{"id":41049,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/guaranty-advanced-micro-devices-inc-and-fujitsu-ltd.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"guaranty-advanced-micro-devices-inc-and-fujitsu-ltd","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/guaranty-advanced-micro-devices-inc-and-fujitsu-ltd.html","title":{"rendered":"Guaranty &#8211; Advanced Micro Devices Inc. and Fujitsu Ltd."},"content":{"rendered":"<pre>\n                                    GUARANTY\n                                    --------\n\nThis Guaranty (the \"Guaranty\") is effective as of October 1, 2000 and \nis entered into by ADVANCED MICRO DEVICES, INC., a Delaware corporation \n(\"AMD\"), in favor of and for the benefit of FUJITSU LIMITED, a \ncorporation organized under the laws of Japan (\"Fujitsu\").\n\n                                    RECITALS\n\nA. Fujitsu Microelectronics, Inc., a California corporation (\"FMI\") \nand Fujitsu AMD Semiconductor Limited, a joint venture organized under \nthe laws of Japan (\"FASL\") are in the process of negotiating a foundry \nagreement whereby FMI will ***** production capacity for flash wafers \nat FMI's Gresham Manufacturing Division in Gresham, Oregon (\"GMD\") to \nFASL and pursuant to which FASL will purchase ***** of the flash \nwafers produced by FMI (the \"GMD Wafers\").\n\nB. FASL, AMD and Fujitsu are party to that certain Sales and Purchase\nAgreement of FASL Products dated as of September 8, 1995 (as amended \nfrom time to time, the \"FASL Sales Agreement\"), pursuant to which AMD \nand Fujitsu purchase wafers from FASL (including without limitation \nthe GMD Wafers). *****.\n\nC. In order to meet its working capital needs and to increase\nproduction capacity at GMD, FMI wishes to borrow funds from the \nlenders (the \"Lenders\") under that certain US$550,000,000 364-Day \nGlobal Multicurrency Revolving Credit Facility Agreement dated October \n29, 1999, with Credit Lyonnais, Tokyo Branch, the Agent Bank, or any \namendment or replacement, including any bilateral bank loan facility, \nof the credit facility (the \"Credit Facility\").\n\nD. Under the terms of the Credit Facility, Fujitsu is a co-signer with\nFMI on all borrowings made by FMI pursuant to the Credit Facility \n(such co-signing obligation being the \"Fujitsu Primary Lender \nObligation\").\n\nE. In consideration of Fujitsu's Primary Lender Obligation and because\nincreased production capacity at FMI will benefit AMD, AMD has agreed \nto provide to Fujitsu a guarantee of FMI's obligations under the \nCredit Facility, up to a maximum guaranteed amount of $125,000,000, \nsubject to the terms and conditions outlined herein.\n\nNOW THEREFORE, in consideration of and subject to the mutual covenants,\nterms and conditions contained in this Agreement, AMD and Fujitsu agree \nas follows:\n\n1.  Guaranty.\n\n(a)  In order to induce Fujitsu to maintain its Primary Lender \nObligation for FMI's borrowings under the Credit Facility, AMD \nguaranties the due and punctual payment in full of all Guarantied \nObligations (as hereinafter defined) when the same shall\n\nConfidential treatment has been requested for portions of this exhibit.  \nThe copy filed herewith omits the information subject to the \nconfidentiality request.  Omissions are designated as *****.  A \ncomplete version of this exhibit has been filed separately with the \nSecurities and Exchange Commission.\n\n                                       1\n\n\n\nbecome due, whether at stated maturity, by acceleration, demand or otherwise\n(including amounts that would become due but for the operation of the automatic\nstay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)), but\nsolely to the extent such Guarantied Obligations become due as a result of FMI's\n(x) failure to pay a scheduled installment of principal or interest on the\nCredit Facility when due (including without limitation at maturity) (such\nfailure being \"Payment Default\") or (y) request for an immediate advance of\nfunds from Fujitsu accompanied by a written certification sent to both Fujitsu\nand AMD and signed by FMI's Chief Financial Officer stating that such failure\nwill occur in the absence of the advance. The term \"Guarantied Obligations\"\nmeans the obligations of FMI under the Credit Facility or under any advance from\nFujitsu made in response to such written certification from FMI's Chief\nFinancial Officer, but in no event shall the Guarantied Obligations exceed\n$125,000,000 in the aggregate. Fujitsu acknowledges, except as specifically\nnoted above, that in no event shall the \"Guarantied Obligations\" hereunder\ninclude any obligations of FMI to Fujitsu, any affiliate or subsidiary thereof\nor to the Lenders other than such obligations as may arise in connection with\nthe Credit Facility.\n\n     (b) AMD acknowledges that the Guarantied Obligations are being incurred for\nand will inure to the benefit of AMD.\n\n     (c) Subject to the other provisions of this Section 1, upon (x) an advance\nof funds by Fujitsu to FMI in response to a written certification from FMI's\nChief Financial Officer in the form noted in Section 1(a) above or (y)(i)\nacceleration of the Credit Facility due to a Payment Default by FMI (except to\nthe extent such Payment Default is caused by Fujitsu or is due to the failure of\nFMI or Fujitsu to renew or replace the 364-Day Credit Agreement at its\nterminination) and (ii) a demand under Fujitsu's Primary Lender Obligation, AMD\nwill upon Fujitsu's demand pay, or cause to be paid, in cash, to Fujitsu, an\namount equal to (i) the aggregate of the unpaid Guarantied Obligations of FMI\nunder the Credit Facility in case of the Payment Default or (ii) any advance\nfrom Fujitsu made in response to a written certification from FMI's Chief\nFinancial Officer.\n\n     2. Guaranty Absolute; Continuing Guaranty. The obligations of AMD hereunder\nare absolute and independent and shall not be affected by any circumstance that\nconstitutes a legal or equitable discharge of AMD other than payment in full of\nthe Guarantied Obligations or termination of this Guaranty. In furtherance of\nthe foregoing and without limiting the generality thereof, AMD agrees that: (a)\nthis Guaranty is a guaranty of payment when due and not of collectibility; (b)\nsubject as provided herein, Fujitsu may enforce this Guaranty upon an\nacceleration under the Credit Facility and a demand on the Fujitsu Primary\nLender Obligation, or upon Fujitsu's advance of funds; and (c) AMD's payment of\na portion, but not all, of the Guarantied Obligations shall in no way limit,\naffect, modify or abridge AMD's liability for any portion of the Guarantied\nObligations that has not been paid. This Guaranty is a continuing guaranty and\nshall be binding upon AMD and its successors and assigns.\n\n     3. No Discharge. This Guaranty and the obligations of AMD hereunder shall\nbe valid and enforceable and, subject as provided herein, shall not be subject\nto any\n\nConfidential treatment has been requested for portions of this exhibit.  The\ncopy filed herewith omits the information subject to the confidentiality\nrequest.  Omissions are designated as *****.  A complete version of this exhibit\nhas been filed separately with the Securities and Exchange Commission.\n\n                                       2\n\n\n\nlimitation, impairment or discharge for any reason (other than payment in full\nof the Guarantied Obligations or any termination of this Guaranty).\n\n     4. Expenses. AMD agrees to pay, or cause to be paid, on demand, and to save\nFujitsu harmless against liability for, any and all costs and expenses incurred\nor expended by Fujitsu in connection with the enforcement of or preservation of\nany rights under this Guaranty.\n\n     5. Amendments and Waivers. No amendment, modification, termination or\nwaiver of any provision of this Guaranty, and no consent to any departure by AMD\ntherefrom, shall in any event be effective without the written concurrence of\nFujitsu and, in the case of any such amendment or modification, AMD. Any such\nwaiver or consent shall be effective only in the specific instance and for the\nspecific purpose for which it was given.\n\n     6. Miscellaneous.\n\n     (a) In case any provision in or obligation under this Guaranty shall be\ninvalid, illegal or unenforceable in any jurisdiction, the validity, legality\nand enforceability of the remaining provisions or obligations, or of such\nprovision or obligation in any other jurisdiction, shall not in any way be\naffected or impaired thereby.\n\n     (b) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF AMD AND FUJITSU\nHEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN\nACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO\nCONFLICTS OF LAWS PRINCIPLES.\n\n     (c) This Guaranty shall inure to the benefit of Fujitsu and its successors\nand assigns.\n\n     (d) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST AMD ARISING OUT OF OR RELATING\nTO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT\nJURISDICTION IN THE STATE OF CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS\nGUARANTY AMD ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY\nAND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND\nWAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREES TO BE BOUND BY\nANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY. AMD agrees that\nservice of all process in any such proceeding in any such court may be made by\nregistered or certified mail, return receipt requested, to AMD at its address\nset forth below its signature hereto, such service being acknowledged by AMD to\nbe sufficient for personal jurisdiction in any action against AMD in any such\ncourt and to be otherwise effective and binding service in every respect.\nNothing herein shall affect the right to serve process in any other manner\npermitted by law or shall limit the right of Fujitsu to bring proceedings\nagainst AMD in the courts of any other jurisdiction.\n\nConfidential treatment has been requested for portions of this exhibit.  The\ncopy filed herewith omits the information subject to the confidentiality\nrequest.  Omissions are designated as *****.  A complete version of this exhibit\nhas been filed separately with the Securities and Exchange Commission.\n\n                                       3\n\n\n\n     (e) AMD AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, FUJITSU EACH AGREES\nTO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION\nBASED UPON OR ARISING OUT OF THIS GUARANTY. The scope of this waiver is intended\nto be all-encompassing of any and all disputes that may be filed in any court\nand that relate to the subject matter of this transaction, including without\nlimitation contract claims, tort claims, breach of duty claims and all other\ncommon law and statutory claims. AMD and, by its acceptance of the benefits\nhereof, Fujitsu each (i) acknowledges that this waiver is a material inducement\nfor AMD and Fujitsu to enter into a business relationship, that AMD and Fujitsu\nhave already relied on this waiver in entering into this Guaranty or accepting\nthe benefits thereof, as the case may be, and that each will continue to rely on\nthis waiver in their related future dealings, and (ii) further warrants and\nrepresents that each has reviewed this waiver with its legal counsel and that\neach knowingly and voluntarily waives its jury trial rights following\nconsultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY\nNOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY\nSUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS GUARANTY.\nIn the event of litigation, this Guaranty may be filed as a written consent to a\ntrial by the court.\n\n     7. Counterparts. This Guaranty may be executed in any number of\ncounterparts and by the different parties hereto in separate counterparts, each\nof which when so executed and delivered shall be deemed to be an original for\nall purposes; but all such counterparts together shall constitute but one and\nthe same instrument.\n\n     8. Covenant. Each party covenants and agrees that it will enforce this\nGuaranty and its rights hereunder in good faith.\n\n     9. Termination. This Guaranty shall terminate and be of no further force\nand effect on the earliest of:\n\n     (a) any default by Fujitsu under the FASL Sales Agreement or the Joint\nVenture Agreement dated March 30, 1993 between AMD and Fujitsu, as amended;\n\n     (b) termination of the Credit Facility;\n\n     (c) March 31, 2003.\n\nConfidential treatment has been requested for portions of this exhibit. The copy\nfiled herewith omits the information subject to the confidentiality request.\nOmissions are designated as *****. A complete version of this exhibit has been\nfiled separately with the Securities and Exchange Commission.\n\n\n                                       4\n\n\n\n     IN WITNESS WHEREOF, AMD and, solely for purposes of the waiver of the right\nto jury trial contained in Section 6, Fujitsu have caused this Guaranty to be\nduly executed and delivered by their respective officers thereunto duly\nauthorized as of the date first written above.\n\n                                    ADVANCED MICRO DEVICES, INC.\n\n                                              \/s\/ Francis P. Barton\n\n                                    By:           Francis P. Barton\n                                             -----------------------------------\n                                    Title:        Senior Vice President &amp; -----------------------------------\n                                                  Chief Financial Officer\n\n                                    Address:      One AMD Place\n                                                  Sunnyvale, California 94088\n                                                  Attention:\n                                                            --------------------\n\n\n                                    FUJITSU LIMITED\n\n                                              \/s\/ Takashi Takaya\n\n                                    By:           Takashi Takaya\n                                             -----------------------------------\n                                    Title:        Executive Vice President\n                                             -----------------------------------\n\n                                    Address:      6-1, Marunouchi 1-chome\n                                                  Chiyeda-ku, Tokyo 100-8211\n                                                  Attention: Finance Division\n\n\n                                       5\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6576,7589],"corporate_contracts_industries":[9508,9512],"corporate_contracts_types":[9560,9565],"class_list":["post-41049","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-advanced-micro-devices-inc","corporate_contracts_companies-fujitsu-ltd","corporate_contracts_industries-technology__hardware","corporate_contracts_industries-technology__semiconductors","corporate_contracts_types-finance","corporate_contracts_types-finance__guaranty"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41049","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41049"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41049"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41049"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41049"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}