Exhibit (g-2)
FIRST AMENDMENT
TO
SPONSORS' LOAN AGREEMENT
THIS FIRST AMENDMENT (this "Amendment"), dated February 6, 1998, is made between
---------
ADVANCED MICRO DEVICES, INC., a corporation organised and existing under the
laws of the State of Delaware, United States of America, with its chief
executive office and principal place of business at ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("AMD Inc."), AMD SAXONY HOLDING
--------
GMBH, Dresden, registered in the Commercial Register of the Dresden County
Court, HRB 13931 ("AMD Holding"; and, together with AMD Inc., collectively, the
-----------
"Sponsors"), and AMD SAXONY MANUFACTURING GMBH, Dresden, registered in
--------
Commercial Register of the Dresden County Court HRB 13186 ("AMD Saxonia").
-----------
W I T N E S S E T H:
WHEREAS, AMD Saxonia, a wholly-owned Subsidiary (such and other capitalized
terms being used in this Amendment with the meanings set out in Section 1.1 of
-----------
this Amendment) of AMD Holding, which is, in turn, a wholly-owned Subsidiary of
AMD Inc., has been formed for the purpose of constructing, owning, and operating
(i) the Plant and (ii) the integrated Design Center;
WHEREAS, in order to finance the construction of the Plant and the Design
Center, and start-up costs of the operation of the Plant, inter alia, (i) AMD
----------
Saxonia has entered into the Loan Agreement providing, inter alia, for two
separate senior secured term and standby facilities aggregating up to DM
1,650,000,000 (one billion six hundred fifty million Deutsche Marks), and (ii)
the Sponsors, the Agent and the Security Agent have entered into that certain
Sponsors' Support Agreement dated 11 March 1997 (the "Sponsors' Support
-----------------
Agreement") providing (x) certain assurances to the Agent and Security Agent
---------
with respect to the completion of the Project, and (y) certain undertakings to
and for the benefit of the Secured Parties;
WHEREAS, AMD Saxonia wishes to, among other things, replace the initial Approved
Project Budget with another Approved Project Budget; and
WHEREAS, the Sponsors are willing to provide certain additional undertakings to
and for the benefit of the Secured Parties as provided in this Amendment which
amends and supplements
the Sponsors' Loan Agreement dated 11 March 1997 (the "Sponsors' Loan
--------------
Agreement") between the Sponsors and AMD Saxonia;
---------
NOW, THEREFORE, the Sponsors and AMD Saxonia agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions Capitalized terms not otherwise defined in this
Amendment are used with the definitions assigned to them in the Sponsors' Loan
Agreement or, if not there defined, in the Sponsors' Support Agreement.
SECTION 1.2 Construction In this Amendment, unless the context requires
otherwise, references to Sections and Schedules are to Sections and Schedules of
the Sponsors' Loan Agreement. Section headings are inserted for reference only
and shall be ignored in construing this Amendment.
ARTICLE II
AMENDMENTS
SECTION 2.1 The Sponsors' Loan Agreement shall be amended as more particularly
set out below. In all other respects, the Sponsors' Loan Agreement shall remain
in full force and effect.
(i) In the introduction, the words "(as amended)" shall be added after the
words "11 March 1997";
(ii) In the second recital, there shall be deleted the words "(in such capacity,
the "Agent")";
-----
(iii) In the recitals, there shall be included after the sixth paragraph, a new
recital as follows:
"WHEREAS, on 1 July 1997, Dresdner transferred its rights and
obligations as Agent to Dresdner Bank Luxembourg S.A. (in such
capacity also, the "Agent") pursuant to (S) 22.11 of the Loan
---------
Agreement;"
(iv) In Section 1.1 (Definitions), the following definitions of "Agent" and
"Required Sponsors' Loans" shall be replaced as follows:
(a) ""Agent" has the meaning assigned to that term in the seventh recital
----- ---------------
of this Agreement."
(b) ""Required Sponsors' Loans" means, collectively, the Class A Sponsors'
------------------------
Loans, the Class B Sponsors' Loans and the Class C Sponsors' Loans."
(v) In Section 1.1 (Definitions), the following new definitions shall be added
in alphabetical order:
"(a) ""Class C Sponsors' Loans" has the meaning assigned to that term in
-----------------------
Section 1."
---------
(b) ""Contribution Date" means 31 January 1999."
-----------------
(c) ""Consolidated Net Income" has the meaning assigned to that term in
-----------------------
the AMD Inc. Senior Secured Note Indenture."
(d) ""Stock Offering" means a public or private sale or other placement of
--------------
stock of AMD Inc. in the capital markets (which, for avoidance of
doubt, shall not include (i) the issuance by AMD Inc. of stock options
(and/or the issuance by AMD Inc. of stock upon the exercise of any
existing or future such stock options) to any of its or its
affiliates' directors, officers and/or employees or (ii) purchases of
AMD Inc. stock by Fujitsu Limited in connection with the Fujitsu AMD
Semiconductor Limited joint venture between AMD Inc. and Fujitsu
Limited)."
(vi) Section 2.1 shall be replaced as follows:
"SECTION 2.1 Required Sponsors' Loans. On the terms and subject to the
conditions of this Agreement, the Sponsors, jointly and severally, hereby
undertake that either Sponsor or both of the Sponsors will make Sponsors'
Loans to AMD Saxonia:
(i) in an aggregate principal amount of at least DM 290,000,000 (two
hundred ninety million Deutsche Marks) for all such Sponsors' Loans,
the exact amount thereof being equal to the Deutsche ▇▇▇▇ Equivalent
of $200,000,000 (two hundred million Dollars) for all such Sponsors'
Loans, as contemplated by Section 2.2 (the "Class A Sponsors' Loans");
----------- -----------------------
and
(ii) in an aggregate principal amount of up to an additional DM
145,000,000 (one hundred forty five million Deutsche Marks) as
contemplated by Section 2.3 (the "Class B Sponsors' Loans"); and
----------- -----------------------
(iii) in an aggregate principal amount of $70,000,000 (seventy million
Dollars) as contemplated by Section 2.4 (the "Class C Sponsors'
----------- -----------------
Loans").
For the avoidance of doubt:
(i) the obligations of the Sponsors under this Agreement are intended to
reflect, rather than to be in addition to, the obligations of the
Sponsors pursuant to the Sponsors' Support Agreement;
(ii) with the exception of the additional Sponsors' Loan in an amount of
$34,000,000 made by AMD Inc. to AMD Saxonia on 26 September 1997 and
referred to in Section 2.5 below, Sponsors' Loans and/or contributions
-----------
(to the extent, but only to the extent, not otherwise taken into
account in determining whether AMD Holding has complied with its
obligations under Article II of the Sponsors' Support Agreement) by
----------
AMD Holding to AMD Saxonia's capital reserves made to AMD Saxonia
prior to the Loan Agreement Effective Date shall be taken into
account, to the extent, but only to the extent, reflected in AMD
Saxonia's financial statements referred to in (S) 15.1.6 of the Loan
----------
Agreement (or, if not so reflected, as certified by AMD Inc. to the
Agent and the Security Agent as of the Loan Agreement Effective Date),
as Class A Sponsors' Loans in determining whether the Sponsors shall
have complied with their obligations under this Article II;
----------
(iii) although the obligations of the Sponsors contained in this Article
-------
II are in addition to, and not in limitation of, their respective
--
obligations contained elsewhere in this Agreement and in the other
Operative Documents, if the Agent shall have otherwise expressly
consented thereto in writing (which consent will not unreasonably be
delayed or withheld), the Sponsors shall be deemed to have complied
with their obligations to make Class A Sponsors' Loans, Class B
Sponsors' Loans and/or Class C Sponsors' Loans to the extent, but only
to the extent, that AMD Holding shall have made additional
contributions to AMD Saxonia's Equity Capital (or other contribution
to AMD Saxonia's capital reserves) which contributions are not
otherwise required to be made pursuant hereto or to any other
Operative Document;
(iv) the Sponsors shall not be relieved:
(a) of the foregoing obligation by virtue of any Equity Capital (or
other contribution to AMD Saxonia's capital reserves) contributed
or required to be contributed to AMD Saxonia pursuant to Section
-------
2.1 of the Sponsors' Support Agreement or (except as, and to the
---
extent, provided in clause (iii) above) otherwise;
------------
(b) of any obligation to make Class A Sponsors' Loans (or to
contribute additional Equity Capital or other contributions to
AMD Saxonia's capital reserves in lieu thereof) by virtue of
any payment made by either Sponsor under the Sponsors'
Guaranty;
(c) of any obligation following Completion to make Class B Sponsors'
Loans until and unless the Sponsors shall have paid all amounts
payable under
the Sponsors' Guaranty following a demand for payment made by the
Agent thereunder (it being understood and agreed that the
obligation of the Sponsors to make Class B Sponsors' Loans shall
be subject to the occurrence of Completion); or
(d) of any obligation to make Class A Sponsors' Loans, Class B
Sponsors' Loans or Class C Sponsors' Loans by the additional
Sponsors' Loans in an amount of $34,000,000 made by AMD Inc. to
AMD Saxonia on 26 September 1997 and referred to in Section 2.5
-----------
below;
(v) each Class A Sponsors' Loan shall be denominated in Deutsche Marks and
the Deutsche ▇▇▇▇ Equivalent thereof shall be calculated for the
purpose of determining whether the Sponsors have complied with their
obligations under Section 2.2; provided, however, that any Class A
----------- -------- -------
Sponsors' Loan may, with the consent of the Agent (such consent not to
be unreasonably delayed or withheld), be funded in Dollars, but for
all purposes of this Agreement and the Sponsors' Support Agreement
shall be deemed to have been funded in Deutsche Marks in an amount
which is equal to the Deutsche ▇▇▇▇ Equivalent thereof;
(vi) Class C Sponsors' Loans may be made in either Dollars or in Deutsche
Marks at AMD Inc.'s option provided that:
(a) for the purpose of determining whether the Sponsors have
complied with their obligations under Section 2.4, any Class C
-----------
Sponsors' Loans made in Deutsche Marks shall be deemed
converted to Dollars at the Agent's spot rate of exchange for
the purchase of Dollars with Deutsche Marks prevailing on the
date two (2) Business Days prior to the date such Class C
Sponsors' Loans were made;
(b) if AMD Inc. and AMD Saxonia agree, any Class C Sponsors' Loans
may be denominated in Deutsche Marks but funded in Dollars and
the Deutsche ▇▇▇▇ amount of such Class C Sponsors' Loans shall
be deemed to be the DM amount which is the equivalent of the
Dollar amount so funded determined at the Agent's spot rate of
exchange for the purchase of Dollars with Deutsche Marks
prevailing on the date two (2) Business Days prior to the date
such Class C Sponsors' Loans were made.
(vii) the Sponsors shall be relieved of their respective obligations to
make Class C Sponsors' Loans under Sections 2.1 and 2.4 if, but only
------------ ---
if:
(a) the Sponsors shall have complied with each of their respective
obligations under Article II of the Sponsors' Support
----------
Agreement
and, insofar as such obligations relate to Class A
Sponsors' Loans (or additional contributions to Equity
Capital or AMD Saxonia's capital reserves in lieu
thereof), Article III of the Sponsors' Support Agreement; and
-----------
(b) following a demand for payment by the Agent under the
Sponsors' Guaranty, the Sponsors shall have paid all amounts
payable under the Sponsors' Guaranty.
(viii) the amounts set forth in this Section 2.1 are cumulative minimum
-----------
aggregate amounts for both Sponsors, collectively; nothing contained
herein shall be deemed to preclude the Sponsors (or either of them)
from making additional Sponsors' Loans in order to fulfil their
respective obligations contained in Article IV, V, VI, or VII of the
---------- - -- ---
Sponsors' Support Agreement, or for any other reason."
(vii) The following shall be added as a new Section 2.4:
"SECTION 2.4 Time of Class C Sponsors' Loans. The Class C Sponsors' Loans
will be made in cash and in Same Day Funds and will be made as follows:
(i) by the Contribution Date at the latest, if:
(a) AMD Inc.'s Consolidated Net Income for the Fiscal Year 1998 is
equal to or greater than $140,000,000; and
(b) AMD Inc. is permitted to fund the Class C Sponsors' Loans in
full pursuant to Section 4.07 of the AMD Inc. Senior Secured
------------
Note Indenture without utilizing any of the provisions
contained in the first proviso to Section 4.07 (iv) thereof;
------------- -----------------
or
(ii) if payment of the Class C Sponsors' Loans is not made in full in
accordance with sub-para (i) above:
(a) AMD Inc. will by the Contribution Date at the latest make
payment to AMD Saxonia of such amount of the Class C Sponsors'
Loans, if any, as it is permitted to make pursuant to Section
-------
4.07 of the AMD Inc. Senior Secured Note Indenture without
----
utilizing any of the provisions contained in the first proviso
to Section 4.07 (iv) thereof; and
(b) AMD Inc. will undertake a Stock Offering resulting in the
receipt by AMD Inc. of net cash proceeds to AMD Inc. of at
least $200,000,000 and make payment to AMD Saxonia of an
amount equal to the full amount of the Class C Sponsors' Loans
less any
amount already contributed under sub-para (ii) (a)
-----------------
above by 30 June 1999 at the latest;
provided that:
(iii) if at any time during the Fiscal Year 1998 AMD Inc. is permitted,
pursuant to the terms of Section 4.07 of the AMD Inc. Senior Secured
------------
Note Indenture without utilizing any of the provisions contained in
the first proviso to Section 4.07 (iv) thereof, to do so and:
(a) AMD Inc. makes the Class C Sponsors' Loans in full out of the
proceeds of, and forthwith following, a Stock Offering
undertaken by it in such Fiscal Year; or
(b) AMD Inc. makes the Class C Sponsors' Loans in full, having
achieved Consolidated Net Income of not less than $140,000,000
to the end of AMD Inc.'s most recently ended Fiscal Quarter
for which financial statements are available,
the Sponsors will be relieved of any further obligation under Sections 2.4
------------
(i) and (ii) above."
--- ----
(viii) The existing Section 2.4 shall be renumbered 2.5 and be replaced by the
following:
"SECTION 2.5 Voluntary Sponsors' Loans.
(i) Making of Voluntary Sponsors' Loans. On the terms and subject to the
conditions of this Agreement, the Sponsors (or either of them) may, in
order to comply with their obligations under the Sponsors' Support
Agreement or for any other reason, from time to time at their option
(but shall not be required to), on any Business Day, make additional
Sponsors' Loans to AMD Saxonia (herein collectively called the
"Voluntary Sponsors' Loans").
--------------------------
(ii) Timing of Voluntary Sponsors' Loans. Voluntary Sponsors' Loans may be
made by a Sponsor from time to time on at least two (2) Business Days'
prior notice to AMD Saxonia and the Agent.
For the avoidance of doubt, the additional Sponsors' Loan in an amount of
$34,000,000 made by AMD Inc. to AMD Saxonia on 26 September 1997:
(a) is hereby expressly agreed by the parties hereto to
be a Voluntary Sponsors' Loan pursuant to the terms of this
Section 2.5 and subordinated as a Junior Liability under the
Sponsors' Subordination Agreement; and
(b) shall not relieve the Sponsors from any obligation
to make Class A Sponsors' Loans, Class B Sponsors' Loans or
Class C Sponsors' Loans in accordance with Sections 2.1, 2.2,
------------------
2.3 and 2.4 above respectively.
--- ---
(viii) The existing Section 2.5 shall be renumbered Section 2.6.
(ix) All references to Dresdner Bank AG, in its capacity as Agent, and its
address, as the case may be, shall be replaced by a corresponding
reference to Dresdner Bank Luxembourg S.A., and its address, as the
case may be.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Representations and Warranties Each of the Sponsors and AMD
Saxonia hereby represents and warrants that:
(a) Organization; Corporate Power. It is duly incorporated and validly
existing under the laws of the jurisdiction of its organization, and has
all necessary power and authority to execute and deliver this Amendment and
to consummate the transactions contemplated by the Sponsors' Loan
Agreement, as amended hereby;
(b) Corporate Authority; No Conflict. The execution and delivery by it of this
Amendment, and the performance by it of its obligation under the Sponsors'
Loan Agreement, as amended by this Amendment, have been duly authorized by
all necessary corporate action (including any necessary shareholder action)
on its part, and do not and will not (i) violate any provision of any law,
rule regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to it, or of its charter
or by-laws or (ii) result in a breach of, result in a mandatory prepayment
or acceleration of indebtedness evidenced by or secured by, or constitute a
default under, any indenture or loan or credit agreement, or any other
agreement or instrument to which it is a party or by which it or its
properties may be bound, or require the creation or imposition of any
encumbrance of any nature upon or with respect to any of the properties now
owned or hereafter acquired by it; and
(c) Valid and Binding Obligations. The Sponsors' Loan Agreement, as amended by
this Amendment, constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms subject, however, to
applicable bankruptcy, insolvency, reorganization moratorium or similar
laws affecting creditors' rights generally and, as to enforceability, by
general equitable principles.
SECTION 3.2 Miscellaneous.
(a) This Amendment is limited as specified and shall not constitute a
modification, amendment or waiver of any other provision of the Sponsors'
Loan Agreement or any provision of any other Operative Document. Except as
specifically amended by this Amendment, the Sponsors' Loan Agreement shall
remain in full force and effect and is hereby ratified and confirmed.
(b) This Amendment shall be an Operative Document under and for purposes of the
Sponsors' Support Agreement.
(c) Sections 7.1, 7.2, 7.3 and 7.4 of the Sponsors' Loan Agreement shall apply,
---------------------- ---
mutatis mutandis, to this Amendment, as if set out herein in full.
----------------
(d) This Amendment 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.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the parties set out below has caused this Amendment
to be duly executed and delivered by its respective officer or agent thereunto
duly authorised as of the date first above written.
ADVANCED MICRO DEVICES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its _____________________________
AMD SAXONY HOLDING GMBH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its _____________________________
By _____________________________
Its _____________________________
AMD SAXONY MANUFACTURING GMBH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Its _____________________________
By _____________________________
Its _____________________________