
Indebtedness incurred or assumed for the purpose of financing all or any part of
the cost of acquiring such Property; provided that (i) any such Lien attaches to
-------- ----
such Property concurrently with or within 20 days after the acquisition thereof,
(ii) such Lien attaches solely to the Property so acquired in such transaction,
and (iii) the principal amount of the Indebtedness secured thereby does not
exceed 100% of the cost of such Property; and
53
<PAGE>
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
-------- ----
dedicated cash collateral account and is not subject to restrictions against
access by the Company in excess of those set forth by regulations promulgated by
the Federal Reserve Board, and (ii) such deposit account is not intended by the
Company or any of its Subsidiaries to provide collateral to the depository
institution.
7.02 Disposition of Assets. The Company shall not, and shall not suffer or
---------------------
permit any of its Subsidiaries to, directly or indirectly, sell, assign, lease,
convey, transfer or otherwise dispose of (whether in one or a series of
transactions) any Property (including accounts and notes receivable (with or
without recourse) and equipment sale-leaseback transactions) or enter into any
agreement to do any of the foregoing, except:
(a) dispositions of inventory, or used, out-moded, worn-out or surplus
equipment, all in the Ordinary Course of Business;
(b) the sale of equipment to the extent that such equipment is exchanged
for credit against the purchase price of similar replacement equipment, or the
proceeds of such sale are reasonably promptly applied to the purchase price of
such replacement equipment; and
(c) dispositions not otherwise permitted hereunder which are made for
fair market value; provided, that (i) at the time of any disposition, no Default
--------
or Event of Default shall exist or shall result from such disposition, (ii) the
aggregate sales price from any disposition pursuant to a sale-leaseback
transaction shall be paid in cash, (iii) sale-leaseback transactions shall only
be permitted with respect to real property and equipment, and (iv) the aggregate
fair market value of all assets (excluding real property and equipment subject
to sale-leaseback transactions) so sold by the Company and its Subsidiaries,
together with all other sales under this subsection (c) since the Closing Date,
shall not exceed in the aggregate 20% of the Company's Consolidated Tangible Net
Worth as calculated immediately prior to such disposition.
Notwithstanding subsection 7.02(c) above, the disposition of accounts receivable
shall not be permitted.
7.03 Consolidations and Mergers. The Company shall not, and shall not
--------------------------
suffer or permit any of its Subsidiaries to, merge, consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets (whether
54
<PAGE>
now owned or hereafter acquired) to or in favor of any Person, except:
(a) any Subsidiary of the Company may merge with the Company, provided
that the Company shall be the continuing or surviving corporation, or with any
one or more Subsidiaries of the Company, provided that if any transaction shall
be between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation; and
(b) any Subsidiary of the Company may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to the Company or another
Wholly-Owned Subsidiary of the Company.
7.04 Loans and Investments. The Company shall not purchase or acquire, or
---------------------
suffer or permit any of its Subsidiaries to purchase or acquire, or make any
commitment therefor, any capital stock, equity interest, all or substantially
all assets, or obligations or other securities of or any interest in, any
Person, or make any advance, loan, extension of credit or capital contribution
to or any other investment in, any Person including any Affiliate of the Company
(together, "Investments"), except for:
(a) Investments in Cash Equivalents;
(b) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the Ordinary
Course of Business;
(c) Investments (other than for the purpose of any Acquisition) by the
Company in or to any of its Wholly-Owned Subsidiaries or by any of its Wholly-
Owned Subsidiaries in or to another of the Company's Wholly-Owned Subsidiaries;
(d) Investments incurred in order to consummate Acquisitions otherwise
permitted herein, provided that (i) the book value of such Investments for the
--------
Company and its Subsidiaries on a consolidated basis, excluding value provided
by the Company in the form of the Company's capital stock with regard to any
single Acquisition shall not exceed at the time of such investment 10% of
Consolidated Tangible Net Worth as calculated immediately prior to such
Acquisition, (ii) such Acquisitions are of Persons or businesses in the
Company's lines of business or provide vertical integration, (iii) such
Acquisitions are undertaken in accordance with all applicable Requirements of
Law, (iv) (x) if any Person or business so acquired (the "Acquiree") is subject
to Section 12 of the Exchange Act or subject to the requirements of Section
15(d) of such Act, the prior, effective written consent of the board of
directors or equivalent governing body of the Acquiree is obtained and delivered
to the Agent, or (y) if the Acquiree does not meet the qualifications set forth
in subclause (x) of this
55
<PAGE>
clause (iv), the prior effective written consent of the board of directors or
equivalent governing body and the percent of any and all classes of stock or
other equity of such Acquiree the consent of which, notwithstanding any
provisions in the Organization Documents of the Acquiree to the contrary, is
required by applicable statute to consummate the Acquisition, is obtained and
delivered to the Agent, and (v) such Acquisition shall not result in any Default
or Event of Default; or
(e) Investments of not more than $175,000,000 in Fujitsu-AMD
Semiconductor Limited; or
(f) other Investments not described above and that are not prohibited
elsewhere in this Agreement, to the extent such Investments are not used for
purposes of any Acquisition and do not exceed at any one time the sum of (i)
$150,000,000; (ii) 50 percent of the after-tax earnings net of after-tax losses
of the Company, cumulative from the date of this Agreement, as determined at the
time of Investment; and (iii) the aggregate net cash proceeds received by the
Company from the issuance or sale of its capital stock subsequent to the date
hereof other than to a Subsidiary reduced by the aggregate cash purchase price
paid by the Company in the Company's repurchases of capital stock subsequent to
the date hereof.
7.05 Transactions with Affiliates. The Company shall not, and shall not
----------------------------
suffer or permit any of its Subsidiaries to, enter into any transaction with any
Affiliate of the Company or of any such Subsidiary, except (a) as expressly
permitted by this Agreement, or (b) in the Ordinary Course of Business or
pursuant to the reasonable requirements of the business of the Company or such
Subsidiary; in each case (a) and (b), upon fair and reasonable terms materially
no less favorable to the Company or such Subsidiary than would obtain in a
comparable arm's-length transaction with a Person not an Affiliate of the
Company or such Subsidiary; provided, however, that nothing in this Section 7.05
shall be deemed to prohibit transactions between the Company and any Subsidiary
of the Company provided that such transactions are fair and reasonable to the
Company.
7.06 Use of Proceeds. (a) The Company shall not and shall not suffer or
---------------
permit any of its Subsidiaries to use any portion of the Loan proceeds, directly
or indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (iii) to extend credit for the purpose of purchasing or carrying
any Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
(b) The Company shall not, directly or indirectly, use any portion of the Loan
proceeds (i) knowingly to purchase Ineligible Securities from the Arranger
during any period in which the Arranger makes a market in such Ineligible
Securities,
56
<PAGE>
(ii) knowingly to purchase during the underwriting or placement period
Ineligible Securities being underwritten or privately placed by the Arranger, or
(iii) to make payments of principal or interest on Ineligible Securities
underwritten or privately placed by the Arranger and issued by or for the
benefit of the Company or any Affiliate of the Company. The Arranger is a
registered broker-dealer and permitted to underwrite and deal in certain
Ineligible Securities; and "Ineligible Securities" means securities which may
---------------------
not be underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1933 (12 U.S.C. (S) 24, Seventh), as
amended.
7.07 Guaranty Obligations. The Company shall not, and shall not suffer or
--------------------
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any
Guaranty Obligations except:
(a) endorsements for collection or deposit in the Ordinary Course of
Business;
(b) Guaranty Obligations of the Company and its Subsidiaries existing as
of the Closing Date and subject to the maximum amount specified in Schedule
--------
7.07;
- - - ----
(c) Guaranty Obligations of the Company of not more than $175,000,000 of
Indebtedness of Fujitsu-AMD Semiconductor Limited; and
(d) Guaranty Obligations by the Company of the Indebtedness of its
Offshore Subsidiaries, up to $75,000,000 in the aggregate (including any such
Guaranty Obligations listed on Schedule 7.07) at any time for all such Offshore
-------------
Subsidiaries combined.
7.08 Compliance with ERISA. The Company shall not, and shall not suffer or
---------------------
permit any of its Subsidiaries to, (i) terminate any Plan subject to Title IV of
ERISA so as to result in any material (in the opinion of the Majority Banks)
liability to the Company or any ERISA Affiliate, (ii) permit to exist any ERISA
Event or any other event or condition, which presents the risk of a material (in
the opinion of the Majority Banks) liability to any member of the Controlled
Group, (iii) make a complete or partial withdrawal (within the meaning of ERISA
Section 4201) from any Multiemployer Plan so as to result in any material (in
the opinion of the Majority Banks) liability to the Company or any ERISA
Affiliate, (iv) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder which could result in any material (in the
opinion of the Majority Banks) liability to any member of the Controlled Group,
or (v) permit the present value of all nonforfeitable accrued benefits under any
Plan (using the actuarial assumptions utilized by the PBGC upon termination of a
Plan) materially (in the opinion of the Majority Banks) to exceed the fair
market
57
<PAGE>
value of Plan assets allocable to such benefits, all determined as of the most
recent valuation date for each such Plan.
7.09 Restricted Payments.
-------------------
(a) The Company shall not, and shall not suffer or permit any of its
Subsidiaries to, declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
shares of any class of its capital stock, or purchase, redeem or otherwise
acquire for value any shares of its capital stock or any warrants, rights or
options to acquire such shares, now or hereafter outstanding; except that the
Company may, provided there exists both before and after giving effect thereto
no Default or Event of Default:
(i) declare and make dividend payments or other distributions
payable solely in its common stock;
(ii) purchase, redeem or otherwise acquire shares of its common
stock or preferred stock, or warrants or options to acquire any such shares, to
the extent that such transactions in the aggregate do not exceed (taking into
account all such purchases, redemptions or acquisitions occurring since the
Closing Date) the sum of:
(A) the lesser of $70,000,000 or the acquisition cost of
5,000,000 shares; and
(B) the extent to which the aggregate cash consideration, net
of commissions and other out-of-pocket costs and expenses incurred in
connection therewith, actually received by the Company from the issuance
by the Company of shares of its common stock subsequent to the Closing
Date exceeds the aggregate cash consideration used to acquire shares of
Convertible Exchangeable Preferred Stock and its common stock, pursuant to
this Section 7.09(a)(ii) since the Closing Date;
provided that the Company promptly delivers to the Agent upon any such purchase,
- - - --------
redemption or other acquisition a certificate in the form of Exhibit E; and
---------
(iii) declare or pay mandatory cash dividends to holders of
preferred stock outstanding on the Closing Date, provided, that, both before and
--------
immediately after giving effect to such proposed action, no Default or Event of
Default exists or would exist; and
(iv) purchase, redeem or otherwise acquire Convertible Exchangeable
Preferred Stock pursuant to the Convertible Exchangeable Preferred Repurchase
Program;
58
<PAGE>
provided, however, that the foregoing restrictions shall not apply to any
- - - -------- -------
distribution to, or purchase, redemption or other acquisition from, (x) the
Company by a Wholly-Owned Subsidiary, or (y) any Wholly-Owned Subsidiary by a
Wholly-Owned Subsidiary of such Subsidiary.
(b) The Company shall not prepay, redeem, defease (whether actually or
in substance) or purchase in any manner (or deposit or set aside funds or
securities for the purpose of the foregoing), or make any payment (other than
for scheduled payments of interest due on the date of payment thereof, if such
payment is permitted to be made pursuant to the terms of the documents
evidencing or governing the applicable Subordinated Debt) in respect of, or
establish any sinking fund, reserve or like set aside of funds or other property
for the redemption, retirement or repayment of, any Subordinated Debt, or
transfer any property in payment of or as security for the payment of, or
violate the subordination terms of, any Subordinated Debt, or amend, modify or
change in any manner the terms of any Subordinated Debt or any instrument,
indenture or other document evidencing, governing or affecting the terms of any
Subordinated Debt, if any such amendment, modification or change has or would
have an adverse effect on the Agent's or any Bank's rights or remedies under any
of the Loan Documents, or cause or permit any of its Subsidiaries to do any of
the foregoing; provided, however, that the Company may, provided that there
-------- -------
exists both before and after giving effect thereto no Default or Event of
Default, make sinking fund payments to provide for the redemption of the
Company's 6% Convertible Subordinated Debentures Due 2012, issued in exchange
for shares of the Company's Convertible Exchangeable Preferred Stock, in
accordance with and to the extent required by Article XI of the Indenture.
7.10 Modified Quick Ratio. The Company shall not at any time 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 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 Company and its Subsidiaries (including all Loans),
to be less than 1.10 to 1.00.
7.11 Minimum Tangible Net Worth. The Company shall not suffer or permit its
--------------------------
Consolidated Tangible Net Worth as of the end of any fiscal quarter to be less
than $1,300,000,000 plus (a) 75% of net income for the Company and its
Subsidiaries computed from the first day of the Company's third fiscal quarter
of 1994 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 (b) 100% of the Net Proceeds of any sale of capital stock
of the
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<PAGE>
Company by or for the account of the Company, occurring after the Closing
Date, plus (c) any increase in stockholders' equity resulting from the
conversion of debt securities to equity securities after the Closing Date.
7.12 Leverage Ratio. The Company shall not at any time suffer or permit its
--------------
Leverage Ratio to be greater than 0.85 to 1.00.
7.13 Fixed Charge Coverage Ratio. The Company shall not at any time of
---------------------------
determination suffer or permit its Fixed Charge Coverage Ratio to be less than
1.25 to 1.00.
7.14 Change in Business. The Company shall not, and shall not permit any of
------------------
its Subsidiaries to, engage in any material line of business substantially
different from those lines of business carried on by the Company and its
Subsidiaries on the date hereof.
7.15 Accounting Changes. The Company shall not, and shall not suffer or
------------------
permit any of its Subsidiaries to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Company or of any of its consolidated Subsidiaries.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
8.01 Event of Default. Any of the following shall constitute an "Event of
----------------
Default":
(a) Non-Payment. The Company fails to pay, (i) when and as required to
-----------
be paid herein, any amount of principal of any Loan, or (ii) within three days
after the same shall become due, any interest, any fee or any other amount
payable hereunder or pursuant to any other Loan Document; or
(b) Representation or Warranty. Any representation or warranty by the
--------------------------
Company or any of its Subsidiaries made or deemed made herein, in any other Loan
Document, or which is contained in any certificate, document or financial or
other statement by the Company, any of its Subsidiaries, or their respective
Responsible Officers, furnished at any time under this Agreement, or in or under
any other Loan Document, shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any term,
-----------------
covenant or agreement contained in Sections 6.01, 6.02, 6.03, 6.09, 6.11 or
Article VII; or
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<PAGE>
(d) Other Defaults. The Company fails to perform or observe any other
--------------
term or covenant contained in this Agreement or any other Loan Document, and
such default shall continue unremedied for a period of 30 days after the earlier
of (i) the date upon which a Responsible Officer of the Company knew or should
have known of such failure or (ii) the date upon which written notice thereof is
given to the Company by the Agent or any Bank; or
(e) Cross-Default. (i) The Company or any of its Subsidiaries fails to
-------------
make any payment in respect of any Indebtedness or Guaranty Obligation having an
aggregate principal amount (including undrawn committed or available amounts) of
more than $10,000,000 when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues after
the applicable grace or notice period, if any, specified in the document
relating thereto; (ii) the Company or any of its Subsidiaries fails to perform
or observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any such
Indebtedness or Guaranty Obligation, and such failure continues after the
applicable grace or notice period, if any, specified in the document relating
thereto as of the time of such failure, event or condition, if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable
prior to its stated maturity, or such Guaranty Obligation to become payable or
cash collateral in respect thereof to be demanded; or (iii) there shall occur
any Deposit Event under (and as defined in) the CIBC Guaranty or any other event
shall occur or condition exist under the CIBC Guaranty or either of the CIBC
Leases as a result of which any amount becomes payable under the CIBC Guaranty;
or
(f) Bankruptcy or Insolvency. The Company or any of its Subsidiaries (i)
------------------------
ceases or fails to be solvent, or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
-----------------------
is commenced or filed against the Company or any Subsidiary of the Company, or
any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any of its
Subsidiaries' Properties, and any such proceeding or petition
61
<PAGE>
shall not be dismissed, or such writ, judgment, warrant of attachment, execution
or similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) the Company or any of its Subsidiaries
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Company or any of its
Subsidiaries acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its Property or business;
or
(h) ERISA. (i) A member of the Controlled Group shall fail to pay when
-----
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under a Multiemployer Plan;
(ii) the Company or an ERISA Affiliate shall fail to satisfy its contribution
requirements under Section 412(c)(11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) in the case of an ERISA Event
involving the withdrawal from a Plan of a "substantial employer" (as defined in
Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing employer's
proportionate share of that Plan's Unfunded Pension Liabilities is more than
five percent (5%) of the Company's Consolidated Tangible Net Worth at such time;
(iv) in the case of an ERISA Event involving the complete or partial withdrawal
from a Multiemployer Plan, the withdrawing employer has incurred a withdrawal
liability in an aggregate amount exceeding five percent (5%) of the Company's
Consolidated Tangible Net Worth at such time; (v) in the case of an ERISA Event
not described in clause (iii) or (iv), the Unfunded Pension Liabilities of the
relevant Plan or Plans exceed five percent (5%) of the Company's Consolidated
Tangible Net Worth at such time; (vi) a Plan that is intended to be qualified
under Section 401(a) of the Code shall lose its qualification, and the loss can
reasonably be expected to impose on members of the Controlled Group liability
(for additional taxes, to Plan participants, or otherwise) in the aggregate
amount of five percent (5%) or more of the Company's Consolidated Tangible Net
Worth at such time; (vii) the commencement or increase of contributions to, or
the adoption of or the amendment of a Plan by, a member of the Controlled Group
shall result in a net increase in unfunded liabilities to the Controlled Group
in excess of five percent (5%) of the Company's Consolidated Tangible Net Worth
at such time; (viii) any member of the Controlled Group engages in or otherwise
becomes liable for a non-exempt prohibited transaction and the initial tax or
additional tax under section 4975 of the Code relating thereto might reasonably
be expected to exceed five percent (5%) of the Company's Consolidated Tangible
Net Worth at such time; (ix) a violation of section 404 or 405 of ERISA or the
exclusive benefit rule under section 401(a) of the Code if such violation might
reasonably be expected to expose a member or members of
62
<PAGE>
the Controlled Group to monetary liability in excess of five percent (5%) of the
Company's Consolidated Tangible Net Worth at such time; (x) any member of the
Controlled Group is assessed a tax under section 4980B of the Code in excess of
five percent (5%) of the Company's Consolidated Tangible Net Worth at such time;
or (xi) the occurrence of any combination of events listed in clauses (iii)
through (x) that involves a potential liability, net increase in aggregate
Unfunded Pension Liabilities, unfunded liabilities, or any combination thereof,
in excess of five percent (5%) of the Company's Consolidated Tangible Net Worth
at such time; or
(i) Monetary Judgments. One or more non-interlocutory judgments, orders
------------------
or decrees shall be entered against the Company or any of its Subsidiaries
involving in the aggregate a liability (not fully covered by insurance where the
availability of such insurance coverage is not in substantial dispute) as to any
single or related series of transactions, incidents or conditions, of
$50,000,000 or more, and the same shall remain unvacated and unstayed pending
appeal for a period of 30 days after the entry thereof; or
(j) Non-Monetary Judgments. Any non-monetary judgment, order or decree
----------------------
shall be rendered against the Company or any of its Subsidiaries which does or
would reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at the
--------
request of, or may, with the consent of, the Majority Banks:
(a) declare the Commitment of each Bank to make Loans to be terminated,
whereupon such Commitments shall forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
together with amounts owing under Section 3.04; without presentment, demand,
protest or other notice of any kind, all of which are hereby expressly waived by
the Company; and
(c) exercise on behalf of itself and the Banks all rights and remedies
available to it and the Banks under the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in paragraph
- - - -------- -------
(f) or (g) above (in the case of clause (i) of paragraph (g) upon the expiration
of the 60-day period mentioned therein), the obligation of each Bank to make
Loans
63
<PAGE>
shall automatically terminate and the unpaid principal amount of all
outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent or any
Bank.
8.03 Rights Not Exclusive. The rights provided for in this Agreement and
--------------------
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
8.04 Certain Financial Covenant Defaults. In the event that, after taking
-----------------------------------
into account any extraordinary charge to earnings taken or to be taken as of the
end of any fiscal period of the Company (a "Charge"), and if solely by virtue of
------
such Charge, there would exist an Event of Default due to the breach of any of
Sections 7.10, 7.11, 7.12 or 7.13 as of such fiscal period end date, such Event
of Default shall be deemed to arise upon the earlier of (a) the date after such
fiscal period end date on which the Company announces publicly it will take, is
taking or has taken such Charge (including an announcement in the form of a
statement in a report filed with the SEC) or, if such announcement is made prior
to such fiscal period end date, the date that is such fiscal period end date,
and (b) the date the Company delivers to the Agent its audited annual or
unaudited quarterly financial statements in respect of such fiscal period
reflecting such Charge as taken.
ARTICLE IX
THE AGENT
---------
9.01 Appointment and Authorization. Each Bank hereby irrevocably appoints,
-----------------------------
designates and authorizes the Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary relationship
with any Bank, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
9.02 Delegation of Duties. The Agent may execute any of its duties under
--------------------
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining
64
<PAGE>
to such duties. The Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects with reasonable
care.
9.03 Liability of Agent. None of the Agent or any successor agent arising
------------------
under Section 9.09, together with their respective Affiliates (including, in the
case of the Agent, the Arranger), or any of their respective officers,
directors, employees, agents, or attorneys-in-fact (collectively, the "Agent-
Related Persons") shall (i) be liable for any action taken or omitted to be
taken by any of them under or in connection with this Agreement or any other
Loan Document (except for its own gross negligence or willful misconduct), or
(ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No Agent-
Related Person shall be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the Properties, books or records of the Company or any of its Subsidiaries or
Affiliates.
9.04 Reliance by Agent.
-----------------
(a) The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telegram, telecopy, telex or telephone message, statement or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Company), independent
accountants and other experts selected by the Agent. The Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Majority Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Majority
Banks and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
65
<PAGE>
(b) For purposes of determining compliance with the conditions specified
in Sections 4.01 and 4.02, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to the Bank, unless an officer of the Agent
responsible for the transactions contemplated by the Loan Documents shall have
received notice from the Bank prior to the initial Borrowing specifying its
objection thereto and either such objection shall not have been withdrawn by
notice to the Agent to that effect or the Bank shall not have made available to
the Agent the Bank's ratable portion of such Borrowing.
9.05 Notice of Default. The Agent shall not be deemed to have knowledge or
-----------------
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"Notice of Default". In the event that the Agent receives such a notice, the
Agent shall give notice thereof to the Banks. The Agent shall take such action
with respect to such Default or Event of Default as shall be requested by the
Majority Banks in accordance with Article VIII; provided, however, that unless
-------- -------
and until the Agent shall have received any such request, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable or
in the best interest of the Banks.
9.06 Credit Decision. Each Bank expressly acknowledges that none of the
---------------
Agent-Related Persons has made any representation or warranty to it and that no
act by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries shall be deemed to constitute any representation or
warranty by the Agent to any Bank. Each Bank represents to the Agent that it
has, independently and without reliance upon the Agent and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Company and its
Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated thereby, and made its own decision to enter into this
Agreement and extend credit to the Company hereunder. Each Bank also represents
that it will, independently and without reliance upon the Agent and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigations as it deems necessary to inform itself as to the business,
prospects, operations, property,
66
<PAGE>
financial and other condition and creditworthiness of the Company. Except for
notices, reports and other documents expressly herein required to be furnished
to the Banks by the Agent, the Agent shall not have any duty or responsibility
to provide any Bank with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of any of the
Agent-Related Persons.
9.07 Indemnification. The Banks shall indemnify upon demand the Agent-
---------------
Related Persons (to the extent not reimbursed by or on behalf of the Company and
without limiting the obligation of the Company to do so), ratably from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses and disbursements of any kind
whatsoever which may at any time (including at any time following the repayment
of the Loans) be imposed on, incurred by or asserted against any such Person any
way relating to or arising out of this Agreement or any document contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by any such Person under or in connection
with any of the foregoing; provided, however, that no Bank shall be liable for
-------- -------
the payment to the Agent-Related Persons of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from such Person's gross negligence
or willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or out-of-
pocket expenses (including Attorney Costs) incurred by the Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Loan Document, or any document contemplated by or
referred to herein to the extent that the Agent is not reimbursed for such
expenses by or on behalf of the Company. Without limiting the generality of the
foregoing, if the IRS or any authority of the United States or other
jurisdiction asserts a claim that the Agent did not properly withhold tax from
amounts paid to or for the account of any Bank (because the appropriate form was
not delivered, was not properly executed, or because such Bank failed to notify
Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason) such Bank
shall indemnify Agent fully for all amounts paid, directly or indirectly, by
Agent as tax or otherwise, including penalties and interest, and including any
taxes imposed by any jurisdiction on the amounts payable to Agent under this
subparagraph (c), together with all costs, expenses and attorneys' fees
(including allocated costs for inhouse legal services). The obligation of the
Banks in this Section shall survive the payment of all Obligations hereunder.
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<PAGE>
9.08 Agent in Individual Capacity. BofA and its Affiliates may make loans
----------------------------
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, BofA or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to provide such
information unless such information is expressly herein required to be furnished
to the Banks by the Agent. With respect to its Loans, BofA shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though it were not the Agent, and the terms "Bank" and "Banks" shall
include BofA in its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the Majority
---------------
Banks shall, resign as Agent upon 30 days' notice to the Banks. If the Agent
shall resign as Agent under this Agreement, the Majority Banks shall appoint
from among the Banks a successor agent for the Banks. If no successor Agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
shall appoint, after consulting with the Banks and the Company, a successor
agent from among the Banks. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's rights, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article IX and Sections 10.04 and 10.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Majority Banks appoint a successor agent as provided for
above.
9.10 Co-Agents. None of the Banks identified on the facing page or
---------
signature pages of this Agreement as a "co-agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
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<PAGE>
ARTICLE X
MISCELLANEOUS
-------------
10.01 Amendments and Waivers. No amendment or waiver of any provision of
----------------------
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company therefrom, shall be effective unless the same shall be
in writing and signed by the Majority Banks, and then such waiver shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
-------- -------
unless in writing and signed by all the Banks, do any of the following:
(a) increase or extend the Commitment of any Bank, or reinstate the
Commitment of any Bank after it has been terminated under Section 8.02 hereof,
or subject any Bank to any additional obligations;
(b) postpone or delay any date fixed for any payment of principal,
interest, fees or other amounts due hereunder or under any Loan Document;
(c) reduce the principal of, or the rate of interest specified herein on
any Loan, or of any fees or other amounts payable hereunder or under any Loan
Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which shall be required for the Banks or any of
them to take any action hereunder; or
(e) waive or amend this Section 10.01 or Section 2.13 or change the
definition of "Majority Banks";
and, provided further, that (i) no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, and (ii) the Fee Letters may be amended,
or rights or privileges thereunder waived, in a writing executed by the parties
thereto.
10.02 Notices.
-------
(a) All notices, requests and other communications provided for
hereunder shall be in writing (including, unless the context expressly otherwise
provides, telegraphic, telex, facsimile transmission or cable communication) and
mailed, telegraphed, telexed or delivered, (i) if to the Company, to its address
specified on the signature pages hereof, (ii) if to any Bank, to its Domestic
Lending Office, and (iii) if to the Agent, to its address specified on the
signature pages hereof; or, as to the Company or the Agent, to such other
address as shall be
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<PAGE>
designated by such party in a written notice to the other parties, and as to
each other party, at such other address as shall be designated by such party in
a written notice to the Company and the Agent.
(b) All such notices and communications shall, when transmitted by
overnight delivery, telegraphed, telecopied by facsimile, telexed or cabled, be
effective when delivered for overnight delivery or to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, or if delivered, upon delivery, except that notices
pursuant to Article II or VIII shall not be effective until actually received by
the Agent.
(c) The Company acknowledges and agrees that any agreement of the Agent
and the Banks at Article II herein to receive certain notices by telephone and
facsimile is solely for the convenience and at the request of the Company. The
Agent and the Banks shall be entitled to rely on the authority of any Person
purporting to be a Person authorized by the Company to give such notice and the
Agent and the Banks shall not have any liability to the Company or other Person
on account of any action taken or not taken by the Agent and the Banks in
reliance upon such telephonic or facsimile notice. The obligation of the Company
to repay the Loans shall not be affected in any way or to any extent by any
failure by the Agent and the Banks to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Agent and the Banks of a
confirmation which is at variance with the terms understood by the Agent and the
Banks to be contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
------------------------------
in exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.
10.04 Costs and Expenses. The Company shall, whether or not the
------------------
transactions contemplated hereby shall be consummated:
(a) pay or reimburse the Agent on demand for all costs and expenses
incurred by the Agent and the Arranger in connection with the development,
preparation, delivery, administration and execution of, and any amendment,
supplement, waiver or modification to, this Agreement, any Loan Document and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including the
reasonable Attorney Costs incurred by the Agent with respect thereto;
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<PAGE>
(b) pay or reimburse each Bank, the Agent and the Arranger on demand for
all costs and expenses incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies (including in
connection with any "workout" or restructuring regarding the Loans) under this
Agreement, any other Loan Document, and any such other documents, including
Attorney Costs incurred by the Agent and any Bank; and
(c) pay or reimburse the Agent on demand for all appraisal (including
the allocated cost of internal appraisal services), audit, environmental
inspection and review (including the allocated cost of such internal services),
search and filing costs, fees and expenses, incurred or sustained by the Agent
in connection with the matters referred to under paragraphs (a) and (b) of this
Section.
10.05 Indemnity. Whether or not the transactions contemplated hereby are
---------
consummated:
(a) General Indemnity. The Company shall pay, indemnify, and hold each
-----------------
Bank, the Agent and each of their respective Affiliates, and the officers,
directors, employees, counsel, agents and attorneys-in-fact of such Persons
(each, an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses or disbursements (including Attorney Costs) of any kind
or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement and any other Loan Documents,
the use or application of the proceeds of the Loans, or the transactions
contemplated hereby and thereby, and with respect to any investigation,
litigation or proceeding (including any Insolvency Proceeding or appellate
proceeding) related to this Agreement or the Loans or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided, that the
--------
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities arising from the gross negligence or willful
misconduct of such Indemnified Person.
(b) Environmental Indemnity.
-----------------------
(i) The Company hereby agrees to indemnify, defend and hold harmless
each Indemnified Person, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, charges, expenses
or disbursements (including Attorney Costs and the allocated cost of internal
environmental audit or review services), which may be incurred by or asserted
against such Indemnified Person in connection with or arising out of any pending
or threatened investigation, litigation or proceeding, or any action taken by
any Person, with respect to any Environmental Claim arising out
71
<PAGE>
of or related to any Property of the Company or any of its Subsidiaries. No
action taken by legal counsel chosen by the Agent or any Bank in defending
against any such investigation, litigation or proceeding or requested
remedial, removal or response action shall vitiate or any way impair the
Company's obligation and duty hereunder to indemnify and hold harmless the
Agent and each Bank.
(ii) In no event shall any site visit, observation, or testing by
the Agent or any Bank be deemed a representation or warranty that Hazardous
Materials are or are not present in, on, or under the site, or that there has
been or shall be compliance with any Environmental Law. Neither the Company nor
any other Person is entitled to rely on any site visit, observation, or testing
by the Agent or any Bank. Neither the Agent nor any Bank owes any duty of care
to protect the Company or any other Person against, or to inform the Company or
any other party of, any Hazardous Materials or any other adverse condition
affecting any site or Property. Neither the Agent nor any Bank shall be
obligated to disclose to the Company or any other Person any report or findings
made as a result of, or in connection with, any site visit, observation, or
testing by the Agent or any Bank.
(c) Survival; Defense. The obligations in this Section 10.05 shall
-----------------
survive payment of all other Obligations. At the election of any Indemnified
Person, the Company shall defend such Indemnified Person using legal counsel
satisfactory to such Indemnified Person in such Person's sole discretion, at the
sole cost and expense of the Company. All amounts owing under this Section 10.05
shall be paid within 30 days after demand.
10.06 Marshalling; Payments Set Aside. Neither the Agent nor the Banks
-------------------------------
shall be under any obligation to marshall any assets in favor of the Company or
any other Person or against or in payment of any or all of the Obligations. To
the extent that the Company makes a payment or payments to the Agent or the
Banks, or the Agent or the Banks enforce their Liens or exercise their rights of
set-off, and such payment or payments or the proceeds of such enforcement or
set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party in connection with any Insolvency Proceeding, or
otherwise, then (a) to the extent of such recovery the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or set-off had not occurred and (b) each Bank severally agrees to pay to the
Agent upon demand its pro rata share of any amount so recovered from or repaid
by the Agent to the extent previously paid or transferred to such Bank by the
Agent.
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<PAGE>
10.07 Successors and Assigns. The provisions of this Agreement shall be
----------------------
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Company may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Bank.
10.08 Assignments, Participations, etc.
---------------------------------
(a) Any Bank may, with the written consent of the Company (at all times
other than during the existence of an Event of Default) and the Agent, which
consent of the Company and the Agent shall not be unreasonably withheld, at any
time assign and delegate to one or more Eligible Assignees (provided that no
written consent of the Company or the Agent shall be required in connection with
any assignment and delegation by a Bank to a Bank Affiliate of such Bank or to
another existing Bank hereunder) (each an "Assignee") all, or any ratable part
of all, of the Loans, the Commitments and the other rights and obligations of
such Bank hereunder, in each case, in a minimum amount of $10,000,000; provided,
--------
however, that (i) the Company and the Agent may continue to deal solely and
- - - -------
directly with such Bank in connection with the interest so assigned to an
Assignee until (A) written notice of such assignment, together with payment
instructions, addresses and related information with respect to the Assignee,
shall have been given to the Company and the Agent by such Bank and the
Assignee; and (B) such Bank and its Assignee shall have delivered to the Company
and the Agent an Assignment and Acceptance in the form of Exhibit F ("Assignment
---------
and Acceptance") and the processing fee described below.
(b) From and after the date that the Agent notifies the assignor Bank
that it has received an executed Assignment and Acceptance and payment by the
assignor or assignee Bank of the processing fee of $3,000, (i) the Assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, shall have the rights and obligations of a Bank under the Loan
Documents, and (ii) the assignor Bank shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Immediately upon each Assignee's making its payment under the
Assignment and Acceptance, this Agreement, shall be deemed to be amended to the
extent, but only to the extent, necessary to reflect the addition of the
Assignee and the resulting adjustment of the Commitments arising therefrom. The
Commitment allocated to each Assignee shall reduce such Commitments of the
assigning Bank pro tanto.
--- -----
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<PAGE>
(d) Any Bank may at any time sell to one or more Eligible Assignees (a
"Participant") participating interests in any Loans, the Commitment of that Bank
and the other interests of that Bank (the "originating Bank") hereunder and
under the other Loan Documents; provided, however, that (i) the originating
-------- -------
Bank's obligations under this Agreement shall remain unchanged, (ii) the
originating Bank shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Agent shall continue to deal solely and
directly with the originating Bank in connection with the originating Bank's
rights and obligations under this Agreement and the other Loan Documents, and
(iv) no Bank shall transfer or grant any participating interest under which the
Participant shall have rights to approve any amendment to, or any consent or
waiver with respect to, this Agreement or any other Loan Document, except to the
extent such amendment, consent or waiver would require unanimous consent as
described in the first proviso to Section 10.01. In the case of any such
----- -------
participation, the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Company
hereunder shall be determined as if such Bank had not sold such participation;
except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Each Bank agrees to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all non-public information
identified as "confidential" or "secret" by the Company provided to it by the
Company or any Subsidiary of the Company, or by the Agent on such Company's or
Subsidiary's behalf, in connection with this Agreement or any other Loan
Document, and neither it nor any of its Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement or in enforcement of this Agreement or the other
Loan Documents; except to the extent such information (i) was or becomes
generally available to the public other than as a result of a disclosure by the
Bank, or (ii) was or becomes available on a non-confidential basis from a source
other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Bank; provided further,
----------------
however, that any Bank may disclose such information (A) at the request or
- - - -------
pursuant to any requirement of any Governmental Authority to which the Bank is
subject or in connection with an examination of such Bank by any such authority;
(B) pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or proceeding to
which the Agent, any Bank or
74
<PAGE>
their respective Affiliates may be party; (E) to the extent reasonably required
in connection with the exercise of any remedy hereunder or under any other
Loan Document; (F) to any Participant or Assignee, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Banks hereunder; (G) as to
any Bank, as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Company is party or is
deemed party with such Bank; and (H) to such Bank's independent auditors
and other professional advisors. Notwithstanding the foregoing, provided
--------
that, (X) with respect to (B) and (D) above, unless such notice is
- - - ----
prohibited by applicable law, regulation or court process, the Company
shall be provided advance notice of the Bank's intention to disclose,
although failure to provide such notice shall not restrict such Bank's
right to disclose such information; and (Y), in the case of assignments,
(1) the Company is notified as to the identity of each Assignee, except
upon the occurrence of an Event of Default, in which case notification
shall be unnecessary, (2) the Company authorizes each Bank to disclose to
any Participant or Assignee (each, a "Transferee") and to any prospective
Transferee, such financial and other information in such Bank's possession
concerning the Company or its Subsidiaries which has been delivered to
Agent or the Banks pursuant to this Agreement or which has been delivered
to the Agent or the Banks by the Company in connection with the Banks'
credit evaluation of the Company prior to entering into this Agreement, and
(3) unless otherwise agreed by the Company, such Transferee agrees in
writing to such Bank to keep such information confidential to the same
extent required of the Banks hereunder.
(f) Notwithstanding any other provision in this Agreement, any Bank may
at any time create a security interest in, or pledge, all or any portion of its
rights under and interest in this Agreement and the Note held by it in favor of
any Federal Reserve Bank in accordance with Regulation A of the Federal Reserve
Board or U.S. Treasury Regulation 31 CFR (S)203.14, and such Federal Reserve
Bank may enforce such pledge or security interest in any manner permitted under
applicable law.
10.09 Set-off. In addition to any rights and remedies of the Banks provided
-------
by law, if an Event of Default exists, each Bank is authorized at any time and
from time to time, without prior notice to the Company, any such notice being
waived by the Company to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held by, and other indebtedness at any time owing to, such
Bank to or for the credit or the account of the Company against any and all
Obligations owing to such Bank, now or hereafter existing, irrespective of
whether or not the Agent or such Bank shall have made demand under this
Agreement or any Loan Document and
75
<PAGE>
although such Obligations may be contingent or unmatured. Each Bank agrees
promptly to notify the Company and the Agent after any such set-off and
application made by such Bank; provided, however, that the failure to give such
-------- -------
notice shall not affect the validity of such set-off and application. The rights
of each Bank under this Section 10.09 are in addition to the other rights and
remedies (including other rights of set-off) which the Bank may have.
10.10 Automatic Debits of Fees. With respect to any fee payable to the
------------------------
Agent or BofA under this Agreement, or any other cost or expense (including
Attorney Costs) due and payable to the Agent or BofA under the Loan Documents,
the Company hereby irrevocably authorizes BofA to debit any deposit account of
the Company with BofA in an amount such that the aggregate amount debited from
all such deposit accounts does not exceed such fees or other cost or expense. If
there are insufficient funds in such deposit accounts to cover the amount of the
fee or other cost or expense then due, such debits will be reversed (in whole or
in part, in BofA's sole discretion) and such amount not debited shall be deemed
to be unpaid. No such debit under this Section 10.10 shall be deemed a set-off.
10.11 Notification of Addresses, Lending Offices, Etc.
-----------------------------------------------
Each Bank shall notify the Agent in writing of any changes in the address to
which notices to the Bank should be directed, of addresses of its Offshore
Lending Office, of payment instructions in respect of all payments to be made to
it hereunder and of such other administrative information as the Agent shall
reasonably request.
10.12 Counterparts. This Agreement may be executed by one or more of the
------------
parties to this Agreement 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 Agreement signed by all the parties shall be lodged
with the Company and the Agent.
10.13 Severability. The illegality or unenforceability of any provision of
------------
this Agreement or any Loan Document required hereunder shall not in any way
affect or impair the legality or enforceability of the remaining provisions of
this Agreement or any Loan Document required hereunder.
10.14 No Third Parties Benefitted. This Agreement is made and entered into
---------------------------
for the sole protection and legal benefit of the Company and its Subsidiaries,
the Banks and the Agent, and their permitted 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 Agreement
or any of the other Loan Documents. Neither the Agent nor any Bank shall have
any obligation to any Person not a party to this Agreement or other Loan
Documents.
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<PAGE>
10.15 Time. Time is of the essence as to each term or provision of
----
this Agreement and each of the other Loan Documents.
10.16 Governing Law and Jurisdiction.
------------------------------
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND THE BANKS
AND THE COMPANY SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE
NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH OF THE COMPANY, THE AGENT AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
-----
NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
- - - --------------
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY CALIFORNIA LAW.
10.17 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT EACH
--------------------
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE AGENT EACH AGREE THAT ANY
SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY
ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS.
10.18 Amendment and Restatement; Entire Agreement. On the Closing Date,
-------------------------------------------
this Agreement shall amend and restate the Prior Credit Agreement in its
entirety, and this Agreement, together with the other Loan Documents, embodies
the entire Agreement and understanding among the Company, the Banks and the
Agent, and supersedes all prior or contemporaneous Agreements and understandings
of such Persons, verbal or written, relating to
77
<PAGE>
the subject matter hereof and thereof, except for the fee letters referenced in
subsections 2.09(a), 2.09(c) and 2.09(d).
10.19 Interpretation. This Agreement is the result of negotiations 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 Agreement and the
other Loan Documents shall not be construed in favor of or against the Banks or
the Agent merely because of the Agent's or Banks' involvement in the preparation
of such documents and agreements.
78
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement 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.
ADVANCED MICRO DEVICES, INC.
By: /s/ Marvin D. Burkett
------------------------
Title: Senior Vice President and
Chief Financial Officer
Address for notices:
One AMD Place
Mail Stop 54
Sunnyvale, California 94088-3453
Attn: Marvin D. Burkett,
Senior Vice President and
Chief Financial Officer
Facsimile: (408) 749-3945
Tel: (408) 749-2818
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<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ Shannon Collins
-------------------------
Title: Vice President
Address for notices:
1455 Market Street, 12th Floor
San Francisco, California 94103
Attn: Global Agency #5596
Facsimile: (415) 622-4894
Tel: (415) 953-2506
Address for payments:
Bank of America N.T.& S.A.
(ABA 121-000-358-S.F.)
Attn: Global Agency #5596
1850 Gateway Blvd.
Concord, CA 94520
For credit to account
No. 12331-14132
Ref: Advanced Micro Devices, Inc.
80
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON,
as Co-Agent
By: /s/ Elizabeth C. Everett
-------------------------
Title: Vice President
Address for notices:
100 Rust Craft Road
Commercial Loan Department
MS 74-02-4I
Dedham, Massachusetts 02026
Attn: Admin 50 High Tech
Facsimile: (617) 467-2276
Tel: (617) 467-2286
with a copy to:
435 Tasso Street, Suite 250
Palo Alto, California 94301
Attn: Michelle Arellano
Facsimile: (415) 853-1425
Tel: (415) 853-0960
Domestic and Offshore Lending
Office:
100 Rust Craft Road
Commercial Loan Department
MS 74-02-4I
Dedham, Massachusetts 02026
Attn: Admin 50 High Tech
Facsimile: (617) 467-2276
Tel: (617) 467-2286
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<PAGE>
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ Kevin McMahon
--------------------------
Title: Vice President
Address for notices:
555 California Street, 41st Floor
San Francisco, California 94104
Attn: Credit Products - SF
High Technology Group
Facsimile: (415) 622-2514
Tel: (415) 622-5816
Domestic and Offshore Lending
Office:
1850 Gateway Boulevard
Concord, California 94520
Facsimile: (510) 675-7531
Tel: (510) 675-7325
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<PAGE>
THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By: /s/ Elizabeth C. Everett
--------------------------
Title: Vice President
Address for notices:
100 Rust Craft Road
Commercial Loan Department
MS 74-02-4I
Dedham, Massachusetts 02026
Attn: Admin 50 High Tech
Facsimile: (617) 467-2276
Tel: (617) 467-2286
with a copy to:
435 Tasso Street, Suite 250
Palo Alto, California 94301
Attn: Michelle Arellano
Facsimile: (415) 853-1425
Tel: (415) 853-0960
Domestic and Offshore Lending
Office:
100 Federal Street
Commercial Loan Department
MS 74-02-4I
Dedham, Massachusetts 02026
Attn: Admin 50 High Tech
Facsimile: (617) 467-2276
Tel: (617) 467-2286
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<PAGE>
SHAWMUT BANK, N.A.
By: /s/ Frank Benesh
------------------------
Title: Director
Address for notices:
One Federal Street
Boston, Massachusetts 02211
Attn: Mr. Frank Benesh
Facsimile: (617) 423-5214
Tel: (617) 292-3514
Domestic and Offshore Lending
Office:
One Federal Street
Boston, Massachusetts 02211
Attn: Mr. Frank Benesh
Facsimile: (617) 423-5214
Tel: (617) 292-3514
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<PAGE>
BANQUE NATIONALE de PARIS
By: /s/ Rafael C. Lumanlan
-------------------------
Title: Vice President
By: /s/ Jennifer Y. Cho
-------------------------
Title: Vice President
Address for notices:
180 Montgomery Street
San Francisco, California
94104-4205
Attn: Rafael Lumanlan,
Vice President
Facsimile: (415) 296-8954
Tel: (415) 956-0707
Domestic and Offshore Lending
Office:
180 Montgomery Street
San Francisco, California
94104-4205
Attn: Donald Hart,
Treasurer
Facsimile: (415) 989-9041
Tel: (415) 956-2511
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<PAGE>
THE LONG-TERM CREDIT
BANK OF JAPAN, LTD,
Los Angeles Agency
By: /s/ Motokazu Uematsu
-------------------------
Title: Deputy General Manager
Address for notices:
444 S. Flower Street, Suite 3700
Los Angeles, California 90071
Attn: Joanne Chou
Facsimile: (213) 622-6908
Tel: (213) 629-5777
Domestic and Offshore Lending
Office:
444 S. Flower Street, Suite 3700
Los Angeles, California 90071
Attn: Diane Huynh
Facsimile: (213) 622-1067
Tel: (213) 629-5777
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<PAGE>
ROYAL BANK OF CANADA
By: /s/ Michael A. Cole
------------------------
Title: Manager
Address for notices:
600 Wilshire Boulevard, Suite 800
Los Angeles, California 90017
Attn: Michael A. Cole, Manager
Facsimile: (213) 955-5350
Tel: (213) 955-5328
Domestic and Offshore Lending
Office:
Pierrepont Plaza
300 Cadman Plaza West
Brooklyn, New York 11201-2701
Attn: Linda Swanston, Loans
Administration
Facsimile: (212) 522-6292
Tel: (212) 858-7176
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<PAGE>
UNION BANK
By: /s/ John W. Hein
-------------------------
Title: Senior Vice President
Address for notices:
350 California Street
San Francisco, California 94104
Attn: John W. Hein, Senior Vice
President
Facsimile: (415) 705-7046
Tel: (415) 705-7041
Domestic and Offshore Lending
Office:
445 S. Figueroa Street
Los Angeles, California 90071
Attn: John W. Hein, Senior Vice
President
Facsimile: (213) 236-6701
Tel: (213) 236-6609
88
<PAGE>
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By: /s/ Makoto Masuda
------------------------
Title: Deputy General Manager
Address for notices:
555 California Street, Suite 1610
San Francisco, California 94109
Attn: Greg Stewart, Vice President
Facsimile: (415) 982-1917
Tel: (415) 981-3131
Domestic and Offshore Lending
Office:
555 California Street, Suite 1610
San Francisco, California 94109
Attn: Greg Stewart, Vice President
Facsimile: (415) 982-1917
Tel: (415) 981-3131
89
<PAGE>
CHEMICAL BANK
By: /s/ Edmond DeForest
------------------------
Title: Vice President
Address for notices:
270 Park Avenue
New York, New York 10017-2070
Attn:
Facsimile: (212) 270-2112
Tel: (212) 270-6637
Domestic and Offshore Lending
Office:
270 Park Avenue
New York, New York 10017-2070
Attn:
Facsimile: (212) 270-2112
Tel: (212) 270-6637
90
<PAGE>
NATIONAL WESTMINSTER BANK, PLC
Nassau Branch
By: /s/ Daniel R. Dornblaser
------------------------
Title: Vice President
Address for notices:
350 S. Grand Avenue, 39th Floor
Los Angeles, California 90071
Attn: Dan Dornblaser
Facsimile: (213) 623-6540
Tel: (213) 624-8555
Domestic and Offshore Lending
Office:
Nassau - New York Branch
175 Water Street
New York, NY 10038
Attn: Robert Passarello, 21st Floor
Facsimile: (212) 602-4118
Tel: (212) 602-4149
91
<PAGE>
NATIONAL WESTMINSTER BANK, PLC
New York Branch
By: /s/ Daniel R. Dornblaser
------------------------
Title: Vice President
Address for notices:
350 S. Grand Avenue, 39th Floor
Los Angeles, California 90071
Attn: Dan Dornblaser
Facsimile: (213) 623-6540
Tel: (213) 624-8555
Domestic and Offshore Lending
Office:
Nassau - New York Branch
175 Water Street
New York, NY 10038
Attn: Robert Passarello, 21st Floor
Facsimile: (212) 602-4118
Tel: (212) 602-4149
92
<PAGE>
TEXAS COMMERCE BANK
By: /s/ Steve Prichett
------------------------
Title: Vice President
Address for notices:
700 Lavaca
Austin, Texas 78701
Attn: President
Facsimile: (512) 479-2774
Tel: (512) 479-2775
Domestic and Offshore Lending
Office:
700 Lavaca
Austin, Texas 78701
Attn: President
Facsimile: (512) 479-2774
Tel: (512) 479-2775
93
<PAGE>
Schedule 2.01
Commitments
-----------
<TABLE>
<CAPTION>
Pro Rata
Bank Commitment Share
- - - ---- ---------- -------------
<S> <C> <C>
Bank of America National Trust
and Savings Association $47,500,000 19.000000000%
The First National Bank of
Boston $37,500,000 15.000000000%
Shawmut Bank, N.A. $30,000,000 12.000000000%
Banque Nationale de Paris $20,000,000 8.000000000%
The Long-Term Credit
Bank of Japan, Ltd.
Los Angeles Agency $20,000,000 8.000000000%
Royal Bank of Canada $20,000,000 8.000000000%
Union Bank $20,000,000 8.000000000%
The Industrial Bank of
Japan, Limited $15,000,000 6.000000000%
Chemical Bank $15,000,000 6.000000000%
National Westminster Bank, PLC $12,500,000 5.000000000%
Texas Commerce Bank $12,500,000 5.000000000%
----------- -----------
$250,000,000 100%
=========== ===
</TABLE>
94
<PAGE>
Exhibit A
Note
----
Up to U.S. $_____________ _____________ California
Dated ______________, 199__
FOR VALUE RECEIVED, the undersigned ADVANCED MICRO DEVICES, INC., a
Delaware corporation (the "Company"), HEREBY PROMISES TO PAY in lawful money of
the United States of America in same-day funds to the order of
_____________________ (the "Bank"), on the Revolving Termination Date (as
defined in the Credit Agreement referred to below) the principal sum of
_________________ DOLLARS (U.S. $_________________) or, if less, the principal
amount of all Loans (as defined below) outstanding made by the Bank from time to
time for the benefit, or at the request, of the Company from and after the date
of this Note through the Revolving Termination Date, together with interest
thereon, as shown on the Schedule attached hereto and any continuation thereof.
The Company promises to pay interest on the unpaid principal amount of
the Loans made to it by the Bank from the date of each Loan until such principal
amount is paid in full, at such rates, and payable at such times, as are
specified in the Credit Agreement (as defined below).
This Note (and the Schedule attached hereto) is one of the Notes
referred to in, and is subject to and entitled to all of the benefits of, the
Amended and Restated Credit Agreement dated as of September 21, 1994 (as
extended, renewed, amended or restated from time to time, the Credit Agreement),
----------------
among the COMPANY, the several financial institutions from time to time a party
thereto (collectively, the "Banks"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent, and THE FIRST NATIONAL BANK OF BOSTON, as Co-Agent for
the Banks. The Credit Agreement, among other things, (i) provides for the making
of revolving loans (the "Loans") by the Bank to the Company pursuant to Article
II therein, which Loans may be Offshore Rate Loans or Reference Rate Loans (as
such terms are defined in the Credit Agreement), in an aggregate amount not to
exceed at any time outstanding the United States Dollar amount first mentioned
above (the indebtedness of the Company resulting from the Loans being evidenced
by this Note); and (ii) contains provisions for acceleration by the Bank of the
maturity hereof upon the happening of certain stated events.
<PAGE>
The Company hereby waives presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF CALIFORNIA.
ADVANCED MICRO DEVICES, INC.
By: ______________________
Title:_____________________
A-2
<PAGE>
SCHEDULE
--------
Loans made to Advanced Micro Devices, Inc. under the Amended and Restated
Credit Agreement, dated as of September 21, 1994 (together with all amendments
and other supplements or modifications, if any, from time to time hereafter made
thereto), and payment of principal of such loans.
________________________________________________________________________________
<TABLE>
<CAPTION>
Amount of Outstanding Applicable
Amount Principal Principal Interest Notation
Date of Loan Payment Balance Period Made By
- - - ---- ------- ------- ------- ------ -------
<S> <C> <C> <C> <C> <C>
</TABLE>
A-3
<PAGE>
Exhibit B
NOTICE OF BORROWING
-------------------
Date: _______________
To: Bank of America National Trust and Savings Association, as Agent for the
several financial institutions from time to time party to the Amended and
Restated Credit Agreement dated as of September 21, 1994 (as extended,
renewed, amended or restated from time to time, the "Credit Agreement")
----------------
among Advanced Micro Devices, Inc., the several financial institutions from
time to time party thereto, and Bank of America National Trust and Savings
Association, as Agent, and The First National Bank of Boston as Co-Agent
Ladies and Gentlemen:
The undersigned, ADVANCED MICRO DEVICES, INC. (the "Company"), refers to
-------
the Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.03 of
the Credit Agreement, of the Borrowing specified herein:
1. The Business Day of the proposed Borrowing is___________, 19__.
2. The aggregate amount of the proposed Borrowing is $______________.
3. The Borrowing is to be comprised of $___________ of [Offshore Rate]
[Reference Rate] Loans.
4. The duration of the Interest Period for the Offshore Rate Loans
included in the Borrowing shall be [________ days] [________ months].
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed Borrowing, before
and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Company contained in
Sections 5.01, 5.02, 5.03, 5.04, 5.06, 5.08, 5.09, 5.10, 5.11, 5.13, 5.14,
5.15, 5.17, 5.18, 5.19 and 5.20 of the Credit Agreement are true and
correct as though made on and as of such date (except to the extent such
representations and warranties relate to an earlier date) and the
representations and warranties contained in Sections 5.05, 5.07, 5.12 and
5.16 shall be true and correct on and as
B-1
<PAGE>
of each such borrowing date with the same effect as if made on and as of
such borrowing date except for any changes since the Closing Date which do
not or would reasonably be expected not to have a Material Adverse Effect;
(b) no Default or Event of Default has occurred and is continuing, or
would result from such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate principal
amount of all outstanding Loans to exceed the Aggregate Commitment.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Borrowing as of the date first set forth above.
ADVANCED MICRO DEVICES, INC.
By: __________________________
Title: _______________________
B-2
<PAGE>
Exhibit C
NOTICE OF CONVERSION/CONTINUATION
---------------------------------
Date: ____________________
To: Bank of America National Trust and Savings Association, as Agent for the
several financial institutions from time to time party to the Amended and
Restated Credit Agreement dated as of September 21, 1994 (as extended,
renewed, amended or restated from time to time, the "Credit Agreement")
----------------
among Advanced Micro Devices, Inc., the several financial institutions from
time to time party thereto, and Bank of America National Trust and Savings
Association, as Agent and The First National Bank of Boston, as Co-Agent
Ladies and Gentlemen:
The undersigned, ADVANCED MICRO DEVICES, INC. (the "Company"), refers to
the Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.04 of
the Credit Agreement, of the [conversion] [continuation] of the Loans specified
herein, that:
1. The Business Day of the [conversion] [continuation] is
_______________, 19 .
2. The aggregate amount of the Loans to be [converted] [continued] is
$_________.
3. The Loans are to be [converted into] [continued as] [Offshore Rate]
[Reference Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the Loans
included in the [conversion] [continuation] shall be [ days] [ months].
The undersigned hereby certifies that the following statements are true on
the date hereof, and will be true on the date of the proposed [conversion]
[continuation], before and after giving effect thereto and to the application of
the proceeds therefrom:
(a) no Default or Event of Default has occurred and is continuing, or
would result from such proposed [conversion] [continuation]; and
<PAGE>
(b) The proposed [conversion] [continuation] will not cause the
aggregate principal amount of all outstanding Loans to exceed the Aggregate
Commitment.
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation as of the date first set forth above.
ADVANCED MICRO DEVICES, INC.
By: __________________________
Title: _______________________
C-2
<PAGE>
Exhibit D
COMPLIANCE CERTIFICATE
----------------------
Pursuant to that certain Amended and Restated Credit Agreement dated as of
September 21, 1994 (as extended, renewed, amended or restated from time to time,
the "Credit Agreement," the terms defined therein being used herein and in the
----------------
Schedules attached hereto as therein defined) among ADVANCED MICRO DEVICES,
INC., a Delaware corporation (the "Company"), the several financial institutions
from time to time party thereto, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent, and THE FIRST NATIONAL BANK OF BOSTON, as Co-Agent for
the Banks, the undersigned ______________________, certifies that s/he is the
Chief Financial Officer of the Company, and that, as such s/he is authorized to
execute and deliver this Certificate, and that:
[Use this paragraph if this Certificate is delivered in connection with the
financial statements required by subsection 6.01(a) of the Credit Agreement:]
1. Attached as Schedule D-2 hereto are the audited consolidated balance
------------
sheet of the Company as of _________, 199_ and the related consolidated
statements of income, shareholders' equity and cash flows for such fiscal year,
which set forth a comparison with the previous year. The financial statements
attached as Schedule D-2 are accompanied by the opinion of __________________.
------------
or
[Use these paragraphs if this Certificate is delivered in connection
with the financial statements required by subsection 6.01(b) and (c) of the
Credit Agreement:]
1. (a) Attached as Schedule D-2 hereto are the unaudited consolidated
------------
balance sheet of the Company and its consolidated Subsidiaries and the related
consolidated statements of income, shareholders' equity and cash flows, all for
the fiscal quarter ended __________, 199_ and for the portion of the fiscal year
ending on such day. The financial statements attached as Schedule D-2 are
------------
complete and correct and fairly present, in accordance with GAAP, the financial
position and results of operations of the Company and its Subsidiaries;
provided, however, footnotes and other financial presentations customarily
- - - -------- -------
presented only for audited year-end statements under GAAP are not included.
(b) Attached as Schedule D-3 hereto are the unaudited consolidating
------------
balance sheets of the Company and each of its Subsidiaries, and the related
consolidating statements of income, shareholders' equity and cash flow for the
fiscal quarter ended _____________, 199_. The financial statements attached as
<PAGE>
Schedule D-3 are complete and correct and were used in connection with the
------------
preparation of the unaudited financial statements attached as Schedule D-2
------------
hereto.
2. The Company has reviewed the terms of the Credit Agreement and the
undersigned has made, or has caused to be made under his/her supervision, a
review of the transactions entered into by the Company and its Subsidiaries
during the accounting period covered by the attached financial statements which
could affect the Company's or such Subsidiary's compliance with such terms.
3. To the best of the undersigned's knowledge, the Company and its
Subsidiaries, during such period, have observed, performed or satisfied all of
the covenants and other agreements contained in the Credit Agreement to be
observed, performed or satisfied by the Company or its Subsidiaries.
4. The examinations described in paragraph 4 above did not disclose, and
the undersigned has obtained no knowledge of, any Default or Event of Default.
5. The financial covenant calculations and information contained on
Schedule D-1 are in accordance with GAAP and are true and accurate on and as of
- - - ------------
the date of this Certificate.
6. The Company has reviewed the terms of the CIBC Guaranty and the
undersigned has made, or has caused to be made under his/her supervision, a
review of the transactions entered into by the Company and its Subsidiaries
during the accounting period covered by the attached financial statements which
could affect the Company's or such Subsidiary's compliance with such terms, and
such examination did not disclose, and the undersigned has obtained no knowledge
of, any Deposit Event as such term is defined in the CIBC Guaranty.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_________, 199_.
________________________
(signature)
Title: _________________
D-2
<PAGE>
SCHEDULE D-1
Except as otherwise provided, all amounts set forth below refer to the Company's
consolidated financial statements for the [fiscal quarter] [fiscal year] ended
___________,199_.
1. Modified Quick Ratio (Section
--------------------
7.10)
a. The sum of:
(i) cash ________
(ii) Cash Equivalents (other ________
than those subject to a
Lien securing a non-
GAAP liability)
(iii) 75% of Long Term Investments ________
(other than
those subject to
a Lien securing
a non-GAAP liability)
(iv) Receivables (net of
doubtful account ________
allowance)
Total ________
b. The sum of all
Consolidated Current
Liabilities (including
all outstanding Loans ________
under the Credit
Agreement).
c. Required Ratio of 1(a) 1.10 to
-------
to 1(b). 1.00
----
(minimum)
d. Actual Ratio of 1(a) to ________
1(b).
Page i of iii
<PAGE>
2. Minimum Tangible Net Worth
--------------------------
(Section 7.11)
a. The sum of:
i) $1,300,000,000. $1,300,000,000
ii) 75% of net income
(without subtracting
losses) earned in each
fiscal quarter,
commencing with the
third fiscal quarter of
1994. ________
iii) 100% of Net Proceeds
from any equity
securities issued in
each fiscal quarter,
occurring after
September 21, 1994. ________
iv) 100% of any increase in
stockholders' equity
resulting from the
conversion of debt
securities to equity
securities, occurring
after September 21, ________
1994
Total ________
b. Actual Consolidated
Tangible Net Worth:
Total assets ________
Less: goodwill, licensing
agreements,
patents,
trademarks, trade
names, organization
expense, treasury
stock, unamortized
debt discount and
premium, deferred
charges and other ________
like intangibles
Less: total liabilities
(including accrued
and deferred income
taxes and
Subordinated Debt) ________
Page ii of iii
<PAGE>
Consolidated Tangible Net
Worth ________
c. Difference between 2(a)
and 2(b). ________
3. Leverage Ratio (Section 7.12)
--------------
a. Total consolidated
liabilities (from 2(b)). ________
b. Consolidated Tangible Net
Worth (from 2(b)). ________
c. Required Ratio of 3(a) to
3(b). 0.85 to
-------
1.0
---
(maximum)
d. Actual Ratio of 3(a) to ________
3(b).
4. Fixed Charge Coverage Ratio
---------------------------
(Section 7.13)
(for the four consecutive
fiscal quarter period ending on
the last day of the last fiscal
quarter covered in this
Schedule C-1)
a. The sum of:
i) interest expense ________
ii) operating lease ________
expense
iii) pre-tax income ________
Total ________
b. The sum of:
i) interest expense ________
ii) operating lease ________
expense
iii) the average current
portion of long-term
debt for each of the
four quarters in such
four fiscal quarter
period ________
Total ________
Page iii of iii
<PAGE>
c. Required Ratio of 4(a) to 1.25 to
-------
4(b). 1.0
---
(minimum)
d. Actual Ratio of 4(a) to
4(b). ________
Page 1 of iii
<PAGE>
Exhibit E
SHARE ACQUISITION CERTIFICATE
-----------------------------
Pursuant to that certain Amended and Restated Credit Agreement dated as of
September 21, 1994 (as extended, renewed, amended or restated from time to time,
the "Credit Agreement," the terms defined therein being used herein as therein
----------------
defined) among ADVANCED MICRO DEVICES, INC., a Delaware corporation (the
"Company"), the several financial institutions from time to time party thereto,
-------
and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent, and THE
FIRST NATIONAL BANK OF BOSTON, as Co-Agent for the Banks, the undersigned
_______________, certifies that s/he is the __________________ of the Company,
and that, as such s/he is authorized to execute and deliver this Certificate,
and that:
1. On ____________, 199_, the Company [purchased] [redeemed] [acquired]
[_____________ shares of its [common] [preferred] stock] [warrants or options to
acquire ___________ shares of its [common] [preferred] stock];
2. [$____________] [state value, if other than cash] was given in exchange
for such shares or rights to acquire such shares, which amount is not greater
than the maximum sum permitted pursuant to Section 7.09(a)(ii) of the Credit
Agreement; and
3. No Default or Event of Default has occurred and is continuing, or has
resulted from the above-disclosed transaction.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
____________, 199_.
By: ________________________
Title: _____________________
<PAGE>
Exhibit F
ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE (this "Agreement") dated as of
---------
______________________, 199_ is made between ___________________________________
________________________________ (the "Assignor") and __________________________
--------
(the "Assignee").
--------
RECITALS
WHEREAS, the Assignor is party to that certain Amended and Restated Credit
Agreement dated as of September 21, 1994 among ADVANCED MICRO DEVICES, INC., a
Delaware corporation (the "Company"), the financial institutions from time to
-------
time party thereto (including the Assignor, the "Banks") and BANK OF AMERICA
-----
NATIONAL TRUST AND SAVINGS ASSOCIATION, as Agent, and THE FIRST NATIONAL BANK OF
BOSTON, as Co-Agent for the Banks (as extended, renewed, amended or restated
from time to time, the "Credit Agreement"). Terms defined in the Credit
----------------
Agreement are used herein with the same meaning;
WHEREAS, as provided under the Credit Agreement, the Assignor has committed
to make loans (the "Loans") to the Company in an aggregate amount not to exceed
________ United States dollars (U.S.$__________ ) (the "Commitment");
----------
WHEREAS, [the Assignor has made Loans in the aggregate principal amount of
___________ United States dollars (U.S.$___________) to the Company] [no Loans
are outstanding under the Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee a ratable part of
the rights and obligations of the Assignor under the Credit Agreement in respect
of its Commitment, [together with a corresponding portion of each of its
outstanding Loans] in an amount equal to ____________ United States dollars
(U.S.$_____________) (the "Assigned Amount") on the terms and subject to the
---------------
conditions set forth herein, and the Assignee wishes to accept assignment of
such rights and to assume such obligations from the Assignor on such terms and
subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreement
contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
-------------------------
(a) With effect on and after the Effective Date (as defined in Section 5
hereof), the Assignor hereby sells and assigns to Assignee, and the Assignee
hereby purchases and assumes from the Assignor, the Assigned Amount, which shall
be equal to _________ percent (_____ %) (the "Assignee's Percentage Share") of
---------------------------
all of
<PAGE>
the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the Assignee's Percentage Share of the Assignor's Commitment
and any outstanding Loans. The assignment set forth in this Section 1(a) shall
be without recourse to, or representation or warranty (except as expressly
provided in this Agreement) by, the Assignor.
(b) With effect on and after the Effective Date, the Assignee shall be a
party to the Credit Agreement and succeed to all of the rights and be obligated
to perform all of the obligations of a Bank under the Credit Agreement with a
Commitment in an amount equal to the Assigned Amount. The Assignee agrees that
it will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a Bank.
It is the intent of the parties hereto that the Commitment of the Assignor
shall, as of the Effective Date, be reduced by an amount equal to the Assigned
Amount and the Assignor shall relinquish its rights and be released from its
obligations under the Credit Agreement to the extent such obligations have been
assumed by the Assignee. The Assignee hereby appoints and authorizes Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to Agent by the
terms thereof, together with such powers as are reasonably incidental thereto.
(c) After giving effect to the assignment and assumption, on the Effective
Date the Assignee's Commitment will be ______________________________ United
States dollars (U.S.$___________).
2. Payments.
--------
(a) As consideration for the sale, assignment and transfer contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the Effective Date
in immediately available funds an amount equal to _____________________________
United States dollars (U.S. $_________), representing the Assignee's Percentage
Share of the principal amount of all Loans previously made, and currently owned,
by the Assignor to the Company under the Credit Agreement and outstanding on the
Effective Date.
(b) The Assignor further agrees to pay to the Agent a processing or
transfer fee in the amount of $3,000.
[(c) The Assignee agrees to pay to the Assignor a fee in an amount equal to
____________ percent ( %) of all [interest, commissions and fees] paid by
the Company to the Assignee under the Credit Agreement. Such fee shall be
payable quarterly in arrears on the last business day of each ________,
________, and ________ , commencing on ______________; provided, however, that
-------- -------
such fee shall not be due and payable hereunder if the Company has not made a
payment of [interest, commissions, fees] during such immediately preceding
quarterly period. All payments to the Assignor pursuant to this Section 2(c)
shall be made by
F-2
<PAGE>
wire transfer in immediately available funds to________________________________
_______________________________, Attention:_________________________ Account #
___________, Reference: __________________________________________________, or
to such other person or place as the Assignor may designate in writing to
the Assignee from time to time.]
(d) To the extent payment to be made by the Assignee pursuant to
Section(s) 2(a) [or (c)] hereof are not made when due, the Assignor shall be
entitled to recover such amount together with interest thereon at the Federal
Funds Rate per annum accruing from the date such amounts were due.
3. Reallocation of Payments.
------------------------
Any interest, commissions, fees and other payments accrued to but excluding
the Effective Date with respect to the Loans and the Commitment, shall be for
the account of the Assignor. Any interest, fees and other payments accrued on
and after the Effective Date with respect to the Assigned Amount shall be for
the account of the Assignee. Each of the Assignor and the Assignee agree that it
will hold in trust for the other party any interest, commissions, fees and other
amounts which it may receive to which the other party is entitled pursuant to
the preceding sentences and pay to the other party any such amounts which it may
receive promptly upon receipt. The Assignor and the Assignee's obligations to
make the payments referred to in this Section 3 are non-assignable.
4. Independent Credit Decision.
---------------------------
The Assignee (i) acknowledges that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 6.01 thereof, and such other documents and information as it has deemed
appropriate to make its own independent credit and legal analysis and decision
to enter into this agreement; and (ii) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Banks and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit and legal decisions in taking or not taking
action under the Credit Agreement.
5. Effective Date; [Notices].
-------------------------
[(a)]The effective date for this Agreement shall be _________________
(the "Effective Date"); provided, that the following conditions precedent have
--------
satisfied on or before the Effective Date:
(i) this Agreement shall be executed and delivered by the Assignor and
the Assignee;
F-3
<PAGE>
(ii) the requirements for an effective assignment by a Bank set forth
in Section 10.07 of the Credit Agreement shall be satisfied with respect to
the Assigned Amount;
(iii) the Assignee shall pay to the Assignor all amounts due to the
Assignor under this Agreement; and
(iv) the processing or transfer fee referred to in Section 2(b) shall
have been paid to the Agent.
(b) Promptly following the execution of this Agreement, the Assignor shall
deliver to the Agent for acceptance and recording by the Agent, the notices,
agreements and other documents, and administrative details, as may be required
under the Credit Agreement.
[6.] Agent.
-----
[(a) The Assignee hereby appoints and authorizes the Assignor to take such
action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent by the Banks pursuant to the terms of
the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by the
Assignor in its capacity as Agent under the Credit Agreement.]
[NOTE: SECTION 6 ONLY FOR ASSIGNMENTS BY BOFA]
7. Withholding Tax.
---------------
If the Assignee is organized under the laws of any jurisdiction other than
the United States or any state or other political subdivision thereof it agrees
that it will furnish the Assignor, the Agent and the Company, concurrently with
the execution of this Agreement, either U.S. Internal Revenue Service Form 4224
or U.S. Internal Revenue Service Form 1001 (wherein the Assignee claims
entitlement to complete exemption from or reduced rate of U.S. federal
withholding tax on all interest payments under the Credit Agreement), as well as
Form W-8 or W-9, if applicable, provided, however, that the Assignee shall not
-------- -------
be required to deliver Form 4224 or 1001 under this Section 7 to the extent that
delivery of such form is not authorized by law. The Assignee agrees to comply
with Section 3.01(f) of the Credit Agreement (if applicable).
8. Representations and Warranties.
------------------------------
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any lien, security interest or other adverse
claim; (ii) it is duly organized and existing and it has the full power and
authority to
F-4
<PAGE>
take, and has taken, all action necessary to execute and deliver this Agreement
and any other documents required or permitted to be executed or delivered by it
in connection with this Agreement and to fulfill its obligations hereunder;
(iii) no notices to, or consents, authorizations or approvals of, any person are
required (other than already given or obtained) for its due execution, delivery
and performance of this Agreement, and apart from any agreements or undertaking
or filings required by the Credit Agreement, no further action by, or notice to,
or filing with, any person is required of it for such execution, delivery or
performance; and (iv) this Agreement has been duly executed and delivered by it
and constitutes the legal, valid and binding obligations of the Assignor,
enforceable against the Assignor in accordance with the terms hereof, except
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of the Company or the performance or observance by the Company of any of its
respective obligations under the Credit Agreement or any other instrument or
document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken, all action
necessary to execute and deliver this Agreement and any other documents required
or permitted to be executed or delivered by it in connection with this
Agreement, and to fulfill its obligations hereunder; (ii) no notices to, or
consents, authorizations or approvals of, any person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Agreement; and apart from any agreements or undertaking or filings
required by the Credit Agreement, no further action by, or notice to, or filing
with, any person is required of it for such execution, delivery or performance;
(iii) this Agreement has been duly executed and delivered by it and constitutes
the legal, valid and binding obligations of the Assignee, enforceable against
the Assignee in accordance with the terms hereof, except subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and to
general equitable principles; and (iv) it is an Eligible Assignee.
F-5
<PAGE>
9. Further Assurances.
------------------
The Assignor and the Assignee each hereby agrees to execute and deliver
such other instruments, and take such other actions, as either party may
reasonably request in connection with the transactions contemplated by this
Agreement, including, without limitation, the delivery of any notices or other
documents or instruments to the Company or the Agent which may be required in
connection with the assignment and assumption contemplated hereby.
10. Indemnity.
---------
The Assignee agrees to indemnify and hold harmless the Assignor against any
and all losses, cost, expenses (including, without limitation, reasonable
attorneys' fees and the allocated costs and expenses for in-house counsel) and
liabilities incurred by the Assignor in connection with or arising in any manner
from the non-performance by the Assignee of any obligation assumed by the
Assignee under this Agreement.
11. Miscellaneous.
-------------
(a) Any amendment or waiver of any provision of this Agreement shall be in
writing signed by the parties hereto. No failure or delay by either party hereto
in exercising any right, power or privilege hereunder shall operate as a waiver
of any breach of the provisions of this Agreement and shall be without prejudice
to any rights with respect to any other or further breach hereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) All communications among the parties or notices in connection herewith
shall be in writing, hand-delivered, or sent by mail, telex or facsimile
transmitter, addressed as follows: (i) if to the Assignor or the Assignee, at
their respective addresses set forth in the signature pages hereof and (ii) if
to the Company or to the Agent, at their respective addresses set forth in the
Credit Agreement or other documents or instruments. All such communications and
notices shall be effective upon receipt.
(d) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Agreement.
(e) The representations and warranties made herein shall survive the
consummation of the transactions contemplated hereby.
(f) This Agreement shall be binding upon and inure to the benefit of the
Assignor and the Assignee and their respective
F-6
<PAGE>
successors and assigns; provided, however, that no party shall assign its rights
hereunder without the prior written consent of the other party and any purported
assignment, absent such consent, shall be void. The preceding sentence shall not
limit the right of the Assignee to assign or participate all or part of the
Assignee's Percentage Share and the Assigned Amount and any outstanding Loans in
the manner contemplated by the Credit Agreement.
(g) The Assignor may at any time or from time to time further ratably
grant to others, to the extent not already assigned to Assignee, assignments or
participations in Assignor's Commitment, and any outstanding Loans.
(h) This Agreement may be executed in any number of counterparts and all
of such counterparts taken together shall be deemed to constitute one and the
same instrument.
(i) This Agreement shall be governed by, and construed in accordance with,
the law of the State of California; provided that parties hereto shall retain
all rights arising under federal law. Any legal action or proceeding with
respect to this Agreement may be brought in the courts of the State of
California or of the United States for the Northern District of California, and
by execution and delivery of this Agreement, each of the parties consents, for
itself and in respect of its property, to the non-exclusive jurisdiction of
those courts. Each of the parties irrevocably waives any objection, including
any objection to the laying of venue or based on the grounds of forum non
---------
conveniens, which it may now or hereafter have to the bringing of any action or
- - - ----------
proceeding in such jurisdiction in respect of this Agreement, the other Loan
Documents or any document related hereto or thereto. The parties each waive
personal service of any summons, complaint or other process, which may be made
by any other means permitted by California law.
(h) The parties each waive their respective rights to a trial by jury of
any claim or cause of action based upon or arising out of or related to this
Agreement, the Credit Agreement, the other Loan Documents, or the transactions
contemplated hereby or thereby, in any action, proceeding or other litigation of
any type brought by any of the parties against any other party or parties,
whether with respect to contract claims, tort claims, or otherwise. The parties
each agree that any such claim or cause of action shall be tried by a court
trial without a jury. Without limiting the foregoing, the parties further agree
that their respective right to a trial by jury is waived by operation of this
section as to any action, counterclaim or other proceeding which seeks, in whole
or in part, to challenge the validity or enforceability of this Agreement, the
Credit Agreement or the other Loan Documents or any provision hereof or thereof.
This waiver shall apply to any subsequent amendments, renewals, supplements or
modifications to
F-7
<PAGE>
this Agreement, the Credit Agreement and the other Loan Documents.
(j) This Agreement and any agreement, document or instrument attached
hereto or referred to herein integrate all the terms and conditions mentioned
herein or incidental hereto, constitutes the entire agreement and understanding
between the parties hereto and supersedes any and all prior agreements and
understandings related to the subject matter hereof. In the event of any
conflict between the terms, conditions and provisions of this Agreement and any
such agreement, document or instrument, the terms, conditions and provisions of
this Agreement shall prevail.
(k) Headings are for reference only and are to be ignored in interpreting
this Agreement.
(l) The illegality or unenforceability of any provision of this Agreement
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
Agreement or any instrument or agreement required hereunder.
F-8
<PAGE>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Agreement to be executed and delivered by their duty authorized officers as of
the date first above written.
_________________________,
Assignor
By: _____________________
Title: __________________
Address: ________________
________________
________________
_________________________,
Assignee
By: _____________________
Title: __________________
Address: ________________
________________
________________
F-9
<PAGE>
Exhibit G
September 21, 1994
Bank of America National Trust and
Savings Association, as Agent
1455 Market Street, 12th Floor
San Francisco, California 94103
The First National Bank of Boston,
as Co-Agent
435 Tasso Street, Suite 250
Palo Alto, California 94301
The Banks Listed on Schedule A hereto
Ladies and Gentlemen:
We have acted as counsel for Advanced Micro Devices, Inc., a Delaware
corporation (the "Company"), in connection with the execution and delivery of
the Amended and Restated Credit Agreement, dated as of September 21, 1994 (the
"Agreement"), between the Company, Bank of America National Trust and Savings
Association as Agent (the "Agent"), The First National Bank of Boston as Co-
Agent and the Banks named on the signature pages thereto (the "Banks").
This opinion is provided pursuant to section 4.01 of the Agreement.
Capitalized terms not otherwise defined herein have the respective meanings set
forth in the Agreement, except that the term Loan Documents, as used herein,
means the Agreement, any Note delivered by the Company pursuant to Section
2.02(b) of the Agreement and the certificates to be provided by the Company
pursuant to Sections 4.01(b), (c) and (f) of the Agreement.
We have examined executed copies of the Agreement and the other Loan
Documents; certificates of public officials from the States of Delaware,
California, Texas and various other states of the United States; the Certificate
of Incorporation and By-laws of the Company, as amended to date; records of
proceedings of the Board of Directors of the Company during or by which
resolutions were adopted relating to matters covered by this opinion; and
certificates of officers of the Company as to certain factual matters. The
Company has certified to us in a Certificate attached hereto as Exhibit A that
the Company has no Contractual Obligation which is not listed in the Certificate
and which is material to the Company as that term is defined in the Certificate.
The Company has provided copies to us of the
G-1
<PAGE>
documentation relating to such Contractual Obligations, which documentation we
have reviewed. In addition, we have made such other investigations as we have
deemed necessary to enable us to express the opinions hereinafter set forth. We
have assumed the genuineness of all signatures of persons signing the Agreement
on behalf of parties thereto other than the Company, the authenticity of all
documents submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified, conformed or
photostatic copies.
As used in this opinion, the expression "to the best of our knowledge after
due investigation" means that, after an examination of documents in our files
and documents made available to us by the Company and after inquiries of one or
more officers of the Company which we believe are sufficient for the purpose of
expressing the opinions contained herein, we find no reason to believe that the
opinions expressed herein are factually incorrect; but beyond that, we have made
no independent factual investigation for the purpose of rendering this opinion.
Based upon the foregoing, and further subject to the last three paragraphs
of this letter, we hereby advise you that in our opinion:
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. The Company has
the requisite corporate power and authority to own, lease, license and
operate its Property, to conduct the business in which it is currently
engaged, to execute, deliver and perform its obligations under the
Agreement and the other Loan Documents to which it is a party and to borrow
under the Agreement.
2. The Company is duly licensed and qualified to transact business as
foreign corporation under the laws of, and is in good standing in, each
state of the United States where its ownership, lease, license or operation
of Property or the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified would not, in the
aggregate, materially adversely affect (i) the business, operations,
Property or financial or other condition of the Company and its
Subsidiaries on a consolidated basis, (ii) the ability of the Company to
perform its obligations under the Agreement or the other Loan Documents, or
(iii) the rights of any party to the Agreement or the other Loan Documents.
3. Each of the Company's Material Subsidiaries is a corporation (or,
in the case of AMD (Thailand) Ltd. and Advanced Micro Devices (Singapore)
Pte. Ltd., a limited liability company and a private limited company,
respectively) duly organized, validly existing and in good standing (where
such concept is applicable) under the laws of the jurisdiction of its
formation, and has the requisite corporate power and authority to own,
lease, license and
G-2
<PAGE>
operate its Property, and to conduct its business in which it is currently
engaged.
4. AMD International Sales & Service, Ltd., a Delaware Corporation,
is duly licensed and qualified to transact business, and is in good
standing, in the State of California. With the exception of the activities
of AMD International Sales & Service, Ltd. in California, as to each
Material Subsidiary, neither its ownership, lease, license or operation of
Property nor the conduct of its business requires that such Material
Subsidiary be licensed and qualified to transact business as a foreign
corporation under the laws of any state of the United States, except to the
extent that the failure to be so qualified would not, in the aggregate,
materially adversely affect (i) the business, operations, Property or
financial or other condition of the Company and its Subsidiaries on a
consolidated basis, (ii) the ability of the Company to perform its
obligations under the Agreement and the other Loan Documents to which it is
a party, or (iii) the rights of any party to the Agreement or the other
Loan Documents. AMD International Sales & Service, Ltd. is duly licensed
and qualified to transact business, and is in good standing (to the extent
such concept is applicable), in The Netherlands.
5. The Agreement, the borrowings proposed to be made thereunder and
the other Loan Documents have been duly authorized by the Company and no
further corporate action is required in connection therewith. The Agreement
and the other Loan Documents to which the Company is a party have each been
duly executed and delivered on behalf of the Company and each constitutes
the legal, valid and binding obligation of the Company enforceable against
the Company in accordance with its terms.
6. No consent, approval, authorization, registration or filing with
any Governmental Authority or any trustee or holder of Indebtedness is
required in connection with the execution, delivery or performance by the
Company of the Agreement or the other Loan Documents to which it is a party
or the borrowings proposed to be made under the Agreement.
7. The execution, delivery and performance by the Company of the
Agreement and the other Loan Documents to which it is a party and the
borrowings proposed to be made under the Agreement will not violate,
contravene or result in a material breach of any Organization Document or
Contractual Obligation of the Company listed on Exhibit A attached hereto
or any Requirement of Law applicable to the Company or result in, or
require, the creation or imposition of any Lien on any of its Property or
revenues pursuant to such Requirement of Law or Contractual Obligation
listed on Exhibit A attached hereto, except in favor of the Agent and
Banks.
G-3
<PAGE>
8. To the best of our knowledge after due investigation, except as set
forth on Schedule 5.05 or Schedule 5.12 to the Agreement, no litigation,
------------- -------------
investigation or proceedings of or before any court, arbitrator or other
Governmental Authority is pending, threatened against or affecting the
Company, any of its Material Subsidiaries or their respective Property or
revenues, (i) the adverse determination of which could materially adversely
affect the financial condition or results of operations of the Company and
its Subsidiaries on a consolidated basis or the Company's ability to
perform its obligations under the Agreement or the other Loan Documents to
which it is a party or under any instrument or agreement required
thereunder, or (ii) alleging violation of any federal, state, or local law,
rule or regulation relating to hazardous or toxic materials, substances or
wastes.
9. Neither the Company nor any of its Subsidiaries is an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
10. To the best of our knowledge after due investigation, the Company
has no Subsidiaries other than those set forth on Schedule 5.17 to the
-------------
Agreement.
11. Regulation U of the Board of Governors of the Federal Reserve
System does not apply to the extension of credit under the Agreement.
Our opinion set forth in paragraph 5 above is subject to the qualification
that the enforceability of the Agreement and the other Loan Documents to which
the Company is a party and any instrument or agreement required thereunder to
which the Company is a party may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights and by general equity principles, regardless of whether
considered in a proceeding in equity or at law. We advise that a California
court may not strictly enforce certain covenants in the Loan Documents or allow
acceleration of any outstanding Loans if it concludes that such enforcement or
acceleration would be unreasonable or violate the Banks' implied covenant of
good faith and fair dealing under the then existing circumstances. We have
assumed that the Banks are exempt lenders for the purposes of the usury laws of
the State of California. Our opinion set forth in paragraph 7 above is based
upon our assumption that the property which is and may become subject to the
CIBC Leases is owned, for all purposes, by the Lessor and not by the Lessee or
by the Company.
We are members of the Bar of the State of California, and we do not express any
opinion herein concerning any law other than the law of the State of California,
the federal law of the United States, the Delaware General Corporation Law and,
in the case of
G-4
<PAGE>
paragraph 2 above, the laws of various other states regarding the qualification
of foreign corporations to do business within those states. In the case of
paragraph 3 above, we have relied entirely upon the opinions of Rodyk &
Davidson; Baker & McKenzie; Carlsmith Ball Wichman Murray Case & Ichiki; Droste
Rechtsanwalte; Konaka Toyama & Hosoya; Peter Huang & Associates; Taylor Joynson
Garrett; and Morris, Nichols, Arsht & Tunnell. In the case of our opinion in
paragraph 4 above concerning the qualification of AMD International Sales &
Service, Ltd. in The Netherlands, we have relied entirely upon the opinion of
Nauta Dutilh.
This letter has been furnished to you pursuant to Section 4.01 of the
Agreement for your use in connection with the Agreement, and may be relied upon
by the Agent, Co-Agent, Banks, Participants and Assignees. This letter may not
be disclosed in whole or in part to any other person or relied upon for any
other purpose or otherwise quoted or referred to without our prior written
consent, except that you may furnish copies hereof: (a) to your independent
auditors and attorneys; (b) to any state or federal authority having regulatory
jurisdiction over you; (c) pursuant to order or legal process of any court or
government agency; and (d) in connection with any legal action to which you are
a party arising out of the transactions provided for in the Agreement; provided,
however, that you are authorized to make disclosures coming within the scope of
item (d), above, regardless of whether such disclosures would also come within
the scope of any of items (a)-(c) as well, only if no later than five business
days after each such disclosure you furnish written notice to us of such
disclosure.
Very truly yours,
Bronson, Bronson & McKinnon
G-5
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-25-1994
<PERIOD-END> SEP-25-1994
<CASH> 164,587
<SECURITIES> 388,398
<RECEIVABLES> 342,351
<ALLOWANCES> 9,940
<INVENTORY> 120,124
<CURRENT-ASSETS> 1,132,223
<PP&E> 2,224,282
<DEPRECIATION> 1,161,713
<TOTAL-ASSETS> 2,321,919
<CURRENT-LIABILITIES> 534,447
<BONDS> 0
<COMMON> 948
0
34
<OTHER-SE> 1,662,909
<TOTAL-LIABILITY-AND-EQUITY> 2,321,919
<SALES> 1,587,895
<TOTAL-REVENUES> 1,589,491
<CGS> 718,469
<TOTAL-COSTS> 718,469
<OTHER-EXPENSES> 475,863
<LOSS-PROVISION> 3,102
<INTEREST-EXPENSE> 1,843
<INCOME-PRETAX> 404,258
<INCOME-TAX> 132,155
<INCOME-CONTINUING> 264,507
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 264,507
<EPS-PRIMARY> 2.64
<EPS-DILUTED> 2.54
</TABLE>
<PAGE>
EXHIBIT 99.1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
INTEL CORPORATION, )
)
) Case No.: C-93-20301 PVT
Plaintiff, ) [consent]
)
v. ) FINDINGS OF FACT AND
) CONCLUSIONS OF LAW FOLLOWING
ADVANCED MICRO DEVICES, ) "ICE" MODULE OF TRIAL
INC., )
)
Defendant. )
________________________)
I. INTRODUCTION
This trial concerned the liability portion of the in-circuit emulation
("ICE") module of a copyright infringement lawsuit Intel Corporation ("Intel")
brought against Advanced Micro Devices, Inc. ("AMD") seeking declaratory and
injunctive relief as well as damages.
The questions raised in this module are to what extent AMD's right to copy
and use the "ICE" portion of Intel's 80486 (the "486") microprocessor is limited
by Paragraph "I" of a 1984 Amendment to a 1982 Technology Contract; and if
limited, whether AMD has any valid defenses to its use of "ICE."
<PAGE>
The trial commenced on May 16, 1994./1/ After the final post trial briefs
were received on June 27, 1994, this matter came under submission.
The court received, read and considered all of the papers submitted and
evidence admitted. Good cause appearing therefore, the court HEREBY FINDS that
Paragraph "I" of the 1984 Amendment to the 1982 Technology Contract revokes any
rights AMD may have in the 486 to use "ICE" special custom circuitry and
microcode for the reasons detailed below.
Further, to the extent a finding of fact is a conclusion of law, it shall be
so considered; likewise, to the extent a conclusion of law is a finding of fact,
it shall be so considered.
II. BACKGROUND
The Parties
-----------
Intel and AMD are semiconductor companies that design, develop, manufacture
and market integrated circuits called "chips." Intel developed a microprocessor
known as the Intel 486. AMD markets competing versions of Intel's 486.
The parties stipulated for purposes of trial that Intel has a valid
registered copyright in the 486 and that pursuant to various agreements, AMD has
the right to copy, produce and
- - - ------------
/1/ Pursuant to 28 U.S.C. (s) 636, the parties consented to the jurisdiction of
this magistrate judge for all purposes.
2
<PAGE>
sell the 486. The dispute is whether AMD is precluded from using a portion of
the 486 microcode known as "ICE."
In-Circuit Emulation or "ICE"
-----------------------------
"ICE" allows access to the internal status of the microprocessor. "ICE" is a
special feature that is useful in "debugging" applications where the 486 is the
microprocessor or central processing unit. (Pretrial Order, (s) d, #17)
(appended hereto as "D" without attachments). "ICE" emulates the activities of
the microprocessor thus enabling engineers to study how a microprocessor
responds to software commands under various conditions.
When AMD reverse engineered the 486, AMD copied the microcode bit for bit,
including the "ICE" portion. The "ICE" microcode encompasses approximately 250
lines (12,032 bits). Although AMD has the right to copy the 486 microcode, Intel
argued that AMD is not allowed to copy or use the "ICE" portion because
Paragraph "I" of the contract between the parties precludes this.
Paragraph "I"
-------------
Three agreements are relevant to interpreting the parties' rights as
concerns "ICE": a 1976 Agreement, a 1982 Technology Exchange Contract and a 1984
Amendment containing Paragraph "I". See attachments "A," "B" and "C" appended
hereto. ---
3
<PAGE>
The agreements concern arrangements between the parties to share or exchange
technology to create a "second source." Second sourcing is common within the
semiconductor industry. In this case, the second source attempts to provide a
chip which is compatible with the original chip. This ensures price and
performance competition to purchasers in the market place.
A second source arrangement occurs either by agreeing to allow another party
to "reverse engineer" the original product or by agreeing to a "technology
transfer." Where the arrangement is "reverse engineering," the original source
provides limited or no assistance to the second source. However, the second
source is permitted to disassemble and study the original chip in an attempt to
build a chip that is functionally compatible with the original product. Often,
the second source needs considerable time to produce a compatible chip.
In a "technology transfer," the original source provides technical
information and assistance to the alternate source. This assistance may include
transfer of a "data base" tape, which is a magnetic computer tape containing the
detailed design of the chip. The tape can be used to produce "masks" which are
used to fabricate the chip. The second source can develop a compatible chip
rather easily and speedily with this type of arrangement.
In 1976, Intel and AMD entered into a patent cross
4
<PAGE>
licensing agreement. In part, the purpose of the 1976 Agreement was to allow AMD
to use Intel patents and microcode to second source Intel products.
In 1982, the parties entered into the Intel/AMD Technology Contract,
primarily a "technology transfer" second source arrangement. This Contract
provided a framework for a mutually acceptable exchange of products which
assisted Intel by creating a second source for its microprocessors and which
helped AMD to gain product without the time required for reverse engineering.
Article 4 provided the licenses that made the Contract work. Pursuant to
section 4.1, Intel granted to AMD licenses necessary for AMD to make products
pursuant to the 1982 Contract. Section 4.2 was a reciprocal provision in which
AMD granted licenses to Intel for the same purposes. Section 4.4 granted the
applicable cross copyright licenses.
In Section 4.3, the Contract extended the 1976 Agreement giving it life
until December 31, 1995, and bestowed the relevant patent licenses. AMD claims
that it has the right to reverse engineer the 486, a product Intel developed
subsequent to the 1976 Agreement. AMD's assertion is based on the 1976 Agreement
being extended in section 4.3. of the 1984 Amendment. At this time, AMD has the
right to copy the microcode contained in the 486 pursuant to the 1976 Agreement,
as extended./2/ (See Pretrial Order, (S) d #29).
- - - ------------
/2/ See Intel v. AMD, C-90-20237 WAI (EAI).
--- ------------
5
<PAGE>
In 1984, the parties negotiated an Amendment to the 1982 Technology Contract
which includes Paragraph "I," the primary subject of this trial module.
By 1984, Intel did not want to enable AMD or its customers to compete with
Intel in "ICE," which it had recently developed. AMD wanted to continue to act
as an Intel second source and was not interested in competing in the "ICE"
business.
Hence, the parties agreed that a modification to the 1982 Technology
Contract was in order. Paragraph "I" was drafted with the intent to protect
Intel's interests in the "ICE" business.
The parties engaged in prolonged contract negotiations. The final version of
Paragraph "I" is as follows:/3/
[1] AMD recognizes that Intel is not obligated to transfer special custom
circuitry that allows access to internal nodes for in-circuit emulation,
diagnostic, and development aid circuitry and may be included within the
Manufacturing Package of an Intel Product and is not required to meet the
data sheet specifications of an Intel product.
[2] The licenses of Article 4 do not extend to such custom circuitry or
similar in-circuit emulation and development aid circuitry and AMD may not
make such custom circuitry or similar in-circuit emulation and development
aid circuitry available to AMD customers, no matter which party develops the
circuitry, in die form or at the device pins in package form of any product
(i.e., AMD may not bond out the circuitry).
- - - ------------
/3/ The numbers separating each sentence are added by the court for ease in
reading and referencing parts of this paragraph. The numbers and the spaces
separating sentences do not appear in the original.
6
<PAGE>
[3] The licenses do apply if AMD can demonstrate that the custom diagnostic
circuitry was independently developed by AMD.
[4] Subject to the restrictions of this paragraph I, AMD will not be
considered as having made the circuitry available to customers to the extent
that the custom circuitry is merely included on the Intel data base tape and
consequently the AMD die but not bonded out.
[5] Nothing in this paragraph prevents AMD from developing other derivatives
of Intel Products.
The parties agree that Paragraph "I" was meant to exclude AMD from the "ICE"
business and that if AMD received "ICE" special custom circuitry on data base
tapes transferring technology, AMD would not bond out the pins which accessed
"ICE." Thus, Paragraph "I" has become known as the "ICE exclusion" or the "bond
out clause."
In its "D" series 486 chips, AMD copied but did not "bond out" the circuitry
which accesses "ICE." This means that the circuitry which enables the "ICE"
function is not connected to external pins which access the system's mother
board. "ICE" is there, but it cannot be used by AMD or its customers.
In its Am386DXL and AmDXLV, AMD used a portion of the "ICE" microcode for
its System Management Mode ("SMM") by bonding three of the "ICE" related pins.
(Pretrial Order, p. 6, # 31). The "SMM" allows computers with that
microprocessor to power down or go into a "sleep" mode when the computer is not
actively being used, a useful tool for applications where saving power
consumption is important.
7
<PAGE>
The Contract Disputes
---------------------
Not surprisingly, given the long and contentious history of these parties,
the parties disagree whether AMD's copying and use of the "ICE" microcode
(whether partially bonded out or not) is precluded by Paragraph "I."/4/
Essentially, there are three disputes between the parties relating to the
interpretation of Paragraph "I":
(1) The meaning of the term "special custom circuitry";
(2) The scope of the exclusion -- whether it covers non-transferred product
or only transferred product; and
(3) Whether AMD may make use of the special custom circuitry for purposes
other than "ICE."
In the Amendment, the parties used the term "special custom circuitry."
Intel contended that the parties were referring to a combination of the
microcode and the circuitry which accesses "ICE," whereas AMD argued that the
exclusion encompassed only the "hardware" that forms "ICE" circuitry, a
collection of circuit elements (transistors, resistors and capacitors) and their
interconnections. If Intel is accurate, then AMD is using the microcode in
violation of Paragraph "I." If the microcode is not excluded, then AMD claims it
has not violated the license because the size, shape and locations of
- - - ------------
/4/ Even at the court's request, the parties were unable even to develop a
useful glossary agreeing on common terms in the industry.
8
<PAGE>
AMD's circuit elements are different from Intel's.
The disagreement over the scope of the exclusion arises from the
negotiations that resulted in Paragraph "I." The final version contained many
changes bargained for by both parties. One significant change is found in line 2
of Paragraph "I." Earlier drafts specified the "ICE" exclusion applied to
sections 4.1 and 4.4 of the 1982 Contract./5/
Sections 4.1 and 4.4 address "transferred technology." Intel had considered
the possibility of removing the "ICE" microcode from data base tapes used to
transfer technology to AMD, but opted instead for a provision preventing AMD
from accessing "ICE" by not allowing AMD to bond out the connecting pins.
In the fourth of seven drafts of Paragraph "I" (dated 12/15/83), Intel
changed "4.1 and 4.4" to "Article 4" which appears in the final version.
Arguably, "Article 4" encompasses all the sections, including 4.3. Section 4.3
is directed to the 1976 Agreement pursuant to which AMD claims a right to
"reverse engineer" the 486.
Because the focus of the negotiations was "transferred" products, AMD
asserted that the "ICE" exclusion should only apply to 4.1/4.4 "transferred"
products, not to the "non-transferred" "reverse engineered" 486. Should the
exclusion not apply, then AMD is free to copy or use "ICE" in its 486
- - - ------------
/5/ Section 4.2 is not discussed because it concerns transfer of technology from
AMD to Intel, which is not in dispute here.
9
<PAGE>
products.
Lastly, the exclusion of Paragraph "I" states it is limited to "special
custom circuitry or similar in-circuit emulation and development aid
circuitry..." Further, AMD is permitted to develop its own "custom diagnostic
circuitry" and to make "other derivatives." Intel believes Paragraph "I"
precludes AMD from copying the "ICE" special custom circuitry and microcode in
the AMD 486 even though it is not used or from using it for any purpose,
including "SMM."
These disputes resulted in Intel's complaint, which alleges copyright
infringement and which states as follows:
64. [A]s part of its copying of Intel's Processor Microcode Programs both
for direct use in AMD's microprocessors and for developing microcode for use
in AMD's microprocessors, AMD has also copied the portion of Intel's
Processor Microcode Program which executes the ICE functions.
65. The License Agreement, to the extent AMD alleges it covers Processor
Microcode, specifically excludes Intel's ICE Processor Microcode Program
from its grant.
66. AMD's acts of wrongfully copying Intel's copyrighted ICE Processor
Microcode Program has damaged and will continue to damage Intel in its
business, and has caused and will cause irreparable harm for which there is
no adequate remedy at law.
67. Therefore, an actual controversy exists between Intel and AMD as to the
rights of each party under the License Agreement. In particular, Intel seeks
a declaratory judgment that AMD is not licensed to reproduce Intel's
copyrighted ICE Processor Microcode Program, that AMD is not licensed to
prepare derivative works based upon Intel's copyrighted ICE Processor
Microcode Program, and that AMD is not licensed to distribute copies of
Intel's copyrighted ICE Processor Microcode Program or copies of any
microcode program developed in part by copying Intel's
10
<PAGE>
copyrighted ICE Processor Microcode Program. Fourth Amended Complaint.
The Copyright Claims and Defenses
---------------------------------
AMD denied liability and raised several defenses in the event AMD was found
not to have a license to use the microcode at issue in the 486 products. The
defenses are: (1) Intel has not proved copyright infringement because the
microcode at issue is highly constrained and contains insubstantial protectable
expression; (2) Intel misused its copyright licenses; and (3) that use of the
microcode at issue is fair use.
III. FINDINGS OF FACT
Jurisdiction and Preliminary Facts
----------------------------------
1. The undisputed facts number 1-37 contained in (s) d of the Pretrial Order
(filed 5/12/94) and attached hereto as "D" are deemed incorporated within these
findings of fact to the extent they are consistent with the findings herein.
2. Intel is a Delaware corporation with its principal place of business in Santa
Clara, California.
3. AMD is a Delaware corporation with its principal place of
11
<PAGE>
business in Santa Clara, California.
4. This court has jurisdiction pursuant to 28 U.S.C (S)(S) 2201, 2202, and 1338
for copyright infringement, and declaratory judgement relief. Venue is proper
under 28 U.S.C. (S)(S) 1400(a), 1391(b) and 1391(c).
5. Intel and AMD are semiconductor companies that design, develop, manufacture
and market integrated circuits or "chips."
The Intel 486
-------------
6. Intel developed and sells world-wide the "80486" microprocessor commonly
known as the "486."
7. Stored within Intel's 486 microprocessor is a computer program called
"microcode" or "microprogram" that controls the internal operations of the chip.
8. For purposes of this trial module, the parties stipulated that Intel has a
valid registered copyright in the 486 microcode as a whole and has duly
registered that copyright (Registration No. TX 3 368 500) with the Registrar of
Copyrights. (Pretrial Order, (S) d, #30)
12
<PAGE>
AMD as a Second Source
9. "Second sourcing" is an arrangement between companies wherein one acts as an
alternate source for the developing company.
10. To be successful, the second source version must be compatible with the
original source.
11. To be compatible, a chip must be functionally equivalent in that it
performs the data sheet specifications. A chip need not be identical to the
original.
12. AMD markets competing versions of Intel's 486 microprocessor, known as the
"D" series, including the "Am486DX" and the "Am486DXLV," now replaced by the
"Am486DXL".
13. The AMD "D" series 486 chips were produced by reverse engineering.
14. AMD's "D" series 486 chips contain a bit for bit copy of the microcode
contained in the Intel 486.
15. For purposes of this trial module, Intel does not contest that the 1976
Agreement as extended gives AMD the right to copy the 486 microcode. (Pretrial
Order, (S) d, # 29).
13
<PAGE>
ICE and SMM
-----------
16. In-circuit emulation or "ICE" allows access to the internal status of the
microprocessor and emulates its activities thus enabling engineers to study how
the microprocessor responds to software commands under various conditions.
17. Approximately 250 lines (12,032 bits) of the Intel 486 microcode perform the
"ICE" functions.
18. Special custom circuitry within the "ICE" chip is "bonded" out (or
connected) to the external pins in the microprocessor in order to activate or
use it.
19. The bonding of the "ICE" chip occurs in the manufacturing process by
attaching wires from the bonding pads on the chip to the pins on the
microprocessor package.
20. Twelve pins are affiliated with the "ICE" circuitry.
21. System Management Mode or "SMM" allows computers to power down or go into a
"sleep" mode when the computer is not being used actively.
22. "SMM" is useful for applications where saving power is important.
14
<PAGE>
23. AMD does not bond out the 486 chip to perform "ICE."
24. The AMD 486DX contains the "ICE" microcode at issue, but because the "ICE"
is not bonded out it is not accessible by the user.
25. The AMD 486DXL contains the microcode at issue in this case but it is not
bonded out to perform ICE.
26. The AMD 486DXL and DXLV connect three pins associated with "ICE" in order to
implement its "SMM" feature.
27. AMD's 486DXL and DXLV have the "SMM" while the DX version does not.
The Written Agreements
----------------------
28. In 1976, Intel and AMD entered into a cross licensing Agreement pursuant to
which AMD claims the right to reverse engineer the 486 (which is not contested
in this trial module).
29. The 1982 Intel/AMD Technology Contract provided for an exchange of products
between the parties.
15
<PAGE>
30. Sections 4.1, 4.2 and 4.4 of the 1982 Contract provide copyright licenses
applicable to products exchanged by means of a "technology transfer."
31. In section 4.1, Intel granted AMD a license whereas in 4.2, AMD granted
Intel a license.
32. For purposes of this trial module, section 4.3 of the 1982 Technology
Contract, in part, extended the 1976 Agreement pursuant to which AMD has a
license to copy the microcode of the 486 except for the "ICE" special custom
circuitry. (Pretrial Order, (S) d, #29).
33. In 1984, the parties amended the 1982 Contract.
34. The 1984 Amendment contains Paragraph "I" which states the following (with
numbers and sentence breaks added by the court for convenience of reading):
[1] AMD recognizes that Intel is not obligated to transfer special custom
circuitry that allows access to internal nodes for in-circuit emulation,
diagnostic, and development aid circuitry and may be included within the
Manufacturing Package of an Intel Product and is not required to meet the
data sheet specifications of an Intel product.
[2] The licenses of Article 4 do not extend to such custom circuitry or
similar in-circuit emulation and development aid circuitry and AMD may not
make such custom circuitry or similar in-circuit emulation and development
aid circuitry available to AMD customers, no matter which party develops the
circuitry, in die form or at the
16
<PAGE>
device pins in package form of any product (i.e., AMD may not bond out the
circuitry).
[3] The licenses do apply if AMD can demonstrate that the custom
diagnostic circuitry was independently developed by AMD.
[4] Subject to the restrictions of this paragraph I, AMD will not be
considered as having made the circuitry available to customers to the
extent that the custom circuitry is merely included on the Intel data base
tape and consequently the AMD die but not bonded out.
[5] Nothing in this paragraph prevents AMD from developing other
derivatives of Intel Products.
35. The 1984 Amendment is part of an integrated contract reflects the parties'
final expression of their agreement.
Paragraph "I": Negotiations
---------------------------
36. Intel and AMD extensively negotiated Paragraph "I" of the 1984 Amendment.
37. In negotiating Paragraph "I," both parties made changes and reviewed
changes sought by the other.
38. In negotiating Paragraph "I," both parties sought and received the advice
of counsel in these negotiations.
39. At least seven of drafts of Paragraph "I" were prepared by the parties and
which are dated: 6/2/83 (exhibit 1126);
17
<PAGE>
6/10/83 (exhibit 1005); 6/14/83 (exhibit 1127); 12/15/83 (exhibit 1129);
12/21/83 (exhibit 1130); 1/5/84 (exhibit 1013); 2/14/84 (exhibit 1015).
40. The final version of Paragraph "I" appears in the signed Amendment which
bears a typed date of 2/23/84 (exhibit 1024) attached hereto as "B."
41. The first draft of the 1984 Amendment which included the "ICE" exclusion
was originally contained in Paragraph "H," which later became "I."
42. The June 2, 1983, draft contained this version [with numbers and sentence
breaks added by the court];
[1] AMD recognizes that Intel is not obligated to transfer special custom
circuitry which may be included within the Manufacturing Package.
[2] Such custom circuitry is used by the Intel System Group for special
applications and is not required to meet the data sheet specifications of
the Intel Product.
[3] The licenses of paragraphs 4.1 and 4.4 does [sic] not extend to such
customs [sic] circuitry and AMD may not make such circuitry available to
AMD customers (i.e. bond out) except to the extent that it is required to
manufacture the Intel Product as specified on the standard Intel data
sheet.
[4] Nothing in this paragraph shall prevent AMD from using such circuitry
internally for any purpose.
18
<PAGE>
43. AMD negotiated to have Intel specifically define that which Intel wished to
exclude from the licenses granted in the 1982 Technology Contract.
44. Intel changed "4.1 and 4.4" to "Article 4" in the 12/15/83 draft and
"Article 4" remained in subsequent drafts, dated 12/21/83, 1/5/84, 2/14/84 and
the final amendment.
45. The parties did not discuss the change from "paragraphs 4.1 and 4.4" to
"Article 4."
46. Mr. Dwork, AMD's representative, recognized that the change to "Article 4"
was a change in the language of the paragraph.
Paragraph "I": What It Means
----------------------------
Special Custom Circuitry
------------------------
47. "Special custom circuitry" is described in Paragraph "I" as that which
"allows access to internal nodes for in-circuit emulation, diagnostic, and
development aid circuitry and may be included within the Manufacturing Package
of an Intel Product."
19
<PAGE>
48. "Special custom circuitry" in Paragraph "I" means the microcode and
circuitry performing electrical functions (the interconnection of transistors,
resistors and capacitors) dedicated to in-circuit emulation, diagnostic and
developmental aid operations (referred to collectively as "ICE"].
49. While expert testimony showed that there are distinctions between microcode
and circuitry, depending on the academic discipline of the person defining it,
both parties knew and understood within the context of these negotiations that
they were talking about the same thing, i.e., the microcode and circuitry which
----
performed the "ICE" functions.
Transferred v. Non-Transferred Products
- - - ---------------------------------------
50. The language changing the draft from "4.1 and 4.4" to "Article 4" was
different and broad enough, that in the context of on going negotiations being
discussed over a protracted period of time, AMD either was or should have
been aware that this language would cover non-transferred products.
51. Paragraph "I" covers both transferred and non-transferred product because it
refers to "Article 4" (in the second
20
<PAGE>
sentence) and Article 4 of the 1982 Technology Contract includes paragraphs
which deal with transferred product (4.1, 4.2 and 4.4) and with non-transferred
product (4.3).
Copying and Use of Special Custom Circuitry: Derivatives
--------------------------------------------------------
52. The parties entered into a stipulation regarding derivative works which
states:
In order to conserve the time and resources of the Court and the parties,
AMD will not contend in the trial of the ICE module that it has the right to
make and distribute, under its 1976 copyright license, derivative works
within the meaning of (S) 106(1) of the Copyright Act.
AMD will contend in the trial of the ICE module that, pursuant to the last
sentence of para. I of the 1984 Amendment, it does have the right to make
and distribute derivative products, including its current family of 486
microprocessors.
Intel disputes AMD's contention regarding the last sentence of para. I.
This stipulation governs in the trial of the ICE module only.
53. Paragraph "I" precludes AMD from copying or using the special custom
circuitry and microcode which is dedicated to "ICE" for any purpose.
54. Paragraph "I" protects AMD's ability to make derivative products, but not
using the special custom circuitry and microcode.
21
<PAGE>
55. Paragraph "I" permits AMD to use its own independently developed special
custom circuitry to perform "ICE", but not by using Intel special custom
circuitry.
56. Using "ICE" special custom circuitry and microcode for non-"ICE" function
(for example, "SMM") does not constitute a derivative and thus is not protected
by the derivative clause or Paragraph "I."
Substantial Protectable Expression
----------------------------------
57. The Intel 486 microcode can be expressed as a source code (also known as
human readable code) in the form of mnemonic symbols, or a subject code (also
known as machine readable code) in the form of ones and zeros.
58. On Intel 486 microprocessors, the object code version of the microcode is
stored in a class of circuitry called read only memory ("ROM" or "CROM").
59. "ROM" is a class of circuitry designed to constitute a permanent on chip
copy of a computer program.
60. ROM or CROM can be read by the microprocessor but cannot be overwritten.
22
<PAGE>
61. The circuitry of the CROM consists of criss-crossing layers of conducting
lines with transistors at some of the intersections.
62. The "ICE" microcode is stored in and takes the form of CROM circuitry
because the presence and absence of transistors at the various interactions of
the conducting lines represent in circuitry the "ones" and "zeros" in the object
code version of the microcode.
63. On the Intel 486, the special custom circuitry (the microcode and the
circuitry) is fixed in the tangible medium of ROM circuitry within the meaning
of 17 U.S.C. (S) 101-2.
64. AMD copied the Intel 486 ICE microcode bit for bit on its Am 486DX, DXL and
DXLV.
65. AMD was capable of making a 486 compatible chip without copying the "ICE"
portion.
66. There is more than one way to write the "ICE" microcode.
Termination of Paragraph "I"
----------------------------
23
<PAGE>
67. In 1987, Intel notified AMD that it was teminating the 1982 Contract
effective April 1988.
68. Paragraph 12.7 of the 1982 Contract provides that Article 4 survives
temination or expiration.
69. Paragraph "I" of the 1984 Amendment limits the rights conveyed under Article
4 of the 1982 Contract.
III. CONCLUSIONS OF LAW
Admission of Parol Evidence
---------------------------
California law governs the interpretation of the 1982 Contract as modified
by Paragraph "I" of the 1984 Amendment. See In re Aslan, 909 F. 2d 376, 369 (9th
---------------
Cir. 1990). Under California law, extrinsic or parol evidence may be admitted
provided the writing is integrated and a final expression of the parties'
agreement and the agreement is susceptible of the meaning contended by the party
offering the evidence. Brinderson-Newberg v. Pacific Erectors, 971 F. 2d 272,
--------------------------------------
276-77 (9th Cir. 1992) (citations omitted); and Pacific Gas & Elec. Co. v.
--------------------------
G.W. Drayage & Rigging Co., 69 Cal. 2d 33, 37, 69 Cal. Rptr. 561 (1968).
- - - --------------------------
Paragraph "I" of the 1984 Amendment is part of an integrated contract which
reflects the final expression of the
24
<PAGE>
parties' agreement. Paragraph "I" is reasonably susceptible of AMD's
interpretation and hence, parol evidence was admitted. The parol evidence
primarily relates to the documents reflecting the negotiations of the contract,
course of dealing between the parties and usage of trade. See CAL. CIV. CODE
---
PROC. (S) 1856. The parol evidence was not used to alter or vary the plain
meaning of the terms, only to explain the meaning of the language to which the
parties agreed.
Interpretation of the Contract
------------------------------
Pursuant to California contract law, "[a] contract must be so interpreted as
to effect the mutual intention of the parties as it existed at the time of
contracting, so far as the same is ascertainable and lawful." CAL. CIV. CODE (S)
1636.
"However broad may be the terms of a contract, it extends only to those
things concerning which it appears that the parties intended to contract." CAL.
CIV. CODE (S) 1648. However, the parties need not discuss every possible future
application of their agreement because they are bound by the natural
consequences of the agreement. See Blumenfeld v. R.H. Macy & Co., 92 Cal. App.
---------------------------------
3d 38, 46, 154 Cal. Rptr. 652, 656 (1979)(citations omitted) (wherein the court
stated that "a party is bound, even if he misunderstood the terms of a contract
and actually had a different, undisclosed intention.").
"Under a modern theory of contracts we look to objective,
25
<PAGE>
not subjective, criteria in ascertaining the intent of the parties." Brobeck,
--------
Phleger & Harrison v. Telex Corp., 602 F. 2d 866, 873 (9th Cir. 1979) (citations
- - - ---------------------------------
omitted); see also WITKIN, Summary of Contract Law, (S) 684 ("The modern
--- ---- ------------------------
approach is to avoid the terminology of 'intention' and to look for expressed
intent, under an objective standard.").
Words are to be understood in their "ordinary" and "popular sense" unless
used in a technical sense in which case the technical words must be "interpreted
as usually understood by persons in the profession or business to which they
relate, unless clearly used in a different sense." CAL. CIV. CODE (S) 1644-45.
If there are ambiguities or uncertainties in the language, then "it must be
interpreted in the sense in which the promisor believed, at the time of making
it, that the promisee understood it." CAL. CIV. CODE (S) 1649.
In reviewing Paragraph "I," the court has closely examined Paragraph "I" and
the drafts exchanged between the parties which may more accurately reflect the
parties' intent than recollections shaded by time and years of litigation. See
---
Brobeck, 602 F. 2d at 873-4 (wherein the court relied on documents reflecting
- - - -------
prior negotiations in order to determine intent of the parties in case
interpreting fee agreement).
Special Custom Circuitry
------------------------
The parties engaged in prolonged negotiations in arriving
26
<PAGE>
at the language of Paragraph "I." Both parties understood what they were seeking
to exclude when they discussed "special custom circuitry."
Intel wanted to keep AMD out of the "ICE" business and AMD was not
interested in competing in that arena. AMD wanted to maintain its relationship
with Intel. Hence, AMD agreed to give up any rights to copy or use "ICE." The
parties understood that they were talking about all the things, microcode and
circuitry, which make up the "ICE" special function.
Throughout the negotiations, the parties talked about limiting rights in
sections 4.1 and 4.4 and finally all of Article 4. Sections 4.1 and 4.4 address
copyrighted property. It is inconceivable that the parties could negotiate as
vigorously as they did about these sections of Article 4 without believing that
copyrighted materials was involved, including microcode.
Transferred and Non-Transferred Products
----------------------------------------
The change from "4.1 and 4.4" to "Article 4" was fairly substantial. Mr.
Dwork, an AMD negotiator, stated that he noticed the change. Even if Mr. Dwork,
or others who were involved in the contract review, did not appreciate the
impact of the change, a reasonable person would notice and inquire. In fact, the
many drafts exchanged between the parties show that AMD was not reluctant to
note problems and request
27
<PAGE>
changes.
Most importantly, the license revocation contained in Paragraph "I" is
meaningless if it applied only to transferred products. Although the focus of
the negotiations was "transferred" products, since that was all that was at
issue at that time, Paragraph "I" has no value if the license exclusion does not
apply to transferred and non-transferred products.
Using "ICE" For Other Purposes: Derivative Products
---------------------------------------------------
AMD was concerned that it maintain the right to make "other derivatives."
This was the subject of much discussion. "Other derivatives" does not include
using "ICE" for "SMM" purposes. Paragraph "I" does not prevent AMD from
developing "other derivatives," but it may not use the "ICE" special custom
circuitry and microcode to do so. As stated in the fact section, using "ICE"
special custom circuitry and microcode for non-"ICE" functions (for example,
"SMM") does not constitute a derivative and thus is not protected by the
derivative clause of Paragraph "I."
AMD's Defenses
--------------
28
<PAGE>
Substantial Protectable Expression
----------------------------------
A claim of copyright infringement requires proof that (1) the claimant owns
a valid copyright and (2) the defendant copied expression protected by the
copyright. Johnson Controls, Inc. v. Phoenix Control Sys. Inc. 886 F. 2d 1173,
---------------------------------------------------
1175, (9th Cir. 1989); 17 U.S.C. (S) 101, et seq.
-------
AMD admits it copied the 486 microcode bit for bit, including the "ICE"
portion. Paragraph "I" takes away AMD's license to the "ICE" special custom
circuitry which is defined here as the combination of microcode and circuitry.
AMD conceded that the "ICE" microcode contains protectable elements of
expression. (Pretrial order, para. d(27)). The court finds that the microcode at
issue is protectable expression.
Because there is verbatim or literal copying, there is no need to analyze
the substantially of expression. AMD proposed that Intel must prove that AMD
copied a "substantial portion" whether qualitatively or quantitatively and cited
two cases, Sega Enters. Ltd. v. Accolade, Inc., 977 F. 2d 1510 (9th Cir. 1992)
-----------------------------------
and Narell v. Freeman, 872 F. 2d 907 (9th Cir. 1989).
------------------
In Sega, the court focused entirely on Allocade's fair use defense. The only
----
qualitative/quantitative analysis was in conjunction with fair use concepts. The
court found wholesale copying in the disassembly process. Even so,
29
<PAGE>
copying of the entire work did not preclude fair use. 977 F. 2d. at 1526. This
case does not support AMD's qualitative/quantitative analysis.
In Narell, defendant admitted that in writing a love story, she copied and
------
paraphrased some parts of a historical narrative authored by the plaintiff. 872
F. 2d at 909-10. The court analyzed whether defendant's "takings" were
protectable by applying a two part substantial similarity test. The test was
necessary because the copying was not literal and entire. Id. at 910.
--
The Narell court noted that: "A finding that a defendant copied a
------
plaintiff's work, without application of a substantial similarity analysis, has
been made only when the defendant has engaged in virtual duplication of a
plaintiff's entire work." Id. at 910. Hence, the quantitative/qualitative
analysis suggested by defendant is necessary only if a substantial similarity
test is required.
In the case at bar, AMD admitted verbatim copying of the "ICE" microcode,
thus the substantial similarity test may not be applicable. However, since the
"ICE" microcode is only a portion of the total 486 microcode, albeit literally
copied, the court applied the substantial similarity test. Even when the
quantitative/qualitative analysis was applied, the result remained the same./6/
- - - ------------
/6/ Intel argued that a "de minimis" analysis is the correct legal standard. The
result would be the same under this less stringent
30
<PAGE>
Quantitatively, there are 250 lines or 12,032 bits of the "ICE" microcode in
the 486. "ICE" constitutes about five percent of the total 486 microcode. It can
be removed from the 486 without significantly affecting the data sheet functions
of the chip.
Additionally, AMD argued that only two lines of the "ICE" microcode, (used
to set the "ICE" mode "flip flop") are associated with an "ICE" function which
would render "ICE" quantitatively insubstantial. To differentiate functions and
to explain their argument, AMD coded "ICE" microcode lines in blue, red and
yellow colors during trial.
The blue coded lines of microcode are associated with production testing and
not used for "ICE" related purposes. Seventy-five red coded lines were used by
Intel to perform "SMM" in its 486SL, a data sheet function of this version of
the chip. About 32 yellow coded lines perform routine operations which are not
unique to "ICE." About two lines remain dedicated solely to "ICE."
The court rejects this "chipping away" argument. AMD negotiated away its
license to all of the "ICE" special custom circuitry and microcode, not just a
few lines.
Qualitatively, the "ICE" special custom circuitry was significant enough to
be the subject of negotiation. Intel did not want to enable others to compete in
this segment of the market. The "ICE" special custom circuitry and microcode
- - - ----------
standard.
31
<PAGE>
has independent significance because it is a discrete computer program its own
right.
In sum, the "ICE" special custom circuitry has qualitative and quantitative
significance.
Misuse
------
A misuse defense requires a showing that Intel caused the copyright in issue
to effect an unlawful leveraging of the copyright monopoly. See Kolene Corp. v
------------------
Motor City Metal Treating, 440 F. 2d 77, 83 (6th Cir.) However, a copyright
- - - -------------------------
owner does not create misuse when limiting the circumstances in which a license
applies. Bela Seating Co. v Poloron Products, Inc., 438 F. 2d 733, 739 (7th
-----------------------------------------
Cir. 1971), cert. denied, 402 U.S. 922 (1971).
------------
AMD contended that Intel has attempted to protect itself from competition in
the "ICE" business by prohibiting AMD from making "ICE" similar to Intel's
circuitry. Unlike the primary case cited by AMD, Lasercomb America v. Reynolds,
-----------------------------
911 F. 2d 970 (4th Cir. 1990), where the licensor precluded independent
development in the license agreement, Paragraph "I" does not preclude AMD from
developing its own independently developed "ICE" special custom circuitry. Intel
has not misused its copyright.
32
<PAGE>
Fair Use
--------
The fair use doctrine is an "equitable rule of reason" that permits the use
of copyrighted material in a reasonable manner without the consent of the
copyright owner. Sega Enters. Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1522
-----------------------------------
(9th Cir. 1993) (citations omitted). Fair use is intended to avoid the rigid
applications of copyright laws when in the public interest. Campbell v.
-----------
Acuff-Rose Music., 114 S. Ct. 1164, 1174 (1994).
- - - ----------------
The factors to be weighed in evaluating the merit of a fair use defense are:
(1) the purpose and character of the use, including whether the use is
commercial or for nonprofit educational purposes; (2) the nature of the
copyrighted work; (3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and (4) the effect of the use upon
the potential market for or value of the copyrighted work. 17 U.S.C. (S) 107
(1)-(4). Plus, the court may also consider the "public benefit" even if the
infringer may gain commercially. Sega, 977 F. 2d at 1523
----
First, AMD used the unlicensed microcode in some of its 486 versions to
perform "SMM," an environmentally laudable energy saving device, which AMD also
exploited as a selling point, albeit somewhat unsuccessfully.
Second, the nature of the copyrighted material here is microcode. The
microcode is specifically identified in Paragraph "I" of the 1984 Amendment. It
is recognized that
33
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although microcode is often highly creative and idiosyncratic, it can be
utilitarian and function driven like grammar and punctuation. See Sega, 977 F.
--- ----
2d. at 1524. AMD argued that these lines of microcode are unprotected because
the lines of microcode can and have been used elsewhere and in different
sequences for different reasons.
Not all copyrighted works are entitled to the same level of protection. But,
AMD used a portion of microcode which AMD specifically agreed not to use. The
evidence showed that AMD could have developed other ways to write the code so
that Intel's "ICE" microcode would not have been implicated.
Third, proportion of special custom circuitry and microcode used by AMD is
small, and at first blush this factor weighs in AMD's favor. But here again, the
emphasis the parties placed on excluding this special custom circuitry and
microcode tips the scale in Intel's direction. Further, the "ICE" microcode has
independent significance because it could be removed from the 486 without
affecting data sheet functions.
Fourth, AMD entered the market faster because AMD did not spend time
removing the "ICE" microcode and used the specifically unlicensed special
custom circuitry and microcode to market its "SMM" versions in competition with
Intel.
Finally, there is no doubt that reducing energy consumption is a commendable
goal, but in this case, the public benefit does not justify AMD's use of
unlicensed
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microcode. AMD could have accomplished this purpose without infringing Intel's
rights.
Termination of Paragraph "I"
----------------------------
Contrary to AMD's argument that Paragraph "I" expired with Intel's
termination of the 1982 Contract, the license exclusion contained in Paragraph
"I" of the 1984 Amendment survives. The 1982 Contract provides for the survival
of several articles, including Article 4. Paragraph "I" of the 1984 Amendment
limits the licenses of Article 4 and survives along with Article 4.
IV. CONCLUSION
Intel proved by a preponderance of the evidence that AMD copied and used
"ICE" special custom circuitry and microcode in violation of Paragraph "I" of
the 1984 Amendment to the 1982 Technology Contract. AMD's defenses do not
justify its use of the "ICE" special custom circuitry and microcode.
The court DECLARES that AMD is not licensed to reproduce Intel's copyrighted
ICE Processor Microcode Program; that AMD is not licensed to prepare derivative
works based upon Intel's copyrighted Processor Microcode; and that AMD is not
licensed to distribute copies of Intel's copyrighted ICE Processor Microcode
Program or copies of any microcode program
35
<PAGE>
development in part by copying Intel's copyrighted ICE Processor Microcode
Program.
/s/ PATRICIA V. TRUMBULL
Dated: 10-7-94 ----------------------------------
PATRICIA V. TRUMBULL
United States Magistrate Judge
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<PAGE>
EXHIBIT 99.2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
INTEL CORPORATION, ) No. C-93-20301 PVT
)
Plaintiff, )
) STIPULATED PRELIMINARY
v. ) INJUNCTION
)
ADVANCED MICRO DEVICES, INC., )
)
Defendant. )
- - - --------------------------------------
Based on this Court's Findings of Fact and Conclusions of Law (which were
filed October 7, 1994 and are incorporated herein by reference), 17 U.S.C.
(S) 502(a), Rule 65(b) of the Federal Rules of Civil Procedure, and the
stipulation of the parties, defendant Advanced Micro Devices, Inc., its
officers, agents, servants and employees, and those persons in active concert or
participation with them who receive actual notice of this order (collectively,
"AMD") are enjoined, as provided in this order, pending a hearing and decision
on a permanent injunction or otherwise until further order of this Court.
<PAGE>
NOW, THEREFORE, AMD IS ENJOINED AS FOLLOWS:
1. No Distribution of Bonded Out Parts. After Friday, October 21, 1994, AMD
-----------------------------------
shall not distribute any version of its Am486 microprocessor containing a copy
of Intel microcode as these versions existed prior to October 7, 1994
(hereinafter, the "prior versions") and as to which one or more of the twelve
ICE pads affiliated with the ICE circuitry are bonded out. Those pins are not
bonded out in AMD's Am486DX microprocessors. Without limitation, this paragraph
means that AMD shall not distribute its current Am486DXL or its Am486DXLV
products.
2. No New Wafer Starts of Prior Versions. After Friday, October 21, 1994,
-------------------------------------
AMD shall make no wafer starts of any prior versions of its Am486
microprocessor.
3. No New Orders For Prior Versions of the Am486 Microprocessor. After
------------------------------------------------------------
Friday, October 21, 1994, AMD shall not distribute prior versions of 486
microprocessors to any purchasers unless the purchasers had an existing written
order or contract with AMD as of October 21, 1994. AMD shall not distribute such
prior versions except to the extent necessary to meet actual quantity and
delivery date terms set forth in those orders or contracts. AMD will make such
sales at the price that had been agreed to with the purchaser unless Intel sells
or offers to sell at a lower price to that customer, in which case AMD is free
to meet competition from Intel for that particular existing AMD order or
contract.
4. No Distribution After January 15, 1995. After January 15, 1995, AMD
--------------------------------------
shall not distribute any prior versions of its Am486 microprocessor.
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<PAGE>
5. The Parties' Reserved Rights. AMD reserves its rights to move for
----------------------------
correction, modification or vacation of the Court's Findings of Facts and
Conclusions of Law filed October 7, 1994 and to appeal from or take any other
action based on any order or judgment of the Court based thereon. Intel further
reserves every claim, contention and legal remedy it may have in this or any
other appropriate forum, against AMD or any other entity, with respect to past,
present or future copying or distribution of the unlicensed ICE microcode,
without authorization from Intel. This preliminary injunction does not
constitute authorization from Intel for AMD to copy or distribute any infringing
product.
DATED: October 31, 1994 SKJERVEN, MORRILL, MACPHERSON,
FRANKLIN & FRIEL
By /s/ ROBERT B. MORRILL
--------------------------------------
ROBERT B. MORRILL
Attorneys for Defendant
DATED: October 28, 1994 BROWN & BAIN, P.A.
By /s/ MICHAEL F. BAILEY
--------------------------------------
MICHAEL F. BAILEY
Attorneys for Plaintiff
HAVING BEEN STIPULATED BETWEEN THE PARTIES, IT IS SO ORDERED:
DATED: October ___, 1994. ----------------------------------------
PATRICIA V. TRUMBULL
Magistrate Judge
United States District Court
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